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Item 5 - Ammnd to Disposition & Development Agreement with R and R Partners AGENDA REPORT ' '�' G� W9A CITY OF POWAY � f C -...�. �. �{cs �'lN TXE ��V T0: Honorable Mayor and Members oP the City Council Honorable Chairman and Members of the Redevelopment Agency FROM: James L. Bowersox, City Manager/Executive Director DATE: February 24, 1987 SUBJECT: Amendment to the Disposition and Development Agreement with R and R Partners Poway and Transfer ta Property from the City oP Poway and Poway Redevelapment Agency for the Develapment of a Target Shopping Center to be Located at the Southwest Corner of the Intersection of Twin Peaks and Pomerado Road BACKGROUNO On January 14, 1986, the City Council and Redevelopment Agency approved a Disposit9on and Development Agreement (DDA) with R and R Partners Poway (J.R. Evans Companies, Laguna Hills, CA) for the construction of a 20 + acre shopping center located at the southwest corner of the intersection oP Twin Peaks and Pomerado Roads. It was proposed that in exchange for approximately 9 acres of iand, the deveioper would construct a 220,000 + square foot shopping center with a 120,000 square foot GEMCO serving as the anchor tenant. In addition, the developer was to assume all costs for on and off site improvements to the site. On May 20, 1986, the City Council and Redevelopment Agency approved Tentative Parcel Map 86-03 (see Attachment R1) , a 10 1ot cortmercial subdivision, and Development Review 86-OS (see Attachment �2) for a 220,000 + square foot GEMCO Shopping Center. With atl necessary approval steps complete, R and R Partners Poway proceeded to complete working drawings for the project with the intention of opening the shopping center in July 1987. During September and October of 1987, a number of articles appeared in the busi- ness section oP many newspapers. These articies discussed rumors of an "unfriendly" takeover attempt of Lucky Stores, Inc. , the parent company of GEMCO, and the potential demise of the GEMCO chain. In order to avoid this takeover which potentially could have meant the demise of Lucky Stores, Inc. , Lucky' s Board of Directors decided to sell the GEMCO chain to Dayton-Hudson Corporation, the corporate parent of Target Stores. This sale, which was completed in late December 1987, provided for the complete transfer of most GEMCO stores to Dayton-Hudson inctuding real estate and ieases. Dayton Hudson intends to reopen most of the GEMCO stores as Target stores during 1987. ACTION: I FEB 24 1987 ITEM 5 � 1 of 53 Agenda Report February 24, 1987 Page 2 While there was no contemplation of such a takeover in January 1986, the DDA for the GEMCO project included provisions for such an occurrence. Specifically, the DDA in Section 110 allows a substitution of tenants for GEMCO with the new "business of not less than 75% of the floor area demised to the GEMCO Tenant." In order to satisfy this provision, the new tenant would be at least 80,000 square feet in size and be operated as a junior department store, variety store, or discount department store. The Target store which wiil be 103,000 square feet satisfies the criteria for substitution. In as much as this extraordinary corporate acquisition has taken place, it is necessary to amend the DDA in order to adjust the time schedule for development. During the past 3 months, the developer has initiated new leases, adjusted floor area for the center, and is proceeding with Target. FINDINGS With the Target project now proceeding, the proposed schedule for the project is as follows: 1) Approval of the amended February 24, 1987 Disposition and Development Agreement 2) Re-start site work March 15, 1987 3) Groundbreaking for Target Store April 6, 1987 4) Construction of buildings to begin June 1, 1987 5) Target receives building December 1, 1987 6) Grand Opening for Target February 20, 1988 In general , the changes to the shopping center wi11 not be noticeable. The 17,000 square Poot reduction to the former GEMCO building will be added into the shop area on the west side of the building. With this shop area being expanded, the developer is considering the addition of drug store/pharmacy and specialty type grocery store uses which were lost with GEMCO. The architecture, landscaping, and other site improvements will be virtually identical , with the exception of the south side of the property adjacent to State Route 56. When the Development Review was approved in May 1986, reference was made to possible changes that might result to meet CalTrans standards for SR56. The change which has resulted to meet CalTrans intersection design standards causes a 200 foot easterly shift to be made in the intersection of Twin Peaks Road and SR56. This shift in road alignment adds about 2.7 acres to the site which will 2 of 53 FEB 24 1987 IT�� 5 Agenda Report February 24, 1987 Page 3 be added to Parcel 2 of the subdivision map. Most of this additional area wi11 be landscaped and is limited to a building area of not more than 50,000 square feet by the provisions of the Development Review. Any building or subdivision of this area would require City Council/Redevelopment Agency approval in the future. In order to praceed with the Target project, it is necessary to approve an amendment to the Disposition and Development Agreement. This amendment (Attachment #3) provides for the fallowing: 1. A substitution of Dayton Hudson Corporation for GEMCO. Dayton Hudson will apen a Target store. 2. The Target store wi11 be not less than 95,000 square feet in size. 3. Construction of buildings wi11 cortmence by July 27, 1987. 4. The City/Agency portion of land will be conveyed by March 15, 1987. 5. A new legal descriptian wi11 be incorporated to include the new area resulting from a realignment of SR56. In order to accomplish the transfer, the City-owned land to R and R Partners, it is necessary to "seli " it to the Redevelopment A9ency. The property has an appraised value of $3.2 million (see Attachment N4) . The realignment of SR56, as requested by CalTrans, has added additional costs to the project in the form of grading, landscaping, road length, and re-engineering of street plans and subdivision maps. These costs are generaliy the respon- sibility of the developer. However, when negotiations were initiated for the DDA, there were to be no costs associated with Twin Peaks Road except for widening. The redesign by CalTrans of the intersection of Twin Peaks Road at SR56 will necessitate lowering of a section of Twin Peaks Road to achieve a 4°� grade through the intersection. This lowering cost of approximately $100,000 should be the responsibility of the Redevelopment Agency as a reimbursement to the Developer. RECOIMENOATION It is recomnended that the following actions be taken: City Councii — 1. Adopt the Resotution of the City of Poway approving an Amendment to the Disposition and Development Agreement with R and R Partners Poway (Attachment fl5). 3 °f 53 FEB 24 i987 �'�M ' Agenda Report February 24, 1987 Page 4 2. Authorize the Mayor to sign necessary documents for the sale of 1.59 + acres of land to the Poway Redevelopment Agency for $3.2 million. Redevelopment Agency 1. Adopt the Resolution of the Poway Redevelopment Agency approving an • Amendment to the Disposition and Development Agreement with R and R Partners Poway (Attachment N6). 2. Approve reimbursement to the developer for the costs of lowering Twin Peaks Road to meet grade standards of CalTrans. JLB:cb Attachments: �1 - TPM 86-03 #2 - DR 86-08 #3 - Amendment to DD&A �4 - Appraisal Report N5 - City of Poway Resolution N6 - Poway Redevelopment Agency Resolution 6/A/TARGETI - 4 4 of 53 fE8 24 1987 ��'EM G ;� 0 ; = � � ! . --m., o .�e .� I -�1 �..� , e �---A e �e .� � a �w r,c1 . i-$ � (/��,) ^ � i. :\'. ,�.s 00 \`C i � � 1 �f . zI� 3�`• ' ``• O qid ::�, q � 3st;�. � ��\ �, � 'I��eY�} I Y'.� ` , � �J O ��``' J � � �Ij,:a;i ... ,, W°;2.c� `' � � �i:�::s ' _:'_p- I : - . � F� �'�S�/n��2 �i. 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" . a r I ^.ti. _ � �.•.. 4 ° i � � e� '9 � ¢ $ �; �_ ; ;�1; r � $ s = ' a �?�M $L—O'f CITY OF POWAY ITEM : �az a�-� �� T I T L E : lr4�.L i(./s(P 3CALE : NA ATTACHMENT : /O � FEB 24 1987 ITEM 5 °f 53 MAY � 0 1986 I T E M 4 ., ----_ ——, ---� ' :s' l �� rw�.,_.a— < _ -- Y f� � ....._. m 1 = f• � �� a � W a � �� .. :..�' 1 i� """"'.r � � � � � .'i �6� : :9 7 W �?g. . ,�`o�y�� s`3 !1 �i �� S J � � - \ r�>' -:: ,�.0, �� I� � - "'7 � a � i��i i / � `C � 1 �L""1 S; �'a i � ��€: i . � ��I ,�� ..: It m� �- - ! � i ��' �'�� "�.' < .,� ; ��,\�� s � � (� - � � � � � ;':, �� , _ ,; . �s = . -: , ! ;;r� � �; �� - _3 /�' /�/, .: i e :� . c�,�� " ?�([4 .�€i � � - p;a �, ��y,(l, ��1 � '/�i �, fi� U 6 '� , ^ 7'%#!�,/ /' , �/�' � �� r , o /ti\l ��1� ! / /' '. < lir �i�v ¢ � �'+'• � ��/�� ' � � Sg$: �� o � � ,�.., �{ � ��f�l/ N �,� :: E Q ` � ��8 �' ?/�� 8 g�88�� % � _ � Z o _ �� _ � `. ��' ' '�' �� — , .. � . � ; • ;� ; , ��, - cn a �. � . < ,.�j �� _ � a � � ' , Q � 1► . � ¢ � "' , W � � � � ' ° , ; • �i a �4 � ¢ W ; � o ' e: a � iS z � � a � �V' ° ` �= f � �--, > w f ' °000i3o :iro � [� � � � ' oii�.i� s .�F ; � '��' ca 3 N : . . . � . (—' l. � ,� • • 6 of 53 FEB 2 4 1987 I T E M 5 ' .. e ., _ _, �� 4. m'�\\ � 7 ` n � . I I � �� ` . . � � . �: '`.�'`;.: ; _ FIRST AMENDMENT TO � � - DISPOSITION AND DEVELOPMENT AGREEHENT " . � . .. � THIS FIRST AMENDMENT is made and entered irtto as of the %°,':� �+ � '^`" - ` *�.:r7 1987, by and between the POWAY -. . day of _� � REDEVELOPMENT AGENCY (the "Agency"j and R 6 R PARTNEAS - � - ' pOWAY, a California general partnership (the "De�eloper") . � . - �. . . � R F, C �, T A I ^�+: � � � � . - � A. On or about , 1986, Agency and � � � Developer entered into that certain Disposition and Develop- � . � ment Agreement relating to certain real property in the City � � .� � of Poway, County of San Diego, State of California (the � � . "DDA") . H. The pacties desire to amend the DDA in certain - cespects. _ ' ��'''"��"''�'� NOW, THEREFOAE, the parties hereto hereby agree as � - follows: � � � 1. The DDA is hereby modified/supplemented as followa: � (a) The requirement in Section 110 of the DDA that a - GEMCO Department Store open or that the GEMCO Tenant open Eor , business as a GEMCO Department Store shall � be deemed satisfied iE the GEMCO Tenant opens for businesa as a - . . depaztment store from the Premises under the trade name . � � � � � "GEMCO" or sueh other name then being used by such tenant Eor �� the majority of its department stores in the San Diego, ��yF�aic''dfFT.o3EE-:w.y,' +��rCStiF4�?i�. . . . ' . California area now being operated as GEMCO stores. Dayton � � � � Gorooration a Minnesota corporation is hereby � - � � apProved by the Aqencv as a substitute tenant for the . � purposes of Section 110 of the DDA. µ "� .�.`'� .;kj �� - t . ew." . . � ' � � 5••.. . � 2/018/065217-0003/04 1/27/87 � of 53 : FEB241987 ITEM 5 , . .�,, �::;�.; • F. , � � � (b) The first paragraph of Section 617 of the DDA is � hereby deleted in its entirety and the Eollowing new para- � graph substituted in its place: "The Agency agrees that the Developer may record . 5'�' ?� '�::^ -^�Y'"';"�'� a Declacation of Restrictions And Grant Of Ease- � - �� " �-- � �� ments encumbering the Site in the form attached � hereto as AttachmenG No. 8 either concurrently with " - ' . . � . or following the Conveyance and agrees to execute a � � � � �� I Subordination, with respect to said Declaration, in � - � - the focm attached to said Declaration. Said � � Subocdination shall be recorded concurcently with � � � � � said Declaration.. The Agency further agrees to -� � � � � � execute and deliver a Non-Distucbance Agreement in � the focm attached hereto as Attachment No. 9 in - � favor of •�t P�omptly following the �. - - Conveyance an t e recor ation oE a short form of - � - ^ the GEMCO Tenan� lease." . �� (�) Attachment No. 8 and Attachment No. 9 referenced in - �. � � Paragraph (b) abov�shall be the Declazation and the Non- .. . - � � Disturbance AgreementAattached hereto as Exhibits "A"�� H�� -; ;;. ;�. ��: � cespectively� ' �r"�'�'��a'��"''� `� "`�=�*� (d) The�-Agency acknowledges ��that the Developer has � `�-� completed the performances required in paragzaphs 3 and 6 �of . � Section 214 of the DDA. The Agency alsu ag[ees that the � �. requi[ement in Section 214 that the Developer have obtained building permits for the "Phase 1 Improvements" as a � condition pcecedent to the Conveyance shall be deemed to have been satisfied i,n. the event that the Developer provides proof that the lease with Lucky Stoces, Inc. for a GEMCO department � � store containing 100,000 square £eet of floor area, or more, � � has been assigned by Lucky� Stores, Inc. to Dayton Hudson � Cozporation� and amended to ptovide for a TARGET department �.i,�"�"'�wd+a'R1,�.3eei<�+a.-,'ka�.�`,iXci°e*^a'".b4'� . , . . . , � . store conEaining 95,000 square feet of floor area, oc moze. � � , �- In such event, refe[ences in the DDA to a "GEMCO department - - store" shall be deemed references to a "TAAGET depaztment �� - - . stoce." Such assignment and amendment, or the delivety oE �: _ t,+:y �"t� .. ._._... ...... ' '"... .. . . ..r 'z_ FEB 2 41987 I T E M 5 $ of 53 _.__-�;;ri:.�::: :, :_� . � � � same, may be conditioned upon the completion of the � � - Conveyance of the Agency Portion to the Developer. � (e) The requicements in the DDA, ineluding without ..t"'%� � ,:.'� limitation Section 302 and Attachment No. 5, that certain � � � �. events occur within the time periods provided in paragraphs � � .� , y, q, 5, 7, 8, 10, 12, 13, 1, 17 and 18 of Addendum No. 3 to � � .. � � the DDA shall be deemed to have been satisfied, regardless oE �. - � when such events actually occur, in the event that: - � � � (i) The Conveyance of the Agency Portion to the � � Developer occucs on or be£ore March 15, 1987. � - .. (ii) Mass grading for the Site is commenced by the . � � . Developer on or before March 15, 1986 , - � � - . � (iii) The Develope7 commences the ConstruCtion of a TARGET department store containing not less than ninety-five - =�� thousand (95,000) square feet (gross floor area) foc use as a " � - TARGET department stoce and not less than twenty-five - \ � . � thousand (25,OOO) square feet of gross Elooz azea for � . .. additional commercial uses on or befoce July 27, 1987." The time periods in (i) , (ii) and (iii) above shall be subject to extension pursuant to Section 318 and Section 503 - of the DDA- Pcovided that the perfocmances described in (i) , (ii) and (iii) above are commenced within the times herein . � provided, the Developer shall be deemed to have satisfied the � requirements in subparagraph 1 of Section 612 and in - " - subparagraph 1 of Section 702 oE the DDA. Section 5(a) (i) of rv3 w-x^'�,��,v9^K:%*r9`.r +`�'�., i°Frc!'n'� - � the Grant Deed shall be appzopriately amended prioz to the �. � � Conveyance to conform to this paragraph (e). � � - (f) The refe=ences to building floor areas of one . . �� hundred thousand (100,000) square feet and twenty thousand . � , - � � (20,000) squace feet in the ficst paragraph of Section 2 at � �� page 1 of Attachment No. 5 to the DDA are hereby amended to ;�.y a e_,'�� " >r; 6'3 ��! J �.F J � � �3� y FEB 241987 ITEM 5 , --:�f.53 �.,,,z�;;�: :x� � -� .. . � � . i _ _ , . ;::y 1 ! r � refecence ninety-Eive (95,000) square feet and twenty-fiv� - � � . thousand (25,000) square Eeet, zespectively. . (g) � The Agency hereby approves oE the subdivision of ','3^� r'' �.`�} the Site pursuant to a parcel map in Ghe form attached hereto � � � �. as Exhibit "C". . ..,. . � . . ....;� , . ,�_.�.. .::.'.; � �. � � � � - - �� (h) The Site Map attached to the DDA as Attachment No. _ . , � 1 is hereby deleted and a new Site Map in the form of the � . Site Map attached heteto as Exhibit �D-'� substituted in its - � , .� place. � � (i) 2he legal descciption of the Agency Poztion set � forth in Attachment No. 2 to the DDA is hereby deleted and a .�� . new legal description of the Agency Poction, in the form of - � � the legal descciption attached hereto as Exhibit "� substi- - tuted in its place. ��^'�7.��'C"s:`h�h7� (j) Attachment No. 4 to the DDA (the "Giant Deed") is � - heceby modified/supplemented in the following particulars only: . " � � � (i) Subsection 3(a) at Page 2 is hereby supple- �� mented by the addition of the following at the end of � Subparagraph 3(a) : "Upon -the completion of the development of the . PropeiEy �to the extent and as required by the DDA, � with parking conforming to the cequirements of the Poway City Code, Gzantor agrees, upon cequest to � � execute, in cecordable form, and deliver to Gzantee � a Supplement to this Grant Deed stating that the � � �� .� . �. �� -� Property has been developed by Grantee to the � � - � � � � � extent and as required by the DDA and with packing - - �� conforming to the requizements oE the Poway City �,��r�a�� Code. The recordation of said Supplement shall constitute conclusive evidence that Grantee has � � - � � � .. � � � complied with its obligations pursuant to this � -� � � � Subparagraph (a) ." . _. . � (ii) A new Subparagraph (� is hereby added to , - _ � Paragzaph 3 at Page 2 of the Grant Deed as follows: � " � � , � �� ^(,d� Grantee shall use its best efforts to � � � � cause t�e opening of one oc more quality; sit-down ' � � �� restaurants (such as Aeubens, Sea Food Broiler, Monterey Bay Canners, Velvet Turtle or Black Angus) � � _q_ 10 of s3 FEB 24 1987 I.TEM �j '^_'y�:`.L 'f, :^.?,r =•::i _ ':i . n on one or more free-standing building pads on the � � � real property conveyed hereby and/or the adjacent � � - real property described in the attached Exhibit � 'H' ; pcovided that if Grantee, despite its best � effozts, tails to attract one or more sit-dovn .y;: i ,-.y� restaurants for free-standing pads by the second ...- , anniversary of the recordation of the CertiEicate . ' � . .� . . oE Completion issued by the Grantor Eor the � � � � improvements to be constructed on the Property, � � � . � � Grantee shall be relieved of its obligations to use - � � - ' best efforts to secure a sit-dovn restaurant. No � . � � . � � � � � gas station or fast food �restaurant will be _ � � � � � . � � permitted on the Property or the adjacent property � � � - �� . � � � described in the attached Exhibit 'H' without the � -�� .. � - � � � consent of Gwntor. For the purposes of this � . �. � Subparagraph (d) , a fast food restaurant means a -� limited menu iestaurant specializing in the sale oE ,,.: , . . ' �..�.:. . , .. . �� Eoods from a take-out window oc countez for - � consumption off of the pzemises. Grantee agrees to � - - �� use best efforts to locate other users for the � � Property and the adjacent property described 'zn the . � � . . � . attached Exhibit 'B' before requesting the � �� .. Grantor's consent to a gas station or fast food � - . . restaurant tenant." -� � �� . ' � (iii) Change the reference [o "paragraph 4(c)" w� ��i'�,y�}.;,�� in the 39th line at page 3 to reference "paragraph 3(c)". .. . � (k) Attachment No. 5 (SCOpe OE Development) is hereby � � � � � modified/supplemented in the following particulars only: � , � (i) Zn the Eirst line of Article VI the word - "initially" shall be added following the words "on the Site shall". - - �(1) Attachment No. 6 (Certificate of Completion) is � �- hereby modiEied/supplemented by adding a new Paragraph 6A ._ � (and by zenumbering the existing Paragraph 6 as � � -� . � � Paragraph � as follows: � .�:Y^ � �' , '� � "6. Phe two (2) year period described in ' ��iO�"`�'"'"�'��'"'`"°`'-°'� Paragraph 3(� of the above-described Grant Deed � . � � - � . � � shall commence to run upon the recordation of this � , � Certificate of Completion." ^ ^.k ^ y � �n ca.: ;� -�y�.;, A � `= � � . . ... . . ±+�_, �5� 11 of 53 FEB 24 1987 ITEM 5 - �-�;�. 4� - ;_� , , r �� IN WITNESS WHEREO£ the parties have executed this.,First � � Amendment to Disposition and Development Aqreement on the day � and year first above written. �s;� ..�.m�, • �. ::.: ,e� ' � POWAY REDEVELOPMENT AGENCY . . � . . �. . � By: . .. . . �� Its: ,: -.._.. . , _� By. . . _ � ..� � Its: . , . .. ��pyency,� ,.�.a - k''�-r`�'� . . R 6 A PARTNERS - POWAY� � � � � a California general � . - , , paztnership � . By..ROge[ A. Mohrho . � - Genecal Partner - � � By: J. A. EVANS COMPANIES, � -� INC., a Califacnia - " � corporation, ' , Genecal Partnec By: � � . � � Timothy J. Cal well, - � .. � .� � - President � � - ' �', . "Developer" 4�^�es`,.f"?G.��s.e�K'�h.,."k�3eaqyN�?� n *' 4 �' �` ��,� .i.�i .. . ,�... .. ,... . . . ._ _6_ iz of 53 FEB 24 1987 ITEM 5 <,> � �..;�:�- �,.z-�,. ;k� . � -_. :_� , � r . RECOADING REQUESTED BY AND �� WHEN AECORDED� RETURN T0: � � RUTAN B TUCKER (RPS) ` 611 Anton Boulevard ^ y""^�'� ' �'� Suite 1400 - � . � �. � �. � � " . Costa Mesa, CA 92626 , . - � � ^'ARATION O£ RESTRICTIONS AND GRANT OF EASEMENTS � � �� This DECLARATION OF RESTRICTIONS AND GRANT OF EASEMENTS . � � � � is made as of the _ day of , 1986, by R6R � � � � - � - PARTNERS - POWAY, heteinafter zeferred to as "Declarant." . � � For convenience, this instrument is hereinafter zefecced to � as the "Declaration." _ "�''� � - . P A E L I M I N A R Y: , 1. Declarant is the owner of certain real pcoper�y � situated in the City of Poway, County of San Diego, State of � California, described in Exhibit A attached hereto and - � _ incocporated he=ein by refecence. Said real property described in Exhibit A is hereinafter ceferred to as the "Shopping Center." A plot plan of the Shopping Center is attached hereto as Exhibit B and incorporated herein by . �. - . reference. � wl�c�. � � � �� 2. Declarant plans to develop and plan for the nt .�u's�L7SxSF.m7rsea-#+e'4".w.'t��''� .'.: . '� development of the Shopping Center as an integrated retail � � sales area for the mutual benefit of all real property in the � � Shopping Centec, and for such purposes does hereby fix and � � � � establish easements, covenants, restrictions, liens, and �� . charges (hereinafter collectively ceferred to as � � �� "Restrictions") , upon and subject to which all oE said �4 _'r �-H .�� '. �+ -�.-� � .�.w a„� Shopping Centec, or any part thereof, shall be improved, �,i �-��. x , z .:4_w .. ... ..>._ �...�"'4.y�� - � EXHIBIT "A" oie/osszi�—000a/iz . 13 of 53 FEB 2 41987 I T E M 5 ,e�-�� x ��a:,�>w.-�..xi� ��> ,y • � held, leased, sold, and/or conveyed. Such Restzictions shall � . � cun with the land and inure and pass with said pcoperty and - � ' shall apply to and bind the respective successors-in-interest ,;�x 3 .a; theceof, and all and each thereof is imposed upon said ,,3 � � � property as a mutual equitable servitude in favor oE said � � ' ' propecty and any portion thereoE. � � . � � . � � � 3. This Declaration is being recorded concurrently . - � � � � � - with that cectain Memorandum Of Disposition And Development � � � Agreement made by and between Poway Redevelopment Agency and � �� Declarant, which Memorandum and the Disposition And - , . � . � Development Agreement described therein (the "DDA") are �. � - , � subject and subordinate to this Declacation. I. � � � - � � � � DEFINITIONS F w��w��ri�� The following terms shall have the following meanings - � - � � - when used in this Decla[ation: . - 1. Parcel: Declarant may recocd a Parcel Map �� .� . � ' subdividing the Shopping Center into two or moze parcels and, � . in such event, each �portion of the Shopping Center constituting a legal parcel, as the same may from time to time be modified� by lot line adjustment and/ot resubdivision, - is hereinafter zeferred to as a "Parcel." Until such time as � such a Parcel Map has been recorded, the term "Paccel," as � � used herein, shall mean the real property legally described � � �., in the attached Exhibit A. If the "San Marcos Parcel" (as s iY�;�.,�,�,� ��,;:�';,,�,ti-�,,.,�,,Nyq,� hereinafter defined) is annexed to the Shopping Center as � � � � �� -� provided in paragraph 4 of Azticle III below, the San Marcos �� Parcel shall also constitute a Parcel for the purposes of . - . � � - .� �� [his Declaration. . � �� . � "� � � y, pwner; The term "Owner" shall mean and refer to �. �. � � ' . Developer, as the initial Eee owner of the Shopping Center, - - and any successoc person or entity or persons or entities �' •a '� +Y' ) 4 a,s t.�.ik �J .�44 b �u:: ... _. '�m.:>... _Z_ FE82419871TEM 5 14 of 53 """� "' — - . ,::� � � . � acquiring a fee intecest in and to any Parcel, except as is � � � � otherwise provided in subparagraphs (a) and (b) below. Th2 � exceptions to a successor becoming an Ownec by reason of its y�,vr��. .,^� -�<a interest in any Pazcel are as follows: -- .. . . . �� - � � . , � .� � - (a) The transferring Owner retains the entire - � � ' possessory interest in the Parcel conveyed under the � � � . � " � terms of a deed of trust or mortgage. - � � � � ' (b) The � transfer or� conveyance is . followed � � - �. .. immediately by a leaseback of the same Parcel by such � � � '� Owner, oc an affilia[e thereof (a sale and leaseback), � � ' . - � in which event only the lessee thereof shall have the � � � . � status of Ownec, so long as the lease in question has . . � �, . not expired or been [erminated. �� Upon any transfer or conveyance, which transfer or conveyance --� would create a new Oaner, pursuant to the terms� hereof, � �-�� including without limitation a transEez or conveyance by way of judicial foreclosure or trustee's sale proceedings, then �. �. � ' the powers, rights and intecests herein conferred upon the . -. Owner with respect to the Parcel so transferced or conveyed shall be deemed assigned, tzansEecced or conveyed to such [ransferee, fee owner or grantee, and the obligations herein conferred on such Owner shall be deemed assumed by such . � transferee, fee owner or grantee with respect to the Parcel - �� - . so acquired or owned as respects all such obligations to be , � �� , .y pezformed from and after the date of such transter or ^P�{�s'u.�-,.,<a'7,.,i�+,,�,�yya'�-�",''' conveyance. Zn the event that more than one person or entity � - holds the fee interest in any Parcel, whethez by way of � undivided interests or in severalty, [he persons and/or � � - "- entities holding all of such interests in and to any Parcel _ . � - . . . shall, for the purposes of this Declaration, be jointly � . . � . considered a single Owner. 'A �'-j ~ -n r .,+.'yer� ,-y�. ,A y r � .tiu . ._..... :.. ".:.ti._.`'7 _3_ ls of s3 FEB 241987 ITEM 5 <ri:i.� u .:bs.N --,.�:�r-h:�t - ._ =y � � . 3, P 'mdLV Paccel Owner: The term "Primary Paccel � Ownei" shall mean the Owner with zespect to the Parcel - � � containing the buildinq area shown as cross-hatched on Exhibit B heceto. ' �,r`-' ' '•:=� 4. San Marcos Paccel: Exhibit B shows the proposed � � development of the real property described in the attached � � ' Exhibit A integrated with certain adjacent real property �� - . . . � desciibed on Exhibit B as the "San Marcos Parcel." Said �� . � -� adjacent real property is legally desctibed in the attached - Exhibit C and is hereinafter refecred to as the "San Marcos � � � Paccel." Declarant shall have the right, but not the . . � � � � obligation, to annex the San Marcos � Parcel to the Shoppinq � . � �. Center pursuant to paragraph 4 of Acticle IZI below. The � .� � term "Shopping Centec," as used in this Declaration, shall be deemed to include the San Ma�cos Parcel from and after the '�0�'�'�"��`�`'"'�"r`�`�`x'�� effective date of any such annexation. � � - 5. Buildina Areas: The tecm "BUilding Areas" means �� those portions of the Shopping Center designated as "Building - � � Area" on the attached Exhibit "B", except that the location, � � size and conEigucation of those Building Aceas situated within the lines designated as "BUilding Limit Lines" on the attached Exhibit "B" may be changed, as hereinaftec provided, . pcovided that the Building Area as chanqed continues to be . . , situated entirely within said Building Limit Lines and - � � , provided furthet that the limitations on maximum floor area - � -' pcovided for in this Declaration continue to be satisfied. .� ` -h=:ark�r54'�.�v3Yre�,�w y.ir¢�yd/�+:r�xz�.td I I. � 9 . � . DEVELOPMENT � � � � 1. For the purposes of this Declaration, all oE the � �� - . � � . area within the Shopping Centez to be used in common shall be � � � � . � . � . � � referzed to as "Common Area," and said Common Area includes� � � �- � �� all areas within the Shopping Center other than "HUilding j4 ,- " < $ := ri ;��. , . < < ._._ -n- 16 of 53 FEB241987 ITEM 5 .l'�ia"� Sf L�'�+MreJ .+`4.�.i n.* :�{ _:� , r . Areas;" said Common Area is delineated on the plot plan which � � is Exhibit B hereto; subject to pacagcaphs 2 and 5 below, � said Common Area shall be developed substantially as shown on �Y,��.,� ..� said Exhibit B; and, subject to pazagraph 2 below, said � � � - - � Common Area shall not be used foc any other purpose than the , � � ,� packing of motor vehicles and their ingress and egress and . � � the ingress and egress of pedestrians. - � � 2. (a) Subject to paragraph 5 below, no building or . structure oE any kind shall be erected on any poztion of the � �� Shopping Cen[er except within the Building Areas; provided ' � �� - that there may be constructed and maintained upon or over � - . said Common Area a canopy or canopies projecting from � � � � � Building Area; normal foundations and doors foc ingress and � � � � egcess may project for Building Area; and signs may be „�,�N��,��,�. erected upon said canopy or canopies, so long as said signs � � � � � � � � do not obstruct the signs of any other Owner or Owner's � tenant of the Shopping Center. No signs othec than the signa . . . � provided for hereinabove, dicectional signs Eor guidance upon , . - the parking and driveway area, the low rise monument signs _ pecmitted by paragraph (c) (iii) below, and signs at the � locations shown on Exhibit B hereto, shall be erected or maintained upon the Common Area or Huilding Area oE the Shopping Center, except such as obtain the written approval � �� . - of the Primary Parcel Owner, the Owner of the Parcel upon .�� which such sign is located and the tenant of the Building -�4^,�y','�;xrs�,�d^qe.�;ss,,,,�,sw,i�ya�� Area shown as czoss-hatched on Exhibit B hereto, which � . . � � � approvals shall not be unreasonably withheld. �� . � (b) No building . or structure ecected in the � '� Shopping Center shall exceed one (1) story in height (but may . . � - � include a mezzanine) . No building or structure erected . � � - � within the Building Areas lettered "A" through "H" as shown ..`' � ! !t.: w' on Exhibit "B"� heceto shall exceed twenty-six (26) feet in � �� t .y ,�'*<.a...y. _., . . �-t_`f1 _5_ 17 �f ss FEB 241987 ITEM 5 �,;:� -�, . '` -`; .�r„=,�,.��:= .�:., . - �_� � , � , � � heighth above the ground floor area of the building initially � � � � � consGructed within the Building Area shown as cross-hatched . � � on Exhibit "H" hereto. r .y;�,,�„ y�,:� � ,:,;� (c) Subject to paragraph 5 below, the total floor � �. � azea (as measured from the exterior boundary oE exterior �� . , , building walls and excluding mezzanine area) constructed . � � within any of the Huilding Areas outlined by the lines � " � � . designated as "BUilding Limit Lines" on .[he attached Exhibit � � �.. - . "B" shall not exceed the maximum floor area amount for each � - such-area specified on the attached Exhibit "S" (the maximum � - ' .. � � � floor acea for such Building Areas within those poctions of - � �� the Shopping Center outlined in yellow on Exhibit "B" will . . ' �. not exceed twenty-eight thousand eight hundred (28,800) � � � square feet if the San Marcos Parcel is annexed to the � „�py,y,✓��yyy,,��.,,;�,j Shopping Center or sixteen thousand eight hundred (16,800) � � "P ' square feet i£ the San Marcos Parcel is not annexed to the - Shoppinq Center), nor shall the total Eloor area constructed � � � ' within all said Building Areas within said Building Limit . . � . � Lines exceed two hundred thirty thousand seven hundred � seventy (230,770) square £eet, if the San Marcos Paicel is � annexed to the� _Shopping Center, or two hundred eighteen thousand seven hundred seventy (218,770) square feet, if the San Marcos Parcel is not annexed to the Shopping Center. �� . �. (d) Notwithstanding anything contained herein to � � �� the contrary, Common Area adjacent to Building Area may be 4=.',-;;":a."d�..w'r^rt:„a..,'Ssy,..y;r,._aw,z;� used for: � � . �� _ � � (i) Drive-up bank, savings and loan, � �� restaurant or other wstomez service lanes and/or � �� " customer sezvice areas, pcovided that such lanes � � -� �� and aceas, together with canopy support columns and � . . �� canopies upon and over such lanes and areas, if - "' ��? any, are situated entirely within a Building Area � .�+v -* ��t� - ' , � _ `'3 a _,. . �s. _6_ is of 53 FEB 24 1981 ITEM 5 .-,�„�--a, r.�w-�;.,.:�'c;.� sr. _ - - ::� , r � �� or within the lines designated as "BUilding Limit Lines" on the attached Exhibit "H", or such area � � and/or lanes are either shown on the attached JN;Y� A� q.� Exhibit B or appzoved by the Primary Parcel Owner, � _ the Owner oE the Parcel upon which lanes and/or ' areas are situated, and the tenant of the Building � � � . � Area shown as cross-hatched on Exhibit B hereto; � - � � - (ii) The installation, removal, replacement, � : � � � , repair, use, and maintenance of hose bibs, stand �-. � � pipes, fire hose connections, down spouts, yard or � . . _ - � � Eloodlights, subsurface building foundations, � � � electrical panels and meters, and such signs or . shadow boxes of building occupants as may be - . � � � � � � - attached to or form an integral part of a building �"�� -"=" "" ��' situated upon Building Area; h - �� , (iii) The construction of low-rise sign - monuments (not to exceed six (6) Eeet in height) � ' � ' � within landscaped areas adjacent to any o£ the . � � freestanding building pads along Pomerado Road or _ - Twin Peaks Road. as shown ort the attached Exhibit "B", provided that each such sign monument is _ ,� � within thirty (30) feet of the adjacent Buiiding �� Area constructed on such building pad; . ... . - (iv) The construction and operation of trash - . �� . � � areas adjacent to any Building Acea or within the ��,��;�y�,M,�� lines designated as "BUilding Limit Lines" on the � � - � -� � attached Exhibit "H", which tzash area or bins � � � � - � shall be sHielded from public site and maintained � . - in a clean and sanitary condition; and - � � (v) The temporary erection of ladders, . - � � . scaffolding and stocefront barzicades and other - _,�;,:y tempocary storage of wnstruction materials and .,� '.,,� ,_,. v i. a^�'�""` s, � .3+ k'+«t ,�.�v'}. }}"z: �'?4Arl`}/L4 "J � . T ...� .:�� 7 19 of 53 n,.:�. r .�;�, _.,, ��:;n ; FEB 241987 IT EM 5 . _ ;:;� . . . � . . equipment during periods of constzuction, . cemodeling or repair of buildings and b�ilding � � app�rtenances, upon the conditions, however, that � such construction, remodeling or cepair is `%�` �: °�"'� diligently performed, that such ladders, � � � � scaffolding, barricades, materials and equipment � . ' thereupon are promptly removed upon the completion . � � ' thereof, and that such use does not unzeasonably .� -� � � interfere with Ghe normal use of such Common Area. - � . (e) The Common Area may be used Eor the � � � installation, maintenance and operation of undecgzound public �. - utilities secving the Building Area, together with and � � � �. � including vaults, manholes, metecs, pipelines, valves, � � hydrants, sprinkler controls, conduits, and related .,- � facilities, all of which lexcept hydrants and electrical � .N S ✓`.L�iSI}h - transformecs) shall, Go the extent reasonably feasible, be � � even with or below the sucface. � , � � � (f) The comfort and convenience of customers, - � . visitors, invitees, licensees, and patrons oE the Shopping Center by such othec facilities (as, foc example, mail boxes, " public telephones, newspaper dispensers, benches) as the Ownec of the Parcel upon which facilities are to be located, and the Primary Parcel Owner may from time to time deem appcopriate. . � � � (g) The Common Acea may also be used for the � � construction, maintenance, repait, replacement, and � �� ` '5;.':Yite'+a4T...rrS:rc�b�.nv'%k�:�'e„a;g� . � . reconstruction of walls and landscaped areas, including . -� -`� . .. .�-�. planters, planting boxes and decorative walls as may � � � . reasonably be zequized in connection with the construction - . � � � and maintenance of the Common Area as shown on the attached . �� .� . � Exhibit H, subject, however, to modifications pezmitted by � � � this Declaration. r a_ ` ;� "' .a -�� . . .. .. . . . . �., _8_ . 20 of 53 , , ,>,�,.:;� , ;�,� -�, FE8 2 4 1987 I T E M 5 . / � '�:�� ...... . :.... . . � � . - .. .:� . - . , r 3. In the development and use of Ghe Shopping Centez, � there shall not be established or maintained any building, � stzucture or area foc the transaction oE business, whether . � for retail sales or othez purposes, for which thece shall not s''� ° " ��"`� be established and maintained a Common Area containing � � � approximately three (3) square Eeet oF parking, driveway, - � � ' sidewalk and landscaping acea for each one (1) square foot of - � � . � �� floor acea ot all buildings, structures oz aceas to be used � �� - � � for commercial pucposes in the Shopping Centet, provided that � . . -� in [he event the plot plan which is Exhibit H hereto provides � _ � for parking, driveway, sidewalk and landscaping facilities in . � a ratio other than a ratio oE thcee (3) squace feet of . � - � packing, driveway, sidewalk, and landscaping area for each � - � one (1) square foot occupied by buildings, then, in that event, such plot plan shall prevail notwithstanding the above - "s� provision wncerning such catio. For the purposea of the � preceding sentence, the ratio provided on the attached plot � ' plan shall be deemed to be the �ratio foc the Shopping Center � � . � � and the San Marcos Paicel, even though the San Marcos Parcel � has not been annexed to the Shopping Centez. � ' 4. All buildi�gs constructed in the Shopping Center shall, either be equipped with such automatic spzinkler systems as meet all of the standards o£ the Fire Insurance Rating Authority (or othec similar ocganization having � � � , jurisdiction) or shall be constructed in such a manner so �� that the building within the area shown as cross-hatched on � �,...- -.:� . .nx 'ysx,Yi.cD`X�,�etl�K�:w+.ro�',b,cr4x`dvw� . . . Exhibit B hereto may be fire cated as a separate and diatinct , -.. � _ unit fxom any other building built in the Shopping Center. � � � " 5. The configuca[ion and physical arrangement of the - - � � .. � � Common Area within the Shopping Center shall be maintained in � � � � strict conformance with the plot plan attached hereto as � Exhibit B. Notwithstanding the foregoing, the Primary Parcel , ,s. r :� �,� •±? +. �. � �.. .:_:. _9_ Zl af s3 FE6 241981 ITEM 5 . c�ei�t f e??;:a��., .d.r:;;`i'�'F; . — . ,:� . ' r � Owner shall have the zight to alter the size, location, � � configuration and physical arrangement of the Common Areas � � and of the Building Areas as follows: ..� �r ,�. _;;+ (i) within the lines designated as "Building Limit , ... :::. � .. .... . - . . Lines" shown on the attached Exhibit "B"; � � � ' � (ii) within the a[ea outlined in yellow on the � � � � � � attached Exhibit "B", provided that the Primazy Parcel � � � � � � Owner obtains the appcoval of the tenant of the Buildinq �� - � � . �� Area shown as crosshatched on the attached Exhibit "B", � �� which approval shall not unceasonably be withheld, � . - . . �� ., � provided fucther that [he floor area limitations in . � � . �� -. - . � paragraph 2(c) above continue to be satisfied. Said � � . � - � . . alterations may include the closure of the westerly most � � ' � � � � access to Twin Peaks Road shown on Exhibit "B" hereto in �' y� ' the event the San Marcos Parcel is not annexed to the : .:. 4 ..`��a�� - � Shopping Center. , , - (iii) to construct a driveway to the adjacent real � � pcoperty designated "NOt A Part" on the attached Exhibit . � "B" on the area designated "Adjacent Property Driveway" on the attached Exhibit "B", notwithstanding that the - - . � construction of said driveway may elimi�nate up to ten (10) parking spaces within said area designated �� "Adjacent Property Driveway". � � � � , . Notwithstanding the above, the consent oE the Ownec of any . � - Parcel upon which the Common Areas and/or Building Areas are .��,�:�??��„��..�;,�,Q-.��„*.i;,�„� to be altered pursuant to this paragraph 5 shall be required � � �� to any such alteration and the tequicements of paragcaph 3 �� above shall continue to be satisfied following any such �� . � alteration made under i) or (ii) abovey �� r� - ;z -lo- 22 0£ s3 FEB241987 ITEM 5 . �.� - ;;� _ ,.� , n IIZ. � � � SHOPPING CENTER EASEMENTS � ti;;,, � , �.:;� . 1. Declarant does hereby establish in favor of and � � � . � - grant to the Owners and occupants of the Shopping Center, � . ,� _� . , their customers and invitees. nonexclusive easements for the . � - � � ingress and egress and for the passage and parking oE motor � � � �. _ vehicles into, out oE, on, over, and across all parkznq � . " . areas, driveways and service areas from time to time � established within the Shopping Center as provided in this - - - � � � Declaration so that the Shopping Center may be used as an . � � � �. � � integrated area by the Owners and occupants thereof and [heir � - � � � customers and invitees. � � � 2. Declarant does heceby establish in favor of and �ya,,�c�,,�.,;,i grant to the Owners and occupants of the Shopping Center ,a� "' � � their customers and invitees, nonexclus'ive easements for the - ingress and egress and passage of pedestcians into, out o�, . � . ' on, over, and across the Common Acea Erom time to time � � ' - � � � established within the Shopping Centec as provided in this - � Declaration so that the Shopping Center may be used as an � integrated area by the Owners and occupants thereof and their � customers and invitees. � �. 3. Declarant does heceby establish in £avor of and � � grant to the Owners of any portion of the Shopping Center � . � nonexclusive easements under, thzough and across the Common ^'"'+"�+-,°?',�.��r�?�,'�w«�+K+niz�::�.� Area of the Shopping Center for water drainage systems or � � �� structures�, water mains, sewers, water sprinkler system � lines, telephones or electrical conduits or systems, gas � � � . - � mains and other public utilities and service easements. - � - � � � � - � Subject to paragraph 2(c) of Article II above, all such . . � � - systems, structures, maina, sewers, conduits, lines, and -?? othez public utilities instrumentalities shall be installed f:�� ' ' ' - . .. .. � urv�o-1 . . . . � . -11- . z3 of s3 ' FEB 241981 ITEM 5 <w:� r, +;,�,;: �.�, �,�,.:: ;;� - •_� . ' . � and maintained below the ground level or suxface of such � � . � � � easements. � � q, The San Macws Parcel may be annexed to the :y,;, �,. `,,.,�i � ,�,a� Shopping Center by Declacant's recordation of a Supplement to � � � � this Declara[ion with the County Rewrder of San Diego �. �� - County, California, which Supplement shall legally describe - � - � � the San Marcos Parcel and state that Ghe San Maccos Parcel is . .. � . ' being annexed to the Shopping Center. Any such Supplement, - � � � . shall be executed by the Pcimary Parcel Owne[ and by the Eee � �� Owner or Owners of the San Marcos Parcel, if the Primary � � .. . . . � , � Parcel Owner is not then the Eee Owner oE the San Maccos � � � - � Parcel and shall require the wxitten approval of the tenant - �. � � of the Buildinq Area shown as crosshatched on Exhibit "B" � � � - � hereto, which approval shall not be wi[hheld if the `� �� Supplement is legally sufficient to accomplish . said _ 'i"�.�� - annexation and consistent with the� terms and provisions of this Declacation and such tenant's lease. Fzom and after the - ' recocdation oP said Supplement, the San Marcos Parcel shall . � be subject to and benefiGed by , the easements established by � � Declarant in paragraphs 1, 2 and 3 above and subject to and - � benefited by the remaining Restrictions and the terms and _ _ - provisions of this Declaration. -. 5, Neither Declarant nor any Owner nor any of the � .� �� . tenants or other occupants of the Shopping Center shall have � . � � � the right to authozize or permit the use of the Common Areas „�.�.i�;,r�,�Er�,.cf,,,��z.�:�,�,y�s,�, K�;;,,�� within the Shopping Center foc the benefit of any real � �. -� � property other than the Shoppi'ng Center, provided that in the � � - event the driveway described in pazagraph (iii) of Section 5 � � � ' of Article II above is constructed, said driveway and the . ; , . � � . .. adjacent traffic aisles within the Common Azeas may be used � � " for the benefit of the adjacent real property designated "NOt _ .s;� A Part" on the attached Exhibit "B" for ingress and egcess to ' � :2 . d _`,'�` . .. . ..... ._ -12- 24 of 53 FE9241987 ITEM 5 <>.�� z.,�.::.yk �k.� �;,i — . r . . :rl ' ' r � and from said zeal property and the driveway from the : � � . � Shopping Center to Highway 56 shown on the attached Exhibit .B„ y:,��,>+sa �,K� ; ;.;� IV. � � � � - OPERATION AND MAINTENANCE OF COMMON AAEA � � , ' - 1. No Ownec, emyloyee oE any Owner, tenant or other , - � � � oceupant, or employee of any tenant or other occupant, of any _ � � � '- . pact of the Shopping entec shall � use any portion of the � � � . � . Common Area located on the Shopping Center for motor vehicle _ � � ��. parking purposes except those portions designated as . ' � � � � "employee packinq" on the attached Exhibit B, as such � � � designated areas may from time to time be supplemented and/or - � . . �. modified by the Primary Parcel Owner, the Owner of each - � Parcel upon which the new designated employee parking area, ,,�, �� if any, is located, � the Owner oE any Parcel upon which the � �� employee pazking acea has been modified, and the tenant of �� the Building Area shown as cross-hatched on Exhibit 8 hereto, � �. � which approvals shall not unxeasonably be withheld. � �, . - 2, All Owners of any portion oE the Shopping Center - shall pay prior to delinquency all taxes and assessments on � the Common Area and Building Area owned by them. If any such " Owne[ shall fail to pay said taxes and assessments prioz to � � delinquencp, any other Owner, the tenant oE the Building Area ' � � cross-hatched on Exhibit B. or any other tenant of any other . . � � . . . � portion of the Shopping Center to which such right has been ^3 ,.y."��'." �'��+��.'k�±✓d� _ expcessly grante'd in its lease, may pay said taxes and � assessments and the cuzing Owner or tenan[ may then bill the . � � defaulting Owner for the expense incucred. If the defaulting . � . �� Owner shall not pay said bill within fifteen (15) days, the � �� curing Ownez or tenant shall have a lien on the pcoperty of � � � the defaulting Owner in the Shopping Center for the amount of '" ��= said bill, which amount shall bear interest at an annual rate ..r ... ... •: � .�?^v, n r �.;? , l� � h»�. 25 of 53 -i3- t::� f,�� -�r f; FE8241987 (TEM 5 :�p • � of interest equal to two (2) pexcentage points above the . � . prime or reference rate of interest then charged by the Los � Angeles. California, Main Office of Bank of Ametica National '��y,.;�,. � ;.:,� Trust and Savings Association to its most credit-worthy � � � � cocporate customers (but in no event to exceed the maximum -� . . , rate allowed by law) until paid. . � � - 3. The Primacy Parcel Owner (hereinafter in this �.�.�� - � � �. �- Article zeferced to--as�- the �"Manages!') ��shall- operate and � - � maintain, or cause to be operated and maintained, the Common � � . Area, includinq the landscaping thereon, located within the � - �� Shoppinq Center, and shall keep the same, or cause the same � . � ' to be kept, in good condition and repair with adequate �� . � - lighting and shall maintain the surface areas thereof in a - � � � �� - � level and smooth condition, evenly covered with the type of „y.r��a�;�,��.,y.y;,y�,�� surfacing material originally installed thereon, or shall � -� � � � � cause the same thus to be maintained. Such opecation and maintenance shall include, without limitation, sweeping; �. . � . ' gardening; janitorial services; repairs to and replacement of � . ' � asphalt paving, bumpers, underground utility conduits and systems servicing more than one store (except to the extent � " A� such repairs are the cesponsibility of a public utility), striping, light bulbs, light standards, yard and directional � signs, lighting systems, perimeter walls, sidewalks, . .� � . � . _ � � planters, landscaping and sprinkler systems, and planting ._ � � area; water, electrical and other utility services to the �}�""wY�'S�'�r�.�x'�x�..�?� Common Area and ita facilities; pzoviding security (but the . .. ,. . �� .� . Manager shall not be liable for a failure of security nor . � - obligated to provide security) ; depreciation of machinery and � � � � �-. equipment used in such maintenance; the employment of �� . - � � � � pecsonnel used in such operation and maintenance, including �. .. . � � � � � unemployment insucance, workers compensation insuzance and - other employee costs; and other items of repair, replacement, _ r �*+s sw-+ �;��"� K C�ia ..v. . ..�°.-:� 26 of 53 -ia- FEB 24 1987 ITEM 5 ^'S3'Y '4 Y.k.�'.;a. k.-+^,t�,:::,"� �sY - _ -.. :;:� , • n . � � � � � restoration and maintenance such as but not limited to the �� elimination of paving cave-ins and pools of water lhat may be � - needed from time to time to pcoperly maintain the said Common � � . Area. As part of said operation, the Manager shall obtain ^ Y'±"Y"'\ ` =3 -� � . . . - � � . . and maintain general public liability insurance insuring all , � persons who now or hereafter own or hold portiona oE the . � _ Shopping Center or any leasehold estate or other interest � . �� therein as their respective intecests may appear. (provided � -� that the Manager is notified in writing of such interest) � _ against claims foz personal injury, death or property damage -- � oceurring in, upon, or about the Common Area located on the . �� . . � Shopping Center. Such insurance shall be written with an -� � � " insurer licensed to do business in the State of California. � . � � . The limits of liability of all such insurance shall be at - - � least 51,000,000 combined single limit for injury to or death '^�4��:drtwia+°�'.'r�� , _ , of any number oE persons, or for damage to propecty arising out of any one occurrence. The Manager shall cause to \be �� . � issued certificates oE insurance to each of the other fee - � � owners of the Shopping Center, and to the tenant of the Huilding Azea shown as � cross-hatched on Exhibit "H" hereto, - � - which certificates shall pzovide that such insurance shall not be cancelled or amended within ten (10) days prior aritten notice to each of such parties. � � The Manager shall expend only the monies ceasonably . � �. . � necessary Eor such operation and maintenance in order to keep y ;, � � "-, <; the Common Area in good cepaic and clean condition and to i*^^'k.i,i[tl�'.e.}�s.G;rd.`.,�:¢+ASSA'� .� " operate the same on a nonproEit basis to the end that the .. . . . � expense in connection therewith shall be kept to a minimum. . . � � � � The Manager shall not� make or authorize any single � . � � .. �- expenditure cegarding the Common Area or the operation - � � thezeof exceeding TEN THOUSAND DOLLAAS (510,000.00) without .._::, . � . first obtaining the wcitten consent of the tenant o£ the _ s;� „„ : .`� �. :� �' .. .. _ . .. _.x.. ._. ....._._ -15- 2� of 53 c:;�, �, �,r N�� : ; FEB 241987 ITEM 5 - _ ,..:� . . - � � r Huilding Area shown as cross-hatched on Exhibit "B" hereto. � Prioc to purchasing any equipment or machinery to be used for - the maintenance of the Common Area, the Manager shall permit - . : any Owner an opportunity to pay its pro rata share of the ;y.-; �a _ .,�..� . cost theceof, as a Common Area maintenance charge, in lieu of .. .. � including depreciation on such equipment or machinery in the � � � � Common Area chazge to be allocated to such Owner as is � ' . � - � � � . � � heceinafter pcovided. � � � �� . � - �The Manager shall, from time to time, but not moce often � . . than monthly, send to each and evecy Owner a written --� statement of the total cost and expenses for the above- � � � � desccibed operation and maintenance of the Common Area for � � - � � the peciod of the preceding month or longer peziod. Said �� costs and expenses shall include a management fee equal to - fifteen percent (15i) of the costs of operation and � ��'��'�"�. maintenance of the Common Area paid by the Manager (which , � costs for the purposes� of calculating said management fee � � . � . . � �� shall not include any portion of the ceal property taxes, - - � � personal property taxes, insurance premiums, any single � � capital expendituce in excess of TEN THOUSAND DOLLARS - - ($10,000.00) or any management or other fee paid by Manager to a third part.y to perform all or a portion of Manager's � obligations hereunder in connection with said Common Area) . � � � -� Within Eifteen (15) days after receipt of such stakement, � � each and every Owner shall pay to the Managec its . ' �� proportionate share of the total amount of said costs and ..3�.`.�ti�.L:C`�6'��..a"6e<�aa.5.��'}Y_�°=+ag�' . "� . . . . � .� expenses hereinafter described. Each Owner, or its � , -� . . - � . .,. authorized repcesentative, shall have the right to examine � � � � the records of expenses in connection therewith at reasonable . � - � , business hours and without unreasonable frequency. Each � � � � � � � �, . Owner's pcopoctionate share of such costs and expenses shall be established based on the ratio between the floor area of - � ; . _ . _ . . . .. . - �- -16- za of ss FE8241987 ITEM 5 . '?rtR " "- .. -"�': . _ .. , . ��.:_; , ' e - � � . buildings in such Ownec's Pazcel(s) and the total floor area . of all buildings provided to be erected in the Shopping � . � Center, as shown in Exhibit "B" hereto. As an altecnative, . � the Manager may estimate Ghe Common Area maintenance charges �" � ' . �73 to be incurred ducing each calendar year (which estimate, . - except for the £icst calendar year shall be based on the � � - �� ' prior year's expenses plus reasonably anticipated costs . � � . ehanges) and�bill.each Owner .monthly, in advance, during such -�� - � � . � � calendar year for one-twelfth (1/12th) of each such Owner's . allocable share of the estimated chacges for such calendar � " . . � yeaz. In such event, however, the Manager shall pxovide each � � Owner with a statement of the actual Common Area charges � � � � - � incucred during such calendaz year within forty-five (45) � . - days of the expiration of such calendar year, at which time - the Manager shall reimburse or allow a credit against the � �'��"��'� next Common Area charges payable under this paragraph for any � overpayment or each Owner shall zeimbuzse the Manager for any . . �' � ' underpayment of its allocable share af the Common Area - � . � � .- maintenance chacges foc such calendar yeaz. Zf all or any � � � '� portion of the such fractions of said total is not so paid, - the same shall be deemed delinquent, and the amount thereoE shall bear interest thereafter at an annual rate of interest equal to two (2) percentage points above the prime or � � - reference rate of interest then charged by the Los -Angeles, � � - �. CaliEornia main office of Bank of America National Trust and -- � Savings Association to its most creditworthy corporate '�."'rv3;s'.Y,�.��'tc�'�+'F x.33K�;�?s.+i."�C*+.s;t,rr�a°� - -�� customers (but in. no event to exceed the maximum rate allowed � . � � .. � by law) until paid, and the Manager shall have a lien on the . � - - � . property of the defaulting Ownec in the Shopping Center for . - . � � � . � - said unpaid amount and interest. . �� . . . � . - � If the Manager shall fail to so maintain the Common Area . � - � � � � or to provide such insurance, then any other Owner, or the + _ °<a : . " � ......_......._.�, . ...:,>.,,... ...,,:.sa -17- 29 of 53 FE8241987 ITEM 5 � <�3i-� f t�e;;,w.�f..:u-2s�::.:�:-M . � . . . - _ . � . .q::j . . � � . tenant of the Building Area shown as cross-hatched on Exhibit "B" hereto, or any othec tenant of any other portion of the � � Shopping Center to which such right has been exptessly . � granted in its lease may do so, and the curing Owner or %s^ " '=" ° . '^"'� tenant may then bill the Manager Eor the expense incurred. � � If the �Manager shall not have paid said bill within fifteen � � : ' (15) days, the curing Owner or tenant shall have a lien on � . . . .� the property of the Managet in the .Shopping_ Center� fo[ -Che- -� .� � ' amount of said bill, which amount shall bear interest at an - "� . annual rate of interest equal to two (2) percentage points � � � � above the prime or reference rate of interest then charged by � - � � � the Los Angeles, Califocnia main office of Bank of America � . � � . National Trust and Savings Association to its most . �� . � � � cceditworthy corporate customers (but in no event to exc2ed the maximum rate allowed by law) until paid. � �'Y•."'`'�+?�'"4F q. Until such time as buildings are constructed on any Huilding Area of the Shopping Center, the Manager shall t8ke � �� ' such measures as may be necessary to wntrol weeds and the - � � erosion of dirt and sand by wind or water with zespect to said undeveloped portion thereof and shall bill the Owner of said undeveloped portion Eor its expenses in connection therewith. : . � : 5. Declarant recognizes that a system of surcharges � - was previously proposed by the Environment Protection Agency, - - � which, if it had become effective, would have been applicable � � � to the Shopping Center. While that system of surcharges has ;.9^�:�?t�e`�`m'��:aa:K..�.�'�,�++a4,��*� � . appacently been abandoned, Declarant cecognizes that said � . , � � � system or another system may be applied to the Shopping - . � Center at some future date by the Environmental Protection ,. . . . � �. � Agency oz some federal, state and/or local law, [ule, . � � � �� . � . . . � regulation, oc regulatory body. It may occur that such a �� system of suzchacges or charges oc cequlatory fee, howevec :x .. .�.,,,.,......... .:_ . . �.::a.. �..;�-.%.:,.,,_.:. -18- 30 of 53 � FEB 24 1987 ITEM 5 :<: f <�.,k�,,:_,. :�; , � . � �._�T:t • r � � � designated, may offer to the Owners alternative means of .. compliance, possibly including, without limitation, the � . � opportunity to elect to either pay a Elat annual surcharge or � � other fee, or to commence to charge for parking within the Y_:r.?\ �e. ?4} pp r'.IS �� . Shopping Center hereto vith a surcharge added thereto. � � Therefore, in the event any governmental body having .� - ' jurisdiction of the Shopping Center, pursuant to any federal, � � - � � .- � " ' sYat2 and'/or 1oca1 law, rule, ordinance or regulation, shall � -- . � � . � � � impose a surcharge or charge a regulatory Eee, however � - designated, on the operation of the Common Area, whether � � . . � based on the number of parking spaces contained therein or � � �- - � � � o[herwise, the existence of such a suroharge or charge or � - � . . . - � regulatory fee, however designated, shall not be a violation . � of the pcovisions of this Declaration. In the event there are „ . alternative methods of complying with the surcharge or chazge , �� system imposed (for example, and without limitation, � � - commencing to charqe the public for parking on the Common � � � Area either a rate plus surcharge or charge only, in lieu of -� .� payment by the Owners of a flat annual rate) the Owners and . � the tenant of the Building Area cross-hatched on the attached - - Exhibit "8" shall in good faith attempt to agree on one mutually satisfactory method among all alternatives, at least sixty (60) days prior to the date such surcharge or charge or . �� fee system is to become effective; provided, however, in the � � � event the Owners and said tenant cannot so agree despite such � .'� ,:- good faith aYtempts, the tenant of the Building Acea cross- na"a��"Yi�'i�3a',.sdsK:va.,;4;b+7�4X a . . . . . � '�� hatched on the attached Exhibit "H" shall, in its sole - � �� . .� - ._... discretion, determine which of the alternatives available , . � - � � � - �� shall be adopted to wmply with the surcharge or charge or . � � - - � � - . . � fee system. Upon such mutual agceement, or determination by � � � � � � .. . - said tenant, the alternative selected shall be applied � � thcoughout the Shopping Center. In the event compliance with �:'c ex. �+� 'i` �i:• {.r� - . .:�" -19- 31 of 53 FE8 2¢ �Q� ITEM 5 . :,;:z .� •�-�.x..,..�=i�;:r >.:ts . :,* _ :� . - � � such surcharge or charge or fee system is accomplished . � without chacging Eoc parking on the Common Azea, the cost or � . � � compliance with the succharge system shall be paid by the � � Managec and the costs incurred for such compliance by the ,'y* � a .::w .:.:f ,..� - Manager shall be included in the Common Area maintenance charqes to be allocated Co and reimburse the Manager by each � � Owner. In the event compliance with such succharge or chacge - . � � ' � .' � oz fee system is accomplished by eharging for .parking _on the � -- . . � � � � . � � Common Area, the Manager shall be charged with the � adminiseration and operation of the parking operation, : �. including, without limitation, the hiring of a parking � � attendant and the installation of such controls over movement � � � �. � � of packing vehicles as are necessary. The rate charged foc . � . . . � � parking shall be the lowest rate possible to still comply - with the system. A charge for parking shall be imposed only '�'��`X`L`��"�'R"`?� during the minimum number of hours cequiced by �the surcharge � or charge or fee system. All costs of administratiop. . .- ' operation and expenses of collection shall be deducted from � . - . . receipts Erom the operation to the extent allowed by the � � system. The Managec shall be solely responsible fo[ any � distzibution to any authozity in any record keeping and � su6mitting of information cequired by the system. � The " - � � Manager shall keep a separate, accurate and reasonably � � � � detailed set of books and records concerning the parking � � � . �. operation which shall be open for inspection by the other �� owners and by the tenant of the Building Area ccoss-hatched -�7,"'^t''S4`td�a^r»a�3e,�-aA...4�.v�.ati«�qra+.'s�aq�i� �. on the attached Exhibit "B" at all times during normal � � .� � � business hours. Said parking operation shall be conducted on � � � � � a nonpro£it basis, provided, however, in the event the � - � - � � � � .. , parking operation results in a net profit to the Managec, the � � - . � . . - Manager shall allocate such net profit to the Owners, in the � � � same proportion that such Ownezs contribute to Common Area -fi '; ..,.._. .. .. ...,. . . . �..,-._, .. ._ . . .. _ -20- 32 of 53 _: . . FE8241987 ITEM 5 ;.<,:: � .�;:_ „ �, . ;:.,; � .. — a . , , _�iy� ' ' r � � � � maintenance chazges. Any such net profits shall be .� calculated and paid no less often than every three (3) � . - calendar months. The only circumstance under which packing � - - on the Common Area shall be on an other. than free basis shall s.;ya e .�: ,.;'�;:4 - - � be in the event a surcharge or charge system or regulatory , , � � fee, however designated, is imposed upon the Common Area. . � Any such parking system which requires the payment of a . � .- � parkinq chArge "shall include a system for validated packing � � � - which will allow Yhe occupants of the Shopping Center to pay - .,, parking charges imposed upon their customers, employees - � and/or other business invitees pursuant to such parking . � � , system. G,,� _ �7� � \ .�5.%"`FR•�lT�YM va�',`M,W_n�� +'ei� � � H ............ � ..,:. . .,._.. -21- FEB 24 �987 I T E M 5 33 of 53 , r .;�.�,.-_�a ::� � � � ��. � - �RF.STRICTIONS ON USE � No portion of the Shopping Center shall be occupied oz .jYt^�..�,\vrc ,;,+:,+" M ;':,q' . , . used, dicectly or indirectly, £or the purposes of an office � � � � building (provided that this provision shall not be construed � � � ' as prohibiting the use of any of the freestanding building � � . . .. . � : . � � padg �al�ong��Pomecada Aoad..and/or TWin Peaks Road shown on the - � � � � - attached Exhibit "B" for bank, savings and loan and/or other �� financial uses oz foc real estate office, travel agency, " - � - � escrow ofEice, brokerage office, or medical, dental or other . � � - � pcofessional office purposes), entertainment or recreational � � � �. � � facility or a training or educational facility. As used . � � � herein, "entertainment or recreational facility" includes, but is not limited to, a bowling alley, skating rink, a..""ikF''�'Ny�.aY'a*r�iG-aewen+, �z::,:�,��;: °- �� .� theater, billiard room, health spa oc studio, massage parlor, amusement arcade, bar or tavern (provided that alcohoTuc „ - . � beverages may be served in and electronic amusement� devices - � . may be maintained within any zestaurant operated in the � Shopping Center) , or qymnasium or place of public amusement; and "training or educational facility" includes, but is not limited to, a ,beauty school, barbec college, place of instruction, reading room or any operation eatering primarily . to students or trainees rather than to customers, it being � � � the intent of this provision that the parking and other _ � - � � common facilities should not be burdened by either lasge �«t�.�"%$,e`s&x*x.4^.:r�s�wa.,,'�.SS+.i'i�',_Mn-'M'^�r.� . � � scale oz protracted use. V. � � - CASUALTY DAMAGE AND REPAIR � � . � � � � �� 1. Each Owner, as to the Paccel owned by such Owner, � " . � � shall maintain or cause to be maintained the building � � � � � improvements from time to time constructed upon its Parcel, �i .::. . . ._.,.._. . . ._ . .-. -22- 34 of s3 FEB 24 t987 ITEM 5 � t:J�s 'f.tY�:c p}-+;1.r.�.'_i- ;;.J ' . e .. ' ' t.(Y4� . � � � � .� � in good ordec, maintenance and repair, reasonable wear and � � tear excepted, and in accordance with the requirements oE � � � � � � this Declaration. � . - 2. In the event of any casualty damage to the building r '�"��'19`^ �^',.�?:s ^�"�""y'=,� improvements upon the Shopping Center, the Owner of [he � � Parcel upon which such building improvements are situated � . � . � shall either promptly repair and restore the damaged or . destroyed ,building improvements, _with.all. due��diligence�, �to� � substantially the same condition as existed immediately prior � , to such casualty, and/or promptly tear down and remove the � damaged or destroyed improvements, the rubbish and the debzis .. resulting from such casualty and otherwise clean up and ce�tore the building site affected by auch casualty, as Ear � �� ' as practicable, to a level and clean condition, with all due � _",� diligence. Thereafter, the Owner of such Parcel shall _ e "'-:„ � __ , maintain the same in a level and smooth condition and shall ��' take such measures as may be necessary to control weeda dnd �,YaF • ' erosion of dirt and/or sand by wind or water with respect to � �- - � said Parcel, until new building impcovements are constructed � � on said Parcel. Nothing contained in this paragraph shall be - deemed as modifying ar limiting any obligations of any Owner with respect to casualty damage upon such Owner's Parcel � .4 contained within any lease or other contractual arrangement . entezed into by any such Owner. VI. .� ' -� � . �� : � GENERAL PROVISIONS �"'�'��'"'$""�^�""�� 1. Covenants Run With The Land. Each easement, restriction and covenant contained herein shall be � . appurtenant to and for the benefit of all portions of the � � , Shopping Center and shall be a burden thereon for the benefit � � of all portions of the Shopping Center, and shall run with � ' � - the land and be enforceable as an equitable servitude. Each t�. :. .> ��.fi,;,:� _'.� �e�'+Ear�y �.irs�� ,'v'w,a�°'..s`�`i'.i'�. a"t+- �°�a� ... . . . . -23- 3s ot s3 "' FEB 241987 ITEM 5 � . �<�.�. � w�+.;�xr3-�..as.'keir�3?�r'� - . ;� . , � � � covenant to do oz refrain from doing some act on the property of the covenantoz (i) is for the benefit oE the land of the � � � covenantee, (3i) runs with the land owned by the covenantor � and the land owned by the covenantee, and (iii) shall benefit %?r%"'' � '^`�-+' °''t" ';�,�.'� or be binding upon each successive Owner, during its ...._ .�. _ �.. ._. _ "- :.. � � � � - ownecship of the fee interest oc leasehold interest in and to � � • any portion of the land affected hereby and each person . . . . � having any in[erest herein derived �thcough 'any Owner �of the � �� .� � �� land afEected hereby. This Declaration and the restrictions, � - � easements, covenants, benefits and obligations created hereby . � � �� shall inure to the benefit of and be binding upon Declarant �� . .. and its successors, transferees and assigns; provided, �- � � however, that if any Owner sells any portion or all of its � �- � � � � - intetest in the Shopping Center and obtains £rom the ;,,$ purchaser thereof any agreement by which the purchaser �'� ...7 .;,,< i'""��h�� assumes and agrees to be bound by the covenants and � agreements hecein contained, the vendor shall thereupon �be `� ' released and discharged from any and all further obligations � � � � . under this Declaration as such Owner in connection with the � � property sold by it. � 2. Uuration. Except as otherwise provided herein, each,easement established under Azticle III �above shall be in +`.': perpetuity and each other covenant, setback line, restriction and undertaking of this document shall be for the term of � . � � sixty (60) years from the date heceof, provided that from and �.. - �- �� - after [he expiration of said sixty (60) year period, no , �� "}�'Y'�`�""`�"��'""Y�'k"'t`"'"'�'� changes shall be made to the location of driveways, traffic � � � � � � � aisles and/or parking areas upon any Parcel that would have a � � � � �� materially adverse effect on ingress and egress to and from � � _ . � � and/or the parking reasonably required for any other Parcel. � " ��. ��. � �� 3. Iniunctive Relief. In the event of any violation � � � �. or threatened violation by any Owner, lessee, or occupant of - ';a y[ +' A J �`n {7\ i �LK-}'� �� `�� f �C1�— 36 of s3 : FEB 241987 ITEM 5 _ h. ,'.-:ti.r :.i _ � . � . � - .� � � any portion of the Shopping Centez of any of the terms, � . covenants, restrictions and conditions contained herein, in � � addition to the other remedies herein provided, any or all oE . ,. � � .� .:... � the Owners, the tenant of the Building Area cross-hatched on �:: �� r _� . � � . � the attached Exhibit "B" and any other tenanG of any other _. , . portion of the Shopping Center to which such right has been . � , � � � expressly granted in its lease shall have the right to enjoin - �� such violation or threatened violation in a couzt of � � � � . ' �� - competent jurisdiction. �� 4. Modification Provision. This Declaration may not � �� be modified in any respect whatsoever, or cescinded, in whole � ' � � �� - -� � � or in part, except with the consent of one hundred percent �� " -(100i) oE the Owners of the Shopping Centez, plus the tenant � �� - � - oE the Building Area shown as cross-hatched on Exhibit "B" - - hereto at the time of such modification or rescission, and ".��.c — a''G.'S'�'� , then only by a written instrument duly executed and acknowledged by the requisite Owners and tenant, duly . - . ' recorded in the Office of the Recorder of San Diego County. � � Other than as provided in this Section -4 and in paragraph 6 � below, no othec consents or approvals shall be cequized to - >, ��:�. amend or to terminate this Declaration. 5. Not A Public Dedication. Nothing herein contained , shall be deemed to be a gift or dedication of any portion oE � . _ the Shopping Center to the genecal public or for the general . .. � . public or for any public purposes whatsoever, it being the �M1 y,`^ ,., � t intention of Declarant that this Declaration shall be "m",�,.akz�'...�^x-:a,��.*�rM �� . . . . . strictly limited to and Eor the purposes herein expressed. .. . 6. A a�h Shall Not Permit Termination. No breach of � � � � this Declaration shall entitle any Owner to cancel, rescind � . � � � � . � . or othecwise terminate this Declaration, but such limitation - - � � shall not affect i� any mannez any other rights oc cemedies �� which such Owner, or any tenant, may have hereunder by reason = a ,� h _• +C _ ,'�'i 1 ».;` . i !� °'� -zs- 3� of ss FEB 241987 ITEM 5 . - � ��, �;� :� ,;�;� . ._.; . ° - . . . of any breach of this Declaration. Any bceach o£ any of said �. covenants or restcictions, however, shall not defeat or ' � � render invalid the lien of any mortgage or deed of ttust made � in good faith for value, but such covenants or restrictions '^�t''� ��° " ^' `�� j '°��i ahall be binding upon and effective against such Owner oE any � � of said property or any portion thereof whose title thereto � ' is acquixed by foreclosure, trustee sale or otherwise. No �� . modification,...amendmenb� �or -�tecminatiort- o£ th�is DeclarAtiori � - �� shall be binding upon or affect the rights of any mortgagee � holding a moctgage or a deed of trust upon the interest oE � � �, � any Owner of any Parcel or on a leasehold estate of any Owner �� in and to any Parcel that is recorded in the Office of the � � � . � . San . Diego County Recorder prior to the date any such . _ . � � � � modification, amendment or termination is recorded in such office, without the prior written consent of such mortgagee. '�'�'��'��'�"`rt`'�°s�'^�'� The tecm "mortgagee", whenever used herein shall be constzued � � ' to include beneficiaries under deeds of trust. � � - � 7. Reverabilitv. Zf any clause, sentence or other � � . � . portion of this Declaration shall become illegal, null or � � void Eor any reason, o[ shall be held by any oourt of competent jurisdiction to be so, the remaining portions � � thereof shall refiain in full force and effect. � � e. Subseauent Convevances. All conveyances oE all or - any portion of the Shopping Center subsequent to the date � � - hereof shall recite that they are subject and subordinate to �- � the terms and provisions hereof. s.3.;."'"��YwX!✓a^K,�e�Kao.�..'4�,.++w!±or�a4af� . .. . ,. . 9, Enforcement of Lien. The liens provided for in . � . , �� "Operation and Maintenance of Common Area" hereinabove may be � � . filed for record by the pacty entitled thereto as a claim of �_ ... � . � � lien against the defaulting Owner in the Office of the County � . . . � � Recorder oE San Diego County, signed and verified, which � � � � � � � shall contain at least: .. _._., . . .._�i _z5- 38 of 53 FEa 2� 19g7 IT EM 5 -- - r: . 4 . . _ . . :�yij , � r � . . . (a) A statement of the unpaid amount oE costs and expenses; � , � (b) w descciption sufficient for identi£ication oE � � � that portion of the Shopping Center of the defaultinq Ownec y^t6 �'� 1 ��s ';TZ � . . . which is the subject of the lien; and � � (c) The name of the Owner or reputed Owner of the � � ' property which is the subject of the alleged lien. � � - � . -� �Suchlien, when-so' estab7ished-against th�rYea�b•propect�y. � � -� - described in said lien shall be prior and superior to any �. � � � righ[, title, interest, lien or claim which may be ot has � -. been acquired or attached to svch real property after the � - � �� time oE filing of such lien and the priority of such lien � . � � � shall date Erom the date that such claim oE lien is recorded - as cequired by this paragraph. Such lien shall be a lien with power of sale and shall be for the use and benefit of - `�''i'�� the person filing same, and may be enforced and� foroclosed in � ' a suit or action brought in any oourt of compet�nt , � . .. .� . . ' jurisdiction. . �. 10. Ownershio Of Sh000ina Center. The ownership of the � entixe Shopping Centec by the same parby shall not effect the termination of this Declaration. 11. Condemnation. In the event oE condemnation by any duly constituted authority for a public or quasi-public use � � . of all or any part of the Shopping Center, that portion of . � the award attributable to the value of any land and �� - improvement within the Common Area so taken shall be payable �*i.,-�°-".iic"d+�aF9,a§me,e�::wsw`�s�l'+�`+w,i,a�� . only to the� Eee owner thereof, subject, however, to the terms „ .�. . � of any lease or other contractual agreement entered into by � � � such party; provided, howevec, all other Owners may file � �. collateral claims with the condemning authority over and . � �. � � above the value oE the land o£ the area so taken; provided, � � � �� further, however, that the Owner with respect to any portion . ?;c :.,�" �,�,.J tMt « � e�:�- 1 .a.i .. : . . '_�_:: _2]- 39 of ss �TEM 5 r>,::s E .�,..�;w s.. ��,�;�:i: FEB 241987 µ . � � � � . o£ the Common Area so condemned shall promptly� zepaic and . restore the remaining pottion of the Common Area so owned by � � � � such Owner as near as practical to the condition oE the same � immediately prior to such condemnation. This Section shall , " s'"� '�� - . _ , not impair any obligation of any Owner pursuant to any lease � or other contract eniezed into by such Owner. � � � ' 12. Attornevs Fees. In the event that suit is brought � �� . £oc the enfoicement of this Declaration or as a result of ang � � � alleged breach thereof, the successful litigant or litigants � � in such suit, including any Owner, shall be entitled to be � , � paid reasonable attorneys' Eees by the losing litigant or � � �� . .- � litigants, and any judgment or deccee zendered shall include � �� . � �. � an award thereof. .. �� . �� . � 13. Reauest Foc Modification. In the event a request � � - to change o[ alter this Declaration is made by any "'��`��0�''"�^�'""1`'f^'K`'�`�;`-K''R"� "institutional lender", as defined heceinbelow, proposing to � � - extend credit to be secuced by a first deed of tzust or fikst � ' mortgage on the interest oE any Owner within the� Shopping �� . . Center, in ocder to (i) clacify the rights of such lender � hereunder and/or (ii) otherwise better secure to such lender " its ability to protect its security, consent to such changes . or alteration QE this Declaration shall not be unzeasonably - . withheld by any Owner o[ other person or entity whose consent � � � � or approval thereto is required by this Declaration. The - � � � tecm "institutional lender", as used herein, shall be deemed � � to mean any bank, savings or building and loan association, ' 'c=i�ei�^K,..:,;K`:?�ny.�.w�tiM,tr.x� � trust oc othec similar institutional type of lender � , � (including loan service coriespondent companies designated by � � � � any such lender). Nothing contained in this Section shall be � � construed as obligating any Owner, person oc entity to . � �� .. � appcove or consent to any alteration ot modifica[ion to the � physical layout and configuration of the Common Area as . a � . ..... ... : . _ . _ . -28- 40 op 53 fE8241987 �TEM 5 ._<.?..) f �;nc. ,..y, '- '.'� — _ ..� . . . � shown on the attached Exhibit "B", including without limitation, the layout and location of packing spaces, driveways and tzaffic lanes, if such approval 'or consent is s�,;_ , .A^. � requiced, it being understood and agceed that any such ia'xt3 � - � � � approval or consent may be g[anted or withheld by any such �� - party at its sole discretion. Any parties not involved in � � � � � such request shall be at no expense in this regard. ' . �- � - � � . ... .yq�, ��Termirtation: "ThiS D'eclaration will terminate and � � � � . � � � be of no Eurthec focce or effect in the event that the Poway � � � �� Redevelopment Agency reacquires title to that portion of the . . � Shopping Center defined as the "Aqency Portion" in the DDA . upon any exercise of its rights under Section 616 of the DDA. . �� Notwi[hstanding that the DDA is subject and subocdinate to � -� �' � �� this Declaration, this Declaration shall be subject and ��s�� subordinate to the lien of the Poway Redevelopment Agency "- � , ' . • established under Section �07 of the DDA. The recordation of � � � the Certificate of Completion described in the Memorandum\Of �_ � . � � Disposition And Development Agceement described in the � � � . Reaitals to this Declaration shall wnclusively .establish that the Poway Aedevelopment Agency's rights to reacquire ti[le to the Agency Portion under Section 616 of the DDA have tezminated and that the lien established by Section 707 of � � the DDA has tecminated. . � � - � 15. IDB Financina. No Owner or any other person � � � � . .. � � - � claiming by o[ undet an Owner with respect to a Patcel will *�';'�';�{a�.,��r;,„�„��,,f,(,Y �;� e£fect a financing or Einancings with respect to all or any � � . � � portion of such Owner's Parcel which directly or indirectly � � . � � involves bonds or other securities tax exempt pursuant to the � - � . . � � provisions of Section 103 of the Internal Aevenue Code of .. . �� . � 1954, as amended, and the rules and zegulations theceunder. � � � � " � 16. Authoritv. The persons executing this -�" - Declaration on behalf of Declarant represent and waccant, ' -� oi ; ? = � .�v* � +�-` :i � '3'-`F—.. . ..._ .. . b(i:_: -29- ai of ss FE8 24 �gg� ITEM 5 . �:� x <�:�u¢��.��_r ��; . 1 •: ._ .-,:::� . � � � � � jointly and severally, that Declarant is a gene[al � � partnership organized and existing undei the laws of the � State of California, and furthec cepresent and warrant that � � they are the genecal pactners thereof and are Eully _x;;; i .,:;y -� � � authorized to executed this Declaration and to bind Declazant . -r� -�� -�---� with respect to all matters contained herein. � - � IN WITNESS 47HEREOF, Declarant has duly executing this - � - � � . � Declaration-•es•�of �•the day��and ��yeac_f.irst__hereinabove set . � � . . Eocth. -� � � R S R PARTNERS - POWAY, �� -. � a general partnership . . � � - � gy; d.R. EVANS COMPANIES, INC. , � � � � � a California Corporation, � . � � general partner . _ � . . _. � ey: � "� , : � � TIMOTHY J• CALDWELL, � � � President _ ,..0 .,K!x;,w�%� By: = . ROGER A. MOHRHOFF, - � - general partner � �} .'�t'i�aw"t,��&'�M32i�.eFr..�r:4',;F?"+'n.3.R,�' . %i ^ _,r' � . .. .. . . . - . -30- a2 of ss FEB 24 1987 ITEM 5 �K,•� "C-ST t.e[VC1> >"4.n"��Y :'�.� .. _ , . • � SUBOADINATION � T8E POWAY REDEVELOPMENT AGENCY as a party to that � eerYain Disposition and Development Agreement dated � 1986, by and between T8E POWAY ;y,;;; � �� REDEVELOPMENT AGENCY and R6A PARTNERS - POWAY, a California . . '�`i general partnership, a Memorandum of which Disposition and Development Agreement (was recorded 86 in Official Records San Dieao Countv Cali ornia as � � � � � � Instrument No or is beina recorded onc rrentiv � � � ' with the Declaration to which this Subordination and Consent - � � � � � � � �g attachedl heceby subocdinates said Disposition an$ � � Development Agreement and all rights and intecests of the - � � � � � undersigned therein and thereto to the said Declaration to � � � �� - which this Subordination is attached; provided that said - � subordination shall not affect nor be applicable to and does � � - hereby expressly exclude any liens, rights, poWers, ensements - - - � � and/or encumbranees, if any, which may have azisen or �� in[ervened in the period between the cecording of said - - � � Memorandum of the Disposition and Development Ag[eement and � � � . � � � the recording of this Subordination in the Official Aecords � - of San Diego County, California. This Subordination shall be . . . effective upon the date o£ recordation in the OE£icial � . Records of San Diego County, California. � � IN WITNESS WHEAEOF, this Subordination has been executed this _ day of ,. 1986. _. .,wt�.p� THE POWAY REDEVELOPMENT AGENCY - - HY. � �. . � . . . . - � Chaiiman . ATTEST: � Seccetary - '� � ' APPROVED AS TO FORM: � � � STADLING, YOCCA, CARLSON L �- � RAUTH, Special Counsel to ��'�*��j��'�'��`�� . °"s � Ahencoway Redevelopment 9 Y ^ � � >;: :i 2/137/062444-0001/OB 8/14/86 43 of 53 , - ,,,��,�,� �� ;� FEB 241987 ITEM 5 MifrKtCi�.t4.► �.� ?' Y ;.� ' NON-DISTURBANCE AGREEMENT � . . THIS NON-DISTURHANCE AGREEMENT is made as of the _ day - of . 1986, by and belveen the POWAY REDEVELOPMENT - �'� AGENCY, a public body organized and existing under Chapter 2 of � � �. [he Communily Redevelopment Lav o£ the State of Cali£ornia, here- - � � � inafter referred [o as the "Agency," and LUCRY STORES. INC., a . . . California corporacion, hereinafter referzed to as "Tenant." . � � P R E L I M I N A R Y : -� � . A. Agency is a pariy to that certain Disposition snd � � � � Developmen[ Agreement (hereinaf[ez, the "DDA") dated February 9, � � - � � � . 1986, a Memorandum of vhich vas recorded , 1986 as - � �� - -. � � SnstrumenG No. , in the OfPicial Records of San Dieqo � � � � � County, California, vhich DDA relates to certain real propercy � � � and improvements looated thereon situa[e in !he County of San - ,� sy :.;�,;�.� Diego, State of California, and vhich real proper[y is deseribed . � _ in Exhibit A attaehed hereto and incorporated by reference �'�\ . �� . herein. Said zeal property described in Exhibit A is hereinafter �� . . - � . . - referred to as the "SUbject Property." . . � . . � � � � � B. Tenant is the tenant under a lease dated _ 1986 (hereinaf[er refezred to as the "Lease"), vherein R and R. - Partners-POVay, a California general pa[tnecship (hereinafter re- ferred to as "Landlord") is Landlord, which Lease demises to Ten- � . ant a portion of the SubjecG Property. � � � . - C. Tenant and Agency desire to enCer into this Agree- _ � � . � ment to. establish certain rights, safeguaids and obligations with �:ai.�+w�',A>-.;.e-;w.,,�s�„'¢N�ka,� respect to their interests and to further provide for various _ � � .�. contingencies as hereinafter set forth. � � . . NOW, THEREFORE, in consideration of the focegoing and of � � � � � � . �� the mutual agreement of the.parties hereto to the terms and con- . � " . � � . � ditions hereinafter contained. the pariies hereio agree as fol- � . . . �.. lovs: . . � ;Y� - EXHIBIT "B" !�i - .'+' �'=z� .:�i -1_ . . 5/6/86-3 _ FE8241987 ITEM 5 •:<; 44 of 53 �;� .;; - ..� . • � 1. In Che event of any default or other action under � � . � � [�e DDA which results Sn the conveyance of [he Subject Propercy, � or a por[ion Fhereof, to the Agenry or 1[s assigns (other than a i 5,.:;;. .�y ,4.�w, ,; ,:� i,� conveyance of the real property defined as the "Agency Portion" � . � � � � in the DDA pursuant to Section 616 of the DDA or lhrouqN judicial , � -.� - ' ?foreclosure or privale power of cale proceeding,� under Che lien 1 ' • . � � � � - '�esiablished bv Section 707 of the DDA� then Ageney and Tenant do � .�. � � -, hereby agree that che Lease and all of [he terms, provisions, _ - � � � . � . � agreements and covenants thereof shall survive any such default . . . -� or defaults in, or other ac[ion undec the DDA, and the Lease � � - _ ..- .. � shall continue in full force and effec[ in accordance with and � � . � � � . subject to all of its terms, provisions, covenants and agreements . - � . , : � as a direc[ lease Nith Agency as landlord and Tena.nt as tenant. � - � .- Agency shall exercise and undectake all of the rights, obllga- � r4 �_` �� tions and ducies of Landlord Sn and under the Lease and thereaf- - ier shall be enti[led to colleet all rents and payments being dqe� �. \ \ and� payeble under the Lease. So long as Ageney or its suecesso.rs :� : . � � � ' or assigns exercises and undertakes all of the rights. obliga- ' � � � . � � tions and dulies of Landlord in and under [he Lease as a dizeet � � Lease, Tenant covenants and agrees that it shall actorn to Agency ., or its suecessors or assigns as Tenan['s new Landlord. Hovever, � � Sn no event shall Ageney or its suecessors or assigns be liable � ' � � � for oz bound by any payment of rent or additional rent made by � � � . � � . � . Tenant to Landlord or any such previous lessor for more than one ' { . . � (1) month in advance nor for any payment of n eecurity deposit to ,�q»��" ^ "' , �' '� euch landlord or revious lessDr. • • � ,. �yi:k��'a4x.nro-�:?�M.'4'4a+x' ci:':�a�y� . P , - � . �� ' 2. Agency agrees that, prior !o taking any proceedings _ � � � �� to enforce any rights under [he DDA vhich rights include the aon- � �� , �� . � � . � . � - veyance of the Subject Property to Agency for any reason other . . . - � .' � than the expiration of Yhe term of the DDA as pcovided therein, . �. � - - � . Agency shall qive Tena�t thirty (30) days' notice in writing pri- ' _ - _ '�• ur tu the effective date of such proceeding, specifying the cea- � 4 : il - '+t'F.`y • � . .. -�' 7/6/86 45 of 53 . �� Y *,��,�� .= rr FEB 241987 ITEM 5 m . � sou iur such proceeding. Such notice s�all be given to Tenan[ a[ 6565 Knot[ Avenue, Buena Park, CA 90622, or e[ such other address � � �� as Tenan[ may designa[e to Agency in writing. .ti 3. Agency agrees [ha[, for and ducing the term of che +`?""�-a'A� - , �� Lease and ex[ensions [hereof, Agency shall not [ake any action, �J� direc[ly or indirectly, to disturb or otheraise affect Tenant's � � . occupency of the premises demised by the Lease (o[her [han pursu- - �. . � �y ant to Section 616 of [he DDA and/or to foreclose the lien es[ab- � �� - .� f� � lished by Section 707 of the DDA) , so long as Tenan[ is not in � � � default thereunder, no[Ni[hstanding any provisions [o the con- - � .� `� ' trary con[ained in [he DDA.� � . � . � � � �'?� a. No provision contained herein shall be deemed an ? �- - � , . � � amendment or modification of any provision contained in [he � . -� . . � � � � � Lease, includinq, vithout limi[ing the generality of the fore- ;. �.��' going, any rights thereunder given to TenanY to terminate the \ s'"`c�s��.•; Lease.�� , 5. This Agreement shall be binding upon and shall in-�� \ � � ure to the benefit of the parties hereto and their sucressors, � � �. transferees and assigns. ' 1N WITNESS WHERLOP, the parties hereto have execu[ed - ihis ngreement as of c�e day and year first hereinabove set forth. � POWAY REDEVELOPMENT AGENCY � � , a California public body BY By .. . . �. : - . . "Agency�� . n^";z:ak�xa'*„�.y=.w,::�ss,'��s4,��:ewa�L: � , , � - � - � ' �� . LUCKY STORES, INC., a California corporation , - i BY By i � � . �� . � .� • "Tenant" � � . . (TO Be flotarially Acknovledged) � - ^ NyL -.;� �� - . ' . " -3- 7/6/86 46 �f 53 fEB 241987 ITEM 5 ��c:; � ,;w.�.:Fr ,=..iG� ;�ri ;�,. _ . _� , • � EXHIBIT "C" . � � . PARCEL MAP s".:>�r h �_:9 � _ � " � � � PziOr to execution, attach a copy of the Parcel Map for � -� . � �. the Site. _ q"'-s*etXa� _ : � ' . Lx: ^}�$��.nxak;l;unn�'i'�T+itiA%.!Rii� . . - r r. 1 � T� 47 of 53 sxxieir ^c^ . <.;::� ..��;::�,y, 3,�;;r. :�:; FEB 241987 IT EM 5 . �.� . . EXHIBIT "D" SITE HAP is:.�' �� :'� � � - � Attach the new Site Map prio= to execution. ��ai�;��u^�� `^'3!rcLw�FS'�..o�tC.K`�.+�'nY''S�++'�.��a:� ' J iC �t� . .c. . � \�.�•. � �- � EXHZ9IT "D" 48 0£ 53 �s:W f �� ;Y j'f FEB 24 1987 ITEM 5 _ ,;. , :, r STATE OF CALIFORNIA ) ) ss. . � . COUNTY OF 1 On the day of 1986, beEore me, the undersi'gned, a Notazy Pu lic, in an �fox said State Y y eazed , pecsonally + y�:;�.a�r r�y :.,a and Count personall app � - � � knovn [o me (or pcoved to me on the b� es— 1r�gatisEactory � - evidence) to be the person who exeeuted the within instcument .. ., , . .� -�. ,...;___ as the Chairman on behalf of THE POWAY REDEVELOPMENT AGENCY, -- � � � the entity thecein named, and acknovledged to me that such . - corporation executed the within instrumen[. - � � � � � , � � . WITNESS my hand and official seal. - � � � � Notaty Publie - . . . . _ (SEAL) _ '�aF.^� _ \ z.1"'�5'.�+�^...�K'.�r,,.'�+��w'±4«a;s'� -p . � � . . . . . -2- 49 of ss ; FEB 241987 ITEM 5 . � ,'._�- -.,; - , _ , . _y� , . � � � � . EXBIHIT "E^ �.� �. . . � AGENCY POATION Y�'Y ^.3�- � ^�';,° , `�at'7 . - � � Attach the new legal description for the Agency Portion - � . . prior to execution. � ..,^1��'4`KL^-%�'''1.`� _ `� _ . ;'� -'�'� .. . . � •;� a+�. K'fl{+Crf&t'.o't3i�.:na,q�.',5++k'ix:a� � v �, � _ � ' J-�. f �4'] � . h4 . � . �.'ti�"J. � EXHIHIT "E" 50 of 53 1 _:; .� c.�,;:�,_,,�..�,.�:..�..,:n. FE8 2 41997 IT E N� 5 A - � DODD �GRAVES & ASSOCIATES, INC. REAI. ESTATE • APPRAISAL • CONSULTATION � 245 SOUTH JUNIPEF STREET • ESCONDIDO.CALIFORNIA 92p25 • TELEPHONE 1619)766�1 I 26 itOBERT M.OODD.MA.1. � ROBERT L GRAVES . ROBERT 5.PERDUE � July 3, 1986 � Mr. John D. Fitch ' � Assistant City Ma�ager City of Poway P. 0. Box 785 � Poway, CA 92664 RE: Appraisal - City Owned property, Poway, California � Dear Mr . Fitch: � We submit herewith an appraisal report and opinion of value for unimproved property located northerly of proposed Route 56 and southerly of the intersection of Pomerado Road and Twin Peaks � Road . The subject pcoperty may also be identified by reference to the norther� portion of Assessor ' s Parcel No . 314-g4-22 , � The property appraised consists of an 11. 582 acre parcel of commercially zoned land which is the northerly portion of an existing 36 . 43 acte parcel . The purpose of our investigation and � market analysis has been to assist us in forming an opinion as to the present fair market value of subject property. The followin9 report contains factual data and reasoning upon which value has � been based . Our opinion of value for a fee interest in subject property, as of June 25 , 1986, and subject to certain assumptions � and limiting conditions made a part of this report, is estimated to be $3, zee, eee. � Thank you for the opportunity to be of service and should you have questions regarding this analysis or our conclusions of value, please contact me directly. � Sincerely, � DODD-GRAVES & ASSOCIATES, INC. ' � � �i'/ ��....7I � � �i��G�w,u�„p� ' Robert L. Graves, President � - RLG:RSP: rls 1 j sl of 53 FE8 2 4 1g87 I T E M 5 RESOLUTION N0. R-87- A RESOLUTION OF THE POWAY REDEVELOPMENT AGENCY APPROVING AN AMENDMENT TO THE DISPOSITION AND DEVELOPMENT AGREEMENT BETWEEN THE CITY OF POWAY AND R & R PARTNERS-POWAY AND AUTHORIZING THE EXECUTION THEREOF WHEREAS, the Poway Redevelopment Agency ("Agency") is authorized to conduct redevelopment activities within the Paguay Project Area ("Project Area) , which activities include the acquisition and conveyance of real property for private development; and WHEREAS, the Agency desires to amend a Disposition and Development Agreement (the "DDA: ) with R & R Partners-Poway, a California general partnership ("Developer") substantially in the form approved hereby and on file in the City Clerk's Office, which DDA provides for the conveyance of certain real property located in the Project Area, which reai property is more particularly described in the DDA, from the Agency to the Developer and the improvement of said real property by the Oeveloper in addition to other real property owned or to be acquired by Developer as an 9ntegrated retail cortmercial pro�ect with adjacent parking facilities; and WHEREAS, the Agency and the City Courtcii of the City of Poway ("City Council ") have conducted a duly noticed joint publlc hearing regarding the amendment to the DDA in accordance with California Health and Safety Sections 33431 and 33433; and WHEREAS, a copy of the DDA and the surtmary setting forth the matters required by California Health and Safety Code Section 33433 have been made available for public inspection and copying. NOW, THEREFORE, the City Council does hereby resolve as follows: Section 1: The Agency hereby approves the form of the amendment to the DDA attached hereto and hereby authorizes the Chairman and Secretary of the Agency to execute said DDA on behalf of the Agency, sub,�ect to the approval of the amendment to the DDA by the City Council . PASSED, ADOPTED AND APPROVED, by the Redevelopment Agency of the City of Poway, California, at a regular meeting thereof this day of , 1987. Bruce J. Tarzy, hairman ATTEST: Marjorie K. Wahlsten, ectretary 6/R/TARGET6 sz of 53 FEB 24 1987 ITEM 5 RESOLUTION N0. 87- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF POWAY, CALIFORNIA, APPROVING AN AMENDMENT TO THE DISPOSITION AND DEVELOPMENT AGREEMENT BETWEEN THE CITY OF POWAY AND R & R PARTNERS-POWAY AND AUTHORIZING THE EXECUTION THEREOF WHEREAS, the Poway Redevelopment Agency ("Agency") is authorized to conduct redevelopment activities within the Paguay Project Area ("Project Area) , which activities include the acquisition and conveyance of real property for private development; and WHEREAS, the Agency desires to amend a Disposition and Development Agreement (the "DDA:) with R & R Partners-Poway, a California generai partnership ("Developer") substantially in the form approved hereby and on file in the City Clerk's Office, which DDA provides for the conveyance of certain real property located in the Project Area, which real property is more particularly described in the DDA, from the Agency to the Developer and the improvement of said real property by the Developer in addition to other real property owned or to be acquired by Developer as an integrated retail cortmercial project with adjacent parking facilities; and WHEREAS, the Agency and the City Council of the City oP Poway (��City Council ") have conducted a duly noticed joint public hearing regarding the amendment to the DDA in accordance with California Health and Safety Sections 33431 and 33433; and WHEREAS, a copy of the DDA and the surtmary setting forth the matters required by California Health and Safety Code Section 33433 have been made avaitable for public inspection and capying. NOW, THEREFORE, the City Council does hereby resolve as follows: Section 1: The City Cauncil hereby approves the form of the amendment to the DDA attached hereto. PASSED, ADOPTED AND APPROVED, by the City Council at a regular meeting thereof this day of , 1987. Bruce J. Tarzy, Mayor ATTEST: Mar�orie K. Wahlsten, City C1erk 6/R/TARGET5 53 of 53 FEB 24 1987 ITEM 5 �e.ai�nea � e°P`I FIRST AMENDMENT TO DISPOSZTZON AND DEVELOPMENT AGREEMENT THZS FIRST AMENDMENT is made and entered into as of the day of 1987, by and between the POWAY REDEVELOPMENT AGENCY (the "Agency" ) and R & R PARTNERS - POWAY, a California general partnership (the "Developer" ) . R E C I T A L S• A. On or about , 1986, Agency and Developer entered into that certain Disposition and Develop- ment Agreement relating to certain real property in the City of Poway, County of San Diego, State of California ( the "DDA" ) . S. The parties desire to amend the DDA in certain respects. NOW, THEREFORE, the parties hereto hereby agree as follows: 1. The DDA is hereby modified/supplemented as follows: (a) The requirement in Section 110 of the DDA that a GEMCO Department Store open or that the GEMCO Tenant open for business as a GEMCO Department Store shall be deemed satisfied if the GEMCO Tenant opens for business as a department store from the Premises under the trade name "GEMCO" or such other name then being used by th��0 tenant for the majority of its department stores in the San 2/018/065217-0003/04 2/18/87 FEB 241987 ITEM 5 Ikl—t�.�.�.w� o.,f � ,� � Diego, California area now being operated as GEMCO stores . Dayton Hudson Corporation, a Minnesota corporation is hereby approved by the Agency as a substitute tenant for the purposes of Section 110 of the DDA. (b) The first paragraph of Section 617 of the DDA is hereby deleted in its entirety and the following new para- graph substituted in its place: "The Agency agrees that the Developer may record a Declaration of Restrictions And Grant Of Ease- ments encumbering the Site in the form attached hereto as Attachment No. 8 either concurrently with or following the Conveyance and agrees to execute a Subordination, with respect to said Declaration, in the form attached to said Declaration. Said Subordination shall be recorded concurrently with said Declaration. The Agency further agrees to execute and deliver a Non-Disturbance Agreement in the form attached hereto as Attachment No. 9 in favor of the GEMCO Tenant promptly following the Conveyance and the recordation of a short form of the GEMCO Tenant ' s lease. " (c) Attachment No. S and Attachment No. 9 zeferenced in Paragraph (b) above shall be the Declaration and the Non- Disturbance Agreement attached hereto as Exhibits "A" and "B" respectively. " (d) �The Agency/�agrees that the requirement in Section 214 that the Developer have obtained building permits for the "Phase 1 . Improvements" as a condition precedent to the Conveyance shall be deemed to have been satisfied�3n the event that the Developer provides proof that the lease with Lucky Stores, Inc. for a GEMCO department store containing -2- �� - 100,000 square feet of floor area, or more, has been assigned by Lucky Stores, Inc. to Dayton Hudson Corporation and amended to provide for a TARGET department store containing 95,000 square feet of floor area, or more, then and in such event, references in the DDA to a "GEMCO department store" �� shall be deemed references to a "TARGET department store. " Such assignment and amendment , or the delivery of same, may be conditioned upon the completion of the Conveyance of the Agency Portion to the Developer . (e) The requirements in the DDA, including without limitation Section 302 and Attachment No. 5, that certain events occur within the time periods provided in paragraphs 2, 4, 5, 7, 8, 10, 12, 13, 16, 17 and 18 of Attachment No. 3 to the DDA shall be deemed to have been satisfied, regardless of when such events actually occur, in the event that: ( i ) The Conveyance of the Agency Portion to the Developer occurs on or before March 15, 1987 . ( ii ) Mass grading foz the Site is commenced by the Developer on oz before March 15, 1987 ( iii ) The Developer commences the construction of a TARGET department store containing not less than ninety-five thousand (95, 000 ) square feet (gross floor area) for use as a TARGET department stoze and not less than twenty-five thousand (25, 000) square feet of gross floor area foz additional commercial uses on or before July 27, 1987 . " -3- The time periods in ( i ) , ( ii) and ( iii) above shall be subject to extension pursuant to Section 318 and Section 503 of the DDA. Provided that the performances described in ( i ) , ( ii ) and (iii) above are commenced within the times hezein provided, the Developer shall be deemed to have satisfied the requirements in subparagraph 1 of Section 612 and in subparagraph 1 of Section 702 of the DDA. Section 5 (a) ( i ) of the Grant Deed shall be appropriately amended prioz to the Conveyance to conform to this paragraph (e) . (f) The zeferences to building floor areas of one hundred thousand ( 100,000) square feet and twenty thousand (20,000) square feet in the first paragraph of Section 2 at page 1 of Attachment No. 5 to the DDA are hereby amended to reference ninety-five (95,000 ) square feet and twenty-five thousand ( 25,000) square feet, respectively. (g) The Agency hereby approves of the subdivision of the Site pursuant to a parcel::map in the form attached hereto as Exhibit "C" . (h) The Site Map attached to the DDA as Attachment No. 1 is hereby deleted and a new Site Map in the form of the Site Map attached hereto as Exhibit "D" substituted in its place. ( i) The legal description of the Agency Portion set forth in Attachment No. 2 to the DDA is hereby deleted and a new legal description of the Agency Portion, in the form of -4- .� � the legal description attached hereto as Exhibit "E" substi- tuted in its place. ( j ) Attachment No. 4 to the DDA (the "Grant Deed" ) is hereby modified/supplemented in the following particulars only: (i ) Subsection 3(a) at Page 2 is hereby supple- mented by the addition of the following at the end of Subparagraph 3 (a) : "Upon the completion of the development of the Property to the extent and as required by the DDA, with parking conforming to the requirements of the Poway City Code, Grantor agrees, upon request to execute, in recordable form, and deliver to Grantee a Supplement to this Grant Deed stating that the Property has been developed by Grantee to the extent and as required by the DDA and with parking conforming to the requirements of the Poway City Code. The recordation of said Supplement shall constitute conclusive evidence that Grantee has complied with its obligations pursuant to this Subparagraph (a) . " ( ii ) A new Subparagraph (d) is hereby added to Paragraph 3 at Page 2 of� the Grant Deed as follows : " (d) Grantee shall use its best efforts to cause the opening of one or more quality, sit-down restaurants (such as Reubens, Sea Food Broiler , Monterey Say Canners, Velvet Turtle or Black Angus ) on one or more free-standing building pads on the real property conveyed hereby and/or the adjacent real property described in the attached Exhibit 'B' ; provided that if Grantee, despite its best efforts, fails to attract one or more sit-down restaurants for free-standing pads by the second anniversary of the recordation of the Certificate of Completion issued by the Grantor for the impzovements to be constructed on the Property, Grantee shall be relieved of its obligations to use best efforts to secure a sit-down restaurant. No gas station or fast food restaurant will be -5- permitted on the Property or the adjacent property described in the attached Exhibit 'B' without the consent of Grantor. For the purposes of this Subparagraph (d) , a fast food restaurant means a limited menu restaurant specializing in the sale of foods from a take-out window or counter for consumption off of the premises . Grantee agrees to use best efforts to locate other users for the Property and the adjacent property described in the attached Exhibit 'B' before requesting the Grantor 's consent to a gas station or fast food restaurant tenant. " ( iii ) Change the reference to "paragraph 4 ( c) " in the 39th line at page 3 to reference "paragraph 3(c) " . (k) Attachment No. 5 (Scope Of Development) is hereby modified/supplemented in the following particulars only: ( i) In the first line of Article VI the word "initially" shall be added following the words "on the Site shall" . (1) Attachment No. 6 (Certificate of Completion) is hereby modified/supplemented by adding a new Paragraph 6 (and by renumbering the existing Paragraph 6 as Paragraph 7) as follows: "6. The two ( 2) year period described in Paragraph 3(d) of the above-described Grant Deed shall commence to run upon the recordation of this Certificate of Completion. " -6- ,• . IN WITNESS WHEREOF the parties have executed this First Amendment to Disposition and Development Agreement on the day and year first above written. POWAY REDEVELOPMENT AGENCY By: Its : By: Its: � "Agency" -7- < _ R & R PARTNERS - POWAY, a California general partnership By: Roger A. Mohrhoff, General Paztner By: J. R. E�7AN5 COMPANIES, INC. , a California corporation, General Partner � Hy: Timothy J. Caldwell, President "Developer" -8- T� � RECORDING REQUESTED SY AND WHEN RECORDED, RETURN TO: RUTAN & TUCKER (RPS) 611 Anton Houlevard Suite 1400 Costa Mesa, CA 92626 DECLARATION OF RESTRICTIONS AND GRANT OF EASEMENTS This DECLARATION OF RESTRICTIONS AND GRANT OF EASEMENTS is made as of the day of , 1986, by R&R PARTNERS - POWAY, hereinafter referred to as "Declarant . " For convenience, this instrument is hereinafter referred to as the "Declaration. " P R E L I M I N A R Y: 1. Declarant is the •owner of certain real property situated in the City of Poway, County of San Diego, State of California, described in Exhibit A attached hereto and incorporated herein by reference. Said real pzoperty described in Exhibit A is hereinafter referred to as the "Shopping Centez . " A plot plan of the Shopping Center is attached hereto as Exhibit B and incorporated herein by reference. 2. Declarant plans to develop and plan for the development of the Shopping Center as an integrated retail EXAIBIT "A" a sales area for the mutual benefit of all real property in the Shopping Center, and for such purposes does hereby fix and establish easements, covenants, restrictions, liens, and charges (hereinafter collectively referred to as "Restric- tions" ) , upon and subject to which all of said Shopping Center , or any part thereof, shall be improved, held, leased, sold, and/or conveyed. Such Restrictions shall run with the land and inure and pass with said property and shall apply to and bind the respective successors-in-interest thereof, and all and each thereof is imposed upon said property as a mutual equitable servitude in favor of said property and any portion thereof . 3. This Declaration is being recorded concurrently with that certain Memorandum Of Disposition And Development Agreement made by and between Poway Redevelopment Agency and Declarant, which Memorandum and the Disposition And Develop- ment Agreement described therein ( the "DDA" ) are subject and subordinate to this Declaration. I . DEFINITIONS The following terms shall have the following meanings when used in this Declaration: 1. Parcel: Declarant may record a Parcel Map subdivi- ding the Shopping Cent�r into two or more parcels and, in such event, each portion of the Shopping Center constituting a legal parcel, as the same may from time to time be modified -2- Y by lot line adjustment and/or resubdivision,, is hereinafter referred to as a "Parcel. " Until such time as such a Parcel Map has been recorded, the term "Parcel, " as used herein, shall mean the real property legally described in the attached Exhibit A. If the "San Marcos Parcel" (as herein- after defined) is annexed to the Shopping Center as provided in paragraph 4 of Article III below, the San Marcos Parcel shall also constitute a Parcel for the purposes of this Declaration. 2. Owner: The term "Owner" shall mean and refer to Developer, as the initial fee owner of the Shopping Center , and any successor person or entity or persons or entities acquiring a fee interest in and to any Parcel, except as is otherwise provided in subparagraphs (a) and (b) below. The exceptions to a successor becoming an Owner by reason of its interest in any Parcel are as follows: (a) The transferring Owner retains the entire possessory interest in the Parcel conveyed under the terms of a deed of trust or mortgage. (b) The transfer or conveyance is followed immediately by a leaseback of the same Parcel by such Owner, or an affiliate thereof (a sale and leaseback) , in which event only the lessee thereof shall have the status of Owner, so long as the lease in question has not expired or been terminated. -3- Y . Upon any transfer or conveyance, which transfer or conveyance would create a new Owner , pursuant to the terms hereof, including without limitation a transfer or conveyance by way of judicial foreclosure or trustee ' s sale proceedings, then the powers, rights and interests herein conferred upon the Owner with respect to the Parcel so transferred or conveyed shall be deemed .assigned, transferred or conveyed to such transferee, fee owner or grantee, and the obligations herein conferred on such Owner shall be deemed assumed by such transferee, fee owner or grantee with respect to the Parcel so acquired or owned as respects all such obligations to be performed from and after the date of such transfer or conveyance. In the event that more than one person or entity holds the fee interest in any Parcel, whether by way of undivided interests or in severalty, the persons and/or entities holding all of such interests in and to any Parcel shall, for the purposes of this Declaration, be jointly considered a single Owner . 3. Primary Parcel Owner : The term "Primary Parcel Owner" shall mean the Owner with respect to the Parcel containing the building area shown as cross-hatched on Exhibit B hereto. 4. San Marcos Parcel : Exhibit B shows the proposed development of the real property described in the attached Exhibit A integrated with certain adjacent real property described on Exhibit B as the "San Marcos Parcel . " Said -4- r adjacent real pzoperty is legally described in the attached Exhibit C and is hereinafter referred to as the "San Marcos Parcel. " Declarant shall have the right, but not the obligation, to annex the San Marcos Parcel to the Shopping Center pursuant to paragraph 4 of Article III below. The term "Shopping Center , " as used in this Declaration, shall be deemed to include the San Marcos Parcel from and after the effective date of any such annexation. 5. Building Areas : The term "Building Areas" means those portions of the Shopping Center designated as "Building Area" on the attached Exhibit "B" , except that the location, size and configuration of those Building Areas situated within the lines designated as "Building Limit Lines" on the attached Exhibit "B" may be changed, as hereinafter provided, provided that the Building Area as changed continues to be situated entirely within said Building Limit Lines and provided further that the limitations on maximum floor area provided for in this Declaration continue to be satisfied. II . DEVELOPMENT 1. For the purposes of this Declaration, all of the area within the Shopping Center to be used in common shall be referred to as "Common Area, " and said Common Asea includes all areas within the Shopping Center other than "Building Areas; " said Common Area is delineated on the plot plan which is Exhibit B hereto; subject to paragraphs 2 and 5 below, -5- said Common Area shall be developed substantially as shown on said Exhibit B; and, subject to paragraph 2 below, said Common Area shall not be used for any other purpose than the parking of motor vehicles and their ingress and egress and the ingress and egress of pedestrians . 2. (a) Subject to paragraph 5 below, no building or structure of any kind shall be erected on any portion of the Shopping Center except within the Building Areas;� provided that there may be constructed and maintained upon or over said Common Area a canopy or canopies projecting from Building Area; normal foundations and doors for ingress and egress may project for Building Area; and signs may be erected upon said canopy or canopies, so long as said signs do not obstruct the signs of any other Owner or Owner ' s tenant of the Shopping Center . No signs other than the signs provided for hereinabove, directional signs for guidance upon the parking and driveway area, the low rise monument signs permitted by paragraph (c) ( iii ) below, and signs at the locations shown on Exhibit B hereto, shall be erected or maintained upon the Common Area or Building Area of the Shopping Center , except such as obtain the written approval of the Primary Parcel Owner, the Owner of the Parcel upon which such sign is located and the tenant of the Building Area shown as cross-hatched on Exhibit B hereto, which approvals shall not be unreasonably withheld. -6- , (b) No building or structure erected in the Shopping Center shall exceed one (1) story in height (but may include a mezzanine) . No building or structure erected within the Building Areas lettered "A" through "A" as shown on Exhibit "B" hereto shall exceed twenty-six ( 26) feet in heighth above the ground floor area of the building initially constructed within the Suilding Area shown as cross-hatched on Exhibit "B" hereto. (c) Subject to paragraph 5 below, the total floor area (as measured from the exterior boundary of exterior building walls and excluding mezzanine azea) constructed within any of the Suilding Areas outlined by the lines designated as "Building Limit Lines" on the attached Exhibit "H" shall not exceed the maximum floor area amount for each such area specified on the attached Exhibit "S" (the maximum floor area for such Building Areas within those portions of the Shopping Center outlined in yellow on Exhibit "B" will not exceed twenty-eight thousand eight hundred (28,800 ) square feet if the San Mazcos Parcel is annexed to the Shopping Center or sixteen thousand eight hundzed (16,800 ) square feet if the San Marcos Parcel is not annexed to the Shopping Center) , nor shall the total floor area constructed within all said Building Areas within said Building Limit Lines exceed two hundred thirty thousand seven hundred seventy ( 230,770) square feet, if the San Marcos Parcel is annexed to the Shopping Center, or two hundred eighteen -7- J thousand seven hundred seventy (218,770) square feet, if the San Marcos Parcel is not annexed to the Shopping Center . (d) Notwithstanding anything contained herein to the contrary, Common Area adjacent to Building Area may be used for : (i) Drive-up bank, savings and loan, restau- rant or other customer service lanes and/or customer service areas, provided that such lanes and areas, together with canopy support columns and canopies upon and over such lanes and areas, if any, are situated entirely within a Building Area or within the lines designated as "Building Limit Lines" on the attached Exhibit "H" , or such area and/or lanes are either shown on the attached Exhibit B or approved by the Primary Parcel Owner, the Owner of the Parcel upon which lanes and/or areas are situated, and the tenant of the Building Area shown as cross-hatched on Exhibit B hereto; (ii) The installation, removal, replacement, repair, use, and maintenance of hose bibs, stand pipes, fire hose connections, down spouts, yard or floodlights, subsurface building foundations, electrical panels and meters, and such signs or shadow boxes of building occupants as may be attached to or form an integral part of a building situated upon Building Area; -8- ( iii ) The construction of low-rise sign monuments (not to exceed six ( 6) feet in height) within landscaped areas adjacent to any of the freestanding building pads along Pomerado Road or Twin Peaks Road, as shown on the attached Exhibit "B" , provided that each such sign monument is within thirty (30) feet of the adjacent Huilding Area constructed on such building pad; ( iv) The construction and operation of trash areas adjacent to any Huilding Area or within the lines designated as "Building Limit Lines" on the attached Exhibit "B" , which trash area or bins shall be shielded from public site and maintained in a clean and sanitary condition; and (v) The temporary erection of ladders , scaffolding and storefront barricades and other temporary storage of construction materials and equipment during periods of construction, remodel- ing or repair of buildings and building appurtenan- ces, upon the conditions, however , that such construction, remodeling or repair is diligently performed, that such ladders, scaffolding, barri- cades, materials and equipment thereupon are promptly removed upon the completion thereof, and that such use does not unreasonably interfere with the normal use of such Common Area. -9- (e) The Common Area may be used for the installa- tion, maintenance and operation of underground public utilities serving the Building Area, together with and including vaults, manholes, meters, pipelines, valves, hydrants, sprinkler controls, conduits, and related facili- ties, all of which (except hydrants and electrical transfor- mers) shall, to the extent reasonably feasible, be even with or below the surface. (f) The comfort and convenience of customers, visitors, invitees , licensees, and patrons of the Shopping Center by such other facilities (as, for example, mail boxes, public telephones, newspaper dispensers, benches) as the Owner of the Parcel upon which facilities are to be located, and the Primary Parcel Owner may from time to time deem appropriate. (g) The Common Area may also be used for the construction, maintenance, repair, replacement, and recon- struction of walls and landscaped areas, including planters, planting boxes and decorative walls as may reasonably be required in connection with the construction and maintenance of the Common Area as shown on the attached Exhibit H, subject, however, to modifications permitted by this Declara- tion. 3. In the development and use of the Shopping Center , there shall not be established or maintained any building, structure or area for the transaction of business, whether -10- for retail sales oz other purposes, for which there shall not be established and maintained a Common Area containing approximately three (3) square feet of parking, driveway, sidewalk and landscaping area for each one ( 1) square foot of floor area of all buildings, structures or areas to be used for commercial purposes in the Shopping Center, provided that in the event the plot plan which is Exhibit B hereto provides for parking, driveway, sidewalk and landscaping facilities in a ratio other than a ratio 'of three ( 3) square feet of parking, driveway, sidewalk, and landscaping area for each one (1) square foot occupied by buildings, then, in that event, such plot plan shall prevail notwithstanding the above provision concerning such ratio. For the purposes of the preceding sentence, the ratio provided on the attached plot plan shall be deemed to be the ratio for the Shopping Center and the San Marcos Parcel, even though the San Marcos Parcel has not been annexed to the Shopping Center . 4. All buildings constructed in the Shopping Center shall either be equipped with such automatic sprinklez systems as meet all of the standards of the Fire Insurance Rating Authority (or othez similar organization having jurisdiction) or shall be constructed in such a manner so that the building within the area shown as cross-hatched on Exhibit B hereto may be fire rated as a separate and distinct unit from any other building built in the Shopping Center . -11- 5. The configuration and physical arrangement of the Common Area within the Shopping Center shall be maintained in strict conformance with the plot plan attached hereto as Exhibit B. Notwithstanding the foregoing, the Primary Parcel Owner shall have the right to alter the size, location, configuration and physical arrangement of the Common Areas and of the Building Areas as follows: ( i) within the lines designated as "Building Limit Lines" shown on the attached Exhibit "H" ; (ii) within the area outlined in yellow on the attached Exhibit "B" , provided that the Primary Parcel Owner obtains the approval of the tenant of the Building Area shown as crosshatched on the attached Exhibit "B" , which approval shall not unreasonably be withheld, provided further that the floor area limitations in paragraph 2(c) above continue to be satisfied. Said alterations may include the closure of the westerly most access to Twin Peaks Road shown on Exhibit "B" hereto in the event the San Marcos Parcel is not annexed to the Shopping Center . ( iii) to construct a driveway to the adjacent real property designated "Not A Part" on the attached Exhibit "B" on the area designated "Adjacent Property Driveway" on the attached Exhibit "H" , notwithstanding that the construction of said driveway may eliminate up to ten -12- (10) parking spaces within said area designated "Adja- cent Property Driveway" . Notwithstanding the above, the consent of the Owner of any Parcel upon which the Common Areas and/or Building Areas are to be altered pursuant to this paragraph 5 shall be required to any such alteration and the requirements of paragraph 3 above shall continue to be satisfied following any such alteration made under ( i) or ( ii) above. -13- III. SHOPPING CENTER EASEMENTS 1. Declarant does hereby establish in favor of and grant to the Owners and occupants of the Shopping Center , their customers and invitees, nonexclusive easements for the ingress and egress and for the passage and parking of motor vehicles into, out of, on, over , and across all parking areas, driveways and service areas from time to time esta- blished within the Shopping Center as provided in this Declaration so that the Shopping Center may be used as an integrated area by the Owners and occupants thereof and their customers and invitees. 2 . Declarant does hereby establish in favor of and grant to the Owners and occupants of the Shopping Center their customers and invitees, nonexclusive easements for the ingress and egress and passage of pedestrians into, out of, on, over, and across the Coinmon Area from time to time established within the Shopping Center as provided in this Declaration so that the Shopping Center may be used as an integrated area by the Owners and occupants thereof and their customers and invitees . 3. Declarant does hereby establish in favor of and gzant to the Owners of any portion of the Shopping Center nonexclusive easements under, through and across the Common Area of the Shopping Center for water dzainage systems or -14- structures, water mains, sewers, water sprinkler system lines, telephones or electrical conduits or systems, gas mains and other public utilities and service easements . Subject to paragraph 2(c) of Article II above, all such systems, structures, mains, sewers, conduits, lines, and other public utilities instrumentalities shall be installed and maintained below the ground level or surface of such easements. 4. The San Marcos Parcel may be annexed to the � Shopping Center by Declarant ' s recordation of a Supplement to this Declaration with the County Recorder of San Diego County, California, which Supplement shall legally describe the San Marcos Parcel and state that the San Marcos Parcel is being annexed to the Shopping Center . Any such Supplement , shall be executed by the Primary Parcel Owner and by the fee Owner or Owners of the San Marcos Parcel, if the Primary Parcel Owner is not then the fee Owner of the San Marcos Parcel and shall require the written approval of the tenant of the Building Area shown as crosshatched on Exhibit "S" hereto, which approval shall not be withheld if the Supple- ment is legally sufficient to accomplish said annexation and consistent with the terms and provisions of this Declaration and such tenant ' s lease. From and after the recordation of said Supplement, the San Marcos Parcel shall be subject to and benefited by the easements established by Declarant in paragraphs 1, 2 and 3 above and subject to and benefited by -15- the remaining Restrictions and the terms and provisions of this Declaration. 5. Neither Declarant nor any Owner nor any of the tenants or other occupants of the Shopping Center shall have the right to authorize or permit the use of the Common Areas within the Shopping Center for the benefit of any real property other than the Shopping Center, provided that in the event the driveway described in paragraph ( iii) of Section 5 of Article II above is constructed, said driveway and the adjacent traffic aisles within the Common Areas may be used for the benefit of the adjacent real property designated "Not A Part" on the attached Exhibit "B" for ingress and egress to and from said real property and the driveway from the Shopping Center to Highway 56 shown on the attached Exhibit �iB�� IV. OPERATION AND MAINTENANCE OF COMMON AREA 1. No Owner , employee of any Owner , tenant or other occupant , or employee of any tenant or other occupant, of any part of the Shopping enter shall use any poztion of the Common Area located on the Shopping Center foz motor vehicle parking purposes except those portions designated as "employee parking" on the attached Exhibit H, as such designated areas may from time to time be supplemented and/or modified by the Primary Parcel Owner, the Owner of each Parcel upon which the new designated employee parking area, -16- if any, is located, the Ownez of any Parcel upon which the employee parking area has been modified, and the tenant of the Building Area shown as cross-hatched on Exhibit B hereto, which approvals shall not unreasonably be withheld. 2. All Owners of any portion of the Shopping Center shall pay prior to delinquency all taxes and assessments on the Common Area and Building Area owned by them. If any such Owner shall fail to pay said taxes and assessments prior to delinquency, any other Owner, the tenant of the Building Area cross-hatched on Exhibit B, or any other tenant of any other portion of the Shopping Center to which such right has been expressly granted in its lease, may pay said taxes and assessments and the curing Owner or tenant may then bill the defaulting Owner for the expense incurred. If the defaulting Owner shall not pay said bill within fifteen ( 15) days, the curing Owner or tenant shall have a lien on the property of the defaulting Owner in the Shopping Center for the amount of said bill, which amount shall bear interest at an annual rate of interest equal to two ( 2) percentage points above the prime or reference rate of interest then charged by the Los Angeles, California, Main Office of Bank of America National Trust and Savings Association to its most credit-worthy corporate customers (but in no event to exceed the maximum rate allowed by law) until paid. 3. The Primary Parcel Owner (hereinafter in this Article referred to as the "Manager" ) shall operate and -17- maintain, or cause to be operated and maintained, the Common Area, including the landscaping thereon, located within the Shopping Center, and shall keep the same, or cause the same to be kept, in good condition and repair with adequate lighting and shall maintain the surface areas thereof in a level and smooth condition, evenly covered with the type of surfacing material originally installed thereon, or shall cause the same thus to be maintained. Such opeiation and I maintenance shall include, without limitation, sweeping; gardening; janitorial services; repairs to and replacement of asphalt paving, bumpers, underground utility conduits and systems servicing more than one store (except to the extent such repairs are the responsibility of a public utility) , striping, light bulbs, light standards, yard and directional signs, lighting systems, perimeter walls, sidewalks, planters, landscaping and sprinkler systems, and planting area; water , electrical and other utility services to the b Common Area and its facilities; providing security (but the Manager shall not be liable for a failure of security nor obligated to provide security) ; depreciation of machinery and equipment used in such maintenance; the employment of personnel used in such operation and maintenance, including unemployment insurance, workers compensation insurance and other employee costs; and other items of repair, replacement, restoration and maintenance such as but not limited to the elimination of paving cave-ins and pools of water that may be -18- ;a:. � r needed from time to time to properly maintain the said Common Area. As part of said operation, the Manager shall obtain and maintain general public liability insurance insuring all persons who now or hereafter own or hold portions of the Shopping Center or any leasehold estate or other interest therein as their respective interests may appear (provided that the Manager is notified in writing of such interest) against claims for personal injury, death or property damage occurring in, upon, or about the Common Area located on the Shopping Center . Such insurance shall be written with an insurer licensed to do business in the State of California. The limits of liability of all such insurance shall be at least $1, 000, 000 combined single limit for injury to or death of any number of persons, or for damage to property arising out of any one occurrence. The Manager shall cause to be issued certificates of insurance to each of the other fee owners of the Shopping Center , and to the tenant of the Building Area shown as cross-hatched on Exhibit "B" hereto, which certificates shall provide that such insurance shall not be cancelled or amended within ten (10) days prior written notice to each of such parties . The Manager shall expend only the monies reasonably necessary for such operation and maintenance in order to keep the Common Area in good repair and clean condition and to operate the same on a nonprofit basis to the end that the expense in connection therewith shall be kept to a minimum. -19- The Manager shall not make or authozize any single expendi- ture regarding the Common Area or the operation thereof exceeding TEN THOUSAND DOLLARS ($10,000.00) without first obtaining the written consent of the tenant of the Building Area shown as cross-hatched on Exhibit "B" hereto. Prior to purchasing any equipment or machinery to be used for the maintenance of the Common Area, the Manager shall permit any Owner an opportunity to pay its pro rata share of the cost thereof, as a Common Area maintenance charge, in lieu of including depreciation on such equipment or machinery in the Common Area charge to be allocated to such Owner as is hereinafter provided. The Manager shall , from time to time, but not more often than monthly, send to each and every Owner a written state- ment of the total cost and expenses for the above-described operation and maintenance of the Common Area for the period of the preceding month or longer period. Said costs and expenses shall include a management fee equal to fifteen percent (15�) of the costs of operation and maintenance of the Common Area paid by the Manager (which costs for the purposes of calculating said management fee shall not include any portion of the real property taxes, personal property taxes, insurance premiums, any single capital expenditure in excess of TEN THOUSAND DOLLARS ($10,000 . 00 ) or any management or other fee paid by Manager to a thizd party to perform all or a portion of Manager ' s obligations hereunder in connection -20- with said Common Area) . Within fifteen ( 15) days after receipt of such statement, each and every Owner shall pay to the Manager its proportionate share of the total amount of said costs and expenses hereinafter described. Each Owner , or its authorized representative, shall have the right to examine the records of expenses in connection therewith at reasonable business hours and without unreasonable frequency. Each Owner ' s proportionate share of such costs and expenses shall be established based on the ratio between the floor area of buildings in such Owner ' s Parcel(s) and the total floor area of all buildings provided to be erected in the Shopping Center, as shown in Exhibit "B" hereto. Any two ( 2) Owners , however, mav aqree, with the Manaqers ' a proval , to adiust the ��r,tionat� �Share of suc� co and exoens� as between their resuective Parcels, orovided that the total Proportionate share for such Parcels remains unchanged and provided that such aareement is set forth in a written Supplement to this Declaration executed bv such Owners and aooroved in writinq bv the Manaaer, which Supplement and approval are recorded in the Official Records of the Countv � ord r . San Di o0 ount.v, California. As an alternative, the Manager may estimate the Common Area maintenance charges to be incurred during each calendar year (which estimate, except for the first calendar year shall be based on the prior year ' s expenses plus reasonably anticipated costs changes) and bill each Owner monthly, in advance, during such -21- calendar year for one-twelfth (1/12th) of each such Owner ' s allocable share of the estimated charges for such calendar year . In such event, however , the Manager shall provide each Owner with a statement of the actual Common Area charges incurred during such calendar year within forty-five ( 45) days of the expiration of such calendar year , at which time the Manager shall reimburse or allow a credit against the next Common Area charges payable under this paragraph for any overpayment or each Owner shall reimburse the Manager for any underpayment of its allocable share of the Common Area maintenance charges for such calendar year. If all or any portion of the such fractions of said total is not so paid, the same shall be deemed delinquent, and the amount thereof shall bear interest thereafter at an annual rate of interest equal to two (2) percentage points above the prime or reference rate of interest then charged by the Los Angeles, California main office of Bank of America National Trust and Savings Association to its most creditworthy corporate customers (but in no event to exceed the maximum rate allowed by law) until paid, and the Manager shall have a lien on the property of the defaulting Owner in the Shopping Center for said unpaid amount and interest. If the Manager shall fail to so maintain the Common Area or to provide such insurance, then any other Owner , or the tenant of the Building Area shown as cross-hatched on Exhibit "B" hereto, or any other tenant of any other portion of the -22- Shopping Center to which such right has been expressly granted in its lease may do so, and the curing Owner or tenant may then bill the Manager for the expense incurred. If the Manager shall not have paid said bill within fifteen (15) days, the curing Owner or tenant shall have a lien on the property of the Managez in the Shopping Center for the amount of said bill, which amount shall bear interest at an annual rate of interest equal to two ( 2) percentage points above the prime or reference rate of interest then charged by the Los Angeles, California main office of Bank of America National Trust and Savings Association to its most credit- worthy corporate customers (but in no event to exceed the maximum rate allowed by law) until paid. 4. Until such time as buildings are constructed on any Building Area of the Shopping Center, the Manager shall take such measures as may be necessary to control weeds and the erosion of dirt and sand by wind or water with respect to said undeveloped portion thereof and shall bill the Owner of said undeveloped portion for its expenses in connection therewith. 5 . Declarant recognizes that a system of surcharges was previously proposed by the Environment Protection Agency, which, if it had become effective, would have been applicable to the Shopping Center . While that system of surcharges has apparently been abandoned, Declarant recognizes that said system or another system may be applied to the Shopping -23- Center at some future date by the Environmental Protection Agency or some federal, state and/or local law, rule, regulation, or regulatory body. It may occur that such a system of surcharges or charges or regulatory fee, however designated, may offer to the Owners alternative means of compliance, possibly including, without limitation, the opportunity to elect to either pay a flat annual surcharge or other fee, or to commence to charge for parking within the Shopping Center hereto with a surcharge added thereto. Therefore, in the event any governmental body having juris- diction of the Shopping Center, pursuant to any federal, state and/or local law, rule, ordinance or regulation, shall impose a surcharge or charge a regulatory fee, however designated, on the operation of the Common Area, whether • based on the number of parking spaces contained therein or otherwise, the existence of such a surcharge or charge or regulatory fee, however designated, shall not be a violation of the provisions of this Declaration. In the event there are alternative methods of complying with the surcharge or charge system imposed (for example, and without limitation, commenc- ing to charge the public for parking on the Common Area either a rate plus surcharge or charge only, in lieu of payment by the Owners of a flat annual rate) the Owners and the tenant of the Building Area cross-hatched on the attached Exhibit "B" shall in good faith attempt to agree on one mutually satisfactory method among all alternatives, at least -24- sixty (60) days prior to the date such surcharge or charge or fee system is to become effective; provided, however, in the event the Owners and said tenant cannot so agree despite such good faith attempts, the tenant of the Building Area cross- hatched on the attached Exhibit "B" shall , in its sole discretion, determine which of the alternatives available shall be adopted to comply with the surcharge or charge or fee system. Upon such mutual agreement, or determination by said tenant, the alternative selected shall be applied throughout the Shopping Center . In the event compliance with such surcharge or charge or fee system is accomplished without charging for parking on the Common Area, the cost or compliance with the surcharge system shall be paid by the Manager and the costs incurred for such compliance by the Manager shall be included in the Common Area maintenance charges to be allocated to and reimburse the Manager by each Owner . Zn the event compliance with such surcharge or charge or fee system is accomplished by charging for parking on the Common Area, the Manager shall be charged with the admini- stration and operation of the parking operation, including, without limitation, the hiring of a parking attendant and the installation of such controls over movement of parking vehicles as are necessary. The rate charged for parking shall be the lowest rate possible to still comply with the system. A charge for parking shall be imposed only during the minimum number of hours required by the surcharge or -25- charge or fee system. All costs of administration, operation and expenses of collection shall be deducted from receipts from the operation to the extent allowed by the system. The Manager shall be solely responsible for any distzibution to any authority in any record keeping and submitting of information required by the system. The Manager shall keep a separate, accurate and reasonably detailed set of books and records concerning the parking operation which shall be open for inspection by the other owners and by the tenant of the Building Area cross-hatched on the attached Exhibit "B" at all times during normal business hours. Said parking operation shall be conducted on a nonprofit basis, provided, however , in the event the parking operation results in a net profit to the Manager , the Manager shall allocate such net profit to the Owners, in the same proportion that such Owners contribute to Common Area maintenance charges. Any such net profits shall be calculated and paid no less often than every three ( 3) calendar months . The only circumstance under which parking on the Common Area shall be on an other than free basis shall be in the event a surcharge or charge system or regulatory fee, however designated, is imposed upon the Common Area. Any such parking system which requires the payment of a parking charge shall include a system for validated parking which will allow the occupants of the Shopping Center to pay parking charges imposed upon their -26- customers, employees and/or other business invitees pursuant to such parking system. -27- Y IV. RESTRICTIONS ON USE No portion of the Shopping Center shall be occupied or used, directly or indirectly, for the purposes of an office building (provided that this provision shall not be construed as prohibiting the use of any of the freestanding building pads along Pomerado Road and/or Twin Peaks Road shown on the attached Exhibit "B" for bank, savings and loan and/or other financial uses or for real estate office, travel agency, escrow office, brokerage office, or medical, dental or other professional office purposes) , entertainment or recreational facility or a training or educational facility. As used herein, "entertainment or recreational facility" includes, but is not limited to, a bowling alley, skating rink, theater , billiard room, health spa or studio, massage parlor , amusement arcade, baz or tavern (provided that alcoholic beverages may be served in and electronic amusement devices may be maintained within any restaurant operated in the Shopping Center) , or gymnasium or place of public amusement; and "training or educational facility" includes, but is not limited to, a beauty school, barber college, place of instruction, reading room or any operation catering pzimarily to students or trainees rather than to customers, it being the intent of this provision that the parking and other -28- common facilities should not be burdened by either large scale or protracted use. v. CASUALTY DAMAGE AND REPAIR 1. Each Owner, as to the Parcel owned by such Owner, shall maintain or cause to be maintained the building improvements from time to time constructed upon its Parcel, in good order, maintenance and zepair, reasonable wear and tear excepted, and in accordance with the requirements of this Declaration. 2 . In the event of any casualty damage to the building improvements upon the Shopping Center , the Owner of the Parcel upon which such building improvements are situated shall either promptly repair and restore the damaged or destroyed building improvements, with all due diligence, to substantially the same condition as existed immediately prior to such casualty, and/or promptly tear down and remove the damaged or destroyed improvements, the rubbish and the debris resulting from such casualty and otherwise clean up and restore the building site affected by such casualty, as far as practicable, to a level and clean condition, with all due diligence. Thereafter, the Owner of such Parcel shall maintain the same in a level and smooth condition and shall take such measures as may be necessazy to control weeds and erosion of dirt and/or sand by wind or water with respect to said Parcel, until new building improvements are constructed -29- e on said Parcel . Nothing contained in this paragzaph shall be deemed as modifying or limiting any obligations of any Owner with respect to casualty damage upon such Owner ' s Parcel contained within any lease or other contractual arrangement entered into by any such Owner . VI . GENERAL PROVISIONS 1. Covenants Run With The Land. Each �easement, restriction and covenant contained herein shall be appurte- nant to and for the benefit of all portions of the Shopping Center and shall be a burden thereon for the benefit of all portions of the Shopping Center, and shall run with the land and be enforceable as an equitable servitude. Each covenant to do or refrain from doing some act on the property of the covenantor ( i ) is for the benefit of the land of the covenan- tee, ( ii ) runs with the land owned by the covenantor and the land owned by the covenantee, and ( iii) shall benefit or be binding upon each successive Owner, during its ownership of the fee interest or leasehold interest in and to any portion of the land affected hereby and each person having any interest herein derived through any Owner of the land affected hereby. This Declaration and the restrictions, easements, covenants, benefits and obligations created hereby shall inure to the benefit of and be binding upon Declarant and its successors, transferees and assigns; provided, however, that if any Owner sells any portion or all of its -30- ♦ interest in the Shopping Center and obtains from the purchas- er thereof any agreement by which the purchaser assumes and agrees to be bound by the covenants and agreements herein contained, the vendor shall thereupon be released and discharged from any and all further obligations under this Declaration as such Owner in connection with the property sold by it . 2 . Duration. Except as otherwise provided herein, each easement established under Article III above shall be in pezpetuity and each other covenant, setback line, restriction and undertaking of this document shall be for the term of sixty (60) years from the date hezeof, provided that from and after the expiration of said sixty ( 60) year period, no changes shall be made to the location of driveways, traffic aisles and/or parking areas upon any Parcel that would have a materially adverse effect on ingress and egress to and from and/or the parking reasonably required for any other Parcel. 3 . Iniunctive Relief. In the event of any violation or threatened violation by any Owner, lessee, or occupant of any portion of the Shopping Center of any of the terms, covenants, restrictions and conditions contained herein, in addition to the other remedies herein provided, any or all of the Owners, the tenant of the Building Area cross-hatched on the attached Exhibit "B" and any other tenant of any other portion of �!the Shopping Center to which such right has been expressly gtanted in its lease shall have the right to enjoin -31- r such violation or threatened violation in a court of compe- tent jurisdiction. 4. Modification Provision. This Declaration may not be modified in any respect whatsoever , or rescinded, in whole or in part, except with the consent of one hundred percent (100�) of the Owners of the Shopping Center, plus the tenant of the Building Area shown as cross-hatched on Exhibit "B" hereto at the time of such modification or rescission, and then only by a written instzument duly executed and acknow- ledged by the requisite Owners and tenant, duly recorded in the Office of the Recorder of San Diego County. Other than as provided in this Section 4 and in paragraph 6 below, no other consents or approvals shall be required to amend or to terminate this Declaration. 5 . Not A Public Dedication. Nothing herein contained shall be deemed to be a gift or dedication of any portion of the Shopping Center to the general public or for the general public or for any public purposes whatsoever , it being the intention of Declarant that this Declaration shall be strictly limited to and for the purposes herein expressed. 6 . Sreach Shall Not Permit Termination. No breach of this Declaration shall entitle any Owner to cancel, rescind or otherwise terminate this Declaration, but such limitation shall not affect in any manner any other rights or remedies which such Owner, or any tenant, may have hereunder by reason of any breach of this Declaration. Any breach of any of said -32- r covenants or restrictions, however , shall not defeat or render invalid the lien of any mortgage or deed of trust made in good faith for value, but such covenants or restrictions shall be binding upon and effective against such Owner of any of said property or any portion thereof whose title thereto is acquired by foreclosure, trustee sale or otherwise. No modification, amendment or termination of this Declaration shall be binding upon or affect the rights of any mortgagee holding a mortgage or a deed of trust upon the interest of any Owner of any Parcel or on a leasehold estate of any Owner in and to any Parcel that is recorded in the Office of the San Diego County Recorder prior to the date any such modifi- cation, amendment or termination is recorded in such office, without the prior written consent of such mortgagee. The term "mortgagee" , whenever used herein shall be construed to include beneficiaries under deeds of trust. 7 . Severabilitv. If any clause, sentence or other portion of this Declaration shall become illegal, null or void for any reason, or shall be held by any court of competent jurisdiction to be so, the remaining portions thereof shall remain in full force and effect. 8. Subseauent Conveyances. All conveyances of all or any portion of the Shopping Center subsequent to the date hereof shall recite that they are subject and subordinate to the terms aqd provisions hereof. -33- 9. Enforcement of Lien. The liens provided for in "Operation and Maintenance of Common Area" hereinabove may be filed for record by the party entitled thereto as a claim of lien against the defaulting Owner in the Office of the County Recorder of San Diego County, signed and verified, which shall contain at least: (a) A statement of the unpaid amount of costs and expenses; (b) A description sufficient for identification of that portion of the Shopping Center of the defaulting Ownez which is the subject of the lien; and (c) The name of the Owner or reputed Owner of the pzoperty which is the subject of the alleged lien. Such lien, when so established against the real property described in said lien shall be prior and superior to any right, title, interest, lien or claim which may be or has been acquired or attached to such real property after the time of filing of such lien and the priority of such lien shall date from the date that such claim of lien is recorded as required by this paragraph. Such lien shall be a lien with power of sale and shall be for the use and benefit of the person filing same, and may be enforced and foreclosed in a suit or action brought in any court of competent jurisdic- tion. -34- r 10. Ownership Of Sh000inq Center. The ownership of the entire Shopping Center by the same party shall not effect the termination of this Declaration. 11 . Condemnation. In the event of condemnation by any duly constituted authority for a public or quasi-public use of all or any part of the Shopping Center , that portion of the award attributable to the value of any land and improve- ment within the Common Area so taken shall be payable only to the fee owner thereof, subject, however, to the terms of any lease or other contractual agreement entered into by such party; provided, however, all other Owners may file colla- teral claims with the condemning authority over and above the value of the land of the area so taken; provided, further , however , that the Owner with respect to any portion of the Common Area so condemned shall promptly repair and restore the remaining portion of the Common Area so owned by such Owner as near as practical to the condition of the same immediately prior to such condemnation. This Section shall not impair any obligation of any Owner pursuant to any lease or other contract entered into by such Owner. 12 . Attornevs Fees. In the event that suit is brought for the enforcement of this Declaration or as a result of any alleged breach thereof, the successful litigant or litigants in such suit, including any Owner , shall be entitled to be paid reasonable attorneys ' fees by the losing litigant or -35- I litigants, and any judgment or decree rendered shall include an award thereof . 13. Reauest For Modification. In the event a request to change or alter this Declaration is made by any "institu- tional lender" , as defined hereinbelow, proposing to extend credit to be secured by a first deed of trust or first mortgage on the interest of any Owner within the Shopping Center , in order to ( i) clarify the rights of su'ch lender hereunder and/or ( ii ) otherwise better secure to such lender its ability to protect its security, consent to such changes or alteration of this Declaration shall not be unreasonably withheld by any Owner or other person os entity whose consent or approval thereto is required by this Declaration. The term "institutional lender" , as used herein, shall be deemed to mean any bank, savings oz building and loan association, trust or other similar institutional type of lender (includ- ing loan service correspondent companies designated by any such lender ) . Nothing contained in this Section shall be construed as obligating any Owner, person or entity to approve or consent to any alteration or modification to the physical layout and configuration of the Common Area as shown on the attached Exhibit "B" , including without limita- tion, the layout and location of parking spaces, driveways and traffic lanes, if such approval or consent is required, it being understood and agreed that any such approval or consent may be granted or withheld by any such party at its -36- . sole discretion. Any parties not involved in such request shall be at no expense in this regard. 14. Termination. This Declaration will terminate and be of no further force or effect in the event that the Poway Redevelopment Agency reacquires title to that portion of the Shopping Center defined as the "Agency Portion" in the DDA upon any exercise of its rights under Section 616 of the DDA. Notwithstanding that the DDA is subject and subordinate to this Declaration, this Declaration shall be subject and subordinate to the lien of the Poway Redevelopment Agency established under Section 707 of the DDA. The recordation of the Certificate of Completion described in the Memorandum Of Disposition And Development Agreement described in the Recitals to this Declaration shall conclusively establish that the Poway Redevelopment Agency' s rights to reacquire title to the Agency Portion under Section 616 of the DDA have terminated and that the lien established by Section 707 of the DDA has terminated. 15 . IDB Financina. No Owner or any other person claiming by or under an Owner with respect to a Pazcel will effect a financing or financings with respect to all or any portion of such Owner ' s Parcel which directly or indirectly involves bonds or other securities tax exempt pursuant to the pzovisions of Section 103 of the Internal Revenue Code of 1954, as amended, and the rules and regulations thereunder . -37- � 16. Authoritv. The persons executing this Declara- tion on behalf of Declarant represent and warrant, jointly and severally, that Declarant is a general partnership organized and existing under the laws of the State of California, and further represent and warrant that they are the general partners thereof and are fully authorized to executed this Declaration and to bind Declarant with respect to all matters contained herein. IN WITNESS WHEREOF, Declarant has duly executing this Declaration as of the day and year first hereinabove set forth. R & R PARTNERS - POWAY, a general partnership By: J.R. EVANS COMPANIES, INC. , a California Corpozation, general partner By: TIMOTHY J. CALDWELL, President By: ROGER A. MOHRHOFF, general partner -38- � �• � r�oia��aa os „s„ ziszx�;a --� N �+ �+ t"' I�: i�; l t{ z `" � . � U C-�-1 W � I rY` ---�;,r.� h o H � I -i - '` �.E '�' _— O � � � ,i 4 �G WO � � , ��\�,, — .-^ ;��- ic�ii�---�� x ,�IE ,� = y` .. W �; e � �� dlE3 v� �+'' �t.¢ f Q . P`� � � �' C� g��'- � y—� �� I / ' � � � e�� ..-1L �x` i �,IIII� � � , � i� I I i � �I � � � �� ' .E �� . � ; � �; ; �;; �� , � ' ,��!L--� � , ; :�lti .�\ �� E D �� s�� _ �(.��e. \� k `1. �� \� U�\\� p \ ♦ �o�� 1 �� - � � � � � %� �� , . , � _ S� ,�� - r � i � �\ � �„ 't � 3 � Ei�o i � -�i'=.: `�� f � � � ° '� 1 , �� . . �� /� ��''� `� b '/�.�//� � a ..,�si �'r . a � t � �� / J �'. p � �- o� � � r , N • f `t od� � .. %i Q N Y _ �I#- i'fi • - i � � �-"'�r e y �� y� w _ :".N ° y ' ,�d} `CS��1 _ � " ^ ; i ��.v ' U� C � . •' �' - '�., �� E ' I � �� Q ¢ � ! , . 4 ' I � ��1 � . � g ; - . : 08 � � � ; 3b � � qE � i � z J � � o ��; a ar, s � > �2 � � o ��:� _ .� � � �^ � 3 � O -1 ] (p : : ' : . . C . a� V ' ,.i � _- � � �� ;� I ,,�:. � � : � � � N . .-1 G ttl ' ' a � �,{ �^ � � . C7 � '.� _ . . „ ,, SHOPPING CENTER LEGAL DESCRIPTION � THAT PORTION Of SECTIONS 2, AND I I, TOWNSHIP 14 SOUTH, RANGE 2 WEST, SAN BERNARDINO MERIDIAN ACCORDING TO UNITED STATES GOVERIJMENT SURVEY APPROVED SEPTEMBER 1 I, 1879, ALSO BEING A PORTION OF PARCEL 1 AS DESCRIBED IN DEED TO THE COUNTY OF SAN DIEGO RECORDED OCT08ER 31, 1980 AT FILE/PAGE N0. 80-3659�40F OFFICIAL RECORDS AND ALL OF LOTS I 'fHROUGH 10 INCLUSIVE OF COUNTY OF SAN DIEGO TRACT N0. 4107, INCLUDING WOODSET LANE AS CLOSED TO PUBLIC USE BY ORDER OF THE COUNCIL OF THE CITY Of POWAY ON IhAY 20, 1986, ACCORDING TO MAP 1 FIERtUF W0. 1025Ei, F ILEU RJ 1 HL Of( ICE UI" 1 HE COUIJTY RECGRUER OF SAN DIEGO COUNTY ON NOVEMBER 6, 1981, ALL IIJ THE CITY OF POWAY, COUIJTY OF SAIJ DIEGO, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTIOIJ OF THE CENTERLINE OF COUNTY Of SAIJ DIEGO ROAD SURVEY N0. 1859-2 (POMERADO ROAD), ON FILE IN THE OFFICE OF THE COUNTY ENGINEER OF SAID COUNTY WITH THE SOUTH LINE Of SAID SECTION 2, SAID INTERSECTION BEARS SOUTH 86-37-04 EAST, 1309.78 FEET FROM THE SOUTHWEST CORNER OF SAID SECTIOIJ; THENCE ALONG SAID SOUTHLINE SOUTH 86-37-04 EAST, 51.04 fE[T TO THE POINT OF BEGINNING AND A LINE THAT IS PARALLEL WITH AIJD 51.00 FEET EASTERLY MEASURED AT RIGHT ANGLES FR01�1 THE CENTERLINE OF SAID ROAD SURVEY WU. 1859-2; THENCE ALOIJG SAID PARALLEL LINE IJORTH 1-I B-56 EAST, 1.36 FEET TO AN ANGLE THEREIN; THENCE CONTINUING ALONG A LINE THAT IS PARALLEL N�ITH THE CEIJTERLINE OF SAID ROAD SURVEY N0. 1859-2 AIJD 51.00 FEET EASTERLY MEASURED AT RIGHT AIJGLES FROM SAID CENTERLINE NORTH I-O�- 35 EAST, 956.59 FEE7 TO 7HE BEGINI�ING UF A TANGENT 1649.00 FOUT � RADIUS CURVE CONCAVEEASTERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL AIJGLE OF 12-46-40 A DISTAIJCE Of 367.74 FEET TO THE SOUTHWEST CORNER OF LOT 234. ACCORDIIJG TO MAP , THEREOF IJO. 8885, FILED IN THE OfFICE OF THE COUIJTY RECORDER OF SAID C�UIJTY OIJ JUNE 7, 1978 THENCE ALUNG THE SOUTH LINE OF .°iAiD LO7 N0. 234 50UTH 86-50-15 EAST, 297.72 FEET TO THE SUUTHEASTERLY SIDELINE OF TWIN PEAKS ROAD (FORMERLY CAf11N0 DEL NORTE) (126.00 FEET WIDE) AS DESCRIBED IN DEED TO THE COUNTY OF 5AN DIEGO RECORDED OCTOBER 30, 1980 AT FILE/PAGE N0. BO-363497 OF OFFICIAL RECORDS, SAID POINT BEItJG �N THE ARC OF A 1437.00 F00T RADIUS CURVE COIJCAVE SOUTHWESTERLY, A RADIAL LINE TO SAID POINT BEARS NORTH 49-44-26 EAST; THENC[ SOUTHEASTERLY ALOIJG SAID SOUTHWESTERLY SIDELiNE THROUGH A CENTRAL 1 EXHIBIT "A" ,/� /✓ ��, AN6LE OF 3-32-OS A DISTANCE OF 88.65 FEET; THENCE CONTINUING ALONG SAID SOUTHWESTERLY SIDELINE TANGENT TO SAID CURVE SOUTH 36-43-29 EAST, 879.48 FEET; THENCE LEAVING SAID�SOUTHWESTERLY SIDELINE AT RIGHT ANGLES SOUTH 53-16-31 WEST, 72.63 FEET THE THE BEGINNING OF A TANGENT 850.00 FOOT RADIUS CURVE CONCAVE SOUTHEASTERLY; THENCE ' SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 24-46-24 A DISTANCE OF 367.52 FEET TO A POINT IN THE ARC OF SAID CURVE TO WHICH A RADIAL LINE BEARS NORTH 61-29-53 WEST; THEIJCE LEAVING SAID CURVE SOUTH 6-02-00 EAST, 70.00 FEET; THENCE SOUTH 27- 31-00 WEST, 36.89 FEET; THENCE SOUTH 59-47-00 WEST, 236.92 FEET TO A POINT IN THE ARC OF A NON-TANGENT 1050.00 F00T RADIUS CURVE CONCAVE SOUTHWESTERLY, A RADIAL LINE TO SAID POINT BEARS NORTH 61-35-OS EAST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CEtJTRAL ANGLE OF I-43-39 A DISTANCE OF 31.66 FEET TO AN INTERSECTION WITH A NON-TANGENT 939.00 F00T RADIUS CONCAVE NORTHERLY, A RADIAL LINE TO SAID POIIJT FROM SAID 1050.00 F00T RAOIUS CURVE BEARS NORTH 63-18-44 EAST AND A RADIAL LINE TO SAID POINT FROf1 SAID 939.00 f00T RADIUS CURVE BEARS 50UTH 24-14-04 EAST; THENCE 50UTHWESTERIY ALONG THE ARC OF SAID 939.00 F00T RADIUS THROUGH A CENTRAL ANGLE OF 23-33-00 A DISTANCE OF 385.96 FEET; THENCE TANGENT TO SAID CURVE SOUTH 89-18-56 WEST, 50.40 FEET TO THE BEGINNING OF A TANGENT 25.00 F00T RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE CLOCKWISE AL�NG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 92-00-00 A DISTAIJCE OF 40.14 FEET; THENCE TANGENT TO SAID CURVE tJORTH 1-18-56 EAST, 95.56 FEET TO THE POINT OF BEGINNING. ; NON-DIST�RSANCE AGREEMENT THIS NON-DISTURBANCE AGREEMENT is made as of the day of , 1987, by and between the POWAY REDEVELOPMENT AGENCY, a public body organized a�d existing under Chapter 2 of the Community Redevelopment Law of the State of California, hereinafter referred to as the "Agency," and / � , /J , hereinafter referred to as "Tenant. " P R E L I M I N A R Y : A. Agency is a party to that certain Disposition and Development Agreement dated February 9, 1986 �s amended by First Amendment To Disposition And Development Agceement dated , 198J (hereinafter, the "DDA") a Memorandum of which was recorded , 1987 as Instrument No. , in the Official Records of San Diego County, California, which DDA relates to certain real pcoperty and improvements located thereon situated in the � County of San Diego, State of California, and which real property is described in Exhibit A attached hereto and incorporated by refecence herein. Said [eal property desczibed in Exhibit A is hereinaftez referred to as the "Subject Property." B. Tenant is the tenant under a lease . dated , 1986 as�am,e_nded bv lease amendment dated , 19.87 (hereinafter referred to as the "Lease") , where R and R. Partners-Poway, a Califoinia general partnership (hereafter referred to as "Landlord") is Landlord, which Lease demises to Tenant a portion of the . Subject Property. C. Tenant and Agency desire to enter into this Agreement to establish certain rights, safeguacds and EXHIBIT "B" 2/018/065217-0003/S 2/i�/e� .� � obligations with respect to their �interests and to further provide for various contingencies as hereinafter set forth. NOW, THEREFORE, in consideration of the foregoinq and of the mutual agreement of the parties hereto to the terms and conditions hereinafter contained, the parties hereto agree as follows: 1. In the event of any default or other action under the DDA which results in the conveyance of the Subject • Property, or a portion thereof, to the Agency or its assigns (other than a conveyance of the real property defined 'as the "Agency Poztion" in the DDA pursuant to Section 616 of the DDA oz through judicial foreclosure or private power of sale proceeding, under the lien established by Section 707 of the DDA) then Agency and Tenant do hereby agree that the Lease and all of the terms, provisions, agreements and covenants thereof shall survive any such default or defaults in, or other action under the DDA, and the Lease shall •continue in full force and effect in accordance with and subject to all of its terms, provisions, covenants and agreements as a direct lease with Agency as landlord and Tenant as tenant. . Agency shall exercise and undertake all of the rights, obligations and duties of Landlord in and under the Lease and thereaftez shall be entitled to collect all rents and payments being due and payable under the Lease. So long as Agency or its successors or assigns exercises and undertakes all of the rights, obligations and duties of Landlord in and under the Lease as a direct Lease, Tenant covenants and agrees that it shall attorn to Agency or its successors or assigns as Tenant's new Landlord. However, in no event shall Agency or its successozs or assigns be liable for or bound by any payment of zent or additional rent made by Tenant to Landlord or any such previous lessor for more than one (1) -2- r month in advance nor for any payment of � security deposit to such landlord or previous lessor. 2. Agency agrees that, prior to taking any proceedings to enforce any rights undez the DDA which rights include the conveyance of the Subject Pzoperty to Agency for any reason other than the expiration of the term of the DDA as provided therein, Agency shall Tenant thirty (30) days' notice in writing prior to the effective date of such proceedings, specifying the reason for such proceeding. Such notice shall be given to Tenant at / ! , or at such other address as Tenant may designate to Agency in writing. 3. Agency agrees that, for and during the term of the Lease and extensions thereof, Agency shall not take any action, dizectly or indirectly, to disturb or otherwise affect Tenant 's occupancy of the premises demised by the Lease (other than pursuant to Section 616 of the DDA and/or to foreclose the lien established by Section 707 of the DDA) , so long as Tenant is not in default thereunder, notwith- standing any provisions to the contrary contained in the DDA. 4. No provision c0.ntained herein shall be deemed an amendment or modification of any provision contained in the Lease, including, without limiting the generality of the fozegoing, any rights thereunder given to Tenant to terminate the Lease. 5. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their success- ors, tzansferees and assigns. -3- ,r IN WITNE55 WHEREOF, the parties hereto have executed this agreement as of the day and year first hezein- above set forth. POWAY REDEVELOPMENT AGENCY a California public body By: By: "Agency" � "Tenant" (TO BE NOTARIALLY ACKNOWLEDGED) -4- . .� zr �� . ��; �,��s:a +i4. 3: o N [j -s;, r, ;, ti ,� W F�;�yt~,� ' 4�� '� � W ��`p�4 t�� y :.Z:an �y�, ::n ^ r �ia.#i: .M 2 �� 'c ba� w e� LL n�A��r r�rsa �' ' 'y,..Y}Y'r� i o �,r,e,r.a,.., �`1� `s M 4y�.�'r.��,y�iyi p J i wr �•v.„. �, ` � ,yrs/! N�/ .MS)' <'m!!' A. a l.rx�.�'Y.is ' w �� 'd�s� -e'.ni',`.�( . 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W y� t^n w � x�� , / � �i � e s �` '�� .n/ � h_ y a .�I L (fn J �� p _ rt eyl /� � V U J e^ ',t.1j2e �e.� W Krii H„ ;er h+y n,, M6 �' � / ' ` y N¢*p r` ag; 8� h" lu� n 4� ^p' . O �� ^ e Y�4 e . �T��i�[ e�:. �� ! �\ � •q,i g �_ � IR R SO )ti � �i L� � :4 . ` '' p�� 4 J O n_ n 0 \ Q.\ i^ I / Y .\�. 8� Q�� .R' .W Z U � r` ��/ �� \ ,e" ;R p /��V�( ` A� oi,; � i e ��. 1� � t\ V\O ``� I r"IO�. ` � � L_ = N � v^ pP�E� � l .r.n.. �''4 � e= e/ m a � M �i _�� °s . 8ae` °�`� .. �' . � :/\ / �i ti0 •`ic e .! , � � n_ n �y `6 :. = i I '' ��,d . .�° a r�e.�,ts' . LJ oG q 'R:. t � � � .°+n. nF � � Y* 9 .Y� ` J J- ; � +G�.n.w.. M ,pfyrf �• b• ts `�f� , �`�'C C^ w n(` �i O // ��e �f` L__ P t. 4� •.r s � W S i ` L `O♦ S � R.. * <(� ; p' 4s ^ ' , O � e:g - 'il� bs \ n �+ti , i . o:: a 6' •f �� "• 'i i (p'�� \ii F (O4 ��v r � "`Q� ff�pi5, .�s+.� ; a � _ r M1y ee a . w:;y'�.... 8 �� '" ° 4 '" °'"` ro �i� . � J °° pi�s� 8 Y /y � � . � �ffi�� !r � °� � �x.��. ' °6 1 P QA / �ti /s Y ��"`'Y,�ap„��.�f i cta6` . • ;4;� , +% oF4 'Tryn t=' �� .i�o� �roi' hYt-p� � �;� �e� 6'. '�=fipl �'! Y1/ � Yw� '�•(p-�I/� � I � �. O +T48.. ^ l'f.. _ ' :�� + .�t�� =� �;° • � �:" `_."� • T :, 4 /: Y~F`, 4'. � �T� `^ •��,/ a � \ oa $a4 c -�, ;j� �� \ g�' � \ :'S� / . EXHIBIT °C" . /" �t `� . �. I � „4„ SIflIfIX3 `�' �� i: tl N i ' I -� - , i ' 3 . � �'� ! ---�'----`� � � , +..,�a��' l • $�ti ��i I �� -I i�� ,�j ;'FS` ��'` l�Nf+l�l � .._ � "' � ;: �::a , - � � i .. ; � � j� � � � � ` / � ai;;-�, �� ` ' / � � --_i - -0 1 �--8`._. / � _ � / � ,'', - ;�l1: . \1:,� %�� ' / . Ar � � � � � u,� ` �.. \ �� \. �� ' � . i a .. ' �� - 'g � � �; ' i� �� (n� _ � � � c� _ i � ,. � �d�l,�� ,� �,r��{/ �� ; -�— i a� ; ' �bl � �� ,;�iii �ql� � � � � � ,� � � , 6 � � � I a . ' /6 G�G� �1>�OC 7�n� �\\ � 1 �� o �{� i �' , � '-i: ' N h . �� s , Q s aes=1 � ��3 � `> y ; � � I R.. .. � = o.i:� � y; !^i�# `• ` ' � � �r� r - �� . s Y " I!L?��r- a� s � � . ' � w s � � ; � I ' ° �� — � � s t ' � z - a Q � � � ' � ?� E � � ' r-. . . W tu � � F ��e� � S�'e' � � � . C � N i 'i � � � 1 � , � I ,A. • 7J/.7�1Gp� Ss�lr�� /''i'S i ' • ,' , . � . �� mqniTQu � ; enQ neer nA compeny ,�... .....�.�� ..,�...,�,,....,..,�„ ]eov a• .......�..,.....c.bi.�.�. �:o» bi...... �uq rn..roi 10• MO. l[G1�1 O[�CI�RTIOM IOni �.U.F. owrc 4M[[1 . , 767 Agency Portion q�,�1�f O1-29�7 1 of 2 � i I I AGENCY PORTION , i ( TIIAT PORTION OF SECTIONS 2 AND 11 , TOWNSNIP 74 SOU7H� RANGE 2 WEST, SAN BEANAPDINO MEAIDIAN, IN THE CITY OF POWAY, i . COUWTY OF SAN DIEGO, STATE OF CALIFORidIA, ACCORDING TO � UNITED STATES COVERNMENT SURVEY, APPftOVED SEPTEMBER 11 , 7879, AL50 BEING A PORTIOIJ OF PAACEL t AS DESCRIBED IN DEED TO 'IHE COUNTY OF SAN DIEGO RECORDED OCTOBER 31 , 1980, AT FILE/PAGE N0. 80-36597u , OFFICIAL RECORDS, DESCRIBED AS FOLL041S: . BEGINNING A'f THE INTERSECTION OF THE CENTEALINE OF POMERADO ROAD iJITH THE SOUTH LINE OF SAID SECTION 2, AS SHOWN ON RECORD OF SURVEY MAP N0. 6563� FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY ON JULY 21 , 7965 , SAID POINT BEAFS SOUTH 86-37-04 EAST, 7294.08 FEE'f (RECORD OF SURVEY NO 6563 = SOUTH 86-37-45 EAST, 1294 . 88 FEET) FflOFt THE SOU'fHWEST COAtJER OF SAID SECTIOIJ 2 ; TIiENCE ALONG THE SOUTH LINE OF SAID SECTION 2 SOUTfI 86-37-04 EAST, 48.73 FEET (DEED = SOUTH 86-37-45 EA57 , 49•OS FEET) TO A LINE THAT IS PARALLEL WITH . AiJD 33•00 FEET EASTERLY, MEASUAED AT RIGHT ANGLES FROM THE CE�77ERLINE OF AOAD SURVEY N0. 1859-2, OIJ FILE IN THE OFFICE OF 7HE COUNTY ENGINEER; THENCE LEnVING SAID SOUTH LINE ALONG SAID PARALLEL LINE NORTH 1-OS-35 EAST, 523.66 FEET ( DEED - , NOfiTH 1-OS-02 EAST, 523•OB FEET) ; THEtJCE LEAVING SAID � PARALLEL LINE SOU'tH 88-SU-25 EAST (DEED = SOUTH 88-54-58 EAST) , 185.40 FEET; THENCE SOUTII 74-19-43 EAST (DEED = SOUTI3 74-19-10 EAST) 118.40 FEET;THENCE NORTH 51-43-07 EAST (DEED NORTH 51-43-40 EAST) , 130• B4 FEET TO AN ANGLE POIN'f IN THE BOUNDARY OF COUN'fY OF SAN DIEGO TRACT N0. 4107, AS SHOWN 01J . MAP THEREOF N0. 10258, FILED IN TfIE OFFICE OF THE COUIJTY RECORDER OF SAID COUNTY ON 1JOVEPIBER 6, 1961 ; THENCE ALONG ' THE BOUNDARY OF SAID t1AP 1J0. 10258, SOUTH 46-10-53 EAST, 69•30 FEET AND CONTINUIIJG ALONG SAID BOUNDARY SOUTH 74-49-13 EAST, 72.50 FEET AND NORTH 83-41-27 EAST, 173•00 FEET AND NORTH 12-13-51 EA57, 198•52 FEET AWD NORTH 53-16-31 EAST, � 5� •SB FEET TO THE SOUif3WE5TERLY SIDELINE OF TWIN PEAKS ROAD EXHIBIT "E" cou.�hv oocnvnor w�v�s�o�s t�t�[ co. •r o�ra wcren�nc� onoaA wo. - owra • ' �t/�U✓ �'' _ � . . � �� mqniTQu ... � an� naer ng company .i... ..-�.u ...i.. .i... ,i�. I)OM �A •.��/.I�.C�1.1��.� �)0)) I�I��I�� 1�1�1 )I1.��]I •v owlc rac� � io• �o. �ccw� ocacnvno� ron� p.W.F. 76� Agency Portion ��}`�, O1-29-87 2 of 2 1 (FOAMERLY CAMINO DEL NORI'E) ( 126.00 FEE'I WIDE) p 'fHENCE • LEAVING SAID TRACT BOUNDARY ALONG SAID SOUTHWESTEHLY - � SIDELIIJE SOUTH 36-43-29 ensr, 446.25 FEE'f 70 THE BEGINNING OF A TAI�GENi 1863•00 FOOT RADIUS CURVE COIJCAVE NORTHEASTEALY; TNENCE SOUTHWESTENLY ALONG THE ARC OF SAID ' CURVE THROUGH A CEN'IRAL ANGLE OF 4-75-59 A DI57ANCE OF 13g,72 FEET TO A POINT OF CUSP WITH A 25.00 FOOT AADIUS CURVE CONCAVE SOUTHERLY, A AADIAL LINE THROUGH SAID POINT OF CUSP BEARS NOPTH 49-00-3z EA57; THENCE LEAVING SAID 1063.00 FOOT RADIUS CURVE COUNTERCLOCKWISE ALONG 7'HE ARC OF SAID 25.00 FOOT RADIUS CURVE YHROUGH A CENTRAL ANGLE OF 87-30=39 A DI:,TnNCf: oF 3�• 1(1 FF.F.T; THENCE 'fANGENT TO SAID CURVE SOUTH 51-29-53 WEST� 482.02 FEL'1' 7'U '1'llt�: 15L:1;1NIJ1Nli Ul" A TAI4GLIVT 1057.00 FOOT RADIUS CURVE CONCnVE NORTHWESTEflLY; THENCE SOU7'HWESTERLY A1JD WESTERLY ALONG THE AHC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 37-�9-03 A DISTAIJCE OF 697•66 FEET; 'f1�ENCE TANGENT TO SAID CURVE SOUTH 89-18-56 YIEST, 56.27 FEE7 TO THE BECItJIJING OF R TANGENT 25.00 FOOT RADIUS � CURVE CONCAVE SOUSHEASTERLY; THENCE COUNTEACLOGKIJISE ALONG THE AAC OF SAID CURVE 7Hft0UGH A CENTRAL AWCLE OF 00-00-DO A DISTANCE OF 38.40 FEET, TO A LINE TIlAT IS PARALLEL WITki AND � 5� .00 FEET EASiERLY, MEASURED AT RIGliT ANGLES FROM THE � CENTERLINE OF THE ABOVEh7EHTIOIJED COUN7Y OF SAN DIEGO ROAD � • SURVEY N0. 1859-2; THEWCE PARALLEL WITH SAID CENTERLINE ��. SOU'fH 1-18-56 WEST (ROAD SURVEY tJO. 1859-z = SOUTfI 1-18-Q8 WEST) , 503.44 FEET; THENCE AT RIGHT ANGLES NORTH 88-41-04 WEST, 60 .41 FEET TO THE ABOVEPIENTIONED CEIdTERLINE OF PDIIERADO AOAD AS SHOWN ON RECORD OP SURVEY N0. 6563; TNENCE - ALOIJC SAID CENTERLINE NORTH 0-50-51 EAST (PECORD OF SURVEY � N0. 6563 = NORTH 0-50-40 EAST) 769•52 FEET TO THE POItJT OF BEGINI�IIJG . � . _ z _ o[scnvtioH w�v�smws COM�PNY •r owr[ ♦�Ti[ [o. �[i[w[n[c owocw wo. owlc � �