HomeMy WebLinkAboutInitial Plan; Zoning Review IPZR2009003 - Supporting Documents0 0
AUGUST VOGEL & ASSOCIATES
Asset Management
California Real Estate Bro ker License #00334761
P. 0. Box 1804 Tel.#: (760) 420.0267
Carlsbad, California Fax.#: (760) 994.0200
92018-1804 email: favo el roadrunner.com
......................................................................
September 10, 2009
Jill Arabe, Assistant Planner
Department of Planning
City of Huntington Beach
2000 Main Street
Huntington Beach, California 92648
RE: Meadowlark Plaza Shopping Center
5141-5355 Warner Avenue, Huntington Beach, CA 92691
Initial Plan Zoning review No. 2009-003
Dear Jill:
SEP 11 7009
Huntington Beach
PLANNING DEPT.
Attached herewith are excerpted copies of the OPERATION AND RECIPROCAL EASEMENT
AGREEMENT, recorded as document # 94-0085015, Orange County Recorder, on February 4,
1994 for the benefit of the Meadowlark Plaza Shopping Center.
This document serves to provide the framework for the operation and maintenance among
multiple owners of the "Common Areas" found within the Meadowlark Plaza Shopping Center.
The Meadowlark Plaza Trust is the Managing Owner at the Meadowlark Plaza Shopping Center
and has been granted the authority by the "Reciprocal Easement Agreement" to operate and
maintain the common areas. All owners at meadowlark Plaza Shopping Center are signatories
to the Reciprocal Easement Agreement.
Please note Article VI Common Area, Section 6.4: Common Area 0 eration and Maintenance
Paragraphs (ii) & (iii) describes the Managing Owners obligation to maintain the parking areas.
Your prompt review of this matter is appreciated. Please contact the undersigned with any
questions you may have.
Cordially,
Meadowlark Plaz a Trust, Managing Owner
Meadowlark Plaza Sho ping Center
By: August Vogel &ssociates`
roperty Mana r
Frank Vogel
Principal
Encl.
r al ou:stl eY
Fl., A1 -R+r nnE Cdr
RECORDING REQUESTED BY kr.0
WHEN RECORDED MAIL. 70:
V Ilse - Madison 6 Sutzo
6(J Anton Blvd., Suite 1100
Costa Mesa , California 9262b
Attn: Kenneth M. Kaplan, Vsq.
OPERATION AND RECIPROCAL EASEMENT AGREEMENT
By and Between
u0C N 9 -D2`GL
0 4-FCB-19^4 'U=-7C.
j.nr1rno ,1 In &f f1•:1:1 crnr•i
u CtL-'1P County, C- i for u
L-e 4. 5ninth. County ecorCer
T7s: f v".:v
n DD
SE?1 1 2009
Huntington Beach
PLANNING DEPT.
ART M. NERIO, AKA ART MASAO NERIO AND LILY Y. NERIO;
AKA LILY YURIKO NERIO AS TRUSTEES OF THE NERIO FAMILY
TRUST DATED JANUARY 11, 1990, DICK YUKJO NERIO,
AKA YUKIO NERIO, AND HISAKO-NERIO IMAMURA
and
RALPH HOROWITZ, AS TRUSTEE OF THE HOROWITZ FAMILY
TRUST, JAMES T. WOOD AND PATRICIA ANN WOOD, TRUSTEE OF
THE WOOD FAMILY TRUST ESTABLISHED OCTOBER 1, 1984, AND
MILHOUS LEASING COMPANY, a California general partnership, as
Tenants-in-Common
Ms9772et0a007l tlttoo0l.1 •
0
In. ti Force Mnjeure. In the event any Ownei is delayed, hindered !n or
prevented from the performance of any act required tinder this Agreement by reason
of a cause beyond the reasonable control of the obligated Owner, theft perfortnanct+.
of such act shall be excused for the period of the delay and the period fcr the
performance of such act shall be extended for a period equiva;ent to the period of
such delay. Such a cause shall include "acts of God"; strikes; lockouts: weather in
which work cannot proceed (even if normal); protests; riots; insurrection: war;
unavailability of materials from ncrmal sources; acts of Governmental Authority,
including courts; or ncta or conduct of another owner. ita contractors . employees or
agents, in violation of this Agreement, but it shall not include delays due to inability
or failure to obtain financing or inadequate financial resources.
15.17 Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when executed and delivt'rt'd shall he deemed an
original, but such counterparts shall together constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement.
RALPH HOROWITZ, AS TRUSTEE OF ART M. NERIO, A ART MASAO
THE HOROWITZ FAMILY TRUST NERIO, ITS TRUSTEE OF THE
NERIO FAMILY TRUST DATED
JANUARY 11, 1990
Gfirno7 Glvo-
J ES T. WOOD, AS TRUSTEE OF
THE WOOD FAMILY TRUST
MILHOUS LEASING COMPANY, a LILY NERIO, AKA LILY YURIKO
California general partnership NERIO, ITS TRUSTEE OF THE
NERIO FAMILY TRUST DATED
JANUARY 11, 1990
By
General Partner
PATRICIA ANN WOOD, AS TRUSTEE OF
Tt:E WOOD FAMILY TRUST DICK YUKI ERIO, AKA YUKIO
NERIO
I AKO NERIO IMAMURA
"DEVELOPER"
r
uwrfaei940ae 101i"01.1 ;IH
15.16 Force Maieure. In the event any Owner is delayed, hindered in or
prevented from the performance of any act regL'red under this Agreement by reason
of a cause beyond the reasonaile control ot the obligated Owner, then performance
of such act shall be excused for the period of the delay and the period for the
performance of such act shall be extended for n period "quivalent to the period of
such delay. Such a cause shall include "acts of God"; strikes; lockouts, weather itt
which work cannot proceed (even if normal); protests; riots; insurrection; war;
unavailability of materiais from normal sources. acts of Governmental Authority,
including courts; or acts or conduct of another owner . its contractors , employees or
agents, in violation of this Agreement, but it shall not include delays due to inability
or failure to obtain financing or inadequate financial resources.
l5 I7 Counterparts. This Agreement may he executed in any number of
counterparts, each of which, when executed and delivered shall he deemed an
original, but such counterparts shall together constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement.
d )-, - -I--
t
DICK YUKIO NERIO, AKA YUKIO
NERIO
HISAKO NERIO IMAMURA
"DEVELOPER"
RAL H H RO TZ, AS TRU E OF ART M. NERIO, AKA ART MASAO
THE HOROWITZ FAMILY TR T NERIO, ITS TRUSTEE OF TIIE
NERIO FAMILY TRUST DATED
JANUARY 11, 1990
JAMES T. WOOD, AS TRUSTEE OF
THE WOOD FAMILY TRUST
MILHOUS LEASING COMPANY, a LILY Y. NERIO, AKA LILY YURIKO
California general partnership NERIO , ITS TRUSTEE OF THE
NERIO FAMILY TRUST DATED
JANUARY 11, 1990
By
General Partner
Mao 1 AIUnoNU/1 It"I . I :IH
I
's !6 Force Mnieure. In the event any Owner is :relayed, hindered in or
prevented from the performance of any act required under this Agreement by reason
of a cause beyond the reasonable control of the obligated Owner, then performance
of such act shall be excused for the period of the delay and the period for the
performance of such act shall be extended fcr a period equivalent to the period of
such delay. Such a cause shall include "acts of God"; strikes; lockouts; weather In
which work cannot proceed (even if normal); protests; riots; irsurrection; war;
unavailability of mat^rials from normal sources; acts of Governmental Authority,
including courts; or acts or r^nduct of another owner, its contractors, employees or
agents, in violation of this Agreement, but it shall not include delays due to inability
or fntlurp to obtain financing or inadpquato financial resources.
15.17 Counterparts. This Agreement may he executed in any number of
counterparts, each of which, when executed and delivered shall he deemed an
original, but such counterparts shall together constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement.
RALPH HOROWITZ, AS TRUSTEE OF ART M. NERIO, AKA ART MASAO
THE HOROWITZ FAMILY TRUST NERIO, ITS TRUSTEE OF THE
NERIO FAMILY TRUST DATED
JANUARY 11, 1990
JAMES T. WOOD, AS TRUSTEE OF
THE WOOD FAMILY TRUST
MILHOUS LEASING C MPANY, a LILY Y. NERIO, AKA LILY YURIKO
Californi eral partrfi'htip NERIO, ITS TRUSTEE OF THE
NERIO FAMILY TRUST DATED
JANUARY 11 1990,
By !
er I Par er
DICK YUKIO NERIO, AKA YUKIO
NERIO
HISAKO NERIO IMAMURA
"DEVELOPER"
i
"to MAI" Do MINI IV" I. 1 :18
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
PILLSBURY MADISON & SUTRO
Suite 1100
600 Anton Boulevard
Costa Mesa , CA 92626
Telephone: (714) 436-6800
Attn: Kenneth M. Kaplan, Esq.
RECIPROCAL ACCESS AND PARKING DECLARATION
THIC RECIPROCAL ACCESS AND PARKING DECLARATION
(this "Declaration ") is made this 1,V day of
1994-by ART M. NERIO, AKA ART MASAO NERIO
AND LILY . NERIO, AKA LILY YURIKO NERIO AS TRUSTEES OF THE
NERIO FAMILY TRUST DATED JANUARY 11, 1990, DICK YUKIO NERIO,
AKA YUKIO NERIO, MASAO NERIO, AKA ART M. NERIO , AKA ART
MASAO NERIO, AND HISAKO NERIO IMAMURA (collectively,
"Declarant "), with reference to the following facts:
A. Declarant is the owner of that certain real
property located in the City of Huntington Beach, County of
Orange, State of California , more part icularly described as
Parcels 1 and 2 of Parcel Map 90-268 as shown on a map filed
in Book oZ , Pages a 9 11o -72-of Parcel Maps, Records of Orange
County, California (the "Propert y").
B. Declarant desires to develop, maintain and
operate the Prope rt y as an integrated retail shopping center
(the "Shopping Center") in substantial accordance with
layout shown on the Site Plan attached hereto as EXHIBIT A
and made a part hereof (the "Site Plan").
C. As a condition to recording Parcel Map 90-
353 which divides Parcel 2 of Parcel Map 90-268 into eight
(8) separate legal parcels (each, together with Parcel 1 of
Parcel Map 90-268, a "Parcel"), the City of Huntington Beach
has required that this Declaration be recorded in order to
assure access, ingress and egress to the Propert y, and
sufficient customer parking.
NOW THEREFORE the following covenants , conditions
restrictions and easements are hereby established for the
Property:
1. Definitions.
1.1 "Building Area" means those portions of the
Shopping Center on which buildings have been constructed,
together with areas immediately adjacent to a building for
20196625
11/20/92
•
trash storage and for supports and appurtenances that extend
from a building. The foregoing shall not preclude expansion
or demolition and new construction anywhere within the
building limit lines for each Parcel shown on the Site Plan,
subject only to applicable governmental rules and
regulations.
1.2 "Common Area" means all of the Shopping
Center and all improvements thereon (including sidewalks
adjacent to the front of a building), except for Building
Area.
1.3 "Owner " means the owner of a Parcel.
2. Use of Common Area.
The Common Area may be used for any of the
following uses , but shall not be used for any use not in
furtherance of the operation of the Shopping Center:
(a) Parking of motor vehicles, and pedestrian and
vehicular ingress and egress by occupants of the Shopping
Center and agents, employees, customers , and other invitees
of any of them, to and from buildings, Common Area, and
adjacent public streets; provided, however, that (i) except
for parking for employees of free-standing buildings
designated Shops 4 and Shops/Pad A, B, C, and D on the Site
Plan, all employees must park in spaces designated "employee
parking " which spaces will be to the north of the Building
Areas designated Market, the Drug Store and Shops 1, 2, and
3 on the Site Plan, and (ii) spaces designated "carpool" may
be used only for carpool purposes.
(b) Parking stalls, private streets, sidewalks,
walls, ramps , driveways, lanes , curbs , gutters , signals,
landscaped areas , traffic and parking lighting facilities,
signs with appropriate underground electrical connections,
and all things incidental thereto, utility lines and
facilities serving buildings and/or the Common Area;
(c) Ingress and egress of delivery and service
vehicles to and from the Shopping Center and parking thereof
only in unloading or truck parking areas;
(d) Delivery of goods, ware , merchandise and the
rendition of services to occupants of the Shopping Center;
and
Plan.
(e) Perimeter walls and fences shown on the Site
3. Easements.
3.1 Grant of Easements. Declarant hereby grants,
conveys and reserves for the benefit of each of the Owners
20196629
11/20/92
-2-
•
of a Parcel and for their respective tenants, subtenants,
employees , contractors, concessionaires , licensees,
customers and business invitees, non-exclusive easements,
with right of entry to use the Common Area for the parking
of motor vehicles, pedestrian and vehicular travel, ingress
and egress and for other Common Area uses provided for
herein. These easements are to burden the Common Area and
the interest of each Owner and benefit the other Owner's
Parcels to which they are appurtenant.
3.2 Fences . No fence , division, rail or
obstruction of any type or kind shall ever be placed, kept
or permitted or maintained upon or along any of the common
property lines of any two (2) of the Parcels.
4. Run with the Land- Successors and Assi ns.
The provisions of this Declaration shall run with
the land described herein and shall bind and inure to the
benefit of each successive Owner , during the period of
ownership of such Owner, of all or any portion of the
Property , and upon each person having any interest therein
derived through any Owner.
IN WITNESS WHEREOF , Declarant has executed this
Declaration as of the day and year first written above.
C
AR . NE 10, AKA T AO
NERIO AS TRUSTEE OF THE NERIO
FAMILY TRUST DATED JANUARY 11,
1990
LILY NERIO, AKA LILY YURIKO
NERIO AS TRUSTEE OF THE NERIO
FAMILY TRUST DATED JANUARY 11,
1990
DICK YUKI NERIO , AKA YUKIO
NERIO
MASAO NERIO M. NERIO,
AO NERIO
k '7"
HISAKO NERIO IMAMURA
APPROVED AS TO FORM :I
GAIL KUTTON
CI ATTO
B
Deputy Cl Attorn
20196625 - 3 -
11/20/92
•0
30-,45 0 & 60 ° Parking
iQsioner' pr
/
0. /Il A
ensip er1pr
LL
as
900 Parking 24 In. Exterior
Dimension
18 In. Interior
Dimension19 Ft.
Parallel Parking
1
9 ft.
8 ft.19 ft .19 ft. 8ft
G:IDN9tRAW1231 STRPBM
STRIPING REQUIREMENTS
Chapter 231 Page t2 of 20
Huntington Beach Zoning and Subdivision Ordinance
0 •
231.14 Parking Space Dimensions (3334-6/97)
Required parking spaces shall have the following minimum dimensions in feet. Striping
requirements are depicted in Diagram A. Directional signs and/or pavement markings shall
be provided in any facility in which one-way traffic is established. (3334-6/97)
Angle of Stall Stall Aisle Width'
Parking Width Depth 1-way 2-way
00 9 19 (with 8 ft. Striped 12 20
(Parallel)
300 9
maneuvering area between
eve ry 2 spaces)
19 14 20
450 9 19 15 20
600 9 19 20 20
900 9 19 26 26
Residential 9 19 25 25
Bicycle 8 17 subject to Section 231.20
'Minimum 24 feet when determined by Fire Department to be a fire lane.
(rest of page not used)
Huntington Beach Zoning and Subdivision Ordinance Chapter 231 Page 11 of 20
THIS MAP WAS PREPARED FOR ORANGECOMITY ASSESSOR DEPT. PURPOSES Oft Y.TIE ASSESSOR 144KES NO GUARANTEE AS TOITS ACCURACY NOR ASSINES ANY LIABILITY
FOP OTHER USES. NOT TO BE REPRODUCED.ALL RIGHTS RESERVED-* CRYRIGNr ORANGE COUNTY ASSESSOR 2001
PG1R. SO 114, SEC. 21. T 5 S. R 1 I W 146-24
1. = 200'
49
242
sf.sf 'a•»•P.M0280-29 PAR I xn
41 k O nIw
' 1.220 AC. a .s•k 41A = k PAR.,f
aR 64
A . i L ANE CR£ENTR£E
'q
P.Y. 280-29 s }f a Q
PAR. 2 f PAR. 3 frU62A+ 61TRACT
2.676 AC. 0.74466 At.4141
M
to
3, -. &K. 6J--
"N0.'86
PAR. 6 t o O
58
•
t v PAR. / i1.N'60
4 4.771 AC.2
4 14411 ! .f.4? {A `4141'
fP If•14.1'
N63P.Y. 280-J6 4 1'n I.ni
PAR. 4 PAR. S
(941).0.964 AC.36 h..
0.706 AC. , 59 i41PAR. B w w41
0.544 At.
-e 0.760 AC.
' 1 . 1t!
AIRPt ?T ?r CIRCLE
60
I
* PRI VA If STREET
TRACT NO. 86 M. M. 10-35.36 NOTE -ASSESSOR'S BLOCK 6 ASSESSOR'S MAPM4RCH 1962 PARCEL A44P P.M. 280-29.280-36 PARCEL NUMBERS
SHOWN IN CIRCLES
BOOK 146 PAGE 24
COUNTY OF ORANGE II
Arabe, Jill
From: favogel@roadrunner.com
Sent: Monday, October 26, 2009 11:19 AM
To: Arabe, Jill
Subject: Re: Ralph's Authorization (Meadowlark Plaza Shooping Center)
Attachments: asphalt-approval-2009[l ].docx
M
asphalt-approval-2
009[1].doa ...
Jill:
Please see attached "Ralphs" approval regarding the asphalt sealing & restriping repairs at Meadowlark Plaza.
Please advise as to when a permit may be issued and the work can commence.
Thanks
Frank Vogel
August Vogel & Associates
Cell: 760.420.0267
---- "Arabe wrote:
> Frank -
> Please send me the authorization from Ralphs for the parking lot
> restripe project. Let me know if you have any questions.
> Jill Ann Arabe
> Assistant Planner
> City of Huntington Beach
> (P) 714.374.5357
1
October 23, 2009
Frank Vogel
August Vogel Associates
100 W. A St., #900
San Diego, CA 92101
RE: RALPHS #131-MEADOWLARK
Approval for Asphalt Repairs, Slurry and Stripe
Dear Frank,
Please accept his lett er as approval for you to proceed with the asphalt repairs, seal and stripe as outlined in your email dated October 1, 2009 and
in Ben's Asphalt bid ("the Work") in the total amount of 23,840.00 of which Ralphs shat at 38.63% = 9,209.39 + any applicable Management Fee.
This a royal and our a reement or a ment is based on the ollowin contin encies:
• The phasing must be coordinated with our Ralphs Store Director prior to commencement of the Work to assure that there are no
conflicts regarding deliveries or access to the store for our shoppers.
• Prior to the commencement of the Work August Vogel will forward, to my att ention, a copy of the site plan indicating the moves and
schedule for each type of work.
• No portion of the parking will be closed to customers during the first week of any month, on any Friday, Saturday or Sunday or during the
two week period prior to any major holiday, i.e., Easter, Thanksgiving, Christmas, etc.
• It is imperative that at least'/2 of the parking lot remains open at all times for customer ingress/egress and parking during work.
Please be advised that if all of the above contingencies are not met, Ralphs reserves the right to revoke its approval of the proposed work and
withhold payment forsame.
I look forward to receiving the required phasing information in the near future. In the meantime, if you have any questions, I can be contacted by
telephone at 310/00-3560 or via e-mail at dawne.stricklin ral hs.com
Dawne Stricklin
Property Management Coordinator
Attachment
cc: Mike Blackwell
Bridgette Anderson
Store Director #131
Jeff Magaro/ Maggie Kilgore
Laura Todd
OPERATION AND RECIPROCAL EASEMENT AGREEMENT
By and Between
ART M. NERIO, AKA ART MASAO NERIO AND LILY Y. NERIO,
AKA LILY YURIKO NERIO AS TRUSTEES OF THE NERIO FAMILY
TRUST DATED JANUARY 11, 1990, DICK YUKIO NERIO,
AKA YUKIO NERIO, AND HISAKO NERIO IMAMURA
and
RALPH HOROWITZ, AS TRUSTEE OF THE HOROWITZ FAMILY
TRUST, JAMES T. WOOD, AS TRUSTEE OF THE WOOD FAMILY
TRUST, AND MILHOUS LEASING COMPANY, a California general
partnership , as Tenants -in-Common
MS07326/940078/#119901.1.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS- ADDITIONAL COVENANTS .......................... 2
1.1 "Buildin Area " ....................................... 2
1.2 "Buildin Elevations" ................................... 2
1.3 "Business Da s ........................................2
1.4 "Casual " ........................................... 2
1.5 "Claim" ............................................. 2
1.6 "Commencement Date " .................................. 2
1.7 "Common Area" ....................................... 2
1.8 "Common Ex enses" ................................... 2
1.9 "Drug Store " ......................................... 2
1.10 "Effective Date" ....................................... 3
1.11 "Environmental Dama es" ............................... 3
1.12 "Environmental Re uirements" ........................... 3
1.13 "Floor Area " .......................................... 3
1.14 "Force Ma'eure.........................................3
1.15 "Governmental Authori " ............................... 4
1.16 "Hazardous Materials " .................................. 4
1.17 "Investor" ............................................ 4
1.18 "Law" ............................................... 4
1.19 "Major" or "Majors" .................................... 4
1.20 "Major Dru Store" .................................... 4
1.21 "Mana 'n Owner " ..................................... 4
1.22 "Market " ............................................ 5
123 "Official Records" ...................................... 5
1.24 "Owner" and "Owners" .................................. 5
1.25 "Parcel" or "Parcels" .................................... 6
1.26 "Parcel Man" ......................................... 6
1.27 "Prima Common Area" ................................ 6
1.28 Pro Rata Share ........................................ 6
1.29 "Proceeds " ........................................... 7
1.30 "Sale Leaseback Transaction" ............................. 7
1.31 "Sign Plan" .......................................... 7
1.32 "Site Plan" ........................................... 7
1.33 "Taxes" ............................................. 7
1.34 "Term" .............. ............................... 7
ARTICLE II
INSURANCE ................................................... 8
2.1 Owner's Fire Insurance ................................. 8
2.2 Owner's Liabili Insurance .............................. 8
2.3 Common Area Insurance ................................ 8
2.4 Cost Sharing ......................................... 9
2.5 Waiver of Subro ation• Certificates- Cancellation Notice ........ 9
2.6 Deductibles- Self Insurance- Blanket Policies ................. 9
ARTICLE III
-Ln1NDErviiv1F ICATIVN ........................................... .
3.1 Owner's Indemni .................................... 10
3.2 Mana Owner 's Indemni ............................ 10
ARTICLE IV
TAXES AND ASSESSMENTS ...................................... 11
4.1 Pa ent of Taxes and Assessments ........................ 11
4.2 Contests ............................................ 11
ARTICLE V
USE CONTROLS AND RESTRICTIONS ............................. 11
5.1 Develo ment and 0 eration of Sho in Center .............. 11
5.2 Sho in Center Use and 0 eration Restrictions .............. 11
MS07326/940078/#119901.1 i
5_3 Use Restrictions ...................................... 12
5.4 Use of Market ........................................ 14
5.5 Buildin Restrictions- Subdivision- Governmental A rovals ..... 15
5_6 Sign Plan ............................................ 16
5.7 0 eration in Conformi to Law and A eements• Nuisance- and
Leases .............................................. 17
5.8 Construction Covenants ................................. 17
5.9 Buildin Maintenance .................................. 17
ARTICLE VI
COMMON AREA ............................................... 18
6.1 Confi ration of Common Area ........................... 18
6.2 Use of Common Area ................................... 18
6.3 Char e for Parkin .................................... 20
6.4 Common Area 0 eration and Maintenance .................. 21
6.5 Common Ex enses ..................................... 21
6.6 Mana ement Fee ...................................... 22
6.7 Bud et A royal ...................................... 23
6.8 Pa ent of Common Ex enses ........................... 23
6.9 Common Ex ense Records ............................... 25
6.10 Emer enc Self-Hel b Ma'ors ........................... 25
6.11 Takeover of Maintenance b Ma'ors ........................ 25
6.12 Ri ht to Maintain Parcel which Includes Pad D Se aratel ...... 26
6.13 Absence of Mana 'n Owner ............................. 27
ARTICLE VII
PUBLIC UTILITIES ............................................. 27
7.1 Utili Pa ents ...................................... 27
7.2 Maintenance of Facilities ................................ 27
ARTICLE VIII
EASEMENTS .................................................. 28
8.1 Grant of Easement .................................... 28
8.2 Grant of Utili Easements .............................. 28
8.3 Encroachment Easements ............................... 28
8.4 Easements to Perform Work ............................. 29
8.5 cordation of Easements ............................... 29
ARTICLE
CASUALTY AND RECONSTRUCTION .............................. 29
9.1 Dama e to Buildin ................................... 29
9.2 Dama e to Common Area ............................... 30
9.3 Further Limitations on Reconstruction ..................... 30
ARTICLE X
CONDEMNATION- EXERCISE OF POLICE POWER ................... 31
10.1 Distribution of Award .................................. 31
10.2 Reconstruction ........................................ 31
ARTICLE XI
ENFORCEMENT OF AGREEMENT- RIGHT TO CURE DEFAULT ........ 31
11.1 Enforcement of A eement .............................. 31
11.2 Ri ht to Cure Default .................................. 32
11.3 Enforcement Procedures ................................. 32
ARTICLE XII
MORTGAGEE PROTECTION ..................................... 33
12.1 Ri ht to Encumber .................................... 33
12.2 Breach Shall Not Defeat Mort a e ......................... 33
12.3 Subordination to Lien ................................... 33
12.4 Mort a ee Notice ...................................... 33
ARTICLE XIII
SUCCESSORS AND ASSIGNS• COVENANTS RUNNING WITH THE LAND . 35
MS07326/940078/#119901.1 ii
ARTICLE XIV
SERVICE OF NOTICES .......................................... 35
14.1 Manner of Service and Address ........................... 35
ARTICLE XV
GENERAL .................................................... 36
15.1 Ri hts Cumulative ..................................... 36
15.2 Dela Not Waiver ..................................... 36
15.3 Modifications Onl b Writin ............................ 36
15.4 Construction of Lan a e of A eement• Governin Law ........ 37
15.5 Esto el Certificate .................................... 37
15.6 Owners ' Obli ations ................................... 37
15.7 A rovals Not to be Unreasonabl Withheld ................. 3g,--I--
15.8 Entire A eement ..................................... 3
15.9 Time of Essence - Extensions ............................. 3
15.10 Other Documents .................................... 3
15.11 Exhibits ........................................... 3
15.12 No Termination U on Default .......................... 3
15.13 Captions ........................................... 3 rt
15.14 No Partnershi ...................................... 3
15.15 Interest ............................................ 3 -
15.16 Force Ma'eure ....................................... 38
15.17 Counterparts ........................................ 39
.;
MS07326/940078/#119901.1 111
•
OPERATION AND RECIPROCAL EASEMENT AGREEMENT
This OPERATION AND RECIPROCAL EASEMENT AGREEMENT
("Agreement") is made and entered into as of the 31st day of January, 1994, by and
between RALPH HOROWITZ, AS TRUSTEE OF THE HOROWITZ FAMILY
TRUST, JAMES T. WOOD, AS TRUSTEE OF THE WOOD FAMILY TRUST, AND
MILHOUS LEASING COMPANY, a California general partnership, as Tenants-in-
Common (hereinafter collectively referred to as "Wood"), and ART M. NERIO, AKA
ART MASAO NERIO AND LILY Y. NERIO, AKA LILY YURIKO NERIO AS
TRUSTEES OF THE NERIO FAMILY TRUST DATED JANUARY 11, 1990, DICK
YUKIO NERIO, AKA YUKIO NERIO, AND HISAKO NERIO IMAMURA
(hereinafter collectively referred to as the "Developer").
RECITALS
A. Developer is the owner of certain real property located in the
City of Huntington Beach, County of Orange, State of California, described on
Exhibit "A-1", attached hereto and made a part hereof ("Developer Property").
B. Wood is or will be the fee owner of certain real property located
in the City of Huntington Beach, County of Orange, State of California described on
Exhibit "A-2", attached hereto and made a part hereof ("Ralphs Properly').
C. Developer and Wood have agreed that the Developer Property
and the Ralphs Property (collectively, the "Shopping Center Site") shall be
developed, maintained and operated as an integrated retail shopping center
("Shopping Center") in accordance with the Site Plan attached hereto as Exhibit "B"
("Site Plan").
D. Ralphs Grocery Company, a Delaware corporation ("Ralphs") and
Developer are parties to that certain unrecorded Purchase, Sale and Development
Agreement and Escrow Instructions, dated as of even date herewith ("Ralphs
Development Agreement") pursuant to which Wood, as the assignee of Ralphs
permitted under the Ralphs Development Agreement, will purchase the Ralphs
Property from Developer, and shall concurrently lease the Ralphs Property to
Ralphs pursuant to a lease ("Lease") by and between Ralphs, as Tenant, and Wood,
as Landlord. A memorandum of the Lease will be recorded in the Official Records
concurrently with this Agreement.
E. The parties hereto desire to develop the Shopping Center Site in
accordance with the Development Agreement and this Agreement and to maintain
and operate the Shgpping Center as an integrated retail shopping center for the
mutual benefit of the Ralphs Property and the Developer Property.
F. The parties hereto recognize that for the optimum development
and operation of the Shopping Center Site as an integrated retail shopping center, it
is necessary that they agree respecting certain matters, including, but not limited to,
matters relating to the construction, operation and maintenance of facilities on, and
the use and restrictions on the use of, their respective properties, and that in the
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absence of such agreements, Wood would not have acquired the Ralphs Property,
and Ralphs would not have leased the Ralphs Property and neither party hereto
would be willing to undertake the development of their respective properties, and
the parties desire that all persons who acquire portions of or interests in the
Shopping Center Site shall acquire subject to this Agreement in order that all
development on the Shopping Center Site will be in conformity herewith.
NOW, THEREFORE, in consideration of the covenants and agreements
hereinafter set forth, it is hereby agreed by and between the parties hereto as
follows:
ARTICLE I
DEFINITIONS- ADDITIONAL COVENANTS
The following terms have the following definitions:
1.1 "Buildin Area " means the portions of the Shopping Center designated
as buildings or building limit lines on the Site Plan, except that while a building is
existing within an area, then the "Building Area" shall be delimited by the exterior
walls. The Building Area for the Market is called the "Market Buildin Area" and
the Building Area for the Drug Store is called the "Dru Store Buildin Area."
1.2 "Buildin Elevations " means scaled, colored exterior drawings and a
materials board, depicting the architectural theme for the Shopping Center and the
dimensions and heights for the buildings, including the Market and the Drug Store,
in the Shopping Center.
1.3 "Business Da s " means day(s) of the week, when federally chartered
banks in Los Angeles, California are open for business excluding Saturday, Sunday
and holidays.
1.4 "Casualty' means damage to an improvement in the Shopping Center
resulting from an event such as fire, earthquake, unusual weather causing sudden
damage, thefts, riots, vandalism or terrorism.
1.5 "Claim" means any obligat on, liability, action, claim (including, but not
limited to, any claim for damage to property or injury to or death of any persons),
judgment, demand, lien or encumbrance, penalty, fine, loss, damage, cost or expense.
1.6 "Commencement Date" means the date upon which the first Major
opens for business to the public.
1.7 "Common Area" means all of the Shopping Center and its
improvements, including sidewalks adjacent to the front of a building, but not
including Building Area, areas immediately adjacent to a building for truck parking
and unloading or trash storage, and supports and appurtenances that extend from a
building.1,1
1.8 "Common Ex enses " means expenses incurred by Managing Owner
with respect to the Common Area, as provided in Article VI.
1.9 "Drug Store" means the building containing Floor Area of
approximately 25,820 square feet proposed to be constructed in the Building Area
designated "Drug Store" on the Site Plan, including its areas for truck parking and
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unloading and trash storage, and any supports and appurtenances that extend from
the Drug Store into the Common Area.
1.10 "Effective Date" means the date upon which this Agreement is recorded
in the Official Records.
1.11 "Environmental Dama es" meais all Claims, expenses of investigation
and defense of any Claim (whether or not such Claim is ultimately defeated), and
costs of any good faith settlement of judgment, of whatever kind or nature,
including, without limitation, reasonable attorneys' fees and disbursements and
consultants' fees, any of which are incurred at any time as a result of the existence
of Hazardous Materials upon, about or beneath the Shopping Center Site or
migrating or threatening to migrate to or from the Shopping Center Site or the
existence of a violation of Environmental Requirements pertaining to the Shopping
Center Site, regardless of, in the case of Section 3.2 (Managing Owner's Indemnity),
whether the existence of such Hazardous Materials or the violation of
Environmental Requirements arose prior to the present ownership or operation of
the Shopping Center Site, and including without limitation:
(i) Damages for personal injury, or injury to property or
natural resources, including, without limitation, lost profits, the cost of demolition
and rebuilding of the Shopping Center, the Market or the Drug Store, or any
portion thereof, and interest and penalties;
(ii) Fees incurred for the services of attorneys, consultants,
contractors, experts, laboratories and all other costs incurred in connection with the
investigation or remediation of such Hazardous Materials or violation of
Environmental Requirements including, but not limited to, the preparation of any
feasibility studies or reports or the performance of any cleanup, remediation,
removal, response, abatement, containment, closure, restoration or monitoring work
required by any Governmental Authority, or otherwise expended in connection with
such conditions, and including without limitation, any attorneys' fees, costs and
expenses incurred in enforcing this Agreement or collecting any sums due
hereunder; and
(iii) Liability to any third person or Governmental Authority
for costs expended in connection with the items referenced in this Section.
1.12 "Environmental Re uirements" means all applicable laws, all applicable
requirements of all Governmental Authorities, all applicable judicial, administrative
and regulatory decrees, judgments and orders relating to the protection of the
environment.
1.13 "Floor Area" means the total floor area of a building. A Floor Area
shall not include any mechanical penthouse, truck parking or unloading areas,
darkstop, mezzanine area not used for retail sales, the upper levels of any multiple-
deck storage area, trash storage areas or sidewalk area. For purposes of calculating
the Floor Area of a building, any permanent merchandising area adjacent to a
building other than those permitted pursuant to Section 6.2 (Use of Common Area)
shall be included in the Floor Area of that building.
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1.14 "Force Ma'eure" means those events described in Section 15.16.
1.15 "Governmental Authori " means any governmental authority, agency,
department, district, commission, board or instrumentality of the United States, the
State of California or any political subdivision thereof having jurisdiction over the
Shopping Center Site.
1.16 "Hazardous Materials" shall include, without limitation, gasoline, diesel
fuel, petroleum products, polychlorinated biphenyls, asbestos, urea formaldehyde,
foam insulation, radon gas, or any substance:
(i) the presence of which requires investigation, notification
or remediation under any Law; or
(ii) which is or becomes defined as a "hazardous waste",
"hazardous substance", pollutant or contaminant under any Law, including, without
limitation, the Comprehensive Environmental Response, Compensation and Liability
Act (42 U.S.C. Sections 9601 et seq.) and/or the Resource Conservation and
Recovery Act (42 U.S.C. Sections 6901 et seq.); or
(iii) which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic, or otherwise hazardous and is or becomes
regulated by any Governmental Authority; or
(iv) the presence of which on the Shopping Center causes or
threatens to cause a nuisance upon the Shopping Center or to adjacent properties or
poses or threatens to pose a hazard to the health or safety of persons on or about
the Shopping Center, or any portion thereof.
1.17 "Investor" is defined in Section 1.30.
1.18 "Law" means any federal, state or local statute, rule, regulation,
requirement, initiative, ordinance, action or policy, and common law.
1.19 "Major" or "Majors" means , individually and collectively (to the extent
applicable), (a) Ralphs and (b) a Major Drug Store so long as such Major Drug Store
owns or leases the Building Area designated as the "Drug Store" on the Site Plan.
1.20 "Major Dru Store" means a drug store operated by a recognized drug
store chain having (a) at least thirty (30) other drug stores operating in California,
or (b) at least fifteen other drug stores operating in Southern California, and, in
either case, each such drug store shall contain a minimum of 15,000 square feet.
1.21 "Mana 'n Owner" means the Owner of Parcel 4; initially it is
Developer. Each Major is relying upon the skill, knowledge and experience of the
Managing Owner (and, if it is a partnership, of its general partners) for the proper
management of the Shopping Center. Except as expressly provided below, Managing
Owner shall not voluntarily, involuntarily or by operation of law, sell, convey, agree
to sell or convey, or. otherwise alienate (except by a bona fide financing transaction
with an institutional lender) its interest in this Agreement or in the aforesaid
Parcel. In the event Developer shall no longer be the owner of Parcel 4, but shall
continue to own any Parcel in the Shopping Center, then Developer shall continue
to be the Managing Owner hereunder. Any new Managing Owner shall agree, in
writing, to faithfully and fully observe, perform and discharge each and every duty
and obligation of Managing Owner as set forth in this Agreement and the prior
MS07326/940078/#119901.1 4
Managing Owner shall be released of any further obligation to act as Managing
Owner. The Managing Owner shall have the right to resign as Managing Owner
provided that the Managing Owner shall give the Owners not less than one hundred
eighty (180) days prior written notice of such election. In addition, Developer may
only resign as Managing Owner after completion of Building Areas 2 and 3 as shown
on the Site Plan.
1.22 "Market" means the building containing a ground Floor Area of
approximately 46,008 square feet to be constructed by Ralphs on the Ralphs
Property in the portion of Building Area designated "Market" on the Site Plan,
including its areas for truck parking and unloading and trash storage, and any
supports and appurtenances that extend from the Market into the Common Area.
1.23 "Official Records" shall mean the Official Records of the County
Recorder of the County in which the Shopping Center Site is located.
1.24 "Owner" and "Owners" means each signatory to this Agreement or their
respective successors in interest from time to time as hereinafter provided as shown
by the Official Records as of the date of the exercise of powers or rights or the
performance of obligations created by this Agreement. Such reference includes a
person designated in writing by any Owner(s) to act in place of such Owner(s) as
provided herein, provided such written authority shall be recorded in the Official
Records, and provided further that:
(i) In the event of the assignment, transfer or conveyance of
all or any portion of the fee interest of any Owner in and to any Parcel as a result
of which such Owner does not retain a beneficial interest other than under the
terms of a deed of trust or mortgage or does not simultaneously acquire a new
interest by way of leasehold, life estate or other possessory interest , then the powers
conferred upon such Owner attributable to the ownership or interest so transferred
shall automatically (without the necessity of a specific conveyance) be deemed
assigned , transferred or conveyed to the new owner, and the obligations hereunder
shall (without the necessity of a specific assumption) be deemed assumed by the new
owner upon acquisition of its interest, and the new owner shall become an "Owner"
under this Agreement;
(ii) In the event the whole of the interest of any Owner in and
to any Parcel is assigned , transferred or conveyed in connection with a Sale
Leaseback Transaction, or in the event such Owner shall convey its interest in the
Parcel or any part thereof by Mortgage, then none of the powers or obligations
conferred upon such Owner pursuant to this instrument shall be assigned,
transferred or conveyed with the interest assigned , transferred or conveyed, but all
of the powers and obligations herein referred to shall remain in such Owner so long
as it retains such possessory interest in and to said Parcel;
(iii) In the event of the lease of the whole of the interest of
any Owner in and to any Parcel to a single tenant and, as a result of which, such
Owner does not retain a possessory right to such Parcel, then the powers conferred
upon such Owner attributable to the Ownership or interest so transferred shall, at
the option of such Owner, be deemed assigned, transferred and conveyed to such
MS07326/940078/#119901.1 5
•
tenant, and the obligations hereunder shall be deemed assumed by such tenant, and
such tenant shall become an "Owner" under this Agreement, provided that the
Owner shall notify Managing Owner and the other Owners that such Owner has
elected to transfer such rights to such tenant. The Ralphs Property has been leased
to Ralphs as a single tenant, and Wood, as the Owner of the Ralphs Property,
hereby notifies Managing Owner and the other Owners that such rights with regard
to the Ralphs Property have been assigned to Ralphs and Ralphs has assumed such
obligations.
(iv) In the event any Owner shall transfer its interest or a
portion of its interest in the Parcel in such manner as to vest its interest in its
Parcel in more than one person, then not less than 51% in interest of such
transferees shall designate one of their number to act on behalf of all of such
transferees in the exercise of the powers granted to such Owner under this
instrument. Such transferees (together with the original Owner, if it retains an
interest) shall collectively be deemed the Owner hereunder, and, so long as such
designation remains in effect, such designee shall have the power to bind such
Parcel and all such transferees. Any such designation must be in writing and served
upon the other Owner(s) under this Agreement by registered or certified mail. The
acts of a designee, even a designee that has resigned or transferred its interest, shall
be binding upon all persons having an interest in such Parcel, until such time as
written notice of a new designation is given. In the absence of any such written
designation, the other Owner(s) under this Agreement shall only be required to deal
with one person representing the Owners of any Parcel, and the acts of the
individual or entity having the largest share of ownership of the Parcel, or if there is
more than one having equal largest shares, then the individual or entity having the
largest share whose name comes first alphabetically, shall be deemed the designee
until a designee is appointed by the Owner(s) of the Parcel in accordance with this
Agreement; and
(v) Whenever the rights, powers and obligations of any
Owner(s) are deemed vested in another Owner or Owners pursuant to the
provisions of subsections (i), (iii) or (iv) above, the transferor shall not be
responsible for the obligations thereafter accruing under this Agreement as to the
transferred Parcel, and the transferee(s) of such interest shall be bound to perform
such obligations.
1.25 "Parcel" or "Parcels" means the parcels designated on Exhibits "A-1"
and "A-2".
1.26 "Parcel Map" means the final Parcel Map to be recorded in the Official
Records of the Country in which the Shopping Center is located to divide the
Shopping Center into parcels. The Parcel Map is to be an outgrowth of Tentative
Parcel Map No. 90-353.
1.27 "Prima Common Area" means the portion of the Common Area
shown as crosshatched on Exhibit "C" attached hereto and incorporated by this
reference herein.
MS07326/940078/#119901.1 6
1.28 Pro Rata Share.
(i) "Pro Rata Share", for the purpose of computing the Pro
Rata Share of a particular Parcel, shall be a fraction (which may be expressed as a
percentage), the numerator of which shall be the Floor Area of the building(s) on
the Parcel, or if no building exists, the Flooi Area of the building shown on the Site
Plan, and the denominator of which shall be at least the total Floor Area of all
buildings then existing in the Shopping Center, but in no event shall the
denominator of the fraction be reduced below the total Floor Area of all buildings
shown on the Site Plan.
(ii) Initially, the Pro Rata Share allocated to the parcel
designated as the Ralphs Property shall be 38.63% and the Pro Rata Share allocated
to the parcel designated as Drug Store on Exhibit "B" hereto shall be 21.68%, but at
any time after the Commencement Date, at the request of either Major or Managing
Owner, the Major or Majors, as may be appropriate, Pro Rata Share will be
recomputed in accordance with subsection (i), but any change shall only be effective
prospectively. The Pro Rata Share of the other Owner(s) shall be 100% minus
Ralphs Property and Drug Store's Pro Rata Shares. If there is more than one other
Owner, the Pro Rata share of the other Owners shall be allocated among them as
provided herein, or as they shall agree among themselves.
1.29 "Proceeds" means any proceeds of casualty insurance required to be
carried under this Agreement, condemnation awards, or damages recoverable from a
third party which are received or receivable by an Owner as a result of a Casualty or
on account of the damage, less costs of collection.
1.30 "Sale Leaseback Transaction " means (a) a sale (or assignment) and
leaseback (or subleaseback) transaction as to an entire Parcel, after which the seller
(or assignor) retains its possessory interest in and to the Parcel; or (b) a transaction
whereby a Major assigns , transfers or conveys its interest in its respective
Development Agreement to a purchaser ("Investor") who acquires such Major's
Property and simultaneously transfers the possessory interest in and to such Major's
Property to such Major, pursuant to a lease under which such Major is the tenant
and Investor is the landlord.
1.31 "Sign Plan" is defined in Section 5.6 below and means the sign plan
attached hereto as Exhibit "D" and made a part hereof.
1.32 "Site Plan" means the Site Plan attached hereto as Exhibit "B", which
shows the planned configuration of the Shopping Center.
1.33 "Taxes " means all general and special real property taxes and
assessments.
1.34 "Term" means the period that this Agreement (except for certain
easements provided for in Article VII, which survive the end of the Term) is in
effect, which period shall commence as of the Effective Date and shall continue,
except as otherwise provided herein, for a period of 65 years, or until terminated as
provided herein.
MS07326/940078/#119901.1 7
ARTICLE II
INSURANCE
2.1 Owner 's Fire Insurance . Each Owner shall, at all times, from and after
the date it commences construction and thereafter to the end of the Term, maintain
or cause to be maintained standard form fire insurance with extended coverage,
vandalism and malicious mischief endorsements , or other insurance providing equal
or better coverage written by one or more financially responsible insurance
companies rated Class B+ in Best 's Key Rating Guide, Property-Casualty ('Best's")
or, in the event of a foreign insurance company not rated by Best's, a company
having financial strength equivalent to the companies licensed to do business in the
State of California and so rated ("Financially Responsible Insurance Companies"),
and shall insure the building or buildings on its Parcel in an amount not less than
(90%) of the actual replacement cost of said improvements (excluding in each
instance foundation and excavation costs and the cost of underground flues, pipes,
and drains). Any loss under any such insurance policy shall be adjusted with the
insurance company(ies) by such Owner.
2.2 Owner's Liabili Insurance. Each Owner shall, from and after the
Effective Date and thereafter to the end of the Term, maintain comprehensive
general liability insurance against liability for such Owner's operations in the
Shopping Center . such insurance (a) shall be written by one or more Financially
Responsible Insurance Companies; (b) shall have limits of liability not less than
$2,000 ,000.00 for personal injury or death, and $500,000.00 for property damage,
with an aggregate loss limitation not less than $4,000,000 .00; and (c) shall include
contractually assumed liability. If the limits of such insurance become excessive or
inadequate due to the changes in the overall price level or the size of claims being
experienced , at the request of either Major or Managing Owner, each Major and
Managing Owner agree to negotiate in good faith new limits based on shopping
center industry practices. Except for claims arising in connection with the Common
Area, such insurance shall be primary and not in excess of or contributor with other
insurance carried by other persons.
2.3 Common Area Insurance. Managing Owner shall, at no expense to
either Major except as provided herein, from and after the Effective Date and
thereafter to the end of the Term, maintain comprehensive general liability
insurance and cause to be issued a certificate of insurance against all claims and
liability arising out of the Common Area and its operations. Such insurance (a)
shall be written by one or more Financially Responsible Insurance Companies; (b)
shall have limits of liability not less than $2,000,000 .00 for personal injury or death
and $500 ,000.00 for. property damage, with an aggregate loss limitation not less than
$4,000 ,000.00 ; shall name each Major, Managing Owner and any other Owner who,
by written request to Managing Owner requests to be named as an insured, as
additional insureds ; and (d) shall include contractually assumed liability. If the
limits of such insurance become excessive or inadequate due to the changes in the
overall level or size of claims being experienced, at the request of a Major, or at
Managing Owner 's request , each Major and Managing Owner agrees to negotiate in
MS07326/940078/#119901.1 8
•
good faith with respect to new limits based on shopping center industry practices.
Except for claims arising out of an Owner's operations in the Shopping Center, such
insurance shall be primary and not in excess of or contributory with other insurance
carried by other Owners.
2.4 Cost Sharing. If Managing Owner complies with any obligation under
Section 2.3 by obtaining a separate policy of insurance covering nothing other than
the Common Area then the cost of that Common Area policy will be a Common
Expense. If such policy provides other or additional insurance than the Common
Area insurance required hereby, then Managing Owner will obtain from the
insurance company a written apportionment showing the portion of the cost of such
policy that provides only the coverage of the Common Area required by, and only
that portion of such cost will be a Common Expense. Managing Owner shall include
the amount of the premium or apportionment in the budget of anticipated Common
Expenses, as provided in Article VI, for approval by each Major pursuant to Article
VI. If either Major is able to obtain a quotation from a Financially Responsible
Insurance Company for a policy of liability insurance covering only the Common
Area as required hereby, and such quotation is lower in cost than the cost of such
insurance charged by Managing Owner, then Managing Owner may not charge as a
Common Expense a greater amount than an amount equal to 110% of the amount
provided in the quotation obtained by such Major.
2.5 Waiver of Subro ation• Certificates- Cancellation Notice. All Owners
waive, on their behalf and on behalf of their insurance companies, subrogation and
right of recovery in favor of all other Owners and their agents, servants, employees
and insurers with respect to perils covered by the policies of casualty insurance
required to be carried hereunder. Each Owner, upon request of either Major or
Managing Owner, will provide to the requesting party proper certificates evidencing
the coverage required hereunder. All insurance carried by an Owner shall contain a
provision that it shall not be canceled or the coverage reduced below the amount
required hereunder without at least thirty (30) days notice to each Major and
Managing Owner. Managing Owner shall be responsible for causing all Owners to
comply with the requirements of this Article.
2.6 Deductibles- Self Insurance- Blanket Policies. Each Major may
maintain any insurance which this Agreement requires with a deductible or self-
insurance retention of up to $700,000.00. Each Major may also maintain such
additional levels of self-insurance retentions and deductibles as is consistent with
the practice among the major competitors in Southern California of the respective
Major. In addition, so long as an Owner's net worth, in accordance with its most
recently published certified financial statements, or as certified by the Chief
Financial Officer of such Owner, exceeds $30,000,000.00, such Owner may comply
with any of its insurance obligations under Section 2.1 and Section 2.2 in whole or
in part by means of self-insurance or without insurance. In the event of any such
self-insurance, self-insurance retention or deductible, such Owner will make
available the same indemnity and proceeds as if the coverage required hereby were
provided. Any insurance required to be carried by an Owner under this Article may
MS07326/940078/#119901.1 9
•
be carried under a blanket policy or under policies maintained by such Owner with
respect to other premises or property owned or operated by it, its subsidiaries or
affiliates.
ARTICLE III
INDEMNIFICATION
3.1 Owner's Indemni . Each Owner shall, from and after the Effective
Date and thereafter to the end of the Term, indemnify, defend and hold harmless all
other Owners from any and all Claims resulting from the indemnifying Owner's
operations on the Shopping Center Site during the Term, including Environmental
Damages arising out of such operations and including any liens arising out of work
contracted for by the indemnifying Owner. This indemnification shall include all
costs and expenses, and reasonable attorneys' fees which any other Owner may
expend in connection with any of the foregoing. However, this shall not require an
Owner (other than Managing Owner) to indemnify another Owner against matters
arising out of the breach of any obligation imposed on Managing Owner by this
Agreement or require any Owner to indemnify any other Owner from any act or
omission of another Owner, or its contractors, tenants, agents or employees.
3.2 Mana 'n Owner's Indemni .
(a) Managing Owner shall (in addition to its indemnification
obligations as an Owner pursuant to Section 3.1) indemnify, defend and hold
harmless:
(i) all other Owners from and against any and all Claims
resulting at any time from any construction, operation or use of the Common Area
or any injury to any person or damage to any property on the Common Area or any
other Claim arising as a result of the condition of the Common Area or any
improvements or equipment thereon, including any liens arising out of work
contracted for by Managing Owner, any violation of law by Managing Owner, or any
act or omission by Managing Owner or persons on the Shopping Center, excluding
the buildings, with Managing Owner's permission, including Managing Owner's
employees, contractors, agents or tenants. This indemnification shall include all
costs, expenses and reasonable attorneys' fees which an Owner may expend in
connection with any of the foregoing; and
(ii) Each Major and its directors, officers, shareholders,
employees, agents, contractors, subcontractors, consultants, subtenants,
concessionaires and invitees from and against any and all Environmental Damages
arising as the result of the presence of Hazardous Materials upon, about or beneath
the Shopping Cent r,.Site or migrating to or from the Shopping Center Site, or
arising in any manner whatsoever out of the violation of any Environmental
Requirement pertaining to the Shopping Center Site and the activities thereon,
which are due to acts or omissions of the Managing Owner or its directors, officers,
shareholders, employees, agents, contractors, subcontractors or consultants, prior to
or during the Term.
MS07326/940078/#119901.1 10
(b) Nothing set forth in this Section 3.2 shall require Managing
Owner to indemnify another Owner against matters arising out of such other
Owner's operations in the Shopping Center, or resulting from any act or omission of
such other Owner, or its contractors, tenants, agents or employees.
ARTICLE IV
TAXES AND ASSESSMENTS
4.1 Pa ent of Taxes and Assessments. Each Owner shall pay prior to
delinquency all Taxes levied or assessed upon or against the land and improvements
within such Owner's Parcel during the Term.
4.2 Contests. Any Owner may contest, object to or oppose (herein
"Contest") any tax , assessment , imposition or charge of which such Owner is
required by this Agreement to pay all or a portion. Each Owner agrees to cooperate
with the contesting Owner at no out-of-pocket expense to the noncontesting Owner
in any such Contest. The expense of the Contest shall be paid by the contesting
Owner. The contesting Owner shall not subject a noncontesting Owner to any
penalty, fine, criminal proceeding or increase in taxes, or to imminent danger of
final sale or seizure of a noncontesting Owner's interest in the Shopping Center, as
a result of any such Contest.
ARTICLE V
USE CONTROLS AND RESTRICTIONS
5_1 Develo ment and 0 eration of Sho in Center. In order to provide
for the maximum use of the Shopping Center and the mutual best interests of the
Owners, all Owners agree that the Shopping Center shall be developed, operated
and maintained in accordance with the Site Plan as an integrated retail shopping
center containing a combination of merchants which: (i) provide in the aggregate a
balanced and diversified grouping of retail stores, merchandise and services; (ii)
efficiently utilize and not exceed the capacity of the available parking area or any
portion thereof; and (iii) fixturize, decorate and maintain their respective store
premises in a tasteful and decorous manner, having regard for the general standards
of appearance prevailing in the Shopping Center. Nothing contained in this Section
5.1 shall be construed to constitute a covenant of continuous operation by any
Owner or occupant of the Shopping Center.
5.2 Sho in Center Use and 0 eration Restrictions.
Managing Owner shall be responsible for the overall supervision of the
Shopping Center in accordance with the requirements of this Article. In order to
provide for the efficient operation of the Shopping Center:
(i) Each Owner agrees that everything done or installed or
constructed by it or with its permission or consent on its Parcel shall conform to,
and thereafter shall use commercially reasonable efforts to cause every occupant on
its Parcel to conform to, every applicable requirement of Law and Governmental
Authority, including, but not limited to, requirements pertaining to health, welfare
or safety of employees or the public.
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(ii) Each Owner shall use commercially reasonable efforts to
cause every occupant of its Parcel to conduct its activities in such a manner as not
to constitute a nuisance or create unreasonable interference with other occupants in
the Shopping Center and their customers and business invitees.
(iii) Managing Owner will provide an employee parking area in
that portion of the Common Area behind the Market, the Drug Store and Shops 1,
2, and 3, as such buildings are shown on the Site Plan for those employees who
work in the buildings on such Parcels and the Owners of such Parcels shall use
commercially reasonable efforts to cause its employees to use such parking.
Managing Owner shall encourage, but not require, all other employees in the
Shopping Center to park in that area, as set forth in the Employee Parking
Management Plan referred to in Section 6.3 below.
(iv) Each Owner shall cause all leases to which it is a party to
contain appropriate provisions enabling such Owner to enforce the requirements of
this Article.
(v) Except as provided in Article VI (Common Area), no
Owner shall permit in the Shopping Center any display or sale of merchandise, or
any storage or placement of merchandise, portable signs or other objects belonging
to an occupant of the Shopping Center outside the defined exterior walls, roof and
permanent doorways of any store premises.
(vi) No Owner shall have or permit any merchandise or
substance in or about the Shopping Center or any act in or about the Shopping
Center which will (a) cause or threaten the cancellation of any insurance covering
any other Owner's building or the Common Area, or (b) increase the insurance rates
applicable to any other Owner's building or the Common Area over the rates which
would otherwise apply, unless the Owner causing the increased cost agrees to pay
the increased cost.
(vii) The name of the Shopping Center shall initially be
"Meadowlark Plaza." Such name may be changed from time to time by agreement of
the Majors and Managing Owner.
5.3 Use Restrictions.
(i) No portion of the Shopping Center shall be used (a) for
industrial use; (b) any governmental use or office, except as expressly permitted
herein, (c) for the operation of a massage parlor, adult book or video store, or for
the sale, rental or exhibition of pornographic material (provided that the sale or
rental of "adult" materials by a book or video store shall not violate this restriction if
the sale or rental is in compliance with applicable Laws and requirements of
Governmental Autbc ity and is an incidental use with no sign, advertisement or
display in the storefront window or in locations visible from the outside); (d) by
tenants that create undue noise, litter or odor; (e) for a beer tavern, bar, or cocktail
lounge (but this shall not prevent the incidental sale of liquor for on-premises
consumption as part of a sit-down restaurant otherwise permitted under Subsection
(iii) below; (f) for a skating rink, billiard parlor, amusement center, bowling alley,
MS07326/940078/#119901.1 12
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health spa, exercise club, or other similar operations; or (g) for a hotel, motor inn,
school, vehicle or boat dealer (or similar entcrprise), theater, or funeral parlor.
(ii) Shops 2 and 3 (as such shops are shown on the Site Plan)
shall not be used for "Retail Office Use" (as defined below) in excess of three
thousand (3,000) square feet of Floor Area in the aggregate, (not more than 2,000
square feet of which shall be located in Shop 2) except for incidental office use by
retail stores. As used herein, the term "Retail Office Use" refers to office uses that
are retail in nature and oriented to the public, such as a post office, travel agency,
real estate (except that the conduct of real estate caravans is prohibited), insurance,
escrow, medical, legal, dental, veterinarian, diet center or optometrist offices or a
retail branch of a financial institution, provided, however that no veterinarian, diet
center or real estate office may be located in either Shop 1 or Shop 2. The second
floor of Shop 4 (as shown on the Site Plan) may be used for any office uses,
including but not limited to Retail Office Use. Any office uses in the remaining
portion of the Shopping Center shall be limited to Retail Office Use.
Notwithstanding the foregoing, any office space within the building located on Pad
D (as shown on the Site Plan) may be used for any legally permitted office uses
whatsoever.
(iii) No portion of the most westerly fifty percent (50%) of
Shop 1 (as shown on the Site Plan), no portion of Shop 2, and no portion of Shop 3
within sixty-five (65) feet of the outside wall of the Market may be used for a "Food
Use" (as defined below). The aggregate of Food Uses in Shop 3 and the most
northerly forty (40) feet of Shop 4 (as measured along the eastern wall of such Shop
4) shall not exceed three thousand nine hundred (3,900) square feet of Floor Area.
The aggregate of Food Uses within each of Shop 4 and the building on Pad C (as
shown on the Site Plan) shall not exceed five thousand (5,000) square feet of Floor
Area each. No portion of the Shopping Center shall be used for a single Food Use
occupying more than five thousand (5,000) square feet of Floor Area; provided,
however, a single Food Use occupying in ex(ess of five thousand (5,000) square feet
shall be permitted within the building on Pad D (as shown on the Site Plan). As
used herein, the term "Food Use" refers to any food service facility of any type
whatsoever, including sit-down, take-out, specialty, delivery, or dinner house
operations; provided, however, that any such establishment that (i) occupies
eighteen hundred (1,800) or less square feet of Floor Area, (ii) is located at least
forty (40) feet from the nearest outside wall of the Market, and (iii) sells primarily
ice cream, yogurt, candy, health products (when such products consist primarily of
vitamins and similar products), donuts, bagels, cookies or pizza (provided such pizza
establishment is solely take-out and has no sit-down dining capacity), shall not be
deemed a Food Use.
(iv) No portion of the Shopping Center shall be used for a
drive-through food service facility, except that such facility shall be permitted within
the parcel which includes the building area shown on the Site Plan as Pad D.
(v) No Supermarket may be operated on any portion of the
Shopping Center except the Market Building Area. As used in this Subsection, the
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term "Supermarket" shall mean any of the following: a supermarket, mini-mart or
mini-market, general food market or grocery store, meat market, fruit store,
vegetable store, cheese store, liquor store, delicatessen, bakery or any combination
thereof, or, subject to the next sentence, any store selling any of the items or lines of
items referred to in this sentence; provided, however, as used herein, the term
delicatessen shall not be deemed to include a sandwich shop which displays prepared
meats and cheeses solely for the preparation of sandwiches on the premises (and if
the user so elects prepared salads incidental thereto) and not for the independent
sale thereof; and provided, further, that the term bakery shall not be deemed to
include a doughnut store, bagel store or cookie store. The restrictions imposed by
this Subsection shall not apply to the sale of any items or lines of items referred to
in this Subsection if such sale is incidental to an occupant's primary business in its
premises. In the event that Ralphs fails to continuously occupy the Market for the
conduct of a supermarket business for more than two (2) consecutive years (except
for Force Majeure events, in which case said two-year period shall be extended on a
day-for-day basis during the pendency of any Force Majeure event), then the
provisions of this subsection (v) shall be of no further force and effect.
(vi) No portion of the Shopping Center other than the
building designated as Drug Store on the Site Plan shall be occupied or used for the
purpose of a business, trade or profession which is engaged in the routine dispensing
of prescription drugs by any appropriately licensed individual, or which requires or
has a license or permit to conduct a pharmacy, or which employs or is required to
employ a registered or licensed pharmacist, nor for the conduct of any store,
business, trade or profession which is called, labeled, named or is commonly known
or referred to as a "drug store," "pharmacy" or "apothecary" ("Drug Store"). Any
Major Drug Store which is the occupant of the building designated as Drug Store on
the Site Plan shall, notwithstanding any other provision of the OREA to the
contrary, be entitled to use such building for the sale of alcoholic beverages for off-
premises consumption, fluid milk, ice c.•eam, yogurt, and pre-packaged food and pre-
packaged bakery goods so long as such sales are incidental to the primary operation
of a Major Drug Store. Notwithstanding the right to sell the foregoing items, the
Major Drug Store shall not have the right to sell any pre-packaged or unpackaged
perishable food items or frozen foods. Subject to Force Majeure, the failure to
operate a Drug Store within the Drug Store Building Area for a period in excess of
twenty-four (24) months shall cause the foregoing restriction to terminate
automatically. Notwithstanding the above, this Subsection shall not preclude the
sale of health and beauty aids and non-prescription drugs in any Building Area
within the Shopping,-Center.
(vii) Except as otherwise provided above, all buildings in the'
Shopping Center will be occupied and used only by businesses for the retail selling
of goods, wares, merchandise and services meeting the requirements of this Section.
5.4 Use of Market.
(a) Ralphs, pursuant to the lease referred to in the Recitals above,
shall, for at least three (3) years, continuously occupy the Market for the conduct of
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a supermarket business . Cessation of operation by reason of Force Majeure, repairs
or remodelling and other temporary cessations in the usual course of Ralphs's
business shall not be deemed a violation of the foregoing covenant. Subject to
Managing Owner's rights set forth in this Section 5.4, Ralphs may, in its sole
discretion, at any time after such 3-year period , cease doing business or conduct any
other lawful retail business on the Premises, except those expressly prohibited by
this Article. Except as expressly set forth herein, this Article shall not restrict
Ralphs in the operation of concessions or departments as a part of the supermarket
or other business then operated in the Market, including, but not limited to, the
operation of one or more automatic teller machines inside the Market. Ralphs may
not permit the operation of a branch of a financial institution within the Market;
provided, however, in the event that (i) an Owner has not recorded in the Official
Records of Orange County, California , a lease between an Owner and a financial
institution or a conveyance from an Owner to a financial institution for the
operation of a branch of such financial institution in the Shopping Center within
two (2) years after the date on which Ralphs opens for business or (ii) the operation
of such financial institution ceases and is not reinstituted within six (6) months
(except for Force Majeure events, in which case said six (6) month period shall be
extended on a day-to-day basis during the pendency of such Force Majeure event),
Ralphs may permit the operation of a branch of a financial institution within the
Market, not in excess of 400 square feet of Floor Area.
5.5 Buildin Restrictions - Subdivision- Governmental A rovals.
(a) No building shall be constructed or located on any part of the
Shopping Center other than on Building Area. In no event shall the Floor Area in
the Shopping Center exceed 121,000 square feet. Prior to an Owner 's commencing
or allowing construction of any building, the construction of which commences more
than one (1) year after the construction of the Market commences, and prior to
remodeling, or rebuilding any existing building, such Owner shall cause the
architectural design of the exterior of such building to be in conformance with the
approved Building Elevations for such building. If no approved Building Elevations
exist , such Owner shall submit Building Elevations to both Managing Owner and
each Major for their approval. If Managing Owner or either Major disapproves, it
shall indicate in writing to such Owner the areas of its disapproval within thirty
(30) days after the receipt of the Building Elevations, and such Owner may make
appropriate changes and resubmit the Building Elevations for approval.
(b) Each respective Owner agrees that the buildings to be
constructed in the following Building Areas shall have the following maximum
heights:
Maximum Hei ht
32 Feet
32 Feet
32 Feet
34 Feet
32 Feet
32 Feet
MS07326/940078/#119901.1 15
C 32 Feet
D 32 Feet
(c) In the event that there shall be, after the Market opens for
business, any land division or subdivision of any portion of the Shopping Center or
should there be any revisions, additions, deletions, or substitutions with respect to
any existing subdivision, no subdivision, parcel map or similar map shall be recorded
unless and until such map and copies of all of the conditions of approval imposed by
the Governmental Authority having jurisdiction have been submitted to Managing
Owner and each Major and both Managing Owner and each Major have approved
the same in writing. The cost of compliance with any conditions of approval shall
be the responsibility of the Owner seeking the further subdivision.
(d) If any permit, approval, or action, such as a zone change,
conditional use permit, planned development permit, variance, precise plan approval,
environmental impact report or similar report is proposed to be obtained or
amended in connection with or as a prerequisite to any further development in the
Shopping Center, all applications and submissions therefor, including all exhibits
thereto, shall be submitted to Managing Owner and each Major for review and
approval prior to delivery to any Governmental Authority. In such event if either
Major or Managing Owner disapproves any such application, submission or exhibit
thereto, the submitting party shall not pursue the matter further unless the
application, submission and all exhibits are revised to satisfy Managing Owner's and
each Major's requirements. Upon the submitting party's receipt of any condition of
approval imposed or proposed to be imposed by any Governmental Authority in
connection with the foregoing, the submitting party shall deliver a copy to Managing
Owner and each Major for approval. If either Managing Owner or either Major
disapproves any condition or proposed condition, the submitting party shall use
commercially reasonable efforts to eliminate or modify the disapproved condition so
as to be acceptable to Managing Owner, the Majors and to the submitting party
within sixty (60) days following disapproval. The submitting party shall observe and
perform all conditions of any such governmental action.
5.6 Sign Plan. No Owner shall allow any sign, picture, advertisement or
notice of any kind to be displayed, inscribed, painted on or affixed to any part of the
outside of any building on its Parcel unless it is in conformance with the sign plan
("Sign Plan") attached hereto as Exhibit "D" and made a part hereof. Each Owner
shall provide in all leases and agreements to which it is a party affecting the
011oppiiib Caentci vitc a YiuixiuitiOn Of ail Signs except those in coniuiniance with the
Sign Plan. Notwithstanding the foregoing, any chain operator having not less than
thirty (30) retail stores, including each Major, shall be permitted to display its
standard sign. Any change or amendment to the Sign Plan must be approved by
Managing Owner and each Major. Should a Major desire changes in the Sign Plan
with respect to its signs, such changes shall require the approval of Managing
Owner and the other Major (if any) unless the signs as changed conform to the
standard signs of the Major requesting such changes.
MS07326/940078/#119901.1 16
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5.7 0 eration in Conformit to Law and A eements- Nuisance- and
Leases.
(i) Everything done or installed or constructed by an Owner
or with its permission or consent in the Shopping Center and, to the best of each
Owner's ability, all operations in the Shopping Center shall conform to and be
performed in accordance with (a) all applicable laws, ordinances, rules, and
regulations of Governmental Authority, (b) the requirements of this Agreement and
other applicable agreements, (c) all requirements pertaining to health, welfare or
safety of employees or the public, and (d) in such manner as not to constitute a
nuisance or create unreasonable interference with other occupants of the Shopping
Center and their customers and business invitees.
(ii) Each Owner shall cause all leases of space on such
Owner's Parcel to contain appropriate provisions enabling enforcement of the
requirements of this Agreement.
5.8 Construction Covenants. From and after the date the first Major opens
for business, each Owner shall cause the following to be done on its Parcel:
(a) All areas on which construction has commenced but is not
complete shall be properly maintained in a safe and clean condition, free of debris
and trash. Until such construction is inside an enclosed building, such areas shall
be enclosed or surrounded by an adequate fence or barrier. Such construction shall
be performed in a manner that protects customers, employees and other business
invitees of each Major and the other occupants of the Shopping Center from
construction hazards and that protects the construction from unauthorized
intruders.
(b) Each Owner shall cause every occupant of its Parcel to conduct
all construction activities in such a manner as to reduce interference with the other
occupants in the Shopping Center and their customers and business invitees, and
shall store all construction materials and equipment to the rear of its Parcel during
construction.
(c) All areas upon which construction has not commenced shall be
graded to finish grade, and shall be maintained in a safe and clean condition, free of
debris and trash, and attractively landscaped.
5.9 Buildin Maintenance. Each Owner shall maintain or cause to be
maintained the buildings and the portions of the Building Area on their respective
Parcels, which shall for purposes of this Section include the sidewalks, loading dock,
service areas , trash storage areas, canopies, and ramps located in areas adjacent or
appurtenant to such buildings, in a safe, clean, and tenantable condition and in good
order and repair ar4 appropriate for a first class retail shopping center. Such
maintenance shall include, but not be limited to, repainting or restaining all painted
or stained exterior surfaces respectively at least once during each seven-year period
commencing as of the date such building opens for business with the same colors as
such building was originally painted, unless each Major and Managing Owner shall
consent to a different color.
MS07326/940078/#119901.1 17
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ARTICLE VI
COMMON AREA
6.1 Confi ration of Common Area. The Common Area shall be under the
management, supervision and control of Managing Owner. Except as provided
herein, however, no Owner shall make any use of, or change to, the Common Area
without the prior approval of both Managing Owner and each Major. Managing
Owner and/or each Major may withhold such approval, in its sole discretion, when
any Owner desires to make any of the following changes: (a) Any change in the
location or arrangement of traffic lanes, driveways or curb cuts in the Shopping
Center, as shown on the Site Plan; (b) Any changes to the Primary Common Area,
as shown on the Site Plan; or (c) Any reduction in the number of parking spaces in
the Shopping Center below 5.0 spaces per 1,000 square feet of Floor Area in the
Shopping Center. The Majors may withhold approval to any desired changes other
than those expressly set forth in this Section only if such changes might materially
and adversely affect the Major's costs or operations. Managing Owner_ma (subject
to Section 6.7 [Budget Approval] repave and restripe the parking lot from time to
time, without making changes to the striping configuration unless the changes are
approved by the Majors. Notwithstanding the foregoing, the kiosk shown on the
Site Plan adjacent to Shops/Pad C may be relocated to any location within either
Parcel 3 or Parcel 8 of Parcel Map No. 90-353 or Parcel 1 of Parcel Map No. 90-628
other than Primary Common Area, provided that (i) the kiosk may not exceed 250
square feet, (ii) the square footage of the kiosk shall be in addition to the maximum
building areas shown for the Parcel on which it is located or to which it may be
relocated, (iii) the location of the kiosk is not restricted to the building limit lines of
the Parcel on which it is located or to which it may be relocated, (iv) relocation of
the kiosk may not cause the net loss of more than four (4) parking stalls (taking
into account parking stalls that may be added to the location from which the kiosk
is removed), and (v) any relocation to a different Parcel shall require the written
consent of the Owner of the Parcel on vhich the kiosk is shown prior to relocation
and of the Owner of the Parcel to which the kiosk is to be relocated. Within ten
(10) days after any such relocation, the Owner of the Parcel to which the kiosk has
been relocated shall provide each other Owner and each Major with copies of an
amended Site Plan showing such relocation, confirming that there has not been a
net loss of more than four (4) parking stalls resulting from such relocation and an
amendment to this Agreement in recordable from incorporating such amended Site
Plan, all at such Owner's sole cost and expense. The Owner of the Parcel on which
the kiosk was located prior to such relocation shall convert the area on which such
kiosk was located to;Common Area, and, if practicable, to parking area.
6.2 Use of Common Area.
(i) Except for any purpose not in furtherance of the operation
of the Shopping Center, the Common Area may be used for any of the following
uses:
(a) Parking of motor vehicles, and pedestrian and vehicular
ingress and egress by each Owner and other occupants of the Shopping Center and
MS07326/940078/#119901.1 18
agents, employees, customers, and other invitees of any of them, to and from
buildings, Common Area and adjacent public streets;
(b) Parking stalls, private streets,(Sidewalks, walls, ramps,
driveways, lanes, curbs, gutters, traffic control areas, signals, traffic islands,
landscaped areas, traffic and parking lightir g facilities and Monument Sign shown
on the Site Plan ("Monument Si ") with appropriate underground electrical
connections, and all things incidental thereto;
(c) Utility lines and facilities serving buildings and/or the
Common Area which shall, if reasonably possible, be underground. Any above-
ground utility lines or facilities must be located behind the Market and other
buildings and must allow free access for trucks to and from all loading areas;
(d) Ingress and egress of delivery and service vehicles to and
from the Shopping Center or any portion thereof and adjacent public streets. Such
vehicles may only be parked in unloading or truck parking areas;
(e) Delivery of goods, wares, merchandise and the rendition of
services to the occupants of the Shopping Center; and
(f) Perimeter walls and fences shown on the Site Plan.
(ii) The Common Area adjacent to any Building Area may be
used for the following:
(a) Installation, removal, repair and maintenance of building
canopies extending from any Building. Atea_.over_pedestrian .side.walks_and the,
Common Area not more than_fifteen (15) feet, together with appropriate canopy
supports;
I
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(b) Installation, removal, repair and maintenance of mail
boxes, hose bibs, standpipes, fire hose connections, downspouts, yard or floodlights
and subsurface building foundations;
(c) Construction and use of loading ramps, docks, trash rooms
and trash bins which shall be located in the service area to the rear of and adjacent
to the Building Area;
(d) Temporary erection of ladders, scaffolding and store front
barricades during construction, remodeling or repair of buildings and building
appurtenances; and
(e) Monitoring wells used in connection with the
environmental remediation in progress on the Effective Date may be located in the
areas designated for landscaping and the related pumps may be located in the rear
of the Shopping Center.
(iii) Ralphs may use the Common Area adjacent to the Market
for a flagpole. Each Major may use the sidewalk adjacent to its Building for the
storage of shopping carts. In addition, each Major may use the sidewalk adjacent to
its Building for seasonal nursery purposes limited to the months of March, April and
May, including the sale of plants and related items; for the sale of Christmas trees
and pumpkins; and for the placement and operation of bicycle racks, water vending
machines, automatic teller machines and telephone booths. Each Major shall
reasonably maintain its respective sidewalk area in a broom clean condition and
MS07326/940078/#119901.1 19
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shall arrange such items in a manner that shall keep the walkways reasonably open
and clear for access and shall, in the case of sales of seasonal nursery items,
Christmas trees and pumpkins as provided in the preceding sentence, leave not less
than the front ten feet of sidewalk in front of its Building Area unobstructed.
Managing Owner and Ralphs shall mutually agree on a location in the Shopping
Center where Ralphs may place and operate a recycling center, as provided in
Division 12.1 of the California Public Resources Code and any other applicable Law.
(iv) The Common Area shall be used reasonably so as not to
interfere with customer parking, except that each Major's shopping carts may be
collected thereon and except that the portion of the Common Area designated for
delivery areas shall be used primarily to serve and supply the buildings within the
Building Area.
(v) Any undeveloped Building Area may, at the option of the
Owner controlling such area, be Common Area, in which event it shall be so
improved and operated, or it may remain undeveloped, in which event it will be
rough graded and maintained by such Owner, at such Owner's cost, in a clean,
attractive and safe condition.
(vi) Without the approval of Managing Owner (and each
Major, if the activity is within the Primary Common Area), covering the specific
time, manner and location of the work, no construction or maintenance activity shall
be done in the Common Area after any Owner opens for business, other than
normal maintenance under the supervision of Managing Owner. In any event, all
such work shall be done promptly and at such times and in such a manner as (i) will
minimize interference with the business operations in the Shopping Center, (ii)
except in the event of an emergency, shall not occur during the months of November
and December, and (iii) not, without such approval in advance, extend into the
Common Area more than ten feet from the immediately adjacent Building Area.
6.3 Char e for Parkin . Employee parking shall be provided behind the
Market, the Drug Store and Shops 1, 2, and 3, as such buildings were shown on the
Site Plan and shall otherwise be maintained in accordance with that certain Parking
Demand Study and Employee Parking Management Plan dated April 1991 and
revised July 1992 submitted to the City of Huntington Beach. In the event of
conflict between the terms and conditions of this Agreement and the terms and
conditions of such Employee Parking Management Plan, the terms of such Parking
Demand Study shall control. No charge of any kind shall ever be made for ingress
to, egress from, or parking in the Shopping Center, unless ordered by a
Governmental Authority. If so ordered, to the extent permitted by Law, any such
charge shall not be ,collected from customers and invitees but shall be prorated to
the occupants of the Shopping Center and paid by them as a Common Expense. If
the Governmental Authority does not permit such a treatment of the charge, but
instead requires that it be collected from customers or invitees, Managing Owner
shall collect such charge and shall credit the amount received, less collection
expenses , against Common Expenses.
MS07326/940078/#119901.1 20
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6_4 Common Area 0 eration and Maintenance. Managing Owner shall
operate and maintain the Common Area in good condition and repair. Managing
Owner's obligations hereunder shall include, but not be limited to, the following:
(i) Removal of all papers, debris, dirt and refuse from the
Common Area as often as necessary;
(ii) Maintenance of parking areas properly designated and
painted with directional signs and striping;
(iii) Maintenance of all paving and surface areas in level and
smooth condition, evenly covered with a surfacing material of equal or superior
quality to the kind originally installed thereon;
(iv) Sweeping of the Common Area by mechanical sweeper as
often as necessary;
(v) Maintenance of all lights and light standards in the
Common Area, and of the Monument Sign, provided, however, each Owner shall be
responsible for maintaining and replacing the face and all tubes in its sign;
NO Lighting of the Common Area, which shall include the
main lighting of the Common Area, with at least one and one-half foot candles and
not more than three foot candles of light on the Shopping Center daily during the
hours of darkness until 11:00 p.m., and security lighting in all other hours of
darkness. If the Common Area on the Ralphs Property and/or the Drug Store
Property (or other portion of the Common Area satisfactory to the Majors) has been
separately metered, the Owner of the property which has been separately metered
shall have the right to keep such portion lighted after the expiration of such period,
and each such Owner shall pay all electricity costs for lighting such portion but shall
not be responsible for any electricity costs for lighting any other portion of the
Common Area. If there is no such separate metering, Managing Owner shall, upon
the request of either Major, keep the entire Common Area lighted after the
expiration of such period, and all electricity costs for lighting the Common Area
shall be Common Expenses;
(vii) Maintenance, care and replacement of all irrigation
systems and of shrubbery and other landscaping upon the Shopping Center and
adjoining parkways so that such landscaping is in a thriving condition;
(viii) Repairing promptly any damage or deterioration to the
Common Area; and
(ix) Reasonable security in the Common Area as may be
reasonably requested by both Majors.
6.5 Common Ex enses. Managing Owner shall include in Common
Expenses only amounts necessary for the operation, maintenance, insurance and
Taxes pertaining to the Common Area, to the end that Common Expenses will be
kept to a minimum. Common Expenses shall not include amounts expended for:
(a) initial construction of the Common Area or construction of any
future phase thereof, subject to the three (3) year limitation set forth in Section
7.2(b) below;
MS07326/940078/#119901.1 21
(b) any new capital improvements made to the Common Area, as
distinguished from maintenance and repair, but replacements of existing
improvements may be included in Common Expenses, subject to Section 6.7 (Budget
Approval), if they (i) conform to the plans and specifications for the improvements
being replaced, and (ii) not are not made to induce other occupants or owners or
proposed occupants or owners to enter into any lease or other agreement;
(c) any charge for depreciation, interest or amortization;
(d) any cost of maintaining or operating any area for trash storage
or truck parking or unloading (since the costs thereof are provided for in Section 5.9
[Building Maintenance]);
(e) any of Managing Owner's expenses for office overhead,
professional services (including legal fees), consultants' or bookkeeping services,
travel costs, salaries and benefits of clerical and administrative personnel.
(f) equipment or property to the extent not used in connection with
the maintenance or repairs of the Common Area;
(g) management or supervisory fees (however designated) payable to
third parties with whom Managing Owner may contract for the general management
or supervision of the Common Area (unless each Major approves the amount of such
fees and the management fee set forth in Section 6.6 [Management Fee] is not
charged as a Common Expense);
(h) any cost of additional or special security or maintenance which is
necessitated by a Food Use, outdoor plaza, outdoor ATM, any drive through facility
or other use requiring additional or special security or maintenance (which
additional special services or maintenance and all costs related thereto shall be the
responsibility and the obligation of the Owner operating such use);
(i) Taxes (since the costs thereof are provided for in Section 4.1
[Payment of Taxes and Assessments]); or
(j) Any cost, including the maintenance, repair or replacement of
pumps, relating to the environmental r..-mediation in progress on the Effective Date.
6.6 Mana ement Fee. Managing Owner may charge, as a Common
Expense, a management fee which shall not exceed ten percent (10%) of Common
Expenses, excluding, for purposes of calculation of the management fee, expenses for
Taxes and insurance. With respect to single expenditures in excess of $10,000.00
(increased every five (5) years by the amount of increase in CPI, beginning on the
first day of the sixth year after the Effective Date and on every fifth year
thereafter), Managing Owner shall receive its management fee only on the first
$10,000.00 of such expense . A single expenditure shall be the aggregate spent in
any 30-day period ((r in a longer period, if the project or job could reasonably be
performed within thirty (30) days) on any agreements or contracts entered into by
Managing Owner for the purchase of labor, equipment or materials or any
combination thereof to be used for what as a general business practice is considered
to be one project or one job or one category of expenditure. As used herein, "CPI"
means the Consumer Price Index for All Urban Consumers (All Items) for the Los
Angeles/Anaheim/Riverside, California Area (1982 - 1984 = 100) published by the
MS07326/940078/#119901.1 22
U.S. Department of Labor, Bureau of Labor Statistics. The CPI for any adjustment
date shall be the CPI for the most recent month for which it is published before the
adjustment date. If the CPI shall no longer be published by the Bureau of Labor
Statistics, then any comparable substitute or successor index evaluating the
information theretofore used in determining the CPI published by said Bureau or
other Governmental Authority of the United States and similarly adjusted as
aforesaid shall be used. If such CPI (or a successor or substitute index similarly
adjusted) is not available, a mutually satisfactory, reliable governmental or other
reputable publication evaluating the information theretofore used in determining the
CPI shall be used.
6.7 Bud et A royal. Managing Owner shall, at least sixty (60) days
before the Commencement Date, and at least sixty (60) days prior to the beginning
of each subsequent calendar year, submit to each Major for its approval a budget of
the anticipated Common Expenses for such year, together with such back-up
material as is reasonably necessary to substantiate the same. (The first budget shall
relate to the period between the Commencement Date and the expiration of the
calendar year in which the Commencement Date occurs.) To the extent such budget
provides for certain materials or services to be provided by one contractor for
property in addition to the Common Area, such back up material shall include the
basis for the allocation of a portion of the total cost to Common Expenses . If either
Major disapproves, it shall set forth in reasonable detail in writing its grounds for
disapproval. Managing Owner and each Major shall then negotiate in good faith to
establish a final approved budget . Managing Owner shall operate, maintain and
repair the Common Area in accordance with the final approved budget and shall not
include in Common Expenses any expense not included in the final approved budget
without the written approval of each Major given prior to the expenditure; provided,
however, that otherwise permissible expenses not included in the final apgr.Q,ved .
budget shall be Common Expenses to_.the. extent they do not in the aggregate. exceed
ten percent (10%) of the final approved buc.get. Managing Owner shall also have
the right to make emergency repairs to the Common Area to prevent injury or
damage to persons or property, and the reasonable cost thereof shall be a Common'
Expense whether or not theretofore approved by each Major. Managing Owner
shall, however, use reasonable efforts to inform each Major of the emergency at the
earliest possible time, and obtain its consent to make repairs.
6.8 Pa ent of Com on Ex enses. Managing Owner shall initially pay or
cause to be paid all of the costs and expenses of constructing, maintaining, repairing
and operating the Common Area, subject to reimbursement as provided in this
Agreement or any other applicable agreement.
a. Following the Commencement Date and continuing thereafter to
the end of the Term, each Major shall, on or before the first day of each month, pay
to Managing Owner an amount equal to 1/12 of such Major's Pro Rata Share of the
final approved budget of Common Expenses for such calendar year (or the
appropriate fraction thereof in the case of a partial calendar year or a partial
calendar month).
MS07326/940078/#119901.1 23
•
b. Managing Owner shall, within 60 days after the end of each
year, submit to each Major a written itemized statement, together with complete
back-up material, including copies of all invoices and paid bills, and cost
breakdowns, of the actual Common Expenses for the year, including a calculation of
the management fee. With such statement Managing Owner shall pay to each Major
the amount, if any, by which each respective Major's Proportionate Share of the
approved Common Expenses actually expended is less than the aggregate amount of
the payments made by such Major for the year. Any Major that paid less than its
Proportionate Share of approved Common Expenses actually expended during the
year shall pay Managing Owner the amount of any such deficiency within 30 days
after receipt of such statement.
c. Unless a Major objects in writing to any cost or expense shown
on such statement within 30 days after receipt thereof, setting forth in reasonable
detail the grounds for such objections, each Major shall pay the cost or expense
shown on the statement within such 30-day period (subject to each Major's right
thereafter to contest any cost or expense whether or not it shall have objected
within such 30-day period). If a Major so objects, such Major shall pay within the
30-day period any amounts due from it for the costs and expenses to which it does
not object. Each Major may, but shall not be obligated to, pay for the costs and
expenses to which it objects, which payment shall be deemed to be under protest.
Managing Owner and any Major objecting to any such cost or expense shall
cooperate reasonably in settling any dispute relating to Common Expenses. Upon
the final determination of such dispute, Managing Owner or the objecting Major, as
the case may be, will then promptly make any additional payment owing to the
other party, with interest (accruing from the 30th day after the statement was
delivered to the Major).
d. Owners other than the Majors shall make payments monthly on
account of their Proportionate Share of Common Expenses, based upon the budget
approved by Managing Owner and Ralphs. Each such payment shall be an amount
equal to 1/12 of such Owner's Proportionate Share of the final approved budget of
Common Expenses for the calendar year (or the appropriate fraction thereof in the
case of a partial calendar year or a partial calendar month). If the Majors and-
Managing Owner agree upon a change in the budget, such change will be reflected
in each other Owner's monthly payments. Managing Owner shall, within 60 days
after the end of each calendar year, send to each Owner a written statement
itemizing in detail the actual Common Expenses, including the management fee,
expended by Managing Owner for the calendar year, and with it Managing Owner
shall refund the amount, if any, by which such Owner's Proportionate Share of the
actual Common Expenses is less than the aggregate amount of the payments
theretofore made by such Owner for such calendar year. Should an Owner have
paid less than its Proportionate Share of Common Expenses during such period,
such Owner shall promptly pay to Managing Owner the amount of such deficiency.
Any amounts owing hereunder not paid within 30 days after such statement is
delivered by Managing Owner shall be paid with interest. Nothing herein shall
MS07326/940078/#119901.1 24
preclude any different agreement between an Owner and Managing Owner
respecting the payment of Common Expenses by such Owner (if such agreement is
in writing), but such different agreement shall not have any effect on the other
Owners or limit Managing Owner's obligations hereunder to the other Owners to
operate and maintain the Common Area. The Majors shall have no liability to any
other Owner by reason of its participation in the budgeting process.
e. Notwithstanding Subsections (a) and (d) above, (i) any
unbudgeted expenditures for capital improvements permitted hereunder shall be
billed and paid only after the expenditures are made, and (ii) each Owner shall pay
its Proportionate Share of any costs incurred by Managing Owner in connection
with any emergency repairs made by Managing Owner pursuant to Section 6.8
within 30 days after Owner's receipt of a bill from Managing Owner.
6.9 Common Ex ense Records. Managing Owner shall keep true and
accurate books and records covering all Common Expenses, in accordance with
generally accepted accounting principles, consistently applied. Such books and
records shall be kept at Managing Owner's principal office in Southern California or
at Managing Owner's office in the Shopping Center for at least two and one-half
years after the end of the year to which they apply. Each Owner, may, up to two
years after receiving any such statement, inspect or audit Managing Owner's books
and records to verify the propriety of any charge. Managing Owner shall make all
necessary arrangement with all other contractors whose charges are included in
Common Expenses so that each Owner may also, if it desires, inspect or audit their
charges. If such an inspection or audit shows that Managing Owner has incorrectly
charged an Owner by more than two percent (2%) of the correct amount, then
Managing Owner shall pay the reasonable expenses incurred in such inspection or
audit. If such inspection or audit shows that Managing Owner has not correctly
charged for Common Expenses, an adjustment (with interest) will be made so that
each Owner will have paid its correct Proportionate Share of Common Expenses.
Any claim or cost item shall not be collectil. le from an Owner, if it is not included on
a statement to such Owner within two years after it is paid by Managing Owner.
6.10 Emer enc Self-Hel b Majors. In an emergency, any Major (the
"Performing Major") shall have the right to perform repairs or maintenance in the
Shopping Center that would otherwise be Managing Owner's obligation. The
Performing Major shall have the right to take such emergency action with only such
notice (if any) to the Managing Owner and the other Major (if any) as is practical, in
the Performing Major's reasonable judgment. Managing Owner shall, upon demand,
reimburse the Performing Major for the Performing Major's reasonable expenses
with respect to any jspch repairs or maintenance (less the Performing Major's Pro
Rata Share, if the cost of the work would be a Common Expense). Any such
reimbursement not made within 30 days after demand shall bear interest. The
Major's rights set forth in this Section are in addition to, and not in lieu of, its
rights at law and in equity and as set forth elsewhere in this Agreement.
6.11 Takeover of Maintenance b Majors. If any Major (the "Operating
Major") at any time, or from time to time, is reasonably dissatisfied with the quality
MS07326/940078/#119901.1 25
or cost of Managing Owner's operation or maintenance of the Common Area, the
Operating Major shall have the right to give Managing owner and the other Major
(if any) notice of such dissatisfaction, specifying why Managing Owner's operation
or maintenance is unsatisfactory. If, 30 days after the date of such notice, Managing
Owner's operation or maintenance shall continue to be unsatisfactory, the Operating
Major shall have the right (but not any obligation) to take over the operation and
maintenance of the Common Area from Managing Owner, either by itself or by
means of a person , firm or corporation hired for such purpose by the Operating
Major. Such takeover shall be effective on the first day of the next succeeding
calendar month. While the operating Major is maintaining and operating the
Common Area, the Operating Major shall have no obligation to pay any portion of
Common Expenses paid by Managing Owner; provided, however, that if the
Operating Major does not elect to maintain liability insurance on the Common Area,
Managing Owner shall continue to do so and the Operating Major shall pay its Pro
Rata Share of the Common Area liability insurance premiums paid by Managing
Owner. Managing Owner shall pay to the Operating Major, within 30 days after
demand, made not more frequently than monthly, an amount equal to (a) the
Common Expenses for work or services paid for by the operating Major minus the
Operating Major's Pro Rata Share of such expenses and (b) a management fee (at
the same percentage set forth in Section 6.6 [Management Fee]). Interest on all
such amounts shall accrue commencing 30 days after demand. The Operating Major
may at any time , upon not less than 60 days' notice to Managing Owner and the
other Major (if any), return the obligation to maintain the Common Area back to
Managing Owner, and the rights and obligations of Managing Owner and each
Major shall then be as they were before the Operating Major's takeover of
maintenance . This Section does not limit any other rights or remedies the Majors
may have for Managing Owner's default.
6.12 Ri ht to Maintain Parcel which Includes Pad D Se aratel
(a) The Owner of the Parcel which includes Pad D may at any time
and from time to time, upon at last sixty (60) days prior written notice to the
Managing Owner and the other Owners, elect to assume the obligations of the
Managing Owner to maintain, repair, replace and insure its respective portion of the
Common Area. In such event, the Pro Rata Share set forth in Section 1.27 above of
the Common Expenses will be revised to reallocate such obligations to the Owners
of the remaining in accordance with the terms thereof. In the event of any such
assumption by the Owner of the Parcel which includes Pad D, such Owner agrees to
maintain , repair and replace its portion of the Common Area at its sole cost and -
expense and in a manner and at a level of quality at least comparable to that of the
balance of the Common Area. The Owner of the Parcel which includes Pad D may
also elect to terminate its obligation to maintain, repair, replace and insure its
portion of the Common Area by giving at least sixty (60) days prior written notice to
the Managing Owner, in which event the Managing Owner shall resume its duties
with respect to such Parcel and the Owner of the Parcel which includes Pad D
agrees to pay for its Pro Rata Share of all Common Area maintenance and insurance
MS07326/940078/#119901.1 26
0
costs (including the ten percent [10%] service charge described in this Article 6
above) thereafter incurred by the Managing Owner. Anything in the preceding
sentence to the contrary notwithstanding, if the Owner of the Parcel which includes
Pad D elects to terminate its obligation to maintain, repair, replace and insure its
portion of the Common Area, it shall return said Common Area to the Managing
Owner in the same quality and condition as the balance of the Common Area, any
failure of which shall be corrected at the sole cost and expense of said Owner.
(b) If the Owner of the Parcel which includes Pad D elects to
assume the obligations of the Managing Owner pursuant to Section 6.12(a) above,
said Owner agrees to indemnify, defend and hold harmless the Managing Owner,
and the Owners and occupants of all other Parcels from and against any and all
liability, claims, damages, expenses (including reasonable attorney's fees and
reasonable attorney's fees on any appeal), judgments, proceedings and cause of
action, for injury to or death of any person or damage to or destruction of any
property of any property occurring on said Owner's Parcel and arising out of the
performance or nonperformance of any of the obligations of the Owner of said parcel
set forth in this Article 6, unless caused by the negligent or willful act or omission of
the indemnified person, its agents, contractors or employees.
(c) In the event the Owner of the Parcel which includes Pad D shall
elect to perform the duties and obligations set forth in Subparagraph (a) above and
shall fail thereafter to perform such duties and obligations in the manner set forth
in Subparagraph (a) above, Managing Owner and the Majors shall each have the
right, upon fifteen (15) days prior written notice to the Owner of the Parcel which
includes Pad D, to terminate the right of such Owner to maintain such Parcel, in
which event the Managing Owner shall resume its duties with respect to the Parcel
which includes Pad D and the Owner of such Parcel agrees to pay its Pro Rata
Share of Common Expenses in the same manner and to the same extent as if such
Owner had not elected to maintain its own Parcel.
6.13 Absence of Mana 'n Owner. In the event there shall cease to be a
Managing Owner at any time during the Term of this Agreement, then the Owner of
each Parcel shall have the obligation to maintain the Common Area within such
Owner's Parcel in accordance with the standards established by, pursuant to and
under the terms of this Agreement.
ARTICLE VII
PUBLIC UTILITIES
7.1 Utili Pa ents . Each Owner shall pay for all public utilities
furnished to such O7 er's Building Area during the Term, including gas, water,
electricity , sewer , telephone or other communication services.
7.2 Maintenance of Facilities . The utility lines and facilities on the
Shopping Center Site shall be maintained and repaired as follows:
(a) With respect to the utility lines and facilities that serve a
building, each Owner shall maintain and repair (i) the electric, gas, and water
utilities beginning from the interior of such building to a distance of five feet from
MS07326/940078/#119901.1 27
0
the exterior wall of such building, and (ii) the sewer utility beginning from the
interior of such building to the point outside the exterior walls of such building
where the sewer laterals for the building connect to the main sewer line.
(b) Managing Owner shall be responsible for the maintenance and
repair of all other utility lines and facilities that serve the Shopping Center Site.
The cost of maintenance or repairs to utility lines and facilities that serve the
Common Area shall be a Common Expense , unless such work is required as a result
of faulty original installation (in which case the cost shall be paid by Managing
Owner for a period of three (3) years after completion thereof).
(c) Any Owner that maintains or repairs utility lines and facilities
under this Section shall repair any damage to the Common Area caused by the
performance of such repairs or maintenance.
ARTICLE VIII
EASEMENTS
8.1 Grant of Easement . Each Owner hereby grants to the other Owners,
for the , use and benefit of each of them and their respective employees , agents,
customers and other invitees , a nonexclusive irrevocable easement with a right of
entry to use the Common Area for the parking of motor vehicles , pedestrian and
vehicular travel , ingress and egress , and for the other Common Area uses provided
for herein . This easement shall burden the Common Area and the interests of each
Owner , and shall benefit the other Owner 's Parcels, to which they are appurtenant.
No Owner shall, without the consent of Managing Owner and each Major, grant or
permit the granting of any easement or right of use affecting any part of the
Shopping Center to any person or entity other than grants consistent with this
Agreement made to (a) another Owner or tenants of any portion of the Shopping
Center and their employees , agents , customers and other invitees , or (b) utility
companies for utility services made in accordance with Section 8.2.
8.2 Grant of Utili Easements . Each Owner hereby grants to the other
Owners and to their respective successors and assigns easements in, to, over, under,
and across the Common Area for the installation, operation, maintenance, repair,
relocation, and removal of utility lines and facilities serving one or more of the other
Parcels. All such utility lines and facilities shall be installed underground unless not
reasonably possible at locations and in accordance with plans and specifications
approved by the Managing Owner (and each Major, where required ) as provided
herein or in any other applicable agreement . Such easements shall survive the end
of the Term and shall continue thereafter until the building served thereby is torn
down or substantially destroyed by a Casualty, at which time such easements shall
cease, and the Owner shall make alternative arrangements for utility service
separate from this Agreement . Each Owner maintaining or repairing a utility line
or facility shall comply with the other provisions of this Agreement.
8.3 Encroachment Easements. Each Owner hereby grants to each other
Owner reasonable foundation encroachment and building encroachment easements,
MS07326/940078/#119901.1 28
EXHIBIT "A-1"
ALL THAT CERTAIN LAND SITUATED IN THE STATE OF CALIFORNIA,
COUNTY OF ORANGE, CITY OF HUNTINGTON BEACH, AND IS DESCRIBED
AS FOLLOWS:
PARCEL A:
PARCELS 1 THROUGH 4 INCLUSIVE AND PARCELS 6 THROUGH 8
INCLUSIVE OF PARCEL MAP NO. 90-353, AS SHOWN ON A MAP FILED IN
BOOK 280, PAGES 36 TO 38 INCLUSIVE OF PARCEL MAPS, RECORDS OF
ORANGE COUNTY, CALIFORNIA.
PARCEL B:
PARCEL 1 OF PARCEL MAP NO. 90-268, AS SHOWN ON A MAP FILED IN
BOOK 280, PAGES 29 TO 32 INCLUSIVE OF PARCEL MAPS, RECORDS OF
ORANGE COUNTY, CALIFORNIA.
PARCEL C:
EASEMENTS CONTAINED IN A DOCUMENT ENTITLED "RECIPROCAL
ACCESS AND PARKING DECLARATION", RECORDED CONCURRENTLY
HEREWITH AS INSTRUMENT NO. OF OFFICIAL RECORDS.
PARCEL D:
EASEMENTS CONTAINED IN A DOCUMENT ENTITLED "OPERATION AND
RECIPROCAL EASEMENT AGREEMENT", RECORDED CONCURRENTLY
HEREWITH AS INSTRUMENT NO. OF OFFICIAL RECORDS.
;
•
EXHIBIT "A-2"
LEGAL DESCRIPTION OF RALPHS PROPERTY
MS07326/940078/#119901.1
EXHIBIT "A-2"
ALL THAT CERTAIN LAND SITUATED IN THE STATE OF CALIFORNIA,
COUNTY OF ORANGE, CITY OF HUNTINGTON BEACH, AND IS DESCRIBED
AS FOLLOWS:
PARCEL A:
PARCEL 5 OF PARCEL MAP NO. 90-353 , AS SHOWN ON A MAP FILED IN
BOOK 280 , PAGES 36 TO 38 INCLUSIVE OF PARCEL MAPS, RECORDS OF
ORANGE COUNTY, CALIFORNIA.
PARCEL B:
EASEMENTS CONTAINED IN A DOCUMENT ENTITLED "RECIPROCAL
ACCESS AND PARKING DECLARATION", RECORDED CONCURRENTLY
HEREWITH AS INSTRUMENT NO. OF OFFICIAL RECORDS.
PARCEL C:
EASEMENTS CONTAINED IN A DOCUMENT ENTITLED "OPERATION AND
RECIPROCAL EASEMENT AGREEMENT", RECORDED CONCURRENTLY
HEREWITH AS INSTRUMENT NO. OF OFFICIAL RECORDS.
•
EXHIBIT "B"
SITE PLAN
MS07326/940078/#119901.1
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PACIFIC DEV[LOPM[NT GROUP
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NEWPORT BEACH, CA 92660
(714) 760 - 8591
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VICINITY MAP
Summary
538,0195( land area
12 35.4...
119,103s1 gross bldg area
352/1 land-to-bldg !olio
636 slolIs req'd
675s1olIs prov'd
706-I•905/0000 .,..'I-H .0• .WI./15-.
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190od-wanno„u a 1/7000.2
A SHOPPING CENTER PROJECT FOR
BOLSA REALTY
9340 BOLSA AVENUE
WESTMINSTER CA 92683
(7145 893-6521
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EXHIBIT "C"
PRIMARY COMMON AREA
. ;
MS07326/940078/#119901.1