Operating Covenant 2004-0094741�r
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RECORDED AT THE R DURST OF
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Poway Redevelopment Agency
13325'CMc Center Drive
P.O. Box 789
Poway, California 92064
Order #33051208-U52
This
6103.
DC * 100490094741
FEB'05, 2004 3:53
OFFICIAL RECORDS
SAKDIESO COUNTY RECORDER'S OFFICE
GREGORY 1, SMITH COUNTY RECORDER
FEES: 0.00
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it is exempt from thePayment ota
pursuant to Government Code _Section
OPERATING COVENANT
THIS''OPERATING COVENANT is made'by POW,AY.- NIERMAN LIMITED
PARTNERSHIP,; a California Limited Partnership (the "Participant'); in favor of the POWAY
REDEVELOPMENT AGENCY, a public body corporate and politic (the "Agency "), as.of
January 16, 2004.
RECITALS
Unrecorded loan
agreement
A. The Agency and the Participant have entered:into that - certain Agreement;re
Operating Covenant'and Restrictive Covenants dated May 30, 2003 (the "Agreement "),.concerning
certain.real property situated 'in the'Cityof Poway, California, as more fully described in Exhibit "A
attached hereto and made a part hereof,(the "Property").
B. As referenced in the Agreement, the Pa"rticipantis required to execute an operating
covenant with respect to the, Property in favor of the Agency.
NOW, THEREFORE, the Participant agrees as follows:
1. Operating Covenant. The Participant hereby covenants and agrees to operate a first
class retail shopping center on the Property ,(the "Facility"). The Participant shall cause the Facility
on'the Property to.bc continuously operated during normal business hours (subject to temporary -
interruptions for casualty losses, repairs, and the like) during the "Operating Period" defined
herembelowi All uses conducted on the Property, including, without limitation, all activities
undertaken,by the Participant;pursuant to this Operating Covenant, shall conform to all applicable
provisions ofthe Poway Municipal Code, and the.recorded documents pertaining to and running with
the Property, The,Operating Period sh511 commence on the date of this Operating Covenant and shall
terminate flee (5),years thereafter; In the event that the;Participant repays in.full the loan made
pursuantdo the Agreement,prior to the end ofthe term =of this Operating Period, the Operating Period
shall be terrninated,as of theAate of such.payment, and the parties agree to execute and record a
notice of termination which memorializes such termination. Except with'the prior written consent of
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the Agency for each instance, which consent may be granted or withheld in the Agency's sole and
absolute discretion; the failure of the Participant to operate the Facility as provided herein for ninety
(90) or more' consecutive days shall, at the,Agency's option, constitute a Default hereunder;
provided, however, that the Participant shall.not be in default of this Section 1 during any period that
the Participant'is prevented from operating the Facility due to (i) required or necessary rehabilitation
or remodeling of the Facility (provided that the period during which the Facility is not operated as a
result of the rehabilitaiiori or remodeling of the Facility shall.in -no event exceed ninety (90) days
withoutthe prior approval of the Agency), or (ii) events of force majeure as set forth in the
Agreement. The term of the Operating Covenant shall be extended for each day of closure permitted
hereunder.
2. Performance of Maintenance.
a. Participant shall maintain the improvements and landscaping on the Property
in accordance with the Maintenance Standards, as hereinafter defined. Said improvements shall
include, but not be limited to, buildings, sidewalks, pedestrian lighting, landscaping, irrigation of
landscaping, architectural elements identifying the Property and any and all other improvements on
the Property.
r
b. The following standards ( "Maintenance Standards ") shall be complied with
by Participant and its maintenance staff,, contractors or subcontractors:
1. The Improvements (as the term'is defined in the Agreement) shall "be
maintained in conformance and in compliance with the approved Scope of Work and reasonable
commercial development maintenance standards for similar projects, including but not limited to the
painting and cleaning of all exterior surfaces and other exterior-facades in the improvements on'the
Property.
2. The Improvements shall be maintained as required by this Section 1
in,good condition and in accordance with the custom and practice generally.applicable to comparable
first -class commercial facilities similar to the Improvements located within the Southern California
area.
3. Landscape maintenance shall include; but not limited to:
watering/irrigation; fertilization; mowing; edging; trimming of grass; tree and shrub pruning;
trimming and.shaping of trees and shrubs to maintain a healthy; natural appearance and safe road
conditions and visibility, and irrigation coverage; replacement, as needed, of all plant materials;
controLof weeds in all planters, shrubs, lawns, ground covers, or other planted areas; and staking.for
support of trees.
4. Clean -up maintenance shall include, but not limited to:
maintenance of all sidewalks; paths,and other paved areas in clean and weed -free condition;
maintenance of all such areas clear of dirt, mud, trash, debris or other matter which is unsafe or
unsightly; removal of all trash, litter and other debris from improvements and landscaping prior to
mowing; clearance and cleaning of all areas maintained prior to the end of the day on which the
maintenance operations are performed to ensure thatall cuttings, weeds, leaves and other debris are
properly disposed of by maintenance workers.
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5. All maintenance work shall conform.to all applicable federal and state
Occupational. Safety and Health Act*standards and regulations for the performance of maintenance.
6. Any and all chemicals, unhealthful substances, and pesticides used in
and during maintenance shall be applied in.strict accordance with all governing regulations.
Precautionary measures shall be employed recognizing" that all areas are open to public °access.
3. Failure to Maintain Improvements. In the event Participant does not maintain the
improvements on the Property in the manner set forth herein and in accordance with the Maintenance
Standards, Agency and/or City shall have the right to maintain such :improvements, or to contract for
the correction of such deficiencies, after written notice to Participant. However, prior to.taking any
such action, Agency agrees to notify Participant in writing if the condition of said improvements do
not meet with the Maintenance Standards and to specify the deficiencies and the actions required to
be taken by Participant to cure the deficiencies. Upon notification of any maintenance deficiency,
Participant shall have thirty (30) days within which to correct, remedy or cure the deficiency. If the
written notification states the,problem is urgent relating to the public.health and safety of the City or
the Agency, then Participant shall have forty -eight (48) hours to rectify the problem.
In the event Participant fails to correct, remedy; or cure or has not commenced
correcting, remedying orcuring such maintenance deficiency after notification and after the period of
correction has lapsed, then City and/or Agency shall have the right.to maintain such improvements.
Participant agrees to pay Agency.such reasonable and documented third party charges and costs.
Until so paid, the Agency shall have a lien on the Property for the amount of such charges or costs,
which lien shall be perfected by the recordation of a "Notice of Claim of Lien" against the Property.
Upon recordation of a Notice of a'Claim of Lien against the Property, such lien shall constitute a lien
on the fee estate in and to the Property prior and superior to all other monetary liens except: (i) all
taxes, bonds, . assessments, and other levies which, by law, would be superior thereto; (ii) the lien or
charge of any mortgage, deed of trust, or other security interest then of record made in good faith and
for value, it being understood that the priority of any such lien for, costs incurred to comply with this
Agreement'"shall date from th'e;date of the recordation of.the Notice of Claim of Lien. Any such lien
shall be subject and subordinate to any lease or sublease of the interest of Participant in the Property
or any portion thereof and to any easement affecting the Property or any portion thereof entered into
at any time (either before or after) the date of recordation of such a Notice. Any lien in favor of the
Agency created or claimed hereunder is expressly made subject and subordinate to any mortgage or
deed of trust made in good faith and for value, recorded as of the date of the recordation of the Notice
of Claim of Lien describing such lien as aforesaid, and no such lien shall in any way defeat,
invalidate, or impair the obligation or priority of any such mortgage or deed of trust, unless the
mortgage or beneficiary thereunder expressly subordinates his - interest, of record, to such lien. No
lien in favor of the Agency created or claimed hereunder shall in any way defeat, invalidate, or
impair the obligation or priority of any lease, sublease or easement unless such instrument is
expressly subordinated to such`lien. Upon foreclosure of any mortgage or deed of trust made in good
faith and for value and recorded prior to the recordation of any unsatisfied Notice of Claim of Lien,
the foreclosure - purchaser shall take title to the Property free of any lien imposed.by the Agency that
has accrued up to the time of the foreclosure sale, and upon taking title to the Property, such
foreclosure - purchaser shall only be obligated to pay costs associated with this Agreement accruing
after the foreclosure- purchaser acquires title to the Property. If the Property is ever legally divided
with the written approval of the Agency and fee title to various portions of the Property is held under
separate ownerships, then the burdens of the maintenance obligations set forth herein and in this
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Agreement arid the charges levied;bythe:Agency to reimburse the Agency for the cost of undertaking
such maintenance obligations ofParticipant and its "successors and the lien for such charges shall be
apportioned among the fee.owners of the various portions of,tlie,Property under different ownerships
according to the square footage of the land contained'inthe respective portions of the Property
owned by them. Upon apportionment, noiseparate'owner ofa portion of theTroperty shall have any
liability, for the apportioned liabilities of any other separate owner of another portion of the Property,
and the lien shall be similarly apportioned and shall.onlyconstitute a lien against theportion;of the
Property owne&M fee by the owner who is liable for the apportioned charges levied by the Agency
and secured by the apportioned lienand against no other portion ofthe Property. Participant
acknowledges and agrees,City and Agency may also pursue any arid all. other remedies available in
law or equity. Participant. shall be liable for any and all attorneys' fees, and other legal costs or fees
incurred in collecting saidmaintenaiice costs.
4. Compliance,with`Law. Participant shall complywith all local, state and federal
laws relating to the uses of or condition of the improvements;on the Property. Local laws for the
purposes of this section shall include only.those ordinances which are nondiscriminatory in nature
and applicable to the public welfare, health, safety and aesthetics. If any new local laws relating to
uses of or condition of the improvements create a condition onsituation,that constitutes a lawful
nonconforming use as-defined bylocal ordinance with respectto,the Property orany portion thereof,
then so long,as.the lawful nonconforming use status remains in effect (i.e., until such lawful status is
properly terminated by amortizationas,provided for in the new local law or. otherwise), Participant
shall be entitled to enjoy the benefits of such lawful nonconforming use pursuant to the lawful
nonconforming uses ordinance.
5. Nondiser`imitiation. The Participant by and for itself and any successors in interest
covenantsthatthere shall be no discrimination against.or segregation:of any person or group of
persons on account of race, color; creed; religion, sex, marital status; physical or mental disability or
medical condition, national.origin or ancestry in the sale, lease, sublease; transfer, use, occupancy,
tenure or enjoyment of the Property, nor,shall the Participant itself or'any person claiming under or
through it establish or perniitanysuch practice orpractices'of discrimination or segregation with
reference to the selection, location,'number, use of occupancy tenants, lessees, subtenants,
sublessees or vendees of the Property. The foregoing covenants shall run with the land and shall
remain in effect in perpetuity.
6. Effect of Violation of the Terms and Provisions of this Operating Covenant. The
covenants established in this Operating Covenant shall, without regard to technical classification and
designation, be binding for the benefit and in favor of the Agency, its successors and assigns, as to
those, covenants.which are for its benefit: The covenants contained in this Operating'Covenant shall
remain in effect-for the periodsbf time specified therein. The Agehey is deemed the beneficiary of
the terms and provisions ofthi's Operating Covenant and of the covenants running with the land, for
and in its own rights and,for the purposes of protecting the interests ofthe community and other
parties;,public:or private, in whose favor and for whose benefit this Operating Covenant and the
covenants running with the land have been provided. The Operating Covenant and the covenants
herein shall run in favor of the Agency, without regard to whether the Agency has been, remains or is
an owner of any land or.,interestadjacent to the Property; The Agency shall have the right, if the
Operating Covenant or- covenants are breached,.to,exercise all rights and remedies, and to maintain
any actions or suits at law or in equity or other proper proceedingsto enforce the curing of such
breaches to which it or -any other beneficiaries of this Operating Covenant and covenants may be
entitled.
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1. Miscellaneous Provisions.
a. If any provision of this OperatingCoverumt or portion thereof, or the
application to any ,person or circumstances, shall,to' any extent be held'iitvalid „inoperative,or
unenforceable; the remainder of this:Operating:Covenant „or the application of such provision�or
pottionahereof to:any'other persons or circumstances, ahall not be.affected thereby; it shall:not be
deemed that any such invalid' provision affects the consideration, for this Operating'Covenant; and
each provision of this Operating Covenant shall be valid and enforceable'to the fullest extent
permitted by law.
b. This Operating Covenant shall be construed in accordance with1he laws of
the State of California.
C. This: Operating Covenant shall be bindingupon +and inure to the benefit of the
successors and assigns of the Participant.
d. In the event.actiowis instituted to enforce any of the provisions of this
Operating Covenant, the prevailing party in such action shall be entitled to recover from the other
party thereto as part of the judgment,, reasonable attorney's fees and,costs.
8. Effect of Operating;:Covenant. The covenants and. agreements established in.this
Operating Covenant shall, without regard',to,technical classification and designation, run with'the
land and be binding on each owner of.the Property and any successor in interest to the Property, or
any part thereof (including eacfi;parcel thereof), for the benefit of and in favor of the Agency.
PARTICIPANT:
POWAY- NIERMAN LIMITED PARTNERSHIP,
a California Limited Partnership
By: Nierman Pomerado GP.,,LLC, a California
'Limited Liability Company, (Its General Partner).
By:
es S. Nierman,
rustee of the S. Nierman Trust dated
May 9; 1990„ (Its Manager)
oocsocvoi 2683y3\22345.0000
S 1'67154
ACCEPTED'BY AGENCY'
POWAY REDEVELOPMENT AGENCY, a.public
M.
C
ATTEST:
Age cy Secretary
APPROVED AS TO FORM:
— C�r AW
Agency i nsel
6
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S 16755 0
CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
State of California
County of
On \b Date
personally appeared
before me,
MICHfltE PAULJNE HE(T132GOTi
Commission N 1298219
-s Notary Public - California £
z San Diego County
My Comm. Expires Mar23, 2005
Place Notary Seal Above
I ss.
plpersonally known to me
7 proved to me on the basis of satisfactory
evidence
to be the persons) whose name(s) &e
subscribed to the with. Instrument and
acknowledged to me t e/s e /they executed
the same in is er heir thorized
capacity(ies), and that by is er /their
signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s)
acted, executed the instrument.
my \mil official
Signature
OPTIONAL
Though the information below . is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
❑ Individual Top of muom here
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
P 1999 Noteral Wory A550Gia ,ou • 9350 De Solo Ave., PC, Box 2402 • Cha15woch CA 91313 -2402 • www.nationalnotory .org Prod No 5907 Rau,drr'. Cou To'I'Free 1.6016]6.692]
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♦
16756 �
GALIFUKNIA ALL- VUKVUSt AGKNU1NLtUU1VItN,I
State of California
) ss.
County. of San Diego
On February 4;`2004, before me, Sherrie D. Worrell, Notary°Public, personally'appeared
James L. Bowersox; personally known to me .to be the person whose name is
subscribed to -the within instrument and acknowledgedio,:me that he,executed'the. same
in his authorized capacity, and that by his signature,on the instrument the person, or the
entity upon behalf of which the person acted, executed the instrument.
WITNESS' my hand and, official seal.
OPTIONAL
Though'the information 6eloia;is not req@Td iviaiv,,it'may. prove valuable to ;persons I relying on the document and could prevent
fraudulent removal; and reattachment of, this form to another document.
Description of Attached' Document
Title or Type, of Document: Operating Covenant
Document. Date: January:16'.2004 Number of Pages: 8
Sidher(s) Other Than Named Above: James S. Nierman
Capacity(ies)'Claimed by Signer
Signer's Name: James L. Bowersox
_ Individual
_ Corporate Officer — Title(s):
_
Partner-- Limited _ General
_ Attorney-in=Fact
_ Trustee
_ Guardian:or Conservator
Other:
Signer is Representing:
0 1675" 0.
EXHIBIT A TO OPERATING COVENANT
LEGAL DESCRIPTION: OF PROPERTY
PARCEL A:
PARCELS 1, OF PARCEL MAP 'NO..I3714; IN THE CITY OF POWAY, COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY - RECORDER OF
SAN DIEGO COUNTY, MARCH 12, 1985 AS FILE NO. 85- 0S0780 OF OFFICIAL RECORDS.
PARCEL B:
NON - EXCLUSIVE EASEMENTS FOR INGRESS AND EGRESS;AND FOR THE PASSAGE OF
MOTOR VEHICLES INTO, OUT OF, ON, OVER AND ACROSS THOSE CERTAIN
EASEMENTS DESCRIBED IN ARTICLE 1 OF THAT CERTAIN DOCUMENT ENTITLED
"RECIPROCAL MUTUAL ACCESS EASEMENT AGREEMENT "RECORDED JULY 2, 1985
AS FILED NO. '85-238010 OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY
RECORDEWOF SAN DIEGO COUNTY'.
APN: 317 - 153 -24
Exhibit A -1
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