HomeMy WebLinkAboutCT 01-09; La Costa Town Square Commercial; Tentative Map (CT)
La Costa Town Square Shopping Center Carlsbad, CA
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RECORDING REQUESTED BY:
Property Development Centers LLC
WHEN RECORDED, RETURN TO:
Property Development Centers LLC
c/o Safeway Inc.
11555 Dublin Canyon Road
Pleasanton, CA 94588-3229
Attn: Real Estate Law Department
(RE: 88-2724)
DECLARATION OF EASEMENTS
WITH COVENANTS AND RESTRICTIONS
AFFECTING LAND
La Costa Town Square ECR #88-2724
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LEGAL23911173.6
TABLE OF CONTENTS
1. RECITALS. ............................................................................................................................. 1
2. DECLARATION. .................................................................................................................... 2
3. BUILDING AREA, GROSS LEASABLE AREA, COMMON AREA DEFINED;
EXPANSION OF SHOPPING CENTER. ...................................................................................... 3
4. USE. ........................................................................................................................................ 4
5. SUPERMARKET LOT EXCLUSIVES. ............................................................................... 11
6. BUILDINGS. ......................................................................................................................... 13
7. USE OF COMMON AREA. ................................................................................................. 15
8. SHOPPING CENTER SIGNAGE. ....................................................................................... 22
9. DEVELOPMENT. ................................................................................................................ 24
10. CONSTRUCTION. ............................................................................................................... 26
11. COMMON AREA MAINTENANCE. ................................................................................. 29
12. INDEMNIFICATION; INSURANCE .................................................................................. 35
13. REAL ESTATE TAXES AND ASSESSMENTS. ............................................................... 38
14. DAMAGE AND DESTRUCTION ....................................................................................... 38
15. EMINENT DOMAIN. ........................................................................................................... 39
16. DEFAULT. ............................................................................................................................ 40
17. CANCELLATION; MODIFICATION; DURATION. ......................................................... 42
18. OWNERS AND SUCCESSORS. ......................................................................................... 43
19. NOTICES. ............................................................................................................................. 44
20. MORTGAGEES AND OTHER THIRD PARTIES. ............................................................ 45
21. GENERAL PROVISIONS. ................................................................................................... 46
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DECLARATION OF EASEMENTS
WITH COVENANTS AND RESTRICTIONS AFFECTING LAND
THIS DECLARATION OF EASEMENTS WITH COVENANTS AND RESTRICTIONS
AFFECTING LAND (this “Declaration”) is made as of March _____, 2014 (the “Effective
Date”), by PROPERTY DEVELOPMENT CENTERS LLC, a Delaware limited liability
company (“Developer”), and SAFEWAY INC., a Delaware corporation (“Vons”).
1. RECITALS.
1.1 The Property. Developer is currently the fee owner of real property situated in the
City of Carlsbad, County of San Diego, State of California (the “Property”) and intends
to construct on the Property a first-class commercial shopping center (the “Shopping
Center”), substantially in the manner depicted on the site plan attached hereto as
Exhibit A (“Site Plan”). The Property is legally described on Exhibit B attached hereto
and made a part hereof. The Shopping Center has been or will be subdivided into
nineteen (19) parcels as shown on the Site Plan (each herein referred to as a “Lot” and,
collectively, the “Lots”). The Lots are depicted by the circled numbers on the Site Plan.
Where a Lot is referred to herein by number, such designation shall correspond to the Lot
designations on the Site Plan.
1.2 Supermarket Lot. Developer intends to convey to Vons, and Vons intends to
accept from Developer, either fee ownership or a leasehold interest in the portion of the
Shopping Center identified on the Site Plan as Lot 11 (“Supermarket Lot”). The
remaining eighteen (18) Lots shall sometimes be collectively referred to herein as the
“Developer Lots”.
1.3 Purpose. Developer and Vons desire that the Supermarket Lot and the Developer
Lots be developed in conjunction with each other pursuant to the entitlements, conditions,
and restrictions affecting the subject properties pursuant to the La Costa Town Square
approvals (including but not limited to City Council Resolution No. 2009-232 and City
Council Ordinance No. CS-051) and any future modifications or amendments thereto
approved by the City of Carlsbad (“City”), and desire that the Lots be subject to the
easements and the covenants, conditions and restrictions set forth in this Declaration.
1.4 Developer. The term "Developer" shall mean (a) Property Development Centers
LLC., a Delaware limited liability company, and (b) any successor to Property
Development Centers LLC by merger or acquisition of all or substantially all the assets of
Property Development Centers LLC (collectively, “PDC”) so long as PDC is the Owner
of at least one (1) Lot within the Developer Lots. The term “Developer” shall also mean
any successor Owner of a Lot or Lots within the Developer Lots to whom PDC
affirmatively assigns the rights and duties of “Developer” under this Declaration by
recording an assignment in the office of the San Diego County Recorder (the
“Recorder’s Office”). Upon the recordation of such assignment, the assignee shall
become the Developer hereunder. If PDC is no longer the Owner of at least one (1) Lot
within the Developer Lots and no such assignment has previously been recorded, then the
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rights and duties of the Developer shall automatically be deemed assigned to the Owner
of the Lot(s) within the Developer Lots that contains the most Gross Leasable Area
(defined in Section 3.2).
1.5 Vons. The term "Vons" shall mean (a) The Vons Companies, Inc., a Michigan
corporation, and (b) any successor to The Vons Companies, Inc. by merger or acquisition
of all or substantially all the assets of The Vons Companies Inc. provided that any such
entity is an Owner or lessee of the Supermarket Lot. For so long as Vons is an Owner or
lessee of the Supermarket Lot, Vons shall have the right to assign to a third party Owner
or lessee of the Supermarket Lot all or only specified portions of the rights and duties
provided to “Vons” herein.
1.6 Maintenance Director. The term “Maintenance Director” shall mean and refer
to any person or entity that manages, operates and maintains the Common Area pursuant
to Article 11.
1.7 Owner. The term “Owner” or “Owners” shall mean and refer to any person or
entity which holds fee title to any portion of the Shopping Center and any successor of
such person or entity acquiring said fee title from such person or entity unless Vons is a
lessee of at least fifty-one percent (51%) of Gross Leasable Area on the Supermarket Lot
in which event, Vons and not such Owner shall have the rights and obligations imposed
hereunder with respect to such Lot and Vons shall be deemed to be the Owner with
respect to such Lot. Except in the case of Vons, when Vons is the lessee of at least fifty-
one percent (51%) of Gross Leasable Area on the Supermarket Lot and except as may be
provided otherwise in this Declaration, the term “Owner” shall not include any lender,
trust deed beneficiary or mortgagee, nor any tenant, lessee or other Occupant of space in
the Shopping Center. In the event an Owner shall convey its interest in a Lot or any part
thereof by mortgage, deed of trust or other security instrument, none of the powers or
obligations conferred upon such Owner with respect to its Lot shall be assigned or
conveyed, but shall remain vested solely in the Owner. Reference is made to Article 20
for further provisions respecting the obligations and interests of Mortgagees and other
Third Parties, as those terms are defined therein, and reference is made to Section 18.2 for
provisions regarding multiple undivided ownership interests in a Lot.
1.8 Occupant. The term “Occupant” or “Occupants” shall mean and refer to any
person or entity from time to time entitled to the use and occupancy of any portion of a
building in the Shopping Center under an ownership right or under any lease, sublease,
assignment, license, concession, or other similar agreement.
2. DECLARATION.
In consideration that the following encumbrances shall be binding upon
Developer, Vons and all future Owners and shall attach to and run with the Lots, and
shall be for the benefit of and shall be limitations upon all Owners and Occupants, and
that all easements herein set forth shall be appurtenant to the dominant estates, and in
consideration of the promises, covenants, restrictions, easements and encumbrances
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contained herein, Developer and Vons do hereby agree that the Lots comprising the
Shopping Center are and shall be held, improved, transferred, sold, leased and conveyed
subject to this Declaration, and that this Declaration is in furtherance of a common and
uniform scheme for development of the Shopping Center, and this Declaration is intended
to enhance and protect the value and desirability of the Shopping Center as a whole and
mutually to benefit each Owner and to create mutual equitable servitudes upon each Lot
in the Shopping Center in favor of each and all other Lots to create reciprocal rights and
privity of contract and estate between all Owners, and shall be deemed to run with the
land and be a burden and a benefit to all Lots and the Owners.
3. BUILDING AREA, GROSS LEASABLE AREA, COMMON AREA DEFINED;
EXPANSION OF SHOPPING CENTER.
3.1 “Building Area” shall mean (i) those portions of the Supermarket Lot devoted
from time to time to building improvements; provided however in no event shall the
building improvements thereon exceed the maximum square footage designated for such
Lot on the Site Plan, and (ii) those portions of the Developer Lots located within the
building limit lines shown on the Site Plan. If a Fuel Station (defined in Section 4.3.3
below) shall at any time be operated in the Shopping Center as permitted under the terms
of this Declaration, in addition to any building improvements thereon, the area beneath
the canopy shall be considered Building Area for purposes of this Declaration. The
permitted Building Areas are each numbered on the Site Plan, and whenever a Building
Area is referred to herein by a number, it shall refer to the Building Area shown on the
Site Plan with the corresponding number. Without limiting the foregoing, it is
acknowledged and agreed that the Building Areas designated on the Site Plan as “Future
Shops 22,” “Future Shops 13,” Future Pad 3, and “Future Major 15” may not be
constructed; however, unless and until such areas are improved with buildings, they will
be maintained as Common Area in accordance with Section 3.3 below.
3.2 "Gross Leasable Area" shall mean the aggregate number of square feet of space
contained on each floor within a building in the Shopping Center appropriated to the
exclusive use or occupancy of an Occupant, whether or not such areas are actually leased
or occupied, measured from the exterior surface/face of the exterior walls (and extensions
thereof for openings) and from the center line of party or common walls or demising
partitions. To the extent required to be parked by Applicable Law (defined in Section
4.1), mezzanines and basements may be included in such calculation.
3.3 “Common Area” shall mean all of the Shopping Center except those portions of
the Building Area improved with buildings or other improvements or areas designated for
the exclusive use or occupancy of an Occupant. Those portions of the Building Area on
each Lot which are not from time to time used or cannot under the terms of this
Declaration be used for buildings or other improvements or areas designated for the
exclusive use or occupancy of an Occupant shall become part of the Common Area and
shall be improved, kept and maintained as Common Area in accordance with this
Declaration. An area converted to Common Area may be converted back to Building
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Area by its development as Building Area if, at the time of conversion back to Building
Area, it meets the requirements of this Declaration.
3.4 Expansion of Shopping Center. Developer shall have the right to expand the
Shopping Center by adding additional adjacent property (the “New Property”), and to
confer upon the New Property the rights, easements and benefits of this Declaration (the
“Benefits”), and to bind the New Property to the covenants, restrictions, easements and
servitudes of this Declaration (the “Burdens”), the same as if the New Property had been
included in the Shopping Center from the date this Declaration was recorded in the
Recorder’s Office; provided, however, that if PDC is no longer the Developer hereunder,
Developer must obtain the prior written approval of Vons to add New Property to the
Shopping Center. The New Property shall have the Benefits and Burdens accorded to the
Developer Lots. The addition of the New Property to the Shopping Center and this
Declaration shall be effected by the recordation of an amendment to this Declaration.
Notwithstanding the foregoing, in no event may Developer add New Property to the
Shopping Center if the effect thereof would be (i) to materially and adversely change an
Owner’s rights to use the Common Area or its access to its Lot and/or from its Lot to the
street; or (ii) to impose any additional use restrictions or building restrictions on another
Owner or Lot.
4. USE.
4.1 Use in General. Subject to the limitations set forth in this Article 4, the Shopping
Center and each individual Lot within the Shopping Center shall be used in conformance
with Applicable Law and the terms of this Declaration for the construction, operation and
maintenance of business, commercial, professional and mercantile (retail and service)
establishments and related facilities, including common and vehicular parking areas of
the type usually found in first-class shopping centers of comparable size in the Carlsbad-
San Diego-San Marcos area (“Substantially Similar Shopping Centers”). As used
herein, the term "Applicable Law" means any or all applicable laws, rules, regulations,
statutes, orders, ordinances, requirements (including, those imposed by recorded
agreements), and those approvals by the City (including those approvals identified in
Section 1.3 above, as they may be amended or modified by the City), or any
governmental entity, agency or political subdivision, as presently existing or as may
hereafter be amended or adopted. This Declaration is an instrument that defines rights and
obligations solely among the Owners; it does not – and cannot – confer any rights of use
or any development standards relative to Applicable Law. Thus, even where a use may
be contemplated by the text of this Declaration (as, for example, in Sections 4.5.2, 4.6,
4.7, 4.8 and 10.2, and Article 5) or where minimum or maximum development standards
are established as between the Owners through this Declaration (as, for example, in
Section 8.1 and Articles 6 and 7), all uses and physical improvements must still comply
fully with Applicable Law, including those approvals identified in Section 1.3 above, as
determined by the City.
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4.2 Nuisances and Prohibited Uses. No portion of the Shopping Center shall be used
by any Owner or any Occupant for (i) the conduct of any illegal, offensive, noisy or
dangerous trade, business, activity or occupation (other than normal and customary noise
and activity emanating from the operation of a health club and/or fitness center), (ii) any
activity which physically interferes with the business of any other Owner or other
Occupants, or (iii) any other use not commonly found in Substantially Similar Shopping
Centers, well maintained in accordance with the standards of this Declaration, unless
otherwise expressly permitted herein (collectively, “Prohibited Uses”). Without limiting
the generality of the foregoing, Prohibited Uses shall include the following:
4.2.1 Any use that produces or releases obnoxious odor (other than normal and
customary odors emanating from the operation of the business on the Supermarket
Lot, Restaurants (defined in Section 4.7 below), health clubs and/or fitness centers,
and coffee shops);
4.2.2 Any use that produces or releases noxious, toxic, caustic, or corrosive fuel
or gas (except that this restriction does not prohibit the sale or rental of pre-filled
propane tanks or a Fuel Station from dispensing fuels);
4.2.3 Any use that produces or releases dust, dirt, or fly ash in excessive
quantities;
4.2.4 Any unusual fire, explosion, or other damaging or dangerous incendiary
hazard, including the storage, display or sale of explosives or fireworks (except as
otherwise provided in Section 7.13.2);
4.2.5 Any warehouse, storage facility or any assembling, manufacturing,
distilling, refining, smelting, agricultural or mining operation;
4.2.6 Any labor camp, junk yard, or stock yard (except that this provision shall
not prohibit the temporary use of construction trailers during any periods of
ongoing construction, reconstruction or maintenance);
4.2.7 Any fire, going out of business, relocation, bankruptcy or similar sales
(unless pursuant to court order);
4.2.8 The exterior display, sale, lease or repair of new or used automobiles,
trucks, trailers, boats or recreational vehicles (provided that this shall not preclude
automobile sales and leasing so long as no vehicles are stored or displayed in the
Common Area of the Shopping Center);
4.2.9 Any car wash (except if operated in connection with a gasoline or service
station) or automotive maintenance or repair facility;
4.2.10 Any animal raising or animal boarding facilities, except that this
restriction shall not be deemed to prohibit: (i) pet food and/or pet supply shops, (ii)
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pet grooming services and/or any veterinary or boarding services that are provided
as an ancillary service in connection with the primary operation of a pet
food/supply shop, and (iii) up to one (1) veterinary clinic not to exceed five
thousand (5,000) square feet of Gross Leasable Area; provided, however, that in no
event may any such clinic be located in Building Areas 8, 9, 15, 16 or 17 as shown
on the Site Plan;
4.2.11 Any funeral home or mortuary;
4.2.12 Any adult theater, adult entertainment facility, or adult bookstore, or any
other establishment engaged in the business of selling, exhibiting or delivering
pornographic or obscene materials;
4.2.13 Any so-called "head shop" or establishment which stocks, displays, or sells
merchandise or material commonly used or intended for use with, or to consume,
any narcotic or other illegal, controlled substance;
4.2.14 Any motel or hotel use or residential use of any kind including, any mobile
home park or trailer court, living quarters, sleeping apartments or lodging rooms;
4.2.15 Any church, temple, synagogue, mosque or other place of religious
worship; or any school, day care center or reading room associated with or
otherwise related thereto;
4.2.16 Any dry cleaner with an on-premises plant (except so-called “green” dry
cleaners). For purposes hereof, a “green” dry cleaner is a dry cleaner that does not
use in its operations any solvents containing tetrachloroethene ("perc" or PCE),
trichloroethene (TCE) or other chlorinated hydrocarbons and whose proposed
occupancy in the Shopping Center has been approved in writing by Developer and
Vons; and
4.2.17 Any use not in compliance with Applicable Law, including those
approvals identified in Section 1.3 above.
4.3 Hazardous Materials.
4.3.1 No Owner shall use, or permit the use of, Hazardous Materials (defined
below) on, about, under or in its Lot, or the balance of the Shopping Center, other
than Hazardous Materials (such as household cleaning supplies or propane tanks)
that are customarily sold by, or are customarily used in, the maintenance and
operation of business uses permitted hereunder, provided that any such use shall at
all times be in compliance with Applicable Law. The term "Hazardous
Materials" means any petroleum products and fractions thereof, asbestos, asbestos
containing materials, urea formaldehyde, polychlorinated biphenyls, radioactive
materials and all other dangerous, toxic or hazardous pollutants, contaminants,
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chemicals, materials, substances and wastes listed or identified in, or regulated by,
any Applicable Law.
4.3.2 Each Owner shall indemnify, defend, protect and hold harmless Developer
and each of the other Owners and their respective Occupants and the Maintenance
Director (“Indemnified Persons”) from and against Third-Party Claims (defined
below) arising out of or resulting from any Hazardous Materials released, spilled,
treated, transported or disposed of by the indemnifying Owner or its Occupants, or
an agent, employee or contractor of the indemnifying Owner or any of its
Occupants in the course of the indemnifying Owner’s operations or any of its
Occupant’s operations in the Shopping Center. The Maintenance Director agrees
to indemnify, defend, protect and hold harmless the Owners and their respective
Occupants (also, in this context, “Indemnified Persons”) from Third-Party Claims
arising out of or resulting from any Hazardous Materials released, spilled, treated,
transported or disposed of by the Maintenance Director or an agent, employee or
contractor of the Maintenance Director in the course of the carrying out of the
Maintenance Director’s obligations under this Declaration. “Third Party Claims”
mean all claims by a third party (including, without limitation, any governmental
agency or authority) against an Indemnified Person, together with (i) the
Indemnified Person’s liability for damages to the third party, and (ii) the reasonable
costs and expenses (including reasonable attorneys’ fees) that the Indemnified
Person incurs in responding to and defending against the claims. For purposes of
the definition of Third-Party Claims, “third party” means any person other than (a)
the Indemnified Persons, (b) the respective employees, officers, directors, partners,
members, owners, subsidiaries, divisions, and any affiliates of the Indemnified
Persons, and (c) the respective successors, heirs and assigns of the persons or
entities described in clauses (a) and (b) of this sentence.
4.3.3 Notwithstanding any provision herein to the contrary including, without
limitation, Sections 4.2.2 and 4.2.4, a gasoline or service station dispensing fuels
and/or the sale or rental of pre-filled propane tanks (a “Fuel Station”) shall be
permitted in the Shopping Center provided that (i) there shall be no more than one
(1) Fuel Station in the Shopping Center, (ii) the Fuel Station shall be located on Lot
8 of the Shopping Center, and (iii) any such use shall be conducted in accordance
with Applicable Law and any rules and regulations of the Shopping Center.
4.4 Preservation of Shopping Center Character. Consistent with the intention of
Developer and Vons to operate a first-class, supermarket-anchored shopping center, and
to preserve the Shopping Center’s appeal to the surrounding community and protect each
Owner’s investment in the Shopping Center, for so long as Vons is operating a
supermarket in the Shopping Center, no part of the Shopping Center may be used or
occupied by any Occupant which: (i) routinely advertises discounted prices, except for a
drugstore or supermarket, or any retail component of a health club and/or fitness center;
(ii) routinely sells its inventory from cartons; (iii) routinely sells, and derives at least ten
percent (10%) of its revenue from the sale of, “seconds” or damaged or defective
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merchandise, irregular, surplus, discontinued, overstocked or out-of-fashion stock
(provided that stores substantially similar or higher in quality to “Tuesday Morning” shall
not be deemed to be a violation of the foregoing prohibition); (iv) routinely sells and
derives at least ten percent (10%) of its revenue from the sale of second-hand goods such
as a Goodwill store (provided that antique and vintage clothing stores or the sale of such
merchandise by stores substantially similar or higher in quality to “Savvy Seconds” and
“Play it Again Sports” shall not be deemed to be a violation of the foregoing prohibition);
(v) routinely sells or advertises that it offers for sale all or a majority of its merchandise
for a dollar or under a dollar; or (vi) identifies itself as an "outlet" store (provided that
stores substantially similar or higher in quality to “Nordstrom Rack” shall not be deemed
to be a violation of the foregoing prohibition). Notwithstanding anything to the contrary
hereinabove set forth, off-price retailers similar or higher in quality to “Ross Dress for
Less”, “Marshall’s” and “Stein Mart” shall not be deemed to violate the provisions of this
Section 4.4. Additionally, no space in the Shopping Center may be occupied by any
Occupant which: (a) advertises "payday loans" or equivalent services, or (b) derives more
than ten percent (10%) of its revenue from loans with an initial maturity of ninety (90)
days or less, or from check-cashing services; provided, however, that the provision of
such services by traditional financial institutions such as banks and credit unions shall not
be deemed to be a violation of such prohibitions.
4.5 Entertainment or Recreational Facilities.
4.5.1 Except as provided in Section 4.5.2, no part of the Developer Lots shall be
devoted to any billiard parlor, pool hall, carnival, circus, bowling alley, skating
rink, dance hall, theater, concert hall, meeting hall, discotheque, night club,
amusement park or center, theater, electronic, video and/or mechanical game room
or arcade (which shall be defined as a facility containing more than four [4]
electronic, video and/or mechanical games), gymnasium, health or aerobic spa or
studio, massage parlor (excepting only from this prohibition, the provision or bona
fide therapeutic massage services by a day spa, chiropractor, physical therapist, or a
first-class massage business typically found in Substantially Similar Shopping
Centers), gambling facility or operation (including, but not limited to an off-track
or sports betting parlor; table games such as blackjack or poker; slot machines,
video poker/blackjack/keno machines or similar devices or a bingo parlor); any bar
or tavern, cocktail lounge, nightclub or any other facility serving alcoholic
beverages for on-premises consumption or allowing the on-premises consumption
of alcoholic beverages excepting only from this prohibition the sale of alcoholic
beverages as an incidental (defined below) part of the food service operation of a
Restaurant (which Restaurant nevertheless will be subject to the restrictions
contained in Section 4.7).
4.5.2 Notwithstanding anything in Section 4.5.1 to the contrary, the following
shall be permitted:
(a) government-sponsored gambling activities and charitable gambling
activities, so long as such activities are incidental to the primary
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business operation being conducted by the Occupant of the subject
premises;
(b) one (1) full service health club or fitness center with accompanying
ancillary uses (such as massage and aerobics classes), such as, by way
of example only, 24-Hour Fitness or L.A. Fitness, provided that such
health club or fitness center is located in the Building identified on the
Site Plan as Building 25, and does not exceed fifty thousand (50,000)
square feet of Gross Leasable Area;
(c) a personal training facility (such as by way of example only, Curves for
Women, 123 Fit and Fitness Together) or a physical fitness facility
primarily utilizing private trainers, a karate or martial arts studio, and a
dance or yoga studio provided that the uses specified in this Section
4.5.2(c) (i) are located within the buildings on Building Areas 17, 6, 7,
9, 23 and Future Building Areas 13 and 22 (collectively, the "La Costa
Shops Space"), (ii) shall in no event exceed six thousand (6,000) square
feet of Gross Leasable Area in the aggregate, and (iii) subject to any
exclusvie use rights then in favor of 24-Hour Fitness, its successors and
assigns, pursuant to the terms of that certain Lease with Developer
dated July 24, 2013 (the “Fitness Lease”), as the same may be modified
and/or extended; and
(d) one (1) sports or entertainment-themed bar/Restaurant (such as Buffalo
Wild Wings, Champps, Twin Peaks, Dave and Buster’s) shall be
permitted so long as it is located within one of the buildings on Building
Areas 1, 2, 4, 10, 11 or Future Building Areas 3, 13 or 22. Further, if
full table service is provided, then the square footage of such
bar/Restaurant shall be counted toward the maximum aggregate of
20,000 square feet devoted to full-service Restaurant use as set forth
below in Section 4.7 below.
4.6 Training or Educational Facilities. Except as hereinafter provided, no part of the
Developer Lots shall be devoted to training or educational facilities. For purposes of this
Declaration, “training or educational facilities” include a library, beauty school, barber
college, place of instruction, or any other operation catering primarily to students or
trainees rather than to customers, but excludes employee training by Owners or
Occupants incidental to the conduct of their businesses within the Shopping Center.
Notwithstanding the foregoing, learning center and weight loss facilities (such as by way
of example only, those operated under the trade names “SCORE!”, “Kaplan,” and “Jennie
Craig”) may be operated within the La Costa Shops Space provided that such uses shall in
no event exceed four thousand (4,000) square feet of Gross Leasable Area in the
aggregate.
4.7 Restaurants. No part of the Developer Lots within the lightly shaded areas shown
on Exhibit E (collectively, the “Restaurant-Restricted Area”) shall be devoted to the
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use or operation of any Restaurant. Provided that all required permits and approvals have
been received by the operator of a Restaurant, the sale of liquor, beer and wine for on-
premises consumption shall be permitted within such Restaurant, but only as an
incidental part of its food service operation. As used herein, “Restaurant” means any
business establishment primarily devoted to the sale of prepared food and/or refreshments
for on-site consumption or take-out, which usage shall include, without limitation, any
restaurant with full or partial table service (ordering and/or serving), any “fast food” or
“fast casual” restaurant and a business selling food at a counter for on-site or off-site
consumption. Notwithstanding the foregoing, Restaurants with full table service (where
orders are placed at table) may be operated only in the buildings on Building Area 1,
Building Area 2, and Future Building Area 22 provided that the aggregate Gross Leasable
Area of all such Restaurants shall not exceed twenty thousand (20,000) square feet.
4.8 Business and Retail Office Uses. No part of the Developer Lots shall be used for
(i) any government office use or business office use, or (ii) any retail office use in excess
of five thousand (5,000) square feet of Gross Leasable Area individually and fifteen
thousand (15,000) square feet of Gross Leasable Area in the aggregate. As used herein,
“business office use” shall mean an office which does not provide services directly to
consumers; and “retail office use” shall mean an office which provides services directly
to consumers, including but not limited to real estate, stock brokerage and title
companies, dental and medical offices (subject to the limitations set forth in Section 5.1)
and travel and insurance agencies. The limitations set forth in this Section 4.8 shall not
apply to a financial institution or to space used by an Occupant for administrative
purposes incidental to its business.
4.9 Big Box Restriction. No Owner of a Lot shall enter into a lease with any tenant
that (i) requires more than one hundred thousand (100,000) square feet, (ii) allocates more
than ten percent (10%) of the floor space to non-taxable items, and (iii) offers more than
thirty thousand (30,000) separate stock-keeping units or such other lesser amount as
typically offered by big-box retailers, without first obtaining from the City Council of the
City an amendment to City Council Ordinance No. CS-051. The City shall have the right,
but not the obligation, to enforce the restriction on use set forth in this Section 4.9.
4.10 Protection of Water Quality. The Maintenance Director and the Owner of each
Lot shall:
4.10.1 Establish or work with established disposal programs for the removal and
proper disposal of any toxic or hazardous waste products from the Shopping Center.
4.10.2 Not discharge or cause to be discharged any toxic chemicals or
hydrocarbon compounds, such as gasoline, motor oil, antifreeze, solvents, paints, paint thinners,
wood preservatives and other such fluids, into any public or private street or into any storm drain
or storm drain conveyance.
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4.10.3 Use and/or dispose of all pesticides, fungicides, herbicides, insecticides,
fertilizers, and other such chemical treatments in accordance with federal, State, County, and City
requirements as prescribed on their respective containers.
4.10.4 Employ best management practices to eliminate or reduce surface
pollutants at all times, including when planning any changes to the landscaping and/or surface
improvements. Best management practices include but are not limited to pollution treatment
practices or devices, erosion control to prevent silt runoff during construction, general
housekeeping practices, pollution prevention and educational practices, maintenance procedures,
and other management practices or devices to prevent or reduce the discharge of pollutants to
stormwater, receiving water or stormwater conveyance system to the maximum extent practicable.
The Owner of any Lot shall notify prospective tenants of the requirements of this Section 4.10.
The City shall have the right, but not the obligation to enforce the restrictions on use set forth in
this Section 4.10.
5. SUPERMARKET LOT EXCLUSIVES.
5.1 Supermarket Lot Exclusive Rights. Developer recognizes that Vons is locating
its business in the Shopping Center and foregoing other opportunities based on the
expectation that, except as expressly set forth in Section 5.2, Vons will have the sole and
exclusive right in the Shopping Center to sell the items and provide the services described
in this Section 5.1. In recognition and consideration of this expectation, Developer
covenants that, except as provided hereinafter in Section 5.2, the store or stores on the
Supermarket Lot shall have the sole and exclusive right in the Shopping Center to (i) sell
food (for purposes of this Section 5.1, the term “food” includes alcoholic beverages) for
off-premises consumption; pet foods; freshly brewed coffee, espresso, coffee-based
drinks or espresso-based coffee drinks (“Coffee Drinks”); and (ii) sell merchandise
which, under the laws of the state in which the Shopping Center is located, is required to
be dispensed by or under the supervision of a registered or licensed pharmacist
(“Prescription Pharmacy Merchandise”). Further, no portion of the Shopping Center
other than the Supermarket Parcel shall be used for a business, clinic or facility that (a)
performs or sells routine, diagnostic or prognostic testing or screening services of the type
conducted by medical laboratories for members of the public, or takes, collects or
receives specimens or samples for such purposes (“Medical Testing Facility”).
5.2 Exceptions. Notwithstanding anything to the contrary set forth in Section 5.1, the
provisions of said Section 5.1 shall not prohibit the following:
5.2.1 Occupants of the Developer Lots (other than a Drugstore, as such term is
defined in Section 5.2.8 below) whose rights are addressed in said Section) from
devoting up to, but not more than, the lesser of (i) five hundred (500) square feet
of sales area (including aisle space adjacent thereto), or (ii) sales area (including
aisle space adjacent thereto) of up to five percent (5%) of the premises within
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which it operates, to the sale of food (but, not alcoholic beverages) for off-
premises consumption.
5.2.2 A Restaurant from selling food prepared on premises for off-premises
consumption and/or Coffee Drinks, subject, however, to the provisions of
Section 4.7.
5.2.3 A convenience store of up to three thousand five hundred (3,500) square
feet of Gross Leasable Area operated as part of a Fuel Station operation.
5.2.4 Up to two (2) shops primarily devoted to the sale of Coffee Drinks and/or
gourmet tea beverages, freshly ground or whole bean coffee and/or tea provided
that such shops shall in no event contain more than two thousand (2,000) square
feet of Gross Leasable Area each (excluding outside seating areas), or be located
within the Restaurant-Restricted Area.
5.2.5 One (1) bagel shop or bakery containing no more than one thousand five
hundred (1,500) square feet of Gross Leasable Area located outside of the
Restaurant-Restricted Area.
5.2.6 One (1) pet food/supply store provided that (i) such store does not contain
more than thirteen thousand (13,000) square feet of Gross Leasable Area, (ii) any
provision of veterinary or boarding services shall be ancillary to the sale of pet
food and supplies, and (iii) all kennels, runs and pens shall be located inside the
store.
5.2.7 Any health club or fitness center permitted under Section 4.5.2 above from
selling Coffee Drinks and sports drinks as an ancillary amenity to its customers.
5.2.8 A Drugstore operating on the portion of the Shopping Center identified on
the Site Plan as Lot 5 (“Drugstore Premises”) from (i) selling Prescription
Pharmacy Merchandise, (ii) administering vaccinations or inoculations to
members of the public and conducting such screenings as are typically conducted
by a pharmacist, (iii) devoting up to, but no more than, one thousand five hundred
(1,500) square feet of sales area (including aisle space adjacent thereto) to the sale
of food for off-premises consumption (however, in no event shall the sale of fresh
and/or frozen meat, poultry, fish or produce, fresh bakery items, or items sold in a
service deli for off-premises consumption be permitted [excluding only pre-
packaged bakery items and pre-packaged lunch meats and hot dogs for off-
premises consumption]). Notwithstanding the immediately foregoing, there shall
be no restriction on, and the foregoing space limitation shall not apply to, the sale
of candy, gum, mints, single-serving snack foods, water, soft drinks or other non-
alcoholic beverages, ice cream or other frozen novelties, nutritional supplements,
vitamins, baby food or baby formula, or diet aids, (iv) devoting up to, but no more
than, one thousand five hundred (1,500) square feet of sales area (including aisle
space adjacent thereto) to the sale of beer, wine, and distilled spirits, if permitted
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by law, and (v) offering any of the following, notwithstanding the prohibition on
performing or selling diagnostic or prognostic testing or screening services
pursuant to Section 5.1: (1) taking throat swabs to test for strep throat; (2) the sale
from the Drugstore Premises of diagnostic or prognostic devices, such as
thermometers or blood pressure cuffs, or home testing kits, such as for pregnancy,
or the sale of durable medical goods, such as crutches or bandages; and (3) the
operation of an automated/customer operated blood pressure machine on the
Drugstore Premises. A “Drugstore” means a first-class retail store primarily
devoted to the sale of Prescription Pharmacy Merchandise and health and beauty
care products having a merchandise mix comparable to that of a national or major
regional drugstore chain such as CVS, Rite Aid and Walgreens located in
Substantially Similar Shopping Centers, and containing no more than
approximately fifteen thousand (15,000) square feet of Gross Leasable Area.
5.3 Waiver. The provisions of Section 5.1 are for the benefit of Vons, and may be
waived only by Vons, in its sole discretion; provided, however, Developer shall have the
right to terminate the exclusive rights contained in this Section 5.1 to the extent they
pertain to an Applicable Business (defined below) if (a) the business (i.e., the sale of
food, or the sale of Coffee Drinks, or the sale of Prescription Pharmacy Merchandise, or
the sale of pet food, or the operation of a Medical Testing Facility) that is the subject of
the exclusive (each, an “Applicable Business”) does not commence to operate on the
Supermarket Lot within three (3) years from the recordation of this Declaration for any
reason other than (i) a strike, lockout or other labor difficulty, fire or other casualty,
condemnation, war, riot, insurrection, act of God, or any other reason beyond the
reasonable control of the Owner or Occupant of the Supermarket Lot (other than
financial), or (ii) temporary closure due to the restoration, reconstruction, expansion,
alteration or remodeling of any buildings or improvements located on the Supermarket
Lot (“Excusable Event”), or (b) at any time after the Applicable Business is first
operated on the Supermarket Lot, the Applicable Business is not operated on the
Supermarket Lot for a continuous period of two (2) years or more for any reason other
than an Excusable Event. Such restrictions will again be effective as to any Applicable
Business which is thereafter operated on the Supermarket Lot, but will be subject to any
leases, assignments or subleases entered into during the period that such restrictions were
not effective.
6. BUILDINGS.
6.1 Location. No buildings shall be constructed, expanded (including, without
limitation, any so-called “pop-out”) or maintained anywhere within the Shopping Center
except within the Building Area. Canopies and canopy support columns may encroach
from the Building Area over the Common Area provided that (i) such canopies and
canopy support columns do not interfere with the normal use of the Common Area. Any
canopies and canopy support columns that encroach from the Building Area over the
Common Area will be considered part of the buildings to which they are attached and not
part of the Common Area improvements; provided, however, that although canopies and
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canopy support columns associated with drive-through or drive-up lanes shall be
considered part of the buildings to which they are attached, the area beneath such
canopies shall not be included in the calculation of Gross Leasable Area.
6.2 Design and Construction.
6.2.1 Exterior Appearance. The buildings shall be designed so that the
exterior elevation of each will be architecturally and aesthetically compatible and
so that the building foundations shall not encroach from one Lot onto another Lot.
No building or other structure on the Developer Lots shall be erected, placed,
constructed or materially altered unless the exterior appearance and coloring
thereof (including, but not limited to, elevations, height, canopy design and
dimensions and the location of other building projections) shall have been
approved by Developer and by Vons if such building or structure is located within
the Supermarket Lot Control Zone (defined in Section 9.2.3), and by the City if not
consistent with Applicable Law. Even if such approval is obtained, in no instance
shall the building exceed the height limitations set forth below or expand beyond
the building limit lines on the Site Plan delineating the permitted Building Area.
The design and construction of the buildings shall be in conformity with sound
architectural and engineering standards and the construction shall be first quality.
Developer will not approve the exterior appearance of any building unless, at a
minimum, the storefront finish of such building is anodized dark bronze or black.
Notwithstanding the foregoing, Vons shall have the right without Developer’s
approval, subject to Applicable Law, to modify the exterior appearance of the
building on the Supermarket Lot (including, the color scheme and signage) if such
modifications are to be undertaken to conform to Vons’s then current trade dress or
other company standards provided that the building, as altered, is architecturally
and aesthetically compatible with the then current design scheme of the Shopping
Center.
6.2.2 Building Signage for the Shopping Center. All exterior signage and
signage designed to be seen or primarily visible from outside the buildings on the
Shopping Center shall be restricted to identification of the businesses, services
and/or merchandise located, provided and/or sold therein, and must comply with
Applicable Law and the Sign Criteria (defined in Section 8.4). Occupants shall
also have the right to use storefront windows and doors for the posting of business
hours, governmentally required notices, advisories and warnings.
6.2.3 Building Signage on the Supermarket Lot. Vons’s initial exterior sign
package is depicted in the Sign Criteria. Vons shall have the right to modify its
exterior signage, without Developer’s approval, to conform to Vons’s then
prototype signage package and/or signage customarily used by Vons’s licensees
and/or concessionaires offering services and selling merchandise inside the
building(s) on the Supermarket Lot provided that such signage complies with
Applicable Law.
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6.2.4 Height Limitations. All buildings in the Shopping Center (A) shall be
limited to one (1) story in height only, not including mezzanines, and (B) shall not
exceed (i) forty feet (40’) in height for the building on the Supermarket Lot, (ii)
twenty-eight feet (28’) in height for the La Costa Shops Space, (iii) thirty-five (35’)
in height for buildings in excess of 10,000 square feet of Gross Leasable Area on
Lot 10 and Lot 13 to be occupied by a single tenant, and (iv) twenty-eight feet (28’)
in height for all free-standing pads and Fuel Station canopy. Height measurements
pursuant to this Section 6.2.4 shall be taken at the main entrance of the building to
be measured and shall be measured from grade to the highest point of the
building’s roofline (i.e., special architectural features such as parapets, tower
elements and rooftop equipment and screening are not included).
6.3 Encroachment. In the event building wall footings encroach from one Lot onto
another Lot, despite efforts to avoid that occurrence, the Owner onto whose Lot the
footings encroach shall cooperate in granting an encroachment permit or easement to the
Owner whose building wall footings encroach.
6.4 Maintenance by Owners. Subject to the provisions of Sections 14.1 and 15.3,
each Owner, at its sole cost and expense, shall keep, maintain, repair, manage and operate
their respective buildings, whether occupied or unoccupied, and any drive-through or
drive-up lanes, ash and trash receptacles, grease traps and grease interceptors, landscaping
adjacent to buildings, Outdoor Dining Area (defined in Section 7.13.1) or other Common
Area over which such Owner has exclusive control located on its respective Lot, in good
and clean order, operation, condition and repair in conformity with first-class shopping
center standards.
7. USE OF COMMON AREA.
7.1 Grant of Easements. Each Owner, as grantor, hereby grants solely to the other
Owners, only for the benefit of such Owners, and their respective Occupants, customers,
invitees and employees, a non-exclusive easement over and across the Common Area of
the Shopping Center for pedestrian and vehicular ingress, egress and circulation within
the Shopping Center, the parking of motor vehicles and bicycles, and the use of facilities
installed for the comfort and convenience of such customers, invitees and employees on
the Common Area of the grantor’s Lot such as common trash enclosures, common bottle
storage areas, and other similar service facilities not devoted exclusively to a particular
Owner or Occupant; provided, however, that the Outdoor Dining Area on the
Supermarket Lot shall be for the exclusive use of Vons and its customers, employees and
invitees.
7.2 Use; Rules and Regulations. Subject to existing easements of record and except
as otherwise provided herein, the Common Area shall be used for roadways, walkways,
ingress and egress, parking of motor vehicles and bicycles, loading and unloading of
commercial and other delivery vehicles, for driveway purposes, and for the comfort and
convenience of the Occupants of the Shopping Center and their respective customers,
invitees and employees in accordance with Applicable Law. Subject to the reasonable
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approval of Vons, the Developer, in its sole discretion, shall have the right from time to
time to enact (and modify) reasonable nondiscriminatory rules and regulations for the use
and operation of the Shopping Center. In the event of any inconsistency between the
rules and regulations and this Declaration, the terms of this Declaration shall control.
7.3 No Barriers. No walls, fences, barriers or obstructions of any kind shall be
constructed or maintained on the Common Area, or any portion thereof, by any party
which shall prevent or impair the use or exercise of any of the easements granted herein,
or free access and movement, including without limitation, of pedestrian and vehicular
traffic between the various Lots; provided, however, reasonable traffic controls, as may
be necessary to guide and control the orderly flow of traffic, may be installed so long as
access driveways to the parking areas in the Common Area are not closed or blocked.
The only exceptions to this provision shall be for (i) changes to the Building Area and
Common Area permitted by this Declaration, (ii) temporary staging and/or storage
permitted pursuant to Section 10.2, (iii) the permitted Outdoor Dining Areas on the
Supermarket Lot and Developer Lots, (iv) incidental encroachments upon the Common
Area which may occur as a result of the use of the ladders, scaffolding, storefront
barricades and similar facilities resulting in temporary obstruction of the Common Area,
and (v) periodic closure of Via Campanile between Via Mercato and Via Montebello for
street fairs, farmer’s markets and similar seasonal events (but no more frequently than
quarterly), all of which are permitted hereunder so long as their use is kept within
reasonable requirements of construction work being expeditiously pursued (if applicable)
and that obstruction or limitation of access to public streets shall be avoided or if
unavoidable, such obstruction or limitation of access shall be kept to a minimum and
conducted outside normal business hours to the extent feasible.
7.4 Purpose of Common Area. All of the uses permitted within the Common Area
shall be used with reason and judgment so as not to interfere with the primary purpose of
the Common Area which is to provide for ingress, egress and parking for the customers,
invitees and employees of those businesses conducted within the Shopping Center and for
the servicing and supplying of such businesses.
7.5 Limitations on Use.
7.5.1 Customers. Customers and invitees shall not be permitted to park on the
Common Area except while shopping or transacting business in the Shopping
Center.
7.5.2 Employees. Employees shall not be permitted to park on the Common
Area, except in areas designated as “employee parking areas” established by
Developer as to the Developer Lots and Vons as to the Supermarket Lot. The
Owners may from time to time mutually designate and approve “employee parking
areas”. If the Owners do not together do so, each Owner may formally or
informally designate "employee parking areas" on its Lot. Each Owner shall use its
reasonable efforts to cause the employees of the Occupants of each of its Lots to
park their vehicles only on such Lot. With respect only to its Lot(s), an Owner
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shall have the right to authorize the Maintenance Director to assess fines and/or
penalties in connection with the enforcement of this Section 7.5.1, including the
towing of vehicles to the extent permitted by Applicable Law. In all events, no
over-night parking shall be permitted.
7.6 Restricted Parking Spaces.
7.6.1 Supermarket Lot. Vons will have the right to designate and use a
sufficient number of parking spaces immediately behind its store building to park
not more than five (5) vehicles used in connection with deliveries of items from
said building to its customers. Vons also will have the right to designate up to
fifteen (15) time limited or otherwise restricted (such as for electric car charging
stations) parking spaces in the immediate vicinity of the building on the
Supermarket Lot by the placement of signs in front of each of such spaces
(“Restricted Parking Spaces”).
7.6.2 Developer Lots. Subject to the Developer’s approval of the number and
location thereof and signage therefor, an Owner of a Developer Lot may designate
or authorize its Occupant(s) to designate, Restricted Parking Spaces in the
immediate vicinity of the building(s) on that Owner’s Lot.
7.7 Recycling Center. Vons will have the exclusive right in the Shopping Center, if
and only if required by Applicable Law, to operate a recycling center in a portion of the
Common Area. If the location of Vons’s recycling center will be on a Developer Lot, the
location thereof will be subject to the reasonable approval of the Owner of that Developer
Lot and the Developer (if not the Owner thereof), and the Owner of such Developer Lot
hereby grants an easement to the Owner of the Supermarket Lot for such purpose.
7.8 Regulated Activities. To the extent permitted by Applicable Law, each of
Developer and Vons shall have the right to promulgate and enforce rules and guidelines
prohibiting or restricting publicly expressive activity on the Common Area located on
their respective Lots (including the circulation of petitions, leafleting and picketing) not
related to the commercial purpose of the Shopping Center. Any Owner or Occupant that
is the target of such activity may enforce such rules and guidelines and the other Owners
and Occupants, at the enforcing party’s expense, will cooperate with the enforcing party
in this regard. The enforcing party will indemnify, defend and hold harmless the non-
enforcing Owners and Occupants from and against all claims, losses, damages, liabilities
and causes of action (including, reasonable attorneys’ fees) arising out of such
enforcement activities.
7.9 No Use Fee. Persons using the Common Area in accordance with this Declaration
shall not be charged any fee for such use without the written consent of the Owners unless
such fee shall be ordered by an appropriate governmental authority. If an appropriate
governmental authority imposes a surcharge or regulatory fee on customer or employee
parking or based on the number of parking spaces within the Shopping Center or any
other similar fee or charge, then the Owners by mutual agreement shall use their best
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efforts to institute a uniform fee collection parking system for the Shopping Center. In
the event that owners cannot come to a mutual agreement, the Developer shall institute a
uniform not-for-profit fee collection parking system for the Shopping Center.
7.10 Utility and Service Easements.
7.10.1 Each Owner, as grantor, grants solely to the other Owners, only for the
benefit of such other Owners and their respective Occupants, non-exclusive
easements under, through and across the Common Area of the grantor’s Lot for the
installation, operation, maintenance, repair and replacement of storm drainage
systems or structures, water mains, sanitary sewers, water sprinkler system and
irrigation lines, CATV, fiber optic, telephone and electrical lines, conduits or
systems, gas mains and other public or private utilities (“Utility Lines and
Facilities”). Without limiting the foregoing, “Utility Lines and Facilities” shall
include (i) data lines, power lines, facilities for pneumatic tubes and other facilities
requiring a physical connection between the Supermarket Lot and any other Lot of
which Vons is the Occupant; (ii) a subsurface electronic system to prevent the
removal of shopping carts from the Shopping Center; and (iii) underground
facilities such as grease traps, grease interceptors and pipelines which cannot
feasibly be located within the boundaries of the Lot(s) being served by such
facilities.
7.10.2 The location of easements for Utility Lines and Facilities shall be subject
to the reasonable approval of the Owner on whose Lot the Utility Line and
Facilities is to be located. The Owners will use their best efforts to cause the
installation of such Utility Lines and Facilities prior to paving of the Common
Area. On request by any Owner, an Owner shall grant to the requesting Owner, or
to any governmental or quasi-governmental agency or entity having jurisdiction, a
recordable easement for one or more specific Utility Lines and/or Facilities. Utility
Lines and Facilities shall not be located within five (5) feet of any Building Area,
unless otherwise agreed by the Owner to be burdened by the Utility Line or
Facility. Notwithstanding anything in the foregoing or elsewhere in the Declaration
to the contrary, each Owner shall be limited to the using the service providers for
CATV, fiber optic and telephone facilities as installed by Developer in the
Shopping Center.
7.10.3 All Utility Lines and Facilities shall be installed and maintained below the
ground level or surface of such easements except for ground mounted electrical
transformers and such other Utility Lines and Facilities as are required to be above
ground by the utility providing such service. The installation, operation,
maintenance, repair and replacement of Utility Lines and Facilities shall be done in
a manner so as to not materially or unreasonably interfere with the use of the
improved Common Area or with the normal operation of any business in the
Shopping Center. The Owner causing the installation, operation, maintenance,
repair or replacement of Utility Lines and Facilities shall (i) provide reasonable
prior written notice to the Owner(s) of the Lot(s) upon which such work will occur
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(not less than twenty (20) days, except in the event of an emergency that creates a
safety hazard or when there is a disruption of service or reasonable likelihood of a
disruption of service in which case only such notice need be given as is reasonably
appropriate given the nature and extent of such emergency); (ii) bear all costs
related to such installation, operation, maintenance, repair and replacement; (iii)
repair to the original specifications any damage to the Common Area resulting from
such use; (iv) provide as-built plans for all such facilities to the Owners of all Lots
upon which such Utility Lines and Facilities are located within thirty (30) days after
the date of completion of construction of the same; and (v) conform with
Applicable Law, including any approval or permit requirements of the City and/or
any affected utility provider.
7.10.4 At any time and from time to time, the Owner of a Lot shall have the right
to relocate any the Utility Lines and Facilities (and easement areas) installed on
such Owner’s Lot; provided that such relocation (i) shall be performed only after
such Owner gives no less than sixty (60) days prior notice to the Owner of the Lot
served by the Utility Lines and Facilities, except in the event of an emergency that
creates a safety hazard or when there is a disruption of service or reasonable
likelihood of a disruption of service in which case only such notice need be given
as is reasonably appropriate given the nature and extent of such emergency; (ii)
shall not reduce or unreasonably impair the usefulness or function of, or diminish
the services provided by, the Utility Lines and Facilities being relocated; (iii) shall
be performed without cost or expense to any Owner or Occupant of any other Lot;
(iv) shall provide for the relocated Utility Lines or Facilities to be relocated using
material and design standards which equal or exceed those originally used; (v) shall
not be performed during any “Holiday Period”, which term shall mean November
15 through January 5, the week before Easter, and the Labor Day and Memorial
Day weekends except in the event of an emergency that creates a safety hazard or
when there is a disruption of service or reasonable likelihood of a disruption of
service; and (vi) conform with Applicable Law, including any approval or permit
requirements of the City and/or any affected utility provider. The Owner
performing such relocation shall provide as-built plans for all such relocated Utility
Lines and Facilities to all Owners served by such Utility Lines and Facilities within
thirty (30) days after the date of completion of such relocation.
7.11 Maintenance Easement. Each of the Owners hereby grants to the Maintenance
Director, and its employees and agents, an easement over the Common Area located upon
each such Owner’s Lot, but only for the purpose of, and to the extent reasonably
necessary for, performing the Maintenance Director’s obligations under this Declaration.
7.12 General.
7.12.1 All easements granted hereunder shall exist by virtue of this Declaration,
without the necessity of confirmation by any other document. However, upon
request of any Owner, each Owner will sign and acknowledge a document
memorializing the existence, including the location and any conditions, of any such
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easement or the termination or the release of any such easement, in form and
substance reasonably approved by the Owner of whom the request is made. Any
Occupant of a Lot to be burdened by any such easement, by accepting its interest in
the Lot, shall be deemed (i) to have consented to and joined in each and every such
grant of easement, (ii) to have agreed to execute any reasonably acceptable
easement instrument confirming any easement granted hereunder on request by any
Owner and (iii) to have granted to each Owner an irrevocable power of attorney to
execute such easements on the Occupant’s behalf, if such Occupant fails to
promptly execute any reasonably requested easement instrument confirming the
grant of any easement granted hereunder.
7.12.2 Except in the event of an emergency, no person shall enter onto another
Owner’s Lot to perform any construction, maintenance, repair, construction or
similar activity pursuant to the easement rights granted herein during any Holiday
Period. All activities conducted on the grantor’s Lot shall be carried out so as to
minimize disruption to the business conducted on the grantor’s Lot, and only after
no less than ten (10) business days prior written notice to the grantor, and
consultation with the grantor to agree upon any terms, conditions or other
accommodations to minimize any such disruption except in the event of an
emergency that creates a safety hazard or when there is a disruption of service or
reasonable likelihood of a disruption of service, then only such notice and
consultation shall be required as is reasonably appropriate given the nature and
extent of such emergency. If portions of the grantor Owner’s Lot are damaged or
affected by the grantee’s work, such portions shall be restored to the substantially
the same (or better) condition than that existing immediately prior to the
commencement of such work. If the work involves tying into Utility Lines and
Facilities on the grantor’s Lot, the work shall be performed in a manner such that
services provided by those lines to Occupants of the grantor’s Lot are not
interrupted during normal business hours and do not result in damage to the
property of such Occupants, unless unavoidable. In connection with such
activities, the grantee exercising the easement rights shall indemnify, defend and
hold harmless the grantor thereof from any loss or liability arising in connection
with such activities, except in the case of grantor’s sole negligence or willful act or
omission.
7.12.3 Except as provided in Section 3.4 above, no Owner or other person shall
grant or otherwise convey any easement or license for the benefit of any property
that is not a part of the Shopping Center or any person not an Owner or Occupant
of the Shopping Center other in the normal course of business or required by a
governmental authority in connection with the development or redevelopment of
the Shopping Center.
7.13 Outdoor Sales and Dining Areas and Activities. The sale, display and
merchandising of goods and services shall be confined to the interior of the buildings (or
the area beneath the canopy of a Fuel Station) and shall not be conducted upon the
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Common Area; provided, however, the foregoing shall not be interpreted or applied in a
manner that prevents a financial institution from providing drive-up banking and ATM
services or the Drugstore from offering drive-through/drive-up service. Notwithstanding
the foregoing, the following uses shall be permitted on the Common Area:
7.13.1 Vons may use the sidewalk immediately adjacent to the building(s) on the
Supermarket Lot to the extent allowed by Applicable Law for (i) the display and
sale (or rental) of merchandise (including, pre-filled propane tanks) and placement
of vending machines, ash and trash receptacles, pay telephones, and kiosks and/or
carts, (ii) occasional promotional events, (iii) the construction of columns,
canopies, trellises, and shopping cart enclosures, (iv) the storage of shopping carts,
and (iv) the placement of benches, tables, chairs and umbrellas for customer use
(“Outdoor Dining Area”). Vons shall not permit such uses or improvements to
unreasonably interfere with pedestrian traffic and shall, at its sole cost and expense,
maintain such areas in a good, clean and orderly condition including, without
limitation, collecting all refuse, cleaning any spills and steam cleaning as necessary
to keep such areas free of stains, odors and food residue. The Outdoor Dining Area
must be constructed and maintained in accordance with Applicable Law, and
substantially conform to the then current design scheme of the Shopping Center.
7.13.2 Vons may utilize any area on the Supermarket Lot for occasional
promotional and special events (e.g., holiday celebrations) and if and to the extent
permitted by Applicable Law, for the sale of fireworks subject to the following
restrictions: (i) all booths, stands, displays and other structures erected in
connection with such activities shall be promptly removed upon termination of said
activities; (ii) Vons, at its sole cost and expense, shall perform all maintenance,
repairs or cleaning of the Common Area necessitated by Vons's use thereof for
promotional and special events; (iii) such activities shall not unreasonably interfere
with pedestrian or vehicular traffic within the Shopping Center or with access to or
from any part of the Shopping Center from any public right-of-way; and (iv) the
sale of fireworks shall be limited to no more than one (1) twenty-one (21)
consecutive day use per calendar year.
7.13.3 An Owner on the Developer Lots may use or authorize the use of, Outdoor
Dining Areas, merchandise sales or display areas, and kiosks and/or carts on the
sidewalk immediately adjacent to the front and/or side of the building(s) on such
Owner’s Lot, provided that (i) the location, layout and plans for such facilities have
been approved in writing by Developer, (ii) such uses and improvements are
conducted, installed and maintained in accordance with Applicable Law, and
conform to the then current design scheme of the Shopping Center; and (iii) such
uses and improvements do not unreasonably interfere with pedestrian or vehicular
traffic. The Owner or Occupant of any portion of the Developer Lots shall be
solely responsible for maintaining such areas in a good, clean and orderly condition
including, without limitation, collecting all refuse, cleaning any spills and steam
cleaning as necessary to keep such areas free of stains, odors and food residue.
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7.13.4 For so long as a Fuel Station is operated on Lot 8, the Occupant thereof
shall be permitted, without limitation as to location, to (i) display, sell and store
items which are customarily displayed, sold or stored outside (for example, motor
oil), (ii) provide alternative energy sources such as electric car charging stations,
and (iii) make available services customarily provided by fuel stations such as self-
service compressed air and water machines. Nothing in the foregoing shall be
deemed to prohibit Developer or Vons from placing electric charging stations in the
Common Area located on their respective Lots.
7.13.5 If an Owner fails to adequately keep or fails to cause its Occupant to
adequately keep, outdoor sales areas and/or Outdoor Dining Areas on such
Owner’s Lot in a good, clean and orderly condition in the reasonable opinion of the
Maintenance Director, then the Maintenance Director after giving such Owner or
Occupant written notice and the opportunity to cure as required by Article 16, shall
assume responsibility for such maintenance and the entire cost thereof shall be
billed back to only that Owner as part of Common Area maintenance expenses
pursuant to Article 11.
7.14 Cross Lot Drainage Area. Each Owner, as grantor, grants to the City, and to the
other Owners for the benefit of such other Owners and their respective Occupants, a non-
exclusive easements for drainage purposes under, through and across that portion of the
Shopping Center labeled on "Cross Lot Drainage Area" on Exhibit D. The Cross Lot
Drainage Area is to be maintained in perpetuity by the Maintenance Director subject to the
cost recovery procedure set forth in Article 11 and the City's enforcement right set forth in
Section 21.1. Each Owner within the Shopping Center agrees that future use of any
property within the Cross Lot Drainage area shall not restrict, impede, divert, or otherwise
alter drainage flows in a manner that would result in damage to the underlying and adjacent
properties or the creation of a public nuisance.
8. SHOPPING CENTER SIGNAGE.
8.1 Free-Standing Signs.
8.1.1 The Developer shall have the right to install pylon and/or monument type
sign structures on the Common Area on the Developer Lots in the location(s)
shown on the Site Plan (“Shopping Center Signs”). Vons shall have the right to
place one (1) double-sided sign panel on the Shopping Center Sign in the
freestanding sign location identified as “B” in the Sign Criteria and one (1) single-
sided sign panel on the Shopping Center Signs in the freestanding sign locations
identified as “A-1” and “A-2” in the Sign Criteria (“Vons Signs”). Each of Vons’s
sign panels will be placed in the top or most prominent and/or visible location (as
selected by Vons) on the Vons Signs, except a sign panel designating the name of
the Shopping Center, and no other sign panel on the Vons Signs will be larger than
Vons’s sign panels on the Vons Signs, and no more than a total of five (5) sign
panels (including the Shopping Center identification sign and Vons’s signs) will
appear on the Vons Signs. Vons shall have a perpetual license to maintain its sign
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panels on the Vons Signs, with the design, construction, installation and permitting
thereof to be solely at Vons’s expense.
8.1.2 Vons, at its sole cost and expense, shall have the right to install pylon
and/or monument type signs in the Common Area on the Supermarket Lot if and to
the extent permitted by Applicable Law in addition to any signs Developer elects to
install pursuant to Section 8.1.1 above (“Supermarket Pylon”). Vons shall have
the sole right to place its sign panels on the Supermarket Pylon.
8.1.3 Subject to obtaining necessary governmental approvals and the approval of
the Developer, the Owners of Lots 3, 4, 5, 6, 7, and 8 shall each have the right, at
its sole cost and expense, to install one (1) monument type sign on their respective
Lots provided that, when installed, such monument sign complies with the Sign
Criteria.
8.1.4 Except as set forth in Sections 8.1.1, 8.1.2 and 8.1.3 above, no other
freestanding signs shall be located on the Common Area except (i) directional,
regulatory or informational signs such as "Handicapped Parking", (ii) temporary
leasing information signs, (iii) one temporary sign identifying the lender providing
project financing, and (iv) one temporary sign identifying each contractor working
on a construction job. In addition, all free-standing signs on the Common Area
shall advertise only businesses conducted in the Shopping Center, and no sign
located on the Common Area shall obstruct the ingress and egress shown on the
Site Plan or the visibility of the Shopping Center Signs or the Supermarket Pylon.
8.2 Maintenance and Operation of Shopping Center Signs and Panels.
8.2.1 The cost of installing (including, without limitation, the cost of any
permits therefor), repairing, replacing, and maintaining the Shopping Center Signs
in good condition and repair, and the electricity necessary for the operation thereof,
shall be apportioned by the Maintenance Director among the Owners with sign
panels on the Shopping Center Signs in the proportion that the total square footage
of each Owner's sign panel(s) on a particular Shopping Center Sign bears to the
total square footage of all sign panels entitled to be displayed on that Shopping
Center Sign (including any panels on any Shopping Center Sign identifying the
Shopping Center). The Maintenance Director shall be responsible for the physical
operation, maintenance, repair and replacement of the Shopping Center Signs (but
not the sign panels) and the Owners displaying sign panels thereon shall reimburse
the Maintenance Director in the same manner as set forth in Section 11.7 for the
payment of the Common Area Expenses (defined below).
8.2.2 Each Occupant attaching a panel to the Shopping Center Signs shall cause
such panel (including any backlit lighting) to be maintained in good condition and
repair. The responsibility and cost of designing, fabricating, installing, replacing,
repairing and removing each individual sign panel on the Shopping Center Signs
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shall be borne solely by the Owner of the Lot whose Occupant’s sign panel appears
thereon.
8.3 Promotional Event Signage. Vons shall have the right on its building and
elsewhere on the Supermarket Lot to display temporary banners or other signage for
special promotional events provided that any such signage complies with Applicable
Law. Subject to Applicable Law and Developer’s prior written approval, other Occupants
shall have the right to display for up to, but no more than, twenty-one (21) days,
temporary banners or other signage for special promotional events.
8.4 Sign Criteria. The term “Sign Criteria” shall refer to the “La Costa Town Square
Sign Criteria” attached hereto as Exhibit C. The Sign Criteria cannot be amended or
terminated without the prior written approval of the Developer, Vons and the Owner(s) of
any Lot(s) with existing exterior signage that may be adversely affected by the
amendment or termination. The Shopping Center Signs, Vons Pylon and the sign panels
displayed thereon shall at all times comply with Applicable Law and the Sign Criteria.
9. DEVELOPMENT.
9.1 Development.
9.1.1 Parking Requirements. At all times there shall be maintained within the
Shopping Center the minimum number of parking spaces required by Applicable
Law for the combination of uses existing within the Shopping Center. It is
acknowledged that it is not possible for each Lot within the Shopping Center to
provide its own minimum number of required parking spaces for such Lot under
Applicable Law and that parking throughout the Common Area will be shared
among all Lots within the Shopping Center, subject to the provisions of
Section 7.6.
9.1.2 Lighting Requirements. All exterior lighting at the Shopping Center
shall comply with the County of San Diego’s lighting ordinances (Section 51.201
et. seq.) to the extent such ordinances are consistent with applicable City
ordinances, regulations and requirements. All parking lot lighting throughout the
Shopping Center shall be designed and placed so as to minimize glare and
reflection affecting adjacent properties to the extent permitted by the photometric
plan approved by the City for the Shopping Center and any other applicable City
ordinances, regulations and requirements.
9.1.3 Landscaping Requirements. Landscaping within the Shopping Center
shall generally employ drought-tolerant plant species in accordance with the
Shopping Center’s landscape plan approved by the City, as the same may be
amended with the approval of the City and/or its applicable agencies.
9.1.4 Development Timing. When any building is constructed on a Lot, the
Common Area on that Lot shall be developed in accordance with the layout shown
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on the Site Plan at the expense of the Owner of said Lot, subject to any
development agreement made by any Owner respecting construction of the
Common Area on its Lot. If one Owner (the “Developing Owner”) constructs
improvements on the Developing Owner’s Lot prior to the development of another
Lot, then the Developing Owner shall have the right to grade, pave and use any
portion of the Common Area of the non-developing Owner’s Lot. Developing
Owner shall cause all of said work to be separately bid on a competitive basis, and
the costs and proposed work shall be approved in advance by all non-developing
Owners in writing, provided that such approval shall not be unreasonably withheld.
All non-developing Owners agree to reimburse the Developing Owner for such
costs when any portion of each such non-developing Owner’s Lot is developed or
upon the sale or ground lease of any portion of each such non-developing Owner’s
Lot, whichever first occurs, which obligation shall accrue interest at the rate of five
percentage points (5%) above the federal funds discount rate in effect from time to
time.
9.2 Common Area Alterations.
9.2.1 Except in connection with an expansion of a building within a permitted
Building Area, no Owner or Occupant shall modify the Common Area on its Lot
without the prior written approval of the Developer and (i) Vons if such Common
Area is located within the Supermarket Lot Control Zone or within fifty feet (50’)
of the boundary line thereof, or (ii) the tenant of Building 25 if such Common Area
is located with the area depicted on Exhibit E as the “24-Hour Fitness Protected
Area;” provided, however, that this shall apply only so long as the Fitness Lease is
in full force and effect. In addition to the foregoing, in no event shall any Owner
or Occupant be permitted to modify any portion of the Common Area in a manner
inconsistent with Applicable Law.
9.2.2 Notwithstanding any provision in Section 9.2.1 to the contrary, each of
Developer (with the prior written consent of Vons which shall not be unreasonably
withheld, conditioned or delayed) and Vons, at each such party’s expense, shall
have the right to modify the size and/or the arrangement of the Common Area
improvements on its respective Lot(s) from time to time (including service drives
and parking areas, traffic circulation and flow patterns, parking lot layout,
perimeter walls and fences, and landscaped areas) provided that no such alteration
shall (i) adversely affect the visibility of any buildings and/or signage from the
streets contiguous to the Shopping Center, (ii) adversely affect ingress and egress
to/from the Lots adjacent thereto, (iii) adversely affect traffic circulation and flow
within the Shopping Center, or (iv) reduce the number of parking spaces available
on a Lot below that required by Section 9.1.1. Notwithstanding the foregoing, no
drive-through lanes shall be permitted on the Developer Lots except as shown on
the Site Plan, in the locations and configurations shown thereon. Notwithstanding
the foregoing, if Vons is neither the Owner nor the Occupant of the Supermarket
Lot, the Owner of the Supermarket Lot must obtain Developer’s prior written
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consent which shall not be unreasonably withheld, conditioned or delayed, before it
may modify the sizes or the arrangements of the Common Area improvements on
its Lot.
9.2.3 Notwithstanding Section 9.2.1 to the contrary, Vons shall have the right to
withhold its consent in its sole discretion if any modifications are proposed to the
Common Area and/or improvements thereon within the Supermarket Lot Control
Zone; provided, however, Developer shall be entitled to do the following within the
Supermarket Lot Control Zone without the consent of Vons, provided that (i)
Developer gives Vons at least thirty (30) days prior notice of the proposed work,
together with a phasing plan, (ii) such work will not unreasonably interfere with
business operations on the Supermarket Lot and (iii) such work shall not be
performed during any Holiday Period (except in the event of an emergency that
creates a safety hazard or when there is a disruption of service or reasonable
likelihood of a disruption of service): (a) replace or relocate in substantially the
same location, maintain and repair underground Utility Lines and Facilities (b)
replace or relocate in substantially the same location, maintain and repair paving,
bumpers and similar parking area appurtenances; (c) replace or relocate in
substantially the same location, maintain and repair signs and fences permitted by
this Declaration; and (d) replace or relocate in substantially the same location
(provided that doing so does not interfere with the visibility of any buildings or
signage on the Supermarket Lot from within the Shopping Center or streets
adjacent to the Shopping Center), maintain and repair the landscaping and the
lighting poles and fixtures (but may not reduce the lighting intensity). In addition,
Vons will not unreasonably withhold, delay, or condition its consent to changes
within the Supermarket Lot Control Zone that only minimally impact the then
existing layout of the Shopping Center, the use thereof or access thereto, such as
minor changes in curb locations provided that the work does not unreasonably
interfere with the business operations on the Supermarket Lot, and is diligently
pursued and completed. The “Supermarket Lot Control Zone” means the area
depicted on Exhibit E to this Declaration and labeled “Vons Area of Control.”
10. CONSTRUCTION.
10.1 General Requirements. All work performed in connection with the construction,
reconstruction, maintenance, repair, alteration, remodel or expansion of any
improvements located in the Shopping Center shall be performed in compliance with
Applicable Law and completed as expeditiously as possible and in such a manner as not
to unreasonably interfere, obstruct or delay (i) access to or from the Shopping Center, or
circulation within the Shopping Center, (ii) customer vehicular parking in any other
Owner’s Lot, (iii) construction work being performed on any other Lots, or (iv) the use,
enjoyment or occupancy of any other Lots. All construction shall utilize new materials,
and shall be performed in a good, safe, workmanlike manner. The constructing Owner
shall, at its sole cost and expense, promptly repair and restore or cause to be promptly
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repaired and restored to its prior condition all improvements damaged or destroyed in the
performance of such construction.
10.2 Temporary Staging. In connection with any construction, reconstruction,
maintenance, repair, alteration, remodel or expansion of any building or modification of
any Common Area improvements on its Lot, each Owner reserves the right to create a
temporary staging and/or storage area on its Lot to the extent permitted by Applicable
Law, so long as the location thereof will not unreasonably interfere with parking on such
Lot or access between such Lot and the other areas of the Shopping Center. In addition,
the location of any such staging and/or storage area must be approved in advance and in
writing by Developer (and Vons, if such staging area is located with the Supermarket Lot
Control Zone) except any staging and/or storage area established by Vons on the
Supermarket Lot shall require only that Vons provide Developer with ten (10) days prior
notice of the proposed location(s) thereof, which location shall be no less than fifty (50)
feet from the entrance of any building on a Developer Lot. Developer (and Vons, if
applicable) shall not unreasonably withhold its consent to a proposed staging area. Prior
to the establishment of a staging and/or storage area on its Lot for which the approval of
Developer or Developer and Vons is required, an Owner shall give Developer and Vons
(if applicable) at least thirty (30) days prior notice of the proposed location(s) thereof. If
substantial work is to be performed, the constructing Owner shall, at the request of the
Developer, fence off the staging and storage area. If the Developer does not approve the
proposed location of the staging and/or storage area, the Owner shall modify the proposed
location to satisfy the Developer’s reasonable requirements. Except in connection with
the initial development of the Shopping Center, all storage of materials and the parking of
construction vehicles, including vehicles of workers, shall occur only on the constructing
Owner’s Lot. Upon completion of such work, the constructing Owner shall restore, or
cause to be restored, (i) the affected Common Area to a condition equal to or better than
that existing prior to the commencement of such work, and (ii) any affected public
facilities to the condition required by the City pursuant to Applicable Law.
10.3 Temporary License. Each Owner hereby grants and conveys to each other Owner
and to its respective contractors, materialmen and laborers, a temporary license for access
and passage over and across the Common Area of the grantor’s Lot as shall be reasonably
necessary for the grantee to construct and/or maintain improvements upon the grantee’s
Lot; provided, however, that such license shall be in effect only during periods when
actual construction and/or maintenance is being performed and provided further that the
use of such license shall not unreasonably interfere with the use and operation of the
Common Area by others. Prior to exercising the rights granted herein, the grantee shall
first provide the grantor with a written statement describing the need for such license, and
shall furnish a certificate of insurance showing that its contractor has obtained the
minimum insurance coverage required by Section 12.4 hereof. Any Owner availing itself
of the temporary license shall promptly pay all costs and expenses associated with such
work, shall diligently complete such work as quickly as possible, and shall promptly
clean the area, and restore and/or repair the affected portion of the Common Area to a
condition equal to or better than that existing prior to the commencement of such work.
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Notwithstanding the foregoing, in the event a dispute exists between the contractors,
laborers, suppliers and/or others connected with such construction activities, each Owner
shall have the right to prohibit the contractors, laborers, suppliers and/or others working
for another Owner from using the Common Area on its Lot.
10.4 Development Cooperation; Latecomers Agreement.
10.4.1 The Owners acknowledge that from time to time, another Owner (the
“Initiating Owner”) may seek building or development permits from the
governmental agency having jurisdiction, for improvements or alterations such
Owner may wish to make to its property, and the governmental agency may require
that on- or off-site improvements be made as a condition of granting such permits
(“Required Improvements”). To the extent the Required Improvements must be
constructed on or otherwise require the use of another Owner’s property (the
“Accommodating Owner”), the Accommodating Owner shall not unreasonably
withhold its consent thereto. Required Improvements may, without limitation,
require the dedication of easements, right-of-way or fee title to a governmental or
quasi-governmental agency (for example, road widening for an additional lane),
any Accommodating Owner shall cooperate by entering into such easements or
dedications as may be required (an “Accommodation Taking”). The Initiating
Owner shall compensate the Accommodating Owner for the value of the
Accommodation Taking, such compensation to be calculated as if the
Accommodation Taking were a taking by a government agency under the power of
eminent domain. Notwithstanding, the Initiating Owner shall not be required to
compensate an Accommodating Owner for the grant of an easement or other
interest which the Accommodating Owner is required to grant pursuant to
Article 7.
10.4.2 The Owners acknowledge that Required Improvements constructed by an
Initiating Owner (including, if applicable, compensation of another Owner for an
Accommodation Taking) may inure to the benefit of other Owners that in the future
seek building or development permits for their development plans. For example,
the Initiating Owner may be required to install stormwater quality improvements to
bring the Shopping Center’s stormwater system up to new standards, and other
Owners will not face this hurdle when they subsequently seek building or
development permits. In the event that Required Improvements confer such
benefits on one or more other Owners, the Owner or Owners so benefited
(“Benefited Owners”) shall compensate the Initiating Owner for an equitable share
of the cost of making the Required Improvements (including, if applicable,
compensation of another Owner for an Accommodation Taking). Such equitable
share reimbursement obligation shall not accrue interest until the Benefited Owner
secures the building or development permit in question, after which time it will
accrue interest at the rate of five percentage points (5%) over the federal discount
rate.
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10.5 Mechanic's Liens. No Owner or the Maintenance Director will permit any
mechanic's or materialmen's or other lien to stand against any part of the Shopping Center
in connection with any labor, materials, or services furnished or claimed to have been
furnished by such Owner (or any Occupant of such Owner’s Lot) or the Maintenance
Director, as applicable. If any such lien should be filed, the Owner or Maintenance
Director charged with causing the lien will cause the same to be discharged immediately;
provided, however, that the Owner or Maintenance Director, as applicable, may allow the
lien to remain pending a contest of such lien so long as enforcement thereof is stayed. In
any event, within twenty (20) days of an Owner’s or Maintenance Director’s request,
which will be made only if necessary in connection with a pending financing, refinancing
or sale, the Owner or the Maintenance Director charged with the lien will cause the lien to
be removed as an encumbrance on such requesting Owner’s Lot, by posting a bond or
otherwise, even if a contest is pending.
11. COMMON AREA MAINTENANCE.
11.1 Maintenance of Common Area. Subject to the provisions of the immediately
succeeding sentence, following completion of the improvements on the Common Area
and until the removal or resignation of the Maintenance Director pursuant to Sections
11.9 and 11.10, respectively, the Maintenance Director shall maintain or cause to be
maintained the Common Area in good condition and repair and in compliance with the
provisions of this Declaration. Without limiting the generality of the foregoing, such
maintenance of the Common Area (whether by the Maintenance Director or the
individual Owners) shall include the following:
11.1.1 Maintaining, repairing and replacing all paved surfaces in a level, smooth
and evenly-covered condition with the type of surfacing material and striping
originally installed or such substitute therefor as shall in all respects be equal in
quality, use and durability, and re-striping parking areas and drive aisles as
necessary to maintain parking space designations and traffic direction, and keeping
clearly marked fire lanes, loading zones, no parking areas and pedestrian
crosswalks;
11.1.2 Removing all trash, paper, debris, filth and refuse and washing or
thoroughly sweeping all paved areas to the extent reasonably necessary to keep the
Common Area in a neat, clean and orderly condition;
11.1.3 Placing, keeping in repair and replacing the Shopping Center Signs and
any necessary appropriate directional signs, markers and lines;
11.1.4 Operating, keeping in repair and replacing all Common Area lighting
facilities, including light standards, wires, conduits, lamps, bulbs, ballasts and
lenses, time clocks and circuit breakers and when necessary, replacing the Common
Area lighting system;
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11.1.5 Keeping the Common Area (and the Shopping Center Signs) adequately
lighted during all hours of darkness while either (a) a majority of the businesses in
the Shopping Center are open for business, or (b) a majority of businesses in the
Shopping Center are closed, but a business on a given Lot is open (exclusive of any
security lights or lighting mandated by Applicable Law, or elected by an Owner or
Occupant, to be maintained on a distinct Lot or Lots which shall be maintained by
the Owner(s) or Occupant(s) thereof). If a majority of businesses in the Shopping
Center are closed, then the cost and expense of lighting the Common Area for the
benefit of the open businesses shall be borne solely by those businesses remaining
open;
11.1.6 Maintaining any perimeter walls in a good condition and state of repair,
and cleaning, maintaining and repairing all curbs and sidewalks within or abutting a
Lot (including those situated on the perimeter or outside the boundaries of the
Shopping Center, if customarily performed by adjoining property owners);
11.1.7 Maintaining and repairing all irrigation and sprinkler systems, and
landscaped areas (including those within a public right-of-way on any Lot if
customarily performed by adjacent property owners), and replacing shrubs and
other landscaping as is necessary;
11.1.8 Maintaining and repairing Utility Lines and Facilities serving the Common
Area and/or providing services for the benefit of more than one Lot such as
detention and water quality ponds, storm water drainage systems, sanitary sewer
systems, and domestic and fire protection water systems (as opposed to Utility
Lines and Facilities that are installed to provide the applicable service for the
benefit of only one [1] Lot);
11.1.9 Maintaining, repairing and replacing holiday and seasonal decorations
and lighting (including, but not limited to, the annual installation and removal of
such decorations and lighting);
11.1.10 Enforcing the Shopping Center rules and regulations and providing
professional security equipment and services for the Shopping Center (including
security and monitoring personnel when deemed reasonably necessary for the
safety and security of the Shopping Center tenants and their employees and
customers);
11.1.11 Maintaining the open-space bio features required by the City and/or
County of San Diego; and
11.1.12 Maintaining in full force and effect such commercial general liability
insurance as is required by Section 12.2.2 and 12.3.
11.2 Maintenance Director. Upon the recordation of this Declaration, PDC shall be
the Maintenance Director, and in such capacity, the Maintenance Director shall manage,
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operate and maintain the entire Common Area in accordance with the provisions of this
Declaration. The Maintenance Director’s responsibility for managing, operating and
maintaining the Common Area shall continue until there is a take-over of the
Maintenance Director’s responsibilities pursuant to Section 11.9 or the Maintenance
Director resigns pursuant to Section 11.10. The Developer may contract with or cause an
affiliate or an independent third party to perform all or some of the obligations of the
Maintenance Director hereunder.
11.3 Common Area Expenses. The term "Common Area Expenses," shall mean all
reasonable costs and expenses incurred by the Maintenance Director in managing,
operating, maintaining (which may include costs relating to the removal of graffiti and re-
painting the portion(s) of the building(s) so affected), policing, insuring, repairing and
replacing the Common Area. The Owners shall pay to the Maintenance Director their
respective Pro-Rata Share (defined below) of the Common Area Expenses in accordance
with this Article 11. An Owner may, under the terms of a written lease, delegate this
payment obligation to an Occupant upon prior notice to the Maintenance Director, in
which case, (i) the Occupant shall assume the obligations to pay the Maintenance Director
directly provided any such delegation shall not relieve the Owner of its obligation to pay
for such maintenance, and (ii) the Occupant shall be deemed to have all of the rights
granted to the Owners pursuant to this Article 11. Each Owner’s “Pro Rata Share” shall
be a fraction, the numerator of which is the total number of square feet of Gross Leasable
Area of the building(s) on an Owner’s Lot and the denominator of which is the total
number of square feet of Gross Leasable Area of all buildings located in the Shopping
Center. However, an Owner’s Pro Rata Share of a particular portion or component of the
Common Area Expenses may be adjusted, on an equitable basis, by the Maintenance
Director to reflect such Owner’s share of a particular cost that is not applicable to all
Owners within the Project. Any such separately allocated costs may be referred to
hereafter as a “Cost Pool”. If no building is located on a Lot then the number of square
feet of Gross Leasable Area shall be deemed to be the number of square feet of land area
within the building limit lines shown on the Site Plan for such Lot. In no event shall the
Gross Leasable Area for each Lot be deemed to be less than the number of square feet of
land area within the building limit lines shown on the Site Plan for each such Lot.
11.4 Certain Exclusions from Common Area Expenses.
11.4.1 Notwithstanding anything to the contrary contained in this Article 11,
Vons shall only be required to pay its Pro Rata Share of Common Area Expenses
incurred pursuant to Section 11.1.10, if Vons in advance agrees, in its sole
discretion, that the provision of on-site security services is necessary to make the
Shopping Center as safe an environment as are other Substantially Similar
Shopping Centers.
11.4.2 Notwithstanding anything to the contrary contained in this Article 11, for
any Owner that separately pays the cost of power to illuminate the Common Area
on its Lot, such Owner shall not be required to pay its Pro Rata Share of Common
Area Expenses for any electricity charges for the cost of illuminating the balance of
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the Common Area. Additionally, if an Owner contracts directly with a third-party
for removal of trash from its building, such Owner shall not be required to pay its
Pro Rata Share of Common Area Expenses for trash removal from the buildings on
the other Lots pursuant to Section 11.1.2; provided, however, that such Owner shall
be required to pay its Pro Rata Share of trash removal from the Common Area.
11.5 Management Fee. The Maintenance Director shall have the right to charge a
management fee of up to ten percent (10%) of the Common Area Expenses, excluding the
cost of liability insurance, property taxes, utilities and any single, extraordinary, non-
recurring Common Area Expense to the extent that such expenditure exceeds Forty
Thousand Dollars ($40,000), which amount shall be increased by agreement of Developer
and Vons or in the absence of such agreement, by ten percent (10%), on the
commencement of the sixth (6th) anniversary of the date this Declaration was recorded in
the Recorder’s Office, and at 5-year intervals thereafter (“Management Fee”). The
Management Fee shall be in lieu of, and not in addition to, any administrative, personnel
or other overhead expenses of the Maintenance Director and/or any third party who is
retained by the Maintenance Director to perform its obligations under this Article 11.
11.6 Authority to Incur Common Area Expenses. The Maintenance Director shall
expend only the monies reasonably necessary to maintain and operate the Common Area
in compliance with the provisions of this Declaration. The Maintenance Director shall
not make or authorize any single extraordinary, non-recurring Common Area Expense in
excess of Forty Thousand Dollars ($40,000) without first obtaining the written consent of
Vons (which consent shall not be unreasonably withheld); provided, however, that in the
event of an emergency that creates a safety hazard or when there is a disruption of service
or reasonable likelihood of a disruption of service, the Maintenance Director need only
give such advance notice to Vons of such emergency and the corrective measures it
intends to take as is reasonably appropriate given the nature and extent of such
emergency. The dollar limit set forth in the immediately preceding sentence will be
increased by agreement of Developer and Vons or in the absence of such agreement, then
by increases of ten percent (10%), on the commencement of the sixth (6th) anniversary of
the date this Declaration was recorded in the Recorder’s Office and at five (5) year
intervals thereafter.
11.7 Payment of Common Area Expenses.
11.7.1 The Maintenance Director shall, at the commencement of the operation of
the Shopping Center and sixty (60) days prior to the beginning of each calendar
year thereafter, deliver to the Owners (i) an itemized estimate (“budget”) of the
Common Area Expenses for the applicable budget period (i.e., calendar year), and
(ii) a bill for each Owner’s Pro Rata Share (defined below) of the estimated cost of
the Common Area Expenses for the budget period, which budget shall be subject to
the approval of Vons, which shall not be unreasonably withheld, delayed or
conditioned. Each Owner shall, during the budget period, pay its Pro Rata Share to
the Maintenance Director in equal monthly amounts, in advance, on the first day of
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each calendar month (for example, if the budget is for a year, then the monthly
payment will be one-twelfth (1/12) of the annual amount).
11.7.2 Within ninety (90) days after the end of each budget period, the
Maintenance Director shall furnish to each Owner (i) a reasonably detailed
itemization of the amount of actual Common Area Expenses incurred by the
Maintenance Director for the preceding budget period, (ii) a copy of the general
ledger for the Common Area Expenses, and (iii) a statement of the calculations
used to compute the sum assessed to each Owner (“Reconciliation”). Within
twenty (20) days following an Owner’s request therefor, the Maintenance Director
will submit to such requesting Owner copies of all invoices, bills, receipts and
other documentation to support the Reconciliation. If the Reconciliation indicates a
difference between each Owner’s Pro Rata Share of the actual Common Area
Expenses and the amount which each Owner paid pursuant to the budget, an
adjustment shall be made simultaneously with the first payment to be made by each
Owner after receipt of the Reconciliation by making any necessary payment or
allowance.
11.8 Accounting Records. The Maintenance Director shall maintain complete and
accurate books of account and records of the Common Area Expenses, which books of
account and records for each calendar year shall be maintained for at least three (3) years
after the expiration of each calendar year. Any Owner, at its sole cost, shall be entitled to
have an audit made of such books of account and records by its representatives. Such
audit may be made only by such Owner giving the Maintenance Director at least twenty
(20) days’ prior written notice, there shall be no more than one audit for each calendar
year, and such audit must be completed within three (3) years from the expiration of the
calendar year being audited. If the audit discloses that any reimbursement by such Owner
for the period audited was not correct, then the Owner shall immediately pay any
additional amount due the Maintenance Director as disclosed by the audit and the
Maintenance Director shall immediately refund the Owner the amount of any over
payment as disclosed by the audit. In addition, if the audit discloses an overpayment by
the auditing Owner in excess of three percent (3%) of the Common Area Expenses
charged to such Owner, then the cost of the audit shall be borne by the Maintenance
Director, which cost shall not be considered to be a reimbursable Common Area Expense.
11.9 Removal and Replacement of Maintenance Director.
11.9.1 In the event that Vons (provided it is then the Owner or Occupant of the
Supermarket Lot) shall at any time be dissatisfied with the Maintenance Director’s
performance of its obligations, or the cost thereof, then Vons shall have the right to
give the Maintenance Director thirty (30) days written notice of such
dissatisfaction, specifying the particulars in respect of which the Maintenance
Director’s performance is deemed unsatisfactory. If at the end of the thirty (30) day
period from the date of such notice, such performance shall continue to be
unsatisfactory and not cured (or, if it shall reasonably take more than thirty (30)
days to cure, the Maintenance Director shall not have commenced to cure within
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the thirty (30) days and diligently prosecuted the cure to completion), Vons shall
have the right to appoint a new Maintenance Director to take-over and assume the
responsibility for managing, operating and maintaining the Common Area effective
on the first day of the next succeeding calendar month.
11.9.2 Notwithstanding the foregoing, Vons may, in lieu of replacing and
appointing a new Maintenance Director, elect to take-over and assume the
responsibility for managing, operating and maintaining the Common Area on the
Supermarket Lot (and any other Lots for which Vons is then the Owner or
Occupant thereof) in which event, Vons shall (i) have no obligation to pay
Common Area Expenses to the Maintenance Director with respect to the
Supermarket Lot (and any other Lots for which Vons is then the Owner or
Occupant), and (ii) cause, at its sole cost and expense, the Common Area on the
Supermarket Lot (and any other Lots for which Vons is then the Owner or
Occupant) to be maintained in accordance with this Article 11. Vons shall have the
right, at any time thereafter, to cause the Maintenance Director, if any, to resume
the management, operation and maintenance of the Common Area on the
Supermarket Lot (and any other Lots for which Vons is then the Owner or
Occupant) by giving the Maintenance Director for the other Lots at least sixty (60)
days’ prior notice of Vons’s intention to have such Maintenance Director resume
on the date designated in such notice the management, operation and maintenance
of the Common Area on the Supermarket Lot (and any other Lots for which Vons
is then the Owner or Occupant); provided, however, such date for resumption shall
always be the first day of a calendar quarter. If Vons elects to have the
Maintenance Director resume the management, operation and maintenance of the
Common Area on the Supermarket Lot (and any other Lots for which Vons is then
the Owner or Occupant), then on the designated date, the Maintenance Director
shall assume full responsibility therefor and Vons shall again be responsible for its
Pro Rata Share of Common Area Expenses as set forth in this Article 11. During
any period where Vons elects to take over and assume the responsibility for
managing, operating and maintaining the Common Area on the Supermarket Lot
(and any other Lots of which Vons is then the Owner or Occupant), any rights
provided under this Declaration allowing Vons to approve or disapprove any
Common Area Expenses and/or any other aspect of the management of the
Common Area (other than the Lots of which Vons is then the Owner or Occupant)
shall be deemed forfeited by Vons.
11.10 Resignation of Maintenance Director. The Maintenance Director may resign at
any time by giving at least ninety (90) days’ prior notice in writing to the Owners. If
Property Development Centers or any successor Maintenance Director, as the case may
be, shall resign, Developer shall appoint a new Maintenance Director that shall assume
responsibility for the management, operation and maintenance of the Common Area upon
the conclusion of its predecessor Maintenance Director’s appointment and shall perform
the management, operation and maintenance obligations of the Maintenance Director set
forth in this Declaration until such new Maintenance Director resigns or is removed in
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accordance with the terms of this Declaration. Developer’s appointment of a new
Maintenance Director shall be subject to Vons’s prior written approval, which approval
shall not be unreasonably withheld, delayed or conditioned.
11.11 Post Termination or Resignation Responsibilities. If the Maintenance Director
is removed or resigns as hereinabove provided, the Maintenance Director shall, within
sixty (60) days after the effective date of its termination as Maintenance Director, provide
to all of the Owners a written statement of all costs, fees and expenses which are to be
reimbursed to the Maintenance Director pursuant to the terms hereof. Such sums shall be
payable by the Owners to the Maintenance Director within fifteen (15) days after the
delivery of such statement; provided that any such Owner may, at such Owner’s expense,
conduct an audit of the Maintenance Director’s books and records to verify the sums due
so long as such audit is commenced and completed within ninety (90) days after the
delivery of the statements. Any new Maintenance Director will, after its appointment in
accordance with the terms hereof, perform the maintenance, management and operation
obligations of the Maintenance Director set forth in this Agreement throughout the
remainder of the term of this Agreement, or until resignation or removal in accordance
with the terms of this Agreement.
11.12 No Maintenance Director. During any period of time when no person or entity is
performing the duties of the Maintenance Director and no replacement Maintenance
Director has been appointed, each Owner shall have the obligation to maintain the
Common Area on its Lot, at its sole cost and expense, in a manner consistent with the
provisions of this Declaration; provided, however, that if any Shopping Center Signs are
located on such Owner’s Lot, the cost of maintaining any such Shopping Center Signs in
good condition and repair shall be apportioned by the Owner of that Lot among the
Owners whose sign panels are installed thereon in accordance with Section 8.2.1.
12. INDEMNIFICATION; INSURANCE
12.1 Indemnification.
12.1.1 By Owners. Each Owner (“Indemnifying Owner”) shall indemnify,
defend, protect and hold harmless the Developer and the other Owners and their
respective Occupants and the Maintenance Director from and against any and all
claims, demands, causes of action or judgments, and all reasonable expenses
incurred in investigating or resisting the same (including, reasonable attorneys' fees
and court costs), damages and liabilities (“Claims”) for injury to person, loss of life
or damage to property (i) occurring in the Shopping Center and arising out of or
resulting from any construction activities performed by or at the request of the
Indemnifying Owner or any of its Occupants; or (ii) occurring on the Indemnifying
Owner's Lot, but excluding (a) Claims for injury to person, loss of life or damage to
property occurring on the Common Area on such Indemnifying Owner’s Lot that
was being maintained, at the time of the incident giving rise to such Claim, by the
Maintenance Director pursuant to Article 11 (unless such Claims are the type
described in clause (i) above), and (b) Claims to the extent caused by the
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negligence or willful misconduct of the Maintenance Director or any other Owner
or its Occupants or their respective employees, contractors or agents; or (iii)
occurring on the Common Area being maintained, at the time of the incident giving
rise to such Claim, by the Maintenance Director or on another Owner’s Lot, to the
extent caused by the negligence or willful misconduct of the Indemnifying Owner
or the Occupants of the Indemnifying Owner’s Lot or the employees, contractors,
or agents of the Indemnifying Owner. The foregoing defense, indemnity and hold
harmless provision, however, shall not apply to Third Party Claims arising from the
release, spill, treatment, transportation or disposal of Hazardous Materials (the
Owners indemnify each other and their respective Occupants and the Maintenance
Director against such Third Party Claims exclusively pursuant to Section 4.3.2).
12.1.2 Maintenance Director. The Maintenance Director shall indemnify,
defend, protect and hold harmless the Owners and Occupants from and against any
and all Claims for injury to person, loss of life or damage to property occurring on
the Common Area, except to the extent caused by the negligence or willful
misconduct of any other Owner or its Occupants or their respective employees,
contractors or agents. Notwithstanding the foregoing, the Maintenance Director's
liability under this Section (i) shall not exceed the amount of insurance proceeds
that are recovered (or that would have been recoverable) under the commercial or
general liability insurance policy maintained or required to be maintained by the
Maintenance Director on the Common Area under Section 12.2.2 hereof; (ii) shall
not apply to any Claims arising from or through acts occurring on the Common
Area of any Lot from and after the date that the Maintenance Director’s obligations
to operate and maintain the Common Area has ceased; or (iii) shall not apply to
Third Party Claims arising from the release, spill, treatment, transportation or
disposal of Hazardous Materials (the Maintenance Director indemnifies the Owners
and their respective Occupants against such Third Party Claims exclusively by
Section 4.3.2).
12.2 Liability Insurance.
12.2.1 Owners. At all times, each Owner shall, at its sole expense, continuously
maintain or cause to be continuously maintained commercial general liability
insurance (including contractual liability coverage insuring its indemnification
obligations set forth in this Declaration). The limits of liability of such insurance
shall be not less than Two Million Dollars ($2,000,000) combined single limit
coverage for claims for injury to person, loss of life and damage to property arising
out of any single occurrence and not less than Four Million Dollars ($4,000,000)
for such claims in the aggregate during any policy year. The above limits may be
met by a combination of underlying and excess or umbrella policies. The dollar
limit set forth above may be reasonably increased by agreement of the Developer
and Vons or in the absence of such agreement, then by increases of ten percent
(10%) on the commencement of the sixth (6th) anniversary of the date this
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Declaration was recorded in the Recorder’s Office, and at 5-year intervals
thereafter.
12.2.2 Maintenance Director. At all times, the Maintenance Director shall
continuously maintain or cause to be maintained commercial general liability
insurance (including, contractual liability coverage insuring its indemnification
obligations set forth in this Declaration). The limits of liability of such insurance
shall be not less than Two Million Dollars ($2,000,000) combined single limit
coverage for claims for injury to person, loss of life and damage to property arising
out of any single occurrence and not less than Four Million Dollars ($4,000,000)
for such claims in the aggregate during any policy year. The above limits may be
met by a combination of underlying and excess or umbrella policies. The dollar
limit set forth above may be reasonably increased by agreement of the Developer
and Vons or in the absence of such agreement, then by increases of ten percent
(10%) on the commencement of the sixth (6th) anniversary of the date this
Declaration was recorded in the Recorder’s Office, and at 5-year intervals
thereafter.
12.2.3 Additional Insureds. Policies of commercial general liability insurance
maintained by or on behalf of each Owner and the Maintenance Director shall
name all Owners and the Maintenance Director, as applicable, as additional
insureds, and each of them shall, upon written request of any Owner or the
Maintenance Director, furnish certificates of such insurance or other satisfactory
written evidence of such insurance at any time during the term hereof.
12.3 Contractors' Insurance. Each Owner shall cause any contractor performing work
on its Lot or within the building or other improvements thereon to obtain, carry and
maintain, at no expense to any of the other Owners or the Maintenance Director, and the
Maintenance Director shall cause any contractor it hires to perform work in the Common
Area to obtain, carry and maintain, commercial general liability insurance providing on
an occurrence basis a minimum coverage of Two Million Dollars ($2,000,000) per
occurrence and a minimum of Four Million Dollars ($4,000,000) in the aggregate. If the
contractor fails to acquire such insurance, the party who hired that contractor shall
provide such insurance (except worker's compensation insurance and employer's liability)
at its sole cost and expense. The dollar limit set forth above shall be increased by
agreement of the Developer and Vons or in the absence of such agreement, then by
increases of ten percent (10%) on the commencement of the sixth (6th) anniversary of the
date this Declaration was recorded in the Recorder’s Office, and at 5-year intervals
thereafter.
12.4 Master Policy; Self-Insurance. Notwithstanding anything to the contrary
contained in this Article 12, all insurance required to be maintained under Section 12.2
may be (i) maintained under a master or blanket policy (or policies), and (ii) under a self-
insurance program provided that the self-insuring party or the parent of such party
providing the self-insurance program has a net worth of at least One Hundred Million
Dollars ($100,000,000). The self-insuring party shall pay the amount of any deductible or
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self-insurance provided under any insurance such party is required to maintain under this
Article 12. The dollar limit set forth above may be reasonably increased by agreement of
the Developer and Vons or in the absence of such agreement, then by increases of ten
percent (10%) on the commencement of the tenth (10th) anniversary of the date this
Declaration was recorded in the Recorder’s Office, and at 10-year intervals thereafter.
13. REAL ESTATE TAXES AND ASSESSMENTS.
13.1 Owners’ Responsibility. It is intended that all real estate taxes and assessments
relating to any portion of the Shopping Center or improvements thereon, or the ownership
thereof, shall be paid prior to delinquency by the respective Owners thereof.
13.2 Contest. In the event that any Owner shall deem any real estate tax or assessment
to be paid by said Owner to be excessive or illegal, said Owner shall have the right, at its
own cost and expense, to contest the same by appropriate proceedings, and nothing
contained in this Section 13.2 shall require the Owner to pay any such real estate tax or
assessment as long as (a) no other Owner’s Lot could be affected by such failure to pay,
and (b) the amount or validity thereof shall be contested in good faith. If the failure to
pay such tax would affect any other Owner’s Lot (e.g., because foreclosure of failing
Owner’s Lot would impede access to or the use of the Common Area by any other
Owner), such other Owner shall have the right to pay such tax and shall have a lien on the
non-paying Owner’s Lot for the amount so paid. Any such lien shall be subject and
subordinate, however, to any bona fide mortgage or deed of trust made in good faith and
for value then outstanding against said Lot.
13.3 Remedies for Delinquent Payments. In the event any Owner fails at any time to
pay before delinquency its taxes or assessments on any portion of its Lot or Lots, and
which may become a lien on any of the Common Area, then, except while the validity
thereof is being contested by judicial or administrative proceedings, any other Owner may
pay such taxes and/or assessments together with interest, penalties and cost, and in any
such event the defaulting Owner obligated to pay such taxes and/or assessments shall
promptly reimburse such other Owner within twenty (20) days of demand accompanied
by evidence of payment for all such taxes and/or assessments, interest, penalties, and cost
and other charges and until such reimbursement has been made the amount thereof shall
constitute a lien and charge on the defaulting Owner’s Lot, subject and subordinate,
however, to any bona fide mortgage or deed of trust made in good faith and for value then
outstanding against said Lot.
14. DAMAGE AND DESTRUCTION
14.1 Buildings.
14.1.1 In the event of any damage to or destruction of any building, the Owner of
the Lot upon which such building is located, at its election, at its sole cost and risk
and with all due diligence, shall either (i) restore or replace, or cause to be restored
or replaced, such building in accordance with the provisions of this Declaration, or
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(ii) raze and remove, or cause to be razed and removed, all parts of said damaged or
destroyed building then remaining and clear the Lot of all debris and hazardous
conditions resulting therefrom and restore the Building Area affected by such
casualty to a level and clean condition reasonably integrated into the balance of the
Shopping Center.
14.1.2 In the event an Owner does not restore or replace (or cause to be restored
and replaced) its damaged building or other improvements under the provisions of
this Section 14.1, such Owner shall maintain its Lot in a clean, safe and attractive
condition. In no event shall any Owner have the right to withdraw its Lot or
portion thereof from the Common Area, or from any easements created and
provided for hereunder, or be relieved of its obligation to pay Common Area
Expenses as required by Article 11.
14.2 Common Area. If any damage or destruction occurs to the Common Area
improvements situated on an Owner’s Lot, the Owner of such Lot shall promptly and
with all due diligence restore the drive aisles, parking areas, landscaping and sidewalks
within the Common Area on its Lot to the same or better condition as that existing prior
to the damage or destruction to the extent necessary to preserve the reciprocal vehicular
and pedestrian access and parking throughout the Shopping Center.
15. EMINENT DOMAIN.
15.1 Owner’s Right to Award. Except as expressly provided in this Section 15.1,
nothing herein shall be construed to give any Owner any interest in any award or
payments made to another Owner in connection with any exercise of eminent domain or
transfer in lieu thereof (“Taking”) affecting said other Owner’s Lot or construed to give
the public or any government any rights in the Shopping Center. In the event of any
Taking of any part of the Common Area, the award attributable to the land and
improvements of such portion of the Common Area shall be payable only to the Owner in
fee of the Lot within which lies said Common Area and no claim thereon shall be made
by the Owners of any other portion of the Common Area. Notwithstanding the foregoing,
Vons shall have the right to make a claim for the loss of its easement rights in connection
with the Taking of all or any portion of the drive aisles entering the Shopping Center
from La Costa Avenue or Rancho Santa Fe Road or the portion of the property within the
Shopping Center behind the Supermarket Lot labeled "Loading."
15.2 Collateral Claims. Any Owner of a Lot which is not the subject of a Taking may
file collateral claims with the condemning authority over and above the value of the value
of the land area and improvements taken from another Owner to the extent of any losses
suffered by such Owner resulting from the severance of the land or improvements so
taken including, by way of example but not limitation, losses arising from a
condemnation which affects access to an Owner’s Lot.
15.3 Restoration of Common Area. In the event of a Taking of less than all of a Lot,
the Owner of the Lot so taken shall promptly and with all due diligence repair and restore
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the remaining portion of the Common Area and the improvements located thereon as
nearly as practicable to the condition of the same existing immediately prior to such
Taking and without contribution from any other Owner. Notwithstanding the foregoing,
if the building(s) on any Lot is not repaired or restored, then the Owner of such Lot shall
have the same rights and obligations concerning rebuilding as provided under
Section 14.1 of this Declaration.
15.4 Occupant’s Claim. Nothing in this Article 15 shall prevent a tenant from making
a claim against an Owner pursuant to the provisions of any lease or other agreement
between such tenant and such Owner for all or a portion of any such award or payment.
16. DEFAULT.
16.1 Default. The occurrence of any one or more of the following events shall
constitute a material default and breach of this Declaration by the non-performing Owner
(the "Defaulting Owner"): (i) the failure to make any payment required to be made
hereunder within twenty (20) days after the receipt of a notice given by another Owner or
the Maintenance Director (the "Non-Defaulting Entity") specifying the amount of the
payment which was not made; and (ii) the failure to observe or perform any of the
covenants, conditions or obligations of this Declaration, other than as described in (i)
above, within thirty (30) days after the receipt of a notice given by a Non-Defaulting
Entity specifying the nature of the default claimed (or if such failure cannot with due
diligence be cured within such 30-day period, then the failure of the Defaulting Owner to
promptly commence curing the default within such 30-day period, and diligently
prosecute such cure to completion as soon as possible thereafter).
16.2 Right to Cure. With respect to any default under Section 16.1(ii), any Non-
Defaulting Entity shall have the right following the expiration of any applicable cure
period, if any, but not the obligation, to cure such default by the payment of money or the
performance of some other action for the account of and at the expense of the Defaulting
Owner; provided, however, that in the event such default shall constitute an emergency
condition, the Non-Defaulting Entity, acting in good faith, shall have the right to cure
such default upon such advance notice as is reasonably possible under the circumstances
or, if necessary, without advance notice, so long as notice is given as soon as possible
thereafter. To effectuate any such cure, the Non-Defaulting Entity shall have the right to
enter upon the Lot of the Defaulting Party (but not into any building) to perform any
account of and at the expense of the Defaulting Owner. In the event any Non-Defaulting
Entity shall cure a default, the Defaulting Owner shall reimburse the Non-Defaulting
Entity for all costs and expenses incurred in connection with such curative action, plus
interest at the maximum rate allowed by law, within ten (10) days after receipt of demand
therefor, together with reasonable documentation supporting the expenditures made.
16.3 Effective Lien. Costs and expenses accruing and/or assessed pursuant to Section
16.2, shall constitute a lien against the interest of the Defaulting Owner in the Defaulting
Owner’s Lot. The lien shall attach and take effect only upon recordation of a claim of
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lien in the official records of the County of San Diego by the Owner making the claim.
The claim of lien shall include the following:
16.3.1 The name of the lien claimant;
16.3.2 A statement concerning the basis for the claim of lien and identifying the
lien claimant as a curing entity;
16.3.3 An identification of the Owner or reputed Owner of the property or
interest therein against which the lien is claimed;
16.3.4 A description of the property against which the lien is claimed;
16.3.5 A description of the work performed which has given rise to the claim of
lien and a statement itemizing the amount thereof; and
16.3.6 A statement that the lien is claimed pursuant to the provisions of this
Agreement, reciting the date, book and page of recordation thereof. The notice
shall be duly verified, acknowledged and contain a certificate that a copy thereof
has been served upon the Owner against whom the lien is claimed, by personal
service or by mailing pursuant to Article 19 below. The lien so claimed shall attach
from the date of recordation solely in the amount claimed thereby and may be
enforced in any judicial proceedings allowed by law, including without limitation,
suit in the nature of a suit to foreclose a mortgage/deed of trust or mechanic’s lien
under the applicable provision of the law of the State of California.
16.4 Other Actions. Each Non-Defaulting Entity shall have the right to prosecute any
proceedings at law or in equity against any Defaulting Owner, or any other person,
violating or attempting to violate or defaulting upon any of the provisions contained in
this Declaration, and to recover damages for any such violation or default. Such
proceeding shall include the right to restrain by injunction any violation or threatened
violation by another of any of the terms, covenants, or conditions of this Agreement, or to
obtain a decree to compel performance of any such terms, covenants, or conditions, it
being agreed that the remedy at law for a breach of any such term, covenant, or condition
(except those, if any, requiring the payment of a liquidated sum) is not adequate. All of
the remedies permitted or available to an Owner or the Maintenance Director under this
Declaration or at law or in equity shall be cumulative and not alternative, and invocation
of any such right or remedy shall not constitute a waiver or election of remedies with
respect to any other permitted or available right or remedy.
16.5 Intentionally Deleted.
16.6 Waiver of Jury Trial. The Owners desire and intend that any dispute or
controversy arising between or among them with respect to or in connection with this
Declaration be subject to expeditious resolution in a court trial without a jury. Therefore,
the Owners each irrevocably and unconditionally waives, to the extent permitted under
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California law, any right it may have to a trial by jury of any cause of action, claim,
counter claim or cross complaint in any action, proceeding or other hearing brought by
another Owner on any matter whatsoever arising out of, or in any way connected with,
this Declaration, the Shopping Center, the relationship of the Owners concerning the
subject matter of this Declaration or the documents related thereto or any claim of injury
or damage, or the enforcement of any remedy under any Applicable Law concerning such
Declaration. By accepting an interest in any part of the Shopping Center, each of the
Owners certifies and acknowledges that (i) it understands and has considered the
implications of such waiver, (ii) it makes such waiver voluntarily, and (iii) it has been
induced to enter into this agreement by among other things, the mutual waiver and
certifications in this Section 16.6 to the extent permitted under California law. If, as of
the date of this Declaration, the waiver made in this Section 16.6 is not valid under
California law, but hereafter such waivers are permitted under California law, then from
the time that such waivers are permitted and with prospective effect only, this Section
16.6 shall be in full force and effect without the need for any further action of the parties.
16.7 Attorneys' Fees. If any Owner or the Maintenance Director employs legal counsel
to bring an action (at law or in equity) or any other proceedings to enforce any of the
provisions of this Declaration, or for a declaration interpreting any of the provisions of
this Declaration, then the unsuccessful litigant will pay to the prevailing litigant a
reasonable sum for attorneys' fees. Attorneys' fees will include attorneys' fees on any
appeal, and in addition a litigant entitled to attorneys' fees will be entitled to all other
reasonable costs for investigating such action, taking depositions and other discovery,
travel, and all other necessary costs incurred in such litigation. Such award shall include
an award for the allocable cost of in-house counsel, if applicable.
16.8 Governing Law. This Declaration shall be governed and enforced by, and
construed in accordance with the laws of the State of California.
17. CANCELLATION; MODIFICATION; DURATION.
17.1 Cancellation. This Declaration may be cancelled only by the written agreement of
all of the Owners, together with the written consent of the City and Vons, as long as Vons
has any interest in the Shopping Center as an Owner or lessee of a Lot, which
cancellation agreement shall be recorded in the Recorder’s Office.
17.2 Modification; Delegation of Authority.
17.2.1 Except as otherwise provided in Sections 17.2.2 and 17.2.3, this
Declaration may be modified only by the written agreement of (i) the Developer,
and (ii) Vons, which modification agreement shall be recorded in the Recorder’s
Office. Any purchaser, lender, lessee, grantee, Occupant or any other party having
any interest in any portion of a Lot of which Developer or Vons is the Owner or
tenant shall be deemed to have appointed Developer or Vons, as applicable, as its
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attorney-in-fact for such Lot for the purpose of negotiating and entering into any
modifications of this Declaration.
17.2.2 Notwithstanding Section 17.2.1 to the contrary, any modification of this
Declaration that: (i) would reduce or relocate the Building Area of a Lot or reduce
the permissible building height thereon; (ii) would materially alter the Common
Area layout of a Lot; (iii) would materially alter the Common Area layout on any
other Lot within fifty feet (50’) of the property line of any other Lot, and such
alteration would substantially interfere with parking for or access to such Lot, (iv)
would impose any additional use or building restrictions on an Owner or a Lot; or
(v) would impose any materially greater obligation on, or materially impair any
right of, an Owner, then such modification agreement shall require that the affected
Owner or the Owner of the affected Lot, as the case may be, join in the execution
of such modification agreement.
17.2.3 Any proposed modifications to this Declaration shall be provided to the
City at least five (5) business days prior to approval by the Developer and Vons
pursuant to Section 17.2.1. Modifications to Sections 1.3, 4.1, and 21.1, Article 11,
and this Article 17 of this Declaration shall require the prior written approval of the
City. Either Developer or Vons may submit a request to the City in writing for
approval of a modification to one of the sections pursuant to this Section 17.2.3.
Such request shall be addressed to, and considered by, the Office of the City
Attorney of the City. If the City fails to respond within thirty (30) days to such
written request for approval of a proposed modification pursuant to this Section
17.2.3, the City shall be deemed to approve the requested modification. Any
written request to the City for approval of a proposed modification pursuant to this
Section 17.2.3 shall refer to the City's thirty (30) day timeline to respond.
17.2.4 Any modification of this Declaration shall be recorded in the Recorder’s
Office and a copy of the recorded modification will be provided by Developer to
the City.
17.3 Duration. Unless cancelled or terminated as permitted herein, all the easements,
covenants, conditions and restrictions and other terms and provisions granted or set forth
in this Declaration shall continue in perpetuity.
18. OWNERS AND SUCCESSORS.
18.1 Release from Liability. Any person or entity acquiring fee or leasehold title to any
portion of the Shopping Center shall be bound by this Declaration only as to the Lot or
portion thereof acquired by such person or entity. Such person or entity shall be bound by
this Declaration only during the period such person or entity is the fee or leasehold owner
of such Lot or portion thereof, except as to obligations, liabilities or responsibilities that
accrue during said period. Although persons or entities may be released under this
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Section, the easements, covenants and restrictions in this Declaration shall continue to be
benefits and servitudes upon the Shopping Center running with the land.
18.2 Tenants in Common. In the event that any Lot shall be owned by more than one
Owner as tenants in common, then not less than fifty-one percent (51%) in interest of
such Owners shall designate one of their number to act on behalf of all of such Owners in
the exercise of the powers granted to such Lot under this Declaration, and such designee
shall have the power to bind the Lot and the other Owners as if it were the sole Owner.
Any such designation shall be in writing and served upon the other Owners in accordance
with the notice provisions set forth in Article 19 below. In the absence of such
designation, any Owner may serve notice on all Owners of record of the affected Lot that
such designation is required, and if no response is made within thirty (30) days of such
Owner’s notice, then the Owners of the Lot shall be deemed to have approved any request
for approval made of such Owners, until a designation is properly made.
19. NOTICES.
19.1 Transmittal. All notices, requests, demands, waivers, consents, approvals and
other communications required or permitted to be given in connection with this
Declaration will be in writing and will be given by (i) personal hand delivery,
(ii) established express delivery or courier service (such as Federal Express) which
maintains delivery records, or (iii) postage prepaid United States certified or registered
mail, return receipt requested. Notices may also be given by fax or portable document
format (pdf), provided that (a) confirmation of completed transmission is obtained, and
(b) concurrent notice is given by one of the methods described in the preceding sentence,
with deposit in the mail or delivery to the courier to be made no later than the next
business day following the fax or pdf transmission.
19.2 Addresses. Notices made by the Owners pursuant hereto shall be addressed as
indicated in writing in a notice from each Owner to each of the other Owners. Notices to
Developer and Vons shall be addressed as follows:
To Developer: Property Development Centers LLC
5918 Stoneridge Mall Road
Pleasanton, CA 94588
Attn: Vice President, Leasing (#88-2724)
With a copy to: Safeway Inc.
Real Estate Law Department #88-2724
5918 Stoneridge Mall Road
Pleasanton, CA 94588
To Vons: Safeway Inc.
Vons Division Real Estate #29-2724
618 Michillinda Avenue
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Arcadia, CA 91007
With a copy to: Safeway Inc.
Real Estate Law Department #29-2724
5918 Stoneridge Mall Road
Pleasanton, CA 94588
An Owner may, from time to time, change its address for receiving notices by giving
written notice thereof in the manner outlined above, provided such change contains a
street address for personal delivery. Each new Owner shall record in the Recorder’s
Office an instrument setting forth its address for notice purposes. In the event that an
Owner no longer maintains the address set forth above, or a new Owner has not recorded
its address for notice purposes, notice may be addressed to the address to which tax
statements and assessments are mailed, according to the tax assessor’s public records.
Notice may be served on non-Owners by mail or delivery addressed to such non-Owner’s
street address in the Shopping Center.
19.3 Effectiveness. Notices sent in accordance with this Article 19 shall be effective
as follows: (i) in the case of personal or fax delivery, upon receipt by the party to whom
notice is being given, provided that faxed or pdf notices sent outside normal business
hours (e.g., after 5:00 P.M. on weekdays, and anytime on weekends or holidays), shall be
effective on the next business day; (ii) in the case of delivery by certified or registered
mail, on the third (3rd) business day after the notice is sent; or (iii) in the case of delivery
by overnight delivery service, on the date following the day the notice is sent.
20. MORTGAGEES AND OTHER THIRD PARTIES.
20.1 Mortgagee Protections. “Mortgagee” shall mean a mortgagee under a mortgage,
as well as a beneficiary under a deed of trust encumbering the fee interest of an Owner in
a Lot. This Declaration, and the rights, privileges, covenants, agreements and easements
hereunder with respect to each Owner and all Lots, shall be superior and senior to any
lien placed upon any Lot, including the lien of any mortgage, deed of trust or other
interest of a Mortgagee. Notwithstanding the foregoing, no breach hereof shall defeat,
render invalid, diminish or impair the lien of any mortgage or deed of trust made in good
faith and for value, but all of the covenants and restrictions, easements and conditions and
other provisions, terms and conditions contained in this Declaration shall be binding upon
and effective against any person or entity (including any Mortgagee) who acquires title to
any Lot or any portion thereof by foreclosure, trustee’s sale, deed in lieu of foreclosure or
otherwise.
20.2 Third Parties Bound by this Declaration. Notwithstanding any provision to the
contrary contained in any mortgage, deed of trust, lease or other instrument to which any
Owner or Occupant is a party (“Other Instrument”), any Mortgagee, Occupant or other
person having or hereafter acquiring an interest in any portion of the Shopping Center (as
used in this Article 20, “Third Party”) shall be subject to the terms of the Declaration,
and shall be deemed to have consented to all its terms (including, without limitation, the
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waiver of jury trial) by virtue of taking such interest. Without limiting the foregoing,
condemnation and insurance awards and proceeds shall be utilized for any reconstruction
required herein following damage or destruction as provided in Article 14, or a Taking, as
provided in Article 15 or and no Third Party shall have any claim on any such award or
proceeds inconsistent with the terms hereof. In the event of any conflict between the
terms of any Other Instrument and this Declaration, this Declaration shall control.
20.3 No Third Party Beneficiaries. The rights, privileges and immunities of any
Owner, including the rights to modify this Declaration on the terms provided herein, are
for the benefit of the Owners and not for any Third Party. Any amendments or
modifications hereof whenever made shall be superior to any and all liens or other Third
Party interests, to the same extent as if such amendment or modification had been
executed concurrently herewith. Nothing contained herein precludes any separate
agreements between two or more Owners, or an Owner and any Third Party, provided
that the other Owners shall not be bound or affected thereby and in the event of any
inconsistency, the terms of this Declaration shall control.
21. GENERAL PROVISIONS.
21.1 City’s Authority Related to the Enforcement of this Declaration.
21.1.1 Failure of Maintenance Director to Maintain Common Area. In the
event of any breach by the Maintenance Director, any Owner or Occupant of any of
its Common Area maintenance obligations set forth in Article 11 of this
Declaration, the City shall have the right, but not the obligation, to perform the
Common Area maintenance described in Article 11. If the City elects to perform
the necessary maintenance, the City shall give written notice to the Maintenance
Director and the Owners of all Lots within the Shopping Center setting forth with
particularity the maintenance which the City finds to be required and requesting the
same be carried out by the Maintenance Director (or, if there is no Maintenance
Director, the Owners) within a period of thirty (30) days from the giving of such
notice. In the event that the Maintenance Director fails to carry out such
maintenance of the Common Area within the period specified by the City's notice,
the City shall be entitled to cause such work to be completed and shall be entitled
to reimbursement with respect thereto from the Owners as provided in Article 11.
21.1.2 Special Assessments Levied by the City. In the event the City has
performed the necessary maintenance of the Common Area pursuant to Section
21.1.1, the City shall submit a written invoice to the Maintenance Director and to
the Owners of all Lots within the Shopping Center for all costs incurred by the City
to perform such maintenance of the Common Area along with a statement that if
the Maintenance Director or the Owners fail to pay such invoice within the time
specified, the City will pursue collection against the Owners pursuant to the
provisions of this Section. Said invoice shall be due and payable by the
Maintenance Director (or, if there is no Maintenance Director, by the Owners)
within twenty (20) days of receipt by the Maintenance Director (or, if there is no
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Maintenance Director, of receipt by the Owners). If such invoice is not paid in full
within the period specified, payment shall be deemed delinquent and shall be
subject to a later charge in the amount equal to six percent (6%) of the amount of
the invoice. Thereafter, the City may pursue collection from the Maintenance
Director or the Owners of Lots by means of any remedies available at law or
equity. Without limiting the generality of the foregoing, in addition to all other
rights and remedies available to the City, the City may levy a special assessment
against the Owners of each Lot in the Shopping Center for an equal pro rata share
of the invoice, plus the late charge. Such special assessment shall constitute a
charge on the land and shall be a continuing lien upon each Lot against which the
special assessment is levied. Each Owner in the Shopping Center hereby vests the
City with the right and power to levy such special assessment, to impose a lien
upon their respective Lot and to bring all legal actions and/or to pursue lien
foreclosure procedures against any Owner and his/her respective Lot for purposes
of collecting such special assessment in accordance with this Section.
21.1.3 Estoppel Certificates. Within thirty (30) days of a written request
by Developer, Vons or Owner, City shall be required to provide an estoppel
certificate stating to the best of the City's knowledge whether it knows of any
default under Article 11 of this Declaration, or any event or circumstance that,
with notice or the passage of time or both, would be a default, and if there are
known defaults, specifying the nature thereof in reasonable detail. Written
requests for an estoppel certificate pursuant to this Section 21.1.3 shall be
addressed to, and considered by, the Office of the City Attorney of the City and
shall include reference to the City's thirty (30) day timeline to respond.
21.2 No Covenant to Operate. Nothing, either expressed or implied, contained in this
Declaration shall obligate any Owner or any Occupants to open or to continuously operate
any type of business on its Lot.
21.3 Running of Benefits and Servitudes; Rights of Successors. The easements,
restrictions, benefits and obligations hereunder shall create mutual benefits and servitudes
upon all the Lots running with the land. This Declaration shall bind and inure to the
benefit of the Owners, their respective heirs, personal representatives, Occupants,
successors and/or assigns.
21.4 Not a Public Dedication. Nothing herein contained shall be deemed to be a gift or
dedication of any portion of the Common Area to the general public or for the general
public or for any public purposes whatsoever, it being the intention of the Owners that
this Declaration shall be strictly limited to and for the purposes herein expressed. The
right of the public or any person to make any use whatsoever of the Common Area of the
Lots herein affected, or any portion thereof (other than any use expressly allowed by a
written or recorded map, agreement, deed or dedication) is by permission, and subject to
the control of the Owners. Notwithstanding any other provisions herein to the contrary,
the Owners by mutual agreement may periodically restrict ingress and egress from the
Common Area in order to prevent a prescriptive easement from arising by reason of
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continued public use. Any restriction on ingress and egress shall be limited to the
minimum period necessary to prevent the creation of a prescriptive easement and shall
occur at such a time as to have a minimum effect on the operation of the Shopping
Center.
21.5 Interpretation. Whenever used herein, the term “including” shall be deemed to be
followed by the words “without limitation.” Words used in the singular number shall
include the plural, and vice versa, and any gender shall be deemed to include each other
gender. The captions and headings of the Articles and Sections of this Declaration are for
convenience of reference only, and shall not be deemed to define or limit the provisions
hereof.
21.6 No Joint Venture. It is not intended by this Declaration to, and nothing contained
in this Declaration shall, create any partnership, joint venture or other joint or equity type
agreement between the Owners.
21.7 Severability. If any term stated in this instrument is subsequently determined to be
invalid, illegal or unenforceable, that determination shall not offset the validity, legality
or enforceability of the remaining terms stated in this instrument unless that is made
impossible by the absence of the omitted term.
21.8 Reasonableness of Consent.
21.8.1 Unless otherwise provided herein, whenever an Owner’s agreement or
approval is required under this Declaration, such Owner shall not unreasonably
withhold or condition such agreement or approval. If an Owner shall not agree or
shall disapprove, the reasons therefor shall be stated in reasonable detail in writing.
21.8.2 Wherever in this Declaration the consent or approval of any Owner is
required, and unless a different time limit is provided therefor, such consent or
approval shall be given or denied within thirty (30) days following receipt or
deemed receipt of the request. In the event any Owner refuses or fails to respond to
any request within the time prescribed, an additional notice shall be given, and the
Owner shall approve or deny within ten (10) days following receipt or deemed
receipt of the second notice. If the Owner fails to respond to such additional notice
within said 10-day period, the same shall be conclusively deemed to have been
approved or consented to by such Owner, unless the item may be consented to,
approved or disapproved by the Owner in its sole discretion, in which case the
same shall be deemed to have been denied. Any disapproval shall specify with
particularity the reasons therefor; provided, however, that where in this Declaration
any Owner is given the right to consent or approve or disapprove in its sole
discretion, it may refuse to consent without specifying a reason and such refusal to
consent or disapproval shall not be subject to contest in any judicial or other
proceeding.
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21.8.3 Any document or item submitted for the consent or approval of any Owner
shall contain a cover page prominently reciting the date mailed, the applicable
Declaration provision(s) involved and the time within which a response is required
under this Declaration and, if applicable, shall contain a statement in capitalized
letters and bold type face to the effect that the approval request is either (i) subject
to the Owner’s sole discretion, or (ii) shall be deemed approved or consented to by
the recipient unless the recipient makes an objection thereto within the time
specified in the notice, which shall be thirty (30) days (unless this Declaration shall
specify a different period). If the time for a response in the notice is incorrectly or
not set forth, the time limit shall be thirty (30) days unless a longer time period is
specified in the Declaration, in which case the longer period of time shall control.
Failure to specify such time shall not invalidate the notice but simply shall require
the action of such Owner within thirty (30) days or such longer period, after being
advised of the correct time frame (if longer). Notwithstanding the foregoing, no
Owner’s approval shall be deemed to have been given by its failure to object
thereto if the notice requesting such approval or the accompanying cover letter did
not fully comply with the provisions of this Section or if the recipient was entitled
to refuse such consent or deny such approval in its sole discretion.
21.9 Estoppel Certificates. Each Owner and the Maintenance Director agrees that
upon written request (which shall not be more frequent than three (3) times during any
calendar year) of any other Owner or the Maintenance Director, it will issue (without fee
or charge of any sort), within thirty (30) days after receipt of such request, an estoppel
certificate stating to the best of the issuer's knowledge as of such date: (i) whether it
knows of any default under this Declaration by the requester, or any event or
circumstance that, with notice or the passage of time or both, would be a default, and
specifying the nature of the default(s) in reasonable detail; (ii) whether this Declaration
has been assigned, modified or amended and if so, identifying the assignment,
modification or amendment; and (iii) whether this Declaration is in full force and effect.
Such statement shall act as a waiver of any claim by the Owner or the Maintenance
Director, as applicable, furnishing it to the extent the claim is based upon contrary facts
asserted against a bona fide encumbrancer or purchaser for value without knowledge of
facts to the contrary of those contained in the statement, and who has acted in reasonable
reliance upon the statement; provided however, such statement shall in no event
constitute a waiver of any claim by the Owner or the Maintenance Director, as applicable,
furnishing such statement against any other Owner or if applicable, the Maintenance
Director and shall in no event subject the Owner or the Maintenance Director, as
applicable, furnishing it to any liability whatsoever, notwithstanding the negligent or
otherwise inadvertent failure of such Owner or the Maintenance Director, as applicable,
to disclose correct and or relevant information.
21.10 Waivers. A waiver of any default, and any consent to any action at variance with
the terms of this Declaration, shall be in writing and no waiver of any default or consent
by any Owner or the Maintenance Director under this Declaration shall be implied from
any omission by any Owner or the Maintenance Director to take any action in respect of
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such default if such default or action continues or is repeated. No express waiver of any
default, and no express consent, shall affect any default or cover any period of time other
than the default and period of time specified in such express waiver, nor shall it be
deemed to be a consent to any other action other than the subject of the specific consent.
21.11 Time of Essence. Time is of the essence with respect to the performance of each
obligation of this Declaration.
21.12 Dates of Performance. In the event that any date for: (i) performance by any
Owner or the Maintenance Director of any obligation hereunder required to be performed
by such entity, or (ii) the exercise of a right hereunder by any Owner or the Maintenance
Director, falls on a Saturday, Sunday, nationally established holiday or state established
holiday in the state where the entity has its principal place of business, the time for
performance of such obligation, or exercise of such right, will be deemed extended until
the next business day following such date.
21.13 Entire Agreement. This Declaration once fully executed and recorded in the
Recorder’s Office contains the entire agreement between the Owners and supersedes all
prior agreements, oral or written, with respect to the subject matter hereof and that, in
executing it, the Owners do not rely upon any statement, promise, or representation not
herein expressed.
21.14 Counterparts. This Declaration may be executed in any number of identical
counterparts, each of which when executed and delivered shall be an original, but all such
counterparts shall constitute but one and the same instrument. Any signature page of this
instrument may be detached from any counterpart without impairing the legal effect of
any signatures thereof, and may be attached to another counterpart, identical in form
thereto, but having attached to it one or more signature pages.
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IN WITNESS WHEREOF, Developer and Vons have executed this Declaration as of the
Effective Date.
DEVELOPER: VONS:
PROPERTY DEVELOPMENT CENTERS LLC, a Delaware limited liability company
By: Safeway Inc.,
a Delaware corporation,
Its: Sole and Managing Member
By: ___________________________
Its: Assistant Vice President
By: _________________________
Its: Assistant Secretary
Form Approved: ______
THE VONS COMPANIES, INC., a Michigan corporation
By: _____________________________
Its: Assistant Vice President
By: _____________________________
Its: Assistant Secretary
Form Approved: ____
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DEVELOPER
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
) ss.
COUNTY OF ALAMEDA )
On _________________, 2014, before me, __________________, a Notary Public, personally
appeared ___________________________ and _________________________, who proved to
me on the basis of satisfactory evidence to be the persons whose names are subscribed to the
within instrument and acknowledged to me that they executed the same in their authorized
capacities, and that by their signatures on the instrument the persons or the entity upon behalf of
which the persons acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: [SEAL]
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VONS
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
) ss.
COUNTY OF ALAMEDA )
On _________________, 20____, before me, __________________, a Notary Public, personally
appeared ___________________________ and _________________________, who proved to
me on the basis of satisfactory evidence to be the persons whose names are subscribed to the
within instrument and acknowledged to me that they executed the same in their authorized
capacities, and that by their signatures on the instrument the persons or the entity upon behalf of
which the persons acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: [SEAL]
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EXHIBIT A
SITE PLAN OF SHOPPING CENTER
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EXHIBIT B
LEGAL DESCRIPTION OF SHOPPING CENTER
PARCEL 2 OF CARLSBAD MINOR SUBDIVISION 04-08 ACCORDING TO PARCEL MAP NO. 20982
RECORDED IN THE OFFICIAL RECORDS OF THE COUNTY RECORDER OF THE COUNTY OF SAN
DIEGO AT 2012-0402964 ON JULY 11, 2012.
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EXHIBIT C
SIGN CRITERIA
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EXHIBIT D
CROSS LOT DRAINAGE AREA
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EXHIBIT E
SUPERMARKET LOT CONTROL ZONE, 24-HOUR PROTECTED AREA, RESTAURANT-
RESTRICTED AREA