2008-251941Ile
lip
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RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
John DeWald & Associates, LLC
Ann: John DeWald
1855 Freda Lane
Cardiff, CA 92007 10294
DCC # 2008 - 0251941
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MAY 0902008 4:16 PM
OFFICIAL RECORDS
S:'t DIEGO COUNTY RE OR[aFWE OFFICE
GRECiORYJ. KITH COUNTY RECORDER
FEES 73.00 WL;S: 3
OC NA
PACES: 11
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RECIPROCAL TIEBACK EASEMENT AGREEMENT
This RECIPROCAL TIEBACK EASEMENT AGREEMENT (" eeme '') is made
and executed as of this day of February 29, 2008, by and between TOY FACTORY 101
ENCINITAS, L.P., a California limited partnership ("Pacific Station''), and BELLFLOWER
CAPITAL, L.P., a California limited partnership ("Lumberyard''), with reference to the facts set
forth below. Pacific Station and Lumberyard are sometimes referred to individually as a "Party'
or collectively as the "Parties ". DOCUMMAW NS 0
'7[��il Yf►I71.�
A. Pacific Station is the owner of certain real property situated in the City of
Encinitas (the "City'), County of San Diego, State of California, more particularly described in
Exhibit A attached hereto and incorporated herein (the "Pacific Station Propettv" ). Lumberyard
is the owner of certain real property situated in the City of Encinitas, County of San Diego, State
of California, more particularly described in Exhibit B attached hereto and incorporated herein
(the "Lumberyard Property" ). The Pacific Station Property and the Lumberyard Property are
adjacent to each other.
B. Pacific Station intends to develop a mixed -use project on the Pacific Station
Property consisting of retail, office, and residential units (the "Project ").
C. The construction of the Project requires the use of Tiebacks (as described below)
that will extend under a portion of the Lumberyard Property as showing in Exhibit C. The Owner
of the Lumberyard Property also desires to secure right to install Tiebacks under the Pacific
Station Proper for use in any future improvements of the Lumberyard Property.
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NOW, THEREFORE, in consideration of the recitals and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as set forth below.
ARTICLE I
DEFINITIONS
Except as the context otherwise requires, the defined terms set forth below shall have the
meaning set forth below.
1.1 Tiebacks. The term "Tiebacks" means metal ground anchors consisting of steel
strands or rods that are used to secure temporary shoring and concrete forms. Tiebacks are
installed horizontally under the soil surface and extend approximately 20 horizontal feet.
ARTICLE 2
RECIPROCAL EASEMENT
2.1 Tieb . The Owner of the Lumberyard Property and the Owner of the Pacific
Station Property grant to each other a reciprocal, non - exclusive easement over and under those
portions of the of the Lumberyard and Pacific Station Properties identified in Exhibit C as the
"Tieback Easement" for the installation of Tiebacks necessary for the construction of the Project
and any future construction on the Lumberyard Property. The Owners agree to take all
reasonable steps to ensure that the installation of the Tiebacks will not interfere with or
compromise any of the structures or utilities located on the other Owner's property. After
completion of the improvements for which the Tiebacks are used, the Owners will notify the
other Owner that Tiebacks are no longer operational, thereby allowing the Owner to sever and/or
remove the Tiebacks in the event of any future excavation
2.2 Permits and Consents. The Owners shall obtain all necessary permits to install
The Tiebacks.
2.3 Pre- Construction Notice, The Owners agree to give each other no less than 30
days prior notice of the commencement of the construction the Tiebacks.
2A Non- Disturbance: Repairs. The Owners' Tieback Easement shall not prevent
Access over or interfere in any way with the use of the other Owner's property. Each Owner shall
have the obligation to repair and replace any damage caused as a result of its use of the Tieback
Easement, which repair shall be made at that Owner's sole cost and expense.
2.5 Notice of Non - Responsibility. The Owners shall be entitled to post notices of
non - responsibility with regard to work performed on such Owner's property by another.
2.6 Insurane e. Each Owner shall ensure that at all times during work involving the
installation and removal of the Tiebacks, the contractors performing such work will maintain at
no cost to the other Owner, general liability insurance with liability limits not less than One
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Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury, personal
injury and property damage liability, with respect to arising out of such construction activities.
2.7 Certificates of Insurance. Any Owner performing work on the property of
another Owner shall deliver to the other Owner a certificate of insurance evidencing the
insurance required to be maintained pursuant to Section 2.6 hereof, which certificate of insurance
shall be delivered at least ten (10) days prior to commencement of such work or maintenance.
2.8 Mutual Indemnification. The Owners and shall indemnify, protect, defend and
hold harmless each Owner and each other's employees, managers, directors, representatives,
agents, contractors, successors and assigns free and harmless from any damages, liabilities, costs,
expenses (including without limitation, attorneys' fees and costs and costs of enforcing this
indemnity) arising from or relating to an Owner's use of the Tieback Easement.
2.9 Liens. The Owners shall promptly pay for any work done or material furnished by
or on their behalf If any lien shall at any time be filed against the any of the property of another
Owner herein by reason of work, labor, services or materials alleged to have been performed or
furnished by, for or to an Owner, or to anyone acting through or under such Owner, then such
party will cause the lien to be discharged or bond or post adequate security over such lien within
thirty (30) days of the filing of such lien.
2.10 No Encumbrances. No Parry to this Agreement shall do anything to cause or
allow any encumbrance, lien or other adverse interest ("Encumbrance -') to be created against real
property not owned by such party. Any such Encumbrance shall be promptly removed. Except as
provided in Section 3.7 below, any Encumbrance affecting a portion of any of the real property
described herein over which an easement has been granted shall be subject to such easement.
2.11 Cooperation. The Owners acknowledge and understand that the City of Encinitas
and/or other governmental agencies and utility companies may require evidence of permission
from an Owner to construct Tiebacks. The Owners therefore agree to execute any letters,
consents, forms, or applications reasonably requested by the other Owner evidencing the terms
of this Agreement.
ARTICLE 3
GENERAL PROVISIONS
3.1 Enforcement. Violation or breach of any covenant, agreement or provision
contained herein shall give to the Party in whose favor such covenant, agreement or provision
was made, the right to prosecute a proceeding at law or in equity against the person or persons
who violated or are attempting to violate any such covenant, agreement or provision, to enjoin or
prevent them from doing so, to cause such violation to be remedied and/or to recover damages
for such violation.
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3.2 Bindine
on
Successors. This Agreement and
all
of the covenants
and
conditions
herein contained shall
be
binding upon and shall inure
to
the benefit of
the
executors,
administrators, heirs, assigns and successors of each of the Parties hereto.
33 Severability. If any term, provision, covenant or condition of this Agreement is
held to be invalid, void or otherwise unenforceable, to any extent, by any court of competent
jurisdiction, the remainder of this Agreement shall not be affected thereby, and each term,
provision and covenant shall be valid and enforceable to the fullest extent permitted by law.
3.4 Attorney's Fees. In the event legal proceedings are commenced regarding the
enforcement of this Agreement, the prevailing parry in any such action shall recover, in addition
to any relief granted therein, reasonable attorneys' fees from the other party or parties, which
fees shall be included in any judgment rendered in such proceedings.
3.5 No Waiver. The waiver or failure to enforce any breach or violation of any
covenant herein contained shall not be deemed to be a waiver or abandonment of such covenant,
or any waiver of the right to enforce any subsequent breach or violation of such covenant.
3.6 Notice. Any and all notices, demands or other communications required or
desired to be given hereunder by any party shall be in writing and shall be validly given or made
to another party if served either personally or if deposited in the United States mail, certified or
registered, postage prepaid, return receipt requested. If such notice, demand or other
communication is served personally, service shall be conclusively deemed made at the time of
such personal service. If such notice, demand or other communication be given by mail, service
shall be conclusively deemed given upon receipt thereof (or refusal to accept delivery) as shown
on the return receipt therefor, following the deposit thereof in the United States mail addressed to
the party to whom such notice, demand or other communication is to be given as hereinafter set
forth:
Owner of the Pacific Station Property
Owner of the Lumberyard Property:
John DeWald & Associates. LLC
Attn: John DeWald
1855 Freda Lane
Cardiff, CA 92007
Bellflower Capital, L.P.
c/o Cornerstone Property Management
8525 Gibbs Drive, Suite 200
San Diego, CA 92123
Any Party hereto may change its address for the purpose of receiving notices, demands and other
communications as herein provided by a written notice given in the manner aforesaid to the other
Party or Parties hereto.
3.7 Mortpapge Protection. No portion of this Agreement or any amendment or
violation thereof shall operate to defeat or render invalid, in whole or in part, the rights of the
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beneficiary, insurer, guarantor, or holder of any mortgage or deed of trust encumbering any
portion of the real property described herein; provided that, after foreclosure of any such
mortgage or deed of trust, the property foreclosed shall remain subject to this Agreement.
18 Entire Agreement. With the exception of any easement agreements of record as
of the date this Agreement is recorded, this Agreement sets forth the entire understanding and
agreement of the parties with respect to all matters discussed herein and supersedes any and all
prior agreements, written or oral regarding such matters. The provisions hereof may not be
changed or modified except by an instrument in writing signed by the parties hereto.
3.9 California Law. This Agreement is being executed and delivered, is intended to
be performed, in the State of California, and to the extent permitted by law, the execution,
validity, construction and performance of this Agreement shall be construed and enforced in
accordance with the laws of the State of California. This Agreement shall be deemed made and
entered into in San Diego County.
3.10 Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be an original and all of which shall constitute one and the same instrument.
3.11 Mutuality; Reciprocity; Runs with Land; Assignment. All conditions,
covenants and agreements contained herein are made for the direct, mutual and reciprocal benefit
of each and every part of the real property described herein; shall create mutual, equitable
servitude and burdens upon each portion of the real property described herein in favor of the
other real property described herein; shall create reciprocal rights and obligations between the
real property described herein and privity of contract and estate between all Owners of such real
property, their heirs, successors and assigns; and shall, as to the Owners of the real property
described herein bind any such Owner and such Owner's heirs, successors and assigns, operate
as covenants running with the land, for the benefit of the other real property. Except as set forth
in Section 1.4 above, this Agreement may not be assigned by a Party unless such party is
transferring its entire interest in the real property it owns.
3.12 Authoritir Each Party signing this Agreement represents and warrants that such
Party has full authority to do so, that performance of all of the obligations contained herein have
been duly authorized by all requisite actions on behalf of such Party, and that this Agreement
binds such party. Each party further represents and warrants that it owrts the its respective real
property in fee simple (except as provided in Section 1.4 above) and that it has the power and
authority to grant the easements and rights herein granted.
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3.13 Cooperation The Parties agree and acknowledge that the successful
implementation this Agreement will require a high degree of cooperation between the Parties.
Therefore, each Party agrees and covenants that it will at all times promptly cooperate in good
faith with the other Party in order to carry out the intent of this Agreement.
NOW WHEREFORE, THE PARTIES ENTER INTO THIS RECIPROCAL TIEBACK
EASEMENT AGREEMENT AS OF THE DATE FIRST WRITTEN ABOVE.
"Pacific Station" Toy Factory 101 Encinitas, L.P.
A California Limited Partnership
By: John DeWald
A Califomia
Its: General P
By:
State of California
County of San Diego )
On 5121D S before me, 6is e.,-r a li Notary Public, personally appeared
De Wa Id who proved to me on the basis of satisfactory evidence to be th rs (s)
whose att (s)dgare subscribed to the within instrument and acknowledged to me tha� /she /they execute t e
same in(JIF/her/their authorized (�(ies), and that by4fdher /their ur (s) on the instrument the rso s),
or the entity upon behalf of which the�(s) acted, executed the instrument. 1 certify under PENALTY F
PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hWd and officig seal
*I/7/1/�/_/ ..t i_ - - - — - --
[SIGNATURES CONTINUE ONTO NEXT PAGE]
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"Lumberyard"
State of California
10300
Bellflower Capital, L.P.,
A California Limited Partnership
By: Pacific Yard, Inc.
A California Corporation
Its: General Partner
By.
otla�ac resident
. . scY.. Dane
County of S ) l Al fa V\ rl „pary y pp
On � before me, � of Public, personally appeared
t 1( who proved to me on the basis of satisfactory evidence to be the person
whose n meN is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the
same in hi~. heir authorized capacity(4oc), and that by hisMer /Nair signature(4on the instrument the person(NLI.
or the entity upon behalf of which the personN acted, executed the instrument. 1 certify under PENALTY OF
PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
VITA a 1011 11 Mrr . o i w ..
_
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Legal Description of the Pacific Station Property
PARCEL A:
10301
A PORTION OF PARCEL 9 OF PARCEL MAP 12092 RECORDED MAY 6, 1982 IN BOOK OF
PARCEL MAPS AT PAGE 12092 RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF
SAN DIEGO COUNTY AND LOTS 4 AND 5 IN BLOCK 60, ENCINITAS, IN THE CITY OF
ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF
NO. 148, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE
12, 1883 FURTHER DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEASTERLY CORNER OF SAID PARCEL 9 OF PARCEL MAP 12092;
THENCE SOUTH 5 021' 55" EAST ALONG THE EASTERLY BOUNDARY OF SAID PARCEL 9 A
DISTANCE OF 480.00 FEET; THENCE SOUTH 84038' 05" WEST ALONG THE SOUTHERLY
BOUNDARY OF SAID PARCEL 9 A DISTANCE OF 174.86 FEET; THENCE NORTH 5 022' 18"
WEST ALONG THE WESTERLY BOUNDARY OF SAID PARCEL 9 AND THE NORTHERLY
PROLONGATION THEREOF A DISTANCE OF 214.66 FEET; THENCE NORTH 86'11' 27" EAST
A DISTANCE OF 26.25 FEET; THENCE NORTH 20 036' 07" EAST, A DISTANCE OF 66.17
FEET; THENCE NORTH 5 040' 13" WEST A DISTANCE OF 16.49 FEET TO THE EASTERLY
PROLONGATION OF THE NORTHERLY BOUNDARY OF THE LAND CONVEYED IN DEED TO GEORGE
YEE AND ANNA WONG YEE RECORDED NOVEMBER 151 1991 AS FILE /PAGE NO. 1991-
0591301 IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY; THENCE
SOUTH 84 036' 4" WEST ALONG SAID NORTHERLY BOUNDARY A DISTANCE OF 1.29 FEET TO
A POINT ON THE WESTERLY BOUNDARY OF SAID PARCEL 9 OF PARCEL MAP 12092; THENCE
ALONG THE WESTERLY LINE OF SAID PARCEL 9 NORTH 21 010' 44" EAST A DISTANCE OF
103.05 FEET; THENCE CONTINUING ALONG SAID WESTERLY BOUNDARY NORTH 5 °21' 55"
WEST A DISTANCE OF 97.84 FEET; THENCE NORTH 84 036' 4" EAST ALONG THE
NORTHERLY BOUNDARY OF SAID PARCEL 9 A DISTANCE OF 75.00 FEET TO THE POINT OF
BEGINNING.
PARCEL B:
A ROAD EASEMENT FOR INGRESS AND EGRESS ACROSS THE NORTHERLY 12.5 FEET OF
PARCEL 8 OF PARCEL MAP NO. 12092, IN THE CITY OF ENCINITAS, COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF, FILED IN THE OFFICE OF
THE COUNTY RECORDER OF SAN DIEGO COUNTY, MAY 6, 1982, BEING A DIVISION OF A
PORTION OF THE ATCHINSON, TOPEKA AND SANTA FE RAILWAY COMPANY STATION GROUNDS
IN SECTION 16, TOWNSHIP 13 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN,
ACCORDING TO OFFICIAL PLAT THEREOF.
EXHIBIT B
Legal Description ojthe Lumberyard Property
Parcel A:
10302
Parcel 8 of Parcel Map 12092, in the City of Encinitas, County of San Diego,
State of California, filed in the office of the County Recorder of San Diego
County, May 6, 1982 as File No. 82- 134066 of Official Records, said Parcel
Map being a division of a portion of the Atchison, Topeka and Santa Fe
Railway Company's Station Grounds in Section 16, Township 13, South, Range 4
West, San Bernardino Meridian, described in Deed recorded in Book 41 of
Deeds, page 52, records of San Diego County.
Excepting therefrom all oil, gas and other hydrocarbon and mineral substances
lying not less than 300 feet below the surface of said land, provided that
Grantor, its successors and assigns, shall not have the right to go upon the
surface of said land for the purpose of extracting said oil, gas and other
hydrocarbon and mineral substances by means of slant - drilled wells located on
adjacent or hereby land, or by any other means that shall require entry upon
the surface of said land.
Parcel B:
An easement for ingress and egress and road purposes across the Southerly
12.5 feet of Parcel 9 of Parcel Map 12092 recorded May 6, 1982 in Book of
Parcel Maps at page 12092 recorded in the Office of the County Recorder of
San Diego County as file number 82- 134066 of Official Records.
10303
EXHIBIT C
Site Plan Showing Tieback Easement
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