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HomeMy WebLinkAbout8.1 SB 343 Additional Info C.)10- 4,. f 0_1 0. t \ <,..,1441.,> je. j 4. IFO ' S B 343 Senate Bill 343 mandates supplemental materials that have been received by the Planning Department that relate to an agenda item after the agenda packets have been distributed to the Planning Commission be available to the public. This document is also available in the Planning Department and on the City's Website. The attached document was received in the Planning Department after distribution of the November 27, 2012 Planning Commission meeting agenda packet. Item 8.1, 11.27.12 Seth Adams From: Eric Nelson <enelson @rmrginc.com> Sent: Monday, November 26, 2012 3:59 PM To: Seth Adams Subject: Amador Valley&Amador Plaza Attachments: DC-260-B5DF826314.pdf Hi Seth, Sorry you are being dragged into this issue...I am sure you have plenty to do. I have attached the document that I am guessing he is referencing... A few key provisions are noted in highlight green but I will attempt to summarize them. (i) Red Mountain is Owner A, (ii)The Floor Store is Owner B, (iii)The fourth paragraph of the Witnesseth section notes our future right to build a building(with no restriction on size, just the area, though we can modify as noted in Section 1.A), (iv)The fith paragraph clearly states the MAX square footage of the building allowed on Parcel B is 10,500sf, (v.) Section 1.A notes that all future buildings shall be place in areas designated on Exhibit C as Building Area: it goes on to restrict any buildings on Parcel B in the common areas and includes the right to modify the buildings or structures approved in writing by Owner A(Red Mountain),thus allowing any size building on the corner or as modified by Red Mountain. My assumption is that they are using the notes on Exhibit C that limit buildings to 3500 as to the theory that we cannot build a 4500 sf building. Unfortunately,the law looks at the construction and language of the document to determine the intent. If the intent was to limit the size of the building on Parcel A,this would have been included in the fourth paragraph of the Witneseth (noted above) but was not. In addition, it would not have provided blanket authority to modify the building areas on Parcel A if the intent was to limit or restrict buildings. Hope that at least clarifies the issue for you...let me know if you have any questions. See you tomorrow. Best, Eric A. Nelson 1 Red Mountain Retail Group, Inc. Vice President Development 1 Government Affairs 1234 E. 17th Street Santa Ana, CA 92701 main: 714.245.7400 1 fax: 714.245.7401 direct: 714.245.74051 cell: 949.510.2070 enelson @rmrginc.com www.redmountainretailgroup.com Privileged And Confidential Information This electronic transmission and any documents attached hereto (i) are protected by the Electronic Communications Privacy Act(18 USC§§ 2510-2521), (ii) may contain confidential and/or legally privileged information, and (iii)are for the sole use of the intended recipient named above. If you have received this electronic message in error, please notify the sender and delete the electronic message. Do not disseminate, distribute, copy or alter this email. Any disclosure, copying, distribution,or use of the contents of a message received in error is strictly prohibited. P Please join Red Mountain Group, Inc and consider our environment before printing this email. Original Message From: XeroxPrinter @rmrginc.com (mailto:XeroxPrinter @rmrginc.comi Sent: Monday, November 26, 2012 11:43 PM To: Eric Nelson Subject: DC-260-B5DF826314 has been scanned The following document has been scanned on the Fiery and attached to this email: DC-260-B5DF826314.pdf 2 COHEN) DURRETTLLP November 26,2012 VIA FEDERAL EXPRESS OVERNIGHT AND ELECTRONIC MAIL: (seth.adams(a,dublin.ca.gov) Seth Adams Assitant Planner City of Dublin 100 Civic Plaza Dublin, CA 94568 Re: PLPA-2012-00006 Amador Crossing Commerical Pad Building Site Development Review Dear Mr.Adams: This law firm serves as legal counsel to Michael T.Cobler,the owner of the property on which the Floor Store is located at Amador Crossing(Amador Plaza Road and Amador Valley Boulevard). This property and the adjacent property owned by Red Mountain Retail Group is subject to that certain Declaration of Encumbrances dated September 20, 1989,and recorded in the Official Records of Alameda County on September 20, 1989,under Document No. 89-257845 ("Declaration"). A copy of the Declaration is attached hereto. As noted on Exhibit C of the Declaration,the building located at the corner of Amador Plaza Road and Amador Valley Boulevard is restricted in size to 3,500 square feet. This has been brought to the attention of the representatives of Red Mountain Retail Group,although such representatives are currently requesting city approval for a building consisting of approximately 4,500 square feet in violation of the Declaration. Therefore,this letter shall serve as a request that the project be denied or that the size of the proposed building be restricted to 3,500 square feet. Very truly yours, COHEN-A.DURRETT,L DAVID B.DURRETT DBD/smg Enclosure(s) cc: Michael Cobler(via electronic mail) Eric Nelson(Federal Express Overnight) 2100 Northrop Avenue, Suite 900, Sacramento, California 95825 (916) 927-8797 www.cohendurrett.com (916) 927-8798.fax I ' If I III I 1 I I L • 89 -28789 b Recording rsqusatad by and 1 when reeardad mail tot RECORDED IN orrem;RECORDS R OF ALAMEDA COUNTY.CALM. Metropolitan Lif.insurance Company RENE C.Uri DSON.CO.RECORDER e%Lindell,Ripley&Diamond 450 Pacific Avenue Ban Francisco,CA 94133 i 9 '89 SEP 20 P{9 3 3S Attet Scott D.Rogers,Esq. /6 I DECLARATION OF ENCUMBRAN I THIS DECLARATION OF ENCUMBRANCES is made and entered into this ab day of September, 1959, by and between Metropolitan Life Insurance Company, a New York corporation ("Owner A") and First Western Properties of California I Associates,a California general partnership("Owner B"). Associates, WITNlTNt i WHEREAS, Owner A is the owner of that certain parcel of land ("Parcel A")described on Exhibit"A",attached hereto and made a part hereof;and WHEREAS, Owner B is or currently with execution hereof shall be the j owner of that certain parcel of land ("Parcel B") described on Exhibit"B", attached . i hereto and made a part hereof;and i WHEREAS, there are areas) on Parcel A and Parcel B on which buildings presently exist or which, in the future, there shall be permitted hereunder to exist I ("Building Area") as denoted on Exhibit "C"attached hereto and made a part hereof; and WHEREAS, Owner A may desire to construct a free-standing building on Parcel A, within the Building Ares denoted on Parcel A at the corner of Amador 4 Plaza Road and Amador Valley Boulevard;and WHEREAS,Owner B intends to construct a free-standing, one-story retail building consisting of no more than 10,005 square feet on Parcel B within the Building Area denoted on Parcel B;and WHEREAS, Parcel A and Parcel B (sometimes referred to collectively as ' I the"Parcels")are adjacent to one another and are owned by different entitles;and I WHEREAS, Owner B and Owner A want (i) Parcel A and Parcel B to comprise an integrated retail development ing Center") to be operated in conjunction with each other for the mutualit of the other, and (ii) to fix and establish easements, covenants, restrictions, liens and charges (hereinafter collectively referred to as"Encumbrances") upon Parcel A and Parcel B in order to accomplish such result;and WHEREAS, subject to this agreement, such Encumbrances shall run with the land and shall inure to and pass with the Parcels for the benefit of the owners of the Parcels, and shall apply to and bind the respective n interest thereof, and further, such Encumbrances are hereby imposed upon each respective Parcel is reciprocal easements in favor of the other Parcel, end any portion thereof, in furtherance of a plan for the development and improvement of the Parcels end for the purpose of enhancing and perfecting the value,desirability and attractiveness of both Parcels. I 11 � (I '�I I 66. '4.. ' :.gip ..- . in-257845 i NOW,THEREFORE,FOR VALUABLE CONSIDERATION,THE RECEIPT OF X WHICH IS HEREBY ACKNOWLEDGED,THE PARTIES HERETO DO MUTUALLY AGREE 1 AS FOLLOWS:MUM I Ci E D A. Puildint Are4 Except as herein provided, all future buildings and 1 structures shall be placed or eostructed upon Parcel B in areas designated on • Exhibit "C"as a Building Areas and further. no future buildings or structures shall be ' pieced or constructed on Pareel B within those areas designated as a"Common Area" I (as defined hi Paragraph LB brlsw) on Exhibit "C," except for such buildings or ? structures as may be approved is writing by Owner A and for directional signs (as I provided in Paragraph III), bumper guards or curbs, landscape planters, lighting standards and applicable controls. In addition, it Is also agreed that Owner B may • i Construct and locate normal foundations, canopies, overhangs and projections, • including columns or pillars supporting the same, within the Common Areas of . Parcel B provided the same (i) do not materially extend beyond the Building Areas, i ? ° (ii)reduce the number of parking spaces, (iii) interfere with or prevent the location, placement or construction of a building in the Building Area of any Parcel or (iv) I ; interfere with or prevent vehicular or pedestrian access, ingress, egress or 1 circulation to, from or upon either of the Parcels. All the foregoing must comply with alt applicable laws, rules, ordinances and regulations of the City of Dublin or other applicable local governmental authority. Upon request,Owner B shall cooperate with Owner A in any design review, planned development, zoning, site plan review, use, building or other permit or application which Owner A or Its assignees may need i ` to file for the development of a free standing building at the corner of Amador Plaza li I Road and Amador Valley Boulevard and/or the repair, remodel or use of Its I I improvements. 1i ' B. Common Area: The aforementioned Common Area is hereby defined to be those areas on Parcel A and Parcel B which are designated es the "Common I II I i i Area"on Exhibit"C." The Common Area within Parcel B is to be used for vehicular I.i ! driving, parking and pedestrian traffic (which area also includes aU sidewalks, walkways, driveways and landscaping)and as specified in Paragraph Ili below. Unless• required by the City of Dublin, the location and size of any and all sidewalks, parking tareas, parking stalls, walkways, driveways, signs, landscaping or other Improvements I presently existing or hereafter constructed or installed in the Common Area within Parcel B shall not be changed except with the prior written consent of Owner A. 1 Should there be a material change in the Common Area within Parcel B then a new Exhibit"C"will be recorded as a amendment to this Declaration of Encumbrances. Ip . I r C. Con button.Design and Remo el: • g '1 j• (i) Prior to (I) the conslruction, reconstruction or remodeling of '' any building or buildings upon Parcel B, (it)any material exterior changes,alterations j or modifications of any building on Parcel. B, or (iii) installation, change or modification to exterior signage on any building on Parcel B,the party who desires to is construct such building or buildings or make such material exterior changes, alterations or modifications shall submit to Owner A all plans,specifications,drawings and other pertinent information necessary for Owner A to adequately review all changes, together with the exterior design plans, color schemes and elevations (including signage) that are proposed for the building, and thereupon either approve or disapprove of the same in writing. Owner A shall not arbitrarily withhold Its approval of such plans and specifications. Without limiting Owner A's right to withhold its approval, it shall not be arbitrary for Owner A to withhold its consent should (i) such plans end specifications be deemed by Owner A to be architecturally or aesthetically incompatible with the buildings on Parcel A, (ii) the square footage thereof exceed 10,005 square feet,or(iii) the building height exceed one story and/or I a height of 25 feet at any elevation. If the plans and specifications are disapproved es provided herein, alternate plans and specifications may be submitted, which alternate proposal shall be handled in the same manner as the Initial proposal. (2) Subject to the foregoing paragraph, if Owner B desires to construct a building(s) or to make material exterior changes, alterations or ! modifications thereto, Owner B shall be permitted to do so, provided that: (1) all such construction, alteration or modification is performed at the sole expanse of f Owner Et (2) such construction, alteration or modification does not unreasonably . interfere with the parking, ingress and egress to Parcel Al (3)Owner B in performing • such construction,alteration or modification shall indemnify,defend,protect and hold the owner of Parcel A harmless from any claims, costs,expanses(including attorneys' E -2- 1 1 ■ c . . , _ • 1 • E-257845 fees end costs) damages or injuries to person or property resulting from such construction, alteration or modification, and (4) all construction shall be diligently prosecuted to completion. With regard to the initial construction of any building on '' Pared B, If Owner 8 or his tenant commences construction but construction ceases prior to the scheduled completion date of the building(as such completion date shall be reasonably determined by Owner B and of which Owner A shall be notified in writing;provided In all events said construction shall be completed within one year of ground breaking)fora period En excess of one hundred twenty(120)days, and Owner J A hi its discretion believes that such unfinished structure creates en unsafe or unsightly condition detrimental to the Shopping Center, Owner A in Its sole discretion, upon not less than ten (10) days prior written notice to Owner B, may enter upon Parcel B and(1)demolish part or all of such building or(1i) construct part or all of such building or (ill) install or construct • barricade around such building. Owner B shall, within thirty(30) days of demand therefor,reimburse Owner A for all • J its coats plus interest thereon from the date of expenditure or incurrence at the maximum rate of interest allowed by law. (3) In the event any building on Parcel •'4 is damaged or destroyed H) by fire or other casualty or any other cause whatsoever, t. Owner of Parcel B may, in its discretion, tear down or rebuild the damaged building. In either event, the I ! work shall be commenced promptly following the casualty and diligently prosecuted to �I completion. However, if Owner B determines to tear down a damaged building, iti 1 Owner B shall either promptly rebuild• new building on the same location or leave i• ! and maintain Parcel B in a smooth, level condition, free end clear of all refuse and V'III .weeds and sealed against dust by paving or other ground cover acceptable to Owner a1, A. In the event the Common Area within Parcel B or any portion thereof shall be .41111' damaged or destroyed by fire or other casualty or any other cause whatsoever, Owner B shall forthwith proceed with due diligence to restore such Common Area to a condition to permit vehicular parking(in the manner required by this Agreement)and free and safe vehicular and pedestrian access and circulation theeeover, to end from I ( Parcel A,and to and from all streets adjacent thereto. • �. O. Signaler 110 free-standing sign shall be placed, erected or ' I' constructed upon Parcel B. II. EASEMENTS A. Intense and Egress The Owners of the Parcels hereby agree that any owner(s), lessees) or licensee(s) of an or any portion of the Parcels and its (or their) respective customers, agents, tenants, employees and suppliers, shall have the i•; right of mutual, reciprocal and nonexclusive ingress and egress for vehicular and pedestrian traffic and vehicular parking, upon, over, and across the Common Area, I' except where any presently existing or hereafter constructed buildings, structures, signs, landscape planters,lights or other improvements may be located in compliance with this instrument, and the parties hereto shall not do any act or acts which will prevent or hinder such ingress, egress and parking, except such work as may be required from time to time for maintenance and repair of either Parcel or the 1 Common Area,or as otherwise specifically provided herein. B. Utility Liner The Owners of the Parcels do hereby establish and create (for the benefit of all or any portion of Parcel A and Parcel B, mutual and reciprocal non-exclusive easements under,over,through and across the Common Area of the Parcels for water drainage systems, water mains, sewers, water sprinkler system lines, telephones or electrical conduits or systems, gas mains, and any other public utilities required to service said properties; provided, however,any portion of the Common Area now or hereafter improved with any building or other structure in compliance with the terms of this instrument shall automatically be excluded from such easement area without further action by Owner A or Owner B. All such systems, structures, mains, sewers, conduits, lines and other public utilities shall be installed and maintained below the ground level or surface of such easements. In the event it is necessary for any party hereto to cause the installation or relocation of a utility line or sewer across the Common Area subsequent to the date hereof, the owner of the other Parcel hereby grants a non-exclusive easement to such party for the limited purpose of installing, relocating, replacing or enlarging a utility or sewer line across the Common Area,subject to the following conditions and requirements (I) Such installation, relocation or modification shall not interfere with, or Increase the cost of, or diminish the other Parcel Owner's utility and/or sewer services; -3- ci ; , , I * 111111111almilisikaains' "'lliniiiiiiiiiiiill Ili i - -;Ill . 1 1 . .. . , .. 1 . - . . P-257845 Oil The party performing such work shall give the other Parcel Owner at least thirty(30)days prior written notice,together with notification of the nature and extent of such work,the proposed area of such work, and the anticipated starting and completion date of such work:provided,however, it the work involved is emergency repair work, only such advance notice, written or oral, as is reasonably practicable need be given; (iii) If requested in writing by the Owner of the Parcel upon which • : proposed work relating to relocation of any existing utility line or sewer or irotaliation of any new utility line or sower Is to be performed, the party performing . 4'.' such work shall comply with the reasonable request of the other party to change the proposed location of such work to another location upon the other party's Parcel so 1 as to minimise or reduce the effect of the new installation or relocation upon the I current or proposed use,enjoyment or operation of such party's Parcel; (iv) After such work is completed,the installed pipes or lines shall be underground erground at a depth of not less than the greater of three feet (3') or that required by applieable law, and not beneath or within five feet (V) of any Building Area located on the other Parcel; (v) After the completion of math work, the party performing such • . work shall restore the portion of the other Owner's Parcel and improvements located . thereon and the Common Area affected by such work to the same or as good 1 condition as existed immediately before the commencement of sueh work;and •• (vi) Any work performed under this Paragraph 11.8, including the sl restoration of the other Owner's Parcel and the Common Area after such work is completed, shall be done at the sole east of the party undertaking the same and shall be completed in a good and workmanlike manner and performed M such a . manner as not to cause any interruption of or undue Interference with the business conducted on the other Owner's Parcel. To the extent possible, no such work shall be performed on weekends or during holiday seasons. In all events,no meehanie's or materialmen's lien shall be permitted to exist or encumber the Parcels relative to • work performed hereunder. In addition, the Owner of Parcel A shell have the right to relocate any and all utility lines or sewers across the Common Area within Parcel A upon thirty • (30)days prior written notice to the Owner of Parcel B. Such relocation by Owner A shall be performed at Owner A's sole cost and expense and completed in a good and workmanlike manner and performed in such a manner as not to cause any undue interruption B of utility or sewer service to, or of Owner s use and enjoyment of, 11I. OPERATION OP COMMON AREA A. Employee Parking: Those areas to be used for motor vehicle parking purposes by employees of the occupants of either Parcel may be designated from time • • to time by Owner A. • B. Maintenance and Repairs: In consideration of the mutual, reciprocal . and non-exclusive easements herein granted and as a condition precedent to the use and enjoyment thereof, each owner of the Parcels shall pay for its prorate share of the cost associated with repairing and maintaining in good order the Common Area so that the same shall be kept in a clean, attractive and sightly condition, and may be conveniently wed for its intended purposes. All Common Area expense shall be shared among the Owners in accordance with percentages determined by basing each Owner's share of Common Area expenses upon the ratio which the ground floor area of all buildings on Its Parcel bears to the total ground floor area of ail buildings in the Shopping Center. It is agreed that until such time as a building is constructed thereon, Parcel B is deemed to contain 10,000 square feet of ground floor area. • • Further, notwithstanding any damage or destruction of a building, the Owner of such Parcel shall nonetheless be responsible for its prorate share of Common Area : ; expenses. In the event that additional buildings are constructed or the floor area of buildings are enlarged or decreased, prorate shares as hereunder determined shall be adjusted accordingly. Common Area expenses shall include costs of maintenance and repair, including but not limited to,resurfacing and restriping of parking mess, maintenance of the lights and lighting standards, landscaping, cleaning and janitorial work, procurement of insurance,and repair and replacement of utility and drainage facilities . -4- • rte- +�sw•+w � _ � _ .�°L_"4Pr Nr.A'•��P/ly..�.r'•K.,+•V 1 Mil��I ..J _ . . .. 1 1 _...,,„ 0-257845 to the extent the same are included within the Common Area. Notwithstanding anything heroin to the contrary,the parties hereto agree that any tenant or occupant on the Paresis shalt be obligated to conduct its business in scoordance with applicable laws and sound business practical and the respective Owner of each Parcel shall at all times, at its own east and expense, repair and maintain in good order and condition the building an snob Owner's Parcel, including the periodic repainting of the exterior of such building. C. nisintenance Directors Owner B hereby agrees that Owner A(and/or its nominee to long as the same is an occupant of the Shopping Center)shall ant as Maintenances Director of the Common Area from and after the date hereof. Anything to the contrary notwithstanding, Owner A shall have the right, at Its option, and upon giving ninety ($0) days' prior written notice to Owner B, to terminate its position as Maintenance Director; whereupon Owner 15 shall act as the Maintenance Director or,should Owner B sleet not to so set,the parties shall mutually appoint a new Maintenance Director, with full right end authority to perform the duties of the Maintenance Director as specified herein. D. nsuranees The Maintenance Director shall procure a general public 1 liability policy fleeting the Maintenance Director, all occupants of whom the Maintenance Director has been apprised, and the Owners of the Parcels, as their respective interest may appear, against all claims for personal injury, death or property damage occurring In upon or about the Common Area. The liability I'ns limit ant ppoicy shall initially provide for not less than $3,000,000.00 combined single bodily injury or death and for damage to property. So long as Owner A shall be Maintenance Director, nothing in this Paragraph lit.D shall prevent the Maintenance Director from procuring public liability insurance for the Common Area of such kind and In such amount as the Maintenance Director, in its sole discretion, deems reasonable, or from carrying the same under a blanket insurance policy or policies covering other properties as well as the Common Area. II 1 E. Common Area Maintenance and Insurance Expense Allocations The i Maintenance Director is hereby authorized to contract for and pay for all Common 1 Area expenses, and so long as either Owner (or an occupant of the Shopping Center) is acting as the Maintenance Director,it agrees to operate on a non-profit basis with an end to keeping such expenses at a reasonable minimum. Maintenance Director shall bill not more frequently than quarterly end not less frequently than yearly for each Owner's prorate share (as calculated above) of the said expenses, plus 15% of said expenses to cover the Maintenance Director's administration costs. III /V. TAXES Each party hereto and its respective successor and assigns shall pay direct to the tax collector prior to delinquency, fist real property taxes and other special texas and assessments assessed against the property owned by said party, including 1 the portion of the Common Area owned by said party. V. INSURANCE. Each Owner agrees to maintain or cause to be maintained Insurance against Pst claims(including injury,death or property damage occurring on, in or about its ng within the buildings thereon) and the streets and sidewalks adjacent thereto with at minimum a combined single limit (covering bodily injury liability, death end property damage) in any one occurrence of not less than Three Million Dollars ($3,000,000). Such insurance may be in a form of blanket liability coverage appliesbie to the Owner's Parcel and any other property owned or oecupled by Owner or the entity carrying such insurance so long as such blanket policy does not reduce the limits or diminish the coverage required herein. Each Owner shall have the right to satisfy its insurance obligations hereunder by means of self-insurance to the extent of all or part of the insurance required hereunder but only sa long as the Owner so self-insuring shall have a net worth of at least Fifty Million Dollars($50,000,000). Any deductible under any policy of Insurance in excess of $5,000 shall be deemed self-insurance. All policies of insurance required under this Section shall insure the performance of the Owner insured thereunder of the indemnity provisions contained in this Agreement. Each Owner shall deliver to the other certified copies of the policies or certificates thereat required to be carried pursuant to this agreement. 1 -5- '-�I ' V� l • I e-257845 • Vi. 115E REI $id TONS ' A. AgdIo Visuel,Stereos.Home Armlianses and Consumer.Eleetronies' So long as Circuit City Stores, Inc. ("Circuit City")operates•store on Parcel A for the retail sale of stereos,home entertain/Dm-A,audio visual,consumer electronics or home appliances,no portion of Parcel B shall be used for the retail sale of similar goods as are sold by Circuit City,unless the prior written consent of Ciroult City is obtained. • B. Aim's. Woman's end r* ren's AnQareb So long as TJX Companies, ine.operates a T.J. Macs store on Parcel A or the retail sale of man's, women's and , I children's apparel and neeessorles related thereto,no portion of Parcel B shall be used for the retail sale of such similar goods as are sold under the trade name of T.J. Manx,unless the prior written consent of TJX Companies,Inc.Is obtained. C. Soorfinr Goods and Athletic Anaarsit So long as Oshman's Sporting • Goods Co.,California, operates an Oshman's Sporting Goods store on Parcel A for the retail sale of sporting goods,athletic apparel and related accessories,and such other i items as are from time to title sold in similar Oshman's Sporting Goods stores, no portion of Parcel B shall ever be used for the retail sale of similar goods, unless I the prior written consent of Oshman's Sporting Goods Co.,California is obtained. D. rat Owner B agrees to eontinuously me, maintain and operate 1 I,: Parcel B for lawful retail purposes only. Owner B agrees that Parcel B shall not be used for (1) any Illegal purposes,(ti)either(a)the display,distribution or sale of any "adult" books, "adult"periodicals or"adult" entertainment(other then "adult films"),•4 1 (b) the establishment or maintenance of a massage parlor, "adult" theatre, "adult" bookstore, "sex" shop, bawdy any� ; ,:i , , " p "peep show" or bawd house or brothel, or (e) :n other use which is reasonably objected to by Owner A as being morally objectionable to a ;.7 substantial part of the general public,(iii) a discotheque in which less than 5096 of its } space or revenue is devoted to or derived from food service, (iv) any amusement parlor, arcade or electronic game store (not prohibiting however the sale or demonstration by Owner H or its tenants of such equipment);or(v) an office building, I' ;'' I entertainment or recreational facility, including but not limited to, • bowling alley, skating rink, theatre, billiard room, health spa or a studio, gym, training or I educational facility, including but not limited to, a beauty school, barber college, II . I ' reading room,place of instruction or other operation catering primarily to students or I I i trainees rather than customers. I , !, i i E. The foregoing restrictions are Imposed herein for the exclusive benefit of Owner A and are not for the benefit of its tenants or subtenants unless Owner A expressly assigns in writing such benefit to a tenant. No tenant or subtenant of Owner A shall have any rights as a third party beneficiary or otherwise 1 I to enforce the foregoing provisions or any other provision of this Declaration of • Encumbrances unless Owner A expressly assigns in writing such benefit to a tenant. VII. MODIFICATION ' II {'{ Neither this agreement nor any term or provision hereof, may be changed, waived, discharged, amended, modified or terminated orally,or In any manner other than by an instrument In writing signed by the owners of Parcels A and B. No consent of any tenant of an owner of either Parcel shall be required to modify, I amend or terminate this agreement. Notwithstanding the foregoing, tie written , consent of the Planning Director of the City of Dublin shall be required with respect to any material modification or amendment of this Agreement;provided,however,such • consent shall not be required with respect to the termination of this Agreement. VIiI. INDEM PICATION. i Each Owner mutually agrees to indemnify, protect, hold harmless and defend the other Owner from all claims, actions, liabilities, damages, expenses and • judgments, including but not limited to, reasonable attorneys fees and costs, reasonable investigative and discovery costs, court costs and all other sums on account of any Injury to persons, loss of life or damage to property arising from the other's performance as Maintenance Director or occurring an any Parcel owned by such Ind emnifying Owner (including within say building located thereon and on the street sad sidewalks adjacent thereto), cr arising from, or connected with the use, nonuse,oondition or occupation of such Parcel,streets or sidewalks provided the same ■ are not caused in whole or in part by the Intentional or negligent act or omission of the Owner (or its agents, employees, servants and the like) claiming such indemnificition. -6- ■ 19.'257845 • Each Owner hereby waives any rights it may have against the other Owner on account of any loss or damage ooeuioned by each Owner, their respective Percel(s)(including buildings and contents of buildings thereon),or to other portions of the Shopping Center arising from any risk to the extent covered by lira and i extended coverage insurance or other Wanness herein required; provided, however, such waiver shall be ineffective unless consented to by the insurance companies providing such coverage. Each Owner waives any right of subrogation that it may have against the other Owner in connection with any risk or claim to the extant I covered by the Insurance herein required or otherwise maintained and shall procure from its insurers a waiver of all rights of subrogation which the insurers may otherwise have under mesh policies, if such waiver is available at commerotally . reasonable rates. IX. :EMINENT D9NAIN. Nothing herein shall be construed to give any Owner any interest in any I I award or payment made to suny other Owner in connection with any exercise of eminent domain or transfer in lieu thereof effecting any other Owner's Parcel or giving the public or any government any rights in the Parcels. In the event of any exercise of eminent domain or transfer in lieu thereof of any part of the Common . 1 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 thereof and no claim thereon . I + shall be made by the Owner of any other portion of the Common Area; provided, however, say other Owner array make a separate elainn for diminution in the value of • such Owner's property as a result of suer exercise of eminent domain or transfer In E lieu thereof. Nothing in this section shall prevent a tenant from making a claim against an Owner pursuant to the provisions of any lease between such tenant and Owner for all or a portion of such award or payment. i The Owner of the fee of each portion of the Common Area so condemned i I I shall promptly repair and restore the remaining portion of the Common Ares so owned as nearly as practicable to the condition of the Common Area immediately prior to such condemnation or transfer but only to the extent that proceeds of such award are + sufficient to pay the costs of such restoration or repair and without contribution from any other Owner. X. GENERAL PROVISIONS A. Covenants Run with .tins Lead: Each easement, restriction, and covenant over Parcels A and B shall be appurtenant to and for the benefit of the other Parcel and each part thereof. This Declaration of Encumbrances shall inure to the benefit of and be binding upon the parties hereto and their successors and assigns. In eddition, upon 30 days'prior written notice to all parties of Its intention to do so, the City of Dublin shall have the right, but not he obligation, to enforce the visions of this Agreement relating to the use of easements, maintenance or B. Durations This Declaration of Encumbrances, and the Encumbrances created and established hereunder (including all benefits and burdens),shall run with the land and shall bind all parties and all persons claiming under them for a period of 40 years from the date hereof;and thereafter,this Declaration of Encumbrances shall be deemed automatically extended for successive 10 year periods, provided in all events the owners of the parcels may mutually agree to sooner terminate this Declaration by the recordation with the Alameda County Recorder's Office of an agreement terminating and cancelling the same. C. iniunetive Reliefs In the event of any violation or threatened violation by any owner, leases,or occupant of any portion of Parcel A or Parcel B of any of the terms,covenants and conditions herein contained,in addition to the other remedies herein provided, the owners of the Parcels shall have the right to enjoin such violation or threatened violation in a court of competent jurisdiction. D. Controver y. In the event of any controversy, claim or dispute between the parties hereto affecting or relating to the purposes or subject matter of this Declaration of Encumbrances, the prevailing party shall be entitled to recover from the nonprevaliing party all of its reasonable expenses including, but not by way of limitation,actual attorneys'and consultants'fees and costs. -7- Ill lIIic II l IIr!i 1 1 1 1Iii !i II 1IIIII Ill 111111 ii N-257845 E. : — ..iRgalle,it It is expressly agreed that no breach of this Declaration o Enoumbranoea shall entitle any of the pestles hereto to cancel, rescind or otherwise to terminate this Declaration of Eneumbranees,but such limitation shall not affect in any Manner, say other rights or remedies which the parties hereto may have hereunder by reason of any breach of this Declaration of Encumbrances. Any breach of any of said covenants or restrictions, however, shall not defeat or render invalid the lien of any mortgage or deed of trust made in good I faith for value,but such covenants or restrictions shall be binding upon and effective 'ain't such owner or owners of the Parcels, or any portion thereof, whose title thereto is acquired by foreclosure,trust deed sale,or otherwise. F. Severabtlitvt If any clause, sentenee or other partion of this Declaration of Encumbrances shall become illegal,null or void for any reason,or shall be held by any court of competent Jurladiction to be so, the remaining portions thereof shall remain in full fore.and effect. G. Countereartet This Declaration of Encumbrances may be executed in I several counterparts and all such executed counterparts shall constitute one(1)agme- meat, binding on all of the parties hereto notwithstanding that all of the parties hereto are not signatories to the original or to the same counterpart. i H. Notieeet Any notice required or permitted to be given under this Agreement shall be in writing and personally delivered or sent by United States mail, registered or certified :sail, postage prepaid, return receipt requested or sent by Federal Express or atmfler nationally recognized overnight courier service, end addressed as follows, and shall be deemed to have been given upon the date of delivery(or refusal to accept delivery) at the address specified below as indicated on the return receipt or air bill: If to Owner B: First Western Properties of California I Associates • 3440 Mount Diablo Blvd. Suite A-150 f Lafayette,California 94549 Attn:John Hess I If to Owner A: Metropolitan Life Insurance Company Metropolitan Plaza 101 Lincoln Centre Drive Foster City,CA 94404 Attnt vice-President and Associate General Counsel I with copies to: Mete i p Metropolitan Life Insurance Company ' Law Department One Madison Avenue,Floor Area 70 New York,New York 10010 Attn: Associate General Counsel Real Estate investments and to: Landeis,Ripley do Diamond 450 Pacific Avenue San Francisco,CA 94133 Attnt Bruce W.Hyman,Esq. Scott D.Rogers,Esq. or such other address as either party may from time to time specify in writing to the other in the manner aforesaid. I. Modifications To be effective,any modification of this Declaration of Encumbrances Must be in writing and signed by all parties. No consent or waiver express or implied by either party hereto to or of any breach or default by the other party in the performance by the other party of its obligations hereunder, *hail be valid unless In writing, and no such consent or waiver shall be deemed or construed to be a Consent or waiver to or of any other breach or default in the performance by such party of the same or any other obligation of such party. Failure on the part of either party to complain of any act or failure to act by the other party or to declare the other party in default, irrespective of how long such failure continues, shall not constitute a waiver by such party of its rights hereunder. The granting of any approval or consent in any one instance shall not be construed to waive or limit the need for sueb consent in any other or subsequent instances. 01 -II- ' i irri 11111 (iIi l '� i - [11 _ .I b � I I1lIIIfIil1i I 111111111 257845 • PARCEL A THE LAND REFERRED TO NN] IN IS SITUATED 3�1 T STATE OF CALIEORRIA, COUNTY OF �ALAMEDA* CITY OF DUBLIN* DUCA/BED AS VOLLCWS: PARCEL A OF PARtEI. 1tN►P 5364, llliltD AUGUST 38, 1lS9, IN BOOR 181, PAGE 14, or /MPS, AIAMEDA COUNTY RECORDS. 1 1 t" ENICEPTING TRETIEFROM ALL OM* GAS, EINEPIALO AND MIER HYDROCARBON SUBSTANCES IN AND UNDER OR THAT Ell SE PRODUCED ! FROM A DEPTH BELOW 500 PEET FROH ESE B 'ACE OF P U SAID 1 FOR WITHOUT RIGHT OF ENTRY UPON THE SURFACE OF SAID AND FORT E PURPOSE OF =NINO, DRILLING* EXPLORING OR EN[TEtACTLNo SUCH OIL, GAS MINERALS AND OTHER HYDROCARBON STOSTANCES OR OT USE of OR RIGHTS IN OR TO ANN' PORTION OF THE URFCE of SAID LAND TO A DEPTH or 50'0 FEET SEIM THE SURFACE THEREOF* AS INCEPTED IN THE DEED F ROM VOLE■NC1A.T 001111 NITIES, INC., TO Q771 anrD INVESTMENTS, INC., RECORDED DUNE 27, 1961, IN REEL 1 ! i loge, IMAGE 207, OFFICIAL Roams DP I�LAma COUNTY. 1 PURTHER EXCEPTING TI FROK: 1 1 c - WATER RIGHTS, INCLUDING TEE RIGHT TO USE SUBTERIUMEAN II 1 i 1 ' WATERS* TOGETHER WITH ANY PIPES, PIPE LINES 1iELY.S OR OTHER 1 EQUIPMENT RELATING TO THE USE OF OR EXTRACTION OF WATER FROM i OR UNDER SAID PROPERTY. BUT WITHOUT THE RIGHT OR SUCH R GHTS ( THE SURFACE OF SAID PROPERTY IN tIPIEC'rION ETNE SUCH RIGHTS, I 6 ; AS RESERVED IN THE DEED nom Qt1ALIFI>;D IPIVESTETENTS, INC.. TO I, EDERO CALIFORNIA REALTY COMPANBY, INC., a CORPORATION MTBD i t 1 SEVER 17 1969, AND RECORDED DECIABER 4, 1969, , REEL i # 2526, IMAGE 427, OFFICIAL RECORDS or A DA CALIFORNIA'1'Y, AND AS ' FURTHER RESERVED IN THE DEED R`ION no t1R., REALTY 1 ( I COMPANY,INC., TO ROBR° CALIFORNIA asmo'Y'l1ANt, INC., DATED r JANUARY 3. 297'1, AND RECORDED FEBRUARY 11, 197'1, ON REEL j 27E6 AT DMZ 3OS. OFFICIAL RECORDS OF ALLiM EDA. COUNTTY. I I $ 1 i �l ! C r I r • • . i i 1 I • r 1 1 1 i 1 F -4fit 11 III ����.�N �... . ... . I lilt [ill ,I� 'I, 1111� 1111111 111'11111 h E X25?845 PARCEL B I THE LAND REFERRED TO HEREIN IS SITUATED :31 THE STATE OP CALIFCANIA, COUNTY or ALAMEDA, CITY OF Dt SLAIN, DESCRIBED AS FOLLOWS t I PARCEL B Or PARCEL HAP $364, FILED AUGUST 1O, 1959, IN EOM 157, PAGE 15, OF UAPB, =MDR COUNTY RECO)115. EXCEPTING THEREFROM ALL OIL, CU, MINERALS AR' OTHER HYDROCARBON SUBSTANCES IN AND UNDER OR THAT INV SE PRODUCED FROM A D$PTii BELOW SOO FEET now THE StUtTACE Or RAID LANp WITHOUT RIGHT Or ENTRY UPON THE SURFACE OF MAID IZ ND FOR THE I.1 PURPOSE OP mum, DRILLING* EXPLORING OR EIiTMCT.'Yill SUCH ii OIL, GAB MINERALS AND OTHER HYDROCARBON SUBSTANCES OR OTHER USE or OR RIGHTS IN OR TO ANY PORTION Or THE sURFACt OT SAID I• LMID TO A DEPTH Or SOO P'ER'T BEM THE SURFACE THEREOF, AO :4 EXCEPTED IN THE DEED TECH VOIZ.4ICLAIIi COMMUNITIES* INC., TO QUALIFIED INVESTMENTS* INC., RECORDED JUNE 27, 1967, IN REEL Ii LOU, IMAGE 207, OFFICIAL RECORDS OP AWIEDA COUNTY. TY. !. FURTHER EXCEPTING TWEREFRONt WATER RIGHTS, r:CLUDING THE RIGHT TO USE SttSTERRANEZIN RATI:'RS, TOGETHER WITH NY PIPES, PIPE LINES, WELLS OR OTHER ..EQUIPMENT RELATING TO In USE OF OR EXTRACTION OF WATER PROM a OR TINDER SAID PROPERTY, BUT WITHOUT THE RIM OR ENTRY UPON r il 2 BURMOR Or SAID PROPERTY IN CONNECTION NITS SUCH RIGHTS, . ' 1 AS RESERVED IN THE DEED FROM QUALIFIED INVESTMENTS* INC., TO EDBRO CALIFORNIA REALTY CiOMPANY, INC., A CORPORATION DATED SEPTEMBER 17, 1969, AND RECORDED DECEMBER 4, 1969, ON REEL 2526, IMAGE 427, OFFICIAL RECORDS OF ALAMEDA COUNTY. AND AS FURTHER RESERVED IN THE DEED FROM EDBRO CALI?ORIIXA, REIFVEY COMPANY,INC.• TO IBM CALIFORNIA HANDYMAN* mac., HATED i JANUARY 3, 1971, AND RECORDED FEBRUARY 11, 1971, ON REEL 2756 AT IMAGE 30$, OFFICIAL RECORDS Or ALAI COUNTY. II r7 1 . t . I F i _._.. u F . i i I Ji . +JI • I H , I it EXHIBIT "$" Mow ,a, ' / I „ „ oil --. ..1.., ...,. •--..---.-----Y..----..- --. - . . ail / /1/7 ' jr • • a •257845 • EXHIBIT °V ` `'.•"` "11 pill pip I t in > PAP.titit. MAP not∎ { fS ll if esfi imp. } 111 Pik 111 . • t- ah et. 2 pnkGttl. i I r to = = .i. trill t in .3. �� c _Iii f [ >r. i G f ebb _ :0 uo w p � 'hew'Alp u_,., . 104, gt. ' aw , r 73 I I i 1 . . fel > i e of g 12; • 0^ Q " fl S . i i a Viz . ■ ,.et, 0 rn / -0 3a v1 i : s!!e!E it �' c !gi!3 r} .fir _�; ` 2 * -,Si ug !. .4lkOZr'r k��y �� 1 k'' ell E r . I iii�'[S`�tL�`rrsJf;..,4 0 „Ia.., ," / i r 1. .F'.} :� x- z X a t E., E it3 Ss uf= ILroa 1 I d , ,('� - e•y i Cam - 75�� �itisi` rrI r.I 1 !if r i 4 fit fin'p: .., h„ ,, :. .4,..#4$47: ,ff �; �_ _ -� ' - ;j �t�8y� i� 414.40 4 y�• .. 4 mr E i3 ,m. �� '�V,q i ss! i•if -- i - s ------ttl 8,0. -i ii 0 6 2 i 71 : o- $°" $ _ Yp t 01 ft, f : $ 1( 1 1 ii F 6tv [i ill gh li-- „, I Ill; $ i 9;3 m il Il I I il 4114 I; ' i-”, ii. i ;ill taw It, a Es E i � I9 I a 1 I IIuII mil 'F,,4*.!IiIlUI I 11111 WII (III(lilt 11 I i I Illillil I I i P-257845 d. tiewaraiaer Law. This itealsration of Snewlbranaas shag ha govaroad by end COSMOS la otworsanoe with the laws of the State of California. IL Ast •men{tt. This Doelorotion of Sconaebranam. Melba*all MOD' atteahaa Canto, contains flue *alit° ageeatment end vodeintioNoll a No penis; vilth tweet to all matters covered or mantlon.d herein. xo prior or aoateenporammus aoasheent or understanding p.rtaiaing to the subject natter besot shaU be asaepted for unypurpose. Di leffillMil wuRzors the pertise have hereunto set their hones and auk the yearend date first ahoy*written. OWNER A I btrit*OPOLPrAN t.t>tU INIMIANCS COMPANY, a New York eorptatlon BB Nano ! Itet OWNER B MUST WESTERN PROPER SO?CALIPOaWA I E8,a Cslltornia merit - -sea. ;I _ Pother • i I ziie hi I tiatraat w Gaseral Partner By Pe7_,.■ -------- > ardHess, General Partner i Motors,Aeknowledataentel GAT ette.MCk 11 (Pedeeet+thtpt �� �TITLE INSURANCE RPATE OF CAWPORNIA ' i COUNTY°P - CONTRA COSTA }es. I t � ...`Rn"e�Ae''.ZS..�Sr-...1.9.��.�.....t»Far nr+~da a N aeq tae esid$qte.swig*ap+tersd Te eez RR e9. w,;,�d$i:P_E�and R>�� ESB Faunally known to we w ••"-- �j proved to net es dla at'of« daaey*video ront i 1 des pence g.,also emoted flee wields Intranet et ad stenos*the wtia aand�i� 1 to. • WCB womb masted des ui . �`��;' MnO�wRet 4`` ` 1 .`" coNIO COSTA war 11111 ill M ill i 1/111111 iiI' 11 I III 1 11111111,1 0-2575 . J. govinthir LRw. This Dtaloration of Encumbrances shall be governed by and construed In ace roe with the laws of the State of California. I• Asraemen This Declaration of Enoumbrenees, Winding all exhibits attached reto, eonta� the entire agreement and understanding of the parties with respect to all matters revered or mentioned herein. No prior or contemporaneous agreement or understanding pertaining to the subject matter hereof shall ba accepted for any purpose. IN WITNESS WHEREOF',the parties have hereunto set their hands and seals the year and date fleet above written. METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation • St reo : tholes By ttst VI r.e- Pae6/t»,vT OWNER S IIII� FIRSTPROPERVESOe CALIFORNIA I ASSOCIATES.a California general partnership By John Heaa, General Partner By W.Joseph Hass, General Partner • Mehsel Hess, General Partner E Richard Hess, . Caneral Partner CAT.N0.NNtadSr O t,5 CA 05.441 •TICOR WILE INSURANCE rorperation) STATE OF CALIPORNiA • COIJNTY OP - before taee the undersigned.a Notary Public in and for On t said State.Pamnn aP me wed to me on the basis pavan*known to the or of artiefecomy evidence to be the person who executed the within fnttrotaent w the Ptvaldent.and ' pewonally knows m me or proved to me on the bs of eadefactory evidence to be the pawn who executed the withht of the Corporation j ••• tiwi tin i untentt d eeknowludged e executed mug wv of s r eoWdes at iu bond of dhemote. WITNtii my hand Ind official sad. i iligeatew (ilk mai tor algid avwld tan 111111 I � . ' �� : � , I!IIIII! !Ii I 1. :.iii 4:.. et ... I.. . II 89°D257845 .1. litovernine Law. This Oealarttion of Eneumbraneu shall he governed by and construed in aaaordanee with the laws of the Data of California. K. prior Outman* This Declaration of Rneumtwannes., laeluding all exhibits attached hereto, domains the entire agreement and underetondog of the parties with repeat to ell mattes covered or atoetlaaed herein. No prior or oontereporaneosse agreement or pertaining io the eubjeet matter hereof Ili WITNESS WHEREOF,the perdu hove hereunto set their hands and stale the year and data first above written. OWNER A MZTROPOIJUJJ LIFE n,sv ANCB COMPANY. a New York earporetioa Kamm Its OWNER II NISI WESTZRh PROPERTIES OF CALIFORNIA I ABdOCIA?ES,a California general partnership . - EyGeneral Ness. Partter By,...., ■.....•■■....r Vi.. General Partner • Oenseei Parte • By ItieherdN M General Pertaer ' fNatery AakItawladamaatet I • • IthuteeeMt 1t°0u°-eu �taea�ushtp3 TICOR TITLE INSURANCE ' STATE OF CALIFONNIA ;l COtnt?YOP, -, }SM. '� f Oa WON sae.al eedaniyKd,a Haug Public L and tee . I add Ohm pusoiuUy spewed • I wowed to me OR�lulralt's 5e edyertobe !+ wt.famed the widths buuuenent as dkm emend Eesatimsai,sad ad d M; MINUS ire a mama the tams . 1.1 a/G� ii ars .�. 4 {I {IIIIIIIii ��ii�I ��1 ���{� ii11111 lUll ft 1111 E! h STATE OF CALIFORNIA $_1257845 sa. COUNTY OF SAN MATNO ) On this 1411 A day of ., 'pT +der , 190X, beano as, notary Public in and for said State, duly eorseissioned and sworn, personally appeared Alaweem S j4.rx , personally known to me (or proved to yea on the basis of satisfactory evidence) to be the person who executed the within instrument as tire.g i +�" of METROPOLITAN LIFE IRSURANCN COMPANY, a New York corporation, the corporation that executed the within instrument, and acknowledged to esa that said corporation executed it. 1-��.rr ��. EIIGM'NIA A/.PAPPAS i/R� 474.,.. NOTARY . Mary Public PAN MAT OFFICE IN SAN MATEO COUNTY " V_ Sly(, ypn Fromm 0.1.1C.hat • lose.A • ° 3. '�' • ABM I 1 111 1111 1 i .. II I , . , . .. .. . R-257845 1 I WAIN OP Yl � ) l his. cowrrr o� l I I certify that 1kseer cr bass sasislhataei seldom that swell hips isms leaizissiste es sass tale) ilrere, risitl 14 esseets this iieteur et end . t .a a I the ��'►; ��a his .a. a: First :ie�rta�n Pea�pirSiis ar t'a3st+=3a I. Laeaeirat t� t Slat esseatsd the ttt+saalss iastramst, sad asks rZNaaa Os rite issbteewrt to be the fees awl vo]saatry sat aaa asea at sate aeraw a tp !sr the sots old r Weft • " . . ...• sea se oath strasd that as via shiimrleei to asssrso .• ir , ,, astray Mlle 4. pUBtti� 411 risiea is, 44:4;4 01'41' Aspsiatosot Az6dra_. i 1 i 1 I i l i 1 ■ • I • I