Target/Kohl's/Regency Group - Operation and Easement Agreement
1.68710;~~ Page 1
RECORDING REQUESTED BY0VJ r/JJL:.
CHICAGO TITLE i COMPANY v,lwr 7
AND WHEN RECORDED MAIL T
~arget Corporation ~
Property Development, attn:
Property Administration
1000 Nicollet Mall
Minneapolis, Mn 55403
L
Escrow No. 946649
Order No 946649
-.J
BRENDA DAVIS
SANTA CLARA COUNTY RECORDER
Recorded at the request of
Chicago Title
Titles: 1 I Pages 111
Fees 337 00
Taxes
Copies
AMT PAID 337 00
RDE" 007
3/07/2003
1.31 PM
DOCUMENT: 16871019
\IIIIIIIIIIIU
_0016871019*
SPACE ABOVE THIS UNE FOR RECORDER'S USE
*** OPERATION AND EASEMENT AGREEMENT ***
REC'fJ MAR -
2004
ReeTJ MAR - 8 2004
REev MAR
l004
CPFR3 -11 {13{96bk
THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION
(Additional recording fee applies)
16871019 Page 2
....
...
OPERATION AND EASEMENT AGREEMENT
AMONG
TARGET CORPORATION,
KOHL'S DEPARTMENT STORES, INC.
AND
REGENCY REALTY GROUP, INC.
FOR
GILROY CROSSING
GILROY, CA
'168710~~ Page 3
OPERATION AND EASEMENT AGREEMENT
TABLE OF CONTENTS
ARTICLE I - D EFINmONS.... ....... .......... ........... ............... ........................... ............. ................... 2
1.1 APPROVlNO PARTY ............. ........... .................. ............. ......................... ................ ......... ..... 2
1.2 BUlLOlNG .............. ........... ......... .............. ....... ............... .......... .............. .... .......... ......... ........ 2
1.3 BUlLOlNG AREA......... ....... ....... ....... ....... .............. ......................... .......... ............. ................ 2
1.4 COMMON AREA ......... ........... .......... .................... .............. ...................... .......... ... ......... ....... 3
1.5 CONSTANT DOLLARs.. ............. ..... ....... ......................... ....... ..................... .......... ........ ......... 3
1.6 FLOOR AREA... ...... ............. .... .............. .......... ...... ..... ....... .......... ........ ........................... ....... 3
1. 7 GOVERNMENTAL AUTHORmES.......... ....... ............ ......... ....... ........... ....... ......... .................... 4
1.8 GOVERNMENTAL REQUIREMENTS ..... ........... ........... ............. ....... ....... ................. ......... ........ 4
1.9 OCCUPANT .... ................................. .... ............ ............ ...................... .... .............. .................. 4
1.1 0 OPERATOR ........................ ............. .................. ....... .... ...... .............. ............. ............... ........ 4
1.11 OUTP ARCEL .............. ....... ....... ............................................. ....... ....................... ........... ...... 4
1.12 OUTSIDE SALES AREA..... ........................... .................. ........ ................ ............................... 4
1.13 PARTY.... ...... ...... ............ ............. ........... ..................... ....... .......... ....... ........................... ..... 4
1.14 PERMTITEE .............................. ................. .............. ....... .............. ....... ................... ........ ...... 5
1.15 PERSON ........................... ....... ............. ........... .... ................. .... ....... ....... ...... ....... ................. 6
1.16 PRIMARY BUIlDlNG AREA ..................................................................................................6
1.17 RESTAURANT ............ ....... ............. ........... ....... ....... ........... .......... .............. ............ .............. 6
1.18 SIGN AREA.... ...... ........... .............. ......................... .............. .................. ..................... ......... 6
1.19 TRACT... t', ...... ......... .......... t" ....... ............................. ....... ... .... t.. .... ... .... ,.. ....... ....... ...... .......... 6
1.20 UTILffY LINES.. ................ ....... ..................... .......... ....... ............... ............................. .......... 6
ARTICLE n - EASEMENTS. .......... ............................ .......... .................. ........... .................. ..... .... 7
2.1 INGRESS, EGRESS AND PARKING .......................................................................................... 7
2.2 UTILITIES.......... ....... ..... ......................................... .......................................................... .... 8
2.3 CONSTRUcnON, MAINTENANCE AND RECONSTRUCTION................................................... 11
2.4 SIGN EASEMENTS.. .................................................. ..................... ........................ .... ........... 12
2.5 REsTRICTION ....... ......... ..... ........... .......... ....... ........... ........... .............................. ................. 15
ARTICLE ill - CONSTRUCfION ............................................................................ ................... 15
3.1 GENERAL REQUIREMENTS..... ............................................................... ......... ...... ...... ..... .... 15
3.2 COMMON AREA ..................................................... ................................ ............. ............... 16
3.3 BUILDING IMPROVEMENTS ................... ........................... .............. ..................................... 20
3.4 LIENs............ ................. ................ ............ ........................ ........... .............................. ....... 22
ARTICLE IV - MAINTENANCE AND REPAIR ....................................................................... 23
4.1 U11LfTY LlNES............................... .......... .......................... ........... ................... ....... ....... ..... 23
4.2 COMMON AREA .................................................... .............. ..... .............. ........ .................... 23
4.3 BUILDlNG AND OUTSIDE SALES AREA................................................................................ 31
ARTICLE V - OPERA nON OF THE SHOPPING CENTER .................................................... 32
5.1 USES............... ..... .......... ...... ....... ...... ........... .................................... ....... ......... ...... ...... ...... 32
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5.2 LIGHTING...................... ...... ........ ............ ....... ....... ...................... ........... ............................ 36
5 .3 OcCUPANT SIGNS............... ........ ........................ .............. .................................................. 37
5.4 INSURANCE ............... ........ ....... ........... ...... ......... ......... .............................................. ......... 40
5.S TAXES AND ASSESSMENTS .................................................................. ........................ ....... 45
ARTICLE VI - MISCELLANEOUS .... ................. ............... ................. .......... ........................ ..... 46
6.1 DEFAULT ...... ...... ................... ...................... ......... ........... ................................................... 46
6.2 INTEREST.. ........ ........... .......... ............... ................ .. ......... ............. ......................... ............. 48
6.3 ESTOPPEL CERTIFICATE........... ......... .......................... ................................. ....................... 48
6.4 NOTICES........... ......................... ......... ........................... ........ .... ......................................... 49
6.5 APPROVAL RIGIITS.. ............ ....... ........ ................... ....... ....... .......... ....................... .............. 50
6.6 CONDEMNA nON ....... .......... ...... ............... ....... ............ ........ ..... .......................................... 50
6.7 BINDING EFFECT ....... ............ .... ...................... ..... ...... .... ................................. ................... 51
6.8 CONSTRUcn:ON AND INTERPRET AnON .............................................................................. 51
6.9 NEGATION OF PARTNERSHIP.... ............. ............... ......... ................................... ........... ........ 52
6.10 NOT A PUBUC DEDICATION .............................................................................................. 52
6.11 EXCUSABLE DELA ys......................................................................................................... 52
6.12 MmGATION OF DAMAGES ................................................................................................ 53
6.13 OEA SHALL CONI1NUE N01WffHSTANDING BREACH ...................................................... 53
6.14 TIME,.... ... ....... ..... ................ ..... ............... ..... ....... ....... ...... I' " ......... ....... ,.. .......... .,...... ....... I...... 53
6.15 No W AlVER ...................................................................................................................... 53
6.16 ACCESS AREA ............ ............................................... ........ .................... .................. ..... ..... S3
6.17 TARGET ADDmoNAL PARCEL AND DEVELOPER ADDmONAL P AReEL. ............................ S4
6.18 PAD S. ............................................................................................................................... 55
ARTICLE VII - TERM .......................... ........................ ....... .... ...................................... .............. S5
7.1 1'ERM OF 'IllIS OEA................................... ~................................................................. ....... 55
ARTICLE VIII - EXCULPATION ............................................................................................... 55
8.1 CERTAIN LIMITATIONS ON REMEolEs................................................................................. 5S
EXHIBITS
Exhibit A Legal Description of Target Tract
Exhibit B Legal Desaiption ofKobl's Tract
Exhibit C Legal Description of Developer Tract
Exhibit D Design of Signs
Exhibit E Architectural Theme
Exhibit F Submission Guidelines
Exhibit G Form of First Amendment to Operation and Easement
Agreement
Exhibit H Fonn of Second Amendment to Operation and Easement
Agreement
Exhibit X Site Plan
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1.68710'".::\ page 5
OPERATION AND EASEMENT AGREEMENT
THIS OPERA nON AND EASEMENT AGREEMENT ("OEA") is made and entered
in~ as of the ~ day of March, 2003, between TARGET CORPORATION, a Minnesota
corporation ("Target"), KOHL'S DEPARTMENT STORES, INC., a Delaware corporation and
REGENCY REAL IT GROUP, INC., a Florida corporation ("Developer").
WITNESSETH
WHEREAS, Target is the owner of a certain tract of land legally described in Exhibit A
attached hereto and identified as the "Target Tract" on Exhibit X (the "Site Plan") attached
hereto; and
WHEREAS, Target and the City of Gilroy (the "City") have entered into a letter
agreement whereby the City agreed to convey to Target a certain tract ofland identified as the
~Target Additional Parcel" on the Site Plan;
WHEREAS, Developer is the owner of a certain tract ofland legally described in Exhibit
I! attached hereto and identified as the "Kohl's Tract" on the Site Plan;
WHEREAS, pursuant to a certain lease dated February 4, 2003 (the "Kohl's Lease")
between Developer, as landlord, and Kohl's, as tenant, Kohl's leased the Kohl's Tract from
Developer;
WHEREAS, Developer is' the owner of a certain tract of land legally described in
Exhibit C attached hereto and identified as the "Developer Tract" on the Site Plan;
WHEREAS, Developer and the City have entered into a letter agreement whereby the
City agreed to convey to Developer a certain tract ofland identified as the "Developer
Additional Parcel" on the Site Plan;
WHEREAS, the Target Tract, the Kohl's Tract and the Developer Tract (collectively, the
"Shopping Center") are contiguous and adjacent to each other 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, but not a planned or
common interest development/community, and in order to effectuate the common use and
operation of their respective Tracts they desire to enter into certain covenants and agreements,
and to grant to each other certain reciprocal easements, in, to, over, and across their respective
Tracts.
NOW, THEREFORE, in consideration of the premises, the covenants and agreements
hereinafter set forth and in furtherance of the parties' understanding, it is agreed as follows:
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ARTICLE I - DEFINITIONS
1.1 ADorovin2 Party
"Approving Party" shall mean the Party designated from time to time to make certain
decisions and/or give certain approvals pursuant to the teims of this OEA. There shall be one (1)
Approving Party representing the Developer Tract, one (1) Approving Party representing the
Target Tract and one (1) Approving Party representing the Kohl's Tract. Each Approving Party
shall have absolute discretion to make the decisions and/or give the approvals expressly
designated to be made and/or given on behalf of the real estate represented by such position
regardless of whether the Approving Party then owns all or less than all of the Developer Tract,
the Target Tract or the Kohl's Tract, as the case may be. The Party designated as Approving
Party for the Developer Tract shall have the right to assign such status to any other Party owning
a Tract within the Developer Tract; provided, however, if such assignment is not made in
writing, then the status of Approving Party for the Developer Tract shall automatically be
deemed assigned to the Party acquiring the last portion of the Developer Tract owned by the
Party then holding the status of Approving Party for the Developer Tract. The Party designated
as Approving Party for the Target Tract shall have the right to assign such status to any other
Party owning a Tract within the Target Tract; provided, however, if such assignment is not ma4e
in writing, then the status of Approving Party for the Target Tract shall automatically be deemed
assigned to the Party acquiring the last portion of the Target Tract owned by the Party then
holding the status of Approving Party for the Target Tract. The Party designated as Approving
Party for the Kohl's Tract shall have the right to assign such status to any other Party who is fee
owner or ground lessee of the entire Kohl's Tract; provided, however, if such assignment is not
made in writing, then the status of Approving Party for the Kohl's Tract shall automatically be
deemed assigned to the fee owner of the Kohl's Tract upon termination of the Kohl's Lease, or to
the Party acquiring Kohl's entire leasehold interest in the Kohl's Tract. Developer shall be the
initial Approving Party for the Developer Tract; Target shall be the initial Approving Party for
the Target Tract; Kohl's shall be the initial Approving Party for the Kohl's Tract.
1.2 Building
"BuDding" shall mean any permanently enclosed structure placed, constructed or located
on a Tract, which for the purpose of this OEA shall include any building appurtenances such as
stairs leading to or from a door, transfonners, trash containers or compactors, canopies, supports,
loading docks, truck ramps, garden centers, enclosed patio areas, child play areas designated to
be used by a particular Occupant and other outward extensions of such structure.
1.3 Buildin2 Area
"BuDding Area" shall mean the limited areas of the Shopping Center within which
Buildings may be constructed, placed or located. Building Areas are designated on the Site Plan.
One or more Buildings may be located within a Building Area.
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1.4 Common Area
"Common Area" shall mean aU areas within the exterior boundaries of the Shopping
Center, exclusive of (i) any Building and (ii) any Outside Sales Area dwing the period such area
is used for sales, display and/or storage pwposes.
1.5 Constant Dollars
''Constant Dollus" shall mean the value of the U.S. dollar to which such phrase refers,
as adjusted from time to time. An adjustment shall occur on the 1 st day of June of the sixth (6th)
full calendar year following the date of this OBA, and thereafter at five (5) year intervals.
Constant DoUars shall be detennined by multiplying the dollar amount to be adjusted by a
fraction, the numerator of which is the Cmrent Index Number and the denominator of which is
the Base Index Number. The "Base Index Number" shall be the level of the Index for the year
this OBA commences; the "CUJTent Index Number" shall be the level of the Index for the year
preceding the adjustment year; the "Index" shall be the Consumer Price Index for All Urban
Consumers, published by the Bureau of Labor Statistics of the United States Department of
Labor for U.S. City Average, All Items (1982-84=100), or any successor index thereto as
hereinafter provided. If publication of the Index is discontinued, or if the basis of calculating the
Index is materially changed, then the Approving Parties shall substitute for the Index comparable
statistics as computed by an agency of the United States Government or, if none, by a substantial
and responsible periodical or publication of recognized authority most closely approximating the
result which would have been achieved by the Index.
1.6 Floor Area
"Floor Area" shall mean the aggregate of the actual number of square feet of space: (i)
contained on each floor within a Building, including any mezz.Anine or basement space (except
for mezzanine space used solely for office and storage pwposes), as measured from the exterior
faces or'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 calculation: space attributable to
any multi-deck, platform, rack or other multi-level system used solely for the storage of
merchandise which is located above ground floor; any space used solely for Building utilities or
mechanical equipment; any garden center shown on the Site Plan); (ii) exceeding fifteen
thousand (15,000) square feet within an Outside Sales Area; and (Hi) used for outdoor seating for
customers of Restaurants and/or other food service businesses. Within thirty (30) days after
receipt of a request therefor, a Party shall certify to the requesting Party the amount of Floor Area
applicable to such Party's 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 a copy of such survey to
the other Parties for informational purposes only.
During any period of rebuilding, repairing, replacement or reconstruction of a Building,
the Floor Area previously attributable to that Tract shall be deemed to be the same as existed
immediately prior to such period. Upon completion of such rebuilding, repairing, replacement or
reconstruction, the Party owning such Tract shall cause a new detennination of Floor Area for
such Tract to be made in the manner described above, and such detennination shall be sent to any
other Party requesting the same.
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1.7 Governmental Authorities
'.'Governmental Authorities" shall mean any federal, state, county, city or local
governmental or quasi-governmental authority, entity or body (or any departmental agency
thereof} exercising jurisdiction over a particular subject matter.
1.8 Governmental Reauirements
"Governmental Requirements" shall mean all applicable laws, statutes, ordinances,
codes, rules, regulations, orders, and applicable judicial decisions or decrees, as presently
existing and hereafter amended, of any Governmental Authorities.
1.9 Occupant
''Oc:eupanf' shall mean any Person from time to time entitled to the use and occupancy
of any portion of a Building in the Shopping Center under an ownership right or under any lease,
sublease, license, concession, or other similar agreement
1.10 Ooerator
"Operator" shall mean the Person, if any, designated from time to time by the Appro~g
Parties to maintain and operate the Common Area of the Shopping Center. The Person
designated as Operator shall serve in such capacity until he resigns upon 60-days prior written
notice, or is removed by the Approving Parties. The Approving Parties hereby designate
Developer as the initial Operator, and Developer hereby accepts such appointment.
1.11 Outparcel
"Qutparcel" shall mean the portions of the Developer Tract labeled on the Site Plan as
Pad 1, Pad 2, Pad 3, Pad 4, Pad S, Pad 6A, Pad 6B, Pad 7, Pad 8, Pad 9, Pad 10, Store 1, Store 2,
Store 3, Store 4 and Major 8, each a portion of the Developer Tract for all purposes under this
OEA.
I .
1.12 Outside Sales Area
''Outside Sales Area" shall mean those areas, if any, designated on the Site Plan which
from time to time may be used for sales, display and/or storage purposes; provided, however,
with respect to any Outside Sales Area located outside of a Building Area, the Parties
acknowledge and agree that the actua1location of such Outside Sales Area may vary from time to
time, subject to the approval of the Approving Parties. During the period an Outside Sales Area
is: (i) used for sales, display and/or storage purposes, such area shall not be considered part of
the Common Area, and (ii) not used for sales, display and/or storage purposes, such area shall be
considered part of the Common Area; provided, however, if the Outside Sales Area is located
within a Building Area, such area may be used for the location of Buildings.
1.13 ~
"Party" shall mean each signatory bereto and its respective successors and assigns during
the period of such Person's fee ownership of any portion of the Shopping Center; provided,
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168710.9 Page 9
however, during the term of the Kohl's Lease, Kohl's shall be deemed to be the Party for the
Kohl's Tract. A Party transferring all or any portion of its fee interest or leasehold interest in the
Shopping Center shall give notice to all other Parties and the Operator, if any, of such transfer
and shall include in such notice at least the following infonnation:
(i) The name and address of the new Party;
(ii) A copy of the legal description of the portion of the Tract
transferred by such Party; and
(iii) If the new Party is the designated Approving Party.
Each Party shall be liable for the. perfoImance of all covenants, obligations and undertakings
applicable to the Tract or portion thereof owned or leased by it that accroe during the period of
such ownership or tenancy, and such liability shall continue with respect to any portion of the
Tract transferred by such Party until the notice of transfer set forth above is given. Until such
notice of transfer is given, the transferring Party shall (for the purpose of this OEA only) be the
transferee's agent. Once the notice of transfer is given, the transferring Party shall be released
from all obligations pertaining to the portion of the Tract transferred arising subsequent to the
notice of ' transfer. For the purpose of this Section only, if the notice of transfer is given pursuant
to the provisions of Section 6.4, the effective date of such notice shall be the date such notice is
sent. Notwithstanding anything to the contrary contained herein, upon the expiration of the term
of the Kohl's Lease or the earlier tennination of the Kohl's Lease, the fee owner of the Kohl's
Tract shall be deemed to be a transferee Party for the Kohl's Tract and the Approving Party for
the Kohl's Tract and the fee owner: of the Kohl's Tract shall give the other Parties written notice
of the expiration of the term of the Kohl's Lease or the earlier termination of the Kohl's Lease
and such notice shall be in addition to the other requirements of this Section 1.13.
If a Tract is owned by more than one (1) Party, the Party or Parties holding at least fifty-
I
one percent (51%) of the ownership interest in such Tract shaU designate in writing one (1)
Person to represent all owners of the Tract and such designated Person shall be deemed the
Person authorized to give consents and/or approvals pursuant to this OEA for such Tract.
Nothing contained herein to the contrary shall affect the existence, priority, validity or
enforceability of any lien permitted hereunder which is recorded against the transferred portion of
the Shopping Center prior to receipt of such notice of transfer by the Party filing such lien.
1.14 Permittee
"Permittee" shall mean all O<:cupants and the officers, directors, employees, agents,
contracto~, customers, vendors, suppliers, visitors, invitees, licensees, subtenants, and
concessionaires of Occupants insofar as their activities relate to the intended development, use
and occupancy of the Shopping Center. Persons engaged in civic, public, charitable or political
activities within the Shopping Center, including but not limited to the activities set forth below,
shall not be considered Pennittees:
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16871019 Page 10
.
(i) Exhibiting any placard, sign or notice.
(ii) Distributing any circular, handbill, placard or booklet.
(iii) Soliciting memberships or contributions for private, civic, public
charitable or political purposes.
(iv) Parading, picketing or demonstrating.
(v) Failing to follow regulations established by the Parties relating to
the use and operation of the Shopping Center.
1.15 Person
"Penon" shall mean any individual, partnership, firm, association, corporation, limited
liability company, trust, or any other fonn of business or Governmental Authority.
1.16 Prlmarv Building Area
"Primary BuDding Area" shall mean collectively the Building Areas designated as such
on the Site Plan, including the Building Area on the Target Tract and the Kohl's Tract,
respectively, but excluding the Building Areas on the Outpan:els.
1.17 Restaurant
"Restaurant' shall mean -any operation or business which requires a governmental
permit, license and/or authorization to prepare and/or- serve food for either on or off-site
consumption; provided, however, notwithstanding anything contained herein to the contrary, a
supermarket, grocery store or similar operation shall not be deemed a Restaurant.
1.18 Si2l1 Area
"Sign Area" shall mean a limited area of the Shopping Center upon which a freestanding
sign structure may be constructed, place or located. All Sign Areas are designated on the Site
Plan. One sign structure may be located with each Sign Area.
1.19 Tract
"Tnct" shall mean that portion of the Shopping Center owned by a Party.
1.20 Utility Lines
"Utility Lines" shall mean those facilities and systems for the transmission of utility
services, including the drainage and storage of surface water. "Common Utility Lines" shall
mean those Utility Lines which are installed to provide the applicable service to more than one
(1) of the Developer Tract, the Kohl's Tract and the Target Tract "Separate Utility Lines" shall
mean those Utility Lines which are installed to provide the applicable service to either the
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,
Developer Tract, the Kohl's Tract or the Target Tract For the purpose of this OEA, the portion
of a Utility Line extending between a Common Utility Line and a Building shall be considered a
Separate Utility Line. Utility Lines installed pursuant to this OEA shall only provide service
necessary for the development and/or operation of the Shopping Center.
ARTICLE n - EASEMENTS
2.1 In2ress. E2J'eSS and Parking
(A) 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-ex~lusive easement for the passage and parking of vehicles over and across the 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 parlcihg, driveways and sidewalk areas of the grantor's Tract, as the same may from time to
time be constructed and maintained for such use. The easement herein established shall be
appurtenant to and for the benefit of each grantee's Tract, and shall be binding on, enforceable
against ~d burden each grantor's Tract. Such easement rights shall be subject to the following
reservations as well as the other applicable provisions contained in this OEA:
(i) Each Party reserves the right to close-off any portion of its Tract
for such reasonable period of time as may be legally necessary, in
the opinion of such Party's counsel, to prevent the acquisition of
prescriptive rights by anyone; provided, however, that prior to
closing-off any portion of its Tract, such Party shall give written
notice to each other Party of its intention to do so, and shall
attempt to coordinate such closing-off with each other Party so that
no unreasonable interference with the passage of pedestrians or
vehicles shall occur;
(ii) 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 Tract; and
(Hi) Each Party reserves the right to temporarily erect or place barriers
in and around areas on its Tract which are being constructed and/or
repaired in order to insure either safety of Persons or protection of
property.
(8) In addition to the general easement specified in Section 2.1(A), Developer hereby
grants and conveys to Target for its use and for the use of its Permittees, in common with others
entitled to'use the same, and subject to the reservations set forth in Section 2.l(A)(i) and (ii), a
non-exclusive, perpetuaI easement for the passage and accommodation of pedestrians and
vehicles (Out not for parking purposes) upon, over and across that portion of the Developer Tract
designated on the Site Plan as the "Access Area". Tbe easement herein established shalJ be
appurtenant to and for the benefit of the Target Tract, and shall be binding on. enforceable
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16871019 Page 12
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I
against and burden the Developer Tract. During the term of this OEA, each portion of the
Access Area shall be maintained in accordance with the provisions governing the maintenance of
the parking and driveways on the Developer Tract, and such Access Area shall not be relocated
without the approval of Target in its sole and absolute discretion.
After the termination of this OEA, that portion of the
Developer Tract on which the Access Area is located shall be maintained in a safe, clean and
good state of repair and condition by Developer, at its sole cost and expense. In the event
Developer shall fail to perform the required maintenance, Target, after at least thirty (30) days
prior notice to Developer, shall have the right, but not the obligation, to cause such maintenance
to be perfonned. If such curative measures are taken Developer shall, upon demand,
immediately pay to Target, all costs and expenses incUITed with respect to such curative action.
In addition, Target shall have the right to create a lien upon the Developer Tract in order to
secure payment of the amount expended by Target to perform such maintenance, plus Interest at
the rate set forth in Section 6.2 hereof. .
(C) In addition to the general easement specified in Section 2.1 (A), the Parties hereby grant and
convey to each other Party for its use and for the use of its Permittees, in common with other
1
entitled 19 use the same, and subject to the reservations set forth in Section 2.1 (A)(i) and (ii) a
non-exclusive, perpetual easement for the passage and accommodation of trucks and other vehicles
(but not for parking purposes) upon, over and across that portion of each grantors Tract designated
on the Site Plan as a Truck Maneuver Area. The casement herein established shall be appurtenant
to and for the benefit of each grantee's Tract, and shall be binding on, enforceable against and
burden ~ grantors Tract. During the term of this OEA, each portion of a Truck Maneuver Area
sha1I be qtaintained in accordance with the provisions governing the maintenance of the parking
and driveways on each grantofs Tract.
After the termination of this ORA that portion of the grantor's tract on which a Truck
Maneuver Area is located shall be maintained in a safe, clean and good state of repair and condition
by the grantor, at its sole cost and expense. In the event the grantor shall fail to perform the
required maintenance, any grantee, after at least thirty (30) days prior notice to the grantor, shall
have the right, but not the obligation, to cause such maintenance to be performed. If such curative
measures are taken the grantor shall, upon demand, immediately pay to the grantee cwing such
default, all costs and expenses incurred with respect to such cmative action. In addition, such
grantee sh811 have the right to create a lien upon the grantor's Tract in order to secure payment of the
amoWlt expended by such grantee to perform such maintenance, plus Interest at the rate set forth in
Section 6.2 hereof.
2.2 Utilities
(A) Each Party hereby grants and conveys to each other Party non-exclusive, perpetual
easements in, to, over, under, along and across those portions of the grantor's Tract (exclusive of
any portion located within Building Areas) necessmy for the installation, operation, flow,
passage, ~, maintenance, connection, repair, relocation, and removal of Utility Lines serving
the grantee's Tract The initial location of any Utility Line shall be subject to the prior written
approval o'f the Party whose Tract is to be burdened thereby. Such easement area shall be no
wider than necessary to reasonably satisfy the requirements of a private or public utility
8
l68710i~ Page 13 .
company, or five (5) feet on each side of the centerline if the easement is granted to a Party. The
grantee shall provide to the grantor a copy of an as-built survey showing the location of such
Utility Line. All Utility Lines shall be underground except:
(i) Ground mounted electrical transfonners;
(ii) As may be necessary during periods of constructiont
reconstruction, repair or temporary service;
(iii) As may be required by Governmental Authorities;
(iv) As may be required by the provider of such utility service; and
(v) Fire hydrants.
At least thirty (30) days prior to utilizing the easement granted herein, the grantee shall
provide the grantor with a written statement describing the need for such easement, shall identify
the proposed location of the Utility Linet the nature of the service to be provided, the anticipated
commencement and completion dates for the work. Prior to commencing any work on a
grantor's Tract, including any emergency work, the grantee shall provide to the grantor evidence
of insurance coverage as required by Section S.4(C).
(8) Any Party electing to install a Separate Utility Line shall obtain all pennits and
approvals and shall pay all costs and expenses with respect to the initial construction and all
subsequent maintenance, relocation or abandonment of the Separate Utility Line. The Separate
Utility Line shall be maintained in a safe, clean and good state of repair and condition. The
grantee shall perfonn such work in compliance with all Governmental Requirements, as quickly
as possible and after normal business homs whenever possible. Except in the case of a
maintenance emergency where such work may be initiated after reasonable notice, the grantee
shall provide the grantor with at least fifteen (IS) days prior notice before commencement of any
work. The grantee of any Separate Utility Line agrees to defend, protect, indemnify and hold
harmless the grantor from and against all claims or demands, including any action or proceeding
brought thereon, and all costs, losses, expenses and liabilities of any kind relating thereto,
including reasonable attorneys' fees and cost of suit, arising out of or resulting from the exercise
of the right to install, maintain and operate the Separate Utility Line; provided, however, the
foregoing obligation shall not apply to claims or demands based on the negligence or the willful
act or omission of the grantor.
(C) Except as may otherwise be agreed, the Parties (the "Cooperating Parties") electing
to install a Common Utility Line shall obtain all permits and approvals and shall pay all costs and
expenses with respect to the initial construction thereof. Once constructed, Operator shall
maintain, replace and/or relocate the Common Utility Line in a safe, clean and good state of
repair and condition, and in compliance with all Governmental Requirements, as quickly as
possible and after nonnal business homs whenever possible. All costs incurred with respect to
the maintenance, relocation or abandonment of the Common Utility line shall be either included
in Common Area Maintenance Costs so long as the Shopping Center is operated and maintained
by Operator, or allocated between the Cooperating Parties .based on the process established below
for maintenance and operation of the Common Utility Line if there is no Operator. If there is no
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16871019 Page 14
..
Operator, then any Cooperating Party sball have the right to maintain, repair or replace the
Common Utility Line without submission of a Budget or estimate of expenditures, except as
hereinafter provided. If a Cooperating Party, in performing maintenance, repair or replacement
of a Common Utility Line, is likely to incur costs of more than Twenty Thousand Dollars
($20,000) in Constant Dollars for such work in anyone instance (or series of related or repeated
circumstances), such Cooperating Party shall first notify the other Cooperating Parties required to
pay a portion of such costs, in which case the Cooperating Parties shall prepare a list of qualified
bidders, shall seek competitive bids from the list of qualified bidders before performing the work
and shall select the lowest, responsive qualified bidder to perform the work. If a list of bidders is
not jointly prepared within fifteen (15) days of the request for bidders, the Cooperating Party
desiring to perform the work may prepare the list (containing not less than three bidders) for such
other Cooperating Parties' approval, which approval shall not be unreasonably withheld, from
which bids will be solicited. After a Cooperating Party has incurred any costs for maintaining,
repairing or replacing a Common Utility Line, it may send a statement of such costs, increased by
an amount equal to the Administrative Fee (defined in Section 4.3(A)), together with a copy of
any invoice reflecting any charge exceeding $500.00 to each Cooperating Party benefiting from
such Common Utility Line. Each Cooperating Party shall pay within thirty (30) days after receipt
of the statement of costs either its allocable share of such costs as agreed upon when the
Common Utility Line was installed, or if no separate cost sharing agreement was made, then in
accordance with the sharing of Common Area Maintenance Costs. Except in the case of a
maintenance emergency where such work may be initiated after reasonable notice, the grantor
shall be provided with at least fifteen (15) days prior notice before commencement of any work.
(0) Each Party bereby grants and conveys to each other Party owning an adjacent Tract the
perpetual right and easement to discharge surface storm water drainage and/or runoff from the
grantee's Tract over, upon and across the Common Area of the grantor's Tract, upon the following
conditions and terms:
(i) The grades and the surface water drainageJretention system for the
Shopping Center shall be initially constructed in strict conformance
with the plans and specifications approved by the Approving
Parties; and
(ii) No Party shall alter or permit to be altered the surface of the
Common Area or the drainage/retention system constructed on its
Tract if such alteration would materially increase the flow of
surface water onto an adjacent Tract either within the aggregate or
by directing the flow of surface water to a limited area. All surface
water collection, retention and distribution facilities shall be
deemed a Common Utility Line.
(E) In the event a Party fails to perform its obligations under Section 2.2, any grantor shall
have the right to claim a default pursuant to Section 6.1 and avail itself of all the provisions
therein contained, including the right to lien a Defaulting Party's Tract, and receive Interest on all
sums expended to cure such default.
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~687101~ Page 15
(F) The grantor shall have the right to relocate a Utility Line on its Tract upon thirty (30)
days prior written notice to the grantee(s), provided that such relocation:
(i) Shall not be commenced during the months of November,
December or January;
(ii) Shall not interfere with or diminish the utility service to the grantee
during the grantee's business hours; and if an electrical
line/computer line is being relocated, then the grantor and grantee
shall coordinate such interruption to eliminate any detrimental
effects;
(Hi) Shall not reduce or unreasonably impair the usefulness or fimction
of such Utility Line;
(iv) Shall be performed without cost or expense to the grantee;
(v) Shall be completed using materials and design standards which
equal or exceed those originally used; and
(vi) Shall have been approved by the provider of such utility service
and the appropriate Governmental Authorities.
Documentation of the relocated easement area, including the furnishing of an "as-built"
survey to all grantees, shall be at the grantor's expense and shall be accomplished as soon as
possible following completion of such relocation.
2.3 Construction. Maintenance and Reconstruction
(A)In order to accommodate any Building improvements which may inadvertently be
constructed beyond a Tract's bo\Dldary line, each Party grants to each other Party owning an
adjacent Tract, an easement, not to exceed a maximum lateral distance of six (6) inches, in, to,
over, under, and across that portion of the grantor's Tract adjacent to such common boundary line
for the maintenance and replacement of such encroaching Building improvements.
(B) In the event a constructing Party (the "Constructing Party'') determines that it is
necessary to place underground piers, footings and/or fOlmdations ("Subsurface Construction
Elements'') across the boundary line of its Tract, the Constructing Party shall advise the Party
owning the adjacent Tract (the "Adjacent Party'') of .the Constructing Party's construction
requirements and shall provide plans and specifications relating thereto to the Adjacent Party,
including proposed construction techniques for the Subsurface Construction Elements. Each
Adjacent Party hereby grants and conveys to each Constructing Party for the benefit of its Tract
an easement, not to exceed a maximum lateral distance of five (5) feet, in, to, under, and across
that portion of the Adjacent Party's Tract not theretofore occupied by any then existing structure,
for the installation, maintenance and replacement of such Subsurface Construction Elements;
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16871019 Page 16
provided, however, that the Constructing Party shall have no right to use such easement if the
Adjacent Party is able to provide the Constructing Party a reasonable alternative construction
method for the placement of the Subsurface Construction Elements entirely on the Constructing
PartYs Tract.
The Adjacent Party reserves the right to require the Constructing Party to modify the
design specifications for the Subsurface Construction Elements in order to permit the Adjacent
Party the opportunity to utilize the same in connection with the construction of its Building so
that each Party shall be able to place its Building immediately adjacent to the common boundary
line. If a common Subsurface Construction Element is used by the Constructing Party and the
Adjacent Party, each shall assume and pay its reasonable share of the cost and expense of the
design and construction thereof. In the event any Building utilizing a common Subsurface
Construction Element is destroyed and not replaced or is removed, the conunon Subsurface
Construction Element shall remain in place for the benefit of the other Building utilizing the
same.
(C) The easements established \Ulder Section 2.3(A) and (8) shall be appurtenant to and
for the benefit of each grantee's Tract, and shall be binding on, enforceable against and burden
each grantor's Tract. Notwithstanding such easement grant, nothing herein shall diminish or
waive the right of a grantor to recover damages resulting from a grantee's failure to construct its
Building within its Tract in the case of Section 2.3(A), or within the easement area limits in the
case of Section 2.3(8). Such easements in each instance shall:
(i) Continue in effect for the term of this OEA and thereafter for so
long as the Building utilizing the easement area exists (including a
reasonable period to permit reconstruction or replacement of such
Building if the same shall be destroyed, damaged or demolished).
(ii) Include the reasonable right of access necessary to exercise and
enjoy such grant upon tenns and with the limitations described in
Section 3.1 (E).
(0) With respect to Buildings constructed along the common bo\Uldary line between
Tracts, nothing herein shall be deemed to create or establish:
(i) A "'conunon" or "party" wall to be shared with the adjacent
Building.
(ii) The right for a Building to receive support from or apply pressure
to the adjacent Building.
2.4 Sien Easements
(A) Target hereby grants and conveys to Developer, its successors and assigns as the
owner of the Developer Tract, a perpetual easement for the construction, reconstruction,
12
,1687101,,9 Page 17
replacement, operation, maintenance and repair of a sign structme, including the right and
privilege to place thereon or affix thereto identification panels (collectively, "Pylon Sign #1"),
over, under, upon and across that portion of the Target Tract identified on the Site Plan as the
"Sign Area #1", together with reasonable access over, under, upon, through and across the Sign
Area #1 to iosta11, replace, maintain, repair and operate a Common Utility Line pursuant to the
terms and conditions set forth in Section 2.2 above in order to provide Pylon Sign #1 with power.
Developer shall have the right to grant easements for the identification panel areas specified with
respect thereto on Exhibit D for Pylon Sign #1 as restricted by the provisions of Section 5.3
hereof. Each such grant shall recognize any prior panel easement grant, particularly the grants to
Target specified below, and specify which identification panel area on Pylon Sign #1 is the
subject of the panel easement grant Developer shall deliver a copy of the recorded easement to
Target and each other Person holding a prior identification panel easement right with respect to
Pylon Sign #1.
Target hereby retains for its benefit and the benefit of its successors and assigns as the
owner of the Target Tract, a perpetual right and privilege to place or affix identification panel(s)
of the size and in the area (both sides of structure) shown with respect thereto on Exhibit D to
Pylon Sign #1 to be located in the Sign Area #1; the easement grant shall include reasonable
access over, across and upon Pylon Sign #1 and the Sign Area #1 to permit such identification
panel( s) to be installed, replaced, maintained and operated.
(B) Developer hereby grants and conveys to Kohl's, its successors and assigns as
owner of the Kohl's Tract, perpetual easements for the right and privilege to place or affix
identification panel(s) in the position (both sides) specified with respect thereto in Exhibit D to
the sign stIUcture (the "Pylon Sign #2") to be located on that portion of the Developer Tract
identified on the Site Plan as the "Sign Area #2"; the easement grant shall include reasonable
access over, across and upon the Developer Tract to permit such panel(s) to be installed,
replaced, maintained and operated. Developer reserves the right to grant additional panel
easements on Pylon Sign #2, subject to the restrictions set forth in Section 5.3, for the remaining
panel areas specified with respect thereto on Exhibit D, and each such additional grant shall
recognize the easement right and privileges granted herein to Kohl's, and shall specify which
panel space on Pylon Sign #2 is the subject of the easement grant. A copy of the recorded
easement shall be delivered to Kohl's and to each other Person holding a prior panel easement
with respect to Pylon Sign #2.
(C) In no event shall the Target pylon sign square footage on Pylon Sign #1 be less
than Target's pro rata share of the Shopping Center square footage, based upon the greater of
either (i) what is allowed under current ordinance or (ii) what is actually approved by the City of
Gilroy. In no event shall the Kohl's pylon sign square footage on Pylon Sign #2 be less than
Kobl's pro rata share of the Shopping Center square footage, based upon the greater of either (i)
what is allowed under cumnt ordinance or (ii) what is actually approved by the City of Gilroy.
In the event any sign structure is not in place within Sign Area #2 during the tenn of the
OEA, or at any time thereafter, then the aforesaid easement grants shall also include the right for
Kohl's to construct, reconstruct, replace, maintain and operate Pylon Sign #2 within the Sign
Area #2 together with reasonable access over, under, upon, through and across the Developer
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16871019 Page 18
Tract, to install, replace, maintain, repair and operate a separate Utility Line pursuant to the terms
and provisions set forth in Section 2.2 above in order to provide such sign structure and panels
with power. If Target or Kohl's elects to construct any sign structure, the design thereof shall be
as specified on Exhibit D, or another design approved either during the term of the OEA by the
Approving Parties and the Parties entitled to place panels on the sign structure pursuant to
Section 5.3, or following the expiration of the OEA, by the Persons entitled to place panels on
the sign structure pursuant to easement grants. The easements established in this Section 2.2
shall be appurtenant to and for the benefit of each grantee's Tract, and shall be binding on,
enforceable against and burden each grantor's Tract. Target and Kohl's shall have the right to
release their rights under one or more of the easements, and upon such release the releasing Party
shall remove its panel(s) and thereafter have no further rights, duties or responsibilities with
respect to the applicable sign structure.
During the term of this OEA, the right of other Occupants to place panels on any sign
structure, the maintenance and/or replacement of any sign structure, and any relocation of any
sign structure shall be governed by the provisions of Section 5.3 hereof. Developer (or Target or
Kohl's if it bas constructed any sign structure) shall be entitled to receive the portion of any
condemnation award relating to the sign structure" including any relocation benefits, and the
Person receiving the award shall cause a new sign structure to be constructed in accordance wi~
Exlnbit D in a replacement location acceptable to the Approving Parties. If the award received
for the sign structure is less than the cost to replace the sign structure, the Parties entitled to place
panels on the sign structure shall pay the deficiency based on the panel area allocated to each
pursuant to Exhibit D. or the then approved design, even if such panel area is not used. The
award (whether paid separately or as part of a lump sum) attributable to each panel taken shall
belong to the owner thereof.
Following the termination of this OEA, the maintenance and/or replacement of each sign
structure shall be performed by a Person designated by the majority of the grantees entitled to
place panels on the particular sign structure, and all maintenance (including cost of providing
power) and/or replacement costs shall be separately billed to the grantees based on the panel area
allocated to each, even if such panel area is not used. Each Person attaching a panel to the sign
structure shall cause such panel (including any backlit lighting) to be maintained at its sole cost
and expense in a' safe condition and in a good state of repair and pursuant to Governmental
Regulations. In the event the area upon which any sign structure is located is taken by
condemnation, the owner of the land upon which the sign structure is located shall designate a
replacement area with comparable visibility as close to the original location as is reasonably
possible. The Person then maintaining the sign structure shall be entitled to receive the portion
of the condemnation award relating to the sign struct\U'e taken, including any relocation benefits,
and such Person shall cause a new sign structure to be co~cted in the replacement location in
accordance with the design criteria set forth in Exhibit D. or any other design criteria approved
by the grantees entitled to place panels on the sign structure pursuant to the easement grants. If
the award received for the sign structure is less than the cost to replace the sign structure, the
grantees entitled to place panels on the sign structure shall pay the deficiency based on the panel
area allocated to each pursuant to the easement grants, even if such panel area is not used. The
award (whether paid separately or as part of a lwnp swn) attributable to each panel taken shall
belong to the owner thereof.
14
16871019 Page 19
2.5 Restriction
No Party shall grant any easement for the benefit of any property not within the Shopping
Center; provided, however, that the foregoing shall not prohibit the granting or dedicating of
easements by a Party on its Tract to Governmental Authorities or to public utility companies.
ARTICLE ill - CONSTRUCTION
3.1 General Requirements
(A) Each Party agrees that all construction activities performed or authorized by it within
the Shopping Center shall be performed in compliance with all Governmental Requirements. All
construction shall utilize new materials and shall be performed in a good, safe, workman.like
manner.
(8) Each Party further agrees that any construction activities performed or authorized by it
shall not:
(i) Cause any unreasonable increase in the cost of constructing
improvements upon another Party's Tract.
(ii) Unreasonably interfere with construction wOIk being perfonned 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.
(iv) Cause any Building located on another Tract to be in violation of
any Governmental Requirements.
(C) Each Party agrees to defend, protect, indemnify and hold hannless each other Party
from and against all claims and demands, including any action or proceeding brought thereon,
and all costs, losses, expenses and liabilities of any kind relating thereto, including reasonable
attorneys fees and cost of suit, arising out of or resulting from any constlUction activities
performed or authorized by such indemnifying Party; provided, however, that the foregoing shall
not be applicable to either events or circumstances caused by the negligence or willful act or
omission of such indemnified Party, its licensees, concessionaires, agents, servants, employees,
or anyone claiming by, through, or under any of them, or claims covered by the release set forth
in Section 5.4(0).
(D) In connection with any construction, reconstruction, repair or maintenance on its
Tract, each Party reserves the right, at its expense. to create a temporary staging and/or storage
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. Prior to the commencement of any work. which
requires the establishment of a staging and/or storage area on its Tract, a Party shall give at least
15
16871019 Page 20
thirty (30) days prior notice to the Approving Parties, for their approval, of the proposed location
of such staging and/or storage area. If substantial work is to be perfonned, the constructing Party
shall, at the request of any Approving Party, fence such staging and/or storage area.
Notwithstanding the foregoing, (a) if a business is operating on the Target Tract then no other
Party's staging and/or storage area shall be located within one hundred (l00) feet of the Target
Tract, unless such area is located within a Building Area or in another location approved by the
Approving Party for the Target Tract, and (b) if a business is operating on the Kohl's Tract then
no other Party's staging and/or storage area shall be located on the Kohl's Tract or within one
hundred (100) feet of the Building Area on the Kohl's Tract, unless such area is located within a
Building Area or in another location approved by the Approving Party for the Kohl's Tract. If
the Approving Parties do not approve the proposed location of the staging and/or storage area,
the requesting Party sha1l modify the proposed location of the staging and/or storage area to
satisfy the reasonable requirements of the Approving Parties. 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, suppliers, contractors and others connected with such
construction activities shall use only the access points located upon the constructing Party's Tract.
Upon completion of such work, the constructing Party shall, at its expense, restore any damaged
Common Area to a condition equal to or better than that existing prior to commencement of such
work.
(E) Each Party hereby grants and conveys to each other Party and to such Party's
contractors, materialmen and laborers a temporary license for access and/or use over 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 grantee's Tract; provided, however, that such
license shall be in effect only dwing such periods of .time when actual COnstruction and/or
maintenance is being performed and provided further that the use of such license shall not
unreasonably interfere with the use and operation of the Common Area by the other Parties or
their Permittees. Prior to exercising the rights granted herein, the grantee shall first provide the
grantor with a written statement desaibing the need for such license and shall identify the area of
use. Each grantee physically using a portion of the grantor's Tract in connection with the
construction and/or maintenance of the grantee's Tract shall furnish a certificate of insurance
showing that its contractor has obtained the minimwn insurance coverage required by Section
S.4(C), 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 and/or
repair the affected portion of the grantor's Tract 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 such 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
Except as provided in Section 6.17 of this OEA, the Parties have agreed that the Common
Area shall be constructed as shown on the Site Plan; provided, however, no fence or other barrier
which would prevent or unreasonably obstruct the passage of pedestrian or vehicular travel shall
be erected or pennitted within or across the Common Area, exclusive of the limited curbing and
16
~6871019 Page 21
other forms of traffic control depicted on the Site Plan, permitted staging and/or storage areas
and Outside Sales Areas. Contemporaneously with the construction of a Building upon its Tract,
the constructing Party shall cause the Common Area on its Tract to be substantially completed no
later than the day the first Occupant of such Tract opens for business with the public. Such work
shall be done in accordance with Governmental Requirements, in a good and workmanlike
manner and in accordance with good engineering standards; provided, however, the following
minimum general design standards shall be complied with throughout the tenn of this OEA:
(A) The lighting system shall use a lamp source of metal halide, and shall be designed to
produce a minimum maintained lighting intensity measW'ed at grade at all points of at least:
(i) 5.0 foot-candles at curb in front of the entrance to any Building.
(ii) 5.0 foot-candles at entry drives to the Shopping Center.
(Hi) 5.0 foot-candles in the general parking areas.
(iv) 3.0 foot-candles at the perimeter of the parking areas.
Each Party may elect to control the lighting system located on its Tract The type and
design of the Common Area light standards shall be approved by the Approving Parties.
(B) The slope in the parking area shall not exceed a maximum of three percent (3%) nor
be less than a minimum of one an~ one-halfpercent (1.5%), and the slope at all entrances to the
Shopping Center shall not exceed a maximum of five percent (5%) nor be less than a minimwn
of one and one-half percent (1.5%).
(C) All sidewalks and pedestrian aisles shall be concrete or other materials approved by
the Approving Parties; the automobile parting areas. driveways, and access roads shall be
designed in conformity with the recommendations of a licensed soils engineer approved by the
Approving Parties, which design shall require the installation of a suitable base and surfacing
with an asphaltic concrete or concrete-wearing material.
(0) Utility Lines that are placed underground shall be at depths designated by consultants
approved by the Approving Parties. If surface water retention and/or detention areas are located
outside of the general parking areas, such retention and/or detention areas shall be fenced or
otherwise secured to impede public access thereto.
(E) The parking area on the Target Tract, the Kohl's Tract and on eacb separate Tract
comprising the Developer Tract shall contain sufficient ground level parking spaces, without
reliance on parking spaces that may be available on another Tract, in order to comply with the
greater of Governmental Requirements or the following minimum requirements:
17
16871019 Page 22
(i) Five (5.0) parking spaces for each one thousand (1,000) square feet
of Floor Area, exclusive of Restaurant parking requirements set
forth below; provided, however, that compact car parking spaces,
which may not exceed twenty percent (200A.) of total parking
spaces, shall be located only in the areas, if any, designated on the
Site Plan.
(ii) If a business use contains a drive-up unit (such as a remote banking
teller or food ordering/dispensing facility), then there shall also be
created space for stacking not less than five (5) automobiles for
each drive-up unit.
(iii) For each single Restaurant which has less than seven thousand
(7,000) square feet of Floor Area, then ten (10) parking spaces for
each one thousand (1,000) square feet of Floor Area devoted to
such use.
(iv) For each single Restaurant which has seven thousand (7,000)
square feet or more of Floor Area, then fifteen (15) parking spaces
for each one thousand (1,000) square feet of Floor Area devoted to
such use. -
If an Occupant operates a Restaurant incidental to its primary business purpose, then so
long as such incidental operation continues, the portion of the Floor Area occupied by such
Restaurant shall be excluded from the application of (iii) and (iv) above. For the pwpose of this
clause only, a Restaurant shall be an "incidental operation" if it occupies less than seven percent
(7%) of the Occupant's Floor Area and does not have a separate customer entry/exit door to the
outside of the Building. In the event an Occupant utilizes Floor Area for Restaurant and other
purposes, only the portion of Floor Area allocated for Restaurant purposes shall be subject to the
increased parking requirements set forth above.
I
, I
Subject to compliance with all applicable Governmental Requirements (which shall be
satisfied independently by the Target Tract, the Kohl's Tract, the Developer Tract and
individually by each Tract and Outparcel comprising the Developer Tract regardless of how
Floor Area is determined under this OEA), the foregoing requirements of this paragraph (E)
must be satisfied as to each Tract and Outparcel, and shall be deemed satisfied as to each Tract
and Outparcel only if the subject Tract or Outparcel individually fulfills such requirements
without reliance on any parking spaces that may be available on any land outside the boundary of
the subject tract or outparcel.
In the event of a condemnation of part of a Tract or a sale or transfer in lieu thereof that
reduces the number of usable parking spaces on such Tract below that which is required herein,
the Party whose Tract is so affected shall use its best efforts (including using proceeds from the
condemnation award or settlement) to restore and/or substitute ground-level parking spaces in
order to comply with the parking requirements set forth in this OEA. If such compliance is not
18
16871019 Page 23
reasonably possible, such Party shall not be deemed in default hereunder, but such Party shall not
be permitted to expand the amount of Floor Area located on its Tract. If such Floor Area is
thereafter reduced other than by casualty, then the Floor Area on such Tract may not
subsequently be increased unless the parking requirements set forth above are satisfied.
Temporary unavailability of parking spaces caused by uses or promotions permitted under
this OEA shall not result in or be deemed a violation of this Section 3.2(E).
(F) No Party shall make changes to the improved Common Area on its Tract without the
approval of the Approving Parties, 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 the portion of the Common Area on its
Tract, including the insta11ation of convenience facilities such as mailboxes, public telephones,
cart corrals, benches, bike racks, directional and/or parking infonnation signs, provided that:
(i) 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, and all parking
stalls and rows and vehicular traffic lanes shall remain generally as
shown on the Site Plan.
(ii) There shall be maintained at all times within such Common Area a
sufficient nwnber of vehi~ar parking spaces to meet the parking
requirements set forth in Section 3.2(E); provided, however, that
no more than two percent (2%) of the parldng spaces depicted on
the Site Plan for such Tract shall be eliminated.
(Hi) No Governmental Requirements shall be violated as a result of
such action; any and all Governmental Requirements applicable to
such modifications sball be satisfied by the Party perfonning the
same; and such action shall not result in any other Party being in
violation of any Governmental Requirements.
(iv) No change shall be made in the access points between the
Common Area and the adjacent public streets; provided, however,
that additional access points may be created with the approval of
the Approving Parties.
(v) At least thirty (30) days prior to making any such change,
modification or alteration, the Party desiring to do sucb work shall
deliver to each Approving Party copies of the plans therefor, and
provided further that such work shall not occur during the months
of October, November, December or January.
19
16871019 Page 24
-------------- -
The provisions of this Section 3.2(F) do not apply to any changes, modifications or
alterations of Common Area located within Building Areas which result from or arise out of the
construction, expansion or maintenance of Buildings or Outside Sales Areas.
3.3 Building Improvements
(A)Building(s) shall only be located within the Building Areas designated on the Site
Plan. While it is acknowledged and agreed that no Party shall have an obligation to commence
construction of any Building on its Tract, each Party agrees that once it has commenced
construction of a Building, such Building shall be completed within a reasonable time. If the Site
Plan contains a caption which specifically establishes the maximum Floor Area to be located
within a Building Area, such designated Floor Area shall not be exceeded.
If the number of "square feet" of building space within the Shopping Center is restricted
by Governmental Requirements, the Parties hereby allocate the permitted square footage as
follows: (i) to the Target Tract, the number of square feet necessary to accommodate 123,800
square feet of Floor Area, plus any garden center and Outdoor Sales Area; (ii) to ~e Kohl's
Tract, the number of square feet to accommodate 88~408 square feet of Floor Area, plus an
expansion area of9,521 square feet of Floor Area; and (Ui) to the Developer Tract, the balance of
such permitted square footage. The Parties understand that the calculation of Building sizes
shown on the Site Plan is based on the definition of ''Floor Area" set forth in this ORA, and
further that such term is unique to this OBA and is not intended to mirror the definition of
"square feet" set forth in codes/regulations established by the local Governmental Authorities.
(8) The Approving Parties have agreed upon an architecturally compatible theme for the
exterior of all Buildings to be constructed, placed or located within the Shopping Center, as
represented by the Building elevations (the "Theme'') attached hereto as Exhibit E. Each Party
agrees that any Building located on its Tract shall comply with such Theme, shall not have
backlit lighting for any awning or canopy forming a part thereof, and shall comply with the other
requirements of the OBA. In order to insure compliance with such Theme, each Party shall, at
least thirty (30) days prior to the commencement of any work on its Tract, submit to the
Approving Parties for approval detailed plans {"PlaDsj as required by Exhibit F attached hereto
covering the initial COnstruction of each Building and any additions, remodeling, reconstruction
or other alteration thereto which changes the exterior thereof; provided, however, the Approving
Parties waive the requirement for the submission of . Plans for the initial Building to be
constructed on the Target Tract or any permitted expansion thereof if such Building generally
conforms to a prototype 'PJ'arget" retail store or for the initial Building to be constructed on the
Kohl's Tract or any permitted expansion thereof if such Building generally conforms to a
prototype "Kohl '8" retail store. If an Approving Party should reject the Plans for not complying
with the Theme, the submitting Party and the Approving Parties shall mutually consult to
establish approved Plans for the proposed work. The Approving Parties sha11 not withhold
approval of, or recommend changes in the Plans if the plans confonn to the Theme and other
requirements of the OBA. In no event shall an Approving Party require any other Party to utilize
design standards superior to those utilized by the Approving Party in the construction of any
Buildings on its Tract. Approval of Plans by the Approving Parties shall not constitute
assumption of responsibility for the accuracy, sufficienCy or propriety thereof, nor shall such
20
~68710~9 Page 25
approval constitute a representation or warranty that the Plans comply with Governmental
Requirements. No material deviation shall be made from the approved Plans.
(C) The Parties hereby specifically consent to the placement of Buildings along their
respective common boundary lines to the extent shown on the Site Plan, and each Party agrees to
support any request by another Party for a side-yard or setback variance if the same is required in
order to accommodate such construction. The second Party to construct a Building along a
common boundary line shall:
(i) Cause such construction to be completed in such a manner that the
improvements on the adjoining Tract are not damag~ and so that
the wall, roof, foundation or other structure portion of one Building
does not receive support from, nor apply pressure to the other
Building.
(ii) Undertake and assmne the obligation of completing and
maintaining the nominal attachment (flashing and seal) of its
Building to that of the existing Building on the adjoining Tract, it
being the intent of the Parties to establish and maintain the
appearance of one (1) continuous Building complex.
(D)The Parties acknowledge that Target and Kohl's each initially propose to construct on
the Target Tract and the Kohl's Tract, respectively, a Building which is classified as an
"unlimited area" building under certain building codes (by way of explanation, but not limitation,
an "unlimited area" building is designated D-N or V-N under the Unifonn Building Code.) The
Parties agree that all Buildings constructed shall comply with the following requirements:
(i) No Building shall be constructed within sixty (60) feet of the
Building Area on an adjoining Tract unless such Building,
hereinafter referred to as the "Adjacent Bullding," shall be located
immediately adjacent to the common boundary line and is attached
to the Building, if any, on the adjacent Tract in accordance with
Section 3.3.
(ii) If an Adjacent Building exists, then no Building shall be located
within sixty (60) feet of the Adjacent Building unless such
Building is attached to the Adj~cent Building in accordance with
Section 3.3; the Adjacent Building and all other Buildings on the
Tract that are attached to the Adjacent Building and to each other
are hereinafter referred to as the "Building Group".
(Hi) Any Building that is not part of the Building Group shall be located
at least sixty (60) feet distant from the Building Group.
21
16871019 Page 26
(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 addition to the requirements set forth above, the Parties agree that no Building shall
initially be placed or constructed on their respective Tracts in a manner which will, base<i.on then
existing Governmental Requirements, either preclude the construction on the Primary Building
Areas of an "unlimited area" building. or cause an existing "unlimited area" building thereon to
no longer be in confonnance with applicable building code requirements, it being understood and
agreed, however, that subsequent changes in Governmental Requirements shall not obligate a
Party to modify or alter its existing Building.
If required by any Governmental Authorities, each Party agrees to join in a recordable
declaration which confirms the existence of a sixty (60) foot clear area around the Primary
Building Areas.
(E) No Building shall exceed one (1) story, nor the following height restrictions:
(i)
(ii)
(iii)
On the Target Tract
On the Kohl's Tract
On the Outparcels (except for
Major 8)
On Major 8
On the balance of Developer Tract
(except for the Outparcels)
-40 feet
- 36 feet
(iv)
(v)
- 27 feet
-38 feet
- 3S feet
The height of any Building shall be measured perpendicular from the finished floor
elevation to the top of the roof structure. including any screening. parapet, penthouse, mechanical
equipment or similar appurtenance located on the roof of such Building. Any Party shall have
the right to install, maintain. repair, replace and remove Communications Equipment (defined
below) on the top of the Building on its Tract which may extend above the height limits
established above; provided, however, such Communication Equipment shall be set back from
the front of the Building to reduce visibility thereof by customers. As used herein, the phrase
"Communications Equipment' means such things as satellite and microwave dishes, antennas
and laser heads, together with associated equipment and cable.
3.4 Liens
In the event any mechanic's lien is recorded against the Tract of one Party as a result of
services performed or materials furnished for the use of another Party, the Party pennitting or
causing such lien to be so recorded agrees to cause such lien to be discharged within fifteen (15)
days after the entry of a final judgment (after all appeals) for the foreclosure of such lien.
Notwithstanding the foregoing. upon request of the Party whose Tract is subject to such lien, the
Party permitting or causing such lien to be recorded agrees to promptly cause such lien to be
22
16871019 Page 27
released and discharged of record, either by paying the indebtedness which gave rise to such lien
or by posting bond or other security as shall be required by law to obtain such release and
discharge. Nothing herein shall prevent the Party permitting or causing such lien to be recorded
from contesting the validity thereof in any manner such Party chooses so long as such contest is
pursued with reasonable diligence. In the event such contest is determined adversely (allowing
for appeal to the highest appellate court), such Party shall promptly pay in full the required
amount, together with any interest, penalties, costs, or other charges necessary to release such
lien of record. The Party permitting or causing such lien agrees to defend, protect, indemnify and
hold harmless the other Party and its Tract from and against all claims and demands, including
any action or proceeding brought thereon. and all costs, losses, expenses and liabilities of any
kind relating thereto, including reasonable attorneys' fees and cost of suit, arising out of or
resulting from such lien.
ARTICLE IV - MAINTENANCE AND REPAIR
4.1 Utility Lines
Utility Lines shall be maintained as provided in Section 2.2.
4.2 Common Area
(A) Subject to the joint maintenance provision set forth in Section 4.2(8), each Party shall
maintain, or cause to be maintained, at its sole cost and expense, the Common Area on its Tract
in a sightly, safe condition and good state of repair. The unimproved Common Area shall be
mowed and kept litter-free. The minimwn standard of maintenance for the improved Common
Area shall be comparable to the standard of maintenance followed in other first class retail
developments of comparable size in the San Francisco, California metropolitan area;
notwithstanding the foregoing, however, the Common Area shall be operated and maintained in
compliance with all applicable Governmental Requirements, and the provisions of this OEA. All
Common Area improvements shall be repaired or replaced with materials at least equal to the
quality of the materials being repaired or replaced so as to maintain the architectmal and
aesthetic harmony of the Shopping Center as a whole. Such operation, maintenance and repair
obligation shall include but not be limited to the following:
(i) Drive and Parlcing Areas. Maintaining all paved surfaces and curbs
in a smooth and evenly covered condition, including, without
limitation, replacement of base, skin patch, resurfacing and, when
necessary to restripe the parking area, resealing. (For the purpose
of this Section, an overlay of the drives and parking areas shall be
considered a maintenance item.)
(ii) Debris and Refuse. Periodically removing papers, debris, filth,
refuse, ice and snow (2" on surface), including daily vacuwning
and broom-sweeping to the extent necessary to keep the Common
Area in a first~class, clean and orderly condition; provided,
however, that trash and/or garbage removal from a Party's Building
shall not be considered a Common Area Maintenance Cost
23
16871019 Page 28
(defined below) since such removal obligation is covered by
Section 4.3(A). All sweeping shall be at appropriate intervals
during such times as shall not interfere with the conduct of
business or use of the Common Area by Pennittees.
(ill) Directional Signs and Markers. Maintaining, cleaning and
replacing any appropriate directional, stop or handicapped parking
signs or markers; restriping parking lots and drive lanes as
necessary to maintain parking space designation and traffic
direction; and keeping clearly marked fire lanes, loading zones, no
parking areas and pedestrian cross-walks.
(iv) Lighting. Maintaining, cleaning and replacing Common Area
lighting facilities, including light standards. wires, conduits, lamps,
ballasts and lenses, time clocks and circuit breakers, illuminating
the Common Area pursuant to Section 5.2(A); provided however,
exterior Building lighting fixtures, including any lighting fixtures
associated with a canopy or other architectural feature fomring a
part of such Building, shall be considered a part of such Building,
and the maintenance and replacement of such fixtures, and the cost
of illumination, shall be the obligation of the Party upon whose
Tract such fixtures are located.
(v) Landscaping. Maintaining and replacing all landscape plantings,
trees and shrubs in an attractive and thriving condition, trimmed
and weed-free; maintaining and replacing landscape planters,
including those adjacent to exterior walls of Buildings; providing
water for landscape irrigation through a properly maintained
system, including performing any modifications to such system to
satisfy governmental water allocation or emergency requirements.
If any Party or Occupant requires "special" landscaping (Le.
flowers, shrubs, trees, etc.) beyond the standard landscaping
requirements for the remainder of the Shopping Center, or if
landscaping additions/modifications are required as a result of a
Building addition, expansion or remodel, the cost of installation,
replacement and maintenance of such special or required
landscaping shall be borne solely by such Party or Occupant, as the
case may be, and shall not be included in Common Area
Maintenance Costs.
(vi) Obstructions. Keeping the Common Area free from any
obstructions, including those caused by the sale or display of
merchandise, unless such obstruction is pennitted under the
provisions of this OEA.
24
16871019 Page 29
(vii) Sidewalks. Maintaining, cleaning and replacing sidewalks,
including those adjacent and contiguous to Buildings located
within the Shopping Center. Sidewalks shall be steam-cleaned at
least monthly, shall be swept at appropriate intervals during such
time as shan not interfere with the conduct of business or use of the
Common Area and shall be cleared of ice or snow (after each snow
fall of2" or more).
(viii) Supervisory Personnel. Providing professional SUpeMsory
personnel for the Common Area, if reasonably required.
(ix) Traffic. Supervising traffic at entrances and exits to the Shopping
Center and within the Shopping Center as conditions reasonably
require in order to maintain an orderly and proper traffic flow.
Notwithstanding anything contained herein to the contrary, each Party shall have the
obligation to operate, maintain, and repair, at its sole cost and expense, in a clean, sightly and
safe condition, the following items (if any) located on its Tract: any exterior shipping/receiving
dock area; any truck ramp or truck parking area; any recycling center or similarly designated area
for the collection of items intended for recycling; and any refuse, compactor or dumpster area.
(8) Commencing on the earlier of thirty (30) days prior to the date specified by the
Occupant of either the Target Tract or the Kohl's Tract that it intends to open for business with
the general public, or the date the Approving Parties designate in writing, Operator shall operate
and maintain the Common Area in accordance with the requirements of Section 4.2(A).
Operator shall ~xpend only such funds as are reasonably necessary for the operation and
maintenance of the Common Area, including premiums for insurance required by Section 5.4(A)
and the performance of other obligations imposed on Operator pursuant to Section 5.3(A) hereof,
and shall promptly pay such costs ("Common Area Maintenance Costs'') when incurred.
Within thirty (30) days following the commencement of such maintenance and operation,
Operator shall provide the Approving Parties an estimated budget for the balance of the current
calendar year containing the infonnation required by Section 4.2(C), and each Party agrees to pay
its share of Common Area Maintenance Costs incurred for the balance of such year. plus the
Administration Fee (defined below), in accordance with Section 4.2(0). Operator may hire
companies affiliated with it to perfoim the maintenance and operation of the Common Area., but
only if the rates charged by such companies are competitive with those of other companies
furnishing similar services in the metropolitan area in which the Shopping Center is located, it
being agreed that this provision shall be construed strictly against Operator. Each Party hereby
grants to Operator, its agents, contractors and employees, a license to enter upon such Party's
Tract to discharge Operator's duties to operate, maintain and repair the Common Area. For the
pmpose of this OEA, Common Area Maintenance Costs shall not include:
(i) Any late charges or fees; any cost, fee, fine, penalty or similar
charge arising out of or resulting from any violation by Operator or
anyone else relating to the Shopping Center.
2S
16871019 Page 30
----,----- --.
(ii) Costs for construction, maintenance or replacement of buildings.
(iii) Capital expenditures not specifically approved by Target and
Kohl's in advance (provided that the cost of recoating the parking
areas once every 7 years and reconstructing the parking areas once
every 15 years as needed are hereby approved).
(iv) Any charge for electricity for Building accent lighting or Building
security lighting. Also, with respect to any Party that separately
pays the cost of power to illuminate the Common Area on its Tract,
any charge for the cost of power to illuminate any portion of the
Common Area on the balance of the Shopping Center.
(v) With respect to any Party that separately pays the cost of water for
irrigating the landscaping upon its Tract, any charge for the cost of
water for irrigating any portion of landscaping on the balance of
the Shopping Center.
(vi) Any costs for promotional, marketing, seasonal or holiday events
of any type (including, without limitation, costs of promotional
equipment, banners, decorations and/or lighting).
(vii) Any costs to clean up or repair the Common Area resulting from
any promotional, marketing, seasonal or holiday activities, from
construction, maintenance or replacement of a Party's Buildings.
(viii) Any costs resulting from or arising out of the repair or replacement
of items covered by warranties or guaranties including, but not
limited to, such as site improvements, signs, trees, plants or other
landscaping.
(ix) Real property taxes and assessments on the Common Area.
(x) Insurance prenUmns.
(xi) Operator's profit, administrative and overhead costs including, but
not limited to: office space, equipment and utilities; legal,
accounting and administrative service; Operator's personnel who
are not pennanently located at the Shopping Center, and premiums
relating to bonding over mechanic's liens.
(xii) Any fee or charge relating to the management and/or supervision of
the operation of the Common Area, or any part thereof, paid to a
third party, commercial management company or similar provider.
26
168710~9 Page 31
(xiii) Entertainment, transportation, meals and lodging of anyone.
(xiv) Cost of maintaining the Signs; Operator shall maintain the Signs
and allocate the cost for .each sign in accordance with Section
S.3(A).
In lieu of Operator's profit, administrative and overhead costs, Operator shall be
permitted to charge an amount ("Adminitltration Fee") computed by multiplying the Common
. Area Maintenance Costs (exclusive of taxes, insurance premiwns, capital expenditures and utility
charges) by ten percent (10%). If any of Operator's personnel at the Shopping Center perfonn
services, functions or tasks in addition to Common Area duties, then the cost of such personnel
shall be equitably allocated according to time spent perfonning such duties.
(C) Operator shall, at least ninety (90) days prior to the beginning of each calendar year
during the term oftbis OEA, submit to the Approving Parties an estimated budget ("Budgef') for
the Common Area Maintenance Costs and the Administration Fee for operating and maintaining
the Common Area for the ensuing calendar year. The Budget shaU be in a fonn and content
reasonably acceptable to the Approving Parties and shall identify separate cost estimates for at
least the categories specified under Section 4.2(A), plus:
(i)
Premiums for Commercial General Liability Insurance covering
the Common Area as required by Section S.4(A); provided,
however, such premiums shall not exceed the current filed
Insurance Services Offices (ISO) rate for premises operations,
adjusted by the increased limits factor, and if a blanket policy is
utilized by Operator, then there shall be a reasonable allocation of
premimn between such covered locations, taking into account the
amount of Common Area and ISO rates applicable to each
location.
I
I.
(ii) Rental or pmchase of equipment and supplies used in maintaining
or repairing the Common Area.
(iii) Depreciation or trade-in allowance applicable to items purchased
for Common Area purposes.
(iv) Maintenance of sign structure(s) pursuant to Section 5.3(A).
(v) Maintenance of Common Utility Line(s) pursuant to Section
2.2(C).
(vi) The Administration Fee.
(vii) Capital expenditures.
27
16871019 Page 32
If an item of maintenance or replacement is to be accomplished in phases over a period of
calendar years during the tenn of this OEA, such as resurfacing of the drive and/or parking areas,
then the Budget shall separately identify the cost attributable to the applicable calendar year
(including the portion of the Common Area affected) and shall note the anticipated cost and
timing (indicating the portion of the Common Area affected) of such phased work during
succeeding calendar years. The cost of approved "phased" work shall be paid by the Parties
approving the same, or their successors or assigns, as the case may be, notwithstanding that when
such work is performed a Party may not then be participating in the joint maintenance of the
Common Area.
If an Approving Party disapproves the proposed Budget, it shall consult with the other
Approving Parties and Operator to establish a final approved Budget. If a Budget is not
approved by December I st of any calendar year, Operator shall have the right to tenninate its
maintenance obligation with respect to the Common Area located on the Tract of the
disapproving Approving Party by written notice given prior to December 10th of such calendar
year. If such notice is given, commencing on the following April 1 st, such Approving Party shall
(i) maintain and operate the Common Area on its Tract at its expense; and (ii) contribute towards
the costs of the specified maintenance and operation functions performed by Operator set forth in
Section 4.2(0) as though it was a withdrawing Party; and Operator shall maintain and operate the
balance of the Common Area covered by its maintenance obligations; during the period from
January 1st to March 31st. such Approving Party shall pay its share of maintenance of the
Common Area pursuant to Section 4.2(G). If such notice is not given, then Operator shall
continue to maintain and operate all of the Common Area for the next calendar year. Approval
of the Budget, or any of the line items comprising a part thereof, shall not be considered a waiver
of a Partts right to audit and/or contest, challenge or dispute the Reconciliation (defined in
Section 4.2D).
Operator shall use its diligent, good faith efforts to operate and maintain the Common
Area in accordance with the Budget. Notwithstanding the foregoing, Operator shall have the
right to make emergency repairs to the Common Area to prevent injury or damage to Persons or
property, it being understood that Operator shall nevertheless advise each Party of such
emergency condition as soon as reasonably possible, including the corrective measures taken and
the cost thereof. If the cost of the emergency action exceeds $10,000.00 in Constant Dollars,
then Operator shall submit a supplemental billing to each Party, together with evidence
supporting such cost, and each Party shall pay its share thereof within thirty (30) days after
receipt of such billing. If the cost limitation set forth above is not exceeded then such costs shall
be included as part of the Common Area Maintenance Costs for that year.
(D)Common Area Maintenance Costs and the Administration Fee shall be allocated
based on total acreage, as follows:
. (i) To the Developer Tract
78.27%
(ii) To the Target Tract
11.43%
28
,1687101.9 Page 33
(iii) To the Kohl's Tract
10.30%
In the event an existing Tract is divided, the Party causing such division shall, at its
expense, prorate the allocation of Common Area Maintenance Costs and the Administration Fee
attributable to the original Tract between the newly created Tracts, file a recorded declaration
confinning such allocation and deliver a copy of such declaration to Operator and each other
Party. Each Party shall pay to the Operator in equal monthly payments, in advance, the share of
the Common Area Maintenance Costs and the Administration Fee attributable to such Party's
Tract based either upon the amount set forth in the approved Budget or, if a Budget is not
approved, then the lesser of the amount set forth in the unapproved Budget or the monthly
payment established for such Party for the prior year. Within sixty (60) days after the end of each
calendar year, Operator shall provide each Party with a statement certified by an authorized
Person, together with supporting invoices and other materials setting forth the actual Common
Area Maintenance Costs paid by Operator for the operation and maintenance of the Common
Area (such statement and supporting data are collectively called the ''Reconciliation''), the
Administration Fee, and the share of the aggregate thereof that is attributable to each Party's
Tract. The Reconciliation shall separately identify cost categories specified in Sections 4.2(A)
and 4.2(C), and sha1J be in a fonn reasonably acceptable to the Approving Parties. If the amount
paid with ~ to a Tract for such calendar year shall have exceeded the share allocable to suC?h
Tract, Operator shall refund by check the excess to the Party owning such Tract at the time the
Reconciliation is delivered, or if the amount paid with respect to a Tract "for such calendar year
shall be less than the share allocable to such Tract, the Party owning such Tract at the time such
Reconciliation is delivered shall pay the balance of such Party's share to Operator within thirty
(30) days after receipt of such Reconciliation, less any amounts disputed in writing. If Operator
does not refund amounts shown by the Reconciliation to be owed a Party, then such Party may
offset the refund owed, plus Interest, against payments for Common Area Maintenance Costs and
Administration Fee due for any future period. Notwithstanding anything contained herein to the
contrary, if during a calendar year the Operator resigns or is replaced, the replacement Operator
shall be responsible for the Reconciliation adjustments, including any reimbmsement due to a
Party for such calendar year.
Within three (3) years after the date of receipt of a Reconciliation, each Party shall have
the right to audit Operator's books and records pertaining to the operation and maintenance of the
Common Area for the calendar year covered by such Reconciliation. A Party shall notify
Operator of such Party's intent to audit at least fifteen (IS) days prior to the designated audit
date. If such audit shall disclose any error in the determination of the Common Area
Maintenance Costs, the Administration Fee or any allocation thereof to a particular Tract, the
auditing Party shall provide Operator with a copy of the audit, and an appropriate adjustment
shall be made forthwith. The cost of any audit shall be assumed by the auditing Party unless such
Party shall be entitled to a refund in excess of three percent (3%) of the amount calculated by
Operator as such Party's share for the applicable calendar year, in which case Operator shall pay
the cost of such audit. If Operator does not respond to the results of such audit within ninety (90)
days after receipt of the audit, then the auditing Party shall have the right to offset the refund
claimed, plus Interest, from the date Operator receives the audit, plus costs of the audit if
appropriate, against subsequent payments due Operator; provided, however, Operator shall retain
29
168710~9 Page 34
the right to dispute the results of such audit for a period of eighteen (18) months following
receipt of such audit.
(E) Operator agrees to defend, indemnify and hold each Party hannless from and against
any mechanic's, materialmen's and/or laborer's liens, and all costs, expenses and liabilities in
connection therewith, including reasonable attorney's fees and court costs, arising out of the
maintenance and operation by Operator of the Common Area, and if any Tract shall become
subject to any such lien, Operator shall promptly cause such lien to be released and discharged of
record, either by paying the indebtedness which gave rise to such lien or by posting such bond or
other security as shall be required by law to obtain such release and discharge.
(F) Subject to the provisions of Section 2.2(C) regarding Common Utility Lines, if any
portion of the Common Area is damaged or destroyed by any cause whatsoever, whether insured
or uninsured, dwing the tenD of this OEA, other than damage caused by ordinary use or wear and
tear, the Party upon whose Tract such Common Area is located shall repair or restore such
Common Area at its sole cost and expense with all due diligence; provided, however, that no
Party shall be required to expend more than $250,000 in Constant Dollars in excess of insurance
proceeds which may be available (or which would have been available except for such Party's
election of deductibles or self-insurance, which amount such the Party shall be responsible to
contribute) for such repair or restoration. Notwithstanding the limitation set forth in the
preceding sentence, a Party may require another Party to do such restoration work if the requiring
Party has agreed in writing to pay the costs in excess of $250,000.00. Except to the extent
limited by Section 5.4(0), if such damage or destruction of Common Area on its Tract is caused
in whole or in part by another Party or a third Person, the Party obligated to make such repair or
restoration reserves and retains the right to proceed against such other Party or third Person for
indemnity, contribution and/or damages.
(G)Target and Kohl's shall each have the right, upon giving not less than sixty (60) days
written notice to Operator, to take-over and assume the maintenance of the Common Area upon
the Target Tract and the Kohl's Tract, respectively. Following the effective date of such take-
over and assumptio~ Target or Kohl's, as the case may bet shall maintain the Common Area on
its Tract, and shall pay all costs and expenses incurred in connection therewith; provided,
however, Operator shall continue to (i) maintain the Common Utility lines of the Shopping
Center. including any detention/retention ponds, regardless of location, (ii) maintain the
Common Area supervisory program. if any, (iii) insure the Common Area on the Target Tract
and the Kohl's Tract under the Operator's Common Area public liability insurance program if
Target or Kohl's, as the case may be, elects to participate therein by written notice to Operator,
and (iv) maintain any Sign upon which a Target or Kohl's panel, as the case may be, is attached.
Upon such take-over and assumption. Target or Kohl's, as the case may be, shall be released
from the obligation to contribute towards Common Area Maintenance costs for the balance of the
Common Area attributable to the period following the effective date of such takeover and
assumption, except with respect to those functions identified above for which continued
participation is mandatory or elected. Target or Kohl's share of such costs, as the case may be)
shall be paid in accordance with the allocation set forth in Section 4.2(0) or, with respect to
Signs, Section S.3(A). Operator shall continue to maintain the balance of the Common Area in
accordance with the standards set forth herein.
30
16871019 Page 35
- - .--- -. ---- --y---.---
Target or Kohl's, as the case may be, shall have the right to cause Operator to resume the
operation and maintenance of the Common Area on the Target Tract or the Kohl's Tract, as the
case may be, upon the satisfaction of the following conditions:
(i) Target or Kohl's, as the case may be, shall give Operator at least
sixty (60) days prior notice of their intention to have Operator
reassume the operation and maintenance of the Common Area on
the applicable Tract; provided, however, such date for
reassumption shall always be the first day of a calendar quarter;
(ii) Prior to the date established for Operator to reassume the
maintenance and operation thereof, Target or Kohl's, as the case
may be, shall at its sole cost and expense cause the Common Area
on its Tract to be at least equal to the same condition of
maintenance then existing on the other portions of the Common
Area then being maintained by Operator; and
(Hi) Target or Kohl's, as the case may be, shall not be in default
(beyond applicable cure periods) with respect to their respective
obligations under this Article IV.
Provided the above conditions are satisfied, concurrently with the designated date,
Operator shall reswne full operation and maintenance of the Common Area located on the Target
Tract or the Kohl's Tract, as the case may be, and Target or Kohl's, as the case may be, shall be
responsible for its share of Common Area Maintenance Costs as set forth in Section 4.2(D).
4.3 Buildin2 and Outside Sales Area
(A)After completion of construction, each Party covenants and agrees to maintain and
keep the exterior portion of the Buildings and Outside Sales Area, if any, located on its Tract in
first-class condition and state of repair, in compliance with all Governmental Requirements, and
in compliance with the provisions of this OEA, including either the Theme or the exterior
architectural concept approved for such Building by the Approving Parties. Each Party further
agrees to store all trash and garbage on its Tract in adequate containers, to locate such containers
so that they are not readily visible from the parking area, and to arrange for regular removal of
such trash or garbage.
(8) In the event any of the Buildings in the Shopping Center are damaged by fire or other
casualty (whether insured or not), the Party upon whose Tract such Building is located shall,
subject to Governmental Requirements andlor insurance adjustment delays, immediately remove
the debris resulting from such casualty and provide a sightly bamer, and within a reasonable time
thereafter shall either (i) repair or restore the Building so damaged to a complete unit, such repair
or restoration to be performed in accordance with all provisions of this OM, or (ii) erect another
Building in such location, such constrnction to be perfonned in accordance with all provisions of
this OEA, or (Hi) demolish the damaged portion and/or the balance of such Building and restore
the cleared area to either a hard surface condition or a landscaped condition in which event the
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area shall be Common Area until a replacement Building is erected. Such Party shall have the
option to choose which of the foregoing alternatives to perform, but such Party shall be obligated
to perform one (1) of such alternatives. Such Party shall give notice to each other Party within
ninety (90) days from the date of such casualty of which alternative such Party elects.
ARTICLE V - OPERA nON OF THE SHOPPING CENTER
S.l Uses
(A)The Shopping Center shall be used only for retail sales, offices, Restaurants or other
permitted commercial pwposes; provided that, subject to Section (8) the Target Tract and the
Kohl's Tract may each be used for any lawful purpose. Target may subdivide and sublet the
building thereon in its sole and absolute discretion so long as not to create more than four (4)
lease spaces. "Business Office" shall mean an office which does not provide services directly to
conswners; "Retan Omce" shall mean an office which provides services directly to consumers,
including but not limited to financial institutions, real estate, stock: brokerage and title
companies, travel and insurance agencies, and medical, dental and legal clinics. No more than
ten percent (10%) of the total Floor Area on the Developer Tract may be used for Retail Office
and/or Business Office pwposes; provided, however, that office space used by an Occupant for
administrative purposes, and which is not open to the general public, shall not be considered
Retail Office or Business Office for the purpose of this limitation.
(8) No use shall be pennitted in the Shopping Center which is inconsistent with the
operation of a first-class retail shopping center. Without limiting the generality of the foregoing,
the following uses shall not be permitted:
(i) Any use which emits an obnoxious odor, noise or sound which can
be heard or smelled outside of any Building in the Shopping
Center.
(ii) An operation primarily used as a storage warehouse operation and
any assembling, manufacturing, distilling, refining, smelting,
agricultural or mining operation.
(iii) Any "second hand" store, "swplus" store, or pawn shop.
(iv) Any mobile home park, trailer court, labor camp, junkyard, or
stockyard; provided, how~ver, this prohibition shall not be
applicable to the temporary use of construction trailers during
periods of construction, reconstructiOD or maintenance.
(v) Any dwnping, disposing, incineration or reduction of garbage;
provided, however, this prohibition shall not be applicable to
garbage compactors located near the rear of any Building.
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16871019 Page 37
(vi) Any fire sale, bankruptcy sale (unless pursuant to a court order) or
auction house operation.
(vii) Any central laundry, dry cleaning plant or laundromat; provided,
however, this prohibition shall not be applicable to nominal
supportive facilities for on-site service oriented to pickup and
delivery by the ultimate consumer as the same may be found in
retail shopping centers in the metropolitan area where the
Shopping Center is located.
(viii) Any automobile, truck, trailer or recreational vehicle sales, leasing,
display or body shop repair operation.
(ix) Any bowling alley or skating rink.
(x) Any movie theater or live performance theater.
(xi) Any hotel, motel, short or long term residential use, including but
not limited to: single family dwellings, townhouses,
condominiwns, other multi-family units, and other forms of living
quarters, sleeping apartments or lodging rooms.
(xii) Any veterinary hospital or animal raising or boarding facility;
provided, however, this prohibition shall not be applicable to pet
shops. Notwithstanding the forgoing exception, any veterinary or
boarding services provided in connection with the operation of a
pet shop shall only be incidental to such operation; the boarding of
pets as a separate customer service shall be prohibited; all kennels,
runs and pens shall be located inside the Building; and the
combined incidental veterinary and boarding facilities shall occupy
no more than fifteen percent (15%) of the Floor Area of the pet
shop.
(xiii) Any mortuary or funeral home.
(xiv) Any establishment selling or exhibiting pornographic materials or
which sells mug-related paraphernalia or which exhibits either live
or by other means to any degree, nude or partially clothed dancers
or wait staff and/or any massage parlors or similar establishments.
(xv) Any bar, tavern, Restaurant or other establishment whose
reasonably projected annual gross revenues from the sale of
alcoholic beverages for on-premises consumption exceeds thirty
percent (30%) of the gross revenues of such business.
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~68710~9 Page 38
(xvi) Any health spa, fitness center or workout facility; provided,
however, this prohibition shall not be applicable to one (1) "day
spa" Dot exceeding five thousand (5,000) square feet in Floor Area
that is located on any Outparcel except for Store 1, Store 2, Store 3,
Major 8, Store 4 or Pad 7.
(xvii) Any flea market, amusement or video arcade, pool or billiard hall,
car wash or dance hall.
(xviii) Any training or educational facility, including but not limited-to:
beauty schools, barber colleges. reading rooms. places of
instruction or other operations catering primarily to students or
trainees rather than to customers; provided. however, this
prohibition shall not be applicable to on-site employee training by
an Occupant incidental to the conduct of its business at the
Shopping Center.
(xix) Any gambling facility or operation, including but not limited to:
off-track or sports betting parlor; table games such as blackjack or
poker; slot machines, video pokerlblackjack/keno machines or
similar devices; or bingo hall. . Notwithstanding the foregoing, this
prolubition shall not be applicable to government sponsored
gambling activities or charitable gambling activities. so long as
such activities are incidental to the business operation being
conducted by the Occupant.
(xx) Any automobile service station selling gasoline except on the
OutparcellabeUed Pad S on the Site Plan.
(e) No Party shall use, or permit the use of, Hazardous Materials on, about, under or in its
Tract, or the balance of the Shopping Center, except in the ordinary course of its usual business
operations conducted thereon, and any such use shall at all times be in compliance with all
Environmental Laws. Each Party agrees to defend, protect, indemnify and hold hannless each
other Party from and against all claims or demands, including any action or proceeding brought
thereon, and all costs, losses, expenses and liabilities of any kind relating thereto, including but
not limited to costs of investigation, remedial or removal response, and reasonable attorneys' fees
and cost of suit, arising out of or resulting from any Hazardous Material used or pennitted to be
used by such Party, whether or not in the ordinary course of business.
For the purpose of this Section 5.1(C), the term (i) "Hazardous Materials" shall mean
and refer to the following: petroleum products and fractions thereof, asbestos, asbestos
containing materials, urea formaldehyde, polychlorinated biphenyls, radioactive materials and all
other dangerous, toxic or hazardous pollutants, contaminants, chemicals, materials, substances
and wastes listed or identified in, or regulated by; any Environmental Law. and (ii)
"Environmental Laws" shall mean and refer to the following: all federal, state. county,
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16871019 Page 39
municipal, local and other statutes, laws, ordinances and regulations which relate to or deal with
hwnan health or the environment, all as may be amended from time to time.
(D) No merchandise, equipment or services, including but not limited to vending
machines, promotional devices and similar items, shall be displayed, offered for sale or lease, or
stored within the Common Area; provided, however, the foregoing prohibition shall not be
applicable to (i) the storage of shopping carts or the installation of an "A TM" banking facility on
the Target Tract or the Kohl's Tract; (ii) the seasonal display and sale of bedding plants on the
sidewalk in front of any Building located on the Target Tract or the Kohl's Tract, (Hi) temponuy
Shopping Center promotions, except that no promotional activities will be allowed in the
Common Area without the prior written approval of the Approving Parties, (iv) any recycling
center required by law, the location of which shall be subject to the approval of the Approving
Parties, or (v) any designated Outside Sales Area; provided, however, with respect to any Outside
Sales Area which is not included within a Building Area, such space may be used not more than
three (3) times per calendar year, and the duration of such use shall be subject to the following
limitations: during the period commencing on October 1 Sth and ending on December 27th - no
limitation on the nwnber of days of consecutive use; during the period commencing February
15th and ending on July 10th - not more than one hundred twenty-five (125) consecutive days of
use; and, during.any other period - not more than thirty (30) consecutive days of use.
Tract:
(E) The following use and occupancy restrictions shall be applicable to the Developer
(i) No Restaurant in excess of five thousand (5,000) square feet of
Floor Area shall be located thereon within six hundred (600) feet
of any Building Area located on the Target Tract and not more than
an aggregate of eight thousand (8,000) square feet of Floor Area
located within six hundred (600) feet of the Building Area located
on the Target Tract may be used for Restaurant purposes; provided,
however, that this prohibition shall not apply to a restaurant located
on Pad 7 which has its primary entrance located on the North side
of such restaurant
(ii) No Restaurant shall be located thereon within two hundred fifty
(250) feet of any Building Area located on the Kohl's Tract
(Hi) No toy store exceeding five thousand (5,000) square feet of Floor
Area shall be permitted.
(iv) No drug store exceeding ten thousand (10,000) square feet of Fioor
Area shall be permitted, and no store of any size selling or offering
for sale any phannaceutical products requiring the services of a
licensed phannacist shall be permitted.
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168710~9 Page 40
(v) No pet shop shall be located thereon within four hundred (400) feet
of the Building Area located on the Target Tract.
(vi) No portion of the Developer Parcel, shall be used as a grocery
store, supermarket, convenience store or other store, or department
within a store for the sale of food, groceries, fruit, produce, dairy
products, vegetables, bakery products, meats or delicatessen
products. One half of the aisle space adjacent to any shelving or
display case used for the retail display of such products shall be
included in calculating FlO()r Area for purposes of this subsection
(v). Neither Restaurants, a coffee shop incidental to an Occupant's
primary business pwpose, nor a prototype "Trader locs" store as
such prototype stores are operated as of the date of this OEA shall
be prohibited on the basis of this subsection (v).
(F) The names ''Target'', "Oreatlandtt, ''SuperTargettt or any variation using the name
''Target'' shall not be used to identify the Shopping Center or any business or trade conducted on
the Developer Tract or on the Kohl's Tract. The name "Kohl's", or any variation using the name
"Kohl's" shall not be used to identify the Shopping Center or any business or trade conducted on
the Developer Tract or on the Target Tract. Until the Approving Parties agree upon a name
change, the Shopping Center shall be called "Gilroy Crossing".
(G)Except to the extent required by law, no Permittee shall be charged for the right to use
the Common Area; provided, however, for the purpose of this provision, a tax assessment or
other form of charge applicable to parking spaces or parking lots shall be deemed by the
Approving Parties an imposition required by law.
(II) Each Party shall use its reasonable efforts to cause the employees of the Occupants of
its Tract to park their vehicles only on such Tract.
(I) This OEA is not intended to, and does not, create or impose any obligation on a Party
to operate, continuously operate, or cause to be operated a business or any particular business at
the Shopping Center or on any Tract.
5.2 Li2hting
(A) After completion of the Common Area lighting system on its Tract, each Party hereby
covenants and agrees to keep its Tract fully illuminated from dusk to at least 10:30 p.m. unless
the Approving Parties agree upon a different time. Each Party further agrees to keep any exterior
Building security lights on from dusk until dawn. During the tenn of this OEA, each Party grants
an irrevocable license to each other Party for the purpose of permitting the lighting from one
Tract to incidentally shine on the adjoining Tract.
(B) It is recognized that Occupants within the Shopping Center may be open for business
at different hours, and that a Party may wish to have the Common Area lights on another Tract be
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illuminated before or after the required time period. Accordingly, a Party ("Requesting Party'.)
shall have the right, at any time, to require the Party that controls the lighting on such Tract
("Requested Party") to keep the Common Area lights it controls operating as stipulated by the
Requesting Party, provided that the Requesting Party notifies the Requested Party of such request
not less than fifteen (15) days in advance. The Requesting Party shall state the period during
which it wishes such Common Area lights to be kept operating and shall pay to the Requested
Party a prepayment as follows:
(i) If the period is less than thirty (30) days, then the prepayment shall
be one hundred ten percent (110010) of the reasonable cost for such
additional operation (including electrical power, bulbs and
manpower), as estimated by the Requested Party; and
(ii) If the period is thirty (30) days or longer. then the prepayment shall
be one hundred ten percent (110%) of the reasonable cost for such
additional operation (including electrical power. bulbs and
manpower) for thirty (30) days, as estimated by the Requested
Party, and the Requesting'Party shall renew such prepayment at the
end of each thirty (30) day period.
If the Requesting Party is of the opinion that the estimated prepayment established by the
Requested Party is greater than one hundred ten percent (110%) of such additional operation, the
Parties shall attempt to agree upon the cost of such additional operation but if they cannot do so,
then the amount the Requesting Party is obligated to pay shall be estimated by the electrical
utility company furnishing such po;.ver, or if the electrical utility company elects not to do so, by
a reputable electrical engineer. Upon the failure of a Requesting Party to pay the estimated
amount or renew a prepayment as required hereby, the Requested Party shall have the right to
discontinue such additional lighting and to exercise any other remedies herein provided. Any
such request for additional lighting may be withdrawn or terminated at any time by written notice
from the Requesting Party, and a new request or requests for changed hours of additional
operation may be made from time to time.
5.3 OccuDant Sims
(A)No freestanding sign shall be permitted within the Shopping Center unless
constructed in one of the Sign Areas. If a Sign Area is no longer available for use because of
condemnation or Governmental Requirements. a replacement Sign Area may be approved by the
Approving Parties, subject to the consent, which shall not be unreasonably withheld, of the Party
owning the Tract to be bW'dened by the replacement Sign Area location. Each sign structure at
the Shopping Center shall be utilized as follows:
"Pylon Sign #1":
An identification panel shall be attached specifying the name of the
Shopping Center. Developer shall have the right to attach five (5)
identification panel(s) to this sign structure (each for one (1)
Occupant of the Developer Tract). Target shall have the right to
attach one (1) identification panel to this sign structure for an
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'168710i9 Page 42
"Pylon Sign #2":
"Monument #3":
"Momunent #4":
Occupant of the Target Tract. Only the Shopping Center name,
without reference to any Occupant may be higher than the panel for
the Target Tract without the consent of Target. The panel areas
allocated to Developer and Target are designated on Exhibit D.
An identification panel shall be attached specifying the name of the
Shopping Center. Developer shall have the right to attach six (6)
identification panel( s)to this sign structure (each for one (1)
Occupant of the Developer Tract), Kohl's shall have the right to
attach one (1) identification panel to this sign structure for an
Occupant of the Kohl's Tract. Only the Shopping Center name,
without reference to any Occupant may be higher than the panel for
the Kohl's Tract without the consent of Kohl's. The panel areas
allocated to Developer and Kohl's are designated on Exhibit D.
An identification panel shall be attached specifying the name of the
Shopping Center only.
An identification panel shall be attached specifying the name of the
Shopping Center only.
Prior to September I, 2003, Developer shall cause the sign structures to be located upon
each Sign Area to be constructed in accordance with the criteria set forth in Exhibit D attached
hereto. Developer shall cause the identification panel for the Shopping Center to be attached to
the sign structures, and Developer, Target and Kohl's shall cause their respective panels to be
attached to the various structures when desired. Once constructed, Operator shall maintain each
of the foregoing sign structures as originally constructed and such costs (including cost of
providing power) shall be included in Common Area Maintenance Costs; provided, however, if
there is no Operator, then such maintenance shall be perfonned by a Person designated by the
majority of Parties entitled to place panels on the particular sign structure and all costs (including
cost of providing power) expended for such purpose shall be separately billed to each Party based
on the identification panel area allocated to each, even if such panel area is not used.
Each Party shall cause the identification panel (including any backlit lighting) of its
Occupant attached to or forming a part of the sign structure to be maintained at its sole cost and
expense pursuant to Governmental Regulations, in a safe condition and in a good state of repair.
In the event a Party elects not to attach an identification panel to the sign structure when initially
constructed, but later decides to have its Occupant's identification panel attached thereto, then
the Party making such later decision shall pay all costs, regardless of nature or origin, necessary
to pennit the attachment of the identification panel to the sign structure; provided however, that
none of the previously attached identification panels on such sign structure shall be required to be
modified or relocated in order to pennit the attachment of such additional identification panel.
The Approving Parties shall have the right to approve the design and size of all sign
structures not shown on Exhibit D. including the identification panels to be attached thereto;
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16871019 Page 43
provided, however, that the identification panel for (i) any Occupant of more than sixty thousand
(60,000) square feet of Floor Area, and (ii) any Occupant of not less than twenty
thousand (20,000) square feet of Floor Area and which is a national chain retail or Restaurant
business (i.e., such business is then operating not less than one hundred (100) retail or restaurant
outlets), each shall not be subject to the approval of the Approving Parties so long as such
identification panel is the standard prototype panel for said Occupant, as the same exists from
time to time. No '1'eader board" type sign shall be pennitted within the Shopping Center.
(8) Any Occupant occupying les~ than twenty-five thousand (25,000) square feet of
Floor Area may have only one (1) identification sign placed on the exterior of the Building it
occupies except for the Occupant of Major 8 which may have two (2) such identification signs
placed on the exterior of the Building it occupies; provided, however, that if the space occupied
by any such Occupant is located at a comer of a Building or is the entire Building, then such
Occupant may have one (1) identification sign on each of two (2) sides of the Building. Any
Occupant occupying at least twenty-five thousand (25,000) square feet of Floor Area may have
more than one (1) identification sign placed on the exterior of the Building it occupies. The
Parties hereby acknowledge that in addition to the foregoing sign requirements contained in this
OEA, each Occupant of the Developer Tract is subject to those certain sign guidelines and
criteria contained in that certain Gilroy Crossing Master Sign Program issued by Regency
Centers (the "Sign Guidelines''). Notwithstanding anything apparently to the contrary herein,
(i) the Sign Guidelines shall not apply to the Target Tract or the Kohl's Tract or any Occupants
thereof, and (ii) the Sign Guidelines shall not modify, limit or otherwise affect any right of
approval pursuant to this OEA of any Approving Party with respect to any sign on the Shopping
Center. In the event of a conflict between the terms of this OEA and the Sign Guidelines, the
OEA shall govern.
No identification sign attached to the exterior of a Building shall be:
(i) Placed on canopy roofs extending above the Building roof. placed
on penthouse walls, or placed so as to project above the parapet,
canopy or top of the wall upon which it is mounted.
(ii) Placed at any angle to the Building; provided, however, the
foregoing shall not apply to any sign located under a sidewalk
canopy if such sign is at least eight (8) feet above the sidewalk.
(iii) Painted on the surface of any Building.
(iv) Flashing, moving or audible.
(v) Made utilizing exposed raceways, exposed neoD tubes, exposed
ballast boxes, or exposed transfonners.
(vi) Made of paper or cardboard, or be temporary in nature (exclusive
of contractor signs), or be a sticker or decal; provided, however,
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16871019 Page 44
the foregoing shall not prohibit the placement at the entrance of
each Occupant's space of a small sticker or decal indicating hours
of business. emergency telephone numbers. acceptance of credit
cards and other similar items of information.
No Occupant of less than sixty thousand (60,000) square feet of Floor Area shall have an
exterior sign which identifies leased departments andlor concessionaires operating under such
Occupant.s business or trade name, nor shall such sign identify specific brands or products for
sale or services offered within a business establ!shment, unless such identification is used as part
of the Occupant's trade name.
(C) Notwithstanding anything contained herein to the contrary. each Party shall be
permitted to place within the Common Area located on its Tract the temporary display of leasing
information and the temporary erection of one (I) sign identifying each contractor working on a
construction job on its Tract. Each Party shall have the obligation to operate. maintain and
repair, in a clean, sightly and safe condition, all signs. including components thereof, located
upon its Tract pursuant to Section 5.3(8) or the provisions hereof.
(D) Exclusive of signs permitted by Section 5.3(8) and (C). no other form of exterior
expressions. including. but not limited to, pennants, pictures, notices. flags, seasonal decorations,
writings, lettering. designs or graphics. shall be placed- on or attached to the exterior of any
Building.
5.4 Insurance
(A) During the period, if any, Operator is maintaining the Common Area, Operator shall
maintain or cause to be maintained in full force and effect at least the minimum insurance
coverages in Constant Dollars set forth below:
(i) Commercial General Liability Insurance covering the Common
Area with a combined single limit of liability of Five Million
Dollars ($5.000,000.00) for bodily injury, personal injury and
property damage, arising out of anyone occurrence; each Party
shall be a "named insured" under such policy. The Parties agree
that the insurance maintained by Operator shall be primary
insurance and not contributory with the insurance maintained by
each of the Parties pursuant to Section 5.4(B). or any other
insurance maintained by any of the Parties. If any Party is
operating and maintaining the Common Area on its Tract, and such.
Party elects not to participate in Operator's liability insurance
program regarding the Common Area, then Operator shall be
released from its obligation to carry such insurance on such Party's
Tract.
(ii) Workers' Compensation and Employets Liability Insurance:
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16871019 Page 45
( a) Workers compensation insurance as required by any
applicable law or regulation.
(b) Employers liability.insurance in the amount of $1,000,000
for each accident for bodily injwy, $1,000,000 policy limit
for bodily injury by disease and $1,000,000 each employee
for bodily injury by disease.
(iii) Automobile Uability Insurance for owned, hired and non-owned
automobiles. The limits of liability shall not be less than
$1,000,000 combined single limit each accident for bodily injury
and property damage.
Operator agrees to defend, protect, indemnify and hold hannless each Party from and
against all claims or demands, including any action or proceeding brought thereon, and all costs,
losses, expenses and liabilities of any kind, including reasonable attorneys' fees and cost of suit,
asserted or incurred in connection with or arising out of the perfonnance, or failure to perform,
by Operator of its duties or obligations under this OEA with respect to the maintenance and
operation of the Common Area; provided, however, the foregoing obligation shall not apply to
claims or demands based on the negligence or the willful act or omission of the Party to be
indemnified. In the event it is determined that such Party was not at fault, then the Operator shall
reimburse such other Party for all reasonable expenses and/or costs incurred by such Party
defending against such claim or demand.
(B) Each Party (as to its Tract only) shall maintain or cause to be maintained in full force
and effect at least the minimum insurance coverages in Constant Dollars set forth below:
(i) Commercial General Uability Insurance with a combined single
limit of liability of Five Million Dollars ($S,OOO,OOO.oo) in
Constant Dollars for bodily injury, personal injury and property
damage, arising out of anyone occurrence; the other Parties shall
be "additional insureds" under such policy as it applies to the
insuring Party's Tract. Each Party agrees to look first to the
insurance coverage obtained by Operator pursuant to Section
S.4(A), and to exhaust all limits thereof before making any claim,
other than to pre8C1Ve rights if coverage under Section S.4(A) is
inadequate, under the insW"lU1ce canied by another Party hereunder.
(ii) Workers' compensation and employers liability insurance:
(a) Workers compensation insurance as required by any
applicable law or regulation.
(b) Employer's liability insurance in the amount of $1,000,000
each accident for bodily injury, $1,000,000 policy limit for
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bodily injury by disease and $1,000,000 each employee for
bodily injury by disease.
(iii) Automobile Liability Insurance for owned, hired and non-owned
automobiles. The limits of liability shall not be less than
$1,000,000 combined single limit each accident for bodily injury
and property damage.
Each Party agrees to defend, protect, indemnify and hold harmless each other Party from
and against all claims or demands, including any action or proceedings brought thereon, and all
costs, losses, expenses and liability of any kind relating thereto, including reasonable attorneys'
fees and cost of suit, arising out of or resulting from the injury to or death of any Person, or
damage to the property of any Person located on the Tract owned by each indemnifying Party;
provided, however, the foregoing obligation shall not apply to claims or demands based on the
negligence or willful act or omission of such other Party, its licensees, concessionaires, agents,
servants, or employees, or the agents, servants, or employees of any licensee or concessionaire
thereof. In the event it is detemrincd that such other Party was not at fault, then the indemnifying
Party shall reimburse such other Party for all reasonable costs andlor expenses incurred by it
defending against such claim or demand.
(C) Prior to commencing any construction activities within the Shopping Center, each
Party and Operator shall obtain or require its contractor to obtain and thereafter maintain so long
as such construction activity is occurring, at least the minimwn insurance coverages in Constant
Dollars set forth below:
(i) W orkersl compensation and employers liability insurance:
(a) Worker's compensation insurance as required by any
applicable law or regulation.
(b) Employer's liability insurance in the amount of $1,000,000
each accident for bodily injury, $1,000,000 policy limit for
bodily injury by disease and $1,000,000 each employee for
bodily injury by disease.
(ii) Commercial General Liability insmance covering all operations by
or on behalf of the contractor, which shall include the following
minimum limits of liability and coverages:
(a) Required coverages:
(1) Premises and Operations.
(2) Products and Completed Operations.
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16871019 Page 47
(3) Contractual Liability, insuring the indemnity
obligations assumed by contractor under the
contract docwnents.
(4) Broad Form Property Damage (including
Completed Operations).
(S) Explosion, Collapse and Underground Hazards.
(6) Personal Injury Liability.
(b) Minimum limits of liability:
(1) $1,000,000 each occurrence (for bodily injury and
property damage).
(2) $1,000,000 for Personal Injury Liability.
(3) $2,000,000 aggregate for Products and Completed
Operations.
(4) $2,000,000 general aggregate applying separately to
this project.
(iii) Automobile liability insurance including coverage for owned, hired
and non-owned automobiles. The limits ofIiability shall not be less
than $1,000,000 combined single limit each accident for bodily
injury and property damage. The contractor shall require each of
his subcontractors to include in their liability insurance policies
coverage for automobile contractua1liability.
(iv) The contractor shall also carry umbrella/excess liability insurance
in the amowt of $S,OOO,ooo. If there is no per project aggregate
under the Commercial General Liability policy, the limit shall be
S 1 0,000,000.
If the construction activities involve the use of another Tract, then the constructing Party
shall cause (x) the owner of such other Tract to be an additional insured on each policy (for the
Commercial General Liability policy pursuant to a CO 201011-85 version Form B endorsement,
or equivalent), (y) with respect to the work on such other Tract, the coverage set forth in
(ii)-(b)-(3) above to be extended for a three (3) year period following final completion of work,
and (z) each such policy to provide that the same shall not be cancelled, allowed to expire, nor
reduced in amount or coverage below the requirements set forth above without at least thirty (30)
days prior written notice to each insured. If any of the insurance policies are cancelled, expire or
the amount or coverage thereof is reduced below the level required, then the constructing Party
shall immediately stop all work on and use of the other Tract until either the required insurance is
reinstated, or replacement insurance is obtained, and evidence thereof is given to the owner of
such other Tract.
(D) Effective upon the commencement of construction of any Building on its Tract and so
long as such Building exists, a Party shall carry, or cause to be carried, property insurance with
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168710i9 Page 48
"Special Fonn" coverage, in the amount of one hundred percent (lOO%) offutl replacement cost
thereof (excluding footings, foundations and excavations).
Each Party (the "Releasing Party") hereby releases and waives for itself, and each Person
claiming by, through or under it, each other Party (the "Released Party") from any liability for
any toss or damage to all property of such Releasing Party located upon any portion of the
Shopping Center, which loss or damage is of the type covered by the insurance required to be
maintained under Section 5.4(0), irrespective of the amount of such insurance required or
actually carried, including any deductible or self insurance reserve. Each Releasing Party agrees
to use its reasonable efforts to obtain, if needed, appropriate endorsements to its policies of
insurance, and to the policies of insurance carried by its Occupants, with respect to the foregoing
release; provided, however, that failure to obtain such endorsements shall not affect the release
and waiver hereinabove given.
Each Party agrees to defend, protect, indemnify and hold harmless each other Party from
and against all claims or demands, including any action or proceeding brought thereon, and all
costs, losses, expenses and liabilities of any kind relating thereto, including reasonable attorneys'
fees and cost of suit asserted by or through any Occupant of the indemnifying Party's Tract for
any loss or damage to the property of such Occupant located upon the indemnifying Party's
Tract, which loss or damage would have been covered by the insurance required to be maintained
under Section 5.4(D}.
All insurance required by Section 5.4 shall be written on an occurrence basis and
procured from companies rated by Best's Rating Guide not less than A-IX which are authorized
to do business in the state where ~e Shopping Center is located. All insurance may be provided
under (i) an individual policy covering the Shopping Center, (ii) a blanket policy or policies
which includes other liabilities, properties and locations of such Party; provided, however, that if
such blanket commercial general liability insurance policy or policies contain a general policy
aggregate of less than $20,000,000 in Constant Dollars, then such insuring Party shall also
maintain excess liability coverage necessary to establish a total liability insurance limit of
$20,000,000 in Constant Dollars, (ill) a plan of self-insurance, provided that any Party so
self-insuring notifies the other Parties of its intent to self-insure and agrees that upon request it
shall deliver to such other Parties each calendar year a copy of its annual report that is audited by
an independent certified public accountant which discloses that such Party has $250,000,000 in
Constant Dollars of both net worth and net CUITent assets, or (iv) a combination of any of the
foregoing insurance programs. To the extent any deductible is permitted or allowed as a part of
any insurance policy canied by a Party in compliance with Section 5.4, such Party shall be
deemed to be covering the amount thereof under an infonnal plan of self-insurance; provided,
however, that in no event shall any deductible exceed $50,000.00 in Constant Dollars unless such
Party complies with the requirements regarding self-insurance pursuant to (iii) above. A Party
shall be permitted to have an Affiliate provide the insurance required hereunder if such Affiliate
agrees in writing that its program is applicable to such Party and that it guarantees perfonnance
of such Party's insurance obligations under this OEA; provided, however, such Affiliate may
undertake the self-insurance obligation only if it satisfies the financial criteria requirement. An
"Affiliate" shall mean an entity owning at least a fifty percent (SO%) interest in the Party. Each
Party and Operator, if any, agree to furnish to any Party requesting the same, a certificate(s) of
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16871019 Page 49
insurance, or statement of self-insurance, as the case may be, or the Web address where such
insurance infonnation is contained, evidencing that the insurance required to be carried by such
Party or Operator, as the case may be, is in full force and effect.
The insurance required pursuant to Section 5.4(A) and Section 5.4(8) shall include the
following provisions:
(iii)
(iv)
(i)
Shall provide that the policy shall not be canceled or reduced in
amount or coverage below the requirements of this OEA, nor shall
such policy be allowed to expire without at least thirty (30) days
prior written notice by the insurer to each insured and to each
additional insured.
(ii)
Shall provide for severability of interests.
Shall provide that an act or omission of one (1) of the insureds or
additional insureds which would void or otherwise reduce
coverage, shall not reduce or void the coverage as to the other
insureds.
Shall provide for contractual liability coverage with respect to the
indemnity obligation set forth in Section S.4(A) for Operator and
Section 5.4(B) for a Party.
5.S Taxes and Assessments
(A) Each Party shall pay, or cause to be paid prior to delinquency, all taxes and
assessments with respect to its Tract, the Building, and other improvements located thereon, and
any personal property owned or leased by such Party in the Shopping Center, provided that if
such taxes or assessments or any part thereof may be paid in installments, each Party may pay
each such installment as and when the same becomes due and payable. Nothing contained herein
shall prevent any Party from contesting at its cost and expense any taxes and assessments with
respect to its Tract in any manner such Party elects, so long as such contest is maintained with
reasonable diligence and in good faith. At the time such contest is concluded (allowing for
appeal to the highest appellate court), the contesting Party shall promptly pay all taxes and
assessments determined to be owing, together with all interest, penalties and costs thereon.
(B) Developer represents and warrant to Target that no assessments shall be levied
against any portion of the Shopping Center in connection with the development thereot: except
that the Parties anticipate that a special tax lien entitled ''Community Facilities District No. 2000-
1 (Highway 152) Special Tax Bonds Series 2002" relating to the construction of Highway 152
adjacent to the Shopping Center will be assessed against the Shopping Center for a maximwn
period of twenty-five (25) years. Developer agrees to reimburse Target from time to time for any
amount ("Excess Amount") by which the total principal amount assessed against the Target
Tract in connection with the development of the Shopping Center (including without limitation
45
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,168710~9 Page 50
such special tax lien) exceeds the product of Two Thousand Forty-Six and Nolloo Dollars
($2,046.00) multiplied by the nwnber of acres in the Target Tract. Developer shall pay any
Excess Amount to Target within twenty (20) days after Target shall give Developer notice
thereof, together with evidence supporting such assessment FailW'C by Developer to perform its
obligations under this Section S.S(B) shall constitute a default pursuant to Section 6.1, and Target
may avail itself of all the provisions therein contained, including the right to place a lien on the
Developer Tract and to receive Interest on all sums expended to cure such default. The Parties
agree that no Occupant may authorize or request any supplemental bond issue or. further
assessments with respect to any portion of the Shopping Center without the consent of the
Approving Parties.
ARTICLE VI - MISCELLANEOUS
6.1 Default
(A) The occurrence of anyone or more of the following events shall constitute a material
default and breach of this OEA by the non-perfonning Party (the "Defaulting Party''):
(i) The failure to make any payment required to be made hereunder
within ten (10) days after the due date.
(ii) The failure to observe or perform any of the covenants, conditions
or obligations of this OEA, other than as described in (i) above,
within thirty (30) days after the issuance of a notice by another
Party or Operator, as the case may be (the "Non-Defaulting
Partyj specifying the nature of the default claimed.
(8) With respect to any default Wider Section 6.1 (A)(ii), any Non-Defaulting Party shall
have the right following the expiration of any applicable cure period, but not the obligation, to
cure such default by the payment of money or the performance of some other action for the
account of and at the expense of the Defaulting Party; provided, however, that in the event such
default shall constitute an emergency condition, the Non-Defaulting Party, acting in good faith,
shall have the right to cure such default upon such advance notice as is reasonably possible under
the circumstances or, if necessary, without advance notice, so long as notice is given as soon as
possible thereafter. To effectuate any such cure, the Non-Defaulting Party shall have the right to
enter upon the Tract of the Defaulting Party (but not into any Building) to perform any necessary
work or furnish any necessary materials or services to cure the default of the Defaulting Party.
Each Party shall be responsible for the default of its Occupants. In the event any Non-Defaulting
Party shall cure a default, the Defaulting Party shall reimburse the Non-Defaulting Party for all
costs and expenses incurred in connection with such curative action, plus Interest as provided
herein, within ten (10) days after receipt of demand therefor, together with reasonable
docwnentation supporting the expenditures made.
The right to cure the default of another Party shall not be deemed to:
(i) Impose any obligation on a Non-Defaulting Party to do so.
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16871019 Page 51
(ii) Render the Non-Defaulting Party liable to the Defaulting Party or
any third party for an election not to do so.
(Hi) Relieve the Defaulting Party from any performance obligation
hereunder.
(iv) Relieve the Defaulting Party from any indemi1ity obligation as
provided in this OEA.
(C) Costs, expenses and Interest accruing and/or assessed pursuant to Section 6.1(A)(i)
and/or Section 6. 1 (B) above shall constitute a lien against the Defaulting Party's Tract. Such lien
shall attach and take effect only upon recordation of a claim of lien in the office of the Recorder
of the County of the State in which the Shopping Center is located by the Party making such
claim. The claim of lien shall include the following:
(i) The name of the lien claimant
(ii) A statement concerning the basis for the claim of lien and
identifying the lien claimant as a Non-Defaulting Party.
(Hi) An identification of the owner or reputed owner of the Tract or
interest therein against which the lien is claimed.
(iv) A description of the Tract against which the lien is claimed.
(v) A description of the work performed which has given rise to the
claim of lien and a statement itemizing the amOlUlt thereof.
(vi) A statement that the lien is claimed pursuant to the provisions of
this OEA, reciting the date and document number of recordation
hereof. The notice shall be duly verified, acknowledged and
contain a certificate that a copy thereof has been served upon the
Party against whom the lien is claimed, by personal service or by
mailing pursuant to Section 6.4 below. The lien so claimed shall
attach from the date of recordation solely in the amount claimed
thereby and may be enforced in any judicial proceedings allowed
by law, including without limitation, a suit in the nature of a suit to
foreclose a mortgage/deed of trust or mechanic's lien under the
applicable provisions of the law of the State in which the Shopping
Center is located.
(D) Each Non-Defaulting Party shall have the right to prosecute any proceedings at law or
in equity against any Defaulting Party hereto, or any other Person, violating or attempting to
violate or defaulting upon any of the provisions contained in this OEA, and to recover damages
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~68710r9 Page 52
for any such violation or default. Such proceeding shall include the right to restrain by injunction
any violation or threatened violation by another Party or Person of any of the tennst covenants or
conditions of this OEA, or to obtain a decree to compel perfonnance of any such tennst
covenants or conditions, it being agreed that the remedy at law for a breach of any such term,
covenant or condition (except those, if anYt requiring the payment of a liquidated sum) is not
adequate. All of the remedies permitted or available to a Party under this OEA or at law or in
equity shall be cumulative and not alternative, and the invocation of any such right or remedy
shall not constitute a waiver or election of remedies with respect to any other pennitted or
available right or remedy.
6.2 Interest
Any time a Party or Operator, if anYt shall not pay any sum payable hereunder to another
Party within five (5) days of the due date, such delinquent Party or Operator shall pay interest on
such amount from the due date to and including the date such payment is received by the Party
entitled theretot at the lesser of:
(i) The highest rate permitted by law to be either paid on such type of
obligation by the Party obligated to make such payment or charged
by the Party to whom such payment is duet whichever is less.
(ii) The prime rate, plus three percent (3%). As used her~ "prime
rate" shall mean the rate of interest published from time to time as
the "Prime Raten in the Wall Street Journal under the heading
"Money Ratesn; providedt howevert that (i) if more than one such
rate is published therein the prime rate shall be the highest such
rate and (ii) if such rate is no longer published in the Wall Street
Journal or is otherwise unavailablet the prime rate shall be a
substantially comparable index of short term loan interest rates
charged by U.S. banks to corporate borrowers selected by the
Approving Parties.
6.3 Estoppel Certificate
Each Party and Operatort if anYt agree that upon written request (which shall not be more
frequent than three (3) times during any calendar year) of any other Party or Operator, it will
issue within thirty (30) days after receipt of such request to such Party, or its prospective
mortgagee or successor. an estoppel certificate stating to the best of the issuer's knowledge as of
such date:
(i) Whether it knows of any default under this OEA by the requesting
Partyt and ifthere are known defaultst specifying the nature thereof
in reasonable detail.
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16871019 Page 53
(ii) Whether this OEA has been assigned, modified or amended in any
way by it and if so, then stating the nature thereof in reasonable
detail.
(iii) Whether this OEA is in full force and effect.
Such estoppel certificate shall act to estop the issuer from asserting a claim or defense
against a bona fide encumbrancer or purchaser for value to the extent that such claim or defense
is based upon facts known to the issuer as of the date of the estoppel certificate which are
contrary to the facts contained therein, and such bona fide purchaser or encumbrancer has acted
in reasonable reliance upon such estoppel certificate without knowledge of facts to the contrary.
The issuance of an estoppel certificate shall in no event subject the issuer to any liability for the
negligent or inadvertent failure of the issuer to disclose correct and/or relevant infonnation, nor
shall such issuance be construed to waive any rights of the issuer to perform an audit or obtain an
adjustment with respect to Common Area Maintenance Costs for any year it is entitled to do so,
or to challenge acts conunitted by other Parties for which approval by the Approving Parties was
required but not sought or obtained.
6.4 Notices
All notices, demands and requests (collectively, the "notice") required or permitted to be
given under this OEA must be in writing and shall be deemed to have been given as of the date
such notice is (i) delivered to the Party intended, (ii) delivered to the then designated address of
the Party intended, (ill) rejected at the then designated address of the Party intended, provided
such notice was sent prepaid, or (iv) sent by national'y recognized overnight courier with
delivery instructions for ''next business day" service, or by United States certified mail, return
receipt requested, postage prepaid and addressed to the then designated address of the Party
intended. The initial addresses of the Parties shall be:
Target: Target Corporation
Property Development
Attn: Property Administration
1000 NicoIlet Mall
Minneapolis, MN 55403
Kohl's: Kohl's Department Stores, Inc.
N56 W17000 Ridgewood Drive
Menomonee Falls, WI 53051
Attention: Law Department
Developer: Regency Realty Group, Inc.
c/o Regency Centers, L.P.
1850 Ml Diablo Blvd., Suite 225
Walnut Creek, CA 94596
Attn: Thomas K. Engberg
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~6871019 Page 54
Operator:
As from time to time designated.
Upon at least ten (10) days prior written notice, each Party shall have the right to change
its address to any other address within the United States of America.
6.S ADDTOval Ri2hts
(A) Except as otherwise provided herein, with respect to any matter as to which a Party
has specifically been granted an approval right under this OEA. nothing contained in this OEA
shall limit the right of a Party to exercise its business judgment, or act in a subjective manner, or
act in its sole discretion or sole judgment, whether or not "objectively" reasonable under the
circumstances, and any such decision shall not be deemed inconsistent with any covenant of
good faith and fair dealing which may be implied by law to be part of this OEA. The Parties
intend by this OEA to set forth their entire understanding with respect to the tenns, covenants,
conditions and standards pursuant to which their obligations are to be judged and their
perfonnance measured.
(B) Unless provision is made for a specific time period, each response to a request for an
approval or consent required to be considered pursuant to this OEA shall be given by the Party to
whom directed within thirty (30) days after receipt thereof. Each disapproval shan be in writing
and, subject to Section 6.S (A), the reasons therefor shall. be clearly stated. If a response is not
given within the required time period, the requested Party shall be deemed to have given its
approval if the original notice stated in capitalized letters that failure to respond within the
applicable time period will be deemed an approval. Notwithstanding anything contained herein
to the contrary, the provisions of this paragraph (8) do not apply in any manner or fashion to any
request which requires an amendtQent to this OEA, such requests being governed solely by the
provisions of Section 6.8(E).
(C) If the Approving Parties' approval is requested, unanimous approval must be given.
6.6 Condemnation
In the event any portion of the Shopping Center shall be condemned, or conveyed under
threat of condemnation, the award shall be paid to the Party owning the Tract or the
improvements taken, and the other Parties hereby waive and release any right to reCover any
value attnbutable to the property interest so taken, except that (i) if the taking includes
improvements belonging to more than one (1) Party, such as Utility Lines or Signs, the portion of
the award allocable thereto shall be used to relocate, replace or restore such jointly owned
improvements to a useful condition, and (ii) if the taking includes easement rights which are
intended to extend beyond the term of this OEA, the portion of the award allocable to each such
easement right sba11 be paid to the respective grantees thereof. In addition to the foregoing, if a
separate claim can be filed for the taking of any other property interest existing pursuant to this
OEA which does not reduce or diminish the amount paid to the Party owning the Tract or the
improvement taken, then the owner of such other property interest shall have the right to seek an
award for the taking thereof. Except to the extent they burden the land taken, no easement or
license set forth in this OEA shall expire or terminate based solely upon such taking.
Notwithstanding anything to the contrary contained herein, during the term of the Kohl's Lease,
SO
16871019 Page 55
the Kohl's Lease shall govern the allocation between the fee owner of the Kohl's Tract and
Kohl's of any condemnation award payable to the Party owning the Kohl's Tract.
6.7 Bindinl! Effect
The tenns of this OEA and all easements granted hereunder shall constitute covenants
running with the land and shall bind the Tracts described herein and inure to the benefit of and be
binding upon each Party. This OEA is not intended to supersede, modify, amend or othetWise
change the provisions of any prior instrument affecting the land burdened hereby.
6.8 Construction and Interpretation
(A> This OEA and the Exlubits hereto contain all the representations and the entire
agreement between the Parties with respect to the subject matter hereof. Any prior negotiations,
correspondence, memoranda or agreements are superseded in total by this OEA and the Exhibits
attached hereto. This OEA has been fully negotiated at arms length between the signatories
hereto, and after advice by counsel and other representatives chosen by such Parties, and such
Parties are fully infonned with respect thereto; no such Party shall be deemed the scrivener of
this OEA; and, based on the foregoing, the provisions of this OEA and the Exhibits hereto shall
be construed as a whole according to their common meaning and not strictly for or against any
Party.
(B) Whenever required by the context of this OEA, (i) the singular shall include the
plural, and vice versa, and the masculine shall include the feminine and neuter genders, and vice
versa, and (ii) use of the words "including", "such as", or words of similar import, when
following any general term, statement or matter shall not be construed to limit such statement,
tenn or matter to specific items, whether or not language of non-limitation, such as ''without
limitation", or "but not limited to", are used with reference thereto, but rather shall be deemed to
refer to all other items or matters that could reasonably fall within the broadest scope of such
statement, term or matter.
(e) The captions preceding the text of each article and section of this OEA are included
only for convenience of reference. Captions shall be disregarded in the construction and
interpretation of this OEA. Capitalized terms are also selected only for convenience of reference
and do not necessarily have any connection to the meaning that might otherwise be attached to
such term in a context outside of this OEA.
(D) Invalidation of any of the provisions contained in this OBA, or of the application
thereof to any Person by judgment or court order, shall in no way affect any of the other
provisions hereof or the application thereof to any other Person and the same shall remain in full
force and effect.
(E) This OEA may be amended by, and only by, a written agreement signed by all of the
then current Approving Parties and shall be effective only when recorded in the county and state
where the Shopping Center is located; provided, however, that no such amendment shall impose
any materially greater obligation on, or materially impair any right of, a Party or its Tract without
51
~68710~9 Page 56
the consent of such Party. No agreement to any amendment of this OEA shall ever be required of
any Occupant or Person other than the Parties, nor shall any Occupant or Person other than the
Parties have any right to enforce any of the provisions hereof; provided. however. that in the
event the Occupant of the Outparcel labeled Pad 5 on the Site Plan is not a Party with respect
thereto. then the restriction in Section 5.l(B)(xx) may not be amended without the consent of
such Occupant and such Occupant shall have the right to enforce such restriction in accordance
with the tenns of this OEA. Since the submission of a proposed amendment to the Parties is not
an item of "consent" or "approval", each Party may consider any proposed amendment to this
DEA in its sole and absolute discretion without regard to reasonableness or timeliness.
(F) This OEA may be executed in several counterparts, each of which shall be deemed an
original. The signatures to this OEA may be executed and notarized on separate pages, and when
attached to this OEA shall constitute one (1) complete document.
6.9 Negation of Partners hiD
None of the tenns or provisions of this OEA shall be deemed to create a partnership
between or among the Parties in their respective businesses or otherwise, nor shall it cause them
to be considered joint venturers or members of any joint enterprise. Each Party shall be
considered a separate owner. and no Party shall have the right to act as an agent for another Party,
unless expressly authorized to do so herein or by separate written instrument signed by the Party
to be charged.
i'
I
6.10 . Not a Public Dedication
Nothing herein contained shall be deemed to be a gift or dedication of any portion of the
Shopping Center or of any Tract or portion thereof to the general public. or for any public use or
purpose whatsoever. Except as herein specifically provided, no right, privileges or immunities of
any Party hereto shall inW'C to the benefit of any third-party Person. nor shall any third-party
Person be deemed to be a beneficiary of any of the provisions contained herein.
6.11 Excusable Delays
Whenever perfonnance is required of any Party hereunder, such Party shall use all due
diligence to perfonn and take all necessary measures in good faith to perfonn; provided,
however, that if completion of performance shall be delayed at any time by reason of acts of God,
war, civil commotion, riots, strikes, picketing or other labor disputes, unavailability of labor or
materials, damage to work in progress by reason of fire or other casualty, unanticipated action or
inactions of Governmental Authorities (provided such actions or inactions are not related to any
failure by the delayed Party in seeking any approvals of any Governmental Authorities on a
timely basis), or any cause beyond the reasonable control of such Partyl then the time for
perfonnance as herein specified shall be appropriately extended by the amount of the delay
actually so caused. The provisions of this Section shall not operate to excuse any Party from the
prompt payment of any monies required by this OEA.
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16871019 Page 57
6.12 Mitieation of Damages
In all situations arising out of this OEA, each Party and Operator, if any, shall attempt to
avoid and mitigate the damages resulting from the conduct of any other Party. Each Party shall
take all reasonable measures to effectuate the provisions of this OEA.
6.13 OEA Shall Continue Notwithstanding Breach
It is expressly agreed that no breach of this OEA shall (i) entitle any Party to cancel,
rescind, or otherwise terminate this OEA, or (ii) defeat or render invalid the lien of any mortgage
or trust deed made in good faith and for value as to any part of the Shopping Center. However,
such limitation shall not affect in any manner. any other rights or remedies which a Party may
have hereunder by reason of any such breach.
6.14 Time
Time is of the essence of this OEA.
6.15 No Waiver
The failure of any Party to insist upon strict performance of any of the terms, covenants or
conditions hereof shall not be deemed a waiver of any rights or remedies which that Party may
have hereunder, at law or in equity, and shall not be deemed a waiver of any subsequent breach
or default in any of such terms, covenants or conditions. No waiver by any Party of any default
under this OEA shall be effective or binding on such Party unless made in writing by such Party
and no such waiver shall be implied from any omission by a Party to take action in respect to
such default. No express written waiver of any default shall affect any other default or cover any
other period of time other than any default and/or period of time specified in such express
waiver. One (1) or more written waivers of any default under any provision of this OEA shall
not be deemed to be a waiver of any subsequent default in the perfonnance of the same provision
or any other term or provision contained in this OEA. The failure of a Party to provide a
Reconciliation or statement for amounts owed within a specified time shall not act as a waiver of
such Party's right to collect such amount upon the later issuance of the required reconciliation or
statement.
6.16 Access Area
Target agrees to purchase from Developer and Developer agrees to sell to Target the
Access Area subject to the terms set forth herein. Within sixty (60) days after the date of this
OEA, Developer, at its own cost, shall perform such acts and obtain such approvals as shall be
necessary in connection with such purchase and sale, including without limitation, causing to be
approved by the proper governmental authorities and filed of record in the Office of the County
Recorder of Santa Clara County, California, a final subdivision map (the "Subdivision Map") in
the form of Exhibit D to Exhibit G that depicts the revised boundary lines of the Developer Tract
and Target Tract as depicted on Exhibit X-I to Exhibit G attached hereto. The Parties agree to
cooperate with Developer in the Subdivision Map process to the extent as may be reasonably
required. The closing of such purchase and sale shall occur on or before April 18, 2003, and
shall be consummated through an escrow established at a title insurance company (the "Escrow
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'16871019 Page 58
Agent") selected by Target. The purchase price of the Access Area shall be One and Noll 00
Dollar ($1.00). Title to the Access Area shall be conveyed by Developer to Target by grant deed,
subject only to this OEA and such matters of record acceptable to Target in i~ sole and absolute
discretion. Current real property taxes attributable to the Access Area shall be prorated as of the
date of closing. Target shall bear the cost of any title insurance coverage desired. Developer
shall pay any docwnentary or deed stamp taxes imposed in connection with the sale. The Parties
agree to execute such documentation (including without limitation an amendment to this OEA in
the fonn of Exhibit G) as reasonably requested by Developer and Target to memorialize the
conveyance of the Access Area from Developer to Target and the inclusion of the Access Area as
part of the Target Tract. The easement established in Section 2.1(B) shall automatically
tenninate upon the conveyance of the Access Area from Developer to Target pursuant to the
provisions in this Section. The Parties agree that upon the filing by Developer of the Subdivision
Map and the effective dedication to the City of Gilroy for public right-of-way purposes of the
portions of the Developer Tract as shown on the Site Plan as Camino Arroyo and Holloway
Road, the Parties agree: (a) to execute an amendment to this OEA in the fonn of Exhibit G. and
(b) to execute such documentation (including without limitation a tennination of easement) as
reasonably requested by Developer to memorialize the termination of the easement established in
Section 2.1 (B).
6.17 Target Additional Parcel and DeveloDer Additional Parcel.
On or before September 1,2003, Developer, at its own cost, shall perfonn such acts and
obtain such approvals as shall be necessary in connection with the vacation of Brem Lane and the
subsequent conveyance of the Developer Additional Parcel from the City of Gilroy to Developer
and the conveyance of the Target Additional Parcel from City to Target. including without
limitation, causing to be approved by the proper governmental authorities and tiled of record in
the Office of the County Recorder of Santa Clara County, California, a lot line adjustment (the
"Lot Line Adjustment") that depicts the revised boundary lines of the Developer Tract and the
Target Tract as depicted on Exhibit X-2 to Exhibit H attached hereto. The Parties agree to
cooperate with Developer in the Lot Line Adjustment process to the extent as may be reasonably
required. The Parties further agree to execute such documentation (including without limitation
an amendment to this OEA in the fonn of Exlu'bit H) as reasonably requested by Developer and
Target to memorialize the inclusion of the Target Additional Parcel as part of the Target Tract
and the inclusion of the Developer Additional Parcel as part of the Developer Tract. In the event
that the City of Gilroy does not convey the Target Additional Parcel to Target on or before
September 1 t 2003, notwithstanding any other provision of the OEA to the contrary, Target shall
have the unilateral right to alter the Common Area and other improvements on the Target Tract
that are deemed necessary in its sole and absolute discretion. Any other changes to the Site Plan
shall be subject to Section 3.2 of this OEA. The Parties agree to execute such documentation
(including with limitation an amendment to this OEA) as reasonably requested by Target to
memorialize such alterations of the Target Tract on an amended site plan. Without limitation to
foregoing provisions of this Section 6.17, in the event the. City of Gilroy conveys any portion of
the Target Additional Parcel to Developer or to any other Party, Developer or such other Party, as
the case may bet shall promptly convey any such portion of Target Additional Parcel to Target by
grant deed subject only to such matters of record as shall be acceptable to Target in its sole and
absolute discretion.
54
16871019 Page 59
6J8 Pad 5.
The Parties acknowledge that (a) as of the date of this OEA the Outparcellabelled Pad S
on the Site Plan is leased to and occupied by an Occupant as a service station whose lease (the
"Existing Lease") is not subject to this OEA, (b) the Existing Lease contains certain restrictions
(collectively, the "Existing Lease Restrictions") which prohibit the advertisement, storage, sale
or distribution of certain petroleum products or portions of the Shopping Center and which
prohibit certain Building and Common Area improvements on portions of the Shopping Center,
and (c) the Building and Common Area improvements existing thereon were constructed prior to
the existence of this OEA. The Parties waive compliance by the Occupant of Pad S with the OEA
so long as such Occupant is in possession thereof pursuant to such Existing Lease only; provided,
however, (x) Developer shall not extend the tenn of the Existing Lease beyond the tenus thereof
existing on the date of this OEA (as the same maybe extended pursuant to extension or removal
options included in the Existing Lease as of the date of this OBA) uniess (i) such Occupant shall
agree to be subject to the terms and conditions of this OEA. and (ii) the Existing Lease
Restrictions shall be terminated, (y) Developer shall not execute or join in any amendments or
modifications with respect to the Existing Lease which would expand the Occupant's rights under
the Existing Lease beyond those which exist as of the date of this OEA in a manner which will
violate the terms and conditions of this OEA, or which would extend or expand the Existing
Lease Restrictions, and (z) in the event the Existing Lease is tenninated or such Occupant of
Pad 5 shall acquire any other interest in Pad S, then such Occupant shall be fully subject to this
OBA.
ARTICLE vn - TERM
7.1 Term of this OEA
This OEA shall be effective as of the date first above written and shall continue in full
force and effect until 11 :59 p.m. on December 31, 2065; provided, however, that the easements
referred to in Article n hereof which are specified as being perpetual or as continuing beyond the
tenn of this OEA shall continue in full force and effect as provided herein. Upon the termination
of this OEA, all rights and privileges derived from and all duties and obligations created and
imposed by the provisions of this OEA, except as relates to the easements mentioned above, shall
terminate and have no further force or effect; provided, however, that the termination of this
OBA shall Dot limit or affect any remedy at law or in equity that a Party may have against any
other Party with respect to any liability or obligation arismg or to be performed under this OBA
prior to the date of such termination.
ARTICLE vm - EXCULPATION
8.1 Certain Limitations on Remedies
None of the Persons comprising a Party (whether partners, shareholders, officers.
directors, members, trustees, employees, beneficiaries or otherwise) shall ever be personally
liable for any judgment obtained against a Party. Bach Party agrees to look solely to the interest
in the Shopping Center of a defaulting Party for recovery of damages for any breach of this OBA;
~5
16871019 Page 60
provided. however, the foregoing shall not in any way impair. limit or prejudice the right of a
Party:
(i) Casualty Insurance and Condemnation Proceeds. To recover from
another Party all damages and costs on account of, or in connection
with, casualty insurance or condemnation proceeds which are not
applied or used in accordance with the terms of this OEA. .
(ii) Hazardous Substances. To recover from another Party all damages
and costs arising out of or in connection with, or on account of, a
breach by such Party ofits obligations under Section 5.1(C).
(Hi) Liability Insurance. To recover from another Party all damages
and costs arising out of or in connection with, or on account of. a
breach by such Party of its obligations under Section S.4.
(iv) Taxes. Assessments and Liens. To recover from a Party all
damages and costs arising out of or in connection with, or on
account of, the failure by such Party to pay when due any tax,
assessment or lien as specified in Section 5.5 and Section 6.1.
(v) Fraud or Misrepresentation. To recover from another Party all
damages and costs as a result of any fraud or misrepresentation by
such Party in connection with any term, covenant or condition in
this OEA.
(vi) Ec:1uitable Relief. Costs. To pursue equitable relief in connection
with any term, covenant. or condition of this OEA, including a
proceeding for temporary restraining order, preliminary injunction,
permanent injunction or specific performance, and recover all
costs. including Interest thereon, relating to such enforcement
action.
1 '
IN WITNESS WHEREOF, the Parties have caused this OEA to be executed effective as
of the day and year first above written.
[Remainder of page intentionally left blank]
56
16871019 Page 61
SIGNATURE PAGE
FOR
OPERATION AND EASEMENT AGREEMENT
AMONG
TARGET CORPORATION,
KOHL'S DEPARTMENT STORES, INC.
AND
REGENCY REALTY GROUP, INC.
KOHL'S DEPARTMENT STORES, INC., a
Delaware corporation
("KohI'Sjr~
By: ~l~
Patrick E. Peery
Senior Vice President - Real Estate
A~
Secretary
STATE OF WISCONSIN )
) 5S.
COUNTY OF W AUKESHA )
On February 12, 2003, before me, the undersigned, personally appeared Patrick E. Peery
and Richard D. Schepp, Senior Vice President - Real Estate and Secretary, respectively, of
Kohl's Department Stores, Inc., a Delaware corporation, personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person(s) whose name(s) jsl~ subscribed to
the within instrument and acknowledged to me that helshe/they executed the same in hislher/their
authorized capacity(ies), and that by hislherlt~r signature('S) on the instrument the person( s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
~ --m~
Notary Public in and for said
~~~~~ \(,~,.O~
. "IT (SEAL)
~687101~ Page 62
SIGNATURE PAGE
FOR
OPERATION AND EASEMENT AGREEMENT
AMONG
TARGET CORPORATION,
KOHL'S DEPARTMENT STORES, INC.
AND
REGENCY REALTY GROUP, INC.
REGENCY REALTY GROUP, INC., a
Florida corporation
BY:~~
Thomas;..En= --=:>
Senior Vice Pr i nt
STATE OF ~V\.\U
COUNTY OF \.0) ~yl.o
On t:eh..." I 1, 100? before me, the undersigned, personally appeared
\ , personally knGWn-to-me (or proved to me on the basis of
satisfactory evidence) to e th person(s) whose nameRs) is/are subscribed to the within
instrument and acknowledged to me that hel~y executed the same in hislheI/lhcil
authorized capacity(~), and that by hislber/thetr signature~ on the instrument the person~ or
the entity upon behalf of which the persol}(B}'acted, executed the instrument.
)
) ss.
)
WITNESS my hand and official seal.
......-.._--------,
l a CHERn "G~
Commission" 1307325
i' Notary PublIc - Canforria I
i ~ _ _ ~~~~~:~i
(SEAL)
16871019 Page 63
SIGNATURE PAGE
FOR
OPERATION AND EASEMENT AGREEMENT
AMONG
TARGET CORPORATION,
KOHL'S DEPARTMENT STORES, INC.
AND
REGENCY REALTY GROUP, INC.
TARGET CORPORATION, a
Minnesota corporation
:~ A.rt J5e(J{
Name:
Title:
Mike /;iSI/
Vl~.o ~-S6~ .
r. '. "'
a'!}st Stores
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
~ A .', po fifrfJ.~ /3, d IX> ~ before me, the undersigned, personally appeared
~{ < ( . personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are subscn'bed to the within
instrument and ac1cnowledged to me that ,ggshelthey executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the ~n(s) acted. executed the instrument.
WITNESS my hand and official seal.
..... ~ ~
- -
(/JtJ!liJ.. .tJ. /tu,~
Notary Public in and for said J
County and State
~ G~ OARLA D. KING
: .~ OOTARY PUBliC. MINNESOTA
';~I~ MY COMMISSION
I '.. EXPIRES JAN. 31, 2006
(SEAL)
M I :944611.08
~6871019 Page 64
EXHIBIT A
LEGAL DESCRIPTION OF TARGET TRACT
All That Real Property Situated In The City Of Gilroy, County Of Santa Clara, State Of
California, And Being A Portion Of That Certain Parcel Of Land Described In A Grant Deed
To South County Development, A Limited Partnership, Filed For Record In The Office Of
The Recorder Of Santa Clara County On July 3, 1979 In Book E 609, Page 323 And Also
Being A Portion Of "Parcel One" As Shown On That "Record Of Swvey For Brem
Brothers", Filed For Record In The Office Of The Recorder Of Said County, On Apri116,
1956, In Book 69 Of Maps, At Page 17. More Particularly Described As Follows:
Commencing At AI" Capped Iron Pipe Stamped RC.E. 17186 Marking The Northeast
Comer Of That Certain "Remainder" Parcel Shown On A Parcel Map Filed For Record In
The Office Of The Recorder Of Santa Clara County On December 29,1997, In Book 698 Of
Maps, At Pages 12 And 13; Thence Along The North Line Of Said "Remainder" And "Parcel
One" As Shown On Said Parcel Map, North 890 09' or West, 1012.38 Feet To The Troe
Point Of Beginning; Thence From Said Point Of Beginning, North 89009' 07" West, 438.23
Feet; Thence Along The Arc Of A 40.00-Foot Radius Curve, Concave To The Northeast,
Through A Central Angle Of930 02' 59" The Chord Of Which Bears North 420 37' 37"
West, 58.05 Feet; Thence North 860 06' 08" West 14.00 Feet To A Point On The East Line
OfBrem Lane, A Public Road; Thence Along Said East Line OfBrem Lane, The Following
Two (2) Courses And Distances:
1. North 030 53' 52" East, 729.33 Feet.
2. Along The Arc Of A 392.00-Foot Radius Curve, Concave To The East, Through A
Central Angle Of 030 22' 58", The Chord Of Which Bears North 050 36' 03" East,
23.14 Feet; Thence Leaving The East Line OfBrem Lane, South 890 09' or East,
415.69 Feet; Thence North 000 50' 53" East, 14.91 Feet; Thence South 890 09' or
East, 44.00 Feet; Thence South 000 50' 53" West 395.61 Feet; Thence North 890 09'
07" West, 39.94 Feet; Thence South 00050' 53" West, 226.28 Feet; Thence South 890
09' 07" East, 10.00 Feet; Thence South 000 50' 53" West, 93.00 Feet; Thence South
89009' 07" East, 21.68 Feet; Thence South 000 50' 53" West, 94.25 Feet To The
Point Of Beginning.
Said Property Contains 8.4830 Acres
A-I
16871019 Page 65
EXHIBIT B
LEGAL DESCRIPTION OF KOHL'S TRACT
ALL TIlAT REAL PROPERlY situated in the City of Gilroy, County of Santa Clara,
State of California, and being a portion of that certain parcel of land described in a grant deed to
South County Development, a limited partnership, filed for record in the office of the Recorder
of Santa Clara COlmty on July 3, 1979 in Book E609, Page 323, and also being a portion of
"Parcel One" as shown on that "Record of Survey for Brem Brothers", filed for record in the
office of the Recorder of said county, on April 16, 1956, in Book 69 of Maps, at Page 17, and
further being 8 portion of Parcel 2 as shown on that certain Parcel Map filed for record in the
office of the Recorder of said COWlty on May 10, 1972 in Book 300 of Maps, at Page 53 and aIso
being a portion of that 30 foot wide strip of land desaibed in a grant deed from Hirasaki Fanns,
Inc. to Hisasbi Hirasaki, ct. aI., recorded JanUlU')' 3, 1979 in Book E203 of Official Records, at
Page 123, Santa Clara County Records. More particularly desaibed as follows:
Commencing At A 1" Capped Iron Pipe Stamped R.C.E. 17186 Marking The Northeast
Comer Of That Certain "Remainder" Parcel Shown On A Parcel Map Filed For Record In
The Office Of The Recorder Of Santa Clara County On December 29, 1997 In Book 698 Of
Maps, At Pages 12 And 13; Thence Along The West Line Of Said 30.00 Foot Wide Strip Of
Land, North 310 26' 23" West, 259.68 Feet; Thence North 580 33' 37" East, 10.41 Feet To
The True Point Of Beginning; Thence From Said Point Of Beginning, North 310 27' 02"
West, 381.58 Feet; Thence South 580 32' 58" West, 66.99 Feet; Thence Along The Arc Of A
185.00-Foot Radius Curve, Concave To The Northwest, Through A Central Angle Of220 06'
31", The Chord Of Which Bears South 690 36' 13" West, 70.94 Feet; Thence South 80039'
29" West, 12.99 Feet; Thence North 090 20' 31" West, 48.93 Feet; Thence South 80039' 29"
West, 31.50 Feet; Thence North 090 20' 31" West, 322.74 Feet; Thence North 700 02' 19"
East, 170.64 Feet; Thence North 630 49' 52" East, 191.37 Feet; Thence Along The Arc Of A
473.00-Foot Radius Curve, Concave To The Southeast, Through A Central Angle Of 060 24'
58", The Chord Of Which Bears North 67' 02' 21" East, 52.94 Feet; Thence North 700 14'
SO" East, 38.53 Feet; Thence Along The Arc Of A Non-Tangent 1,058.00-Foot Radius
Curve, Concave To The Northeast Through A Central Angle Of 100 14' 08". The Chord Of
Which Bears South 260 19' 58" East. 188.75 Feet; Thence South 310 27' 02" East, 526.96
Feet; Thence South 580 32' 58" West. 352.04 Feet~ Thence North 890 10' 08" West, 48.54
Feet To The Point Of Beginning.
Said Property Contains 7.6364 Acres Or 332,641 Square Feet .
B-1
~687101~ Page 66
EXHIBIT C
LEGAL DESCRIPTION OF DEVELOPER TRACT
ALL THAT REAL PROPERTY situated in the City of Gilroy, County of Santa Clara,
State of California, and being a portion of that certain parcel of land described in a grant deed
to South County Development, a limited partnership, filed for record in the Office of the
Recorder of Santa Clara County on July 3, 1979 in Book E609, Page 323, and also being a
portion of "Parcel One" as shown on that "Record of Survey for Brem Brothers", filed for
record in the Office of the Recorder of said county, on April 16, 1956, in Book 69 of Maps,
at Page 17, further being all of Parcel 1 and a portion ofParce12 as shown on that certain
Parcel Map filed for record in the Office of the Recorder of said county on May 10, 1972 in
Book 300 of Maps, at Page 53, also being a portion of that 30-foot wide strip ofland
described in a grant deed from Hirasaki Farms, Inc. to Hisashi Hirasaki, et. aI., recorded
January 3,1979 in Book E203 of Official Records, at Page 123, Santa Clara County Records,
also being all of Parcell as shown on that certain Parcel Map, filed for record in the Office
of the Recorder of said county in Book 285 of Maps, at Page 45, and also being a portion of
Parcel 2 as shown on that certain Parcel Map filed for record in the office of the recorder of
said County on December 4, 1989 in Book 607 of Maps, at page 48. More particularly
described as follows:
BEGINNING at the most easterly comer of said "Parcel 2" as shown on Parcel Map,
Book 300 of Maps, at Page 53; thence South 51048' 38" West, 861.32 feet; thence Nortb
31026' 23" West 492.44 feet; thence North 89009' 07" West 1,012.38 feet; thence North
00050' 53" East 94.25 feet; thence North 890 09' 07" West 21.68 feet; thence North 000
50' 53" East 93.00 feet; thence North 89009' 07" West 10.00 feet; thence North 000 50'
53" East 226.28 feet; thence South 890 09' 07" East 39.94 feet; thence North 000 SO' 53"
East 395.61 feet; thence North 890 09' 07" West 44.00 feet; thence South 000 50' 53"
West 14.91 feet; thence North 890 09' 07" West 415.69 feet to a point on the East line of
Brem Lane, a public road; thence along said East line the following twelve (12) courses
and distances:
1. Along the arc of a non-tangent 392.00-foot radius curve, concave to the Southeast,
through a central angle of 330 21' 38", the chord of which bears North 230 58' 21"
East 225.03 feet.
2. Nortb 40037' 09" East, 697.92 feet
3. North 31016' 07" West, 0.53 feet
4. North 580 43' 25" East, 1.64 feet
5. North 40050' 14" East, 26.24 feet
6. Along the arc of a 1 73.00-foot radius curve, concave to the southeast, through a
central angle of510 01' 38", the chord of which bears North 660 21' 03" East, 149.03
feet
7. South 880 08' 09" East, 62.46 feet
8. South 230 31' 02" East, 11.07 feet
9. South 880 08' 09" East, 76.28 feet
C-l
16871019 Page 67
10. Along the arc ofa l55.00-foot radius curve, concave to the Northwest, through a
central angle of 290 55' 34", the chord of which bears North 760 54' 04" East, 80.04
feet
11. Along the arc of a compound, 9S.00-foot radius curve, concave to the Northwest,
through a central angle of 500 36' 43", the chord of which bears North 36037' 56"
East, 81.22 feet
12. Along the arc of a reversing 7S.00-foot radius curve, concave to the Southeast,
through a central angle of7r 09' 19", the chord of which bears North 490 54' 14"
East, 93.54 feet to a point on the south line of State Highway, Route 152; thence
North 880 28' 53" East, 192.73 feet; thence South 850 04' 07" East 143.60 feet; thence
South 31033' 47" East 1,926.39 feet to the Point of Beginning.
EXCEPTING THEREFROM the following described real property: (Kohl's Parcel)
Beginning at a point that bears North 61' 18' 14" West 771.26 feet from the most easterly
comer of said "Parcel 2" per as shown on Parcel Map Book 300 of Maps, at Page 53; thence
from said POINT OF BEGINNING South 580 32' 58" West 352.04 feet; thence North 890
10' 08" West 48.54 feet; thence North 31027' 02" West 381.58 feet; thence South 580 32'
58" West 66.99 feet; thence along the arc of a 185.00-foot radius curve, concave to the
Northwest, through a central angle of220 06' 31", the chord of which bears South 690 36'
13" West 70.94 feet; thence South 80039' 29" West 12.99 feet; thence North 090 20' 31"
West 48.93 feet; thence South 800 39' 29" West 31.50 feet; thence North 090 20' 31" West
322.74 feet; thence North 700 02' 19" East 170.64 feet; thence North 63049' 52" East 191.37
feet; thence along the arc of a 473.00-foot radius curve, concave to the Southeast, through a
central angle of 60 24' 58", the chord of which bears North 61' 02' 21" East 52.94 feet;
thence North 700 14' 50" East 38.53 feet; thence alODg the arc of a non-tangent 1,058.00-foot
radius curve, concave to the Northeast through a central angle of 100 14' 08", the chord of
which bears South 260 19' 58" East 188.7S feet; thence South 31027' 02" East 526.96 feet to
the Point of Beginning.
Said Property contains 56.8854 Acres or 2,477,927 Square feet.
C-2
~68710~9 Page 68
,..
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EXHIBIT D
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EXHIBIT D
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~6871019 Page 70
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16871019 Page 73
Exhibit E cont.
NOTE:
For a full size copy of the site plan referred to herein as Exhibit E please inquire or
request at:
Target: Target Corporation
Property Development
Attn: Property Administration
1000 Nicollet Mall
Minneapolis, MN 55403
Kohl's: Kohl's Department Stores, Inc.
N56 WI 7000 Ridgewood Drive
Menomonee Falls, WI 53051
Attn: Law Department
Developer: Regency Realty Group, Inc.
c/o Regency Centers, L.P.
1850 Mt. Diablo Blvd., Suite 225
Walnut Creek, CA 94596
Attn: Thomas K. Engberg
"
~6871019 Page 74
EXHIBIT F
SUBMISSION GUIDELINES
1. Dming the conceptual design phase, the constructing party shall submit to the other
parties the following:
A. Site Design Documents to Indicate the Following:
o Parking configurations and car parking count
o Typical bay width and stall dimensions
o Drive widths
o Setbacks
o Cwb cuts
o Spot elevations or rough contours
o Rough landscape scope
o Lighting pole locations
o Preliminary utility strategies
B. Building Design Single line Plans to Indicate the Following:
o Exterior wall configuration
o Doors and store front extent
o Canopies and overhangs
o Probable column locations at exterior and abutting our building on interior
C. Exterior Elevation Drawings to lndicate the Following:
o Opaque wall areas with, doors and store fronts
2. After approval has been granted of conceptual design phase submitted in accordance
with the guidelines specified in I above, the constmcting party shall submit final design
phase plans to the other parties as follows:
A. Site Design Docmnents Delineating Information Outlined in the Concept
Phase with the Following Added Detail:
o Refined grading plans
o Selected lighting fixtures and resultant lighting levels in foot candles
o Landscaping showing generic planting materials and locations
o Proposed paving section designs and location
o Utility layouts including hydrants and sizes proposed
o Proposed details for curbs, site structures, manholes, etc.
o Proposed site signage designs and locations
B. Building Design Plans Delineating Information Outlined in the Concept
Phase with the Following Added Detail:
o Exterior wall thicknesses
o Structural columns or bearing walls at building exterior and
proposed foundation design at adjoining wall between abutting buildings
F-I
16871019 Page 75
o Where common footings are 10 be shared provide wall or column
load infonnation for design of that footing
o Proposed roof plan showing slopes and location of penthouses or
other major mechanical equipment
o References of key flashing details of roof to adjoining building
C. Exterior Elevation Drawings Delineating Information Outlined in the
Concept Phase with the Following Added Detail:
o Proposed building sign standards
o Paint color chips and samples of other materials such as brick or
concrete aggregates (glass or aluminmn finishes may be annotated on the
elevations)
o Proposed large scale details of key section conditions to show
exterior design intent
o Major penthouses or rooftop equipment profiles
Q Features such as special masonry patterns, bands or special materials
and textures
o Rain leaders or scuppers
o 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-th~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:
o Plans of the pedestrian mall circulation showing any variations in
floor elevations
o Elevations/sections of the proposed mall space showing store front
sign bulkheads and key dimensions
o Proposed ceiling design including special features such as variations
in height or skylights
o Floor material patterns
o Landscaping and mall seating areas
o Proposed interior sign guidelines
o Paint color chips and samples of other materials such as brick or
concrete aggregates (glass or aluminmn finishes may be annotated on the
plans or elevations)
o Proposed large scale details of key section conditions to show
interior design intent
4. The constructing party shall provide the other parties with a complete set of
bid documents for the building andlor improvements to be located upon its Tract.
F-2
~6871019 Page 76
EXHIBIT G
(Form of First Amendment to Operation and Easement Agreement)
FIRST AMENDMENT TO OPERATION AND EASEMENT AGREEMENT
THIS FIRST AMENDMENT TO OPERA nON AND EASEMENT AGREEMENT is
made and entered into on this _ day of , 200-, by and between Target
Corporation, a Minnesota corporation ("Target"), Kohl's Department Stores, Inc., a Delaware
corporation ("Kohl's") and Regency Realty Group, Inc., a Florida corporation ("Developer").
RECITALS
A. Target, Kohl's and Developer entered into that certain Operation and Easement
Agreement dated ,2003, and recorded on ,2003, in the Office of the
County Recorder, Santa Clara County, California, as Document No. (the "OEA ").
B. Target, Kohl's and Developer are all of the .'Approving Parties" under the OEA
and have the power and authority to amend the OEA.
C. Developer has conveyed to Target that portion of the Developer Tract legally
described on Exhibit E attached hereto (the" Access Area") and depicted as such on Exhibit X.
D. Developer has dedicated to the City of Gilroy (the "City") that portion of the
Developer tract legally described on Exhibit F attached hereto ("Camino Arroyo and Holloway
Road") and depicted as such on Exhibit X.
E. Developer seeks to release that portion of the Developer Tract legally described
on Exhibit G attached hereto (the "Future Development Tract") and depicted as such on
Exhibit X-I (the "Site Plan") from certain terms, conditions, obligations and benefits of the
OEA.
F. Target, Kohl's and Developer desire to amend the OEA in connection therewith as
provided below.
NOW, TIlEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Target, Kohl's and Developer hereby agree as follows:
AGREEMENT
1. Recitals: Conflict or Inconsistency. The parties bereto agree that the Recitals
are true and correct and hereby incorporated by reference. In the event of any conflict or
inconsistency between the provisions of this First Amendment and the provisions of the OEA,
the provisions of this First Amendment shall control. Unless otherwise defined herein, all
G-l
16871019 Page 77
capitalized terms in this First Amendment shall have the meanings respectively given them in the
OEA.
2. Access AreL The Access Area is hereby added to the Target Tract for all
purposes of the OEA. Without limiting the generality thereot: as of the date of this First
Amendment the Access Area is hereby released from the covenants, conditions and easements
applicable to the Developer Tract, and the Access Area is benefited by and subject to, and each
Party hereby grants and confirms to Target, the covenants, conditions and easements which
benefit or bmden the Target Tract under the OEA (as amended hereby).
3. CAM Cost Allocation. The first sentence of Section 4.2(0) of the OEA is hereby
amended and restated in its entirety as follows:
"(D) Common Area Maintenance Costs and the Administration Fee shall be
allocated based on total acreage as follows:
(i) To the Developer Tract:
.62.81%
(ii) To the Target Tract:
20.3go,.{,
(Hi) To the Kohl's Tract:
16.80%"
4. Tanet Tract. The legal description of the Target Tract attached to the OEA as
Exhibit A is hereby deleted and replaced with the revised legal description of the Target Tract
attached hereto as Exhibit A-I. All references in the OEA to the "Target Tract" or "Exhibit A"
shall hereafter refer to the Target Tract as legally described on Exhibit A-I attached hereto.
5. Developer Tract. The legal description of the Developer Tract attached to the
OEA as Exhibit C is hereby deleted and replaced with the revised legal description of the
Developer Tract attached hereto as Exhibit C-l. All references in the OEA to the "Developer
Tract" or "Exhibit C" shall hereafter refer to the Developer Tract as legally described on
Exhibit C-l attached hereto.
6. Modification of Site Plan. The Site Plan attached to the OEA as Exhibit X is
hereby deleted and replaced with the revised Site Plan attached hereto as Exhibit X-to All
references in the OEA to the "Site Plan" or "Exhibit X" shall hereafter refer to the Site Plan
attached hereto as Exhibit X-I.
7. Future Development Tract. The FutW'e Development Tract is hereby released
from the terms and conditions of the OEA, provided that the FutW'e Development Tract shall
remain subject to the tenns of Section 5.1 (B) of the ORA throughout the term of the OEA.
8. Camino Arrovo and HoUowav Road. Camino Arroyo and Holloway Road are
hereby released from the terms and conditions of the ORA.
0-2
'1.687101'9 Page 78
9. Authoritv. Each of the parties hereto represents and warrants to the others that it
has the full capacity, right, power and authority to execute, deliver and perform this First
Amendment, and all required actions, consents and approvals therefore have been duly taken and
obtained. Target further represents and warrants that Target is the Approving Party for the Target
Tract and that upon full execution of this First Amendment, the OEA (as amended by this First
Amendment) shall be binding on all parties with any interest in the Target Tract, including,
without limitation, the holder of any mortgagee's interest Kohl's further represents and warrants
that Kohl's is the Approving Party for the Kohl's Tract and that upon full execution of this First
Amendment, the OEA (as amended by this First Amendment) shall be binding on all parties with
any interest in the Kohl's Tract, including, without limitation, the holder of any mortgagee's
interest. Developer further represents and warrants that Developer is the Approving Party for the
Developer Tract and that upon full execution of this First Amendment, the OEA (as amended by
this First Amendment) shall be binding on all parties with any interest in the Developer Tract,
including, without limitation, the holder of any mortgagee's interest.
10. Hineline Effect: Ratification of A2l'eement. This First Amendment shall be
binding upon and inure to the benefit of the Parties and their respective heirs, successors and
assigns under the OEA. Except as modified hereby, Target, Kohl '5 and Developer hereby ratify
and reafliIm every provision of the OBA.
11. Counterparts: Effective Date. This First Amendment may be signed in
counterparts, each of which shall be deemed an original and together shall be deemed one
instrument This First Amendment shall be effective as of the date of recording of an original of
this First Amendment properly executed and acknowledged by Target, Kohl's and Developer, in
the Office of the County Recorder, Santa Clara County, California.
IN WITNESS WHEREOF, Target, Kohl's and Developer have executed and
delivered this First Amendment as of the date first above written.
[Remainder of Page Intentionally Left Blank]
0-3
16871019 Page 79
SIGNATURE PAGE
FOR
FIRST AMENDMENT TO OPERATION AND EASEMENT AGREEMENT
AMONG
TARGET CORPORATION,
KOHL'S DEPARTMENT STORES, INC.
AND
REGENCY REALTY GROUP, INC.
TARGET:
TARGET CORPORATION,
a Minnesota corporation
By:
Name:
Title:
STATE OF MINNESOTA )
)ss.
COUNTY OF HENNEPIN )
On . before me, the undersigned, personally appeared
, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in hislher/their
authorized capacity(ies), and that by hislher/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said
County and State
(SEAL)
0-4
'1687101:9 Page 80
SIGNATURE PAGE
FOR
FIRST AMENDMENT TO OPERATION AND EASEMENT AGREEMENT
AMONG .
TARGET CORPORATION,
KOHL'S DEPARTMENT STORES, INC.
AND
REGENCY REALTY GROUP, INC.
KOHL'S DEPARTMENT STORES, INC., a
Delaware corporation
(''Kohl's'')
By:
Name:
Title:
STATE OF WISCONSIN }
) S8.
COUN1Y OF W AUKESHA )
On . before me, the undersigned, personally appeared
. personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s} whose name(s) is/are subscribed to the within
instrument and acknowledged to me that belshe/they executed the same in bislher/their
authorized capacity(ies), and that by hislher/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and Jor said
County and State
(SEAL)
i
I
j
G-5
16871019 Page 81
SIGNATURE PAGE
FOR
FIRST AMENDMENT TO OPERATION AND EASEMENT AGREEMENT
AMONG
TARGET CORPORATION,
KOHL'S DEPARTMENT STORES, INC.
AND
REGENCY REALTY GROUP, INC.
DEVELOPER:
REGENCY REALTY GROUP, INC., a
Florida corporation
By:
Thomas K. Engberg,
Senior Vice President
STATE OF
)
) ss.
)
COUNTY OF
On , before me, the undersigned, personally appeared
. personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that helshe/they executed the same in hislher/their
authorized capacity(ies), and that by hislher/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument
WITNESS my hand and official seal.
Notary Public in and for said
County and State .
(SEAL)
0-6
~687~O~9 Page 82
CONSENT AND SUBORDINATION
The undersigned, the holder of that certain [Promissory Note] in the original principal
amount of$ dated , -' which is secured, in part, by that certain
(MortgageIDeed of Trust] dated , -' and recorded , _' in the Office of
the of County, , as Document No. . and the
[Assignment of Leases and Rents] dated , -' and recorded , _, in the
Office of the of County, , as Document No.
(collectively, and together with any and all other documents and/or instruments evidencing or
securing the loan evidenced by said note, the "Security Instruments"), for itself and its
successors and assigns, hereby gives all consents necessary under said note and/or the Security
Instruments to the foregoing Amendment to Operation and Easement Agreement (the
"Amendment"), and agrees and confinns that said note and all other indebtedness, liabilities and
obligations of any kind whatsoever (whether now existing or hereafter arising) of Developer (as
defined in the Amendment) and all of the Security Instruments and the lien thereof and security
interests granted thereby are hereby subordinated to the Amendment as if the Amendment had
been recorded prior to the making and recording of any of the Security Instruments.
Dated:
, 200_
By:
Its:
STATE OF
COUNTY OF
)
) SS.
)
The foregoing instrument was acknowledged before me this _ day of
200_. by the of
, on behalf of the
, a
Notary Public
My Commission Expires:
0.7
~687~O~9 Page 83
EXBmIT A-I
Target Tract
All That Real Property Situated In The City Of Gilroy, County Of Santa Clara, State Of
California, And Being A Portion Of That Certain Parcel Of Land Described In A Grant Deed
To South County Development, A Limited Partnership, Filed For Record In The Office Of
The Recorder Of Santa Clara County On July 3,1979 In Book E 609, Page 323 And Also
Being A Portion Of "Parcel One" As Shown On That "Record Of Survey For Brem
Brothers", Filed For Record In The Office Of The Recorder Of Said County, On April 16,
1956, In Book 69 Of Maps, At Page 17. More Particularly Described As Follows:
Commencing At AI" Capped Iron Pipe Stamped RC.E. 17186 Marking The Northeast
Comer Of That Certain "Remainder" Parcel Shown On A Parcel Map Filed For Record In
The Office or The Recorder Of Santa Clara County On December 29, 1997, In Book 698 Of
Maps, At Pages 12 And 13; Thence Along The North Line Of Said "Remainder" And ''Parcel
One" As Shown On Said Parcel Map, North 89009' 07" West, 1012.38 Feet To The True
Point Of Beginning; Thence From Said Point Of Beginning, North 890 09' 07" West, 438.23
Feet; Thence Along The Arc Of A 40.00-Foot Radius Curve, Concave To The Northeast,
Through A Central Angle Of 930 02' 59" The Chord Of.Which Bears North 420 37' 3T'
West, 58.05 Feet; Thence North 86' 06' 08" West 14.00 Feet To A Point On The East Line
OfBrem Lane, A Public Road; Thence Along Said East Line OfBrem Lane, The Following
Two (2) Courses And Distances:
1. North 030 53' 52" East, 729.33 Feet.
2. Along The Arc Of A 392.00-Foot Radius Curve, Concave To The East,
Through A Central Angle Of 030 22' 58", The Chord Of Which Bears North
05036' 03" East, 23.14 Feet;
Thence Leaving The East Line OfBrem Lane, South 89Q 09' or East, 415.69 Feet; Thence
North 000 50' 53" East, 14.91 Feet; Thence South 890 09' OT' East, 44.00 Feet; Thence
South 000 SO' 53" West 395.61 Feet; Thence North 890 09' OT' West, 39.94 Feet; Thence
South 000 50' 53" West, 226.28 Feet; Thence South 890 09' 07" East, 10.00 Feet; Thence
South 000 50' 53" West, 93.00 Feet; Thence South 890 09' 07" East, 21.68 Feet; Thence
South 000 SO' 53" West, 94.25 Feet To The Point Of Beginning.
Together with The Following Described Property:
O-A-l-l
1687~O~~ Page 84
All That Real Property Situated In The City Of Gilroy, County Of Santa Clara, State Of
California, And Being A Portion OfTbat Certain Parcel Of Land Described In A Grant Deed
To South County Development, A Limited Partnership, Filed For Record In The Office Of
The Recorder Of Santa Clara County On July 3, 1979ln Book E609, Page 323, And Also
Being A Portion Of "Parcel One" As Shown On That "Record Of Survey For Brem
Brothers", Filed For Record In The Office Of The Recorder Of Said County, On April 16,
1956, In Book 69 Of Maps, At Page 17, And Further Being A Portion Of Parcel 2 As Shown
On That Certain Parcel Map Filed For Record In The Office Of The Recorder Of Said
County On May 10, 1972 In Book 300 Of Maps, At Page 53 And Also Being A Portion Of
That 30 Foot Wide Strip Of Land Described In A Grant Deed From Hirasaki Fanns, Inc. To
Hisashi Hirasaki, Et. Al., Recorded January 3, 1979 In Book E203 Of Official Records, At
Page 123, Santa Clara County Records. More Particularly Described As Follows:
Commencing At AI" Capped Iron Pipe Stamped RC.E. 17186 Marking The Northeast
Comer Of That Certain "Remainder Parcel" Shown On A Parcel Map Filed For Record In
The Office or The Recorder Of Santa Clara County On December 29, 1997 In Book 698 Of
Maps, At Pages 12 And 13; Thence Along The West Line Of Said 30.00 Foot Wide Strip Of
Land, North 31026' 23" West, 1010.32 Feet To The True Point Of Beginning; Thence From
Said Point Of Beginning, South 700 02' 19" West, 45.73 Feet; Thence Along The Arc Of A
900.00 Foot Radius Curve, Concave To The North, Through A Central Angle Of200 48'
34", The Chord Of Which Bears South 800 26' 36" West, 325.08 Feet; Thence North 890 09'
07" West 101.95 Feet; Thence North 000 SO' 53" East, 30.00 Feet; Thence South 890 09' 07"
East, 101.96 Feet; Thence Along The Arc Of An 870.00 Foot Radius Curve, Concave To The
North, Through A Central Angle Of200 48' 34", The Cl;tord Of Which Bears North 800 26'
36" East, 314.24 Feet; Thence North 700 02' 19" East, 75.51 Feet; Thence North 630 49' 52"
East, 82.66 Feet; Thence North 520 31' 16" East, 61.19 Feet; Thence North 630 49' 52" East,
157.41 Feet; Thence Along The Arc Of A 527.00 Foot Radius Curve, Concave To The
Southeast, Through A Central Angle Of 060 24' 58", The Chord Of Which Bears North 670
02' 21" East, 58.98 Feet; Thence North 700 14' 50" East, 38.53 Feet; Thence Along The Arc
Of A Non-Tangent 1,058.00 Foot Radius Curve, Concave To The Northeast, Through A
Central Angle Of 020 55' 28", The Chord Of Which Bears South 19045' 10" East, 54.00
Feet; Thence Non-Tangent To The Previously Described Curve, South 700 14' SO" West,
38.53 Feet; Thence Along The Arc or A 473.00 Foot Radius Curve, Concave To The
Southeast, Through A Central Angle Of 06024' 58", The Chord Of Which Bears South 670
02' 21" West, 52.94 Feet; Thence South 63049' 52" West, 191.37 Feet; Thence South 700
02' 19" West, 142.38 Feet To The Point Of Beginning.
Said Property Contains 9.2708 Acres.
0-A-I-2
~687~O~9 Page 85
EmmIT C-l
Developer Tract
ALL THAT REAL PROPERTY situated in the City of Gilroy, County of Santa Clara, State
of California, and being a portion of that certain parcel of land descnbed in a grant deed to
South County Development, a limited partnership, filed for record in the Office of the
Recorder of Santa Clara County on July 3,1979 in Book E609, Page 323, and also being a
portion of "Parcel One" as shown on that "Record of Survey for Brem Brothers", filed for
record in the Office of the Recorder of said county, on April 16, 1956, in Book 69 of Maps,
at Page 17, further being all of Parcel 1 and a portion of Parcel 2 as shown on that certain
Parcel Map filed for record in the Office of the Recorder of said county on May 10, 1972 in
Book 300 of Maps, at Page 53, also being a portion of that 30-foot wide strip ofland
described in a grant deed from Hirasaki Farms, Inc. to Hisashi Hirasaki, et. aI., recorded
January 3, 1979 in Book E203 of Official Records, at Page 123, Santa Clara County Records,
also being all of Parcell as shown on that certain Parcel Map, filed for record in the Office
of the Recorder of said county on July 2, 1971 in Book 285 of Maps, at Page 45, more
particularly described as follows:
COMMENCING at a 1" iron pin on the east line of Brem Lane, a public road, formerly
shown as the frontage road appurtenant to State Highway, Route 101, which marks the most
northerly terminus of that course labeled as UN 30 53' 57" E 819.94" feet as shown on that
certain "California State Highway Monument Map 4-SCL-I0I-RM, 6.6 S-169.4" and labeled
as Point No. 68; thence from said POINT OF COMMENCEMENT along the arc of a 392.00-
foot radius curve, concave to the East, through a central angle of 030 22' 59", the chord of
which bears North 05036' 03" East 23.14 feet to the true Point of Beginning; thence from
said POlNT OF BEGINNING, continuing along the East line of said Brem Lane the
following Twelve (12) courses and distances:
1. Along the arc of said 392.00-foot radius curve, concave to the Southeast,
through a central angle of330 21' 38", the chord of which bears North 230 58'
21" East, 225.03 feet
2. North 400 37' 09" East, 697.92 feet
3. North 31016' or' West, 0.53 feet
4. North 580 43' 25" East, 1.64 feet
5. North 400 so' 14" East, 26.24 feet
6. Along the arc of a 173.00-foot radius curVe, concave to the southeast, through
a central angle of510 01' 38", the chord of which bears North 660 21' 03"
East, 149.03 feet
7. South 88008' 09" East, 62.46 feet
8. South 230 31' 02" East, 11.07 feet
9. South 880 08' 09" East, 76.28 feet
O-C-l-l
~687~O~9 Page 86
10. Along the arc of a 155.00-foot radius curve, concave to the Northwest, through
a central angle of 290 55' 34", the chord of which bears North 760 54' 04"
East, 80.04 feet
11. Along the arc of a compound, 95.00-foot radius curve, concave to the
Northwest, through a central angle of 500 36' 43", the chord of which bears
North 36037' 56" East, 81.22 feet
12. Along the arc of a reversing 75.00-foot radius curve, concave to the Southeast,
through a central angle of 71' 09' 19", the chord of which bears North 490 54'
14" East, 93.54 feet to a point on the south line of State Highway, Route 152;
thence North 88028' 53" East, 43.53 feet; thence along the arc ofa 1,116.81-
foot radius curve, concave to the South, through a central angle of 020 44' 00",
the chord of which bears South 850 57' 16" East, 53.27 feet; thence South 840
35' 46" East, 95.60 feet; thence along the arc ofa 40.00-foot radius curve,
concave to the Southwest, through a central angle of900 47' 25", the chord of
which bears South 390 12' 04" East 56.96 feet; thence South 060 11' 39" West,
180.65 feet; thence along the arc of a 1,058.00-foot radius curve, concave to
the East, through a central angle of240 29' OS", the chord of which bears
South 060 02' 53" East 448.69 feet; thence South 700 14' 50" West 38.53 feet;
thence along the arc of a 527.00-foot radius curve, concave to the Southeast,
through a central angle of 060 24' 58", the.chord of which bears South 670 02'
21" West 58.98 feet; thence South 63049' 52" West 157.41 feet; thence South
52031' 16" West 61.19 feet; thence South 630 49' 52" West 82.66 feet; thence
South 700 02' 19" West 75.51 feet; thence along the arc of an 870.00-foot
radius curve, concave to the North, through a central angle of 200 48' 34", the
chord of which bears South 800 26' 36" West 314.24 feet; thence North 890 09'
07" West 145.96 feet; thence South 000 SO' 53" West 14.91 feet; thence North
89009' 07" West 415.69 feet to the Point of Beginning
TOGETHER WITH and including thereto the following described real property:
COMMENCING at a 1" iron pin on the east line of Brem Lane, a public road, formerly
shown as the frontage road appurtenant to State Highway, Route 101, which marks the most
northerly terminus of that course labeled as "N 30 53' 57" E 819.94" feet as shown on that
certain "California State Highway Monument Map 4-SCL-I01-RM, 6.6 S-169.4" and labeled
as Point No. 68; thence from said Point South 480 SO' 55" East 552.91 feet to the true Point
of beginning of this description; thence from said POINT OF BEOINNING South 890 09'
07" East 39.94 feet; thence North 000 50' 53" East 365.61 feet; thence South 890 09' 07" East
101.95 feet; thence along the arc of a 900.00-foot radius curve, concave to the North, through
a central angle 200 48' 34", the chord of which bears North 80026' 36" East 325.08 feet;
thence North 700 02' 19" East 17.48 feet; thence South 09020' 31" East 322.74 feet; thence
North 800 39' 29" East 31.50 feet; thence South O~ 20' 31" East 48.93 feet; thence North 800
39' 29" East 12.99 feet; thence along the arc ofa 185.00-foot radius curve, concave to the
Northwest, through a central angle of220 06' 31" the chord of which bears North 690 36'13"
East 70.94 feet; thence North 580 32' 58" East 66.99 feet; thence South 31027' 02" East
0-C-1-2
~687~O~9 Page 87
381.58 feet; thence North 89010' 08" West 168.15 feet; thence South 67' 17' 28" West
548.07 feet; thence North 890 09' 07" West 211.92 feet; thence North 000 SO' 53" East 88.25
feet; thence North 89009' 07" West 21.68 feet; thence North 000 SO' 53" East 93.00 feet;
thence North 890 09' 07" West 10.00 feet; thence North 00050' 53" East 226.28 feet to the
Point of Beginning
Said property contains 28.5588 acres or 1,244,020 square feet.
0-C-1-3
~687~O~!!l
Page 88
EXHIBIT D
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~687~O~9 Page 89
EXHIBIT E
Legal Description of Access Area
ALL THAT REAL PROPERTY situated in the City of Oilroy, County of Santa Clara,
State of California, and being a portion of that certain parcel of land described in a grant deed to
South County Development, a limited partnership, filed for record in the office of the Recorder
of Santa Clara County on July 3, 1979 in Book E609, Page 323, and also being a portion of
"Parcel One" as shown on that "Record of Swvey for Brem Brothers", filed for record in the
office of the Recorder of said county, on April 16, 1956, in Book 69 of Maps, at Page 17, and
further being a portion of Parcel 2 as shown on that certain Parcel Map filed for record in the
office of the Recorder of said county on May 10, 1972 in Book 300 of Maps, at Page 53 and also
being a portion of that 30 foot wide strip ofland described in a grant deed from Hirasaki Fanns,
Inc. to Hissshi Hirasalci, et. aI., recorded January 3, 1979 in Book E203 of Official Records, at
Page 123, Santa Clara County Records. More particularly described as follows:
COMMENCING at a 1" capped iron pipe stamped RC.E. 17186 marking the Northeast
comer of that certain "Remainder Parcel" shown on a Parcel Map filed for record in the
office of the Recorder of Santa Clara County on December 29, 1997 in Book 698 of Maps, at
Pages 12 and 13; thence along the West line of said 30.00 foot wide strip ofland, North 310
26' 23" West, 1010.32 feet to the true point of beginning; thence from said point of
beginning, South 700 02' 19" West, 45.73 feet; thence along the arc of a 900.00 foot radius
curve, concave to the North, through a central angle of 200 48' 34", the chord of which bears
South 800 26' 36" West, 325.08 feet; thence North 89009' OT' West 101.95 feet; thence
North 000 50' 53" East, 30.00 feet; thence South 89009' 07" East, 101.96 feet; thence along
the arc of an 870.00 foot radius curve, concave to the North, through a central angle of 200
48' 34", the chord of which bears North 80026' 36" East, 314.24 feet; thence North 700 02'
19" East, 75.51 feet; thence North 630 49' 52" East, 81.66 feet; thence North 520 31' 16"
East, 61.19 feet; thence North 630 49' 52" East, 157.41 feet; thence along the arc ofa 527.00
foot radius curve, concave to the Southeast, through a central angle of 060 24' 58", the chord
of which bears North 6'r 02' 21" East, 58.98 feet; thence North 70014' SO" East, 38.53 feet;
thence along the arc of a non-tangent 1,058.00 foot radius curve, concave to the Northeast,
through a central angle of 020 55' 28", the chord of which bears South 190 45' 10" East,
54.00 feet; thence non-tangent to the previously described cwve, South 700 14' 50" West,
38.53 feet; thence along the arc of a 473.00 foot radius curve, concave to the Southeast,
through a central angle of 06024' 58", the chord of which bears South 67002' 21" West,
52.94 feet; thence South 630 49' 52" West, 191.37 feet; thence South 700 02' 19" West,
142.38 feet to the point of beginning.
Said property contains 0.7878 acres or 34,317 square feet.
O-E-l
1687~0~~ Page 90
EXHIBIT F -
Legal Description of Camino Arroyo and Holloway Road
ALL THAT REAL PROPERTY situated in the City of Gilroy, County of Santa Clara,
State of California, and being a portion of "Parcel 2" as shown on that certain Parcel Map filed
for record in the office of the Recorder of Santa Clara County on May 10, 1972 in Book 300 of
Maps, at Page 53. More particularly described as follows:
, I
COMMENCING at the Southeast comer of said "Parcel 2"; thence along the East line of said
Parcel 2, North 310 33' 47" West, 271.86 feet to the true'point of beginning; thence from said
point of beginning, South 58027' 03" West, 305.27 feet; thence along the arc of a 40.00 foot
radius curve, concave to the East, through a central angle of 890 54' OS", the chord of which
bears South 130 30' 01" West, 56.52 feet; thence South 310 27' 02" East, 272.19 feet to a
point on the South line of said "Parcel 2"; thence along the South line thereof South 510 48'
38" West, 106.74 feet; thence leaving said South line North 310 27' 02" West, 284.39 feet;
thence along the arc of a 40.00 foot radius curve, concave to the Southwest, through a central
angle of 900 05' 55", the chord of which bears North 760 29' 59" West, 56.62 feet; thence
South 580 27' 03" West, 78.55 feet; thence along the arc of a 735.00 foot radius curve,
concave to the Northwest, through a central angle of 220 48' 03", the chord of which bears
South 690 51' OS" West, 290.57 feet to a point on the west line of the certain 30.00 foot wide
strip of land described in a grant deed from Hirasaki Farms, Inc. to Hisashi Hirasaki, et. al.,
recorded January 3, 1979 in Book E203 of Official Records, at Page 123, Santa Clara County
Records; thence along the West line thereof, North 310 26' 23" West, 76.58 feet; thence
leaving said West line, following the arc of a non-tangent 665.00 foot radius curve, concave
to the Northwest, through a central angle of 250 20' SO", the chord of which bears North 710
07' 28" East, 291.80 feet; thence North 580 27' 03" East, 78.81 feet; thence along the arc of a
40.00 foot radius curve, concave to the West, through a central angle of 890 54' OS", the
chord of which bears North 130 30' 01" East, 56.52 feet; thence North 310 27' 02" West,
771.06 feet; thence along the arc of a 1,058.00 foot radius curve, concave to the Northeast,
through a central angle of 31' 38' 41", the chord of which bears North 120 37' 41" West,
682.70 feet; thence North 060 II' 39" East, 180.65 feet; thence along the arc of a 40.00 foot
radius curve, concave to the Southwest, through a central angle of 90047' 26'" the chord of
which bears North 390 12' 04" West, 56.96 feet; thence North 840 35' 46" West, 0.80 feet to
a point on the East line of "Parcell" as shown on that certain parcel map filed for record in
the office of the Recorder of Santa Clara County on July 2, 1971, in Book 285 of Maps, at
Page 45; thence along the East line of said "Parcell", North 05034' 51" East, 16.72 feet to
the Northeast comer thereof; thence along the North line of said "Parcel 2", South 85004'
07" East, 143.60 feet to the Northeast comer thereof; thence along the East line thereof,
South 310 33' 47" East, 54.63 feet; thence leaving the East line of said "Parcel 2", following
the arc of a 40.00 foot radius curve, concave to the East, through a central angle of 240 05'
5T', the chord of which bears South 180 14' 36" West, 16.70 feet; thence South 060 11' 39"
West, 120.00 feet; thence South 10033' 00" West, 120.35 feet; thence along the arc of a non-
G-F-l
~687~0~9 Page 9~
tangent, 937.00 foot radius curve, concave to the East, through a central angle of 050 57' 28",
the chord of which bears South 000 23' 42" East, 97.39 feet; thence South 030 22' 26" East,
126.82 feet; thence along the arc of a 408.43 foot radius curve, concave to the East, through a
central angle of 13029' 29", the chord of which bears, South 100 07' 10" East, 95.95 feet;
thence along the arc of a compound 952.00 foot radius curve, concave to the East, through a
central angle of 140 35' 07", the chord of which bears South 240 09' 28" East, 241.69 feet;
thence South 310 27' 02" East, 770.74 feet; thence along the arc of a 40.00 foot radius curve,
concave to the Northeast, through a central angle of 900 OS' 55", the chord of which bears
South 760 29' 59" East, 56.62 feet; thence North 580 27' 03" East, 304.99 feet to a point on
the East line of said "Parcel 2"; thence South 31D 33' 4T' East, 70.00 feet to the point of
beginning.
Said property contains 287,796 square feet or 6.6069 acres
0-F-2
~687~019 Page 92
EXHIBIT G
Legal Description of Future Development Tract
All That Real Property Situated In The City Of Gilroy In The County Of Santa Clara, State
Of California. More Particularly Described As Follows:
Lot 2 And Lots 4 Through 16 Inclusive As Shown On Tract No. Gilroy
Crossing, Filed For Record In The Office Of The Recorder Of Santa Clara County On
,2003 In Book Of Maps, At Pages
0-0.1
~687~0~9 Page 93
EXHIBIT B
(Fonn of Second Amendment to Operation and Easement Agreement)
SECOND AMENDMENT TO OPERATION AND EASEMENT AGREEMENT
THIS SECOND AMENDMENT TO OPERATION AND EASEMENT AOREEMENT
(the "Second Amendment") is made and entered into on this _ day of
200-, by and between Target Corporation, a Minnesota corporation ("Target"), Kohl's
Department Stores, Inc., a Delaware corporation ("Kohl's") and Regency Realty Group, Inc., a
Florida corporation ("Developer").
RECITALS
A. Target, Kohl's and Developer entered into that certain Operation and Easement
Agreement dated , 2003, and recorded on , 2003, in the Office of
the County Recorder, Santa Clara County, California, as Document No. . Target, Kohl's
and Developer entered into that certain First Amendment to Operation and Easement Agreement
dated . 200-, and recorded on . 200-, in the Office of the
County Recorder, Santa Clara County, California, as Document No. . The
Operation and Easement Agreement and First Amendment to Operation and Easement
Agreement are herein collectively referred to as the "OEA".
B. Target, Kohl's and Developer are all of the "Approving Parties" under the OEA
and have the power and authority to amend the OBA.
C. The City of Gilroy has conveyed to Target that real property legally described on
Exhibit D attached hereto (the "Target Additional Parcel") and depicted as such on Exhibit x-
l.
D. The City of Gilroy has conveyed to Developer that real property legally descnbed
on Exhibit E attached hereto (the "Developer Additional Parcel") and depicted as such on
Exhibit X-I.
E. Target, Kohl's and Developer desire to amend the OEA in connection therewith as
provided below.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Target, Kohl's and Developer hereby agree as follows:
AGREEMENT
1. Recitals: Conmct or InconsistencY. The parties hereto agree that the Recitals
are true and correct and hereby incorporated by reference. In the event of any conflict or
inconsistency between the provisions of this Second Amendment and the provisions of the OEA,
the provisions of this Second Amendment shall control. Unless otherwise defined herein, all
H-l
1687~0~9 Page 94
capitalized tenns in this Second Amendment shall have the meanings respectively given them in
the OEA.
2. Addition to Tareet Tract. The Target Additional Parcel is hereby added to the
Target Tract for all purposes of the OEA. Without limiting the generality thereof, as of the date
of this Second Amendment the Addition to Target Tract is benefited by and subject to, and each
Party bereby grants and confirms to Target, the covenants, conditions and easements which
benefit or burden the Target Tract under the OEA (as amended hereby).
3. Addition to DeveloDer Tract. The Developer Additional Parcel is hereby added
to the Developer Tract for all purposes of the OEA. Without limiting the generality thereof, as of
the date of this Second Amendment the Addition to Developer Tract is benefited by and subject
to, and each Party hereby grants and confirms to Developer, the covenants, conditions and
easements which benefit or burden the Developer Tract under the OEA (as amended hereby).
4. CAM Cost Allocation. The first sentence of Section 4.2(0) of the OEA is hereby
amended and restated in its entirety as follows:
"(D) Common Area Maintenance Costs and the Administration Fee shall be
allocated based on total acreage as follows:
(i) To the Developer Tract:
63.04%
(ii) To the Target Tract:
21.05%
(iii) To the Kohl's Tract:
15.91%"
5. Tanet Tract. The legal description of the Target Tract attached to the OEA as
Exhibit A-I is hereby deleted and replaced with the revised legal description of the Target Tract
attached hereto as Exhibit A-2. All references in the OEA to the "Target Tract", "Exhibit N' or
"Exhibit A-I '') shall hereafter refer to the Target Tract as legally described on Exhibit A-2
attached hereto.
6. Developer Tract. The legal description of the Developer Tract attached to the
OEA as Exhibit C-I is hereby deleted and replaced with the revised legal description of the
Developer Tract attached hereto as Exhibit C-2. All references in the OEA to the "Developer
Tract", ('Exhibit C" or "Exhibit C-I" shall hereafter refer to the Developer Tract as legally
described on Exhibit C-2 attached hereto.
7. Modification of Site Plan. The Site Plan attached to the OEA as Exhibit X-I is
hereby deleted and replaced with the revised Site Plan attached hereto as Exhibit X-2. All
references in the OEA to the "Site Plan", "Exhibit X" or "Exhibit X-I" shall hereafter refer to the
Site Plan attached hereto as Exhibit X-2.
H-2
~687~0~9 Page 95
8. Authority. Each of the parties hereto represents and warrants to the others that it
has the full capacity, right, power and authority to execute, deliver and perfonn this Second
Amendment, and all required actions, consents and approvals therefore have been duly taken and
obtained. Target further represents and warrants that Target is the Approving party for the Target
Tract and that upon full execution of this Second Amendment, the OEA (as amended by this
Second Amendment) shall be binding on all parties with any interest in the Target Tract,
including, without limitation, the holder of any mortgagee's interest Kohl's further represents
and warrants that Kohl's is the Approving Party for the Kohl's Tract and that upon full execution
of this Second Amendment, the OEA (as amended by this SecOnd Amendment) shall be binding
on all parties with any interest in the Kohl's Tract, including, without limitation, the holder of
any mortgagee's interest Developer further represents and warrants that Developer is the
Approving Party for the Developer Tract and that upon full execution of this Second
Amendment, the OBA (as amended by this Second Amendment) shall be binding on all parties
with any interest in the Developer Tract, including, without limitation, the holder of any
mortgagee '5 interest
9. Bindine Effect: Ratification of Af!J'eement. This Second Amendment shall be
binding upon and inure to the benefit of the Parties and their respective heirs, successors and
assigns under the OEA. Except as modified hereby, Target, Kohl's and Developer hereby ratify
and reaffirm every provision of the OEA.
10. Counteroarts: Effective Date. This Second Amendment may be signed in
counterparts, each of which shall be deemed an original and together shall be deemed one
instrument This Second Amendment shall be effective as of the date of recording of an original
of this Second Amendment properly executed and acknowledged by Target, Kohl's and
Developer, in the Office of the County Recorder, Santa Clara County, California
IN WITNESS WHEREOF, Target, Kohl's and Developer have executed and
delivered this Second Amendment as of the date first above written.
[Remainder of Page Intentionally Left Blank]
H-3
i687~0~9 Page 96
SIGNATURE PAGE
FOR
SECOND AMENDMENT TO OPERATION AND EASEMENT AGREEMENT
AMONG
TARGET CORPORATION,
KOHL'S DEPARTMENT STORES, INC.
AND
REGENCY REALTY GROUP, INC.
TAROET:
TAROET CORPORATION,
a Minnesota corporation
By:
Name:
Title:
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
On , before me, the undersigned, personally appeared
, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in hislher/their
authorized capacity(ies), and that by hislher/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument
WITNESS my hand and official seal.
Notary Public in and for said
County and State
(SEAL)
H-4
~687~0~9 Page 97
SIGNATURE PAGE
FOR .
SECOND AMENDMENT TO OPERATION AND EASEMENf AGREEMENT
AMONG
TARGET CORPORATION,
KOHL'S DEPARTMENT STORES, INC.
AND
REGENCY REALTY GROUP, INC.
KOHL'S DEPARTMENT STORES, INC., a
Delaware corporation
("Kohl's")
By:
Name:
Title:
STATE OF WISCONSIN )
) ss.
COUNTY OF W AUKESHA )
On . before me, the undersigned, personally appeared
. personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrwnent and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by bis/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said
County and State
(SEAL)
H.5
~687~01.9
Page 98
SIGNATURE PAGE
FOR
SECOND AMENDMENT TO OPERATION AND EASEMENT AGREEMENT
AMONG
TARGET CORPORATION,
KOHL'S DEPARTMENT STORES, INC.
AND
REGENCY REALTY GROUP, INC.
DEVELOPER:
REOENCY REALTY GROUP. INC., a
Florida corporation
By:
Thomas K. Engberg,
Senior Vice President
STATE OF
)
) ss.
)
COUNTY OF
On . before me. the undersigned, personally appeared
. personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in hislher/their
authorized capacity(ies), and that by hislher/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument
WITNESS my hand and official seal.
Notary Public in and for said
County and State
(SEAL)
H-6
~687~0~9 Page 99
CONSENT AND SUBORDINATION
The undersigned, the holder of that certain (promissory Note] in the original principal
amount of $ dated , -' which is secured, in part, by that certain
[MortgagelDeed of Trust] dated , -' and recorded , -' in the Office of
the of County, . as Document No. . and the
[Assignment of Leases and Rents] dated , -' and recorded . -' in the
Office of the of County, , as Document No.
(collectively, and together with any and all other documents and/or instruments evidencing or
securing the loan evidenced by said note, the "Security Instruments"), for itself and its
successors and assigns, hereby gives all consents necessary under said note and/or the Security
Instruments to the foregoing Amendment to Operation and Easement Agreement (the
"Amendment"), and agrees and confinns that said note and all other indebtedness, liabilities and
obligations of any kind whatsoever (whether now existing or hereafter arising) of Developer (as
defined in the Amendment) and all of the Security Instruments and the lien thereof and security
interests granted thereby are hereby subordinated to the Amendment as if the Amendment had
been recorded prior to the making and recording of any of the Security Instruments.
Dated:
, 200_
By:
Its:
STATE OF
COUNTY OF
)
) SS.
)
The foregoing instrument was acknowledged before me this _ day of
200-, by the of
, on behalf of the
.a
Notary Public
My Commission Expires:
H-7
~6B7~0~9 page ~OO
EXHIBIT A-2
Target Tract
All That Real Property Situated In The City Of Gilroy t County Of Santa Clara, State Of
California, And Being A Portion OfTbat Certain Parcel Of Land Described In A Grant Deed
To South County Development, A Limited Partnershipt Filed For Record In The Office Of
The Recorder Of Santa Clara County On July 3, 1979 In Book E 609t Page 323 And Also
Being A Portion Of "Parcel One" As Shown On That ''Record Of Swvey For Brem
Brothers'\ Filed For Record In The Office Of The Recorder Of Said Countyt On April 16,
1956, In Book 69 Of Maps, At Page 17. More Particularly Described As Follows:
Commencing At AI" Capped Iron Pipe Stamped RC.E. 17186 Marking The Northeast
Comer Of That Certain ''Remainder'' Parcel Shown On A Parcel Map Filed For Record In
The Office Of The Recorder Of Santa Clara County On December 29,1997, In Book 698 Of
Maps, At Pages 12 And 13~ Thence Along The North Line Of Said "Remainder" And "Parcel
One" As Shown On Said Parcel Map, North 890 09' 07" West, 1012.38 Feet To The True
Point Of Beginning; Thence From Said Point Of Beginningt North 890 09' 07" West, 438.23
Feet; Thence Along The Arc Of A 40.00-Foot Radius Curve, Concave To The Northeast,
Through A Central Angle Of 930 02' 59" The Chord Of Which Bears North 42037' 37"
West, 58.05 Feet; Thence North 860 06' 08" West 14.00 Feet To A Point On The East Line
OfBrem Lane, A Public Road; Thence Along Said East Line OfBreID Lane, The Following
Two (2) Courses And Distances:
1. North 03053' 52" East, 729.33 Feet
2. Along The Arc Of A 392.00-Foot Radius Curve, Concave To The East,
Through A Central Angle Of 030 22' 58", The Chord Of Which Bears North
05036' 03" East, 23.14 Feet;
Thence Leaving The East Line OfBrem Lane, South 890 09' 01" East, 415.69 Feet; Thence
North 00050' 53" East, 14.91 Feet; Thence South 890 09' 07" East, 44.00 Feet; Thence
South 000 50' 53" West 395.61 Feet; Thence North 890 09' 07" West, 39.94 Feet; Thence
South 00050' 53" West, 226.28 Feet; Thence South 890 09' 07" East, 10.00 Feet; Thence
South 000 SO' 53" West, 93.00 Feet; Thence South 890 09' 07" East, 21.68 Feet; Thence
South 00050' 53" West, 94.25 Feet To The Point Of Beginning.
Together with The Following Described Property:
All That Real Property Situated In The City Of Gilroy, County Of Santa Clara, State Of
California, And Being A Portion Of That Certain Parcel orland Described In A Grant Deed
To South County Development, A Limited Partnership, Filed For Record In The Office Of
H-A-2-1
~687~0~9 Page ~O~
The Recorder Of Santa Clara County On July 3, 1979 In Book E609, Page 323, And Also
Being A Portion Of "Parcel One" As Shown On That "Record Of Survey For Brem
Brothers", Filed For Record In The Office Of The Recorder Of Said County, On April 16,
1956, In Book 69 Of Maps, At Page 17, And Further Being A Portion OfParce12 As Shown
On That Certain Parcel Map Filed For Record In The Office Of The Recorder Of Said
County On May 10, 1972 In Book 300 Of Maps, At Page S3 And Also Being A Portion Of
That 30 Foot Wide Strip Of Land Described In A Grant Deed From Hirasaki Farms, Inc. To
Hisashi Hirasaki, Et. AI., Recorded January 3, 1979 In Book E203 Of Official Records, At
Page 123, Santa Clara County Records. More Particularly Descnoed As Follows:
Commencing At AI" Capped Iron Pipe Stamped RC.E. 17186 Marking The Northeast
Comer Of That Certain "Remainder Parcel" Shown On A Parcel Map Filed For Record In
The Office Of The Recorder Of Santa Clara County On December 29, 1997 In Book 698 Of
Maps, At Pages 12 And 13; Thence Along The West Line Of Said 30.00 Foot Wide Strip Of
Land, North 31026' 23" West, 1010.32 Feet To The True Point Of Beginning; Thence From
Said Point Of Beginning, South 70002' 19" West, 45.73 Feet; Thence Along Tbe Arc Of A
900.00 Foot Radius Curve, Concave To The North, Through A Central Angle Of 200 48'
34", The Chord Of Which Bears South 80026' 36" West, 325.08 Feet; Thence North 890 09'
OT' West 101.95 Feet; Thence North 00050' 53" East, 30.00 Feet; Thence South 890 09' OT'
East, 101.96 Feet; Thence Along The Arc Of An 870.00 Foot Radius Curve, Concave To The
North, Through A Central Angle Of200 48' 34", The Chord Of Which Bears North 800 26'
36" East, 314.24 Feet; Thence North 700 02' 19" East, 75.51 Feet; Thence North 630 49' 52"
East, 82.66 Feet; Thence North 520 31' 16" East, 61.19 Feet; Thence North 630 49' 52" East,
157.41 Feet; Thence Along The Arc Of A 527.00 Foot Radius Curve, Concave To The
Southeast, Through A Central Angle Of 060 24' 58", The Chord Of Which Bears North 670
02' 21" East, 58.98 Feet; Thence North 700 14' SO" East, 38.53 Feet; Thence Along The Arc
Of A Non-Tangent 1,058.00 Foot Radius Curve, Concave To The Northeast, Through A
Central Angle Of 020 55' 28", The Chord Of Which Bears South 19045' 10" East, 54.00
Feet; Thence Non-Tangent To The Previously Described Curve, South 700 14' SO" West,
38.53 Feet; Thence Along The Arc Of A 473.00 Foot Radius Curve, Concave To The
Southeast, Through A Central Angle Of 06024' 58", The Chord Of Which Bears South 670
02' 21" West, 52.94 Feet; Thence South 630 49' 52" West, 191.37 Feet; Thence South 700
02' 19" West, 142.38 Feet To The Point Of Beginning.
Together with The Following Described Property:
All That Real Property Situated In The City Of Gilroy, County Of Santa Clara, State Of
California And Being A Portion Of That Certain Public Road Right Of Way Adjoining State
Highway Route 101. More Particularly Described As Follows:
Beginning At A Point On The East Line Of State Highway Route 101, From Which Point A
I" Iron Pin Marking The Southerly Tennination Of That Certain Course Labeled As "North
03053' 5T' East, 819.94 Feet On That Certain "California State Highway Monument Map 4-
Scl-l01-P.M.5.8 S-169.3" Bears South 03053' 52" West, 24.77 Feet; Thence From Said
H-A-2-2
~687~0~9 Page ~02
Point Of Beginning Following The East Line Of Said State Highway Right Of Way And The
West Line Of The Frontage Road Known As Brem Lane, The Following Two (2) Courses
And Distances: 1.) North 03053' 52" East, 795.18 Feet. 2.} Along The Arc Of A 438.00
Foot Radius Curve Concave To The East, Through A Central Angle Of 020 42' 56", The
Chord Of Which Bears North 050 IS' 20" East, 20.76 Feet. Thence Leaving The West Line
OfBrem Lane, South 89009' or' East, 46.26 Feet To A Point On The East Line OfBrem
Lane; Thence Along The East Line Thereof The Following Four (4) Courses And Distances:
1.} Along The Arc Of A Non-Tangent 392.00 Foot Radius Curve, Concave To The East,
Through A Central Angle Of 030 22' 58", The Chord Of Which Bears South 05036' 03"
West, 23.14 Feet. 2.} South 03053' 52" West, 729.33 Feet. 3.) South 860 06' 08" East,
14.00 Feet. 4.) Along The Arc Of A Non-Tangent 40.00 Foot Radius Curve, Concave To
The East, Through A Central Angle Of390 38' 38", The Chord Of Which Bears South 150
55' 26" East, 27.13 Feet; Thence Leaving The East Line Of Said Brem Lane, Following The
Arc Of A Non-Tangent 50.00 Foot Radius Curve, Concave To The South, Through A
Central Angle Of 1060 30' 52", The Chord Of Which Bears South 630 36' 55" West, 80.13
Feet To The Point Of Beginning.
Said Property Contains 10.1072 Acres .
H-A-2-3
~68710~9 Page ~03
--_. --.---.-. . - -- ---------
EXHIBIT C-2
Developer Tract
ALL THAT REAL PROPERTY situated in the City of Oilroy, County of Santa Clara, State of
California, and being a portion of that certain parcel ofland described in a grant deed to South
County Development, a limited partnership, filed for record in the Office of the Recorder of
Santa Clara County on July 3,1979 in Book E609, Page 323, and also being a portion of "Parcel
One" as shown on that "Record of Survey for Brem Brothers", filed for record in the Office of
the Recorder of said county, on April 16, 1956, in Book 69 of Maps, at Page 17, fmther being all
of Parcel 1 and a portion of Parcel 2 as shown on that certain Parcel Map filed for record in the
Office of the Recorder of said county on May 10,1972 in Book 300 of Maps, at Page 53, also
being a portion of that 30-foot wide strip ofland descn"bed in a grant deed from Hirasaki Fanns,
Inc. to Hisashi Hirasald, et. aI., recorded January 3, 1979 in Book E203 of Official Records, at
Page 123, Santa Clara County Records, also being all of Parcel 1 as shown on that certain Parcel
Map, filed for record in the Office of the Recorder of said county on July 2, 1971 in Book 285 of
Maps, at Page 45 and also being a portion ofBrem Lane, a-public road. More particularly
described as follows:
COMMENCINO at a point on the East line of State Highway Route 101, marking the Northerly
termination of that certain course labeled as "North 030 53' 57" East, 819.94" on that certain
"California State Highway Monument Map 4-SCL-I01-P.M. 5.8 S-169.3"; thence from said
point of commencement following the East line of said State Highway right of way and the West
line of the frontage road known as Brem Lane, along the arc ofa 438.00-foot radius curve,
concave to the East, through a central angle of20 42' 54", the chord of which bears north 5015'
20" East 20.75 feet to the true Point of Beginning; thence from said POINT OF BEOINNING
continuing along said East line of State Highway Route 101 and West line ofBrem Lane, the
following Four (4) courses and distances:
1. Along the arc of a 438.00-foot radius curve concave to the Southeast, through a central
angle of340 00' 22", the chord of which bears North 230 36' 58" East, 256.16 feet;
2. North 400 37' 09" East, 725.28 feet;
3. Along the arc of a 219.00-foot radius curve, concave to the Southeast, through a central
angle of31' 46' 24", the chord of which bears North 590 30' 21" East, 141.78 feet;
4. North 780 23' 33" East, 353.55 feet to a point on the Northwest line of said "Parcell" as
shown on that certain Parcel Map filed for record in the Office of the Recorder of Santa
Clara County in Book 285 of Maps, at Page 45;
Thence along the North line of said "Parcel I" as shown on said Parcel Map the following
two (2) courses and distances:
H-C-2-1
, .
~687~0~9 Page ~04
1. Along the arc of a non-tangent 75.00-foot radius-curve, concave to the Southeast,
through a central angle of360 54' 11", the chord of which bears North 70001' 48"
East, 47.48 feet;
2. North 880 28' 53" East, 43.53 feet; thence leaving the North line of said "Parcell",
along the arc ofa 1,116.81-foot radius curve, concave to the South, through a central
angle of 020 44' 00", the chord of which bears South 850 57' 16" East, 53.27 feet;
thence South 840 35' 46" East, 95.60 feet; thence along the arc of a 40.00-foot radius
curve, concave to the Southwest, through a central angle of900 47' 25", the chord of
which bears South 39012' 04" East 56.96 feet; thence South O&> 11' 39" West, 180.65
feet; thence along the arc of a 1,058.00-foot radius curve, concave to the East, through
a central angle of240 29' OS", the chord of which bears South 060 02' 53" East,
448.69 feet; thence South 70014' SO" West, 38.53 feet; thence along the arc ofa
527.00-foot radius curve, concave to the Southeast, through a central angle of 060 24'
58", the chord of which bears South 6-,0 02' 21" West 58.98 feet; thence South 630
49' 52" West 157.41 feet; thence South 520 31' 16" West 61.19 feet; thence South 630
49' 52" West 82.66 feet; thence South 700 02' 19" West 75.51 feet; thence along the
arc of an 870.00-foot radius curve, concave to the North, through a central angle of
20048' 34", the chord of which bears South 800 26' 36" West 314.24 feet; thence
North 890 09' 07" West 145.96 feet; thence South 000 SO' 53" West 14.91 feet; thence
North 89009' 07" West 461.95 feet to the Point QfBeginning.
Together with and including thereto the following described real property:
Commencing at a 1" iron pin on the east line ofBrem Lane, a public road, formerly shown as
the frontage road appurtenant to State Highway, Route 101, which marks the most northerly
terminus of that course labeled as"N 30 53' 57" E 819.94" feet as shown on that certain
"California State Highway Monument Map 4-SCL-lOI-RM, 6.6 S-169.4" and labeled as
Point No. 68; thence from said POINT OF COMMENCEMENT South 510 33' 33" East
590.14 feet to the true point of beginning of this description; thence from said POINT OF
BEGINNING South 890 09' 07" East 39.94 feet; thence North 000 SO' 53" East 365.61 feet;
thence South 89009' 07" East 101.95 feet; thence along the arc of a 900.00-foot radius curve,
concave to the North, through a central angle of 200 48' 34", the chord of which bears North
80026' 36" East 325.08 feet; thence North 700 02' 19" East 17.48 feet; thence South 090 20'
31" East 322.74 feet; thence North 80039' 29" East 31.50 feet; thence South 090 20' 31" East
48.93 feet; thence North 80039' 29" East 12.99 feet; thence along the arc of a 185.00-foot
radius curve, concave to the Northwest, through a central angle of220 06' 31", the chord of
which bears North 690 36' 13" East 70.94 feet; thence North 580 32' 58" East 66.99 feet;
thence South 310 27' 02" East 381.58 feet; thence North 89010' 08" West 168.15 feet; thence
South 6r 17' 28" West 548.07 feet; thence North 890 09' 07" West 211.92 feet; thence
North 000 50' 53" East 88.25 feet; thence North 890 09' 07" West 21.68 feet; thence North
00050' 53" East 93.00 feet; thence North 890 09' 07" West 10.00 feet; thence North 000 50'
53" East 226.28 feet to the Point of Beginning.
Said property contains 30.2826 acres or 1,319,110 square feet.
H-C-2-2
~687~0~9 Page ~05
EXHIBIT D
Legal Description of Target Additional Parcel
ALL THAT REAL PROPERlY situated in the City of Gilroy, County of Santa Clara,
State of California and being a portion of that certain public road right of way adjoining State
Highway Route 101. More particularly described as follows:
BEGINNING at a point on the East line of State Highway Route 101, from which point a I"
iron pin marking the Southerly termination of that certain course labeled as "Nor$ 030 S3'
57" East, 819.94 feet on that certain "California State Highway Monument Map 4-SCL-I0l-
P.M.S.8 S-169.3" bears South 030 53' 52" West, 24.77 feet; thence from said point of
beginning following the East line of said state highway right of way and the West Ifne of the
frontage road known as Brem Lane, the following two (2) courses and distances: 1.) North
03053' 52" East, 795.18 feet. 2.) Along the arc ofa 438.00 foot radius curve concave to the
East, through a central angle of 020 42' 56", the chord of which bears North 050 15' 20" East,
20.76 feet Thence leaving the West line ofBrem Lane, South 890 09' 07" East, 46.26 feet to
a point on the East line of Brem Lane; thence along the East line thereof the following four
(4) courses and distances: 1.) Along the arc of a non-tangent 392.00 foot radius curve,
concave to the East, through a central angle of 03022' 59", the chord of which bears South
05036' 03" West, 23.14 feet. 2.) South 030 53' 52" West, 729.33 feet. 3.) South 860 06'
08" East, 14.00 feet. 4.) Along the arc of a non-tangent 40.00 foot radius curve, concave to
the East, through a central angle of 39038' 38", the chord of which bears South 15~ 55' 26"
East, 27.13 feet; thence leaving the East line of said Brem Lane, following the arc of a non.
tangent 50.00 foot radius curve, concave to the South, through a central angle of 1060 30'
53''. the chord of which bears South 630 36' 55" West, 80.13 feet to the point of beginning.
Said property contains 0.8364 acres of 36,435 square feet.
H-D-l
~687~0~9 Page ~06
EXBmIT E
Legal Description of Developer Additional Parcel
ALL THAT REAL PROPERlY situated in the City of Gilroy, County of Santa Clara, State of
California and being a portion of that certain public road right of way adjoining State Highway
Route 101. More particularly described as follows:
COMMENCING at a point on the East line of State Highway Route 101, from which point a I"
iron pin marking the Southerly termination of that certain course labeled as "North 03053' 57"
East, 819.94" on that certain "California State Highway Monument Map 4-SCL-IOI-P.M. 5.8 S-
169.3" bears South 030 53' 52" West 24.77 feet; thence from said point of commencement
following the East line of said State Highway right of way and the West line of the frontage road
known as Brem Lane, the following two (2) courses and distances:
1. North 030 53' 52" East, 795.18 feet;
2. Along the arc of a 438.00-foot radius curve concave to the Southeast, through a central
angle of 020 42' 56", the chord of which bears North 050 15' 20" East, 20.76 feet to the
true point of beginning.
Thence from said point of beginning, continuing along the line common to the East line of said
"State Highway Route lof" and west line of said "Brem Lane", the following four (4) courses
and distances:
1. Along the arc of a 438.00 foot radius curve, concave to the Southeast, through a central
angle of 340 00' 21 ", the chord of which bears North 23036' 58" East, 256.16 feet.
2. North 400 37' 09" East, 725.28 feet;
3. Along the arc of a 219.OQ-foot radius curve, concave to the Southeast, through a central
angle of31' 46' 24", the chord of which bears North 59030' 21" East, 141.78 feet;
4. North 78023' 33" East, 353.55 feet to a point on the Northwest line of "Parcel 1 " as
shown on that certain Parcel Map filed for record in the Office of the Recorder of Santa
Clara County on July 2,1971 in Book 285 of Maps, at Page 45;
Thence along the North line of said Parcel 1 and Parcel 2 as shown on said Parcel Map
the following eleven (11) courses and distances:
1. Along the arc of a non-tangent 75.00-foot radius curve, concave to the Southeast, through
a central angle of 400 IS' 07", the chord of which bears South 31027' 08" West, 51.61
feet;
2. Along the arc of a reversing 95.OQ-foot radius curve, concave to the Northwest, through a
central angle of 500 36' 43", the chord of which bears South 3~ 37' 56" West, 81.22 feet;
H-E-l
~687~0~9 Page ~07
3. Along the arc of a compound 1 55.00-foot radius curve, concave to the Northwest,
through a central angle of290 55' 34", the chord of which bears South 7ft 54' 04" West,
80.04 feet;
4. North 88008' 09" West, 76.28 feet;
5. North 230 31' 02" West, 11.07 feet;
6. North 88008' 09" West, 62.46 feet;
7. Along the arc of a 173.00-foot radius curve, concave to the Southeast, through a central
angle of 51001' 37", the chord of which bears South 6ft 21' 03" West, 149.03 feet;
8. South 400 50' 14" West, 26.24 feet;
9. South 58043' 25" West, 1.64 feet;
10. South 310 16' OT' East, 0.53 feet to a I" iron pin;
11. South 40037' 09" West, 6.34 feet to the most westerly comer of said "Parcell";
Thence leaving said Westerly comer of "Parcel 1 n and following the East right of way line of
said Brem Lane the following two (2) courses and distances:
1. South 400 37' 09" West, 691.59 feet to a I" iron pin;
2. Along the arc of a non-tangent 392.00-foot radius curve, concave to the Southeast,
through a central angle of330 21' 37" the chord of which bears South 230 58' 21" West,
225.03 feet to a similar monument;
Thence leaving the East line of said Brem Lane, North 890 09' OT' West, 46.26 feet to the point
of beginning.
Said property contains 1.7238 acres or 75,090 square feet.
H-E-2
~687~0~9
Page ~08
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~68710~9 Page ~~~
Exhibit X cont.
NOTE:
For a full size copy of the site plan referred to herein as Exhibit X, Exhibit Xl and
Exhibit X2 please inquire or request at:
Target: Target Corporation
Property Development
Attn: Property Administration
1000 Nicollet Mall
Minneapolis, MN 55403
Kohl's: Kohl's Department Stores, Inc.
N56 W17000 Ridgewood Drive
Menomonee Falls, WI 53051
Attn: Law Department
Developer: Regency Realty Oroup, Inc.
c/o Regency Centers, L.P.
1850 Mt Diablo Blvd., Suite 225
Walnut Creek, CA 94596
Attn: Thomas K. Engberg