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HomeMy WebLinkAboutDeeds & Easements-5-1996E_CCv0001.pdf PLEASE COMPLETE THIS INFORMATION RECORDING REQUESTED BY: Recorded in Official Records, County of San Bernardino, Erred J, Mackzum, Recorder CITY OF REDLANDS 40.00 Doc No . 18880080202 AND WHEN RECORDED IL TO: 4 * 24 m 03/06/96 CITY CLERK' S OFFICE CITY OF REDLANDS 205 40007648 01 04 P. O. PDX 3005 PG FEE APF 1 REDLANDS, CA 9 2 3`7 3 � r ' ' POOR TI i L , �Y IT-s�t3 TRANS TAX FEE CHRG E INGRESS EGRESS AND SIGN EASF'.IMENT Title of Document THIS PAGE ADDED TO PROVIDE ADECIUATE SPACE FOR RECORDING INFORMATION ($3.00 Additional Recording Fee Applies) Recording Requested By: City of Redlands And When Recorded Mail to: City Clerk' s Office City of Redlands P. 0. Box 3005 Redlands, CA 92373 INGRESS-EGRESS AND SIGN EASEMENT THIS AGREEMENT is entered into this day of January, 1996 , between CAFETERIA OPERATORS, L.P.,a Delaware limited partnership("Cafeteria Operators"), TRI-CITY CENTER, LTD., a California limited partnership ("Tri-City") and the CITY OF REDLANDS, CALIFORNIA, a municipal corporation ("City"). BACKGROUND TO THE AGREEMENT Cafeteria Operators is the owner of certain real property located in the City Redlands, County of San Bernardino, State of California, further described as Parcel No. I of Parcel Map No. 8395, in the City of Redlands, County of San Bernardino, State of California, as per map recorded in Book 87, Page 69 of Parcel Maps, in the office of the County Recorder of said county and state ("Parcel A"). Tri-City is the owner of certain other real property in the City of Redlands, County of San Bernardino, State of California, further described as Parcel No. I of Parcel Map 1905, in the City of Redlands, County of San Bernardino, State of California, as per map recorded in Book 16, Page 64 of Parcel Maps, in the office of the County Recorder of said county and state ("Parcel B"). Tri-City has requested that Cafeteria Operators enter into an agreement with Tri-City for the purpose of providing direct access between Parcel A and Parcel B by means of a curb cut and driveway and joint use of certain driveway areas located on Parcel A and Parcel B for purposes of ingress to and egress from said parcels, and further providing for the construction, maintenance and operation of a pylon sign to be located on Parcel B. Cafeteria Operators is willing to enter into such an agreement on the terms and conditions stated herein. City joins in execution of this Agreement solely for purposes of evidencing its right to enforce compliance with the provisions of Paragraph I I hereof and has no other rights, obligations, duties or liability under this Agreement. fiWs/r.dNn& TERMS OF THE AGREEMENT For a valuable consideration, Cafeteria Operators and Tri-City agree as follows: 1. Tri-City hereby grants to Cafeteria Operators the right to construct a pylon sign (the "Sign") at the location shown on Exhibit "A" attached hereto and made a part hereof for all purposes, together with an easement in, over, along and under such other portions of Parcel B as must be used in connection with supporting the Sign and providing electricity and other necessary utility services to it (provided that no such utility lines will be installed in that portion of Parcel B shown as "Building Area" on Exhibit "A" attached hereto), The Sign shall be constructed as a dual-tenant freeway oriented sign, and Cafeteria Operators and Tri-City shall cooperate in filing all applications required in connection with the approval of the Sign by all necessary governmental authorities. Upon installation of the Sign, the area subject to this easement shall be determined by the actual location of the Sign (which shall be located in the Northwest corner of Parcel B, North of the curb cut between Parcel A and Parcel B, as shown on Exhibit "A") and the necessary supports and/or utility lines. Such easement shall be irrevocable and exclusive; provided, however, that Tri-City, subject to the conditions stated herein, shall have the right to attach a sign face to the Sign advertising any business being operated on Parcel B provided that the size, shape, style, content and location of such additional sign face first are approved in writing by Cafeteria Operators (which approval will not unreasonably be withheld). Tri-City agrees to contribute the sum of $17,500.00 (the "Contribution") to the cost of constructing the Sign (regardless of the total cost). Prior to the date hereof, Tri-City has paid to Cafeteria Operators the sum of $5,000.00, and such payment shall be credited against the Contribution. The balance of the Contribution shall be due and payable in cash or other good funds within ten (10) days following Tri-City's receipt of an invoice for such amount from Cafeteria Operators (which invoice shall not be sent by Cafeteria Operators prior to completion of the Sign). If Tri-City shall fall to pay the balance of the Contribution when due, then, in addition to all other remedies available to Cafeteria Operators, Tri-City shall pay to Cafeteria Operators interest on such amount from the date due until paid, calculated at the lesser of(i) the highest lawful rate, or (ii) twelve percent (12%) per annum. At such time, if ever, as Tri-City shall install a sign face on the Sign, Tri-City thereafter shall reimburse Cafeteria Operators, on a monthly basis, within ten (10) days following receipt of a written statement from Cafeteria Operators(which shall include true and correct copies of bills and/or invoices documenting all expenses shown therein), for one-half(1/2) of the cost of operating, repairing and maintaining the Sign (exclusive of the cost of repairing and maintaining the individual signs contained thereon). Each party shall be solely responsible for maintaining and repairing its own sign face on the Sign in good condition. Tri-City's timely payment of all sums due and owing to Cafeteria Operators under the terms of this paragraph is a condition precedent to Tri-City's continuing right to use the Sign, and, if Tri-City shall default in such timely payment and not cure such default within ten (10) days following written notice thereof from Cafeteria Operators to Tri-City (provided that such written notice need not be given more than twice in any consecutive twelve (12) month period and after having given such notice twice in a consecutive twelve (12) month period, no further written notice shall be required with -2- respect to any subsequent default during such consecutive twelve (12) month period), Cafeteria Operators, in addition to such other remedies as may be available to it, shall have the right to remove any additional sign face installed by Tri-City on the Sign. Tri-City shall be solely responsible for installing any additional sign face on the Sign, and shall promptly repair and reimburse Cafeteria Operators for all damage incurred as a result of any injury or damage to Cafeteria Operators' sign face as a result of the installation of the additional sign face. If Cafeteria Operators shall (1) fall to reasonably maintain and repair the Sign and/or its sign face thereon as required herein and such failure shall continue for a period of thirty (30) days following written notice thereof from Tri-City to Cafeteria Operators or (11) fall to pay any expenses incurred by it in operating, maintaining and repairing the Sign, Tri-City having paid its share of such expenses, and such failure shall continue for a period of ten (10) days following written notice thereof from Tri-City to Cafeteria Operators (provided that in case of clause (11) such written notice need not be given more than twice in any consecutive twelve (12) month period and after having given such notice twice in a consecutive twelve (12) month period, no further written notice shall be required with respect to any subsequent default during such consecutive twelve (12) month period), then Tri-City may maintain and repair the Sign as reasonably necessary and/or pay such expenses on behalf of Cafeteria Operators and, as Tri-City's sole remedy by reason of such failure, may recover from Cafeteria Operators one-half(1/2) of such expenses and/or all costs of labor and materials reasonably incurred by Tri-City in performing such maintenance and repair. If Cafeteria Operators shall fail to pay such sum to Tri-City within ten (10) days following its receipt of Tri-City's written demand for payment of the same (which written demand shall be accompanied by true and correct copies of bills and/or invoices documenting the expense so incurred by Tri-City), then Cafeteria Operators, in addition to payment of the amount due, shall pay interest on the amount due to Tri-City from the date due until paid, at the lesser of(i) the highest lawful rate, or (11) twelve percent (12%) per annum. No failure by Cafeteria Operators to operate, maintain and/or repair the Sign shall cause a termination or forfeiture of Cafeteria Operators' rights under this Paragraph 1. Cafeteria Operators shall construct, operate, maintain and repair the Sign in accordance with all applicable rules and regulations of the City of Redlands, California and/or other governmental authority, and Tri-City's right to attach an additional sign face to the Sign expressly is made subject to and conditioned upon Tri-City's compliance, at its expense, with all such governmental rules and regulations. 2, Cafeteria Operators and Tri-City agree that a curb cut shall be opened between Parcel A and Parcel B, said curb cut to be at the location set forth on Exhibit "A". Tri-City shall perform all work and pay all costs and expenses in connection with the construction, repair and maintenance of said curb cut, all such work to be completed in a diligent, workmanlike and expeditious manner and in a fashion designed to minimize any adverse impact on the use of Parcel A. The curb cut shall be constructed of concrete and Cafeteria Operators shall reimburse Tri-City for one-half (1/2) of the additional materials (but not labor) cost of using concrete (as compared to typical asphalt construction) within ten (10) days following Cafeteria Operators' receipt of a written statement from Tri-City showing such additional cost (which statement shall not be -3- delivered until after the work is completed and shall be accompanied by true and correct copies of all bids, bills and invoices necessary to verify the amount shown as due). Following opening of the curb cut, each party shall continue to maintain all paved driveways and parking areas on its parcel. Tri-City shall not have the right to use any portion of Parcel A for construction purposes (e.g., parking of equipment, storage of materials and the like), 3. Cafeteria Operators hereby grants to Tri-City, its successors, guests and invitees, a non-exclusive easement for purposes of ingress and egress in, on and over those portions of Parcel A from time to time designated by Cafeteria Operators as driveways, such easement to exist for the sole and exclusive purpose of providing ingress and egress from Parcel B across Parcel A to publicly dedicated streets and thoroughfares. Tri-City hereby grants to Cafeteria Operators, its successors, guests and invitees, a non-exclusive easement for purposes of ingress and egress in, on and over those portions of Parcel B from time to time designated by Tri-City as driveways, such easement to exist for the sole and exclusive purpose of providing ingress and egress from Parcel A across Parcel B to publicly dedicated streets and thoroughfares. It is understood and agreed that neither party to this instrument warrants or represents that driveways will at any particular time exist at any given location, and that each party shall have the right from time to time to alter, modify, construct additional improvements on or otherwise change its respective parcel, so long as no such actions shall materially impair ingress and egress across that parcel. 4. Cafeteria Operators and Tri-City recognize that all or portions of Parcel A are or may be subject to the provisions of certain agreements imposing restrictions and easements thereon, including, without limitation, that certain Grant of Reciprocal Easements and Declaration of Covenants Running With the Land, dated July 29, 1980 and recorded August 1, 1980 in the official records of the County of San Bernardino, State of California, as Instrument No. 80-172284, as amended by First Amendment to Grant of Reciprocal Easements and Declaration of Covenants Running With the Land, dated November 26, 1980, and recorded on December 3, 1980 as Instrument No. 80-275205 in said Official Records, as further amended by Second Amendment to Grant of Reciprocal Easements and Declaration of Covenants Running With the Land, dated December 30, 1982 and recorded on December 30, 1982 as Instrument No. 82-260714 in said Official Records, and as further amended by Third Amendment to Grant of Reciprocal Easements and Declaration of Covenants Running With the Land dated November 15, 1984 and recorded December 26, 1984, as Instrument No, 84-306633 in said Official Records-, Declaration of Establishment of Covenants and Restrictions dated August 25, 1981 and recorded September 18, 1981 as Instrument No, 81-207679 in such Official Records; Covenants, Conditions and Restrictions Establishing Parking, Access, Maintenance and Sign Criteria for the Benefit of the City of Redlands, dated July 29, 1980 and recorded August 1, 1980 as Instrument No, 80-172286 in such Official Records; First Amendment to Declaration of Establishment of Covenants and Restrictions and Declaration of Covenants, Conditions and Restrictions dated December 30, 1982, and recorded on December 30, 1982 as Instrument No. 82-260716 in such records; Improvement Agreement between Furr's Cafeterias, Inc., a Texas corporation, and Tri-City Center, Ltd., -4- a California limited partnership, dated February 25, 1985; and Common Area Construction Agreement between Tri-City Center, Ltd., a California limited partnership, and Cafeteria Operators, dated August 9, 1988 (all of the foregoing agreements, including those specifically referenced, being hereinafter collectively called the "Prior Agreements"). In the event any of the provisions of Paragraphs 2 and/or 3 of this instrument shall violate or be in contravention of the provisions of the Prior Agreements, or any of them, such provisions shall be deemed to be stricken from this instrument. Tri-City hereby warrants and represents to Cafeteria Operators that (i) the Prior Agreements, or any of them, do not now apply to or in any way restrict any use of Parcel B for the purposes set forth herein, and (ii) any future development of Parcel B such that the Prior Agreements, or any of them, hereafter apply to Parcel B, or any part thereof, will not prevent the continued use of Parcel B for the purposes set forth herein. It is the intention of the parties to this instrument strictly to comply with the terms, provisions and conditions of all the Prior Agreements, and such Prior Agreements shall govern in all respects in the event of any conflict with the terms hereof. 5. Tri-City, its heirs, successors, legal representatives and assigns, and all persons claiming by, through or under Tri-City, Jointly and severally (if more than one) agree to indemnify and hold harmless Cafeteria Operators, its partners (both general and limited), officers, agents, contractors and employees, and all persons, natural or corporate, in privity with them or any of them, from and against any and all liability, claims, causes of action, loss, damages, cost and expense, including reasonable attorney's fees and court costs, relating to or in any way arising out of (1) any violation of the Prior Agreements occurring as a result of this Agreement, (ii) the use by Tri-City, its guests and/or invitees and/or all other persons claiming by, through or under Tri-City (whether or not authorized by this agreement), of any and all portions of Parcel A for any purpose (whether or not authorized by this agreement), or (iii) the falsity of any warranty or representation made by Tri-City to Cafeteria Operators in this Agreement. In the event any such matter should be asserted against Cafeteria Operators, Tri-City, upon demand by Cafeteria Operators, agrees to defend Cafeteria Operators from and against the same, at its expense and by legal counsel acceptable to Cafeteria Operators; provided, further, that Tri-City shall not enter into any settlement, agreed order or other agreement affecting Cafeteria Operators' rights hereunder without the prior written consent of Cafeteria Operators. 6. Cafeteria Operators, its heirs, successors, legal representatives and assigns, and all persons claiming by, through or under Cafeteria Operators, Jointly and severally (if more than one) agree to indemnify and hold harmless Tri-City,, its partners (both general and limited), officers, agents, contractors and employees, and all persons, natural or corporate, in privity with them or any of them, from and against any and all liability, claims, causes of action, loss, damages, cost and expense, including reasonable attorney's fees and court costs, relating to or in any way arising out of the use by Cafeteria Operators, its guests and/or invitees and/or all other persons claiming by, through or under Cafeteria Operators (whether or not authorized by this agreement), of any and all portions of Parcel B for any purpose (whether or not authorized by this agreement). In the event any such matter should be asserted against Tri-City, Cafeteria Operators, upon demand -5- by Tri-City, agrees to defend Tri-City from and against the same, at its expense and by legal counsel acceptable to Tri-City; provided, further, that Cafeteria Operators shall not enter into any settlement, agreed order or other agreement affecting Tri-City's rights hereunder without the prior written consent of Tri-City. 7. All easements and rights granted herein shall be irrevocable, except that any easements and rights granted in Paragraphs 2 and 3 hereof shall terminate upon the determination that any of such easements and/or rights violate the provisions of any of the Prior Agreements (as defined in Paragraph 4 hereof), In the event Tri-City shall default in the performance of any of its obligations under this Agreement, including, without limitation, its obligations to indemnify Cafeteria Operators and/or to repair and maintain any curb cut between parcel A and Parcel B, and should such failure continue for a period of thirty (30) days following written notice thereof from Cafeteria Operators to Tri-City, Cafeteria Operators may, at its option, (1) close off any and all curb cuts between Parcel A and Parcel B, such curb cuts to remain closed until Tri-City has cured its default (but this agreement shall not otherwise terminate), and/or (ii) cure such failure on behalf of Tri- City, in which latter case Tri-City shall reimburse Cafeteria Operators on demand for all expenses incurred by Cafeteria Operators in curing such failure, together with interest thereon from the date due until paid, at the lesser of (a) the highest lawful rate or (b) twelve percent (12%) per annum, if such reimbursement is not paid within ten (10) days following Cafeteria Operators' written demand for payment of the same. 8. As additional consideration to Cafeteria Operators for its execution of this agreement, Tri-City agrees that no part of Parcel B shall at any time be used for purposes of operating a cafeteria, buffet or buffet-style restaurant or other business serving food and/or beverages using an "all you can eat" concept. Subject to such restrictions, Parcel B shall be used only for purposes of operating a restaurant, hotel or motel, or service station. 9. Notice to any party shall be in writing and shall be given by (1) personal delivery, (ii) prepaid registered or certified mail, return receipt requested, or (111) any overnight express delivery service that offers proof of delivery. If notice is given by personal delivery, such notice shall be deemed delivered upon actual receipt by the party to whom it is given. If notice is given by certified or registered mail or overnight express delivery service, such notice shall be deemed delivered and received immediately upon deposit in the U.S. Mail or deposit with the overnight express delivery service, as appropriate,regardless of whether actual delivery ever occurs. Should either party's address change, that party must notify the other party within thirty (30) days, giving the new address in writing. The respective addresses of the parties are set forth opposite their signatures hereto. 10. Subject to the provisions of this instrument, the agreements contained herein shall run with the ownership of Parcel A and Parcel B, respectively, and be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors, legal representatives and assigns and all other owners of interests in Parcel A and Parcel B, -6- respectively. Time is of the essence to this agreement. This instrument sets forth the full and complete agreement between the parties relating to the subject matter hereof, and there are no other agreements or understandings, written or oral, express or implied, relating thereto. This agreement may be executed in multiple copies, each of which shall constitute an original hereof for all purposes. 11. In order to comply with the ordinances of the City of Redlands, California with respect to dual-tenant signs, Cafeteria Operators and Tri-City agree as follows: (a) This Agreement may not voluntarily be terminated except upon the unanimous consent of Cafeteria Operators, Tri-City and the City of Redlands, California, or their respective successors, legal representatives and assigns; (b) Tri-City, as owner of the parcel upon which the dual-tenant sign structure is to be located, shall have the unilateral right to alter, remove or otherwise take action with respect to the Sign at the request of the City of Redlands, California; and, (c) The City of Redlands, California shall be entitled to recover its costs and reasonable attorney's fees in any action or proceeding taken to enforce the provisions of the City's Municipal Code. In the event of any conflict or inconsistency between the terms contained in this Paragraph I I and those contained in the remainder of the Agreement, this Paragraph I I shall prevail. Cafeteria Operators and Tri-City individually and collectively shall defend, indemnify and hold harmless City, its elected officials, officers, agents and employees from and against any and all claims, losses, damages and causes of action which may arise out of, or in connection with, any and all acts or omissions of Cafeteria Operators or Tri- City and their respective officers, employees and agents, In connection with Cafeteria Operators or Tri-City's performance of this Agreement. EXECUTED the day and date first above written. Addresses: CAFETERIA OPERATORS, L.P., A Delaware Limited Partnership, BY: FURR's/111SHOWS, INCORPORATED, A Delaware Corporation, P. O. Box 6747 Managing General Partner 6901 Quaker Avenue Lubbock, Texas 79493 By� Its: Kea-, Es -7- TRI-CITY CENTER, LTL}., A California limited partnership By: WESTERN INVESTMENT PROPERTIES, L.L.G., A California limited liability company, Its General Partner c/o Western Investment Properties, L.L.C. 10080 North Wolfe Rd., Suite 310 i Cupertino, CA 95014-2597 By: Its: Manager THE CITY OF REDLANDS, A Municipal corporation ATTEST. Mayor, City of Redlands City Jerk, `*Redlands THE STATE OF TEXAS § COUNTY OF c-, § The foregoing instrument was acknowledged before me on the j0� day of ,, . ®, 1990, by - "( �` -d ' & of FURR'S/B SHOP°S, INCORPORAAD,'a Delaware corporation, on behalf of said corporation as Managing General Partner of CAFETERIA OPERATORS,L.P., a Delaware limited partnership. Notary Public, State of Texas Printed Name 6 - j ' My commission expires- -0 -8- STATE OF CALIFORNIA j ss. COUNTY OF SANTA CLARA } On /q14 before me, Janet Geiman, the undersigned Notary Public, pers ` 'ally appeare CHARLES L.MARSH,JR.,personally known to me to be the person(s) whose name{)is/are subscribed to the within instrument, and acknowledged to me that het hey executed the same in his/lief/their authorized capacity(ies), and that by his/herAheir signatures on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. JANE GENM I 1K Mt'' _ i Notary PLtac—cafibmic Signature Sonto Comm,Expires oct 3o.19w �. Optional Information Below DESCRIPTION OF ATTACHED DOCUMENT.- Ingress-Egress OCUMENT.Ingress-Egress and Sign Easement DATE OF DOCUMENT.- January 10, 1996 SIGNER(S)OTHER THAN NAMED ABOVE: The City of Redlands Cafeteria Operators,L.P.by Furr's/Bishop"s,Inc. CAPACITY CLAIMED BY,SIGNER Member of General Partner for Tri-City Center,Ltd. ALL-PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA COUNTY OF SAN BERNARDINO SS CITY OF REDLANDS By the authority granted under Chapter 4, Article 3, Section 1181, of the California Civil Code, and Chapter 2, Division 3, Section 40814, of the California Government Code, on February 6, 1996 before me, Beatrice Sanchez, Deputy City Clerk, on behalf of Lorrie Poyzer, City Clerk of the City of Redlands, California, personally appeared Swen Larson and Lorrie Poyzer {xj personally known to me - or - { } proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he"e/they executed the same in bisllw/their authorized capacity(ies) and that by his&m/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. (SEAL) WITNESS my hand and official seal. LORRIE POYZER, CITY CLERK By: Beatrice Sanchez, Deputy City Clerk (909)798-7531 ----------- ----- -----~~~------------ CAPACITY CLAIMED BY SIGNER(S) Individual(s) signing for oneselUthemselves Corporate Officer(s) Title(s) Company Partner(s) Partnership Attorney-In-Fact Principal(s) Trustee(s) Trust I x,4 Other Title(s) Mayor and City Clerk Entity Represented City of Redlands ----------~------------------ THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW: Title or Type of Document: Ingress-Egress and Sign Easement Number of Pages -- , eight Date of Document January 10, 1996 Signer(s) Other Than Named Above Tri-City Center, Ltd. and Cafeteria Operators, L.P. by Furr's/Bishop's, Inc. Exhibit A �[ SIGN LC?cAnON --[-� Parcel B 30' access curb cut —;17...17- . 0, . } 375' ! fi ' CL ...............,. 20' tU -<---146' a� c� T —40' � Colton avenue Note: For informational purposes only---neat to scale.