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
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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."
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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
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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
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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."
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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"
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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"
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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
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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.
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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
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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,
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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.
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(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
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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;
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(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.
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(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
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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.
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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
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(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.
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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
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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
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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.
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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)
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!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.
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