2347 Winchester Blvd. (91-06)
MEMORANDUM
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CITY OF CAMPBELL
From:
J';"'" Bollier ('\" ,\1, \P'-' Dol.'
Cl.ty Fnqineer ~y ~\) r- r.
Jim Penoyer ~ \ \
~im ~cian \l ~ ~\~
Central Plaza Parcel Map FM 91-06-\/t>
Wirdlester @ Budd Avenues ~
February 20, 1992
To:
Subject:
'!his map is ready for Wimberly's signature. It has been reviewed by
reference to the following documents:
1. Title Report dated March 21, 1991
2 . SUbdivision Guarantee Report,
3. Ergineer's calculations
4. Assessor's Map; Book 305 page 36 parcels 3 through 7,
5. FM 606 M 16
'!he ori~ 'lill be on r.r.rj desk when Inl is ready to sign it.
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CIT-" OF CAMPBELL
70 NORTH FIRST STREET
CAMPBELL, CALIFORNIA 95008
(408) 866-2100
FAX # (408) 379-2572
Department:
Planning
January 21, 1992
Mr. Joseph Castello
152 Newell Avenue
Los Gatos, CA 95030
RE: PM 91-06
2347 - 2391 S. Winchester Boulevard
APPROVAL OF TENTATIVE MAP
LANDS OF Castello
APN: 305-36-006 & 007
SITE ADDRESS: 2347 - 2391 S. Winchester Boulevard
Dear Mr. Castello:
The Planning Director and Public Works Director have approved the
referenced Tentative Parcel Map based upon the mandatory finding that this
Tentative Parcel Map, together with the provisions for its design and
improvement, is consistent with the General Plan of the City of Campbell.
The final map shall be filed with the City Engineer for examination, approval
and recordation, in accordance with the provision of the Subdivision Map
Act.
This approval is subject to the following Conditions:
1. Process and file a parcel map to create the three lots.
2 Property line wall shall meet UBC Standards for building built on
property line. 01< r eI..... ell"" l'j 'Ue..r7rna n '2 - 2.0 ~ '" II r
3. Deeded agreement should be filed on fire line easement for Parcel
No.2, or new fire lane will be required to be installed for sprinkler \
system. Ok t-~ rec..C>I~A t41c:l<r fer i5~vvlll1an ? ~2-O~'72-, He h4c1
;-h<oo~'"'t --\-h,j coulcl be.. dOI'~ on l""qf. .~&>\, Ge>od.mtJt1c/Jon
~t MQ)e>r.s E=nj' -10 fref~rL J~scrl\ot;cn. ~~",v/rn~q Wt:t17t
If.
!' 5 r. F" P.
CITY OF CAMPBELL
Mr. Joseph Castello
Re: PM 91-06/2347-2391 S. Winchester Blvd.
January 21, 1992
Page Two .
4. Provide evidence of recorded cross easements or covenants for
parking allocations and ingress/egress purposes. 0 K f~ ,-- 11;'1 Irq 1,7'
'J - ?e~ {2-
If you should have any questions regarding this approval, please do not 1. (',
hesitate to contact the Planning Department at (408) 866-2140 or the Public
Works Department at (408) 866-2150.
Sincerel y,
rfZt4
Tim J. Haley
Planner II
APPROVED BY THE PLANNING D
January 21, 1992
/'
Steve Piasecki, Director of Planning
APPROVED BY THE PUBUC WORKS DIRECTOR ON: January 21, 1992
Donald C. Wimberly, Director of
Enclosure:
1. Map
cc Majors Engineering
100 Park Place
Suite No. 220
San Ramon, CA 94583
Public Works Department
Fire Department
Building Department
FEB-12-'92 139:134 ID:SCLT MAIN/SUBS
TEL NO:408-971-8313
1t917 P04
SUBDIVISION C:UAlWlTBE
Order No.: DR-56886
Issued for the benefit and prot.ation of ~o County of
Santa Clara and of any City within which said sUbdivision is
located.
After an examination of the Public Records which, under the
recording laws, impart constructive notice of matters
affecting the titlo to the land hereinAfter described
CHICAGO TI'l'LI INSOlWfCB COIIPANY
hereby quaranteee, for thA benefit of said County and City, in
a sum not to exceed $1,000.00, that as shown by said recorda
the only parties baving any record title interest in said
land, and whose rd9natu~.s ai:'e necessary, under the
requirements of the Subdivision Map Act, on the cert!! !eates
consenting to the recordation of the Subdivision Map of said
land and Offering for dedication any streets, roads, avenues
and other easements for dedication of said Subdivi~ion Nap
are:
ow.KBRS: BETTE J. ORSI, sUTviving Trustee of the 19B1 ORSI
FAMILY TROST;
BETTE J. ORSI, surviving Trustee ot the ORSl PAHILY
EXEMPTION TRUST dated January 23, 1986 J
BETTE J. ORSI, 8urviv1nq Trustee ot the ORSI PAMILX
MARITAL TRUST dated January 23, 1986:
JOSEPH G. CASTELLO AND GLORIA L. CASTELLO, Trustees
of the 1982 CA..QlJ'lU.LO LIVING TRUST dated Oat.obor 14,
1982;
The Map hereinabove referred to is desoribed as: PARCBL HAP
BEING A REDIVISION OF PARCELS 1 AND 2 AS 5~OWN ON THAT CERTAIN
PARCBL MAP FILED IN THE OFFICE OF TBB SANTA CLAR~ COUNTY
RECORDER IN BOOK 606 OF MAPS AT PAGES 16 AND 11. SITUATBD IN
THE CITY OF CAMPBELL, SANTA CLARA COUNTY, CALIFORNIA.
Dat~d;
Issued by: SANTA CLARA LAND TITLE COMPANY
R-94%
SCLT MAIN/SUBS
02-12-92 09:01AM P004 #19
L/YY) . ~lLnrULi
C~J SAFEWAYINC.
47320 Kalo Rd. Fremont, CA
~) (415) 498-2060 Fax: (415) 770.9693
RECEIVED
FEB 1 2 1992
CITY OF CAMPBElL
PLANNING DEPT.
Mailing address:
Safeway Stores, Incorporated
NorCal Division-Real Estate Dept
47400 Kato Road
Fremont, CA 94538
February 10, 1992
VIA FEDERAL EXPRESS
RE: TENTATIVE PARCEL MAP
SWC WINCHESTER BOULEVARD & BUDD AVENUE
CAMPBELL, CALIFORNIA
IIle
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PlI/) . 12 1:'~~
lie Wo,Ar.
rJ Il)tI III
t;... J"Q
Mr. Tim Haley
CITY OF CAMPBELL
70 North First street
Campbell, CA 95008
Dear Mr. Haley:
Enclosed, please find an original executed copy of the
tri party Agreement which has been fully executed by the
City's Attorney, Safeway, and the other owners of Campbell
Plaza Shopping Center. The mylar for the final parcel map
is currently being prepared and will be ready for the City's
signature by Wednesday of this week. We are looking forward
to commencing construction of the supermarket as soon as
possible.
If you have any further questions or need additional
information, please do not hesitate to contact me.
Sincerely,
SAFEWAY INC.
,j fi~.. M . ,CiA.; -; /J/'
)1:~T~~
Nancy A. Riddle
Area Real Estate Manager
NR:v
Encl.
cc: Richard Costello wi original enclosure
Bill Herington wiatt.
David Zylstra
Al Shaghaghi wiatt.
AGREEMENT
THIS AGREEMENT ("Agreement") is made as of 3eJ"val"Lj
j , 19q~ by and between: The City of Campbell, a
Municipalcorporation (the "City") whose address is 70 North
First Street, Campbell, California 95008, and 1982 Castello
Living Trust and 1981 Orsi Family Trust and Orsi Family
Exemptions Trust dated January 23, 1986, and orsi Family
Marital Trust collectively herein referred to as "Castello",
whose address is Campbell Plaza, 152 Newell Avenue, Los
Gatos, California 95030, Campbell Plaza Development
Company, (herein referred to as CPDA) a Limited Partnership,
whose address is 152 Newell Avenue, Los Gatos, California
95030, and Safeway Inc., a Delaware corporation, herein
referred to as "Safeway", whose address is: Real Estate
Department, Safeway Inc., 47400 Kato Road, Fremont,
California 94538, with reference to the following:
WHEREAS, Castello owns certain real property together
with all improvements thereon, in the City of Campbell, the
County of Santa Clara, State of California, labelled Parcels
#1, #2, and #3 as outlined in RED on the Exhibit "A" site
plan attached hereto and made a part hereof; and
WHEREAS, CPDA owns certain real property, together with
all improvements thereon, in the City of Campbell, County of
Santa Clara, State of California, labelled Parcels #4, #5,
and #6, as outlined in BLUE on Exhibit "A"; and
WHEREAS, Safeway is the leasehold owner of Parcel #1
pursuant to a ground lease between Castello and Safeway; and
WHEREAS, Parcels #1 through #6 together are herein
referred to as "The Shopping Center"; and
WHEREAS, "Owner", "Owners" shall mean and refer to fee
or leasehold owners in possession and control of each parcel
from time-to-time; and
WHEREAS, Parcel #1, #2, and #3 are the subject of a
certain parcel map to be recorded prior to or concurrently
herewith official records of Santa Clara County; and
WHEREAS, Parcels #4 and #5 and #6 are lease lines in
accordance with the Santa Clara County Assessors Office and
are not the actual recorded parcels in the official records
of Santa Clara County; and
WHEREAS, the Owners have applied for and obtained the
approval of the city of Campbell, subject to certain
conditions and requirements, to remodel the existing
shopping center and construct a new Safeway store; said
approval having been given pursuant to the action of the
Planning commission of the city of Campbell on February 12,
1991 as adopted Resolution Number 2729 ("Resolution"); and
WHEREAS, said Resolution is subject to Conditions of
Approval which include Condition #21 "Easements for
Egress/Ingress and Parking ("Easements") wherein "The
applicant shall either record vehicular and pedestrian
ingress/egress easements on and over the respective parcels
involved in the subject application or demonstrate that
satisfactory easements currently exist. If any of the
parcels are currently under one ownership, the easements
shall be placed in escrow and recorded simultaneously with
any sale or transfer of ownership of any of the affected
parcels. Alternatively, the applicant may consolidate any
or all of the existing separate parcels to eliminate or
simplify the easements required under this condition.
Provide evidence of reciprocal parking easements where
necessary to ensure that all independent parcels meet the
parking standards of the Campbell Municipal Code; and
WHEREAS, it is not the desire of the owners to
consolidate the existing separate parcels; and
WHEREAS, Parcel #1, #2 and #3 require use of parking on
Parcels #4, #5, and #6 to meet the parking standards of the
Campbell Municipal Code; and
WHEREAS, mutual easements are required for vehicular
and pedestrian ingress/egress on and over the respective
parcels; and
WHEREAS, the owners have entered into an agreement
known as "Easements with Covenants and Restrictions
Affecting Land (ECR)" to establish easements and reciprocal
parking; and
WHEREAS, the ECR establishes building area and future
building area as shown on Exhibit "A"; and
WHEREAS, no future building area is allocated on
Parcels #2 through #6; and
WHEREAS, the City has approved the development as shown
on Exhibit "A"; and
WHEREAS, the City will not allow additional future
building area in the Shopping Center without the provision
of additional parking to preserve the allocation of parking;
and
WHEREAS, the city requires evidence of reciprocal
parking easements where necessary to ensure that all
independent parcels meet the parking standards of the
Campbell Municipal Code to survive the ECR should the Owners
decide to terminate the ECR;
NOW, THEREFORE, the parties hereto agree as follows:
1. The Owners shall not construct any buildings on
Parcels #1, #2, #3, #4, #5, or #6 except within the building
area. All buildings shall be one-story and shall not exceed
thirty feet (30') in height (but may include mezzanines).
2. The "Common Area" shall be all of Parcels #1, #2,
#3, #4, #5, and #6 except building area. Each Owner, as
grantor, hereby grants to the other Owners for the benefit
of said other Owners, their customers, invitees and
employees, a "Non-exclusive Easement", for roadways,
walkways, ingress and egress, the parking of motor vehicles,
and the use of facilities installed for the comfort and
convenience of customers, invitees and employees on the
common area of the grantor's parcel.
3. The Owners shall not change this Non-exclusive
Easement without the approval of the City.
4. It is the intention of the parties hereto that
their covenants herein contained shall be construed to be
covenants running with the land, and shall be binding on the
heirs, assigns, and successors in interest of the parties.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement the date first hereinabove written.
CITY OF CAMPBELL
,~
SAFEWAY INC.
(Safeway)
1981 ORSI FAMILY TRUST
BY~~A ,
Be e . r , rus~ee
ORSI FAMILY EXEMPTION TRUST dated January 23, 1986.
~~t~~~~t'ee
ORSI FAMILY MARITAL TRUST dated January 23, 1986.
By 4li?~~ ..
Bette J. Or , ustee
1982 CASTELLO LIVING TRUST dated October 14, 1982.
~Jlsik~T~ee
i 1 . <tJ /11 J1;,'
By _~1.1: ,l L(iaA,UJ
Gloria L. Castello, Trustee
(Castello)
CAMPBELL PLAZA DEVELOPMENT COMPANY
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By
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(CPDA)
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S'mEEr FASEMENI'
We CAMPBELL PlAZA Dt.VEU>FMENr CD. a
limited partnership do hereby grant to
the City of ~ll, a DI.Dli.cipal
. Corporation in the COUnty of santa
Clara, state of California an
easement for sb.eet p.JrpOSeS described
as:
All that certain real property situate in the City of Call1[tell,
COUnty of santa Clara, state of California, described as folows:
A portion of that certain parcel of larxi OCIlVeyed by deed am filed
for record in Book 7427 of Official Recxn:ds at page 699, Sana Clara
COlmty Recxn:ds, oore particularly described as follows:
BEX;J::NNIH; at a point an the westerly 00tJn1ary of that certain parcel
of lam conveyed to the City of C;n,p:ell am filed in Book 6623 of
Official Records at page 245, santa Clara COUnty Records, asid point
bears South 00 18' 20" East, 310.47 feet iran the northwesterly
comer of said parcel CXJnVeyed to the City of C'Alli~ll:
'!HENCE South 890 45' 00" West, along the southerly 00tJn1ary of said
parcel of lam described in Book 7427 of Official Records at page
699, a distance of 12.00 feet:
'!HENCE North 00 18' 20" West, parallel to the westerly 00tJn1ary of
said parcel conveyed to the City of ~ll, a distance of 79.14
feet:
'!HENCE along a tangent curve to the right, oancave easterly, with a
radius of 78.00 feet, through a oeJttJ::cli ~le of 220 36' 57" an arc
length of 30.79 feet:
'!HENCE along a ~ent reverse CUIVe to the left, oancave westerly,
with a radius of 78.00 feet, through a OE!lIUal ~le of 220 36' 57"
an arc length of 30.79 feet to said westerly 00tJn1ary:
'!HENCE South 00 18' 20" East, along last said 00tJn1ary, a distance of
139.14 feet to the Point of Beg~:
Contai..ni.n;J an area of 1,309 square feet, JOOre or less.
WI'1NESS rrry ham this ~day of ;Z ~/- , 1991:
Q,mer: caJnPJell Plaza Developnent Co., a limited partnership
a~~'
= Partner
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STATE OF CALIFORNIA
County of - _ Sant.a- ~lar.a- _ _ _ _ _ _ _ _ _ _ _
}~
On _ _~oY:_ ?~,_ .1~~~ _ _ _ _ _ _ _ _ _ _ _ _ _, before me, Patricia M McClure
- - - - - - - - (Naine of N~tillymtle) - - - - - - - - - - - - - -
personally appeared _ _ _ _J:.o_sp~l1 _G. CqS_t~!!Q _*::-J;*..*_*i<"'5~*..*_ _ , personally known to me w<<~~~
){tus.~~g~ce) to be the person(s) whose name(s) is/are subscribed to the within instrument and ac-
knowledged to me that he/~y executed the same in his~itkmr authorized capacity(ies) and that by h~ir
signature(s) 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.
~~~~.:;. .~A~~/...........
(Signature)
OFFICIAL SEAL
PATRICIA M. McCLURE
NOTARY PUBLIC. C,\cltOP.<<.^
SANTA CLARA COUNT'\.,
My com""s"on expires feb, 16, .,92
030-04242 (Rev. 6/91)
TO:
City Clerk
,
PUBLIC WORKS FILE NO. R I n
~-3
35-3396
ACCT. ITEM AMOUNT RECEIPT NO.
Please collect & receipt
for the following monies:
_PIYI ~J-O &>
3372
3521
3521
3521
Project Revenue (specify project)
Public Works Encroachment Permit Fees:
Application Fee
Plan Check Deposit
Faithful Performance (Cash) Deposit
$
($105)
($500)
(100% of)
(ENGR. EST)
(4%of FPB)
($500 min.)
Other Cash Deposit (specify)
3372
3373
3373
3373
3370
3380
3395
3510
Plan Check & Inspection Fee ($0 - $100,00010%;
$100,000 - $500,0009%; $500,000 and above 7%; $100 min.)
Project Plans & Specifications
General Conditions, Standard Provisions & Details ($10 or $1/page)
"No Parking" signs ($1/ea. or $25/100)
Copies of Engineering Maps & Plans ($.50/sq.ft.)
Final Parcel Map Filing Fee ($475 + $21/ per lot)
Final Tract Map Filing Fee ($525 + $21/ per lot)
Lot Line Adjustment Fee/Certificate of Compliance ($420)
Vacation of Public Streets and Easements ($500)
Assessment Segregation or Reapportionment
First Split ($500)
Each Additional Lot ($150)
Storm Drainage Area Fee per Acre (R-1, $1,875;
Multi-Res., $2,060; all other, $2,250)
Public Works Special Projects
Park Dedication In-lieu Fee
Postage
~~
q
I'
NAME OF APPLICANT ~Q rs F-.n8\ nt: e.ll't'\j /
ADDRESS le>6 p~\'h Pll\ce Sa'l 'Kl\ \1"\D r)
FOR ~ 22-e;; I' / c~
CITY CLERK RECEIVED BY ~
ONLY DATE J /;L.~ ~
TOTAL
~
$ S3[[--
~'"2.P~2123
ZIP ~ 115"83
I n c..,
fA
PHONE
S'lREE1' FASEMENr
O. (!aJ,
We, BEI'I'lf <JiI~ OOSI , surviving Trostee
of the 1981 CESI FAMILY 'lRDST, as to
an urr:ii. vided 25% interest; BEITE J.
CR;I survi vin;J Trustee of the CESI
FAMILY EXEHPl'ICN 'lRlJSr dated January
23, 1986 as to an urni vided 11.25%
interest; am BElTE J. CR;I , surviving
Trustee of the OOSI FAMILY K\RITAL 'lRUST
dated January 23, 1986, as to an urni vided
13.75% interest, am JOSEPH G. CASTELID
AND GU:IUA L. CASTELID, Trustees of the
1982 CASTELID LIVING 'lHJsr DATED O::tober
14, 1982 as to an urni vided 50% interest,
do herel:1j grant to the City of Q=lllttlell, a
Mlmicipal Corporation in the ca.mty of santa
Clara, state of California, for meet
pJqXJSeS the following:
All that certain real property situate in the City of <:ampJell, Colmty
of santa Clara, state of California, described as follows:
A p:>rtion of Parcel 1 am Parcel 2, as slnm at that Parcel Map filed
for record in the office of the Recorder of the ca.mty of santa Clara,
state of California on O::tober 4, 1989, in Book 606 of Map;, at pages
16 am 17, DDre particularly described as follows:
CUlIa1dlCing at the southeast oozner of said Parcell;
'!HENCE North 000 18' 20" west, alatg the east line of said Parcell, a
distance of 185.17 feet to the True Point of BegiImi.rg;
'!HENCE North 000 18' 20" west, alcn::J said east line, a distance of
266.89 feet;
'!HENCE SOIlt:h 050 34' 50" west 3.43 feet to the begi..nni.rg of a curve to
the right, c::alCave westerly, having a radius of 68.00 feet;
'!HENCE alatg said curve through a cellLu:U. argle of 160 43' 51" an arc
length of 19.86 feet to a point of reverse curvature;
'!HENCE alatg said reverse curve to the left having a radius of 88.00
feet, through a central angle of 220 37' 01" an arc length of 34.74
feet;
'lHENCE South 000 18' 20',' Fast, 154.03 feet to the begirming of a curve
to the left having a radius of 88.00 feet;
'!HENCE along said curve through a cettLLc:tl. an:jle of 220 37' 01" an arc
lergth of 34.74 feet to a point of reverse curvature;
'!HENCE al~ said reverse curve to the right, oa'lCave westerly, havirg
a radius of 68.00 feet, through a central an:jle of 160 43' 51" an arc
lergth of 19.86 feet;
'!HENCE South 060 11' 30" Fast a distance of 3.43 feet to the True
Point of Begi.nnirg:
containing an area of 2,597 square feet, mre of less.
witness our harxis this (?<'l.:!. day of ~ to , 1991:
,,&?'1':;: St, - {(!::, 4-<..., .
Bette--"J. Orsi, Trustee
1981 Orsi Family Trost
/&ao 9t!!~-4-< '
Bette J. Orsi, Trustee
Orsi Family Exemption Trost
~tj;j:2;;?;i3'
Ji (. Castello, Trustee
~/ 1982 diStello Living Trost
&1ZZ-, 2 -LY-C4-<.
Bette J. Orsi, Trustee
Orsi Family Marital Trust
ilic-,~ ,/ C~
Gloria L. Castello, Trustee
1982 castello Living Trost
U
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Parcel
STATE OF CAUFORNIA
County of _ Sa.n.t:a- Gl-a.;ra" " " _ " " _ " _ _ _ _ _
} ss.
On November 22, 1991 , before me, Patricia M McClure
- - - - " " - - - " - -Joseph tjCas-tella, Gloria L - Cas"tel1a (Name cifNot8r:Yrnile) - - - - - - - - - - - - - -
personally appeared _ ~l!.d_ ~~~tJ_ 9~s}~~~-:,*_*~~,:*_*~~~-:,*_*~~,:*, fJR5mIlH~lOCIIAe (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s):lis/are subscribed to the within instrument and ac-
knowledged to me that ~they executed the same in:lbi9&cmltheir authorized capacity(ies) and that ~/their
signature(s) 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. ." ~,..;~1~tC$'~c:~
/1 ~ 0 F Fie I A L S E {. L i
+'~, !I\"'w"r.j"'l ~
/7' ti"J,...,,~,' .~,. P.1\TRiC,t, ,:i. :.;cv, L<;~,t:. ,'~
$f _ -. " , r~":1-~}~)" fl0r.~RY n0suc ~;',L\~C':::I~ r~
-,,' ~ ,- C"/", ) ~('<~~,~:":r~:;)/ SA~'Jir\ CLARA COL;-HY ~:
/ /, . '-,-. ,'Jl" . r' -. 'C'"
'vt2'c"C'(!"..:z.:... }( a LA~ ,'.:'<.~-",,, Mycc:U'e;loc-.:.:,c;,,,, 1".',,1 J
(Signature)- - - - - - - " - - - - - - - - - - - " - - - - - - K~i~5.,~~.ei~~~;:~:..~j
(Seal)
030-04242 (Rev. 6191)
(
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Recording Requested By and
When Recorded Return To:
Real Estate Law Division
Safeway Inc.
Oakland, CA 94660
EASEMENTS WITH
COVENANTS AND RESTRICfIONS AFFECfING LAND (ECR)
THIS AGREEMENT ("Agreement") made this day of , 1991, between
SAFEWAY INC., a Delaware corporation ("Safeway"), BE1TE J. ORSI, surviving Trustee
of the 1981 ORSI FAMILY TRUST, as to an undivided 25% interest; BETfE J. ORSI,
surviving Trustee of the ORSI FAMILY EXEMPTION TRUST dated January 23, 1986, as
to an undivided 11.25% interest and BETfE J. ORSI, surviving Trustee of the ORSI
FAMILY MARITAL TRUST dated January 23, 1986, as to an undivided 13.75% interest,
and JOSEPH G. CASTELLO and GLORIA L. CASTELLO, Trustees of the 1982
CASTELLO LMNG TRUST dated October 14, 1982, as to an undivided 50% interest
(collectively "Castello") and CAMPBELL PLAZA DEVELOPMENT CO., a limited
partnership ("Campbell").
A. Parcel I Ownership. Castello is the fee owner of Parcel I as shown on the plan
attached hereto as Exhibit "A" hereof, and which is more particularly described as Parcel I
on Exhibit "B" hereof. Safeway is the leasehold owner of Parcel I pursuant to a ground
lease between Castello and Safeway. " farr-c-l !1..!-
B. Parcel II Ownership. Castello is the fee owner of Parcel II as shown on Exhibit "A"
and which is more particularly described on Exhibit "B".
Iv
C. Parcel III Ownership. Campbell is the fee owner of Parcel III as shown on Exhibit
"A" and which is more particularly described on Exhibit "B".
D. Ownership Definition. "Owner", '~Owners" or "owned" as used in this Agreement
shall mean and refer to the fee or leasehold owners in possession and control of each
parcel from time to time. At the time of recording this Agreement, Safeway is the Owner
of Parcel, Castello is the Owner of Parcel II, and Campbell is the Owner of Parcel III.
E. Purpose. Safeway, Castello and Campbell desire that Parcels I, II and III be
developed in conjunction with each other pursuant to a general plan of improvement to
form a commercial shopping center (sometimes hereinafter referred to as the "Shopping
Center") and desire Parcels I, II and III be subject to the easements an the covenants,
conditions and restrictions hereinafter set forth.
AGREEMENT
In consideration that the following encumbrances shall be binding upon the parties hereto
and shall attach to and run with Parcels I, II and III, and shall be for the benefit of and
shall be limitations upon all future Owners of Parcels I, II and III and that all easement
herein set forth shall be appurtenant to the dominant estate, and in consideration of the
promises, covenants, condItions, restrictions, easements and encumbrances contained
herein, Safeway, Castello and Campbell do hereby agree as follows:
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1293ecr.doc SCHEDULE D
Page 1 of 13 Store No. 1293 Campbell, CA
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TERMS
1. Building/Common Area Definition.
(a) Building Area. "Building Area" as used herein shall mean those portions of
Parcel I, Parcel II, and parcel III shown on Exhibit "A" as "Building Area" (and
"Future Building Area").
(b) Common Area. "Common Area" shall be all of Parcels I, II and III except
Building Area.
( c) Conversion to Common Area. Those portions of the Building Area on each
parcel which are not from time to time used or cannot under the terms of this
Agreement (including by virtue of Paragraph 4(a)) be used for buildings shall
become part of the Common Area for the uses permitted hereunder and shall be
improved, kept and maintained as provided in this Agreement. An area converted
to Common Area may be converted back to Building Area by the development as
Building Area, if at the time of conversion back to Building Area it meets the
requirements of this Agreement (including the provisions of Paragraph 4(a)).
2. Buildings.
(a) Use. The buildings shall be for commercial purposes of the type usually
found in a retail shopping center. The tenants occupying the buildin~s shall be
primarily retail and service tenants of the type normally associated WIth a retail
shopping center.
(b) Separation of Uses. Castello and Campbell recognize Safeway's customers'
need for adequate parkin~ facilities in close proximity to its Parcel I premises, and
the importance of protectmg such parking facilities against unreasonable or undue
encroachment which is likely to result from long-term parking by patrons or
employees of certain types of business establishments. Castello and Campbell
further recognize Safeway's interest in not having tenants occupying space in close
proximity to the Parcel I premisos who create or cause excessive noise, litter or
odor. To safeguard Safeway's interest in a clean, quiet environment free of
obnoxious odors and to insure adequate parking for its customers, Castello and
Campbell covenant and agree that, except as hereinafter provided, within three
hundred feet (300') of any exterior building wall of any Parcel I building they shall
not permit the operation of any restaurant (fastfood or sit-down), nor places of
instruction and that they shall not permit the use or operation of any portion of
Parcels II and III for the purposes of any entertainment or recreational facility. As
used herein, "entertainment or recreational facility" includes, but is not limited to, a
bowling alley, skating rink, theater, pool hall, billiard room, game parlor, health or
aerobic spa or studio, gym, massage parlor, adult book store, tavern, cocktail lounge,
night club, dance hall, any facility for the on-premises consumption of alcoholic
beverages or other place of public or private amusement. As an exception to the
foregoing, the following uses shall be allowed:
(1) One restaurant not exceeding (~ ~()(;)) square feet in
size may be located in the area labeled "Restaurant" on Exhibit "A"; and
(2) One or more theaters may be located in the areas labeled "Theater"
on Exhibit "A", provided the combined total of the size of the theaters does
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1293ecr.doc SCHEDULE D
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not exceed I~ JIJO ( ) square feet and the combined total
of seating for customers of the theaters does not exceed /c>Lt>D ( )
seats. -
(c) Alcoholic Beverages. Safeway shall have the non-exclusive right to en~age in
the sale of beer and wine for off-premises consumption. Safeway, together With one
(1) other store in the Shopping Center, shall have the exclusive right to engage in
the sale of alcoholic beverages permitted by an off-sale general license under the
laws of the State of California. Castello and Campbell covenant not to permit any
store in the Shopping Center, other than Safeway's store on Parcel I and one (1)
other store, to be devoted to the sale of alcoholic beverages permitted by an off-sale
general license under the laws of the State of California.
(d) Bank Restriction. Castello is the lessor and Bank of the West ("Bank") is the
lessee under a lease ("Bank Lease") with respect to certain space within the
Shopping Center designated on Exhibit "A" as "Bank", which Bank Lease contains
the following restriction which is hereby made a part of this Agreement:
"Lessor agrees that throughout the term of this lease, and any
extension thereof, lessee shall have the sole and exclusive
location in said Campbell Plaza Shopping Center including any
subseguent enlargement of the same, for utilization as a bank,
includmg a savings bank; and lessor agrees that it shall have no
right to lease or permit the utilization of any other location in
said Campbell Plaza Shopping Center, including any
subsequent enlargement of the same, for a banking business,
including a savings bank. As an exception to the foregoing, any
grocery supermarket operation in excess of thirty five thousand
(35,000) square feet in size in Campbell Plaza Shopping Center
may (i) devote--up-to ~e.-thousand (1,000) square feet of its
building space for use as a bauliug busiut:ss, induding a
savine" h~nk) proviilp.il "l1rh c;p(lce i" l()(,;:Jted ent~~ely ~it~in the
b1)il(hne unto no direct aceess from the eX!"l iUI of such
building; ~nil (iij-operate automatic teller machines (ATMs)
within the interior of its building as part of its operation."
The foregoing restrictive covenant is hereby imposed against the entire Shopping
Center, and such restrictive covenant shall run in favor of, and a breach thereof shall
be actionable by, Castello and Bank, but only so long as the Bank Lease is in full
force and effect, and this restrictive covenant shall not run in favor of, nor shall a
breach thereof be actionable by any other tenant of, Castello or any Owner other
than Castello. Upon the expiration or earlier termination of the Bank Lease, such
restrictive covenant shall terminate and be of no further force or effect.
(e) Location. No building shall be constructed on Parcels I, II or III except
within the Building Area. Canopies may encroach from the Building Area over the
Common Area provided the canopies do not interfere with the use of the Common
Area.
(f) Design and Construction. The buildings shall be designed so that the
exterior elevation of each will be architecturally and aesthetically compatible and so
that the buildings' wall footings shall not encroach from one parcel onto the other
parcel. The design and construction shall be in conformity with sound architectural
and engineering standards and the construction shall be first quality. All buildings
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1293ecr.doc SCHEDULE D
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shall be one story and shall not exceed thirty feet (30') in height (but may include
mezzanines).
(g) Easement. In the event building wall footings encroach from one parcel onto
the other parcel, despite efforts to avoid that occurrence, the party onto whose
parcel the footings encroach shall cooperate in granting an encroachment permit or
easement to the party whose building wall footing encroach.
(h) Fire Protection. Any building constructed on Parcel I will be sprinklered.
Castello will provide that any building constructed on Parcel II, immediately
adjacent to any Parcel I building, will be constructed, maintained and used in a
manner which will preserve the sprinklered insurance rate obtained on the Parcel I
building.
3. Common Area Use.
(a) Grant of Easements. Each party, as grantor, hereby grants to the other
parties for the benefit of said other parties, their customers, invitees and employees,
a nonexclusive easement for roadways, walkways. ingress and egress, the parking of
motor vehicles and use of facilities installed for the comfort and convenience of
customers, invitees and employees on the Common Area of the grantor's parcel.
(b) Uses. Subject to existing easements of record and subject to the provisions of
subparagraph (c) below, the Common Area shall be used for roadways, walkways,
ingress and egress, parkin~ of motor vehicles, loading and unloading of commercial
and other vehicles, for dnveway purposes, and for the comfort and convenience of
customers, invitees and employees of all businesses and occupants of the buildings
constructed on the Building Area defined above.
(c) Outside Merchandising. The Parcel I Owner may use the Common Area up
to a depth of ten feet (10') immediately adjacent to the building on Parcel I, to the
extent allowed by law, to display merchandise being sold from said building and for
the display of seasonal supplies such as peat moss, fertilizer, plants, garden tools,
etc., as well as for the placement of baskarts, provided that such uses do not
unreasonably interfere WIth pedestrian traffic and are maintained in a neat and
orderly condition. In addition, the Parcel I Owner may utilize the area cross-
hatched on Exhibit "A" for the display and sale of seasonal merchandise for eight (8)
additional periods per calendar year which shall not exceed fifteen (15) days each.
(d) No Barrier. No walls, fences, or barriers of any kind shall be constructed or
maintained on the Common Area, or any portion thereof, by any party which shall
prevent or impair the use or exercise of any of the easements granted herein, or the
free access and movement, including without limitation, pedestrians and vehicular
traffic between the various parcels; provided, however, reasonable traffic controls as
may be necessary to guide and control the orderly flow of traffic may be installed so
long as access driveways to the parking areas in the Common Area are not closed or
blocked. The only exceptions to this provision shall be (1) for changes to the
Building Area and Common Area permitted by this Agreement, and (2) for
incidental encroachment upon the Common Area which may occur as a result of the
use of the ladders, scaffoldmg, storefront barricades and similar facilities resulting in
temporary obstruction of the Common Area, all of which are permitted hereunder
so long as their use is kept within reasonable requirements of construction work
being expeditiously pursued.
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(e) Limitations on Use.
(1) Customers. Customers and invitees shall not be permitted to park on
the Common Area except while shopping or transacting business on Parcels
I, II and III.
(2) Employees. Employees shall not be permitted to park on the
Common Area, except in areas designated as "employee parking areas." The
parties hereto may from time to time mutually designate and approve
"employee parking area", however, if they do not, each party may designate
"employee parking areas" on its own parcel.
(3) General. All of the uses permitted within the Common Area shall be
used with reason and judgment so as not to interfere with the primary
purpose of the Common Area which is to provide for parking for the
customers, invitees and employees of those businesses conducted within the
Building Area and for the servicing and supplying of such businesses.
Persons using the Common Area in accordance with this Agreement shall
not be charged any fee for such use.
(4) Nuisance. Each Owner shall not do or permit anything to be done on
its Parcel which will in any way obstruct or interfere with the ri~hts provided
in this Agreement of occupants of other portions of the Shoppmg Center or
injure or annoy such occupants.
(5) Hazardous Materials. Indemnity. No use shall be made of any part of
the Shopping Center or business conducted on any Parcel which will violate
or not comply with all requirements of all governmental authorities having
jurisdiction over the Shopping Center relating to pollution control, hazardous
or toxic wastes, substances or constituents (including hydrocarbonic
substances) or any other environmental or ecological matters and each
Owner shall diligently take all actions necessary to correct any such violation
on such Owner's Parcel. Each Owner shall indemnify, defend and hold the
other Owners harmless from all causes of action, claims, judgments, damage,
liability, costs and expenses {including reasonable attorneys' fees) incurred by
such indemnified party as a result of or in connection with the idemnitor's
failure to comply with the provisions of the paragraph.
(f) Utility and Service Easements. The parties shall cooperate in the granting of
appropriate and proper easements for the installation, repair and replacement of
storm drains, sewers, utilities and other proper services necessary for the orderly
develop'ment and operation of the Common Area and buildings to be erected upon
the Budding Area. The parties will use their best effort to cause the installation of
such utility and service lines prior to paving of the Common Area.
4. Common Area Development.
(a) Common Area to Building Area Ratio. The parties agree that at all times
there shall be independently maintained on each parcel or further subdivision
thereof, not less than three (3) square feet of developed Common Area for each one
(1) square foot of total building floor area, including all basements and mezzanines.
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1293ecr.doc SCHEDULE D
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(b) Development Timing. When any building is constructed within the Building
Area on a parcel, the Common Area on that parcel shall be developed in
accordance with Exhibit "A" at the expense of the Owner of said parcel.
5. Common Area Maintenance.
(a) Standards. Each Owner, at its sole cost, except as hereinafter provided, shall
maintain the Common Area on its respective parcel in good condition and repair.
The ~aintenance is to include. without limiting the generality of the foregoing, the
followmg:
(1) Maintaining the surfaces in a level, smooth and evenly covered
condition with the type of surfacing material originally installed or such
substitute as shall in all respects be equal in quality, use and durability.
(2) Removing all papers, debris, filth and refuse and thoroughly sweeping
the area to the extent reasonably necessary to keep the area in a clean and
orderly condition, and free of snow and ice.
(3) Placing, keeping in repair and replacing any necessary appropriate
directional signs, markers and lines.
(4) Operating, keeping in repair and replacing, where necessary, such
artificial lighting facilities as shall be reasonably required.
(5) Maintaining all perimeter walls in a good condition and state of
repair; and
(6) Maintaining all landscaped areas and making such replacements of
shrubs and other landscaping as is necessary.
(b) Maintenance Director.
(1) The party maintaining the entire Common Area on Parcels I, II and
III is hereinafter referred to as the "Maintenance Director". Castello shall
initially assume the role of Maintenance Director and shall maintain the
entire Common Area for Parcels I, II and III in accordance with the
standards set forth in subparagraph (a) above.
(2) As a part of its maintenance obligations, the Maintenance Director
shall obtain and maintain general liability insurance insuring all Owners who
now or hereafter own or hold portions of the Shopping Center, provided the
Maintenance Director is notified in writing of such interest, against claims
for personal injury, death or property damage occurring in, upon or about the
Common Area of Parcels I, II and II. Such insurance shall be written with a
reputable insurance carrier licensed to do business in the State of California
and which has a general policy holder's rating of not less than B + and a
financial rating of X or better as rated in the most current available "Best I
Insurance Reports". All such insurance shall be primary coverage naming all
Owners as additional insured. The limits of liability of all such insurance
shall be not less than Two Million Dollars ($2,000,000.00) combined single
limit coverage for personal injury, death and/or property damage arising out
of any single occurrence. The limits of liability set forth in the preceding
sentence shall be adjusted at five (5) year intervals by agreement of the
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Owners of Parcels I, II and III or in the absence of agreement, then by
increases in the Consumer Price Index. all Urban Consumers, U.S. City
Average, All Items (the "Index") as of the date of the adjustment over the
Index as of the first day of the preceding five year period. All Owners shall
be provided with certificates of insurance. certifying that such insurance is in
full force and effect and shall not be cancelled or the coverage reduced
without thirty (30) days prior written notice to the Owners.
(3) The Maintenance Director is hereby authorized to contract for and
pay for, on behalf of the Owners, all of the items enumerated as maintenance
expense in subparagraphs (1) and (2) above plus a management fee of ten
percent (10%) of all expenses (which shall exclude all items in excess of Two
Thousand Dollars ($2,000.00), all insurance premiums and utility fees, and
any management fee paid by Maintenance Director to a third party to
perform all or a portion of Maintenance Director's obligations hereunder
with respect to maintenance of the Common Area) to cover administration
costs. The Maintenance Director shall maintain the Common Area on a
non-profit basis with an end to keeping such expenses at a reasonable
minimum. Any capital expense items must first be approved in writing by the
Owners of Parcels I, 11 and Ill. Such right of approval shall not be
unreasonably withheld.
In addition, the Maintenance Director shall not incur any single expenditure
in the maintenance of the Common area in excess of Two Thousand Dollars
($2,000.00) without the prior consent of the Owners of Parcels I, II and III.
The Two Thousand Dollar ($2,000.00) limitation set forth above shall be
adjusted at five (5) year intervals by agreement of the Owners of Parcels I, II
and III or in the absence of agreement, then by increases in the Index as of
the date of the adjustment over the Index as of the first day of the preceding
five year period.
(4) The Owners shall be billed monthly for their prorata share of repairs
and maintenance costs. Parcel I Owner's reimbursement obligation
hereunder shall commence when it opens for business on Parcel I. Said
Owners agree to reimburse the Maintenance Director for their prorata share
of such expenses within thirty (30) days of receipt of billing. Included in each
billing shall b a statement summarizing in reasonable detail the costs
incurred and an invoice stating the amount due. Also included in the billing
shall be copies of all invoices, bills, receipts and other evidence to support
the summary statement. The Maintenance Director shall at all times
maintain complete and accurate books of account with respect to the
operation, mamtenance and insuring of the Common Area which books of
account shall be made available to the Owners at any time during regular
business hours. Each Owner shall pay to the Maintenance Director its
prorata share to be determined by the ratio that the total square footage of
the Building Area of such Owner's Parcel as shown on Exhibit "A" bears to
the total square footage of the Building Area in the Shopping Center as
shown on Exhibit "A".
(5) Any Owner serving as Maintenance Director, after it has served in
that capacity for at least two (2) years, shall have the right, at its sole
discretion and upon sixty (60) days prior written notice to the other Owners,
to voluntarily cease serving in the capacity as Maintenance Director. The
successor Maintenance Director shall be determined by the vote of any two
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1293ecr.doc SCHEDULE D
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(2) of the three (3) Owners and shall assume the role of Maintenance
Director, together with the duties and obligations of the Maintenance
Director, upon the expiration of said sixty (60) day period. Any Owner which
is not the then current Maintenance Director shall have the right at any time
to assume the role of Maintenance Director provided it can do so in keeping
with the standards required hereunder and at a cost less than the then
current Maintenance Director's cost. If such Owner elects to assume the role
of Maintenance Director, it shall give the then current Maintenance Director
and the other Owner \\Titten notice of such election and shall assume the
role of Maintenance Director, together with the duties and obligations of the
Maintenance Director, thirty (30) days after the date of such notice. If at any
time no Owner is serving as the Maintenance Director, each Owner shall be
required to maintain and insure the Common Area within its Parcel in
accordance with the standards set forth in Paragraphs (a) and (b)(2) above.
6. Real Property Taxes and Assessments. All real property taxes and assessments
relating to any portion of Parcels I, II and III, or improvements thereon, or the ownership
thereof, shall be paid prior to delinquency by the respective Owners thereof.
7. Signs. Except for directional signs for guidance upon the Common Area, no si~ns
shall be located on the Common Area of the Shopping Center except one monument SIgn
at the location shown on Exhibit "A", which sign shall identify only the names of the
Shopping Center and the occupant of Parcell. Such sign shall be maintained as part of the
Common Area maintenance by the Maintenance Director. No other signs shall be located
on the Common Area without the consent of the Owners of Parcels I, II and III and no
signs shall obstruct the ingress and egress shown on Exhibit "A".
8. Indemnification/Insurance.
(a) Building Area Indemnification and Insurance. Each Owner shall indemnify,
defend and hold the other Owners harmless from and against any and all liability,
damage, expense (including reasonable attorneys' fees), causes of action, suits,
claims, or judgments (together "claims") arising from injury to person or property
and occurring in the Building Area located on the indemnifying Owner's parcel,
except claims resulting from the sole negligence or willful act or omission of the
otherwise indemnified Owner, its agents, contractors or employees. Each Owner
shall provide general liability insurance covering the Building Area on its Parcel
affording protection to itself and the other Owners. Such insurance shall be written
with a reputable insurance carrier licensed to do business in the State of California
and which has a general policy holder's rating of not less than B + and a financial
rating of X or better as rated in the most current available "Best Insurance Reports".
All such insurance shall be primary coverage naming all other Owners as additional
insureds. The limits of liability of all such insurance shall be not less than Two
Million Dollars ($2,000,000.00) combined single limit coverage for personal injury,
death and/or property damage arising out of any sin~le occurrence. The limits of
liability set forth in the preceding sentence shall be adjusted at five (5) year intervals
to be not less than the amount provided under Paragraph 5 (b )(2) above. All
Owners shall be provided with certificates of insurance, certifying that such
insurance is in full force and effect and shall no be cancelled or the coverage
reduced without thirty (30) days prior written notice to the Owners.
(b) Mainten"ance Director Indemnity. The Maintenance Director shall
indemnify, defend and hold the Owners harmless from and against any and all
liability, damage, expense (including reasonable attorneys' fees), causes of action,
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suits, claims or judgments (together "claims") ansmg from injury to person or
property as shall occur due to the performance or failure to perform by the
Mamtenance Director of its duties or obligations with respect to the maintenance of
the Common Area, except claims resulting from the sole negligence or willful act or
omission of the otherwise indemnified Owner, its agents, contractors or employees.
(c) Waiver of Subrogation. Each Owner hereby releases and waives its right to
recovery against the other Ov..ners and the officer, directors, agents, representatives
and employees of the other Owners from any claims for injury to person, loss of life,
or damage to property caused or occasioned by any peril or risk insured against
under the insurance policies required to be carried by the Owners hereunder and in
force at the time of any such mjury, loss or damage. The foregoing release and
waiver of subrogation shall be operative only so long as the same shall not preclude
any Owner from obtaining insurance, and shall have no effect to the extent that it
diminishes, reduces or impairs the liability of any insurer or the scope of any
coverage under any policy of insurance required hereunder, or increases the cost of
any such insurance, provided however, if the only reason that such release and
waiver of subrogation shall have no effect is that it increases the cost of such
insurance, then upon written demand and payment by any other Owner of the
increase in the cost of such insurance, the former Owner shall promptly obtain for
the benefit of such other Owner such release and waiver of subrogation and in such
case the foregoing release and waiver of subrogation shall be operative.
9. Eminent Domain.
(a) Owner's Right to Award. Nothing herein shall be construed to give any
Owner any interest in any award or payment made to another Owner in connection
with any exercise of eminent domain or transfer in lieu thereof affecting said other
Owner's parcel or give the public or any government any rights in Parcels I, II or III.
In the event of any exercise of eminent domain or transfer in lieu thereof of any part
of the Common Area located on Parcel I, Parcel II or Parcel III, the award
attributable to the land and improvements of such portion of the Common Area
shall be payable only to the Owner thereof and no claim thereon shall be made by
the Owners of any other portion of the Common Area.
(b) Collateral Claims. All other Owners of the Common Area may file collateral
claims with the condemning authority for their losses which are separate and apart
from the value of the land area and improvements taken from another Owner.
(c) Tenant's Claim. Nothing in this Paragraph 9 shall prevent a tenant or a
lessor, as the case may be, from making a claim against an Owner pursuant to the
provisions of any lease between tenant or lessor and Owner for all or a portion of
any such award or payment.
(d) Restoration of Common Area. The Owner of each portion of the Common
Area so condemned shall promptly repair and restore the remaining portion of the
Common Area so owned as near as practicable to the condition of same
immediately prior to such condemnation or transfer to the extent that the proceeds
of such award are sufficient to pay the cost of such restoration and repair and
without contrihution from any other Owner.
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10. Agreement.
(a) Modification-Cancellation. This Agreement (including Exhibit "A") may be
modified or cancelled only by written agreement of all Owners of the Shopping
Center, which consents shall not be unreasonably withheld, which agreement shall
be recorded in the office of the county recorder of Santa Clara County, State of
California.
(b) Breach. In the event of breach or threatened breach of this Agreement, only
the Owners shall be entitled to institute proceedings for full and adequate relief
from the consequences of said breach. The unsuccessful party in any action shall
pay the prevailing party a reasonable sum for attorney's fees, which shall be deemed
to have accrued on the commencement of such action and shall be enforceable
whether or not such action is prosecuted to judgment.
(c) Remedies for Default. If the Owner of any parcel shall, during the term of
this A~reement, default in the full, faithful and punctual performance of any
obligatIon required hereunder and if, at the end of thirty (30) days after written
notice from any Owner of a parcel, stating with particularity the nature and extent of
such default, the defaulting Owner has failed to cure such default, and if a diligent
effort is not then being made to cure such default, then any other Owner of a parcel
shall. in addition to all the other remedies it may have at law or in equity, have the
right to perform such obligation of this Agreement on behalf of such defaulting
Owner and be reimbursed by such defaulting Owner of the cost thereof with interest
at the maximum rate allowed by law. Any such claim for reimbursement, together
with interest as aforesaid, shall be a secured right and a lien shall attach and take
effect upon recordation of a proper claim by the claimant in the office of the county
recorder of Santa Clara County, California. The claim of lien shall include the
following: (1) the name of the claimant; (2) a statement concerning the basis of the
claim of the lien; (3) the last known name and address of the Owner or reputed
Owner of the parcel against which the lien is claimed; (4) a description of the
property against which the lien is claimed; (5) a description of the work performed
or payment made which has given rise to the claim of lien hereunder and a
statement itemizing the amount thereof; and (6) a statement that the lien is claimed
pursuant to the provision of this Agreement reciting the date, book and page of the
recordation hereof. The notice shall be duly verified, acknowledged and contain a
certificate that a copy thereof has been served upon the party against whom the lien
is claimed, either by personal service or by mailing (first class, certified, return
receipt requested) to the defaulting Owner, at the address for mailing of tax
statements with respect to the property against which the lien is claimed. The lien
so claimed shall attach from the date of recordation solely in the amount claimed
thereby and it may be enforced in any manner allowed by law for the foreclosure of
liens. Notwithstanding the foregomg, such liens shall be subordinate to any
mortgage or deed of trust given in good faith and for value now or hereafter
encumbering the property subjected to the lien, and any purchaser at any
foreclosure or trustee's sale (as well as any grantee by deed in lieu of foreclosure or
trustee's sale) under any first mortgage or deed of trust shall take free and clear
from any such then existing lien, but otherwise subject to the provisions of this
Agreement. The failure of the Owner or Owners of any of the parcels subject to this
Agreement to insist in anyone or more cases upon the strict performance of any of
the promises, covenants, conditions, restrictions or agreements herein, shall not be
construed as a waiver or relinquishment for the future breach of the provisions
hereof.
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(d) Duration. Unless otherwise cancelled and terminated, this Agreement and
all the easements, rights and obligations hereof ~hall continue in perpetuity.
11. Rights and Obligations of Lenders. The charge5 and burdens of this Agreement are,
and shall be at all times, prior and therefore superior to the lien or charge of any mortgage
or deed of trust made in good faith and for value affecting Parcel I, II or III or any part
thereof, or any improvements now or hereafter placed thereon. However, a breach of any
of the easements, covenants, or restrictions hereof shall not defeat or render invalid the
lien or charge of any mortgage or deed of trust. The superiority of this Agreement shall be
LIMITED to the extent that title to any property acquired through sale under foreclosure
of any mortgage or deed of trust effected by powers of sale, judicial proceedings, or
otherwise, shall be subject to all the charges and burdens affecting Parcels I, II and III by
virtue of this Agreement, a noted in Paragraph 10(c) hereof.
12. Release from Liability. Any person acquiring fee or leasehold title to Parcel I,
Parcel II or Parcel III or any portion thereof shall be bound by this agreement only as to
the parcel or portion of the parcel acquired by such person. Such person shall be bound by
this Agreement only during the period such person is the fee or leasehold Owner of such
parcel or portion of the parcel, except as to obligations, liabilities or responsibilities that
accrue during said period. Although persons may be released under this paragraph, the
easements, covenants, restrictions in this Agreement shall continue to be benefIts and
servitudes upon Parcels I, II and III running with the land.
13. Rights of Successors. The easements, restrictions, benefits, and obligations
hereunder shall create mutual benefits and servitudes upon Parcels I, II and III running
with the land. This Agreement shall bind and inure to the benefit of the parties hereto,
their respective heirs, personal representatives, tenants, successors, and/or assigns. The
singular number includes the plural and any gender includes all other genders.
14. Paragraph Headings. The paragraph headings herein contained are inserted only as
a matter of convenience and for reference and in no way define, limit, or describe the scope
or intent of this document nor in any way affect the terms and provisions hereof.
15. Not a Public Dedication. Nothing herein contained shall be deemed to be a gift or
dedication of any portion of the Common Area to the general public or for the general
public or for any public purposes whatsoever, it being the intention of the parties hereto
that this Agreement shall be strictly limited to and for the purposes herein expressed. The
right of the public or any person to make any use whatsoever of the Common Area of the
parcels herein affected, or any portion thereof (other than any use expressly allowed by a
written or recorded map, agreement, deed or dedication) is by permission, and subject to
the control of the Owner. Notwithstanding any other provisions herein to the contrary, the
Owners of the parcels affected hereby may periodically restrict ingress and egress from the
Common Area in order to prevent a prescriptive easement from arising by reason of
continued public use. Any restriction on ingress and egress shall be limited to the
minimum period necessary to prevent the creation of a prescriptive easement and shall
occur at such a time as to have a minimum effect on the parties hereto.
16. Document Execution and Change. It is understood and agreed that until this
document is fully executed and delivered by Castello, Campbell and the authorized
corporate officers of Safeway there is not and shall not be an agreement of any kind
between the parties hereto upon which any commitment, undertaking or obligation can be
founded. It is further agreed that once this document is fully executed and delivered that it
contains the entire agreement between the parties hereto and that, in executing it, the
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parties do not rely upon any statement. promise or representation not herein expressed and
this document once executed and deli delivered shall not be modified, changed or altered
in any respect except by a writing executed and delivered in the same manner as required
for this document.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the ate first
hereinabove written.
SAFEWAY I:\'C.,
a Delaware corporation
By
Its AsSistant Vice PreSident
By
Its AsSistant Secretary
(Safeway)
1981 ORSI FA.MILY TRUST
By
BETH': J. ORSI, Trustee
ORSI FAMILY EXEMPTION TRUST dated
January 23, 1986.
By
BETtE J. OKSI, Trustee
ORSI FAMILY l\1ARITAL TRUST dated
January 23, 1986.
By
BE'ITE J. ORSl, Trustee
1982 CASTELLO LIVING TRUST dated
October 14, 1982.
By
JOSEPH G. CASTELLO, Trustee
By
GLORIA L. CASTELLO, Trustee
(Castello)
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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CAMPBELL PLAZA DEVELOPMENT CO.,
a limited partnership
By:
Its
By:
Its
(Campbell)
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