Loading...
Res 87-021RESOLUTION NO. 87-021 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 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 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 commercial project with adjacent parking facilities; and WHEREAS, the Agency and the City Council of the City of 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 summary 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 City Council 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 24th day of February, 1987. ATTEST: Marjorie K. Wahlsten, City Clerk Bruce/J< Tarzy, May~f FIRST A~IEN-DM~-~qT ~) DISPOSITION AND DEVELOPMENT AGREEMENT THIS FIRST ANENDMENT 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"). RECITALS: 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" ) . B. 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 the GEMCO_ tenant for the majority of its department stores in the San 2/018/065217-0003/04 2/18/87 Diego, California area now being operated as GEMCO stores. Dayton ~udson 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. 8 and Attachment No. 9 referenced in Paragraph (b) above shall b9 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._~_ In 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 S~ores, 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 okAttachment 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 for the Site is commenced by the Developer on or 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 asa TARGET department store and not less than twenty-five thousand (25,000) square feet of gross floor area for 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 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 of the DDA. Section 5(a)(i) of the Grant Deed shall be appropriately amended prior to the Conveyance to conform to this paragraph (e). (f) The references 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 Bay 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 improvements 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 renumber ing 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 Partner By: J. R. EVANS COMPANIES, INC., a California corporation, General Partner By: Timothy J. Caldwell, President "Developer" -8- RECORDING REQUESTED BY AND W~EN RECORDED, RETURN TO: RUTAN & TUCKER (RPS) 611 Anton Boulevard 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." PRELIMINARY: 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 property described in Exhibit A is hereinafter referred to as the "Shopping Center." attached hereto as reference. 2. Declarant A plot plan of the Shopping Center is Exhibit B and incorporated herein by plans to develop and plan for the development of the Shopping Center as an integrated retail EXHIBIT "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 Center 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- by lot line adjustment and/or resubdivisio~, 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 transferr.~ng 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- 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 o'f 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- adjacent real property 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 Area 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 anykind 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 "H" 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 Building 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 area) constructed within any of the Building Areas outlined by the lines designated as "Building Limit Lines" on the attached Exhibit "B" shall not exceed the maximum floor area amount for each such area specified on the attached Exhibit "B" (the maximum floor area for such Building Areas within those portions of the Shopping Center outline~, 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 Shopping Center or sixteen thousand eight hundred (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- 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 "B", 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 Building Area constructed on such building pad; (iv) The construction and operation of trash areas adjacent to any Building 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 ~he 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 th~ 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 B, 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 or 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 sprinkler systems as meet all of the standards of the Fire Insurance Rating Authority (or other 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 "B"; (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 "B", 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. SNOPPING 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 Common 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 grant 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 drainage 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 "B" 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 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 portion of the Common Area located on the Shopping Center for motor vehicle parking purposes except those portions designated as "employee parking" 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, -16- if any, is located, the Owner 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 operation 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 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 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- 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 Manage~ 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 ~o 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 authorize 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 third 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 (2I Owners. hgwever, may aqree~ with th~ Mana~er~.' approval, to_ adjust th.~rD~_o~~ share of sq~h co_s.~D and expenses as between their respect~z~ Parcels, ~rovided .that the...tota..~ proportionate share for s.?ch Parcels remains unchanged and provided that suc~ agreement i~ spt fprth in a written. ~pplement to this Declaration executed by such Owners and approved in writing by the Manager, which Supplement and approval are recorded in the Official Records of the County Recorder. San Diego County. 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 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 Manager 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 designat~ed, 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 throughout the Shopping Center. such surcharge or charge or selected shall be applied In the event compliance with 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. In 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. Ail 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 distribution 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- 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 herein, "entertainment or but is not limited to, educational facility. As used recreational facility" includes, a bowling alley, skating rink, theater, billiard room, health spa or studio, massage parlor, amusement arcade, bar 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 primarily 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 scale or protracted use. v. burdened by either large 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 repair, 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 necessary 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- on said Parcel. Nothing contained in this paragraph 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- 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 instrument 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 terminate this Declaration. 5. Not A Public Dedication. required to amend or to 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. Breach 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- covenants or restrictions, however, shall not ~efeat 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. ~. 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. Subsequent 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 and 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 Owner 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. 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- 10. QwnershiD Of Shoppina Center. The ownership of the entire Shopping Center by the same party shall not effect the termination of this Declaration. 11. ~tion. 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. Attorneys 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- litigants, and any judgment or decree rendered shall include an award thereof. 13. Reauest For Modifigation. 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 s~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 or 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 or 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. ~i~~t. 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 lie~ established by Section 707 of the DDA has terminated. 15. IDB FinancinG. No Owner or any other person claiming by or under an Owner with respect to a Parcel 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 provisions of Section 103 of the Internal Revenue Code of 1954, as amended, and the rules and regulations thereunder. -37- 16. hA_gJLhg_L~. 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 Corporation, general partner By: By: TIMOTHY J. CALDWELL, President ROGER A. MOHRHOFF, general partner -38- EXHIBIT "B" TO DECLARATION S~OPPING CENTER LEGAL DESCRIPTION THAT PORTION OF SECTIONS 2, AND I I, TOWNSHIP 14 SOUTH, RANGE 2 WEST, SAN BERNARDINO MERIDIAN ACCORDING TO UNITED STATES GOVERNMENT SURVEY APPROVED SEPTEMBER I I, 1§79, ALSO BEING A PORTION OF PARCEL I AS DESCRIBED IN DEED TO THE COUNTY OF SAN DIEGO RECORDED OCTOBER :31, 1980 AT FILE/PAGE NO. 80-365974 OF OFFICIAL RECORDS AND ALL OF' LOT5 I THROUGH I0 INCLUSIVE OF COUNTY OF 5AN DIEGO TRACT NO. 4107, INCLUDING WOODSET LANE A5 CLOSED TO PUBLIC USE BY ORDER OF THE COUNCIL OF THE CITY OF POWAY ON MAY 20, 19§6, ACCORDING TO MAP '1HEI~LOF NO. 10250, FILED IN 11-IE OFf: ICE OF l HE COUN1Y RECORDER OF SAN DIEGO COUNTY ON NOVEMBER 6, 1981, ALL IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE CENTERLINE'OF COUNTY OF SAN DIEGO ROAD SURVEY NO. 1859-2 (POMERADO ROAD), ON FILE IN THE OFF ICE OF THE COUNTY ENGINEER OF 5AID COUNTY WITH THE SOUTH LINE OF 5AID SECTION 2, 5AID INTERSECTION BEARS SOUTH 86-37-04 EA5T, 1309.78 FEET FROM THE SOUTHWEST CORNER OF SAID SECTION; THENCE ALONG 5AID 50UTHLINE 50UTH 86-37-04 EAST, 51.04 FEET TO THE POINT OF BEGINNING AND A LINE THAT IS PARALLEL WITH AND 51.00 FEET EASTERLY MEASURED AT RIGHT ANGLES FROkl THE CENTERLINE OF SAID ROAD SURVEY NO. 1859--2; THENCE ALONG 5AID PARALLEL LINE NORTH 1-18-56 EAST, 1.36 FEET TO AN ANGLE THEREIN; THENCE CONTINUING ALONG A LINE THAT 15 PARALLEL WITH THE CENTERLINE OF SAID ROAD SURVEY NO. 1859-2 AND 51.00 FEET ~. ,. EASTERLY MEASURED AT RIGHT ANGLES FROM 5AID CENTERLINE NORTH I-0~- 35 EAST, 956.59 FEET TO THE BEGINNING OF A TANGENT 1649.00 FOOT "" RADIUS CURVE CONCAVE EASTERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 12-46-40 A DISTANCE OF 367.74 FEET TO THE SOUTHWEST CORNER OF LOT 234. ACCORDING TO MAP THEREOF NO. 8885, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY ON JUNE 7, 1978 THENCE ALONG THE SOUTH LINE OF 5AID LOT NO. 234 50UTH 86-50-15 EAST, 297.72 FEET TO THE 50UTHEASTERLY SIDELINE OF TWIN PEAK5 ROAD (FORMERLY C/¢JINO DEL NORTE) (126.00 FEET WIDE) AS DESCRIBED IN DEED TO THE COUNTY OF SAN DIEGO RECORDED OCTOBER 30, I980 AT FILE/PAGE NO. 80-363497 OF OFFICIAL RECORDS, 5AID POINT BEING IN THE ARC OF A 1437.00 FOOT RADIUS CURVE CONCAVE SOUTHWESTERLY, A RADIAL LINE TO SAID POINT BEARS NORTH 49-44-26 EAST; THENCE SOUTHEASTERLY ALONG SAID SOUTHWESTERLY SIDELINE THROUGH A CENTRAL ! EXHIBIT "A" ANGLE OF 3-32-05 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 SAIDISOUTHWESTERLY SIDELINE AT RIGHT ANGLES SOUTH 53-16-31 WEST, 72.63 FEET THE THE BEOINNING OF A TANGENT 850.00 FOOT RADIUS CURVE CONCAVE SOUTHEASTERLY; THENCE ' SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 2Zl-Zl6-2Zl 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; THENCE LEAVING 5AID 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 FOOT RADIUS CURVE CONCAVE SOUTHWESTERLY, A RADIAL LINE TO SAID POINT BEARS NORTH 61-35-0,.5 EAST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 1-43-39 A DISTANCE OF 31.66 FEET TO AN INTERSECTION WITH A NON-TANGENT 939.00 FOOT RADIUS CONCAVE NORTHERLY, A RADIAL LINE TO SAID POINT FROI"I SAID 1050.00 FOOT RADIUS CURVE BEARS NORTH 63-10-44 EAST AND A RADIAL LINE TO 5AID POINT FROI'I SAID 939.00 FOOT RADIUS CURVE BEARS SOUTH 24-14-04 EAST; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID 939.00 FOOT 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 FOOT RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE CLOCKWISE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 92-00-00 A DISTANCE OF 40.14 FEET; THENCE TANGENT TO SAID CURVE NORTH I-18-56 EAST, 95.56 FEET TO THE POINT OF BEGINNING. NON-DISTURBANCE AGREEMENT THIS NON-DISTURBANCE AGREEMENT is made as of the day of , 1987, by and between the POWAY REDEVELOPMENT AGENCY, a public body organized and existing under Chapter 2 of the Community Redevelopment Law of the State of California, hereinafter referred to as the "Agency," and . /! . h.reinaft.r referred to as ~"Tenant." A. Agency is a party to that certain Disposition and Development Agreement dated February 9, 1986 a a,.~._~.~ by First Amendment To Disposition And Development A~reem.ent dated , 19~87_~ ( 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 property 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 reference herein. Said real property described in Exhibit A is hereinafter referred to as the "Subject Property." B. Tenant is the tenant under a lease · dated , 1986 as .. ame~n_d~ed b~v _le_ase amendment _d~ed · 1987 (hereinafter referred to as the "Lease"), where R and R. Par tner s-Poway, a California 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, safeguards and EXHIBIT "B" 2/018/065217-0003/5 2/17/87 .. obligations with respect to their '~nterests and to further provide for various contingencies as hereinafter set forth. NOW, THEREFORE, in consideration of the foregoing and of the mutual agreement ol 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 Portion" in the DDA pursuant to Section 616 of the DDA or 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 thereafter 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 successors or assigns be liable for or bound by any payment of rent or additional rent made by Tenant to Landlord or any such previous lessor for more than one (1) -2- month in advance nor for any payment of ~ security deposit to auch landlord or previous lessor. 2. Agency agrees that, prior to taking any proceedings to enforce any rights under the DDA which rights include the conveyance of the Subject Property 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 auch 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, directly 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 c(/ntained herein shall be deemed an amendment or modification of any provision contained in the Lease, including, without limiting the generality of the foregoing, 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, transferees and assigns. -3- IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first herein- above set forth. POWAY REDEVELOPMENT AGENCY a California public body By: By: "Agency" 4 "Tenant" (TO BE NOTARIALL¥ ACKNOWLEDGED) -4- !il EXHIBIT "D" 767 mzmiTOU engineering company AGENCY PORTION TiIAT PORTION OF-SECTIONS 2 AND 11, TOWNSHIP lq SOUTH, RANGE Z WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO UNITED STATES GOVERNMENT SURVEY, APPROVED SEPTEMBER 11, 1879, ALSO BEING A PORTION OF PARCEL 1 AS DESCRIBED IN DEED TO THE COUNTY OF SAN DIEGO RECORDED OCTOBER 31, 1980, AT FILE/PAGE N6. 80-36597q, OFFICIAL RECORDS, DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE CENTERLINE OF POMERADO ROAD WITH THE SOUTH LINE OF SAID SECTION 2, AS SHOWN ON RECORD OF SURVEY MAP NO. 6563, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY ON JULY 21, 1965, SAID POINT BEARS SOUTH 86-37-0q EAST, 129q.08 FEET (RECORD OF SURVEY NO 6563 = SOUTH 86-37-~5 EAST, 129~.88 FEET) FROM THE SOUTHWEST CORNER OF SAID SECTION 2; THENCE ALONG THE SOUTH LINE OF SAID SECTION 2 SOUTH 86-37-Oq EAST, q8-73 FEET (DEED = SOUTH 8%-37-q5 EAST, q9.05 FEET) TO A LINE THAT IS PARALLEL WI.TH A~D 33.00 FEET EASTERLY~ MEASURED AT RIGHT ANGLES FROM THE CENTERLINE OF ROAD SURVEY NO. 1859-2, ON FILE IN THE OFFICE OF THE COUNTY ENGINEER; THENCE LEAVING SAID SOUTH LINE ALONG SAID PARALLEL LINE NORTH 1-O5-35 EAST, 523.66 FEET ( DEED NORTH 1-05-02 EAST, '523.08 FEET); THENCE LEAVING SAID PARALLEL LINE SOUTH 88-5q-25 EAST (DEED = SOUT~ 88-5q-58 EAST),185.qO FEET; THENCE SOUTH 7q-19-q3 EAST (DEED = SOUTH 7q-19-10 EAST) 118.~o FEET;THENCE NORTH 51-q3-07 EAST (DEED NORTH 51-q3-qO EAST), 138.8q FEET TO AN ANGLE POINT IN THE BOUNDARY OF COUNTY OF SAN DIEGO ?RACT NO. q107, AS SHOWN ON MAP THEREOF NO. 10258, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY ON NOVEMBER 6, 1981; THENCE ALONG THE BOUNDARY OF SAID MAP NO. 10258, SOUTH q6-10-53 EAST, 69.30 FEET AND CONTINUING ALONG SAID BOUNDARY SOUTH EAST, 72.50 FEET AND NORTH 83-ql-27 EAST, 173.00 FEET AND NORTH 12-13-51 EAST, 198.52 FEET AND NORTH 53-16-31 EAST, 5q.58 FEET TO THE SOUTHWESTERLY SIDELINE OF TWIN PEAKS ROAD EXHIBIT "Et' 767 mAnlTOU engineering company Agency Portion ~ ~.~'.~F. 29-87 (FORHERLY CAMINO DEL NORTE) (126.00 FEET WIDE); THENCE LEAVING SAID TRACT BOUNDARY ALONG SAID SOUTHWESTERLY SIDELINE SOUTH 36-~3-29 EAST, ~q6.25 FEET TO THE BEGINNING OF A TANGENT 1863.00 FOOT RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 4-15-59 A DISTANCE OF 138.72 FEET TO A POINT OF CUSP WITH A 25.00 FOOT RADIUS CURVE CONCAVE SOUTHERLY, A RADIAL LINE THROUGH SAID POINT OF CUSP BEARS NORTH q9-00-32 EAST; THENCE LEAVING SAID 1863.00 FOOT RADIUS CURVE COUNTERCLOCKWISE ALONG THE ARC OF SAID 25.00 FOOT RADIUS CURVE THROUGH A CENTRAL ANGLE OF 87-30=39 A DISTnNCE OF 3R.1R FEET; TIIENCE TANGENT TO SAID CURVE SOUTH 51-29-53 WEST, q82.02 FEET TO TIlE UEGINNING OF A TANGENT 1057.OO FOOT RADIUS CURVE CONCAVE NORTHWESTERLY; THENCE SOUTHWESTERLY AND WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 37-q9-O3 A DISTANCE OF 697.66 FEET; THENCE TANGENT TO SAID CURVE SOUTH 89-18-56 WEST, 56.27 FEET TO THE BEGINNING OF A TANGENT 25.00 FOOT RADIUS CURVE CONCAVE SOUTHEASTERLY; THENCE COUNTERCLOCKWISE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 88-00-00 A DISTANCE OF 38.q0 FEET, TO A LINE TIIAT IS PARALLEL WITH AND 51.00 FEET EASTERLY, MEASURED AT RIGHT ANGLES FROM THE CENTERLINE OF THE ABOVEMENTIONED COUNTY OF SAN DIEGO ROAD SORVEY NO. 1859-2; THENCE PARALLEL WITH SAID CENTERLINE -~ SOUTH 1-18-56 WEST (ROAD SURVEY NO. 1859-2 = SOUTH 1-18-08 WEST), 503.qq FEET; THENCE AT RIGHT ANGLES NORTH 88-q1-Oq ' WEST, 60.ql FEET TO THE ABOVEHENTIONED CENTERLtNE OF POHERADO ROAD AS SHOWN ON RECORD OF SURVEY NO. 6563; THENCE ALONG SAID CENTERLINE NORTH O-50-51 EAST (RECORD OF SURVEY NO. 6563 = NORTH O-50-qO EAST) 769.52 FEET TO THE POINT OF BEGINNING. - 2 -