HomeMy WebLinkAbout1989 - Operation and Easement Agreement - Dayton Hudson Corporation / SH Benoliel Romney - 89022110028902211002
89-034 Spieker Partners
Tukwila Pond Park
OPERATION AND EASEMENT AGPEEMENT
BETWEEN
DAYTON HUDSON CORPORATION
mil
S- H- BENOLIEL- ROMNEY #179, LIMITED PARTNERSHIP,
A CALIFORNIA LIMITED PARTNERSHIP
WHEN RECORDED MIAL TO:
MARK A. LEVIN
Lacher 6 Johnson
100 So. King Street, Suite 6000
Seattle, WA 98104 -2869
f j
J
iz
co
y
T
f
t
4
S (-ate
ss lOC
EXCISE T 'A Nar PFOU RED
King t oGord5 ;�:,:;i t
ay �llc,'lr
Deputy
L
'I
i
i
OPERATION AND EASEMENT AGREEMENT
TABLE OF CONTENTS
Section
Page
PARTIES
1
Article
I
DEFINITIONS
2
1.1
Building Area
2
N 1.2
Common Area
2
0
1.3
Floor Area
2
1.4
Occupant
3
1.5
Outside Sales
3
N 1.6
Party
3
Person
4
v 1.7
O`
1.8
Permittee
4
co
1.9
Tract
5
Article
II
EASEMENTS
6
2.1
Ingress and Egress.
5
2.2
Utilities
8
2.3
Construction, Maintenance and
Reconstruction
10
2.4
Restriction
12
Article
III
CONSTRUCTION
12
3.1
General Requirements.
12
3 .2
Common Area
14
3.3
Building Improvement.
17
Article
IV
MAINTENANCE AND REPAIR.
22
4.1
Utilities
22
4.2
Common Area
23
4.3
Building Improvements and Outside
S ales Area
33
Article
V
OPERATION OF THE SHOPPING CENTER.
34
5 .1
Uses.
34
5.2
Lighting
38
5 .3
Signs
40
5.4
Insurance
42
5.5
Taxes and Assessments
48
5.6
Liens
48
i
O
O
O
co
Article VI MISCELLANEOUS
49
6.1
Default
49
6.2
interest.
51
6.3
Estoppel Certificate.
51
6.4
Notices
52
6.5
Approval�Rights
53
6.6
Condemnation
54
6.7
Binding Effect
54
6.8
Singular and Plural
55
6.9
Counterparts and Signature Pages.
55
6.10
Negation of Partnership
55
6.11
Not a Public Dedication
55
6.12
Excusable Delays.
56
6.13
Severability
56
6 .14
Amendments
56
6.15
Captions and CapitalizedTerms.
56'
6.16
Minimization of Damages
57
6.17
OEA Shall Continue Notwithstanding
Breach
57 w.
6.18
Time.
57
6.19
Non Waiver
57
Article
VII TERM
58 e.
7.1
Term of this OEA
58
Article
VIII OPTION
8.1
Grant of Option to Purchase
58
8.2
Option Events
58
8.3
Notice, Appraisal, Exercise, Closing
60
8.4
Determination of Price, Appraisal
62
8.5
Miscellaneous
64 f
Exhibit
A Legal Description of Target Tract
Exhibit
B Legal of Developer-Tract
Exhibit
C Submission Guidelines
Exhibit
X Site Plan
'vF
i
CV
Ri
O
0%
00
OPERATION AND EASEMENT AGREEMENT
THIS PREEMENT is made and entered into as of
the'_) day of 1989, between DAYTON HUDSON
CORPORATION, a Minnesota corporation "Target and
S- H- Benoliel- Romney #179, Limited Partnership, a California
limited partnership "Developer Seafirst Mortgage is an
additional signatory hereto for the sole reason that it is
Developer's lender and holds a deed of trust and other
security interests as a lien again!mt the Developer Tract.
By its signature hereto, Seafirst Mortgage agrees to be
bound by the provisions of the Operation and Easement
Agreement with respect to the Developer Tract, for itself
and for its successors and assigns.
WITNESSETH
WHEREAS, Target is the owner of a certain tract of land
described in Exhibit A attached hereto and identified as the
"Target Tract" on Exhibit X (the "Site Plan attached here-
to; and
WHEREAS, Developer is th; owner of a cer tract of
land described in Exhibit B attached hereto and identified
as the "Developer Tract" on the Site Plan; and
WHEREAS, the Target Tract and the Developer Tract
(collectively the "Shopping Center are contiguous and
adjacent as shown on the Site Plan; and
WHEREAS, the signatories hereto intend to develop and
operate their respective Tracts in conjunction with each
other as integral parts of a retail shopping complex and in
order to effectuate the common use and operation thereof
they desire to enter into certain covenants and agreements
Fq
i
4
r:
F.
a
f
s
i
T
as a part of a general plan, and to grant to each other cer-
tain reciprocal easements, in, to, over, and across their
respective Tracts.
Now, THEREFORE, in consideration of the premises, the
covenants and agreements hereinafter set f•jrth and in
CV furtherance of the parties understanding, it is agreed as
o follows:
N ARTICLE I
N DEFINITIONS
O
0-
ca 1.1 Building Area. "Building Area" shall mean the
limited areas of the Shopping Center within which buildings
(which for the purpose of this document shall include any
appurtenant canopies, supports, loading docks, truck ramps
and other outward extensions, as well as attached trash com-
pactors and utility transformers) and Outside Sales Areas
(hereinafter defined) may be constructed, placed or located.
1.2 Common Area. "Common Area" shall mean all areas
within the exterior boundaries of the Shopping Center,
exclusive of (i) buildings and (ii) any Outside Sales Area.
1.3 Floor Area. "Floor Area" shall mean the actual
number of square feet of space contained on each floor
within a building, including any mezzanine or basement space
used either for retail sales or services purposes or for the
storage of merchandise, as measured from the exterior faces
of the exterior walls or store front and /or the center line
of any common walls; provided, however, that the following
areas shall not be included in such calculations: Outside
Sales Areas, supporting mezzanine office space, and any
space used for building utilities or mechanical equipment.
within thirty (30) days of a request, a Party shall certify
2
to the requesting Party the amount of Floor Area applicable
to each building on its Tract. if any Party causes an as-
built survey to be prepared with respect to any portion of
the Shopping Center, such Party shall furnish t; copy of the
survey to the other Parties for informational purposes only.
N During any period of rebuilding, repairing, replacement
or reconstruction of a building, the Floor Area of that
building shall be deemed to be the same as existed imme-
N diately prior to that period. Upon completion of such
cr% rebuilding, repairing, replacement or reconstruction, the
°o Party upon whose Tract such building is located, shall cause
a new determination of Floor Area for such building to bs
mada in the manner described above, and such determination
shall be sent to any Party requesting the same.
1.4 Occupant. "Occupant" shall mean any .Person from
time to time e. titled to the use and occupancy of any por-
tion of a building in the Shopping Center under an ownership
right or any lease, sublease, license, concession, or other
similar agreement.
1.5 Outside Sales Area. "Outside Sales Area" shall
mean an area immediately adjacent to a building which is
used exclusively by an Occupant of such building for sales
and /or storage _arpose and which is enclosed by a fence or
other security barrier. The number of square feet contained
within an Outside Sales Area may not exceed twenty percent
(20 of the Floor Area attributable to the Occupant using
the outside Sales Area.
1.6 Party. "Party" shall mean each signatory hereto
and, after compliance with the notice requirements set forth
below, their respective successors and assigns who become
owners of any portion of the Shopping Center. Until the
3
(i) the name and address of the transferee; and
I
(ii) a copy of the legal description of the por-
tion of the Shopping Center transferred.
Nothing con.;ained herein to the crntrary shall affect
the existence, priority, validity or enforceability of any
lien permitted hereunder which is placed upon the trans-
ferred portion of the shopping Center prior to receipt of
the notice.
1.7 Person. "Person" shall mean any individual, part-
nership, firm, association, corporation, trust, or any other
form of business or government entity.
1.8 Permittee. "Permittee" shall mean all occupants
and the officers, directors, employees; agents, contractors,
4
notice requirement is complied with, the transferring Party
shall (for the purpose of this OEA only) be the transferee's
agent. Each Party shall be liable for the performance of
all covenants, obligations and undertakings herein set forth
with respect to the portion of the Shopping Center owned by
it which accrue during the period of such ownECship, and
N
s'ich liability shall continue with respect to any portion
Q transferred
until the notice requirement set forth below is
complied with, at which time the transferring Party's per-
N
zonal liability for future obligations shall terminate. The
transferee Party shall automatically become liable for all
Go
obligations, performance requirements and amounts which
arise subsequent to compliance with the notice requirement A
Party transferring all or any portion of its interest in the
Shopping Center shall give notice to all other Parties of
such transfer and shall include therein at least the
following information:
(i) the name and address of the transferee; and
I
(ii) a copy of the legal description of the por-
tion of the Shopping Center transferred.
Nothing con.;ained herein to the crntrary shall affect
the existence, priority, validity or enforceability of any
lien permitted hereunder which is placed upon the trans-
ferred portion of the shopping Center prior to receipt of
the notice.
1.7 Person. "Person" shall mean any individual, part-
nership, firm, association, corporation, trust, or any other
form of business or government entity.
1.8 Permittee. "Permittee" shall mean all occupants
and the officers, directors, employees; agents, contractors,
4
customers, vendors, suppliers, visitors, invitees, licen-
sees, subtenants, and concessionaires of Occupants insofar
as their activities relate to the intended use of the
Shopping Center. Among others, Persons engaging in the
following activities on the Common Area will not be con-
sidered to be Permittees:
(i) Exhibiting any placard, sign, or notice;
(ii) Distributing any circular, handbill, placard,
N or booklet;
(iii) Soliciting memberships or contributions;
(iv) Parading, picketing, or demonstrating; and
(v) Failing to follow regulations relating to the
use of the Shopping Center.
1.9 Tract. "Tract" shall mean that portion of the
Shopping Center owned by a Party.
ARTICLE II.
EASEMENTS
2.1 Inqress and Eqress. During the term of this oEA
each Party hereby grants and conveys to each other Party for
its use and for the use of its Permittees, in common with
others entitled to use the same, a non exclusive easement
for the passage and parking of vehicles over and across the
l parking and driveway areas of the grantor's Tract as the
same may from time to time be constructed and maintained for
such use and for the passage and accommodation of
pedestrians over and across the parking, driveways and
sidewalk areas of the grantor's Tract as the same may from
time to time be constructed and maintained for such use.
Target also grants and conveys to Developer for vehicular
passage only for its use and for the use of its Permittees,
in common with others entitled to use the same, a non-
exclusive easement over and across the roadway developed on
the Target Tract along the property line running °rom
Strander Doulevar4 along the rear of Target's proposed
improvements, which easement is
N
C) aarh
Provided that Target retains the same number of pFrking
N spaces as now shown on the site plan for its property, and
0 subject to reciprocal rights of ingress and egress for the
CO benefit of Target and its customers, Target will agree to
consider for approval, with approval not to be unreasonably
withheld, the request of* Developer for an additional
widening and development of the street running from Strander
Boulevard along the westerly edge (at the rear of Target's
proposed improvements), with the maximum impact upon
Target's property to be eighteen (18) feet, and with such
roadway to be improved at Developer's sole expense. Such
easement rights shall be subject to the following reser-
vations as well as other provisions contained in this OEA:
I
(i) Exce it for situations specifically provided
for in the following subparagraphs, no fence or other
barrier which would unreasonably prevent or obstruct the
passage of pedestrian 'or vehicular travel for the purposes
herein permitted shall be erected or permitted within or
across the easement areas; provided, however, that the
foregoing provision shall not prohibit the installation of
convenience facilities (such as mailboxes, public tele-
phones, benches or public transportation shelters), of
landscaping, berms o- planters, nor of limited curbing and
other forms of traffic controls.
30 feet wide
located within the west 60 feet of the Target Tract and to
be more particularly described by an Addendum recorded by
the Parties subsequent to the date hereof.
6
N
O
O
N
N
CO
(ii) in connection with any construction,
reconstruction, repair or maintenance on its Tract, each
Party reserves the right to create a staging and /or storage
area in the Common Area on its Tract at such location as
will not unreasonably interfere with access between such
Tract and the other areas of the Shopping Center.
(iii) No party shall make changes to the improved
Common Area on its Tract without the approval of Developer
and Target, except that each Party hereby reserves the
right, from time to time without obtaining the consent or
approval of any other Party, to make at its own expense any
insignificant change, modification or alteration in its por-
tion of the Common Area, provided that:
(a) the accessibility of such Common Area for
pedestrian and vehicular traffic (as it relates to the
remainder of the Shopping Center) is not unreasonably
restricted or hindered.
(b) there shall be maintained at all times
within such Common Area, a sufficient number of vehicular
parkin4 spaces to meet the parking requirements set forth in
3.2(E), Lad all parking stalls and rows and vehicular traf-
fic lanes shall remain generally as shown on the Site Plan;
(c) no governmental rule. ordinance or regu-
lation shall be violated as a result of such action, and
such action shall not result in any other Party being in
j violation of any governmental rule, ordinance or regulation;
(d) no change shall be made in the access
1
points between the common Area and the public streets; pro-
vided, however, that additional access points may be created
with the approval of Target and Developer, such approval not
to be unreasonably withheld;
7
(e) at least thirty (30) days prior to making
any such change, modification or alteration, the Party
desiring to do such work shall. deliver to each other Party
copies of the plans therefor, and provided further that such
work shall not occur between October 1st and the following
January 31st.
i
S
ii
N
0 (iv) Each Party further reserves the right to
close off its portion of the Common Area for such reasanable
N period of time as may be legally necessary, in the opinion
of such Party's counse.L, to prevent the acquisition of
o prescriptive rights by anyone; provided, however, that prior
to closing off any portion of the Common Area, as herein
provided, such Party shall give written notice to each other
Party of its intention_ to do so, and shall attempt to coor-
dinate such closing with each other Party so that no
unreasonable interference in the passage of pedestrians or
vehicles shall occur;
(v) Each Party reserves the right at any time and
from time to time to exclude and restrain any Person who is
not a Permittee from using its Common Area.
I'
2.2 Utilities.
(A) Each Party hereby grants and conveys to each
ot:.er Party non exclusive perpetual easements in, to, over,
under, along and across those portions of the Common Area
(exclusive of any portion located within a Building Area)
located on the grartor's Tract necessary for the installa-
tion, operation, flow, passage, use, maintenance, connec-
tion, repair, relocation, and removal of lines or systems
for utilities serving the grantee's Tract, including but not
limited to, sanitary sewers, storm drains, water (fire and
domestic), gas, electrical, telephone and coimunication
i
S
ii
j
4
1
I
s
i
(B) The initial location and width of any utility
shall be subject to the prior written approval of the Party
whose Common Area is to be burdened thereby, such approval
not to be unreasonably withheld. The easement area shall be
no larger than whatever is necessary to reasonably satisfy
the utility company as to a public utility or five feet (5
on each side of the centerline as to a riivate line. Upon
request, the grantee shall provide to the grantor a copy of
an as -built survey showing the location of such utility.
The grantor shall have the right at any time to relocate a
utility line upon thirty (30) days' prior written notice,
provided that such relocation:
lines. Except with respect to ground mounted electrical
transformers at the rear of a building or as may be
necessary during periods of construction, repair, or tem-
porary service, all utilities shall be underground unless
required to be above grouiid by the utility providing such
service.
Prior to exercising the right gran +ad herein, the
CD
grantee shall first provide the grantor with a written
N
statement describing the need for such easement, shall iden-
O
tify the proposed location of the utility, Lnd shall furnish
Go a
certificate of insurance showing that its contractor has
obtained the r.,inimum insurance coverage required by 5.4(C)
hereof. Any Party installing utilities pursuant to the pro
visions of this subparagraph shall pay all costs and ex-
penses with respect thereto and shall cause all work in
connection therewith (including general clean -up and proper
surface and /or subsurface restoration) to be completed as
quickly as possible and in a manner so as to minimize inter-
ference with the use of the Common Area. If any of the
Parties elect to install common utilities, all costs and
expenses thereof may be set forth in a separate agreement
between those cooperating Parties.
j
4
1
I
s
i
(B) The initial location and width of any utility
shall be subject to the prior written approval of the Party
whose Common Area is to be burdened thereby, such approval
not to be unreasonably withheld. The easement area shall be
no larger than whatever is necessary to reasonably satisfy
the utility company as to a public utility or five feet (5
on each side of the centerline as to a riivate line. Upon
request, the grantee shall provide to the grantor a copy of
an as -built survey showing the location of such utility.
The grantor shall have the right at any time to relocate a
utility line upon thirty (30) days' prior written notice,
provided that such relocation:
(i) shall not interfere with or diminish the
utility services to the grantee;
(ii) shall not reduce or unreasonably impair
the usefulness or function of such utility;
i
0 (iii) shall be performed without cost nr
expense to grantee;
N
CZ! (iv) shall be completed using materials and
C)
o` design standards which equal or exceed those originally
00
used; and
(v) shall have been approved by the utility
a
company and the appropriate governmental or quasi
governmental agencies having jurisdiction thereover.
Documentation of the relocated easement area shall
be the grantor's expense and shall be accomplished as soon
as possible. Grantee shall have a right to require an as-
built survey of such relocated utility be delivered to it at
grantor's expense.
2.3 Construction, Maintenance and Reconstruction.
(A) In order to accommodate any footings, foun-
dations, columns or walls which may be constructed or
reconstructed immediately adjacent to a common boundary line
and which may overlap that common boundary line, each Party
grants to each other Party a non exclusive easement in to,
over, under, and across that portion of its Tract adjacent
to such common boundary line in space not theretofore
occupied by any then existing structure for the construc-
jY. i
tion, maintenance and replacement of footings to a maximum
distance of five feet (5 onto the grantor's Tract and for
the construction, replacement and maintenance of foun- c
10
dations, columns, or walls to a maximum distance of six
inches (6 onto the grantor's Tract. The grant of easement
shall include the reasonable right of access necessary to
exercise and enjoy "such grant. The easement shall continue
in effect for the term of this OEA and thereafter for so
long as the building utilizing the easement area exists
Q (including
a reasonable period to permit reconstruction or j
O
replacement of such building if the same shall be destroyed, i
(V
damaged, or demolished) and shall include the reasonable
C right
of access necessary to exercise and enjoy such grant.
a0
(B) Prior to utilizing the easement right set
forth in (A) above, the grantee Party shall advise the gran
for Party of its intention to use the same, shall provide
plans and specifications and proposed construction tech
niques for the improvements to be located within the ease-
meat area, and shall give the grantor Party an opportunity
to commence any construction activities which such Party
contemplates undertaking at approximately the same time to
the end that each Party involved shall be able to utilize
subterranean construction techniques which will permit the
placement above ground of a building on each Tract imme-
diately adjacent to the common boundary line. If a common
subterranean construction element is used by the Parties, it
is specifically understood that each shall assum:^ and pay
its reasonable share of the cost and expense of the initial
construction and, so long as both Parties are benefitting
therefrom, subsequent maintenance thereof. in the event any
building utilizing a common subterranean element is
destroyed and not replaced or is removed, the common sub-
terranean construction element shall be left in place for
the benefit of any building utilizing the same located on
the adjoining Tract.
'i
11
2.4 Restriction. No Party shall grant any easement for
the purpose set forth in this Article for the benefit of any
property not within the Shopping Center; provided, however,
that the foregoing shall not prohibit the granting or dedi-
cating of utility easements by a Party on its Tract to
governmental or quasi- governmental authorities or to pub?tc
utilities.
CV
G
O
CV
CV
O
o`
G?
ARTICLE III
CONSTRUCTION
3.1 General Requirements.
(A) Each Party agrees that all construction activ-
ities performed by it within the Shopping Center shall be
performed in compliance with all laws, rules, regulations,
ordere, and ordinances of the city, county, state, and
federal governments, or any department or agency thereof,
affecting improvements constructed within the Shopping
Center.
(B) Each Party further agrees that its construc-
tion activities shall not:
(i) cause any unreasonable increase in the
cost of constructing improvements upon another Party's
Tract;
(ii) unreasonably interfere with construction
work being performed on any other part of the Shopping
Center;
(iii) unreasonably interfere with the use,
occupancy or enjoyment of any part of the remainder of the
Shopping Center by any other Party or its Permittees;
is
12
I
r
t
e
i
s
(iv) cause any other Party to be in violation
of any law, rule, regulation, order or ordinance applicable
to its Tract of the city, county, state, federal government,
or any or agency thereof.
(C) Each Party agrees to defend, indemnify and
hold harmless each other Party from all claims, actions,
CV proceedings and costs incurred in connection therewith
0 (including reasonable attorneys' fees and costs of suit)
resulting from any accident, injury or loss or damage what
CV soever occurring to any Person or to the property of any
O Person arising out of or resulting from the performance of
°o any construction activities performed or authorized by such
indemnifying Party.
(D) Prior to constructing, reconstructing, remod-
eling, or enlarging a building or changing the Common Area
on its Tract, a Party shall give Developer and Target at
least 30 days prior notice of the proposed location of any
staging and storage area. All storage of materials and the
parking of construction vehicles, including vehicles of
workers, shall occur only on the constructing Party's Tract,
and all laborers, supplies, contractors and others con-
nected with such construction activities shall use only the
access points located upon the constructing Party's Tract.
If substantial work is to be performed, the constructing
Party shall, at the request of either Developer or Target,
fence off the staging and storage area. Upon completion of
such work, the constructing Party shall restore the affected
Common Area to a condition at least equal to that existing
prior to commencement of such work.
(E) Each Party hereby grants and conveys to each
other Party and to its respective contractors, materialmen
and laborers a temporary license for access r passage over
13
r
f
t
s._
l
ii
f
s
t
I
and across the Common Area of the grantor's Tract as shall
be reasonably necessary for the grantee to construct and /or
maintain improvements upon the grantees Tract; provided,
however, that such license shall be in effect only during
periods when actual construction and /or maintenance is being
performed and provided further that the use :f such license
shall not be exercised so as to unreasonably interfere with
t� the use and operation of the Common Area by others. Prior
to exercising the rights granted herein, the grantee shall
first provide the grantor with a written statement
N describing the need for such license, and shall furnish a
certificate of insurance showing that its contractor has
00 obtained the minimum insurance coverage required by 5.4(C)
hereof. Any Party availing itself of the temporary license
shall promptly pay all costs and expenses associated with
such work, shall diligently complete such work as quickly as
possible, and shall promptly clean the area and restore the
affected portion of the Common Area to a condition which is
equal to or better than the condition which existed prior to
the commencement of such work. Notwithstanding the
foregoing, in the event a dispute exists between the
contractors, laborers, suppliers and /or others connected
with construction activities, each Party shall have the
right to prohibit the contractors, laborers, suppliers
and /or others working for another Party from using the
Common Area on its Tract.
3.2 Common Area. Upon its election to construct a
building upon its Tract, each Party shall cause the Common
Ataa on its Tract to be improved substantially as shown on
the Site Plan with substantial completion of such Common
Area to be no later than the date the first business on such
Tract opens for business with the public. Such work shall
be done in a good and workmanlike manner and in accordance
14
with good engineering standards; provided, however, the
following minimum general design standards shall b complied
with:
(A) The lighting system shall be designed to pro-
duce a minimum maintained lighting intensity measured at
grade at all points in the Common Area of 1.00 foot candle;
provided however, that the extreme edge of the parking or
0 drive areas may have not less than a minimum maintained
lighting intensity measured at grade of 0.5 foot candle, and
N provided further that the drive areas immediately in front
of the entrance to any building shall have not less than a
Go minimum maintained lighting intensity measured at grade of
5.0 foot candles. Each Party may elect to control the light
standards located on its Tract. The type and design of the
light standard shall be approved by Target and Developer.
(B) The slope in the parking area shall not exceed
a maximum of four percent (4 nor be less than a minimum
of one percent (1
(C) All sidewalks shall be concrete or other
material approved by Developer and Target. The paved por-
tions of the Common rrea shall be paved in accordance with a
paving recommendation obtained from a reputable engineering
firm approved by Developer and Target.
(D) Utilities that are placed underground shall be
at depths designated by consultants approved by Developer
and Target. Design and working drawings may be prepared by
the utility company providing the service.
(E) The parking area on each Tract shall contain
sufficient ground level, standard automobile size, parking
spaces in order to comply with the following minimum
requirements:
is
(i) four (4) parking spaces foc each one
thousand (1,000) square feet of Floor Area located on the
Target Tract;
(ii) five (5) parking spaces for each one
thousand (1,000) square feet of Floor Area located on the
Developer Tract; plus, with respect to each Tract,
Chi
O (iii)
if a business use contains a drive -up
unit (such as remote baking teller, or food ordering/
dispensing facility), then there shall also be created space
for stacking not less than five (5) automobiles for each
Go
i
I.
drive -up unit; and
(iv) if restaurant uses, whether one or more,
are in the aggregate of eight thousand (5,000) square feet
of Floor Area, then ten (10) additional parking spaces for
each one thousand (1,000) square feet of Floor Area devoted
i
to such use;
Provided however, if a restaurant is operated incidentally
to the main business operation (incidental operation shall
mean occupying less than 10% of the Occupant's Floor Area),
then the Floor Area attributable to such restaurant shall be
excluded from the application of (iv) above. Further,
!j
without' Target's advance written consent, no restaurant
shall be located in the building located on the Developer
Tract as Building C on the Site Plan. Any restaurant
t
occupying more than 2,000 square feet must be located in
Building B northerly area on the northeast corner of the
Developer Tract and must be restricted from selling any
alcohol other than beer and wine.
The foregoing requirements as well as all govern
mental regulations, ordinances and similar orders relating
j
16
i
to parking shall be satisfied throughout the term of this
OEA and without reliance on the parking spaces that may be
available on another Tract. In the event of a condemnation
of part of a Tract or sale or transfer in lieu thereof that
reduces the number of usable parking spaces below that which
Is required herein, the Party whose Tract is so affected
CV
shall use its best efforts (including using proceeds from
the condemnation award or settlement) to restore and /or
substitute parking spaces in order _o comply with the
O parking
requirements set forth above. If such compliance is
G not
possible, such Party shall not be deemed in default
hereunder, but s-hall not be .permitted to expand the amount
of Floor Area located upon its Tract. If such r'loor Area is
thereafter reduced, the.: it may not subsequently be
increased unless the parking requirement is satisfied.
(F) Developer and Target hereby approve the
grading and drainage plan to be used in initial construction
of the Common Area, dated November 11, 1988, and prepared by
Barghausen Consulting Engineers, Inc., with last revised
date November 25, 1988. Such grading and drainage plan
shall be followed by the Parties during construction.
Duiing the farm of this OEA, no Party shall alter the grade
elevations on any portion, of its Tract from those
established by such plans if such alteration would increase
the flow of surface water onto another Party's Tract, affect
ingress and egress, or otherwise adversely affect another
Party's Tract.
3.3 Buildinq Improvement.
(A) The Parties hereby agree that (i) all
buildings and Outside Sales Areas may be located only within
the Building Areas designated on the Site Plan, and (ii) if
E
a maximum Floor Area designation for any Building Area is
ti
f
17
shown on the Site Plan, such size limitation shall not be
exceeded.
(B) In order to produce an architecturally com-
patible Shopping Center, Developer and Target agree that the
initial building construction and any additions, exterior
remodeling or reconstruction of existing improvements
Q thereafter shall be performed only in accordance with
O_ approved plans for such work as provided herein. The Party
proposing such work shall submit to Developer and Target
0 detailed plans "Plans") as required by Exhibit C attached
hereto and made a part hereof. Developer and Target,
respectively, shall either approve, disapprove, or make
recommendations for change in the Plans within thirty (30)
days of the receipt thereof. Failure to approve,
disapprove, or make recommendations for change within said
thirty (30) day period shall constitute an approval of the
Plans as submitted. Any disapproval or recommendation for
change shall specify with particularity the reason therefor.
Upon submission of any disapproval or recommendation for
change, the submitting Party, Developer and Target shall
mutually consult to establish approved Plans for the pro
pose? work. Target and Developer shall not arbitrarily or
unreasonably withhold approval of the Plans or recommend
changes in the Plans which otherwise conform with the
requirements hereof. In addition, Developer and Target
shall not withhold approval of exterior remodeling or
exterior reconstruction which does not either substantially
enlarge an existing structure, or substantially change an
existing structure. In no event shall Developer or Target
require any other Party to utilize design standards superior
to those utilized by the requiring Party in the construction
of improvements on its Tract. Approval of Plans by
Developer and Target shall not constitute assumption of
Z8
responsibility for the accuracy, sufZicieacy, or propriety
thereof, nor shall such approval constitute a representation
or warranty that the Plans comply with applicable laws. No
material deviation shall be made from the approved Plans.
Notwithstanding anything contained herein, Developer
acknowledges that it is familiar with the "Target re'a-il r
store" and agrees that Target shall not be obligated to sub
CV
p mit Plans with respect to such type of building.
CU (C) Developer and Target hereby specifically con-
sent to the placement of buildings along the common boundary
0- line between the Target Tract and the Developer Tract, and
each agrees :o support any request by the other for a side-
yard or setback variance if the same is required in order to
accommodate such construction.
(D) Developer acknowledges that Target intends to
construct on the Target Tract its typical retail store which
is generally classified as an "unlimited area" building
under applicable building codes. (By way of explanation,
but not limitation, an "unlimited area" building is
designated II -N or V -N under the Uniform Building Code.)
k Target agrees that if it constructs an "unlimited area"
f.
building, such building shall be located immediately adja-
cent to the common boundary line. So long as Target plans
to construct an "unlimited area" building, or so long as an
"unlimited area" building exists on the Target Tract
(including any restoration or reconstruction thereof),
Developer agrees that each building placed or constructed on
the Developer Tract shall comply with the following req«ire-
i
meets:
no building shall be constructed within 60'
of the Building Area on the Target Tract unless such
ti
building, hereinafter referred to as the "adjacent
19
building," shall be located immediately adjacent to the
common boundary line and is attached to the "unlimited
area" building on the Target Tract, when and so long as
such "unlimited area" building exists.
(ii) if an "adjacent building" exists, then no
building shall be located within 60' of the "adjacent
0 p building" unless such building is attached to the
O "adjacent building;" the "adjacent build!ag" and all
N other building on the Developer Tract that are attached
CO to the "adjacent building" and to each other are
co hereinafter referred to as the "building group."
(iii) any building that is not part of the
"building group," shall be located at least 60' distant
from the "building group."
(iv) the "adjacent building" or the "building
group," as the case may be, shall comply with the
building code requirements applicable to an "unlimited
area" building, including without limitation the
installation of an approved sprinkler system for fire
protection.
In order to confirm the existence of a sixty foot (60 yard
or clear area around the Target building and the buildings,
if any, which are included within (i) and (ii) above, it may
be necessary to place of record an instrument establishing
the same. Each Party agrees to join in the execution of
such instrument in a form satisfactory to such Parties. in
addition to the requirements set forth above, no building
shall be placed or constructed on the Developer Tract in a
manner which will itself either preclude the construction of
an "unlimited area" building on the Target Tract, or cause
an existing "unlimited area" building on the Target Tract'to
20
F.._ -gas
no longer be in conformance with applicable building code
requirements.
(E) The second Party to construct a building along
the common boundary line between the Target Tract and the
N Developer Tract shall do so in a manner that does not result
O in damage to the improvements in place on the adjoining
Tract, and further shall undertake and assume at its sole
N cost the obligation of completing and maintaining thi nomi-
p nal attachment (flashing and seal) of its building to that
CO of the existing building on the other Tract, it being the
intent of the Parties to establish and maintain the
appearance of one continuous building complex. In per-
forming such attachment, the wall of one building shall not
Leceive support from nor apply pressure to the wall of the
other building.
(F) If a portion of any Building Area is at one
point in time paved and used as Common Area, such portion
may be subsequently used for building purposes provided that
i
all parking requirements and other provisions relating to
such Tract are complied with. Likewise, such building may i
be subsequently razed, and until replaced, the area shall
thereafter be deemed part of the Common Area, and shall be
improved to the same standards as the other Common Area,
either as.automobile parking and drive area or as landscaped
area.
'I
(G) No building or other structure (exclusive of i
s4
any_ free standing sign referred to in 5.3 hereof) shall
exceed the following height restrictions:
5.
21
p�Aj
no longer be in conformance with applicable building code
requirements.
(E) The second Party to construct a building along
the common boundary line between the Target Tract and the
Cy Developer Tract shall do so in a manner that does not result
O in damage to the improvements in place on the adjoining
Tract, and Further shall undertake and assume at its sole
N cost the obligation of completing and maintaining the nomi-
nal attachment (flashing and seal) of its building to that
°o of the existing building on the other Tract, it being the
intent of the Parties to establish and maintain the
appearance of one continuous building complex. In per-
forming such attachment, the wall of one building shall not
zeceive support from nor apply pressure to the wall of the
other building.
(F) If a portion of any Building Area is at one
point in time paved and used as Common Area, such portion
may be subsequently used for building purposes provided that
all parking requirements and other provisions relating to
such Tract are complied with. Likewise, such building may
be subsequently razed, and until replaced, the area shall
thereafter be deemed part of the Common Area, and shall be
improved to the same standards as the other Common Area,
either as automobile parking and drive area or as landscaped
area. i
(G) No building or other structure (exclusive of
any free standing sign referred to in 5.3 hereof) shall
exceed the following height restrictions:
R
21
r
I
i
r,.
�k
•t.
e
h, The constructing party shall provide the other
ties with a complete set of bid documents for the bill.
and /or improvements to be located upon its Tract.
N
O
(O
N
N
F
CO
t
r'
s
Proposed building sign standards
Paint color chips and samples of other
materials such as brick o- concrete aggregates (glass or
aluminum finishes may be annotated on the elevations)`
Proposed large scale details on key section
N
conditions to show exterior design intent
O
Major penthouses or rooftop equipment profi-
les
s i
N
t
C\Jp
Features such as special masonry patterns,
bands or special materials and textures
CO
Rain leaders or scuppers
Wall sections at various exterior locations
including at the demising wall to the adjoining building
with key vertical dimensioning
3. If a building is to have a through-the-wall
pedestrian access connection to an adjoining building, then
the final design phase submission shall also include (to the
owner of such adjoining building) the following:
Plans of the pedestrian mall circulation
showing any variations in floor elevations
Elevations /sections of the proposed mall
space showing store front sign bulkheads and key dimensions
Proposed ceiling design including special
features such as variations in height or skylights'
Floor material patterns
Landscaping and mall seating areas
Proposed interior sign guidelines
Paint color chips and samples of other
materials such as brick or concrete aggregates (glass or
s
aluminum finishes may be annotated on the plans or elava-
tions)
Proposed large scale details of key section
conditions to show.interior design intent
f
N
O
O
N
N
ON
specified in 1 above, the constructing party shall submit
final design phase plans to the other parties as follows:
A. Site Design Documents Delineating Information
outlined in the Concept Phase with the Following Added
Detail:
Refined grading plans
Selected light.:ng fixtures and resultant
lighting levels in foot candles
Landscaping showing generic planting
materials and locations
proposed
manholes, etc.
Proposed paving section designs and location
Utility layouts including hydrants and sizes
Proposed details for curbs, site structures,
Proposed site signage designs and locations
B. Building Design Plans Delineating Information
outlined in the Concept Phase with the Following Added
Detail-
Exterior wall thicknesses
Structural columns or bearing walls at
building exterior and proposed foundation design at
adjoining wall between abutting buildings
wnexe common x-ootings ara .to -De snaraa pro
vide wall or column load information for design of that
footing
Proposed roof plan showing slopes and loca-
tion of penthouses or other major mechanical equipment
Fafererces of key flashing details of roof
to adjoining building
C. Exterior Elevation Drawings Delineating
I Added Details
the Parties have caused this O A to
IN WITNESS WHEREOF, and year fi t
be executed effective as of the dal
written.
S- H- BENOLIEL- ROMNEY #179,
LIMITED PARTNERSHIP,
a California ZD jited er
partnership
0
o
O
co
tle !ST:
DAYTON HUDSON CORPORATION
"Target
By
N
Tit
Target Stores
ATTEST:
By Name JaGlGarm.�
Title w:ssrnn:.5uusta
By
Name
Title
SEAFIRST MORTGAGE
Y u�
ByName .4r �t'trt%°
Its Q Y for title purposes only
(Approval as a party in interest
a.c ro 4fiM1
i
,f
f
0
O
O
N
O
0
STATE OF Mj4
COUNTY OF 4, n2 P+
On this ISM day of rebn -arw 19 $9 before
me, a Notary Public within and for said County, personally
appeared Jack D. Fontaine and William P. Hise to
me personally known, being each by me duly sworn, did say that they
Sr. Vice President
are respectively the Target Stores and Assistant Secretary
of Dayton Hudson Corporation and that said instrument was signed
in behalf of said corporation by authority of its Board of Directors
and Jack D. Fontaine and William P. Hise
acknowledged said instrument to be the free act and deed of said
corporation.
lwlu a MUER
tOatAar HOJEriRa6
sb am too On IL as+ Natey Public
STATE OF WASFIINGPON STATE OF WASHINGTON
COUNTY OF /GA ss COUNTY OF ss
On G w' py before me On this day personally appeared before me
e!i!b
to me in and who to me known to be the individual described in and who
axecu wjemeM, acknowledge executed the within and foregoing instrument, and acknowledge
that L e+ me as t= that signed the same as
free voltm0 r the u s and purposes free and voluntary act and deed, for the uses and purposes
therein ttentiol Ev• we.2C I= therein mentioned.
CiTY$IY r _hand and of6c' MIS GIVEN under my hand and official seal this
s of 19.77 day of l9.....
OL 2 4
Notsry blic and fire State of Washington, residing at Notary Public in and for the State of Washington, residing at
My appointment expires an op
Z My appointment expires nu
t A,;jvAv tMpwa by I"vkW&. TICOR TffU DISURAWS COMAAN'Y OF GLtFORNiA Form L 28h
0i mvm
a
1`
i
i
t
~z
69
''A A
e.. �r.M
g i
STATE OF WASHINGTON s
ss
:j;
COUNTY OF K I N G j
I c tify that I know is the e person f who appeared before
Arlene.
that he/shehwas autiori t
stated t
execute the i
to be the free and v
such corporation for the u
uses a
N i
instrument. E
Eefi 21 snap b
O S
Signed or attested b
before m
i
i*nore)
k
\I
kCO)TWY PUBLIC
.ir, I. 1. r t•' `wiY..
69
''A A
e.. �r.M
g i
EXHIBIT A
I
I:
TARGET TRACT
LOT 1
810 ACRES
That portion of the Southwest quarter of the Northeast quarter of Section 26, Township 23 North,
CND Willamette Range 4 East, of the Meridian; in King County, Washington.
COMMENCING at the Southwest corner of the Southwest quarter of the Northeast quarter of said
Section 26;
THENCE North 01° 10' 24' East, along said West tine of said Southwest quarter 1,293.57 feet to the
0` South margin of Strander Eoulevard and the TRUE POINT OF BEGINNING of this description.
'j
THENCE South g8' 15' 33' East, along said margin, 665.00 feet;
THENCE South Ol' 44' 27" West, 63.00 feet to a point of tangent curvature concave to the Northeast
having a radius of 130.00 feet;
'THENCE Southeasterly along said curve through an arc of 34' 27' 01' an arc length of 78.17 feet;
THENCE South 88' 15' 33' East, 212.17 feet;
THENCE South 01 44' 27' Wit, 62-W feet;
THENCE South 88" 15' 33' East, 9.00 feet;
THENCE South 01 44' 27' West, 62.00 feet;
THENCE North 88° 15' 33" West, 133.00 feet;
THENCE South 01 44' 27' West, 150.00 feet;
THENCE North 88° 15' 33' West, 482.33 feet;
THENCE South 48 28' 37' West, 113.91 feet;
THENCE South OP 44' 27' West, 37.10 feet;
THENCE North 88 15' 33' West, 120.00 feet;
THENCE South 01° W 27" West, 80.00 feet;
THENCE North 88' 15' 33' West, to the West line of said Southwest quarter 84.68 feet;
THENCE Forth 01° 10' 24" East, 605.74 feet to the TRUE POINT OF BEGINNING and TERMWUS
of this description.
TOGETHER WTIH and SUBJECT TO any easements and reservations of record.
This legal description is subject to the apnrovat of a Lot Line edjustrrert Application by the City of
Tukwila.
1
a 2885.14
TUKWIE A POND CENTER
December 1, 1988
Rev. January 10, 1989
j
7A
i•
"M M009-0
r W
S,
EXHIBIT B
5.66 ACRE DEVELOPER TRACT
That portion of the Southwest quarter of the Northeast quarter of Section 26, Township 23 North,
Range 4 East, of the Willamette Meridian; in King County, Washington.
COMMENCING at the Southwest corner of the Southwest quarter of the Northeast quarter I said
Section 26;
THENCE North 02 10' 24" East, along said West line of said Southwest quarter 1293.57 feet to the
South margin of Strander Boulevard;
CV 77MCE South 88° 15' 33' East, along said margin, 665.00 feet to the TRUE POINT OF
0 BEGINNING of this description.
THENCE South 01 44' 27" West, 63.00 feet to a point of tangent curvature concave to the Northeast
CV having a radius of 130.00 feet;
0 THENCE Southeasterly along said curve through an arc of 34° 27' 01' an arc length of 78.17 feet;
C>` THENCE South 88 15' 33" East, 21117 feet;
CO THENCE South 01° 44' 27° West, 62A0 feet;
THENCE South 88° 15 East, 900 feet;
THENCE South 01° 44' 27" West, 62.00 feet;
THENCE North 88 15' 33' West, 133.00 feet;
THENCE South 01 27" West, 150.00 feet;
T13ENCE South 88° 15' 33" East, 299.82 feet;
THENCE South 34 33' 18" East, 204.52 feet;
THENCE South 88° 15' 33" East, 116.74 feet to the West margin of Andover Park West;
THENCE North 01 03' 25" East along said West margin 575.42 feet to the South margin of Strander
Boulevard;
'TI HENCE North 88° 15' 34" West along said South margin, 641.73 feet to the TRUE POINT OF
BEGINNING and TERMINUS of this legal description.
TOGETHER VMM and SUBJSCT TO andy easements and reservations of record.
2885.16
TUKWIIA POND CENTER
January 10, 1989
0
O
O
CV
N
O
Cr`
CIO
EXHIBIT C
SUBMISSION GUIDELINES
1. During the conceptual design phase, the construct-
ing party shall submit to the other parties the following:
A. Site Design Documents to Indicate the
Following:
Parking configurations and car parking count
Typical bay width and stall dimensions
Drive widths
Setbacks
Curb cuts
-Spot elevations or rough contours
Rough landscape scope
Lighting pole locations
Preliminary utility strategies
B. Building Design Single Line Plans to Indicate
the Following:
Exterior wall configuration
Doors and store front extent
Canopies and overhangs
Probable column locations at.exterior and
abutting our building on interior
C. Exterior Elevation Drawings to Indicate the
Following:
Opaque wall areas with doors and store
fronts
2. After approval has been granted of conceptual
design phase submitted in accordance with the guidelines
shall continue in full force and effect until terminated
pursuant to section E:5(B).
(iii) Thirty (30) days after the date of any
Option Event preceded by notice by Target to Developer that
the Target store is.closed permanently, or thirty (30) days
after the date of notice by Target to Developer that the
Target store is closed permanently; or
(iv) The termination of this OEA; or
(v) Developer's transfer or sale of the
Developer Tract to any third part, or Developer's cessation
to exist as a business entity; or
(vi) Ten (10) years from the Effective Date
hereof.
(C) Assiqnment. The rights arising under this
Article VIII are personal to Developer only and may not be
assigned to any third party; provided, however, that
Developer may, by prior notice to Target, assign its rights
ry
(B) Termination. The term
of the option rights
herein
granted shall terminate upon
the earliest happening
of any
of the following events:
CV
G
(i) One (1) year after
the date of any Option
D
CD
F•'
I
Event;
a
N
CV
(ii) Thirty (30) days
after the date of any
Option
Event preceded by an official
public company annolin-
cement
by Target that the Target
Store is closed per-
manently, or thirty (30) days after the
date of an official
public
company annour:cement by Target
that the Target store
is closed permanently; or
(iii) Thirty (30) days after the date of any
Option Event preceded by notice by Target to Developer that
the Target store is.closed permanently, or thirty (30) days
after the date of notice by Target to Developer that the
Target store is closed permanently; or
(iv) The termination of this OEA; or
(v) Developer's transfer or sale of the
Developer Tract to any third part, or Developer's cessation
to exist as a business entity; or
(vi) Ten (10) years from the Effective Date
hereof.
(C) Assiqnment. The rights arising under this
Article VIII are personal to Developer only and may not be
assigned to any third party; provided, however, that
Developer may, by prior notice to Target, assign its rights
ry
F•'
I
i
a
S l
Y
i
arising under this Article VIII to its original first
mortgagee, provided that the assignee will agree in writing
to be bound by all terms and conditions of Developer con-
tained herein.
(D) Release. Upon termination of the option
rights herein granted for any reason whatsoever, Developer
j agrees to, duly execute and deliver freely, without charge,
C� to Target 'a release of its option rights and any interest of
N Developer in the Target Property arising pursuant to this
Article VIII. This obligation shall survive the termination
of the option rights herein granted and/or' the termination
CO
of this OEA for any reason whatsoever.
66