3 RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO: CONTRA COSTA Co Recorder Oltice JOSEPH CANCIAMILLA, Clerk- Recorder
Safeway Inc.
11555 Dublin Canyon Road DOC- 2018-0115162-00
Pleasanton CA 94588-3229 Check Number
Attn: Natacha Epley, Esq. : Thursday, JUL 19, 2018 12:00:50 MOD $64.00 REC $84.00 FTC $62.00
Real Estate Law Department • DAF $2.70 REF $0.30 RED $2.00 (RE: #25-2874-Store) ERD $2.00 SB2 $150.00
TIl Pd $367.00 Nbr-0003260068
AAR / R8 / 2-63
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
DECLARATION OF EASEMENTS WITH COVENANTS AND RESTRICTIONS
AFFECTING LAND
Hercules, CA
TABLE OF CONTENTS
1. RECITALS. ..... 1
1.1 THE PROPERTY 1
1.2 "SAFEWAY".
1.3 "DECLARANT"
1.4 "OWNER".
1.5 "OCCUPANT"
1.6 "MAINTENANCE DIRECTOR"..
1.7 "LOT"......
1.8 PURPOSE.
1.9 DEVELOPMENT AGREEMENT.
2. AGREEMENT.. ...3
3. DEFINITION OF BUILDING AREA AND COMMON AREA; POSSIBLE EXPANSION OF SHOPPING CENTER 4
BUILDING AREA.. 4
FLOOR AREA. 4
COMMON AREA. 4
CONVERSION TO COMMON AREA.. ...4
EXPANSION OF SHOPPINg CENTER. ...4
4. USE. .. , 5
4.1 USE IN GENERAL.. 5
...i
4.2 NUISANCES AND PROHIBITED USES IN SHOPPING CENTER. 5
4.3 PRESERVATION OF SHOPPING CENTER CHARACTER.. ...8
4,4 CERTAIN PARKING INTENSIVE USES PROHIBITED.. 9
4.5 MEDICAL USES. 10
4.6 SAFEWAY PREMISES EXCLUSIVE.. 11
5. BUILDINGS. ..12
5.1 LOCATION. • 12
5.2 DESIGN AND CONSTRUCTION. •12
5.3 MAINTENANCE OF BUILDINGS. . 12
5.4 DAMAGE OR DESTRUCTION.. • 13
6. COMMON AREA USE ..14
6.1 GRANT OF EASEMENTS-ACCESS, PARKING, CoMMoN AREA FACILITIES.. ...14
6.2 14
6.3 NO BARRIERS.. 14
6.4 LIMITATIONS ON UsE; RULES AND REGULATIONS. 15
6.5 PURPOSE OF COMMON AREA.. 16
6.6 NO USE FEE. .16
6.7 UTILITY AND SERVICE EASEMENTS. . 16
6.8 MAINTENANCE EASEMENT. 18
6.9 GENERAL.. 19
6.10 OUTSIDE MERCHANDISING.. 19
7. SIGNS. 20
7.1 FREESTANDING SIGNS. 20
7.2 BuILDINg SigNAGE.. ..21
7.4 PROMOTIONAL EVENTS. 21
8. DEVELOPMENT. 22
8.1 DEVELOPMENT. 22
8.2 COMMON AREA ALTERATIONS. 22
8.3 CONSTRUCTION. . 22
8.4 DEVELOPMENT COOPERATION; LATECOMERS AGREEMENT... 24
8.5 MECHANIC'S LIENS... 25
9. COMMON AREA MAINTENANCE. ..25
9.1 MAINTENANCE STANDARDS.. 25
9.2 MAINTENANCE DIRECTOR.... 27
9.3 COMMON AREA ExPENSES.. 27
9.4 MANAGEMENT FEE.. 28
9.5 AUTHORITY TO INCUR COMMON AREA EXPENSES. 28
9.6 PAYMENT OF COMMON AREA EXPENSES.. 29
9.7 AUDIT. ... 29
9.8 REPLACEMENT OF MAINTENANCE DIRECTOR 30
9.9 RESIGNATION OF MAINTENANCE DIRECTOR.. 31
9.10 MAINTENANCE DIRECTOR's POST-RESIGNATION OR REPLACEMENT RESPONSIBILITIES.. 31
9.11 NO MAINTENANCE DIRECTOR. 31
10. INDEMNIFICATION. INSURANCE. .31
10.1 INDEMNIFICATION. ..31
10.2 LIABILITY INSURANCE.. ...33
11. REALTY TAXES AND ASSESSMENTS ...34
11.1 REAL ESTATE TAXES AND ASSESSMENTS. 34
12. EMINENT DOMAIN.... 34
12.1 OWNER's RIGHT TO AWARD... 34
12.2 COLLATERAL CLAIMS.. 34
12.3 TENANT'S CLAIM.. 35
13. CANCELLATION. MODIFICATION. DURATION. 35
13.1 CANCELLATION. 35
13.2 MODIFICATION. DELEGATION OF AUTHORITY. 35
13.3 DuratIoN. 35
14. OWNERS AND SUCCESSORS.. 35
ii
14.1 RELEASE FROM LIABILITY.. 35
14.2 MULTIPLE OWNERS OF A LOT 36
14.3 TENANTS IN COMMON... 36
15. CERTAIN ENVIRONMENTAL PROVISIONS. ..36
15.1 ENVIRONMENTAL INDEMNITIES. 36
16. DEFAULT .... .36
16.1 DEFAULT. 36
16.2 REMEDIES FOR DEFAULT. 37
16.3 WAIVER OF JURY TRIAL.. .38
16.4 ATTORNEYS' FEES... 38
16.5 GOVERNING LAW. 39
17. NOTICES.. 39
17.1 NOTICES. 39
18. MORTGAGEES AND OTHER THIRD PARTIES... ...40
18.1 MORTGAGEE PROTECTIONS.. 40
18.2 THIRD PArTIEs BOUND BY THIS DECLARATION. 40
18.3 No THIRD PARTY BENEFICIARIES. ..40
19. GENERAL PROVISIONS.... ..41
19.1 No COVENANT TO OPERATE. 41
19.2 RUNNING OF BENEFITS AND SERVITUDES. RIGHTS OF SUCCESSORS. 41
19.3 NOT A PUBLIC DEDICATION.. 41
19.4 DOCUMENT EXECUTION AND CHANGE 41
19.5 INTERPRETATION.. 42
19.6 NO JOINT VENTURE. 42
19.7 OWNER'S OR SAFEWAY'S CONSENT. 42
19.8 WAIVERS 43
19.9 ESTOPPEL CERTIFICATES. ... 43
19.10 INVALID PROVISIONS.. 44
19.11 DATES OF PERFORMANCE... ..44
iii
INDEX OF DEFINED TERMS
A
Accommodating Owner. .24
Accommodation Taking 24
Applicable Business... ..11
Applicable Law.
B
Benefited Owners ...24
Benefits.............. ....5
budget.
Building Area
Burdens
Business office use
C
Claims and Damages
Coffee Shop..
Common Area
Common Area Expense.
D
Default...
Defaulting Person
Declarant
Declaration
Developing Owner ...
Development Agreement
E
Excusable Events ...11
F
Floor Area.. 4
Fuel Ground Lease 1
Fuel Premises ..1
H
Hazardous Substances ..........7
Inc ..................1
iv
Incidental Sales ...9
Indemnified Party 32
Indemnifying Owner 31
Initiating Owner 24
L
Landlord's Pad... 1
Leased Premises.. 1
Lot. 2
M
Maintenance Director ..2
Management Fee. 28
Mortgagee......... ..40
N
New Property. ...5
Occupant 2
Other Instrument.... 40
Outdoor Dining Area .20
Owner. 2
P
Prescription Pharmacy Merchandise.. 11
Pro Rata Share. 27
Prohibited Uses
Property. ...1
R
Reconciliation. ..29
Recorder's Office ...1
Remediation Equipment 36
Required Improvements 24
Restaurant
retail office
S
Safeway..
Safeway's Building. 10
Safeway Premises ..1
Service Emergency 17
Shopping Center 3
Site Plan 1
Sports Bar. 7
Supermarket Ground Lease 1
T
Taking. 34
Third Party 40
Third Party Claims.. 35
training or educational facility .9
U
Utility Lines and Facilities..………......
vi
DECLARATION OF EASEMENTS WITH COVENANTS AND RESTRICTIONS
AFFECTING LAND
THIS DECLARATION OF EASEMENTS WITH COVENANTS AND
RECITALS.
1.1 The Property.
Declarant is the fee owner of certain real property located in the City of Hercules, County of Contra Costa, State of California, legally described on Exhibit A to this Declaration (the "Property") and depicted as the "Shopping Center" on the site plan attached as Exhibit B to this Declaration (the "Site Plan"). Safeway is the ground lessee of a portion of the Property (the "Leased Premises") shown on the Site Plan as the "Leased Premises" pursuant to a ground lease between Safeway and Declarant of even date herewith (the "Supermarket Ground Lease"). Safeway is also the ground lessee of a portion of the Property (the "Fuel Premises") shown on the Site Plan as the "Fuel Premises" pursuant to a separate ground lease between Safeway and Declarant also of even date herewith ("Fuel Ground Lease"). The Leased Premises and the Fuel Premises together are referred to in this Declaration as the "Safeway Premises." The remainder of the Property is designated as the "Landlord's Pad" on the Site Plan (the "Landlord's Pad").
1.2 "Safeway".
The term "Safeway" shall mean (a) Safeway Inc., a Delaware corporation, and (b) any successor to Safeway Inc., a Delaware corporation, by merger or acquisition of substantially all the assets of Safeway Inc., so long as Safeway is an Owner or lessee of the Safeway Premises or any part thereof. For the purposes of this Declaration, the term "Safeway" shall also mean any other person or entity that owns or leases the Leased Premises and/or the Fuel Premises, to which person or entity Safeway (or any other person or entity having the status of "Safeway" hereunder) has affirmatively assigned the rights and duties accorded to "Safeway" in this Declaration and under the Supermarket Ground Lease and/or Fuel Ground Lease, by recording an assignment thereof in the office of the Contra Costa County Recorder (the "Recorder's Office"). Such assignment shall be effective regardless of whether it occurs simultaneously with or after the conveyance of the property interest to the person or entity asserting the status of "Safeway." Safeway shall have the right to assign to a third party DecLARaTIon (v.1)
Hercules, CA
Owner or lessee of the Leased Premises or Fuel Premises all or only specified rights provided to "Safeway" herein.
1.3 "Declarant".
The term "Declarant" shall mean (a) Trestle Hercules, LLC, a California limited liability company, and (b) any successor to Trestle Hercules, LLC, a California limited liability company by merger or acquisition of all or substantially all the assets of Trestle Hercules, LLC (collectively, "Trestle") so long as Trestle is an Owner of at least one (1) lot within the Property. If Trestle is no longer the Owner of at least one (1) lot within the Property, then the rights and duties of the Declarant shall be assigned to and assumed by the Owner of the lot with the most Floor Area.
1.4 "Owner".
The term "Owner" as used herein shall mean and refer to each person or entity which holds fee title to any lot in the Shopping Center and any successor of such person or entity acquiring said fee title from such person or entity.
Except as may be provided otherwise in this Declaration, the term "Owner" shall not include any lender, trust deed beneficiary or mortgagee, nor any lessee, tenant or 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 18 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
14.3 for provisions regarding multiple undivided ownership interests in a lot. The term "Owner" shall include the Declarant for so long as the Declarant holds fee title to any lot in the Shopping Center.
1.5 "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 Building Area (defined below) in the Shopping Center as Owner or under an! lease, sublease, assignment, license, concession, or other similar agreement.
1.6 "Maintenance Director".
The term "Maintenance Director" shall mean and refer to the person or entity that manages, operates and maintains the Common Area pursuant to Article 9.
1.7 "Lot".
DECLARATION (V.1)
HERCULES, CA 2
The term "lot" means the lot described in the legal description attached as Exhibit A, until such time as such lot is subdivided, combined or modified into different lots. Effective on any such subdivision, combination or modification, "lots" shall mean the legal lots resulting therefrom. Until such time as the Leased Premises, the Fuel Premises, and the Landlord's Pad are subdivided into different lots, the term "lot" shall also mean each of the Leased Premises, the Fuel Premises, or the Landlord's Pad, as applicable, to the extent the context requires.
1.8 Purpose.
Safeway and Declarant desire that the Property, comprised of the Leased Premises, the Fuel Premises and the Landlord's Pad, be developed in conjunction with each other pursuant to a general plan of improvement to form a first-class commercial property (sometimes hereinafter referred to as the "Shopping Center") and desire that the Property be subject to the easements and the covenants, conditions and restrictions hereinafter set forth. Although the Property currently consists of one legal lot owned by Declarant, Declarant and Safeway anticipate that the Property may be subdivided into separate legal lots with separate ownership in the future and desire that such future lots and Owners also be subject to the easements and the covenants, conditions and restrictions hereinafter set forth.
1.9 Development Agreement.
Pursuant to a certain Development Agreement between Declarant and Safeway of even date herewith (the "Development Agreement"), Safeway will initially develop and construct the Shopping Center, except for the building on Landlord's Pad and other improvements within the "Limit of Sitework Pad" depicted in Exhibit A to the Development Agreement, which Declarant will build.
2. AGREEMENT.
In consideration that the following encumbrances shall be binding upon Declarant, Safeway and the Owners and shall attach to and run with the Property, and shall be for the benefit of all future Owners and shall be limitations upon all Occupants of the Property and that all easements herein set forth shall be appurtenant to the dominant estates, and in consideration of the promises, covenants, conditions, restrictions, easements and encumbrances contained herein, Safeway and Declarant do hereby agree as follows.
DECLARATION (V. 1)
HERCULES. CA 3
3. DEFINITION OF BUILDING AREA AND COMMON AREA; POSSIBLE EXPANSION OF SHOPPING CENTER.
3.1 Building Area.
"Building Area" as used herein shall mean those portions of the Safeway Premises devoted from time to time to building improvements, including trash enclosures and compactors, storage areas and other improvements associated with the operation of the business or businesses conducted on the Safeway Premises, and those portions of the Landlord's Pad located within the building
3.2 Floor Area.
"Floor Area" shall mean the aggregate number of square feet of space contained on a floor within a building measured from the exterior surface/face of exterior walls (and extensions, in the case of openings) and from the center line of interior demising walls. To the extent mezzanines and/or basements are counted in determining required parking in the Shopping Center under Applicable Law (defined in Section 4.1.1), mezzanines and basements will be included in the calculation of Floor Area. If a fuel station shall at any time be operated in the Shopping Center, then with respect to such fuel station, the area beneath the canopy only shall be considered Floor Area for purposes of this Declaration.
3.3 Common Area.
"Common Area" shall be all of the Property except Building Area and portions of the Property dedicated to the City of Hercules, the County of Contra Costa, the State of California, the United States government, or any agencies thereof, or any public or private entity, person or utility for use as a public roadway or other similar uses.
3.4 Conversion to Common Area.
Those portions of the Building Area of the Property that are not from time to time used, or cannot under the terms of this Declaration (including by virtue of Section 8.1.1) be used, for building improvements, shall become part of the Common Area and shall be improved, kept and maintained as Common Area as provided in this Declaration. An area converted to Common Area may be converted back to Building Area by its development as Building Area, if, at the time of conversion back to Building Area, it meets the requirements of this Declaration (including the provisions of Section 8.1.1).
3.5 Expansion of Shopping Center.
Safeway, subject to obtaining Declarant's prior written approval, and Declarant subject to obtaining Safeway's prior written approval, shall have the right to expand the Shopping Center by adding additional adjacent property (the DECLARATION (v.1)
HERCULES, CA 4
"New Property"), and to confer on 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.If Safeway acquires the New Property and intends to use it for its business operations, or the operations of a company affiliated with Safeway, the New Property (or such portion as is to be so used) shall have the Benefits and Burdens accorded to the Safeway Premises herein; if the New Property is not to be so used, the New Property (or such portion as is not to be so used) shall have the Benefits and Burdens accorded to the Landlord's Pad. 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, which amendment shall require the signature of Safeway and Declarant, if Safeway is acquiring the New Property, or the signatures of Safeway and Declarant, if Declarant is acquiring the New Property.
Notwithstanding the foregoing, in no event may Safeway or Declarant add New Property to the Shopping Center if the effect thereof would be (i) to materially and adversely change an Owner's or Safeway's rights to use the Common Area or its access to such Owner's lot or the Safeway Premises, as applicable, and/or from such Owner's lot or the Safeway Premises, as applicable, to the street, and/or parking availability, parking ratios or parking requirements; or (ii) to impose any additional use restrictions or additional building restrictions on another Owner or Safeway.
4. USE.
4.1 Use in General.
Subject to the limitations set forth in this Article 4, the Property shall be used for the construction, operation and maintenance of business, commercial, professional and mercantile (retail, general commercial and service) establishments as specified hereinafter and related facilities, including common and vehicular parking areas, of the type usually carried on in a shopping center of comparable size in the County of Contra Costa and not prohibited by Applicable Law. 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 to which this Declaration is subordinate), conditions of approval or authorization of any governmental entity, agency or political subdivision, as presently existing or as may hereafter be amended or adopted.
4.2 Nuisances and Prohibited Uses in Shopping Center.
No portion of the Shopping Center shall be used by any Owner, Occupant, or any tenants, licensees or invitees of either for (i) the conduct of any illegal, offensive, noisy or dangerous trade, business, activity or occupation, (ii) any activity which physically materially interferes with the business of any other DECLARATION (V.1)
HERCULES. CA 5
Owner or other Occupants, or (iii) any other unreasonable use not compatible with the operation of a first-class retail and commercial property, well maintained in accordance with the standards of this Declaration (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 Safeway Premises;
4.2.2 Any use that produces or releases noxious, toxic, caustic, or corrosive fuel or gas (provided this restriction is not applicable to a gasoline or service station dispensing fuels, if any, or to the sale or rental of pre-filled propane tanks);
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 hazard, including the storage, display or sale of explosives or fireworks (provided this restriction is not applicable to a gasoline or service station dispensing fuels, if any, or to the sale or rental of pre-filled propane tanks);
4.2.5 Any warehouse, storage facility or any assembling, manufacturing, distilling, refining, smelting, agricultural or mining operation;
4.2.6 Any fire, going out of business, relocation, bankruptcy or similar sales (unless pursuant to court order);
4.2.7 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 leasing so long as no vehicles are stored or displayed at the Shopping Center);
4.2.8 Any car wash (except if operated in connection with a gasoline or service station operated by Safeway) or automotive maintenance or repair facility;
4.2.9 Any animal raising or boarding facilities (except that this restriction shall not be deemed to prohibit pet food and/or pet supply shops, pet grooming services and/or any veterinary services or boarding services that are provided in connection with the operation of a pet food/supply shop or veterinary office, provided that (i) such boarding services are only incidental to the operation of the pet food/supply shop or veterinary office and (ii) any veterinary office (A) occupies no more than three thousand five hundred (3,500) square feet, (B) does not sell pet foods that are the same as branded pet foods sold by DECLARATION (V.1)
HERCULES, CA 6
Safeway under the Supermarket Ground Lease and (C) is a first-class operation);
4.2.10 Any funeral home or mortuary;
4.2.11 Any adult theater, adult entertainment facility, or adult bookstore, or any establishment engaged in the business of selling, exhibiting or delivering pornographic or obscene materials;
4.2.12 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, or which sells or dispenses medical or recreational marijuana;
4.2.13 Any hotel or motel; and any residential use of any type, including any mobile home park or trailer court, living quarters, sleeping apartments or lodging rooms;
4.2.14 Any church, temple, synagogue, mosque or other place of religious worship;
4.2.15 Any school (except a training or educational facility that is K- 12 only, such as Kumon, Sylvan or SAT preparation educational facilities (but no adult school facilities such as Kaplan University, Phoenix University or Devry)), day care center or reading room or library;
4.2.16 Any massage parlor (except a day spa, chiropractor, physical therapist, massage business such as Massage Envy, and other bona fide therapeutic massage services);
4.2.17 Any bar or tavern, cocktail lounge, or any other facility serving alcoholic beverages or allowing the on-premises consumption of alcoholic beverages, excepting only from this prohibition the serving of alcoholic beverages as an incidental part of the food service operation of a full service Restaurant (defined in Section 4.4.1.2 below), which Restaurant nevertheless will be subject to the restrictions contained in Section 4.4), but in no event may such incidental serving of alcoholic beverages permit the operation of a "Sports Bar," as defined in the next sentence. A "Sports Bar" means a bar that features multiple television monitors playing sporting events and programs at least 75% of the time.
4.2.18 Any gambling facility or operation, including but not limited to off-track or sports betting parlor; table games such as blackjack or poker; slot machines, video poker/blackjack/keno machines or similar devices; or bingo hall.
Notwithstanding the foregoing, this prohibition shall not be applicable to government-sponsored gambling activities or charitable gambling activities, so DECLARATION (V. 1)
HERCULES, CA 7
long as such activities are incidental to the business operation being conducted by the Occupant.
4.2.19 Any dance hall, discotheque or nightclub;
4.2.20 Any dry cleaner with an on-premises plant or that performs 'green" or clean dry cleaners). For
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 Safeway.
4.2.21 Any other use in which Hazardous Substances are stored or used on-site, other than (i) Hazardous Substances stored or used in connection with the operation of an Occupant's business in de minimus amounts or a fuel center, gas station or oil changing facility on the Fuel Premises, and (i) Hazardous Substances packaged for retail sale in reasonable quantities and commonly sold in comparable shopping centers. The term "Hazardous Substances" means any and all hazardous, toxic or radioactive substance, waste, or material, including without limitation petroleum oil and its fractions, regulated or defined by any applicable federal, state and local statutes, regulations, ordinances and rules as presently existing or as may be amended or adopted in the future, pertaining to the protection of human health and/or the environment.
4.3 Preservation of Shopping Center Character.
Consistent with the Declarant's and Safeway's intention to develop and 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 and Safeway's investment in the Shopping Center, for so long as Safeway is operating a grocery store or grocery supermarket in the Shopping Center, no part of the Shopping Center shall be used for or occupied by any Occupant which: (i) routinely advertises discounted prices, except for a drugstore, (ii) routinely displays inventory for sale from a carton, (i) identifies itself as an "outlet" store, (iv) derives more than ten percent (10%) of its revenue from the sale of "seconds" or damaged or defective merchandise, (v) derives more than ten percent (10%) of its revenue from the sale of second-hand goods (except for one (1) first class consignment store), (vi) routinely sells overstock merchandise from other retailers, or (vi) routinely sells or advertises that it offers for sale all or a majority of its merchandise for a dollar or under a dollar.
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 4.3. Furthermore, so long as Safeway is operating a grocery store or grocery supermarket in the Shopping Center, no part of the Shopping Center shall be used for or occupied by any Occupant which: (a) advertises "payday loans" or equivalent services, DECLARATION (V.1)
HERCULES, CA 8
derives more than ten percent (10%) of its revenue from loans with an initial maturity of ninety (90) days or less, or (b) derives more than ten percent (10%) of its revenue 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.
4.4 Certain Parking Intensive Uses Prohibited.
4.4.1 Prohibited Uses. The Declarant recognizes Safeway's need for adequate parking facilities in close proximity to its premises and the importance of protecting such parking facilities against unreasonable or undue encroachment which is likely to result from long term parking by patrons or employees of certain types of business establishments. As a consequence thereof the Declarant covenants that:
4.4.1.1 No part of the Landlord's Pad shall be devoted
to the use or operation of (i) a theater, concert hall, meeting hall, bowling alley, pool or billiard hall, skating rink, (ii) health or aerobic club, spa or studio or a gym occupying more than 3,000 square feet of space (provided any such spa is of a first class nature), or (iii) carnival, circus, amusement park, electronic, video and/or mechanical game room or arcade (which shall be defined as a facility containing more than six (6) electronic, video and/or mechanical games) or other recreational or entertainment facility.
4.4.1.2 No part of the Landlord's Pad shall be devoted
to the use or operation of any Restaurant (fastfood or sit-down), Coffee Shop, or any training or educational facility (except a training or educational facility that is K-12 only, such as Kumon, Sylvan or SAT preparation educational facilities (but no adult school facilities such as Kaplan University, Phoenix University or Devry)); provided, however, that one (1) Restaurant or one (1) Coffee Shop shall be permitted, provided, that, such Restaurant or Coffee Shop occupies no more than 3,000 square feet and is located in that portion of the building on Landlord's Pad that is nearest to the Fuel Premises. As used herein, (i) "Restaurant" means any business establishment primarily devoted to the sale of meals or refreshments for on-premises consumption and/or meals or refreshments prepared on premises for take-out; (ii) "training or educational facility" includes, without limitation, a 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 Owner's tenants incidental to the conduct of their businesses within the Landlord's Pad and further excludes the uses permitted in Section 4.2.15 above; and (ii) "Coffee Shop" means a business (i) which primarily sells liquid coffee or other beverages by the cup, (ii) whose sale of coffee beans does not exceed twenty percent (20%) of total sales from such location, (iii) whose sale of food for off-premises consumption (other than sales described in (i) above) are limited to Incidental Sales (the parties agree that such coffee shop would include a Peets as such stores are typically operated as of the date of this Declaration provided same DECLARATION (V.1)
HERCULES, CA 9
satisfies the square footage and location requirements set forth in this Section
4.4.1.2). "Incidental Sales" means (i) sales of food that aggregately (A) do not exceed ten percent (10%) of such user's total annual gross sales from its premises; and (B) are conducted from no more than the lesser of (x) five percent (5%) of the applicable user's floor space; (y) five hundred (500) square feet of such user's floor space; provided, however, in no event shall such sales include more than five hundred (500) square feet of its floor space for the sale of any perishable items (items with a shelf-life of less than 30 days)) measurements to include any and all display case/shelf areas and one-half (1/2) of any adjacent aisle spaces); and (i) sales of "take out" or "carry out" food or drink (other than coffee or tea-based drinks) prepared for immediate consumption.
4.4.1.3 Intentionally omitted.
4.4.2 Waiver. The provisions of this Section 4.4 are for the benefit of Safeway alone, and may be waived by Safeway alone, in its sole discretion.
4.5 Medical Uses.
Intentionally omitted.
DECLARATION (V.1)
HERCULES, CA 10
4.6 Safeway Premises Exclusive.
Safeway Premises Exclusive. The Declarant recognizes
that Safeway is locating its business in the Shopping Center and foregoing other opportunities on the expectation that, except as expressly set forth in this Section 4.6 or elsewhere in this Declaration, Safeway will have the sole and exclusive right in the Shopping Center to sell the items and provide the services described in this Section 4.6. recognition and consideration of this expectation, Declarant covenants that, except as provided hereinafter in this Section 4.6, the store or stores on the Safeway Premises shall have the sole and exclusive right in the Shopping Center to (i) sell food (for purposes of this Section
4.6. the term "food" includes alcoholic beverages) for off-premises consumption, (ii) sell pet foods; (iii) 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"); (iv) sell gasoline and other fuels for automobiles and other means of transport. Stores in the Shopping Center other than the store or stores on the Safeway Premises may devote up to, but not more than, the lesser of (a) one thousand five hundred (1,500) square feet of sales area (including aisle space adjacent thereto), or (b) sales area (including aisle space adjacent thereto) of up to ten percent (10%) of the total square footage of the building on the premises, to the sale of food for off-premises consumption (but no amount of alcoholic beverages). Furthermore, the provisions of this Section 4.6 will not be deemed to prohibit a Restaurant from selling food prepared on premises for off- premises consumption (subject, however, to the restrictions set forth in Section 4.4.1.2).
4.6.2 Termination of Safeway Premises Exclusive.
exclusive rights set forth in Section 4.6.1 above will terminate and be of no further force or effect, with respect to the Applicable Business (defined below) only, if, after Tenant initial opens for business to the public in the Leased Premises or the Fuel Premises, as applicable, the business (i.e., sale of food, sale of Prescription Pharmacy Merchandise, sale of pet foods, sale of gasoline and other fuels) that is the subject of the exclusive as set forth in Section 4.6.1 above (the "Applicable Business") is not operated from the Leased Premises or the Fuel Premises, as applicable, for a continuous period of two hundred forty (240) days or more for any reason other than (i) Force Majeure or (ii) temporary closure due to the restoration, reconstruction, expansion, alteration or remodeling of any buildings or improvements located in the Shopping Center (the circumstances described in clauses (i) and (ii) are hereafter referred to as "Excusable Events"). Such restrictions will again be effective as to any Applicable Business which is thereafter operated in the Leased Premises or the Fuel Premises, as applicable, but will be subject to any leases, assignments or subleases entered into during the period that such restrictions were not effective.
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4.6.3 Waiver. The provisions of this Section 4.6 are for the benefit of Safeway alone, and may be waived by Safeway alone, in its sole discretion.
BUILDINGS.
5.1 Location.
No buildings shall be constructed, erected or maintained anywhere within the Shopping Center except within the Building Area. Canopies may encroach from the Building Area over the Common Area and canopy support columns may encroach onto the Common Area provided such canopies and support columns do not interfere with the normal use of the Common Area and provided further such canopies and support columns shall be considered part of the buildings to which they are attached and not part of the Common Area improvements.
5.2 Design and Construction.
5.2.1 Elevations. 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.
Notwithstanding the foregoing, Safeway shall have the right to modify its exterior elevations to conform to Safeway's then current trade dress or other company standards. The design and construction of the buildings shall be in conformity with sound architectural and engineering standards and the construction shall be first quality. The initial design and construction of the Shopping Center shall be in accordance with the Development Agreement, including all review and approval rights of Safeway or Declarant, if any, contained therein. In addition, after completion of the initial improvements on the Landlord's Pad pursuant to the Development Agreement (which initial improvements have been approved by Safeway), Safeway shall have the right of prior review and approval (not to be unreasonably withheld) of the finished floor elevations and the exterior elevations of all replacement or remodeled buildings on the Landlord's Pad.
5.2.2 Building Height. All buildings in the Shopping Center will be one story only (but may include mezzanines and basements not open to the general public and rooftop parking). After completion of the initial improvements on the Landlord's Pad pursuant to the Development Agreement (which initial improvements have been approved by Safeway), all replacement or remodeled buildings located on the Landlord's Pad shall observe the following height limits:
(i) free-standing pad buildings will not exceed twenty (20) feet in height, inclusive of architectural features, such as parapets and tower elements, and rooftop equipment and screening; and (ii) in-line buildings designed for small tenant shops will not exceed thirty-two (32) feet in height, inclusive of architectural features, such as parapets and tower elements, and rooftop equipment and screening.
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5.3 Maintenance of Buildings.
Subject to the provisions of Section 5.4, the Declarant or any subsequent Owner of the lot containing the Landlord's Pad shall keep, maintain, repair, manage and operate the buildings, or cause same to be kept, maintained, repaired, managed and operated, whether occupied or unoccupied, and any trash bins located on the Landlord's Pad in good and clean order, condition and repair in conformity with first-class shopping center standards. Subject to the provisions of Section 5.4, Safeway, during the term of the Supermarket Ground Lease, or following the termination or expiration of the Supermarket Ground Lease, the Owner of the lot containing the Leased Premises, shall keep; maintain, repair, manage and operate the buildings, whether occupied or unoccupied, and any trash bins located on the Leased Premises in good and clean order, condition and repair in conformity with first-class shopping center standards. Subject to the provisions of Section 5.4, Safeway during the term of the Fuel Ground Lease, or following the termination or expiration of the Fuel Ground Lease, the Owner of the lot containing the Fuel Premises, shall keep, maintain, repair, manage and operate the buildings, whether occupied or unoccupied, and any trash bins located on the Fuel Premises in good and clean order, condition and repair in conformity with first-class shopping center standards.
5.4 Damage or Destruction.
In the event of any damage to or destruction of any building on the Landlord's Pad, the Owner, at its election, at its sole cost and risk and with all due diligence, shall either (i) commence construction and diligently pursue the repair, replacement or rebuilding of the affected buildings and improvements; (i) board up or otherwise secure the affected buildings and improvements as required by municipal ordinances; or (iii) cause the affected buildings and improvements to be razed and the affected portions placed in a safe and sightly condition. In the event of any damage to or destruction of any building on the Safeway Premises during the term of the Supermarket Ground Lease or the Fuel Ground Lease, as applicable, the provisions of the Supermarket Ground Lease or the Fuel Ground Lease, as applicable, shall control, and, following the termination or expiration of such leases, the Owner of the lot containing the Leased Premises or the Fuel Premises, as applicable, shall at its election, at its sole cost and risk and with all due diligence, either (i) commence construction and diligently pursue the repair, replacement or rebuilding of the affected buildings and improvements; (i) board up or otherwise secure the affected buildings and improvements as required by municipal ordinances; or (iii) cause the affected buildings and improvements to be razed and the affected Leased Premises placed in a safe and sightly condition; provided, however, if Safeway elects either (i) or (iii) above, then except in the last two (2) years of the Term of the Supermarket Ground Lease, if Declarant elects to restore the improvements on Landlord's Pad as set forth above, Safeway shall commence construction and diligently pursue repair, replacement or rebuilding of the curb cut and drive aisle DECLARATION (V.1)
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off of San Pablo Avenue to and from Landlord's Pad as such "Required Drive" is marked on Exhibit B. 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 in this Declaration, or be relieved of its obligation to pay Common Area Expenses as required by Article 9.
6. COMMON AREA USE.
6.1 Grant of Easements-Access, Parking, Common Area Facilities.
Declarant, as grantor, hereby grants solely to the Owners and Safeway, only for the benefit of said Owners and Safeway and their respective tenants and licensees, and such persons', tenants' and licensees' customers, invitees and employees, a nonexclusive easement for roadways, walkways, ingress and egress, the parking of motor vehicles, 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 Occupant; provided that the Outdoor Dining Area (defined in Section
6.10) on the Leased Premises, shall be for the exclusive use of Safeway and its customers, employees and invitees.
6.2 Use.
Subject to existing easements of record and other uses specified herein, the Common Area shall be used for roadways, walkways, ingress and egress, parking of motor vehicles, loading and unloading of commercial and other delivery vehicles, for driveway purposes, and for the comfort and convenience of customers, invitees and employees of all businesses and Occupants of the Shopping Center in accordance with Applicable Law. Notwithstanding anything herein to the contrary, overnight parking shall be permitted only for employees working nighttime or graveyard shifts.
6.3 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 Owner or Occupant which shall prevent or impair the use or exercise of any of the easements granted herein, or the free access and movement, including without limitation, of pedestrians 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 changes to the Building Area and Common Area permitted by this Declaration;
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(ii) for 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, all of which are permitted hereunder so long as their use is kept within reasonable requirements of construction work being expeditiously pursued; and provided that obstruction or limitation of access to public streets shall be avoided or kept to a minimum, if unavoidable, and if unavoidable, shall be conducted outside normal business hours to the extent feasible;
(iii) for temporary staging and/or storage permitted pursuant to Section
8.3.2;
(iv) for enclosures of the Outdoor Dining Area on the Leased Premises; (v) for occasional promotional and special events of short duration or as otherwise approved by Safeway.
6.4 Limitations on Use; Rules and Regulations.
6.4.1 Customers: Except as approved by Safeway, customers and invitees shall not be permitted to park on the Common Area except while shopping or transacting business in the Shopping Center.
6.4.2 Employees. Employees shall not be permitted to park on the Common Area, except in areas designated as "employee parking areas".
Declarant and Safeway may mutually designate and approve "employee parking areas" from time to time. However, if they do not, each Owner and Safeway may formally or informally designate "employee parking areas" on its own lot. Each Owner and Safeway may authorize the Maintenance Director to assess fines and/or penalties in connection with the enforcement of this Section 6.4.2, including the towing of vehicles to the extent permitted by Applicable Law, with respect to such Owner's or Safeway's lot or lots only.
6.4.3 Safeway Premises Exclusive Parking. Safeway will have the exclusive right to use the five (5) parking spaces designated "Safeway's [or other trade name] Exclusive Parking" to park vehicles used in connection with deliveries of items from Safeway's building to Safeway's customers. Safeway also will have the right to designate up to four (4) of the parking spaces in the vicinity immediately in front of Safeway's building for 15-minute-parking-only by the placement of signs in front of each of such spaces, provided that such spaces shall not be located on the Landlord's Pad. Safeway shall also have the right to designate parking spaces in the vicinity immediately in front of Safeway's building for customers to park to pick up items purchased on-line and, in connection therewith, Safeway may install such signage (including directional signage), bollards, painting, decals or other items as Safeway deems necessary in the Common Area on the Leased Premises.
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6.4.4 Recycling Center. If required by Applicable Law, Safeway also will have the exclusive right in the Shopping Center to operate a recycling center on a portion of the Common Area (except not located on the Landlord's Pad).
6.4.5 Regulated Activities. To the extent permitted by Applicable Law, Safeway and Declarant will each have the right to promulgate and enforce rules and guidelines prohibiting or restricting publicly expressive activity in the Common Area (including the circulation of petitions, leafleting and picketing) not related to the commercial purpose of the Shopping Center. Any Owner that is the target of such activity, or any Owner whose tenant is the target of such activity, or Safeway, may enforce such rules and guidelines, and the other Owners will cooperate with the enforcing Owner or Safeway in this regard. The enforcing Owner or Safeway will indemnify, defend, protect and hold harmless the other Owners from and against all claims, losses, damages and causes of action arising out of any such enforcement activities.
6.5 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 in the Shopping Center and for the servicing and supplying of such businesses.
6.6 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 Safeway and 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 Safeway and the Owners by mutual agreement shall use their best efforts to institute a uniform fee collection parking system for the Shopping Center.
6.7 Utility and Service Easements.
6.7.1 Grant of Easements. Declarant, as grantor, hereby grants solely to the Owners and Safeway, only for the benefit of said Owners and Safeway and their respective tenants and licensees, non-exclusive easements over the Property (other than Building Area) for the installation, operation, maintenance, repair and replacement of storm drainage systems or structures, water mains, sanitary sewers, landscaping water sprinkler systems and irrigation lines, CATV, fiber optic, telephone and electrical lines, conduits or systems, gas mains, other public or private utilities, and other proper services and accommodations necessary or desirable • for the orderly development and DECLARATION (v. 1)
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operation of the Shopping Center and buildings to be erected upon the Building Area (collectively. , "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 and the fuel center, so long as Safeway is the Occupant of both such lots; (i) a subsurface electronic system to prevent the removal of shopping carts from the Shopping Center; and (iii) underground facilities such as grease traps and pipelines which cannot feasibly be located within the boundaries of the supermarket or the fuel center.
6.7.2 Approval. The initial location of easements for Utility Lines and Facilities shall be handled in accordance with the Development Agreement, including all approval rights of Safeway or Declarant, if any, contained therein. On request by any Owner, each 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 in a form reasonably acceptable to the burdened Owner.
6.7.3 Installation and Notice. 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, and shall be located no closer than five (5) feet of any Building Area or future Building Area, unless otherwise agreed by the Owner of the lot to be burdened by the Utility Line or Facility and by Safeway, if Safeway is a lessee of the lot to be burdened by the Utility Line or Facility. Except in connection with the initial installation of Utility Lines and Facilities on the Property which shall be handled in accordance with the Development Agreement, the Owner causing the installation, operation, maintenance, repair or replacement of Utility Lines and Facilities shall (i) provide not less than twenty (20) days' prior written notice to and consultation with the Owners) of the lots) upon which such work will occur and to and with Safeway, it Safeway is a lessee on the lots) upon which such work will occur, except that in the case of an emergency, such as where there is a safety hazard or service has been or is threatened to be disrupted (a "Service Emergency"), then only such notice and consultation as is reasonably appropriate given the nature and extent of such emergency shall be required; (i) bear all costs related to such installation, operation, maintenance, repair and replacement; (iii) restore any damage to the grantor's lots) resulting from such work to substantially the same (or better) condition than that existing immediately prior to the commencement of such work; and (iv) provide, if available, as-built plans for all such facilities to the Owners of all lots) upon which such Utility Lines and Facilities are located and to Safeway, if Safeway is a lessee of a lot upon which such Utility Lines and Facilities are located, within thirty (30) days after the date of completion of construction of the same.
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6.7.4 Relocation. At any time and from time to time, an Owner or Safeway shall have the right to relocate any Utility Line or Facility installed on its lot pursuant to the easements granted herein and the associated easement area, provided that (except in the case of a Service Emergency) any such relocation (i) shall be performed only after thirty (30) days' written notice to and consultation with the Owner served by the Utility Line or Facility and Safeway, if Safeway is a lessee on the lot served by the Utility Line or Facility, except that in the case of a Service Emergency, then only such notice and consultation as is reasonably appropriate given the nature and extent of such emergency shall be required; (i) shall not reduce or unreasonably impair the usefulness or function of, or unreasonably interfere with or diminish service to the businesses served by, the Utility Line or Facility; (iii) shall be performed without cost or expense to any Owner or Occupant of any other lot; (iv) shall provide for the relocated Utility Line or Facility to be relocated using material and design standards which equal or exceed those originally used; and (v) restore any damage to the grantor's lots) resulting from such work to substantially the same (or better) condition than that existing immediately prior to the commencement of such work. 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 or Facilities and to Safeway, if Safeway is a lessee on the lot served by such Utility Lines or Facilities, on request.
6.8 Maintenance Easement.
Each Owner hereby grants to the Maintenance Director, and its employees, agents, and contractors an easement over the Common Area located upon each such Owner's lot for the purpose of, and to the extent reasonably necessary for, performing the Maintenance Director's obligations under this Declaration.
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6.9 General.
6.9.1 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 or Safeway, each Owner will sign and acknowledge a document memorializing the existence, including the location and any conditions, of any such 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 such an 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, (i) to have agreed to execute any easement instrument on request by any Owner and (ill) to have granted to each Owner an irrevocable power of attorney to execute such easements on the Occupant's behalf, if such person fails to promptly execute any requested easement instrument.
6.9.2 Except in the case of a Service Emergency, no person shall enter another Owner's lot, or the Safeway Premises, to perform any installation, maintenance, repair, replacement, relocation or similar activity pursuant to the easement rights granted in this Article 6 during any holiday period, defined as November 20 through January 15, the week before Easter, and the Labor Day and Memorial Day weekends. All activities conducted on the Property shall be carried out so as to not materially or unreasonably interfere with the use of the improved Common Area thereon and so as to minimize disruption to the business conducted on the Property. If the work involves tying into Utility Lines and Facilities on a lot, the work shall be performed in a manner such that services provided by those lines to Occupants of such lot are not interrupted during normal business hours and do not result in damage to the property of such Occupants, unless unavoidable. The grantee exercising the easement and other rights granted in this Article 6 shall indemnify, defend, protect 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.
6.9.3 Except as provided in Section 3.5 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 than invitees in the normal course of the Occupants' businesses.
6.10 Outside Merchandising.
The selling, displaying or merchandising of goods and services shall be confined to the interior of the buildings permitted under this Declaration, and, except as hereinafter provided, shall not be conducted upon the Common Area.
Notwithstanding the foregoing, Safeway may use the sidewalk immediately adjacent to the building on the Leased Premises to the extent allowed by Applicable Law for (i) the display and sale (or rental) of merchandise (including DECLARATION (V. 1)
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without limitation pre-filled propane tanks) and placement of vending machines, ash and trash bins and pay telephones, (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"). Safeway may also use portions of the Common Area located on the Leased Premises for the display and sale of merchandise and for occasional promotional events. The Owner or Occupant of the Fuel Premises may, in connection with the operation of a gas station and without limitation as to location, (i) display, sell and store items which are customarily displayed, sold or stored outside (for example, motor oil), (i) provide alternative energy sources such as electric car charging stations, and (iii) make available services customarily provided by gas stations such as self-service compressed air and water machines. Notwithstanding the foregoing, the Owner or Occupant of the Landlord's Pad may, to the extent allowed by Applicable Law, (a) use the sidewalk immediately in front of and/or adjacent to the building on the Landlord's Pad for (1) the display and sale or merchandise and (Il) in connection with the operation of a Restaurant or Coffee Shop, the placement of no more than three (3) four-person tables and chairs, provided that in the case of (I) and (II) there is no reduction to available parking spaces and the ADA path of travel is not adversely affected or limited thereby; and (b) install one (1) ATM in the location as shown on Exhibit C (any other location on the Landlord's Pad or the Shopping Center shall be subject to Safeway's prior written approval which Safeway may withhold in its sole and absolute discretion) as a part of a brick and mortar operation by an Occupant on the Landlord's Pad.
7. SIGNS.
7.1 Freestanding Signs.
7.1.1 Safeway Signs. Subject to Applicable Law and in
accordance with the Development Agreement, Safeway shall have the exclusive right to install pylon, pole, and/or monument type sign structures in the Common Area in the location(s) shown on the Site Plan or in such other locations as Safeway determines, at its cost and expense. Safeway shall have the sole right to place its signs (and those of any of Safeway's sublessees or licensees) on such pylon, pole, and/or monument sign structures, provided, however, Declarant shall have the right to two (2) panels (both sides) on the pylon sign erected by Safeway (as indicated on Exhibit D), provided that Declarant shall pay to Safeway its proportionate share of the total costs and expenses incurred by Safeway in constructing such pylon sign and its proportionate share of the ongoing maintenance expenses with respect to such pylon sign. For purposes of this Section 7.1, Declarant's proportionate share shall equal a fraction, the numerator of which is the square footage of Declarant's sign panel(s) and the denominator of which is the square footage of all sign panels on such pylon sign. Safeway shall have the right to reasonably approve the design and construction of Declarant's sign panels on the pylon sign. Safeway and Declarant shall be solely responsible DECLARATION (V.1)
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for the maintenance, repair and replacement of its respective sign panels on the pylon sign.
7.1.2 Other Signs. Except as permitted elsewhere in this Declaration (including Section 6.4.3 above), no other freestanding signs shall be located on the Property except (i) traffic control, directional signs 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, all of which signs shall be subject to receiving Safeway's prior approval as required by Section 7.1.3 below.
7.1.3 Sateway Approval Rights. No pylon, monument or other freestanding sign shall be permitted on the Property without Safeway's prior approval. Safeway shall not unreasonably withhold its approval to a request for approval of freestanding signage on the Landlord's Pad, provided that, without limiting the grounds for Safeway to reasonably withhold its approval, Safeway may reasonably disapprove a sign that obstructs the visibility of Safeway's signage (including building or canopy signage on the Fuel Premises), or is larger or more prominent that Safeway's signage. Notwithstanding anything above to the contrary, each Owner shall be permitted to place within the Common Area located on its lot the following types of signs, subject to Safeway's reasonable approval:
(i) directional signs 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.
7.2 Building Signage.
All exterior signage and signage designed to be seen or primarily visible from outside the buildings in the Shopping Center shall be restricted to identification of the businesses, services and/or merchandise located or sold therein, and must comply with Applicable Law and be approved by Safeway, such approval not to be unreasonably withheld. Occupants shall also have the right to use storefront windows and doors for the posting of business hours, governmentally required notices, advisories and warnings.
7.3 Promotional Events.
Safeway shall have the right on its building and elsewhere on the Leased Premises or the Fuel Premises to erect protessionally prepared temporary banners or other signage for special promotional events, such as the grand opening of a store or a remodel. Declarant and/or its occupants shall have the right on its building or on the sidewalk immediately adjacent to such building to erect professionally prepared temporary banners or other signage for special promotional events, such as the grand opening of a store or a remodel, subject to compliance with Applicable Laws.
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DEVELOPMENT.
8.1 Development.
8.1.1 Parking Requirements. At all times there shall be independently maintained on the Property or further subdivision thereof, not less than the minimum number of parking stalls required to satisfy Applicable Law for the use and size of the business(es) operated thereon. Notwithstanding the foregoing, any Restaurant use must maintain no less than the number of parking stalls required by Applicable Law.
8.2 Common Area Alterations.
8.2.1 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 Declarant and Safeway.
8.2.2 Notwithstanding any provision in Section 8.2.1 to the contrary, Safeway, at its expense, shall have the right, without approval of the Declarant, to modify the sizes or the arrangements of the Common Area improvements (including service drives and parking areas, traffic circulation and flow patterns, parking lot layout, perimeter walls and fences, and landscaped areas) that are located on the Safeway Premises from time to time provided that no such alteration shall (i) adversely affect ingress and egress to/from the Landlord's Pad adjacent thereto, (i) adversely affect traffic circulation and flow within the Shopping Center, (iii) adversely affect the visibility of any building and/or signage thereon from the streets contiguous to the Shopping Center, or (iv) reduce the number of parking spaces available on the Property below that required by Applicable Law. Notwithstanding the foregoing, no drive-thru lanes shall be permitted on or adjacent to the Landlord's Pad except as shown on the Site Plan, in the locations and configurations shown thereon, or as otherwise agreed to by Safeway and Declarant.
Notwithstanding anything in this Declaration to the contrary, Safeway shall not take any action modifying or otherwise obstructing the drive-thru, landscaping, sidewalks, parking spaces, driveways and drive aisles located within the area marked as "Landlord Protected Area" on Exhibit B without Declarant's prior written consent. The foregoing restrictions shall not apply to actions required by applicable law and not initiated or requested by Safeway.
8.3 Construction.
8.3.1 Performance. All work performed in 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 effected as expeditiously as possible and in such a manner as not to unreasonably interfere, obstruct or delay (i) access to or from DECLARATION (V. 1)
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the Shopping Center, or circulation within the Shopping Center, (i) customer vehicular parking within the Shopping Center, (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 or Safeway, as applicable, shall, at its sole cost and expense, promptly repair and restore or cause to be promptly repaired and restored to its prior condition all improvements damaged or destroyed in the performance of such construction.
8.3.2 Temporary Staging and Storage. In connection with any construction, reconstruction, maintenance, repair, alteration, remodel or expansion on its lot, each Owner reserves the right to create a temporary staging and/or storage area on its lot and Safeway is granted the right to create a temporary staging and/or storage area on the Leased Premises or Fuel Premises, as applicable, so long as the location thereof will not unreasonably interfere with 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 Declarant and Safeway, except that any staging and/or storage area established by Safeway on the Leased Premises or the Fuel Premises shall require only that Safeway provide Declarant with ten (10) days' prior notice of the proposed location(s) thereof, and after the completion of the initial development of the Shopping Center, such staging area shall be at least two hundred (200) feet from the nearest parcel line for the Landlord's Pad. Prior to the establishment of a staging and/or storage area on its lot for which Declarant's and Safeway's approvals are required, an Owner shall give Declarant and Safeway 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 Declarant or Safeway, fence off the staging and storage area. If either Declarant or Safeway does not approve the proposed location of the staging and/or storage area, the Owner shall modify the proposed location to satisfy the Declarant's and/or Safeway'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, the affected Common Area to a condition equal to or better than that existing prior to the commencement of such
8.3.3 Temporary Construction 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 DECLARATION (v.1)
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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 10.2.5 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 without delay, 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.
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.
8.4 Development Cooperation; Latecomers Agreement.
8.4.1 Accommodation Taking. 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, rights-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 foregoing, 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 6.
8.4.2 Latecomer's Payments. 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") DECLARATION (V.1)
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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.
8.5 Mechanic's Liens.
No Owner nor Safeway, nor 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), Safeway or the Maintenance Director, as applicable. If any such lien should be filed, the Owner, Safeway, or Maintenance Director charged with causing the lien will cause the same to be discharged immediately; provided, however, that the Owner, Safeway 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 request, which will be made only if necessary in connection with a pending financing, refinancing or sale, the Owner, Safeway or Maintenance Director charged with the lien will cause the lien to be removed as an encumbrance on such property, by bonding or otherwise, even if a contest is pending.
9. COMMON AREA MAINTENANCE.
9.1 Maintenance Standards.
9.1.1 Subject to the immediately succeeding sentence, following completion of the Common Area improvements, and until the removal or resignation of the Maintenance Director pursuant to Sections 9.8 and 9.9, 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 individual Owners, if the Maintenance Director is not then responsible for such maintenance) shall include the following:
9.1.1.1 Maintaining and repairing the 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 restriping 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 cross-walks;
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9.1.1.2 Removing all papers, debris, filth and refuse
from the Common Area and washing or thoroughly sweeping the Common Area to the extent reasonably necessary to keep the area in a neat, clean and orderly condition, and free of snow and ice;
9.1.1.3 Placing, keeping in repair and replacing any
necessary appropriate directional signs, markers and lines (provided that directional signs, markers and lines for particular tenants or Occupants shall be maintained by such tenants or Occupants at their sole cost and expense);
9.1.1.4 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 in the reasonable discretion of the Maintenance Director, replacing the Common Area lighting system;
9.1.1.5 Keeping the Common Area adequately
lighted during all hours of darkness while the business on the Safeway Premises and/or on the Landlord's Pad is open for business;
9.1.1.6 Maintaining any perimeter walls in a good
condition and state of repair; and cleaning, maintaining and repairing all curbs and sidewalks within or abutting an Owner's lot (including those situated on the perimeter or outside the boundaries of the Shopping Center, if customarily performed by adjoining property owners);
9.1.1.7 Maintaining and repairing all irrigation and
sprinkler systems, and landscaped areas (including those within a public right-of- way on any Owner's lot, if customarily performed by adjacent property owners), and replacing shrubs and other landscaping, as necessary; Maintaining and repairing Utility Lines and
Facilities serving the Common Area and/or benefiting the Shopping Center as a whole (as opposed to a particular Building Area or Areas) such as detention and water quality ponds, storm water drainage systems, and domestic and fire protection water systems;
9.1.1.9 If determined to be necessary by Safeway, in
Safeway's sole and absolute discretion, providing professional security (including security and monitoring personnel) for the Shopping Center, whose duties may include enforcement of parking lot rules and regulations (subject to Section
9.3.2.2); and
9.1.1.10 Maintaining in full force and effect the
comprehensive general liability insurance policy(ies) required under Article 10 covering the Common Area.
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Notwithstanding the foregoing, the Owner of the Landlord's Pad shall be solely responsible for maintenance, repair, and replacement of those portions of the Common Area immediately adjacent to the Landlord's Pad consisting of the drive- through (and the screen wall installed by Declarant) and sidewalk serving and located adjacent to any building constructed on Landlord's Pad, including insuring same.
9.2 Maintenance Director.
Upon the recordation of this Declaration, Safeway shall be the Maintenance Director, and in such capacity the Maintenance Director shall manage, operate and maintain the 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 9.8 or the Maintenance Director resigns pursuant to Section 9.9. The Maintenance Director 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.
9.3 Common Area Expenses.
9.3.1 Definition and Shares. The term "Common Area
Expenses," shall mean all reasonable out-of-pocket costs and expenses incurred by the Maintenance Director in managing, operating, maintaining, insuring, repairing and replacing the Common Area in accordance with Section 9.1. 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 9.
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, 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. For so long as the Declarant, or any successor to the Declarant, is the Owner of all of the Property and Safeway is the Maintenance Director, the Declarant's "Pro Rata Share" shall be a fraction, the numerator of which is the number of square feet of Floor Area of the building(s) on the Landlord's Pad and the denominator of which is the total number of square feet of Floor Area of all buildings located in the entire Shopping Center. At such time as there is more than one (1) lot within the Shopping Center with separate ownership and Sateway is the Maintenance Director, then each Owner's "Pro Rata Share" shall be a fraction, the numerator of which is the number of square feet of Floor Area of the building(s) on such Owner's lot and the denominator of which is the total number of square feet of Floor Area of all buildings located in the entire Shopping Center; provided, however, that any Owners of lots comprising the Safeway Premises shall not be required to pay their Pro Rata Share of Common Area Expenses with respect to the Safeway Premises. At such time as there is more than one (1) lot within the Shopping Center with separate ownership and DECLARATION (V. 1)
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Safeway is not the Maintenance Director, then each Owner's "Pro Rata Share" shall be a fraction, the numerator of which is the number of square feet of Floor Area of the building(s) on such Owner's lot and the denominator of which is the total number of square feet of Floor Area of all buildings located in the entire Shopping Center. If no building is located on a lot, then the number of square feet of Floor Area shall be deemed to be the number of square feet of land area within the building limit lines for such lot.
9.3.2 Exclusions from Common Area Expenses.
9.3.2.1 Notwithstanding anything to the contrary
contained in this Article 9, for any Owner that separately pays the cost of power to illuminate the Common Area on its lot, Common Area Expenses shall not include any electricity charges for the cost of illuminating the balance of the Common Area within the Shopping Center.
9.3.2.2 At any time that Safeway is not the
Maintenance Director, Safeway shall only be required to pay its Pro Rata Share of Common Area Expenses incurred pursuant to Section 9.1.1.9 if Safeway agrees in advance that the provision of on-site security services is necessary.
9.4 Management Fee.
The Maintenance Director shall have the right to charge a management fee of ten percent (10%) of the Pro Rata Share of Common Area Expenses, excluding the cost of liability insurance, property taxes, utilities and, at any time Safeway is not the Maintenance Director, any single Common Area Expense exceeding Five Thousand Dollars ($5,000), but the first $5,000.00 shall be so included ("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 in the event Safeway is no longer the Maintenance Director and the Maintenance Director shall engage a third party to perform its obligations under this Article 9, Safeway shall not be required to reimburse the Maintenance Director for such third party's expenses for overhead or administrative, management or supervisory fees (however designated).
9.5 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. At any time that Safeway is not the Maintenance Director, the Maintenance Director shall not make or authorize any single extraordinary, non-recurring Common Area Expense in excess of Twenty Thousand Dollars ($20,000) without first obtaining the written consent of Safeway; provided, however, that in the event of an emergency that creates a safety hazard or causes a disruption of service or when there is a reasonable likelihood of a disruption of service, the Maintenance Director need only give DECLARATION (V.1)
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such advance notice to Safeway 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 preceding sentence will be increased on the commencement of the sixth (6th) anniversary of the date of this Declaration and at five (5) year intervals thereafter by agreement of Safeway and Declarant or, in the absence of agreement, then by the percentage increase in the Consumer Price Index, All Urban Consumers, U.S. City Average, All Items, as of the date of adjustment over such index as of the first day of the preceding five (5) year period.
9.6 Payment of Common Area Expenses.
9.6.1 Budget. The Maintenance Director shall, at the
commencement of the operation of the Shopping Center and thirty (30) 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, and (i) a bill for each Owner's Pro Rata Share of the estimated cost of the Common Area Expenses for the budget period, which budget, at any time Safeway is not the Maintenance Director, shall be subject to the approval of Safeway, which shall not be unreasonably withheld, delayed or conditioned. Each Owner shall, during the budget period, pay its Pro Rata Share in equal monthly amounts, in advance, on the first day of 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).
9.6.2 Reconciliation. 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 (ili) a statement of the calculations used to compute the sum assessed to each Owner ("Reconciliation"). If the Reconciliation indicates an underpayment by an Owner, such Owner will pay to the Maintenance Director the amount of such underpayment within thirty (30) days after receipt of the Reconciliation, including, if requested by such Owner during such thirty (30) days, copies of all invoices, bills, receipts and other documentation to support the Reconciliation. If the Reconciliation indicates an overpayment by an Owner, then the Maintenance Director will refund the overpayment to such Owner with the Maintenance Director's delivery of the Reconciliation. Upon, and within twenty (20) days following the request of an Owner, the Maintenance Director will submit to the requesting Owner copies of all invoices, bills, receipts and other documentation to support the Reconciliation.
9.7 Audit.
The Maintenance Director will maintain complete and accurate books of account and records of the Common Area Expenses, which books of account DECLARATION (V.1)
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and records for each calendar year will be maintained by the Maintenance Director for at least three (3) years after the expiration of such calendar year.
Each Owner, at its sole cost and expense, except as provided below, will be entitled to have an audit made of such books of account and records by representatives of such Owner. Such audit may be made only by such Owner giving the Maintenance Director at least twenty (20) days' prior written notice.
No Owner may request more than one (1) audit for each calendar year, and it must be completed within three (3) years from the expiration of the calendar year being audited. If the audit discloses that any reimbursement by the auditing Owner for the period audited was not correct, such Owner will immediately pay any additional amount due the Maintenance Director as disclosed by the audit, and the Maintenance Director will immediately refund to such Owner the amount of any overpayment as disclosed by the audit. If the audit discloses that the auditing Owner has overpaid or been over billed its actual share of Common Area Expenses by more than five percent (5%), as originally calculated by the Maintenance Director, then the cost of the audit will be borne by the Maintenance Director, and the cost of such audit will not be included in Common Area Expenses.
9.8 Replacement of Maintenance Director.
9.8.1 Right to Replace. At any time that Safeway is not the Maintenance Director and Safeway shall be dissatisfied with the Maintenance Director's performance of its obligations; or the cost thereof, then Safeway shall have the right to give the Maintenance Director thirty (30) days' written notice of dissatisfaction, specifying the particulars in respect of which the Maintenance Director's performance is considered unsatisfactory. If at the end of the thirty (30) day period from the date of such notice such performance shall continue to be unsatisfactory or any default thereof not cured (or, if it shall reasonably take more than thirty (30) days to cure, the Maintenance Director shall not have commenced to cure such default within the thirty (30) days and diligently prosecuted the cure to completion), Safeway 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.
9.8.2 Election to Take Over. Notwithstanding the foregoing, Safeway 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 Safeway Premises (and any other lots for which it is then the Owner or Occupant) in which event, Safeway shall have no obligation to pay any Common Area Expenses to the Maintenance Director with respect to the Safeway Premises. Safeway 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 Safeway Premises (and any other lots for which it is then the Owner or Occupant) on condition that Safeway give the Maintenance Director for the other lots at least sixty (60) days' DECLARATION (v.1)
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prior notice of Safeway's intention to have such Maintenance Director resume the operation and maintenance of the Common Area on the Safeway Premises (and any other lots for which it is then the Owner or Occupant). Provided the above condition is satisfied, concurrently with the designated date, the Maintenance Director for the other lots shall resume full responsibility for the management, operation and maintenance of the Common Area located on the Safeway Premises (and any other lots for which it is then the Owner or Occupant), and Safeway shall again be responsible for its share of Common Area Expenses as set forth in Section 9.3.
9.9 Resignation of Maintenance Director.
The Maintenance Director may resign at any time by giving at least sixty (60) days' prior notice in writing to the Owners. If the Maintenance Director resigns, Safeway shall appoint a new Maintenance Director that shall assume responsibility for the management, operation and maintenance of the Shopping Center upon the conclusion of its predecessor Maintenance Director's appointment and perform the management, operation and maintenance obligations of the Maintenance Director set forth in this Declaration until resignation or termination in accordance with the terms of this Declaration.
9.10 Maintenance Director's Post-Resignation or Replacement Responsibilities.
In the event the Maintenance Director resigns or is removed as provided in this Section, 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 thirty (30) 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 terms hereof. perform the maintenance
of the Maintenance Director set forth in this Declaration throughout the remainder of the term of this Declaration, or until resignation or removal in accordance with the terms of this Declaration.
9.11 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 lots), at its sole cost and expense, in a manner consistent DECLARATION (V. 1)
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with the provisions of this Declaration; subject, however, to any payment obligations related to signs in accordance with Article 7.
10. INDEMNIFICATION. INSURANCE.
10.1 Indemnification.
10.1.1 By Owners. Each Owner ('Indemnifying Owner") shall indemnify, defend, protect and hold harmless each of the other Owners, each Occupant and the Maintenance Director (each such Owner, Occupant and the Maintenance Director is referred to severally in this Section 10.1.1 as the "Indemnified Party") 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 for injury to person, loss of life or damage to property ("Claims and Damages") (i) arising out of or resulting from any construction activities in the Shopping Center performed by or at the request of the Indemnifying Owner or any of the Occupants of the Indemnifying Owner's lots), except if caused by the negligence or willful act or omission in whole or in part by the Indemnified Party or its employees, contractors or agents; or (ii) arising out of or resulting from occurrences on the Indemnifying Owner's lot, but excluding (a) Claims and Damages arising out of or resulting from occurrences on the Common Area on such Indemnifying Owner's lot, if at the time of the occurrence giving rise to any such Claims and Damages such Common Area was being maintained by the Maintenance Director pursuant to Article 9 (unless such Claims and Damages are the type described in clause (i) above), and (b) Claims and Damages arising out of or resulting from occurrences caused by the negligence or willful act or omission in whole or in part of the Indemnified Party, or its employees, contractors or agents; (iii) arising out of or resulting from occurrences on another Owner's lot, if caused by the negligence or willful act or omission of the Indemnifying Owner or the Occupants of the Indemnifying Owner's lots) 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 Substances (the Owners indemnify each other, the Occupants on each other's lots and the Maintenance Director against such Third Party Claims exclusively by Article 15 below).
10.1.2 By Maintenance Director. The Maintenance Director shall indemnify, defend, protect and hold harmless each of the Owners and each Occupant (each such Owner and Occupant is referred to severally in this Section
10.1.2 as the "Indemnified Party") from and against any and all Claims and Damages arising out of or resulting from occurrences on the Common Area, if caused by the negligence or willful misconduct of the Maintenance Director or its 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) DECLARATION (V.1)
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under the commercial or general liability insurance policy maintained or required to be maintained by the Maintenance • Director on the Common Area under Section 10.2.2 hereof; (ii) shall not apply to any Claims and Damages arising out of or resulting from occurrences 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 on such lot has ceased in accordance with Section 9.8 or 9.9 above; or (iii) shall not apply to Third Party Claims arising from the release, spill, treatment, transportation or disposal of Hazardous Substances (the Maintenance Director indemnifies the Owners and Occupants against such Third Party Claims exclusively by Article 15 below).
10.2 Liability Insurance.
10.2.1 Owners. At all times, each Owner, at its sole expense, shall obtain and continuously maintain comprehensive general liability insurance (including contractual liability coverage insuring, among other things, its indemnification obligations set forth in this Declaration). Such insurance shall be written with a reputable insurance carrier licensed to do business in the State in which the Shopping Center is located. The limits of liability of such insurance will be not less than Two Million Dollars ($2,000,000.00) covering 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 ($4,000,000.00) covering 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 shall be increased on the commencement of the sixth (6th) year after the date of this Declaration and at five (5) year intervals thereafter by agreement of the Owners or, in the absence of agreement, then by increases in the Consumer Price Index, All Urban Consumers, U.S. City Average, All Items, as of the date of adjustment over such index as of the first day of the preceding five (5) year period..
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10.2.2 Maintenance Director. At all times, the Maintenance Director shall obtain and • continuously maintain 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 Three Million Dollars ($3,000,000) covering claims for injury to person, loss of life and damage to property arising out of any single occurrence and not less than Five Million Dollars ($5,000,000) covering 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 shall be increased on the commencement of the sixth (6th) year after the date of this Declaration and at five (5) year intervals thereafter by agreement of the Maintenance Director and Safeway or, in the absence of agreement, then by increases in the Consumer Price Index, All Urban Consumers, U.S. City Average, All Items, as of the date of adjustment over such index as of the first day of the preceding five (5) year period.
10.2.3 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.
10.2.4 Master Policy; Self-Insurance. All insurance that Safeway or an Owner is required to maintain under this Section 10.2 may be maintained under a master or blanket policy (or policies). All or any part of the insurance that Safeway is required to maintain under this Section 10.2 may be maintained under a program of self-insurance provided that Safeway maintains a net worth of at least $250,000,000.00. Safeway and each Owner agree to pay the amount of any deductible or self-insurance provided under any insurance that it is required to maintain under this Section 10.2.
10.2.5 Contractors. 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 of Three Million Dollars ($3,000,000) covering claims for injury to person, loss of life and damage to property arising out of any single occurrence.
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.
11. REALTY TAXES AND ASSESSMENTS.
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11.1 Real Estate Taxes and Assessments. The payment of real estate taxes and assessments relating to the Shopping Center and improvements thereon, or the ownership thereot, shall be governed by the Supermarket Ground Lease and Fuel Ground Lease.
12. EMINENT DOMAIN.
12.1 Owner's Right to Award.
Except as expressly provided in this Section 12.1.1, 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 (collectively, a "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 having the fee interest or Safeway, if applicable, and no claim thereon shall be made by the Owners of any other portion of the Common Area. Notwithstanding the foregoing, Safeway shall have all rights with respect to a Taking as are set forth in the Supermarket Ground Lease and/or the Fuel Ground Lease, as applicable.
12.2 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 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 Taking which adversely affects access to an Owner's lot.
12.3 Tenant's Claim.
Nothing in this Article 12 shall prevent a tenant from making a claim against an Owner pursuant to the provisions of any lease between the tenant and the Owner for all or a portion of any such award or payment.
13. CANCELLATION. MODIFICATION. DURATION.
13.1 Cancellation.
This Declaration may be cancelled only by the written agreement of all Owners of the Shopping Center, together with the written consent of Safeway, which cancellation agreement shall be recorded in the Recorder's Office.
13.2 Modification. Delegation of Authority.
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Safeway, its sole discretion, shall have the right to modify this Declaration without the consent of the other Owners; provided, however, if any modification to the Declaration: (i) changes the Building Area of a lot not owned or leased by Safeway or reduces the permissible building height in such Building Area; (ii) changes an Owner's rights to use the Common Area (other than by virtue of changing the layout thereof); (iii) imposes any additional use restrictions or building restrictions on such Owner or lot; or (iv) would impose any materially greater obligation on, or materially impair any right of, an Owner, or otherwise adversely affect any Owner's interest in the Property, then the consent of the Owner of such lot shall be required to so modify the Declaration. This Declaration may also be modified by the written agreement of all Owners and Safeway. Any modification agreement shall be recorded in the Recorder's Any owner, lender, lessee, grantee, sublessee or other party having any interest in any portion of a lot of which Safeway is the Owner or lessee shall be deemed to have appointed Safeway as its attorney-in-fact for the purpose of negotiating and entering into any modifications of this Declaration.
13.3 Duration.
Unless otherwise cancelled and 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.
14. OWNERS AND SUCCESSORS.
14.1 Release from Liability.
thereof acquired by such person or entity. Such person or entity shall be bound 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 Section, the easements, covenants and restrictions in this Declaration shall continue to be benefits and servitudes upon the Shopping Center running with the land.
14.2 Multiple Owners of a Lot.
The Declarant, Safeway and the Owners recognize that the Property may ecome more than one legal lot and such lots may be owned by differen Owners. The term "Owner" shall be understood to mean, "the "Owner or Owner:
of a lot", as the case may be." In the event that the Property is further subdivided and a lot is owned by more than one person (except in the circumstances described in Section 14.3 below), such Owners shall agree among themselves how to allocate minimum pro rata common area maintenance DECLARATION (V. 1)
HERCULES, CA 36
shares pursuant to Article 9 and shall record an instrument memorializing such agreement.
14.3 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 to the addresses specified and in accordance with Article 17 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 the 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.
15. CERTAIN ENVIRONMENTAL PROVISIONS.
15.1 Environmental Indemnities. Environmental indemnities shall be governed by the Supermarket Ground Lease and Fuel Ground Lease.
16. DEFAULT.
16.1 Default.
16.1.1 Lien Right. In the event of default or threatened default of this Declaration, only the Owners or Safeway, as long as it has any interest in the Shopping Center as an Owner or lessee of a lot in which event it shall be deemed an Owner for purpose of this Article 16, shall be entitled to institute proceedings for full and adequate relief from the consequences of said default.
Notwithstanding the foregoing, no breach of this Declaration shall entitle Safeway or any Owner to cancel, rescind or otherwise terminate this Declaration, but such limitation shall not affect any other right or remedies which the Owners or Safeway may have by reason of the breach.
16.2 Remedies for Default.
16.2.1 Lien Right. If Safeway, any Owner or other person subject to the terms of this Declaration ("Defaulting Person") shall default in the full, faithful and punctual performance of any obligation required hereunder or in the observance of any prohibition, restriction or other covenant herein ("Default") and if upon the expiration of thirty (30) days after written notice from any Owner or Safeway to the Defaulting Person, and to the Owner of the affected lot, or Safeway, if different from the Defaulting Person, stating with particularity the nature and extent of such Default, the Defaulting Person has failed to cure the DECLARATION (v. 1)
HERCULES, CA 37
Default, and if a diligent effort is not then being made to cure the Default, then the aggrieved Owner or Safeway, in addition to all other remedies it may have at law or in equity, shall have the right to perform such obligation of this Declaration on behalf of such Defaulting Person and to be reimbursed by such Defaulting Person (and Owner of the lot, if different from the Defaulting Person, who shall be jointly and severally / liable for the Default for the cost thereof maximum rate allowed by law. Any such claim for reimbursement, together with interest as aforesaid, may be a secured right and a lien shall attach and take effect upon recordation of a proper claim of lien by the claimant in the Recorder's Office. The claim of lien shall include the following: (i) the name of the claimant; (ii) a statement concerning the basis of the claim of the lien; (iii) the last known name and address of the Owner or reputed Owner of the lot against which the lien is claimed; (iv) a description of the property against which the lien is claimed; (v) a description of the work performed or payment made which has given rise to the clained C claim of lien hereunder and a statement itemizing the amount thereof; and (vi) a statement that the lien is claimed pursuant to the provision of this Declaration reciting the date, book and page of the recordation hereof. The claim of lien 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, either by personal service or by mailing to the defaulting Owner as provided in Article 17. The lien so claimed shall attach from the date of recordation solely in the amount claimed thereby and it may be enforced in any manner allowed by law for the foreclosure of liens, including without limitation a suit to foreclose a mortgage/deed of trust or mechanic's lien under the applicable provisions of the law of the State in which the Shopping Center is located.
16.2.2 Injunction and Other Relief. In addition to the remedies provided in Section 16.2.1, in the event of any violation or threatened violation of the terms of this Declaration, any Owner or Safeway shall have the right to enjoin such violation or threatened violation and pursue any other remedies provided in this Declaration or by law. All of the remedies permitted or available to an Owner, Safeway, or the Maintenance Director under this Declaration or at law or in equity shali be cumulative and not alternative, and invocation of any such right or emedy shall not constitute a waiver or election of remedies with respect to an ther permitted or available riaht or remedi
16.2.3 Deduct from Rent. In addition to any of Safeway's and/or the Maintenance Directors rights and remedies for a default by Declarant, if Declarant fails to pay its Pro Rata Share of Common Area Expenses within thre 3) days after such payment is due pursuant to Section 9.6.1, then Safeway ma deduct such delinquent amount from any rental amounts owing, or coming due, from Safeway to Declarant under the Supermarket Ground Lease and/or Fuel
16.3 Waiver of Jury Trial.
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HERCULES, CA 38
Safeway, Declarant and the Owners desire and intend that any dispute or controversy arising between 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, Declarant, and Safeway each irrevocably and unconditionally waives 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, Declarant or Safeway on any matter whatsoever arising out of, or in any way connected with, this Declaration, the Shopping Center, the relationship of the Owners, Declarant and Safeway 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 Applicable Law concerning such Declaration. By accepting an interest in any part of the Shopping Center, the Owners and Safeway each certifies and acknowledges that (i) it understands and has considered the implications of such waiver, (i) 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 16.3.
16.4 Attorneys' Fees.
If any Owner, Declarant, Safeway or the Maintenance Director employs legal counsel to bring an action at law or in equity or 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.
16.5 Governing Law.
This Declaration shall be governed and enforced by, and construed in accordance with the laws of the state in which the Shopping Center is located.
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17. NOTICES.
17.1 Notices.
17.1.1 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.
17.1.2 Addresses. Notices made by the Owners or Safeway pursuant hereto shall be addressed as indicated in writing in a notice from each Owner to each of the other Owners and Safeway. Notices to Declarant and Safeway shall be addressed as follows:
To Safeway To Declarant
Original: SAFEWAY INC.
11555 Dublin Canyon Road
Pleasanton CA 94588-3229
Attn: Real Estate Manager
RE: #25-2874 - Store
Copy To: SAFEWAY INC.
11555 Dublin Canyon Road
Pleasanton CA 94588-3229
Attn: Real Estate Law
RE: #25-2874 - Store
An Owner and Safeway may, from time to time, change its address for receiving notices by giving at least ten (10) business days' prior 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.
17.1.3 Effectiveness. Notices sent in accordance with this Article 1Z shall be effective as follows: (i) in the case of personal delivery, upon receipt by the party to whom notice is being given; (i) 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 first business date DECLARATION (V.1)
HERCULES, CA 40
following the day the notice is sent. The foregoing addresses may be changed by written notice given pursuant to provisions of this Section.
18. MORTGAGEES AND OTHER THIRD PARTIES.
18.1 Mortgagee Protections.
"Mortgagee" shall mean the mortgagee under a mortgage or beneficiary under a deed of trust. This Declaration, and the rights, privileges, covenants, agreements and easements hereunder, shall be superior and senior to any lien placed upon any lot, including the lien of any mortgage or 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.
18.2 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 of the Shopping Center is a party ("Other Instrument"), any Mortgagee, lessee, Occupant or other person having or hereafter acquiring an interest in any portion of the Shopping Center (as used in this Article 18, "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 waiver of jury trial) by virtue of taking such interest. In the event of any conflict between the terms of any Other Instrument and this Declaration, this Declaration shall control.
18.3 No Third Party Beneficiaries.
The rights, privileges and immunities provided herein, including the rights to modify this Declaration on the terms provided herein, are for the benefit of the Owners and Safeway 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.
DECLARATION (V.1)
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19. GENERAL PROVISIONS.
19.1 No Covenant to Operate.
Nothing, either expressed or implied, contained in this Declaration shall obligate Safeway, any Owner or any Occupant to open or operate any type of business on its lot.
19.2 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 of the Shopping Center running with the land. This Declaration shall bind and inure to the benefit of the parties to this Declaration, their respective heirs, personal representatives, tenants, successors, and/or assigns.
19.3 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 parties hereto 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 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.
19.4 Document Execution and Change.
It is understood and agreed that, until this document is fully executed and delivered by the authorized partners, corporate officers or other individuals, as applicable, of the parties hereto, there is not and shall not be an agreement of any kind between the parties hereto upon which any commitment, undertaking or obligation can be founded. It is further agreed that, in executing this document, the parties do not rely upon any statement, promise or representation not herein expressed and, except as set forth in Section 13.2 above, this document once executed and delivered shall not be modified, changed or altered in any respect except by a written document executed and delivered in the same manner as required for this document.
DECLARATION (V.1)
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19.5 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.
19.6 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 agreement between the Owners or Safeway.
19.7 Owner's or Safeway's Consent.
19.7.1 Reasonable Consent. Unless otherwise expressly
provided herein, whenever an Owner's or Safeway's consent or approval is required under this Declaration, such Owner or Safeway shall not unreasonably withhold or condition such consent or approval. If an Owner or Safeway shall not consent or shall disapprove, the reasons therefor shall be stated in reasonable detail in writing, unless such Owner or Safeway is entitled expressly to withhold its consent or approval in its sole discretion.
19.7.2 Response Time Limit. Wherever in this Declaration the consent or approval of any Owner or Safeway is required, and unless a different time limit is provided therefor, such consent or approval shall be given or denied event any Owner or Safeway refuses or fails to respond to any request within the time prescribed, an additional notice shall be given, and the Owner or Safeway shall approve or deny within ten (10) days following receipt or deemed receipt of the second notice. If the Owner or Safeway fails to respond to such additional notice, which notice, to be effective, shall expressly state that NOTICE SHALL BE
DEEMED CONCLUSIVELY TO HAVE BEEN APPROVED OR CONSENTED TO WITHIN TEN (10) DAYS FOLLOWING RECEIPT, within the ten (10) day period, the same shall be conclusively deemed to have been approved or consented to by such Owner or Safeway, unless the item may be consented to, approved or disapproved by the Owner or Safeway 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 or Safeway 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.
DECLARATION (V.1)
HERCuLEs. CA 43
19.7.3 Form of Request for Approval. Any document or item submitted for the consent or approval of any Owner or Safeway shall contain a cover page prominently reciting the date mailed, the applicable Declaration provision 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 or Safeway'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 or Safeway within thirty (30) days or such longer period, after being advised of the correct time frame (if longer).
Notwithstanding the foregoing, no Owner's or Safeway'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.
19.8 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, Safeway, or the Maintenance Director under this Declaration shall be implied from any omission by any Owner, Safeway or Maintenance Director to take any action in respect of 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 any consent be deemed to be a consent to any other action other than the subject of the specific consent.
19.9 Estoppel Certificates.
Each Owner and the Maintenance Director agrees that, upon written request of any other Owner or Safeway, it will promptly (within thirty (30) days after receipt of such request) issue to such other Owner or Safeway, or any Mortgagee or proposed Mortgagee, or purchaser or proposed purchaser, but no more often than twice in any calendar year, an estoppel certificate stating to its actual knowledge: (i) whether the Owner or Maintenance Director to whom the request has been directed is aware of any default by the requesting Owner, 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 defaults); (i) whether the Declaration has been assigned, modified or amended, and identifying the assignment, modification or amendment; and (iii) whether this Declaration is in DECLARATION (v. 1)
HERCULES, CA 44
full force and effect Such statement shall act as a waiver of any claim by the party 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 party furnishing such statement against any other Owner or, if applicable, the Maintenance Director and shall in no event subject the party furnishing it to any liability whatsoever, notwithstanding the negligent or otherwise inadvertent failure of such party to disclose correct and or relevant information.
19.10 invalid Provisions.
If any term or provision of this Declaration or any portion of a term or provision hereof or the application thereof to any person or circumstance will, to any extent, be invalid or unenforceable, the remainder of this Declaration, or the application of such term or provision or portion thereof to persons or circumstances other than those as to which it is held invalid or unenforceable, will not be affected thereby, and each term and provision of this Declaration and each portion thereof will be valid and be enforced to the fullest extent permitted by law.
19.11 Dates of Performance.
In the event that any date for: (i) performance by any Owner, Safeway, or the Maintenance Director of any obligation hereunder required to be performed by such party, or (ii) the exercise of a right hereunder by any Owner, Safeway or the Maintenance Director, falls on a Saturday, Sunday, nationally established holiday or state established holiday in the state where such party has its principal place of business, the time for performance of such obligation, or exercise of such right, will be deerried extended until the next business day following such date.
DECLARATION (v.1)
HERCULES, CA 45
IN WITNESS WHEREOF, Safeway and Declarant have executed this Declaration.
TRESTLE HERCULES, LLC, SAFEWAY INC.,
a California limited liability company a Delaware corporation By: By Nanchatur
Name: Minelles Its Authorized Signatory
Its: 1 Manager Natacha Epkey
By:
Name:
Its:
Form Approved: DE/A.Warg
DECLARATION (V.1)
HERCULES, CA 46
ACKNOWLEDGMENT
1. A notary public or other officer completing this certificate verifies only the identity of ine indies, decracy, or aldily or then cumhich this cerificate is atached, and not the
STATE OF CALIFORNIA
COUNTY OF Alameda
7/5/18
On me,
Angela Parliamine, notary public
(insert name ahd title of the officer)
appeared
Natache Epley _ who proved
to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) 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. ANGELA PARLIAMENT
Smmison#2110789
Netary Public - California
Alameda County
(Seal)
ANGELA PARLIAMENT
Commission # 2110759
ANNA12 Notary Public - California NNAI
Alameda County
My Cong. Expires Jun 5. 2019%
DECLARATION (V.1)
HERCULES, CA 47
ACKNOWLEDGMENT
2. A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF Santa clara
On 7/10 / 2018 before me,
-Nolberto mera, nate public
(insert name and title of the officer)
personally appeared
John Elbet Merellis _ who proved
to me on the basis of satisfactory evidence to be the person(s) whose name (s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the persong) 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.
•••••••••
Mallest L (Seal) NOLBERTO MEZA
Signature_
COMM. #2210091
NOTARY PUBLIC- CALFORNIA
SANTA CLARA COUNTY
DECLARATION (V.1)
HERCULES, CA 48
ACKNOWLEDGMENT
3. A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On before me,
(insert name and title of the officer)
personally appeared
_ who proved
to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) 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)
DECLARATION (V.1)
HERCULES, CA 49
EXHIBITS
Exhibit A - Legal Description
Exhibit B - Site Plan
Exhibit C - ATM Location
Exhibit D- Pylon Sign
• •
EXHIBIT A
Legal Description
followsoperty in the city of Hercules, County of Contra Costa, State of Calfornia, described as PARCEL 1, AS SHOWN ON PARCEL MAP NO. 1019, RECORDED MARCH 2, 1979, IN THE OFFICIAL RECORDS FOR CONTRA COSTA COUNTY, IN BOOK 74 OF PARCEL MAPS, PAGE 37 AND AS AMENDED BY CERTIFICATE OF CORRECTIONS RECORDED MAY 25, 1982 IN BOOK 10790), PAGE 830), OFFICIAL RECORDS.
EXCEPTING THEREFROM:
A. THAT PORTION DESCRIBED AS PARCEL 1 IN THE DEED TO STATE OF CALIFORNIA, RECORDED MARCH 13, 1981, IN BOOK 10237, OFFICIAL RECORDS OF CONTRA COSTA COUNTY, PAGE 84.
B. THAT PORTION DESCRIBED IN THE DEED TO THE CITY OF HERCULES, RECORDED OCTOBER 13, 1982, IN BOOK 1097I1 OFFICIAL RECORDS OF CONTRA COSTA COUNTY, PAGE 528, SERIES NO. 82-143385.
APN: 404-0417-1140-2
EXHIBIT B
Site Plan
10 SANTAY
HIGHWAY
SHUFPING CENTER
iti- 1-48-35-0
*VENUE
SAN PABLO
HIGHWAY
LEASED PREMISES
INDTEET
FUEL PREMISES
CO BO NO OU
BAO.
HIGHUAY•
LANOLURD'S PAD(S)
REQUIRED DRIVE
OI!
AYINUT
LANOLARA PRITECTED AREA.
EXHIBIT C
ATM Location
le lo ma
tit ATI7
ALM Puea
PAD
8,173 SF.
ITITN F.5. 59.50
SAN BABL!
EXHIBIT D
Pylon Sign
TE-T
Safeway Pylon | Sign Specifications Irr
• Hercules
lan 2I-10
Wowstace
SAFEWAY&) P19
Hercules #287c 2.9.18
Safeway Pylon | Elevations
blereiter
49 SAFEWAY
CHASE O
Pialitri:
HO Timey
1-80 ventound or ramp
SAFEWAY& P2(
Hercules 32874 2.9.18