HomeMy WebLinkAboutRES NO 120-82RESOLUTION NO. 120-82
A RESOLUTION OF THE COUNCIL OF THE CITY OF
BAKERSFIELD MAKING FINDINGS, ADOPTING NEGATIVE
DECLARATION AND APPROVING SEGMENT IV OF PROPOSED
AMENDMENT TO THE LAND USE ELEMENT OF THE
BAKERSFIELD METROPOLITAN AREA GENERAL PLAN
(LAND USE AMENDMENT 2-82).
WHEREAS, the Council of t]%e City of Bakersfield
referred Segment IV of a proposed amendment to the Land Use
Element of the Bakersfield Metropolitan Area General Plan to the
Planning Commission; and
WHEREAS, the Planning Commission of the City of
Bakersfield, in accordance with the provisions of Section 65351
of the Government Code, held a public hearing on October 13, 1982
on Segment IV of a proposed amendment to the Land Use Element of
the General Plan, notice of the time and place of hearing having
been given at least ten (10) calendar days before said hearing by
publication in a local newspaper of general circulation; and.
WHEREAS, such Segment IV of the proposed amendment to
the Land Use Element of the Bakersfield Metropolitan Area General
Plan concerns the following area:
SEGMENT IV:
EAST BAKERSFIELD ASSOCIATES has applied to
remove the condition requiring P.C.D. (Planned
Commercial Development) zoning on an 8.77
acre portion of the proposed Eastside Shopping
Center approved to the Commercial designation
in Land Use Element Amendment 3-79, Segment
IX located adjacent to the Highway 178 off-
ramp on the North and Oswell Street on the
East;
and
WHEREAS, for the above-described Segment, an Initial
Study was conducted, and it was determined that the proposed
project would not have a significant effect on the environment,
and a Negative Declaration was prepared; and
WHEREAS, the law and regulations relating to the
preparation and adoption of Negative Declarations as set forth in
CEQA and City of Bakersfield Resolution 60-80 have been duly
followed by the City staff and the Planning Commission; and
WHEREAS,f by Resolution No.,i 67--82 on August 1~, 1~82,.
the Planning Commission'approVed Segment I;V of'the proposed
amendment and recommended approval and adoption of .Segment IV by
this Council, such recommendation being based on a finding that
the proposed amendment is consistent with the policies of the
General Plan, that mitigationmeaSures identified in the Eastside
Shopping Center Environmental Impact Report prepared for the
property of which this property is a portion should be required
as a condition to any rezoning of this property.
WHEREAS, the 'Council of the City of Bakersfield, in
accordance with the provisions of SeCtion65355 of the Government
Code, conducted and held a public hearing on October 13, 1982 on
the above-described Segment IV of the proposed amendment to the
Land Use Element of the Bakersfield Metropolitan Area General
Plan, notice of time and place of the hearing having been given
at least ten (10) calendar days before the hearing by publication
in the Bakersfield C:a:lif:ornian, a newspaper of general circulation.
WHEREAS, at the hearing before the Council evidence was
presented that attaching use restrictions to the property, at
the time of rezoning, would be an appropriate trade-off for
removal of the P.C.D. (Planned Commercial Development) condition
and would be in the best interests of the community and in
furtherance of the policies of the Bakersfield Metropolitan Area
General Plan.
NOW, THEREFORE, IT IS HEREBY FOUND AND RESOLVED as
follows:
1. The above recitals and findings, incorporated
herein, are true and correct.
2. The Negative Declaration for Segment IV ishereby
approved and adopted,
3. The report of the Planning Commission, including
maps and all reports and papers relevant thereto, transmitted by
the 'Secretary of the Planning Commission to the City Council, is
hereby' received, accepted and approved.
4. The City Council hereby approves and adopts ~egment
IV of the proposed amendment to the Land Use Element of the
Bakersfield Metropolitan Area General Plan and expressly advises
the proponent and all other interested parties that it is the
intention of this Council that the ~ollowing conditions may be
applied to any rezoning of the property:
(a) Mitigation measures identified in
the Eastside Shopping Center Environmental
Impact Report prepared for property of which
this property is a part, to the extent that the
Council determines that such measures may be
appropriately applied to this property;
(b) A Declaration of Restrictions
(hereinafter, "Declaration") shall be recorded
against such property and shall contain use
restrictions and maintenance requirements no
less restrictive than those set forth in a draft
of such Declaration dated August 24, 1982 and
attached hereto as Exhibit "A". The recorded
Declaration shall provide that the City of
Bakersfield is a third party beneficiary of the
Declaration with the right to enforce such
restrictions and requirements. Such Declaration
shall also provide that it shall not be amended
or modified so as to affect such restrictions or
requirements without the express written consent
of the City of Bakersfield;
(c) Use restrictions substantially
the same as those set forth in paragraph 7. of
the August 24, 1982 draft Declaration may be
imposed to become operative if and when the
Declaration expires in accordance with paragraph 10.
of that draft Declaration or otherwise expires
or is revoked.
5. That this Segment IV of the proposed amendment to
the Land Use Element be combined with other segments approved
and adopted by this City council, asset forth in separate
resolutions, to form a single Land Use Element Amendment, 2-82.
o0o
I HEREBY CERTIFY that the foregoing Resolution was
passed and adopted by the Council of the City of Bakersfield at
a regular meeting thereof held on the 13th day of October,
1982, by the following vote:
~ COI?JNC1LMEN: BARTON, CHRISTEI~,
I'g~S: COUN_CIL.MEN: SEN, MEANS, PAYNE, PATTY, ROCKOFF,
ABSENT: COUNCILMEN:
ABSTAINING: COUNCILMEN:
CI . Clerk of the
Council of the City of Bakersfield
APPRCi~D t.'his 13th day of October, 1982
C -r 'I'~ 'O~E~~~t'b.~s f i e ld
AJS:mro
lo/11/82
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RECORD, AND AFTER
RECORDING, RETURN TO:
Collins, Gleason & Kinney
1150 Union Bank Tower
Del ~no Financial Center
21515 Hawthorne Boulevard
Torrance, California 90503
Attention: Craig H. Edgecumbe, Esq.
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DECLARATION OF RESTRICTIONS.
AFFECTING REAL PROPERTY
DRAFT
5 Dated
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THIS DECLARATION, made as of - , 1982, by EAST
B~KFRSFIELD ASSOCIATES, a California general partnership in
which Ernest W. Hahn, Inc., a California corporation, is a
general partner ("Developer"). '~
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RECITALS: -
1. Developer is the owner of certain tracts of land
located in the City of Bakersfield, County of Kern, State of
California, designated by cr6ss hatching and identified as
Parcel 1 and Parcel 3 (collectively referred to as the "Burdened
Property") on the Plot Plan attached hereto as Exhibit "A" and
by this reference made a part hereof, and more particularly
described on Exhibit "B'/attached hereto and by this reference
made a part hereof.
2. Developer and certain other parties contemplate
entering into a Construction, Operation and Reciprocal Easement
Agreement ("REA"), which REA will pertain to the development and
operation of a regional shopping center (the "Shopping Center")
on the tracts of l-and to be ~f~ned-or-iea-s-ed~by .such-p-arties (said
tracts of land collectively referred to as the "Benefited Property")
desiglated by hatching on Exhibit A and as more particularly
described on Exhibit "C:' attached hereto and. by t/~is reference
~ade a paE~ helen.f, D~e[opeF ~i-S cu~."~ea~[~/tile c~'~ane~ DE '~
Benefited Property.
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3. Developer desires that the use of the Burdened Prop-
erty, and .the improvements, if any, to be constructed on the
Burdened Property, shall be burdened and restricted in certain'
respects so as to insure that the development and maintenance of
the Burdened Property shall be compatible with the development
and maintenance of the Shopping Center to be located on the
Benefited Property.
TERMS:
NOW, THEREFORE, Developer hereby certifies and declares
that it does fix such burdens, restrictions and conditions as
are set forth at Paragraphs 1, 2, 3, 4, 5, 6, 7 and 8 below
(collectively referred to as the "Burdens") upon the Burdened
Property, and each portion thereof, as the servient tenement,
and that the Burdened Property shall be held, leased, sold,
conveyed and used, and each and all of said Burdens shall be for
the benefit of the Benefited Property, and each portion thereof,
as the dominant tenement, as follows:
1.. Permitted Uses. The Burdened Property and the improve-'
ments, if any, to be constructed on the Burdened Property, shall
be used only for financial, restaurant, office, or retail sales
purposes and for no other use or purpose; provided, however, the
Burdened Property may be used for drug, supermarket or discount
store purposes from and after five (5) years from the date
hereof, subject to the terms and conditions of this Declaration,
including, without limitation, the option to purchase a portion
or portions of the Burdened Property granted to Developer under
the provisions of Paragraph 8 below.
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1 2. Approval Rights of Developer, Height Limitations.
2 Developer .shall have a prior reasonable right of approval of the
3 (i) architectural concept, (ii) location, (iii) elevation, (iv)
4 building landscaping, (v) exterior design and finish, and (vi)
5 plans and specifications of any such improvements to be located
6 on the Burdened Property. In addition, Developer shall have a
7 prior reasonable right of approval of site landscaping, parking
8 layout and traffic control to be placed, installed, constructed
9 or utilized on the Burdened Property. With;respect to the prior
i0 right of approval of Developer referred to in the immediately
11 preceeding two (2) sentences, Developer shall have no right to
12 disapprove such matters so long as such matters are treated in a
13 manner consistent with practices prevailing in similar develop-
14 ments in the Bakersfield area as of the date hereof. No building,
15 ·structure or improvement to be located on the Burdened Property
16 shall exceed fifty feet (50') in height.
17 3. Construction and Lighting Standards. The quality of
18 the (i) construction, (ii) construction components, (iii) decora-
19 tire elements, and (iv) furnishings and general architectural
20 character and general design (including, but not by way of
21 limitation, landscaping and decorative elements), the material
22 selection, the decor and the treatment values, approaches and
23 standards of the improvements to be located on the Burdened
24 Property shall be comparable, at minimum, to the qualities,
25 values, approaches and standards (as of the date hereof) of
26 Rancho Las Palmas Shopping·Center, Rancho Mirage, California.
27 The lighting within the Burd&ned Property and on all roads,
28 streets and other thoroughfares located contiguous with or
29 adjacent to the Burdened Property, including, without limitation,
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at all automobile entrances and exits from the Burdened Property,
shall be one (1) foot candle of lighting minimum maintained
measured at grade.
4. Maintenance. Without limiting the generality of the
foregoing, the automobile parking and general use or common
areas of the Burdened Property shall be maintained to at least
the following standards:
(a) Maintain the surface of the automobile parking
area and sidewalks level, smooth and evenly covered with the
type of surfacing material originally installed thereon, or such
substitute thereof as shall be in all respects equal thereto in
quality, appearance, and durability.
(b) Remove all papers, debris, filth and refuse from
the Burdened Property and wash or thoroughly sweep paved areas
as req/uired..
(c) Maintain such appropriate automobile parking
area entrance, exit and directional signs, markers and lights as
shall be reasonably required and in accordance with the practices
prevailing in the operation of similar developments in the
Bakersfield area.
(d) Clean common area lighting fixtures and telamp
and reballast as needed.
(e) Repaint, repair and replace striping, markers,
directional signs, etc., as necessary to maintain in a first-class
condition.
(f) Maintain, repair and replace landscaping as
necessary to keep in a firstsclass, thriving condition.
(g) Clean signs of the development, including re-
lamping and repairs as needed.
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(h) Employ courteous personnel for common area
patrol, in.~uch numbers, and during such hours as are prudent
for the safety and security of permittees of the development.
(i) Maintain and keep in a sanitary condition common
use facilities.
(j) Repair, maintain and replace, as necessary,
adequate and sufficient signs prohibiting trespass.
(k) The maintenance standards set forth above in this
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Paragraph 4 shall be performeden a mannercomparable to those
performed as of the date hereof at Rancho Las Palmas Shopping
Center, Rancho Mirage, California.
5. Parking Ratio. There shall be available within the
automobile parking area of the Burdened Property not less than
~Iree and three tenths (3.3) automobile parking spaces for each
one thousand (1,000) square feet of floor space of all floors in
any building located on the Burdened Property; provided, however,
in ~he'event that a cinema shall be constructed on the Burdened
Property, there shall be at least one (1) automobile parking
space for each five (5) seats in said cinema-
6. Signs. No free-standing plyon or other exterior sign
shall be permitted on the Burdened Property unless approved in
writing by Developer; provided, however, a cinema marquee sign
shall be permitted on the Burdened Property subject to approval
in writing by Developer, but such approval rights shall be
limited to the architectural character and location of such
marquee sign. All signs, except the cinema marquee, if any,
shall comply, at minimum, with the following standards:
(a) All signs shall be mounted on the vertical surface
of any building.
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(b) The framework, exposed facing and lettering of
all signs shall be made of anodized aluminum, acrylic, plastic
or other similar material.
(c) All sign lettering shall be fixed and not movable.
(d) Any sign illumination shall be internal-
(e) No sign shall be painted, roof-mounted or composed
of exposed neon. No sign shall extend above the top of the
parapet of any buildinG.
7. Prohibited Uses. No structure,'building or improve-
ment of any'kind to be constructed on the Burdened Property
shall be used for the (i) sale of furniture, (ii) sale of liquor
or alcoholic beverages (other than liquor or alcoholic beverages
sold for on-premises consumption in restaurants, and for off-
premises consumption in supermarkets or discount stores), (iii) sale
of fast foods for on- oroff-premises consumption, or (iv) for
the operation of what is commonly known as a "convenience store",
such as, for purposes of example only, a "Mi-T-Mart" or ."7-11"
store. In addition, no building or improvement to be constructed
on the Burdened Property shall be used for any purpose other
than those set forth under the provisions of Paragraph 1 hereof
nor will any use or operation be made, conducted or permitted on
or with respec't to all or any part of the Burdened Property
which use or operation is out of ha~nmony with the development
and operation of a regional shopping center containing an enclosed
air conditioned mall (an office building shall not be. considered
out of harmony with such a shopping center development)~ including
without limitation the following:
(a) any public or private nuisance;
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(b) any noise or sound that is objectionable due to
intermittence, beat, frequency, shrillness or loudness;
(c) any obnoxious odor;
~d) any noxious, toxic, caustic or corrosive fuel or
gas;
(e) any dust, dirt or fly ash in excessive quantities;
(f) any unusual fire, explosion or other damaging or
dangerous hazard; including the storage, display or sale of
explosives or fireworks;
(g) any warehouse;
(h) any assembling, manufacturing, distilling, refin-
ing, smelting, agricultural or mining operation~
(i) any funeral establisb~nent;
(j) any automobile showroom and used car lot;
(k) any auction or bankruptcy sale;
(1) any pawn shop;
(m) any outdoor. circus or Other entertainment, including
the sale of Christmas trees, but not excluding promotional
activities sponsored by any merchant's association;
(n) any outdoor meetings;
(o) any bowling alley;
(p) any pool or billiard establishment;
(q) any operation of "elephant trains" or similar
transportation devices;
(r) any shooting gallery;
(s) any massage parlor; or
(t) the distribution or showing of "X" rated films or
"pornographic" films and materials as such latter term is defined t
by applicable 3ualclal and/or statutory orders, rules or decisions
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1 8. Purchase Option. of Developer. The Burdened Parties
2 (as defined in Paragraph 1i hereof) hereby grant to the Developer
3 an option to purchase (the "option") any portion of the Burdened'
4 Property for which the Burdened Parties have, after the period
5 referred to in Paragraph i hereof, (i) elected to use for drug,
6 supermarket or discount store purposes, and (ii) received a
7 letter of intent or similar written outline or memorandum of the
8 terms and conditions for such proposed use from an entity which
9 desires to operate such portion of the Burdened Property for
10 drug, supermarket or discount store purposes (any such parcel or
11 parcels shall be hereinafter collectively referred to as the
12 "option parcel"). The Burdened Parties hereby agree to deliver
13 to the Developer a copy of such letter, outline or memorandm~
1~ (the "prohibited use notice") within ten (10) days after election
15 by the Burdened Parties to make such Use of a portion or portions
16 of the Burdened Property-
17 The Developer shall exercise the option by giving
18 notice (the "option notice") to the Burdened Parties within
19 fifteen (15) days after receiving the prohibited use notice.
20 The parties hereto agree that. any exercise of an option hereunder
21 shall be permitted only.as to the entirety of an option parcel
22 and that Developer shall not be permitted to exercise an option
23 as to any lesser portion of an optibn parcel.
24 The parties hereto also agree that the option rights
25 gram. ted under the provisions of this Paragraph 8 may be exercised
26 only one (1) time as to each option parcel and that if an option
27 notice is not delivered by Developer to the-Burdened-Parties
28 within the time period provided for in this Declaration af'ter
29 receipt by Developer of a prohibited use notice, then such
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option as to such option parcel shall be null, void and of no
further force or effect; provided, however, all other provisions
of this Declaration shall remain in effect as to such option
parcel during the term of this Declaration- Developer agrees to
cooperate with the Burdened Parties, in good faith and with
reasonable diligence, respecting the review, approval and/or
execution of'any reasonable documentation, including without
limitation a quitclaim deed, requested or required by the Burdened
Parties to evidence the fact that such option has 'ceased to be
effective as to any such option parcel; provided, however, the
Burdened Parties agree to indemni~y ~nd hold harmless the Developer
from any cost or expense' incurred by 'Developer in any such.
review, approval and/or execution, including without limitation
reasonable attorneys' fees and costs.
The parties shall have thirty (30) days after the
Burdened Parties receive the opticn notice in whichtoTagree on
the purchase price. If the parties are unable to agree on the
purchase price within that period, then within ten (10) days
after the expiration of that period the Developer and the Burdened
Parties, at ~jaeir respective cost and by giving notice to the
other party, shall appoint one (1) qualified real estate appraiser
each with at least five (5) years full time commercial appraisal
experience in the Bakersfield area to appraise and set the
purchase price of the option parcel. If a party does not appoint
an appraiser within ten (10) days after the other party has
given notice of the name of its appraiser, the single appraiser
appointed shall be the sole appraiser and shall set the purchase
price of the option parcel. If two (2) appraisers are appointed
by -the parties as stated in this paragraph, they shall meet
promptly and attempt to set the purchase price of 'the option
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parcel. If the two (2) appraisers are unable to agree on
purchase price within 30 days after the second appraiser has
been appeinted, they shall attempt to elect a third appraiser
meeting the qualifications stated in this paragraph within ten
(10) days after the last day the two appraisers are given to set
the purchase pricel If they are unable to agree on a third
appraiser, either party by giving 10 days notice to the other
party can apply to the then president of the county real estate
board of the county in which the option parcel is located, or to
the presiding judge of the Superior Court of that county, for
Ele selection of a third appraiser who meets the qualifications
stated in this paragraph. Each of ~le parties shall bear one
half of the cost of appointing the third appraiser and of paying
'the third appraiser's fee. The third appraiser, however selected,
shall be a person who has not previously acted in any capacity
for either party.
Within thirty (30) days after the selectionof the
third appraiser, a majority of the appraisers shall set the
purchase price of the option parcel. if a majority of the
appraisers are unable to set the purchase price within the
stipulated period of time, the three appraisals shall be added
together and their total divided by three; the resulting quotient
shall be the purchase price of the option parcel- If, however,
the low appraisal and/or the high appraisal are/is more than 15%
lower and/or higher than the middle appraisal, the low appraisal
and/or the high appraisal shall be disregarded- If only one
appraisal is disregarded, the'remaining two appraisals shall be
added together and their total divided by two; the resulting
quotient shall be the purchase price of the option parcel- If
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both'the low appraisal and the high appraisal are disregarded as
stated in .this paragraph, the middle appraisal shall be the
purchase price of the option parcel-
In appraising the option parcel the appraisers shall
take into consideration the existence of this Declaration-
After the purchase price for the option parcel has
been set, the appraisers shall immediately notify the parties.
If ~he Developer objects to the purchase price that has been
set, the Developer shall have the right to elect not to purchase
the option premises, as long as the Developer pays all the costs
in comnection with the appraisal procedure that set the purchase
price. In the event the Developer does not notify the Burdened
Parties within ten (10) days after receiving the notice from the
appraisers of the purchase price of the election by the Developer
to purchase the option parcel, this option shallexpire and be
null and void as to such option parcel only- In the event the
Burdened Parties thereafter elect to use any other portion of
the Burdened Property for the purposes set forth at (i) above,
and for which a letter is received pursuant to (ii) above, then
the option set forth in this paragraph 8 shall apply to any such
parcel or parcels.
The purchase price, in the event of purchase of the
option parcel by the Developer, shall be payable in cash or
certified or cashier's check in lawful money of the United
States to the Burdened Parties by the Developer at close of
escrow (the date the grant deed is recorded)-
The Burdened Parties shall deliver to the Developer an
executed grant deed in recordable form conveying ~e op'tion
parcel- Title to the option parcel shall be conveyed by the
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Burdened Parties to the Developer free and clear of all liens,
encumbrances, covenants, conditions, restrictions, easements,
and rights of way of record (collectively, "title exceptions"),
except this Declaration, current taxes, a lien not yet delinqFdent,
those portions of current assessments not yet due and payable,
and title exceptions granted, approved in writing or executed by
Developer or imposed by any govermmental agency. -The Burdened
Parties agree to relocate any easement in the marmer required by
Developer in the development of the option parcel by Developer
provided tha't such relocation is not prohibited by any govermmen-
tal agency.
The sale shall be consummated through an escrow with
Title insu.rance And Trust Company, Kern County, ("escrowholder"),
to be opened within two (2) days after the option notice has
been given to the Burdened Parties. Escrow shall be deemed to
be opened on the date both parties have executed'the escrow
instructions. The parties shall execute all documents re~aired
by escrow holder as long as they are consistent with the provi-
sions of this Paragraph 8. Escrow shall close within thirty
(30) days after the purchase price of the premises has been set
under this Paragraph 8.. Escrow shall be deemed to be closed
pursuant to this Paragraph 8 on the date the grant deed is
recorded.
At the close of escrow, escrowholder must be prepared
to issue a CLTA Standard Coverage Owner's Policy of Title Insur-
ance in the amount of the purchase price insuring title to the
option parcel vested in the Developer subject only to the matters
set forth in ~is Paragraph 8.
Transfer taxes and recording fees on the deed shall be
split e~aa!ly between the parties. The cost of the title policy
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1 referred to in this Paragraph 8 shall be paid by the Burdened
2 Parties. Charges of escrow and all other closing costs shall be
3 paid in accordance with the custom of Kern County.
4 The Developer may assign or otherwise transfer its
5 right, title and interest under this Paragraph 8 to any corpora-
6 tion, partnership or other entity into or with which the Developer
7 is merged or consolidated or to which all or substantially all
8 of the Developer's assets are voluntarily, involuntarily, by
9 operation of law or otherwise transferred,' or to any other
10 corporation, partnership or other entity which controls, is
1t controlled by or is under common control with the Developer.
12 9. Violation of Burdens. In the'event that at any time
13 during the 'term of this Declaration the Benefited Parties (as
!~ defined in paragraph 11 hereof) determine that the Burdened
15 Property is being used Ormaintained in violation of the Burdens,'~
16 then the Burdened Parties shall, upon notice from the Benefited
17 Parties and at the sole cost and expense of the Burdened Parties,
18 immediately cause such uses to cease or such maintenance to be
19 performed-
20 10. Term. Each and all of the Burdens set forth herein
21 shall continue and remain in full force and effect against the
22 Burdened Property, as the servient tenement, and the Burdened
23 Parties, commencing as of the date hereof and for the term of
2z~ the REA and so long thereafter as any of the Benefited Parties
25 or their respective successors or assigns are operating a retail
26 facility 'which is open for business to the general p~lblic on the
27 Benefited Property; provided, however; this Declaration shall be
28 null, void and of no further force or effect eight (8) years
29 from the date hereof in the event that as of such date (i) the
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1 REA has not been recorded, or (ii) the digging of foundations
2 for the Shopping Center has not commenced-
3 11. Acceptance of Burdens- Each owner', grantee, lessee
4 and occupant of the entirety of, or any parcel located within,
5 the Burdened Property shall be deemed, by the acceptance of the
6 conveyance of such parcel or delivery of possession thereof, to
7 have accepted such parcel and ~he possession thereof subject to
8 all of Eqe Burdens provided in this Declaration, and each and
9 all of the Burdens contained herein shallbe for the benefit of
10 Developer and any other party which shall enter into the REA
il with Developer and their respective successors or assigns, as
12 o~ers and/or lessees of portions of the Benefited Property
13 (collectively referred to as the "Benefited Parties"), and each
and all of said Burdens shall inure to the benefit of and pass
15 with ~ach and every portion of the Benefited Property, and each
16 and all of said Burdens shall apply to and bind the respective
17 owners of the Burdened Property and their successors or assigns
18 (collectively referred to as the "Burdened Parties")-
19 12. Burdens to Run With the Land- These Burdens are to
20 run with the land and shall bind and inure to the benefit of the
21 Benefited Property as the dominant tenement and shall bind and
22 inure to the benefit of, and be enforceable by the Benefited
23 Parties or any of them and their respective legal representatives,
heirs, successors, and assigns. Upon a breach of any of the
25 Burdens set forth herein, it shall be lawful for any Benefited
26 Party to prosecute any proceedings at law or in equity against
27 any or all of the Burdened Parties to prevent such breach or to
28 recover damages therefor-
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13. Notices. Any notice or other' item required or permitted
to be given or received shall be deemed given or received forty-
eight (48) hours after deposit into the United States postal
service for delivery as registered or certified mail, first
class, postage prepaid, return receipt requested. In either
case, such notice or other items shall be delivered to the
addresses specified below for such party or to such other
addresses as such party may from time to time designate by
written notice:
TO DEVELOPER:
WiTHA COPY TO:
TO BIPRDENED
PARTIES:
EAST BAI~ERSFIE,LD ASSOCIATES
c/o Ernest W. Hahn, Inc.
3666 Kearny Villa Road
San Diego, California 92123
COLLINS, GLEASON & KINNEY
1150 Union Bank Tower
21515 Hawthorne Boulevard
Torrance, California 90503
Attn: Craig H. Edgecumbe, Esq.
DAC INVESTORS
c/o. Roger N. Davila Company
83 East Shaw
Suite 250
Fresno, California 93710
WITH A COPY TO: ALLEN, MATKINS, LECK, G~LE & MALLORY
515 South Fi.~ueroa Street, 8th Floor
Los Angeles, California 9007_!1
Attn: Glenn SoFtenberg, Esq.
14. Severability. All of the Burdens contained herein
shall be construed together; but if it shall at any time be held
'that any one of such Burdens or any portion thereof is. invalid
or for any reason becomes unenforceable, none of the other
Burdens contained herein shall be thereby affected or impaired.
15. No Waiver. The failure of anyBenefited Party, or any
other person, to enforce any of the Burdens to which the Burdened
Property or any part thereof is subject shall in nO event be
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deemed a waiver of the right to do so thereafter or thereafter
to enforce. any other Burden contained herein.
16. Liens Not Rendered Invalid. The breach of any of the
Burdens contained in this Declaration shall not defeat nor
render invalid the lien of any bona fide mortgage or deed of
trust in favor of an institutional lender encumbering any part
of the Burdened Property and all of the provisions hereof shall
be binding and effective against an owner of any part of the
Burdened Property whose title thereto is acquired by transfer,
foreclosure, trustee's sale or otherwise.
IN WITNESS ~REOF, Developer has duly execu-ted this Declara-
tion as of the date first above written.
EAST BAKERSFIELD ASSOCIATES
By: Ernest W. Hahn, inc.,
a California corporation
By
By
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