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2008-28139313163 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: John DeWald & Associates, LLC Attn: John DeWald 1855 Freda Lane Cardiff, CA 92007 DOC # 2008- 0281393 MAY 23, 2008 4:59 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE GREGORI'J.SwTH, COUNTY RECORDER FEES: 86.00 WAYS: 3 OC: NA PAGES: 21 I�III IIII0111111111liIl Q�IO�I ��l U�1 X11 �� 610 VIII QIII U� lnl EASEMENTS, UTILITIES AND COST SHARING AGREEMENT This EASEMENTS, UTILITIES AND COST SHARING AGREEMENT ( "Agreement ") is made and executed as of February 27, 2008, by and between TOY FACTORY 101 ENCINITAS, L.P., a California limited partnership ( "Pacific Station'), and VALENTINE LIMITED PARTNERSHIP, a California limited partnership ( "Valentine "), with reference to the facts set forth below. Pacific Station and Valentine are sometimes referred to individually as a "Party" or collectively as the "Parties ". RECITALS A. Pacific Station is the owner of certain real property situated in the City of Encinitas (the "C"), County of San Diego, State of California, more particularly described in Exhibit A attached hereto and incorporated herein (the "Pacific Station Property . Valentine 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 "Valentine Property "). The Pacific Station Property and the Valentine 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 "Proiect "). C. The Parties have determined that the development of the Project presents various opportunities to enhance and improve the use, appearance, functionality, desirability and value of both the Pacific Station Property and the Valentine Property. Among other things, the Parties desire to integrate adjoining portions of their properties into a Plaza (defined below) for the joint use and enjoyment of the Permitted Users (defined below) of their respective properties. 13164 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. 161 Agreement. The term "Agreement" means this Easements, Utilities and Cost Sharing Agreement. 1.2 Allocable Share. The term "Allocable Share" means the percentage of the Plaza Shared Expenses and the Trash Shared Expenses that the Owner of the Valentine Property shall pay to the Owner of the Pacific Station Property. 1.3 Association. The term "Association" means the Pacific Station Commercial Association, a California nonprofit mutual benefit corporation, its successors and assigns, or such other California nonprofit mutual benefit corporation which has the duty to maintain the Plaza. 1.4 Budget. The term "Budget" refers to the budget for the Owner of the Pacific Station Property prepared by the Owner of the Pacific Station Property. 105 Declaration. The term "Declaration" refers to the certain "Declaration of Covenants, Conditions and Restrictions for the Retail and Office Condominiums at Pacific Station" recorded as to the Pacific Station Property, or to be recorded as to the Pacific Station Property, in the Official Records of the County Recorder of San Diego County, and any additional recorded documents referenced in such Declaration. 1.6 Default Interest Rate. The term "Default Interest Rate" means the lesser of: (i) four percent (4 %) per annum in excess of the "Prime Rate," or (ii) the highest lawful rate. The "Prime Rate" shall be the rate announced as such from time to time by Bank of America or its successor. If there shall be no such announced rate of such bank or its successor, then the "Prime Rate" shall be such equivalent rate as is charged from time to time by major money- center banks. 1.7 Installment. The term "Installment" means each installment of Shared Expenses payable by the Owner of the Valentine Property under this Agreement, and any reimbursement amounts due from one Owner to another. 1.8 Owner. The term "Owner" means the record owner, whether one or more persons or entities, of any real property subject to this Agreement. In the case of the Pacific Station Property, the Association will be deemed to be the Owner (and take the place of the any other person or entity who may have had, or has, an interest in the Pacific Station Property) at such time the Association is formed and has assumed responsibility for the maintenance of the Plaza 13165 pursuant to the Declaration. In such case, the Association, and not the individual members of the Association, notwithstanding the fact that such members may own undivided interest in the Pacific Station Property, shall be the "Owner" of the Pacific Station Property and the individual members of the Association, and any prior Owner of the Pacific Station Property, shall no longer be Parties to this Agreement and shall have no rights, duties, or liabilities under this Agreement, except as may be expressly provided in this Agreement. 1.9 Pacific Station Plaza Contribution Area. The term "Pacific Station Plaza Contribution Area" means that portion of the Pacific Station Property designated on Exhibit D as being part of the Plaza. 1.10 Pacific Station Property. The term "Pacific Station Property" means that real property described in Exhibit A. loll Payment Commencement Date. The term "Payment Commencement Date" means the first (Ist) day of the first (1st) calendar month after the completion of the Plaza Improvements. The completion of the Plaza Improvements will be conclusively established by the Owner of the Pacific Station Property giving written notice to the Owner of the Valentine Property stating the Plaza Improvements completion date, with such date to be no less than 30 days after the date of the notice. 1.12 Permitted Users. The term "Permitted Users" means an Owner's employees, patrons, guests, invitees, agents, contractors, members, representatives and, if applicable, residents. 1.13 Valentine Plaza Contribution Area. The term "Valentine Plaza Contribution Area" means that portion of the Valentine Property designated on Exhibit D as being part of the Plaza. 1.14 Valentine Property. The term "Valentine Property" means that real property described in Exhibit B. 1.15 Plaza. The term "Plaza" refers to the physical area covered by the Pacific Station Plaza Contribution Area and the Valentine Plaza Contribution Area as shown on Exhibit D. Both such areas shall together constitute the Plaza as used in this Agreement. 1.16 Plaza Recinrocal Easements. The term "Plaza Reciprocal Easements" refers to the easements granted to the Owner of the Pacific Station Property over the Valentine Plaza Contribution Area, and the easement granted to the Owner of the Valentine Property over the Pacific Station Plaza Contribution Area as more fully described in Section 2.1 below. 1.17 Plaza Improvements. The term "Plaza Improvements" refers to the improvements constructed in, over, under and through the Plaza, including without limitation, hardscape, landscaping, irrigation equipment, lighting, planters, signage, monuments, water features, utilities servicing the Plaza, Storm Drain Improvements located within the Plaza, and 13166 furniture, as more fully depicted and described on Exhibit D. The Plaza Improvements depicted on Exhibit C are preliminary and are subject to change in the sole discretion of the Owner of the Pacific Station Property. 1.18 Plaza Shared Expenses. The term "Plaza Shared Expenses" means all costs of maintaining, repairing, insuring, and providing for replacement reserves for the Plaza and Plaza Improvements as provided herein. "Shared Expenses" does not include the costs for the original construction of the Plaza Improvements. 1.19 Statement. The term "Statement" means the statement of the Owner of the Valentine Property's Allocable Share of the Shared Expenses to be delivered to the Owner of the Valentine Property by the Owner of the Pacific Station Property in accordance with Section 4.2.1 hereof. 1.20 Storm Water Improvements. The term "Storm Water Improvements" means surface collection and underground conveyance structures to drain storm water from the Valentine Property. 1.21 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. 1.22 Trash. The term "Trash" means typical and customary refuse from retail, office and restaurant operations. Trash does not include any hazardous materials as defined by local, state or federal laws and regulations, such as, without limitation, paints, solvents, electronic waste, mercury, and other materials that are properly disposed of using other means (such as cooking oils and grease), or refuse from uses other than retail, office or restaurant uses. 1.23 Trash Collection Enclosure. The term "Trash Collection Enclosure" means the location and improvements specified on Exhibit D for the collection of Trash constructed by the Owner of the Pacific Station Property as part of the Project and to be used by the Pacific Station Property and the Valentine Property pursuant to this Agreement. The Owner of the Pacific Station Property shall have sole discretion and responsibility for designing, installing and maintaining the Trash Collection Enclosure, may change the location of the Trash Collection Enclosure notwithstanding the location identified on Exhibit D, and at any time during the term of this Agreement, may designate a temporary Trash Collection Enclosure location. 1.24 Trash Shared Expenses. The term "Trash Shred Expenses" means all costs for the collection and disposal of Trash deposited at the Trash Collection Enclosure or any temporary location designated by the Owner of the Pacific Station Property. 1.25 Wet Utilities. The term "Wet Utilities" means underground gas transmission piping and structures, underground potable water service, and underground sewer services. 13167 ARTICLE 2 EASEMENTS 2.1 Plaza. The Owners of the properties grant to each other the easements more fully described in Section 2. 1.1 and 2.1.2 below (the "Plaza Reciprocal Easements"): 2.1.1 Easement Over Valentine Plaza Contribution Area. The Owner of the Valentine Property by grants to the Owner of the Pacific Station Property a perpetual easement over, under, along and across the Valentine Plaza Contribution Area for the construction of the Plaza Improvements, maintenance of the Plaza Improvements, physical integration of the Valentine Plaza Contribution Area into the Plaza, use of the Valentine Plaza Contribution Area for pedestrian ingress and egress by the Owner of the Pacific Station Property and its Permitted Users. This easement does not permit the Owner of the Pacific Station Property or its Permitted Users use the Valentine Plaza Contribution Area for dining or retail uses, nor permit the placement of tables, chain, or other furniture or items thereon, except that the Owner of the Pacific Station Property may use the Valentine Plaza Contribution Area for occasional, temporary community events, exhibitions, performances and displays, and the placement of temporary items for such events. The Owner of Pacific Station will provide Valentine with a fifteen day advance notice of events. No other person or entity shall be allowed or granted the right to construct or maintain any improvements within the Valentine Plaza Contribution Area without the express written consent of the Owner of the Pacific Station Property. The easement herein granted is appurtenant to the Pacific Station Property. Not withstanding the above, in the event of the Valentine owners desire to make improvements to the Valentine Plaza Contribution Area they shall present The Pacific Station Owners with a detailed plan for improvements follow the process described in section 2.1.3 2.1.2 Easement Over the Pacific Station Plaza Contribution Area. The Owner of the Pacific Station Property hereby grants to the Owner of the Valentine Property a perpetual, easement on, over, and across the Pacific Station Plaza Contribution Area for the ingress and egress of the Owner of the Valentine Property and its Permitted Users, as a pedestrian commercial plaza area. This easement does not permit the Owner of the Valentine Property or its Permitted Users use the Pacific Station Plaza Contribution Area for dining or retail uses, nor permit the placement of tables, chairs, or other furniture or items thereon. This easement does not extend to the construction or modification of any of the Plaza Improvements. The easement herein granted is appurtenant to the Valentine Property. This easement is subject to any and all rules set forth in the Declarations and/or any rules promulgated by the Owner of the Pacific Station Property. The Owner of the Valentine Property and its permitted users have the right to hold events in the plaza subject to the rules and restrictions set forth in the declarations and/or rules promulgated by the Pacific Station Owner and/or Association. 2.1.3 Refurbishment of Structures on Valentine Property. The Owner of the Valentine Property grants to the Owner of the Pacific Station Property the right, and all rights of access incidental to such right, but not the obligation, to determine, plan, design, carry out and pay for, the refurbishment of the portions of the Valentine Property improvements facing the 13168 Plaza that the Owner of the Pacific Station in order to create an attractive, harmonious Plaza area (the "Valentine Property Refurbishment License "). If the Owner of the Pacific Station property determines to exercise the Valentine Property Refurbishment License, it will provide reasonably adequate documentation (the "Refurbishment Plan") to the Owner of the Valentine Property for review and approval. The Owner of the Valentine Property shall have 30 days after receipt in which to approve or disapprove. Failure to communicate an approval or disapproval within this time period will be deemed approval. If the Owner of the Valentine Property disapproves, the Parties agree to work in good faith to agree to a modified Refurbishment Plan. Failing agreement, the Parties agree to submit the disagreement to binding arbitration before one arbitrator selected in accordance with the American Arbitration Association rules. If the Owner of the Pacific Station Property exercises the Valentine Property Refurbishment License, the Owner of the Valentine Property will have the obligation to maintain (and pay for such maintenance) the refurbished improvements on the Valentine Property in good condition, and shall not alter the colors, materials, or other noticeable aspects of the refurbished improvements without the Owner of the Pacific Station Property's written permission. 2.2 Wet Utilities Easement. The Owner of the Pacific Station Property hereby grants to the Owner of the Valentine Property a easement under and across the portion of the Pacific Station Property labeled "Wet Utilities Easement" in Exhibit C. to provide the Valentine Property with access to Wet Utilities services (the "Wet Utilities Easement ") located in the Wet Utilities Easement and in the public right of way adjoining the Wet Utilities Easement. The Wet Utilities Easement is subject to all existing easements, rights, encumbrances, licenses or other such interests of record. The Owner of the Valentine Property agrees that the Owner of the Pacific Station Property may pave over and otherwise construct improvements in and over the Wet Utilities Easement, but that the Owner of the Valentine Property will be allowed reasonable access to maintain any of its Wet Utilities connections. The Owner of the Valentine Property agrees that its use of the Wet Utilities Easement will not interfere with the use of, or block access to, the Plaza except as reasonably required in an emergency. The Owner of the Valentine Property shall have the obligation to install (except as provided in Section 2.2.1 below), maintain, repair and replace (and pay all costs associated therewith) any Wet Utility connections installed for the benefit of the Valentine Property. 2.2.1 Wet Utilities Re- Connection. As part of the construction of the Plaza Improvements and the Project, the Owner of the Pacific Station Property agrees, at its sole cost, to re-rout and re- connect the Valentine Property's existing Wet Utilities connections to the location identified in Exhibit C. and the Owner of the Valentine Property agrees to allow the Owner of the Pacific Station Property to conduct such work. The Owner of the Valentine Property grants to the Owner of the Pacific Station Property the necessary access to the Valentine Property in order to disconnect, re-rout, and re- connect the existing Wet Utilities connections. After such work is completed, the Owner of the Valentine Property shall have the responsibility maintain, repair and replace its Wet Utilities connections and structures. 2.3 Tiebacks. The Owner of the Valentine Property grants to the Owner of the Pacific Station Property a non - exclusive easement over and under that portion of the Valentine Property identified in Exhibit C as the "Tieback Easement" for the installation of Tiebacks necessary for N 13169 the construction of the Project. The Owner of the Pacific Station Property agrees 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 Valentine Property. After completion of the Project, the Owner of the Pacific Station Property will notify the Owner of the Valentine Property in writing that Tiebacks are no longer operational, thereby allowing the Owner of the Valentine Property to sever and/or remove the Tiebacks in the event of any future excavation of the Valentine Property. 2.4 Storm Drain Improvements. The Owner of the Pacific Station Property hereby grants to the Owner of the Valentine Property a license to connect Storm Water Improvements servicing the Valentine Property to Storm Water Improvements located within the Plaza (the "Storm Drain License' ). The Storm Drain License is subject to all existing easements, rights, encumbrances, licenses or other such interests of record. The Owner of the Pacific Station Property will design, install and maintain, at it sole cost, all Storm Water Improvements located within the Plaza including the Pinamonti Contribution Area. The Owner of the Valentine Property will be required to design, install and maintain all Storm Water Improvements located on the portion of the Valentine Property not included in the Plaza that are connected to Storrs Drain Improvements within the Plaza. The costs incurred at the point of connection shall be the responsibility of the Owner of the Pacific Station Property if such connection takes place as part of the original construction of the Project; otherwise, such costs shall be paid by the Owner of the Valentine Property. The Owner of the Pacific Station Property shall have the right to impose reasonable specification requirements for the Storm Drain Improvements servicing the Valentine Property that the Owner of the Valentine Property intends to connect to the Storm Drain Improvements located in the Plaza. 2.5 Trash. The Owner of the Pacific Station Property hereby grants to the Owner of the Valentine Property a license to enter onto the Pacific Station Property for the purpose of depositing Trash into the Trash receptacles located within the Trash Collection Enclosure identified in Exhibit D the "Trash License ") or any temporary or interim location designated by the Owner of the Pacific Station Property. The Trash License shall commence upon the grading of the Pacific Station Property. The Owner of the Valentine Property shall comply with all rules promulgated by the Owner of the Pacific Station Property pursuant to the Declaration from time to time pertaining to the use of the Trash Collection Enclosure. The Owner of the Pacific Station Property may temporarily re- locate the Trash Collection Enclosure or designate a temporary location for depositing of Trash from the Valentine Property from time to time to accommodate the construction of the Project. 2.6 Additional Provisions Ai mlicable to Sections 2.1 throueh 2.5. The following provisions apply to the construction of the Plaza Improvements, the re- connection of the Valentine Property's Wet Utilities connections, the installation of the Tiebacks, the use of the Wet Utilities Easement, the Storm Drain License and the Trash License, as provided below. 2.6.1 Cost and Construction of Plaza Improvements. The Owner of the Pacific Station Property shall be solely responsible for the design, selection, and construction of the Plaza Improvements. The constriction of the Plaza Improvements shall take place at the time 13170 and according to the schedule determined by the Owner of the Pacific Station Property. The construction shall be performed by contractors licensed by the State of California in a workmanlike manner. The Owner of the Valentine Property agrees to cooperate in good faith in the construction of the Plaza Improvements. 2.6.2 Association Rules. All easements, rights and licenses granted in this Agreement associated with the Pacific Station Contribution Area are subject to the rules promulgated by the Owner of the Pacific Station Property from time to time and any rules, restrictions and provisions set forth in the Declaration. The parties agree to faithfully abide by such Hiles and restrictions. 2.6.3 Permits and Consents. The Owner of the Pacific Station Property shall obtain all necessary permits and consents necessary to perform the work contemplated by this Agreement. The Owner of the Valentine Property shall obtain all permits and consents necessary for any work it performs or causes to be performed in the Wet Utilities Easement. 2.6.4 PEe- Construction Notice. The Owner of the Pacific Station Property agrees to give the Owner of the Valentine Property no less than 30 days prior notice of the commencement of the construction of any work contemplated by this Agreement. The Owner of the Valentine Property will give Owner of the Pacific Station Property no less than 20 days prior notice of the commencement of any non - invasive maintenance of its Wet Utilities located in the Wet Utility Easement, 60 days notice of any invasive maintenance, and 90 days notice for any new installations. 2.6.5 Non - Disturbance; Repairs. The Valentine Property's Tenants, its Owner's and its Permitted Users' use of the Plaza, Wet Utilities Easement, Storm Drain License and Trash License shall not prevent access over or interfere in any way with the use of the Plaza or the Project. The Owner of the Valentine Property shall have the obligation to repair and replace any damage caused to the Project, Plaza or Plaza Improvements as a result of its use of the Plaza, Wet Utilities Easement, Storm Drain License, and Trash License, which repair shall be made at the Owner of the Valentine Property's sole cost and expense. In the event that the Owner of the Valentine Property fails to make reasonable repairs within a reasonable time period, the Owner of the Pacific Station Property may undertake such repairs and seek reimbursement from the Owner of the Valentine Property. The Owner of the Pacific Station Property shall have the right to place a lien on the Valentine Property for any amounts not reimbursed within 60 days of written notice of the reimbursement amount. 2.6.6 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. 2.6.7 Insurance. The Owner of the Pacific Station Property shall ensure that at all times during construction the work contemplated by this Agreement, the contractors performing such work will maintain at no cost to the Owner of the Valentine Property, general liability insurance with liability limits not less than One Million Dollars ($1,000,000) combined 13171 single limit per occurrence for bodily injury, personal injury and property damage liability, with respect to arising out of such construction activities. The Owner of the Valentine Property shall ensure that at all times during any maintenance activities it conducts or directs in the Wet Utilities Easement or with regard to the Storm Drain License, the contractors performing such work will maintain at no cost to the Owner of the Pacific Station Property, general liability insurance with liability limits not less than One 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 maintenance activities. 2.6.8 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 2.6.7 hereof, which certificate of insurance shall be delivered at least ten (10) days prior to commencement of such work or maintenance. 2.6.9 Mutual Indemnification. The Owner of the Pacific Station Property and their successors and owners of individual commercial condo units of Pacific Station, shall indemnify, protect, defend and hold harmless the Owner of the Valentine Property and all of its 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 the Owner of the Pacific Station Property's construction of the work and improvements contemplated by this Agreement. The Owner of the Valentine Property shall indemnify, protect, defend and hold harmless the Owner of the Pacific Station Property, the Commercial Association, the Master Association and their members, and all of their employees, managers, directors, representatives, agents, contractors, successors and assigns tree 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 the Owner of the Valentine Property's use of the Plaza, the Wet Utilities Easement, the Storm Drain License, and the Trash License. Neither Party, however, shall be obligated to indemnity a Party for liabilities arising out of such Party's own negligence. 2.6.10 Liens. The Owners shall promptly pay for any work done or material fumished 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 famished 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 bonded or post adequate security over such lien within thirty (30) days of the filing of such lien. 2.6.11 No Encumbrances. No Party 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 6.9 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. 13172 2.6.12 Cooperation. The Owner of the Valentine Property acknowledges and understands that the City and/or other governmental agencies and utility companies may require evidence of permission from the Owner of the Valentine Property for the Owner of the Pacific Station Property to conduct the work contemplated by this Agreement. The Owner of the Valentine Property therefore agrees to execute any letters, consents, forms, or applications reasonably requested by the Owner of the Pacific Station Property evidencing the tetras of this Agreement. ARTICLE 3 MAINTENANCE 3.1 Maintenance of Plaza and Plaza Improvements. The maintenance of the Plaza and the Plaza Improvements shall be the sole responsibility of the Owner of the Pacific Station Property pursuant to the terms of the Declaration and this Agreement. 3.2 Maintenance Costs. All of the costs associated with the maintenance, repair and replacement of the Plaza, the Plaza Improvements, and Trash collection, including, without limitation, common expenses and replacement reserve costs for the Plaza and Plaza Improvements, shall be paid by the Owner of the Pacific Station Property pursuant to the terms of the Declaration and this Agreement, subject to allocation and contribution by the Owner of the Valentine Property as provided herein, unless the need for any such repair or replacement arises out of, directly or indirectly, or is occasioned by any present or future Owner of all or a portion of the Valentine Property or their Permitted Users in connection with their use of Plaza or Plaza Improvements, in such case, the cost of any repair or replacement shall be paid by the party or parties causing such damage. ARTICLE 4 EXPENSES 4.1 Contribution. The Owner of the Valentine Property shall pay its Allocable Share calculated in accordance with the provisions set forth herein. The Allocable Shares of the Owner of the Valentine Property are as follows: Plaza Shared Expenses - $260 for the first year with a maximum increase of 3% per year. Trash Shared Expenses — A monthly cost, equivalent to one half the cost of one — three yard dumpster, picked up by the local waste collection service twice per week. 4.2 Payment of Allocable Share. 4.23 Statement. The Owner of the Pacific Station Property shall deliver either monthly or quarterly, via United States mail, or such other method as the Owners deem appropriate, a statement setting forth the Shared Expenses, the Allocable Share of such Plaza and Trash Shared Expenses to be paid by the Owner of the Valentine Property and the due date therefor. 10 13173 4.2.2 Payment Commencement Date. The obligation of the Owner of the Valentine Property to pay its Allocable Share described in Section 4.1 above shall commence on the Payment Commencement Date. 4.2.3 Late Payments. If the Owner of the Valentine Property fails to pay the Allocable Share within fifteen (15) days after the due date therefor, then a late charge in the amount of ten percent (10° /U) of the amount of the delinquent amount due, interest charged at the Default Interest Rate commencing from the date of delinquency, and reasonable costs of collection, including attorneys* fees and costs, shall be levied by the Owner of the Pacific Station Property. 4.2.4 Nonpayment of Shared Expenses. An Installment is delinquent if not paid within thirty (30) days of the due date as established by this Agreement. If an Installment is not paid within thirty (30) days after the due date, such Installment plus all reasonable costs of collection (including anomeys• fees) and late charges as provided herein shall bear interest at the maximum rate permitted by law, commencing thirty (30) days from the due date until paid. ARTICLE 5 TERMINATION /SUSPENSION 541 Termination. This Agreement shall terminate, and the easements, restrictions and other provisions shall be of no further force and effect in the event an Owner of all or any portion of the Pacific Station Property has not obtained a building permit for the construction of the Project on the Pacific Station Property within fifteen (15) years from the date of execution of this Agreement. 5.2 Suspension of Plaza Use for Non - Payment or Non - Compliance. In the event that the Owner of the Valentine Property fails to pay its Installments pertaining to the Plaza Shared Expenses when due, and fails to cure such default within 30 -days of written notice of such default, the rights of the Owner of the Valentine Property and its Permitted Users to use the Plaza and Plaza Improvements located within the Pacific Station Plaza Contribution Area shall be suspended until such time that the Owner of the Valentine Property brings currents such Installments, including all late fees and interest charges. In the event that the Owner of the Valentine Property or its Permitted Users materially fails to comply with the rules established by the Declaration, the Owner of the Pacific Station Property, or this Agreement, pertaining to the use of the Plaza and the Plaza Improvements, and fails to cure such non - compliance within 30- days of written notice of such non - compliance, the rights of the Owner of the Valentine Property and its Permitted Users to use the Plaza and Plaza Improvements located within the Pacific Station Plaza Contribution Area shall be suspended until such time that the Owner of the Valentine Property cures such non - compliance. The Pacific Station Owners or the Association will provide the Pinamonti Owners with a copy of the Declarations and any amendments to the Declarations in a timely manner. 5.3 Suspension of Trash License for Non - Payment or Non - Compliance. In the 11 13174 event that the Owner of the Valentine Property fails to pay its Installments pertaining to the Trash Shared Expenses when due, and fails to cure such default within 30 -days of written notice of such default, the Trash License shall be suspended until such time that the Owner of the Valentine Property brings currents such Installments, including all late fees and interest charges. In the event that the Owner of the Valentine Property or its Permitted Users materially fails comply with the rules established by the Declaration, the Owner of the Pacific Station Property, or this Agreement pertaining to the use Trash Collection Enclosure and the Trash License, and fails to cure such non - compliance within 30 -days of written notice of such non - compliance, the rights of the Owner of the Valentine Property under the Trash License shall be suspended until such time that the Owner of the Valentine Property cures such noncompliance. 5A No Limitation of Remedies. Nothing in this Article 5 shall be interpreted to limit the remedies available to any Party with regard to the breach of this Agreement by another Party. ARTICLE 6 GENERAL PROVISIONS 6.1 Condemnation or Destruction. In the event a portion of the Plaza or Plaza Improvements are either condemned or destroyed or damaged the Owner of the Pacific Station Property may, in its sole and absolute discretion and in accordance with the provisions of the Declaration, restore or repair the Plaza and/or Plaza Improvements. In no event shall the Owner of the Valentine Property be entitled to any insurance or other proceeds collected by the Owner of the Pacific Station Property and/or the Owner of the Pacific Station Property as a result of the destruction or condemnation of the Plaza and/or Plaza Improvements. 6.2 Maintenance Obligations. Nothing contained herein shall be deemed to impose maintenance or cost sharing obligations on the Owner of the Valentine Property except those that may be expressly set forth this Agreement. 6.3 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. The Owner of the Pacific Station Property shall have the right to record a lien against the Valentine Property for any amounts that are delinquent under this Agreement. 6A Binding 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. 6.5 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. 12 13175 6.6 Attorneys* Fees. In the event legal proceedings are commenced regarding the enforcement of this Agreement, the prevailing party 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. 6.7 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. 6.8 Notice. Any and all notices, demands or other communications required or desired to be given hereunder by any patty 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: John DeWald & Associates, LLC Attn: John DeWald 1855 Freda Lane Cardiff, CA 92007 Owner of the Valentine Property: Enrico Pinamonti 2244 South Santa Fe Avenue, Suite B -2 Vista, CA 92084 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. 6.9 Mortgagee 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 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. 6.10 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 13 13176 changed or modified except by an instrument in writing signed by the parties hereto. 6.11 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. 6.12 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. 6.13 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 1.8 above, this Agreement may not be assigned by a Party unless such party is transferring its entire interest in the real property it owns. 6.14 Authority. Each Party signing this Agreement represents and wan-ants 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 owns the its respective real property in fee simple (except as provided in Section 1.8 above) and that it has the power and authority to grant the easements and rights herein granted. 6.15 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 EASEMENTS, UTILITIES AND COST SHARING AGREEMENT AS OF THE DATE FIRST WRITTEN ABOVE. "Pacific Station" Toy Factory 101 Encinitas, L.P. A California Limited Partnership By: John DeWald & Associates, LLC A California Limited Liability Company Its: General Partner 14 "Valentine" By: Valentine Limited A California Limited Partnership By: C�� :5;k� Print Name: reuuoo 1r1Nww o rWT( Its: General Partner 15 13177 13178 ALL PURPOSE ACKNOWLEDGEMENT STATE OF CALIFORNIA } COUNTY OF SIn t' On 5 171 before me, 14F )&4 k Ld M6 -4 y A 4,'+r Pu � % tG (Insed name and tl of the officer) personally appeared hn f !e VV& Ic" who proved to me on the basis of satisfactory evidence to be th ers (s) whose arr (s)49are subscribed to the within Instrument and acknowledged. to me that /she/they executed the same in M/her /their authorize paci ies), and that by hislher/thei signatu (s) on the instrument the erso (s), or the entity upon behalf of which th erso 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 RotSo mOM 112105107: (Mis area for otrGel notedal seal) x. , 13179 .N H • y. H N �) .N , y H4H H H�.H�N +.N N H. H h HCH...H��HC�i �i.CN H os. oaf�oa ��a..N+�H H. H. H w HZ A�N�N .H H -NCH State of California ` r 1 County of .YAi'1 /t/ On 1 ► ViW 3� r;to 6 before me, VIl C40M i n Y v1 O G. Dade 7� Nero Insert N Tak mine Dakar personally appeared �i1 ✓ 1 U i' al"Y01 h . who proved to me on the basis of satisfactory evidence to be the persono whose name(a) is/are subscribed to the Ahln instrument and acknowledged to me that kWsheAhey executed the same ir&l erltheir authorized YJ7�? ANNETTE M. NOGGAN capacity(ieS), and that by his/herAheir signature(e) on the • Commptbn # 1501389 instrument the person(A, or the entity upon behalf of .'o Notary Public -California which the person(s) acted, executed the instrument. San Diego County t�Comm.Eeph esM17,2009 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 seI�al�. Signature / , ` Ran Hoary sew 1 59Ma b ad Notary Paoic OPTIONAL Though the information below is not required by law, it may prove valuable to persons retying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document % n _ �r� 1 /_ Title or Type of Document: yy i)1 V aS a `f+` 1m7Sl'lar/ Document Date: '47-x) Number of Pages: ' Signer(%) Other Than Named Above: � 1�(l t Wa ( of Capaclty(les) Claimed by Signer(s) L Signer's Name: t4►' i C 0 �� %arnUin.T! Signer's Name: Individual Individual Wcor L:, Corporate Officer — Title( %): ❑Corporate Officer — Title( %) • Partner — C Limited 7 General _ ❑ Partner — ❑ Limited C General • Attorney in Fact • ❑ Attorney in Fact ❑ Trustee C Guardian or Conservator ❑ Other: Signer Is Representing: RR yt?�\ f� • Trustee • Guardian or Conservator C Other: Signer Is Representing: Top W. tnwro here 13180 EXHIBIT A Legal Description of the Pacific Station Property PARCEL A: 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 601 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 °21' 55" EAST ALONG THE EASTERLY BOUNDARY OF SAID PARCEL 9 A DISTANCE OF 480.00 FEET; THENCE SOUTH 84 038' 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 86 011' 27" EAST A DISTANCE OF 26.25 FEET; THENCE NORTH 20 036' 07" EAST, A DISTANCE OF 66.17 FEET; THENCE NORTH 5 °40' 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 15, 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 01D' 44" EAST A DISTANCE OF 103.05 FEET; THENCE CONTINUING ALONG SAID WESTERLY BOUNDARY NORTH 5 021' 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 61 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. i 13181 EXHIBIT B Legal Description of the Valentine Property Lots 2 and 3 in Block 60 of Encinitas, in the 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, 1983. - - 13182 • ON U � u- rr liirrriiiir / ` - __ niiiw • iiiiiry i� r - rr■ +� A' N ■ ■ UH u