5. No roof-mounted HVAC equipment shall extend in height above the top of equipment screen walls or the building parapet. Arrangement of units on the rooftops shall be architecturally coordinated into roofscapes to present an organized image to high-rise structures i� and adjacent to the project development.
6. All garage parking deck upper levels and light wells visible to the public shall be developed with a suitable landscape treatment. In addition, a graphic patterning utilizing color and/or texture shall be developed to furthe� enhance the large areas of the exposed parking decks·�,
7. An appropriate pedestrian litik shall be created between the fourth majdr department store or office tower and San Fernando Baul evard. Reta i 1 • uses -:-------__Js-h-a-1-1-ee-d-e-ve-1-o-p-e-d�aLthe_g_r_ound 1 oor of· the office tower, if constructed in-lieu of the fourth major on axis with the mall and San Fernan o '
Boulevard.
8. No on-street parking shall be permitted within the project development area.
9. The mall entrance elevation at Magnolia Boulevard shall_be_developed as retailer-user friendly with pedestrian scale, utilizin� a meanderirtg landscaping theme, a building lighting program, graphics, ba�ners and window glass treat�ents as a�propriate.
10. A definitive signage program for the overall project shall be provid�d. The signage program shall describe the style, size, location and illumination elem�nts for the_ signage ..
11. The selection of plant material, inclu�ing trees, shrubs and ground co�er, and the landscape treatment of several slopes adjac.entto public_rights-ofway shall be prepared by a licensed landscape architect. Th� Parks and Recreation Department shall review and approve the landscape plans in addition to the Director of Community Development.
12. All outdoor activities related to the Ikea facility and the fourth major department store or office tower site shall be clearly defined.
13. Pedestrian access to and from the Ikea facility and Parking G,rage #3 shall be-more clearly defined subject to the review and approval of th� Director of Public Works and· the Direc:tor of Coffifllunity_ Development.
14. The color, materials and design of the Ikea store and sign shall be compatible with the design of the center as a whole.
15. The, Ikea canopy (west elevation) extendi�g from the main entrance to the north end of the building shall b� reduced in length t6 only at the entryway. Additional 1 andscapfng shal 1 be provided where the canopy has been e 1i mi na ted.
76 4845
16. The applicant will maintain the existing overflow parking lot on the southwest corner of Burbank Baul evard and Thi rd Street for the excl us; ve use of Burbank High School students until permits are issued for grading at that location. The .applicant shall notify the Principal of Burbank High School of the closure of Third Street or Burbank Boulevard of any duration longer than two hours at least two days in advance.
17. The applicant will sub�it and implement a construction-phase parking plan indicating that construction worker parking will be provided on-site or at locations which will mi�imize parking problems in the downtown.
18. Office parking spaces shall be available for the entire retail portion of the project during off-peak office use. To the greatest extent possible compact spaces sha 11 be 1 ocated at the rear of the parking structure fl o�rs and designated for employee use.
19. All private streets, slope landscaping and common areas located within the boundaries of the development shall be maintained by the applicant. The applicant shall cooperate in granting access easements in priVate streets which the City deems necessary to maintain public utilitie� on the site.
20. Screening plans must be submitted for approval for trash enclosures, loading docks, utility vaults and other outside facilities.
21. Deleted.
22. The schedule of construction of the major buildings shall be as follows:
Buildinas
Mervyns
Buffums
Sears
Regional Mall Bldg.
Ikea/Ikea parking structure
Hotel/Office Bldg. #4
Parking Garages 1 & 2
Office Building #3
Office Bldg. G2 & Garage
Office Bldg. #1 & Garage
Construction Start Date
1990
1990
1990
1990
1989
1991
1990
1991
1994
1997
23. Temporary construction project signs shall be installed by the applicant.
Additionally, during construction, the entire property shall have perimeter fencing consistent with the Agency's barricade and signage program, attached hereto and incorporated herein.
24. Daytime lighting of the mall's interior public spaces shall be designed so as to enhance the light and airy quality of the mall interiors. 77 4846
25. Expanses of over 25 1 inear feet of unarticulated facades shal 1 be avoided by incorporating texture, color, and style variations so as to create a visually interesting facade.
26. Exterior building and plaza illumination shall be designed so as to minimize intrusive glare at residences on· Thi.rd Street and Burbank Baul evard. Low level security lighting shall be used along driveway entrances.
27. The projett shall use glass which has a relatively low reflectance.
28. The applicant shall sign a covenant stating that if archeological remains are revealed during any phase of constr�ction the Northridge Center for Public Archaeology will be contacted and given up to four weeks to evaluate ______ a_n_ci_j:emove any resources if so desired by the Center.
29. There must be ample trash containers on each construction site to handle all trash and debris that is generated during construction (other than scrap construction material).
30. Portable toilet facilities will be provided on each construction site during construction periods as per Section 7-9 of the Burbank Municipal Code.
31. The applicant shall adhere_ to the following construction practices:
- All unpaved demolition and construction areas shall be wetted at least twice a day during excavation to reduce dust emissions and meet SCAQMD District Rule 403.
- Contractors shall maintain and operate construction equipment so as to minimize exhaust emissions.
- Trucks and vehicles in loading or unloading queues·shall be kept with their engines off, when not in use, to reduce vehicle emissions. - Construction activities shall be phased and scheduled to 4Void emissions peaks.
- Operation of construction equipment shall be discontinued during first� and second-stage smog alerts.
.• •
32. Exterior construction activities�shall only occur betwe�n 7 a.m� and 7 p.m.
Monday through Sunday, except that the hours of grading shall be as authorized in the grading pennit. Off-site staging of construction vehicles shall require a staging plan approved by the Director of Public Works, Director of Comrnunity,Of!�elopment, and Pol ice_ Chief._
33. Applicant shall schedule notsy construction acti�ities in shifts to avoid high noise levels caused by operating several· pieces of ·equipment simultaneously. • •
34. Applicant shall require the project contractor to u_se power construction equipment with noise shielding and muffling devices.
78 4847
35. The app Ti cant wi 11 construct a temporary eight foot sound barrier wa 11 a 1 ong Third Street from its intersection with Cypress Avenue to Burbank Boulevard, then westward along Burbank Boulevard from Thi rd Street to the north edge of the Home Savings parcel, then southward along the Home Savings parcel to Grinnell Drive. The wall will be rated as reducing noise by 10 dBA at pedestrian street level, -will be located along the inside edge of the sidewalk and will be painted and maintained in an attractive manner.
The wall will be constructed in two phases in conjunction with the Ikea and 16-story structures construction schedules. This wal1 shall be compatible with and an extension of the construction barricade wall required for the entire perimeter of the site.
36. Applicant shall receive all appropriate approvals from the Federal Aviation Administration for any buildings in excess of 200 feet in height.
37. The City will not issue a Final Certificate of Occupancy for any phase of the project until code-required parking for that phase is available. But in no event shall such phase be opened to the public prior to issuance of a Final Certificate of Occupancy.
38. The applicant shall implement the following Transportation Demand Manag�ment measures:
A. The applicant will contract with a consultant for the development of a Transportltion Demand Management plan. The plan may include, but not be limited to, the measures suggested on pages 70 and 71 of the SEIR. The plan must be phased with the site's development schedule, and implementation must begin with the first development. The TOM plan must be submitted to and approved by the Community Development Director before the developer obtains a Certificate of OccupancyG
B. For the duration of the life of this project, the applicant or any subsequent owner of the site or the buildings thereon will designate a Transportation Demand Management Coordinator to organize the trip reduction efforts of all employers and act as Transportation Liaison with the City. The applicant may organize a Transportation Management Organization on this site (THO). If this occurs, the TMO's perscinnel could serve this function.
C. The TOM program for the Gateway Center will become the basis for all lease agreements with commerci a 1 and reta i1 concerns. A 11 leases w i1 l contain requirements for trip reduction measures incumbent upon the lessees. These lease agreements will include all provisions to be determined by the developer's TOM plan as well as the following provisions:
1. Lessees will designate at least one full-time employee as a TOM liaison with the overall TOM staff and/or THO program. This designee will be responsible for promoting transit and ridesharing alternatives to fellow employees.
79 4848
2. Lessees will allow TDM/TMO strategies to be promoted and organized on site. Employers will be required to post information regarding ridesharing and transit as well as allow TOM/TMO staff on site to promote and arrange alternative transportation modes. All new employees will be required to participate in a TOM orientation to be sponsored by TDM/TMO staff. In addition, employers may be asked to participate in periodic promotions sponsored by more than one employer or lessee.
3. Lessees will cooperate in providing preferential parking for vehicles used by ridesharing and vanpooling arrangements.
4. Where possible, lessees will provide secured parking for bicycles.
5. Where poss i 51 e, lessees wi11-crgree--to-wo-rk-h0-u-r--s-t--r-ateg-i-e-S�t-h-a-t-a r-e--
deemed necessary to reach the trip reduction goals of the Burbank Gateway Center Plan.
The Burbank Gateway Center TOM plan will include a program to monitor all of the trip reduction strategies on site in order to ensure that the TOM goals are achieved. If these g9als are not being met, the Burbank Gateway Center TOM Plan must be revised and submitted to the City for approval.
The Community Development Director will reserve the right to· impose additional requirements so that the gdals of the TOM plan are met.
Failure to submit an initial TOM plan or annual updates will be consider.ed noncompliance �ith City pol icy.
.
. '
39. The applicant sha 11 provide in consultation with the Southern California Rapid Transit District: • •
- Covered, lighted bus shelters at appropriate locations� - Concrete bus pads; and
- Siqe�a1ks/curbs ,which provide easy access to bus stops for a 11 transit pitrons including the disabled.
Should construction activities interfe�e with the safe operation of any �xisting bus o�layov�r zones, the District will work with the applicant to �itigate ·the effetts, or arrange for teriporary relotations�
PARK ANO RECREATION DEPARTMENT
40. The commurtity c�nter shal 1 be more clearly defined as to the nature and control of its us�, its design components, its relatiortship tos the ov�rall project, and its role in the scheduling of .events and activities of the Park and Recreation system; these pl ans are to be reviewed and approved by the Director of Park and Recreation and the Director of Community Development. 80 4849
POLICE DEPARTMENT
Plans for the following security measures shall be submitted to the Police Chief for review and approval:
41. Elevators, lobbies, and parking areas shall be designed to reduce and/or eliminate areas of possible concealment in consultation with the Police Department.
42. Upon· completion of the project, the sponsor sha11 provide a diagram of the project site to the Burbank Police Department to include access routes, u�it numbers and any other information that might facilitate pol ice response.
43. Private security guards and/or an electronic security·system(s) shall be used to monitor and patrol the project.
44. The project sponsor will adequately fence all construction areas and· maintain 24-hour security capable of monitoring all construction areas ..
45. Project security will maintain a close working relationship with the Burbank Police Department and Burbank High School security personnel to prevent, detect, and respond to security problems at the High School.
PUBLIC SERVICE DEPARTMENT
The fo 11 owing sha 11 be reviewed and approved by the Genera 1 Manager of the Public Service Department:
46. The applicant should comply with at least the minimum requirements of the State Building Energy Efficiency Stand,ards (Title 24) and, to the extent feasible, should seek to exceed such requirements and use state-of-the'-art energy-conscious design practices. Applicant sha11 also employ natural gas and alternative energy technologies which would reduce the air emissions caused by energy generation.
47. The applicant shall install electrical system improvements required of the Public Service Department in accordance with PSO-approved drawings and specifications.
48. All development must implement conservation measures such as low-flush toilets and low-flow shower heads, as mandated by the State of California.
49. The project site shall be designed with a landscape �rrigation system that would utilize reclaimed water. Irrigation lines shall be a separate distribution system to. prevent cross connection·with potable water.
50. The applicant shall instal 1 the water distribution system required of the Public Service Department. Plans shall incoiporate all changes in water line sizes and locations required by the Public Service Department. 81 4850
51. The applicant will pay for the preparation of an emergency plan that will addres� the accidental severance of utilities to the Burbank High School during construction. Should such a plan be implemented, the project �ponsor will reimburse the Burbank Unified School District for expenses associated with implementing the emergency plan and expenses associated with making up lost classroom time.
PUBLIC WORKS DEPARTMENT
The following shall be reviewed and approved by the-Public Works Director:
52. The applicant shall construct the following intersection 'improvements:
First Street and MagnoTiaBoul evaror----�----'-------------- - Widen North approach (Northbound First Street) of the intersection to four lanes to incl�de dduble left-turn lanes, one through lane, and one shared through/right-turn lane.
Widen South approach of the intersection to include one.left-turn lane, two through lanes, arid on� sha�ed through/right-turh lane.
First Street and Olive Avenue
- Widen North approach of the intersection to include one left-turn lane, two through lanest and one shared through/right-turn lane.
Fi�st Street and Orange Grove avenue
- Widen South approac� of the inters��tion to-include bn� left-turn lane, and two through lanes.
- Widen North approach to include on� left-turn lane and two through lanes.
First Street and Palm Avenue
- Widen Southappr6ach bf the intersection to include one left�turn lane, and two through lanes.
- Widen North approach to include one left-turn lane and two through lanes.
First Street and Antieleno Aventie
- Widen Nortt, approach to iqcl ude one left-turn 1 ane, two through 1 anes, and one sh,ared through/right-turn lan·e.
- Restripe West ,pproach �o include one left-turn lane, one through lane, and .one shared through/right-turn lan·e.
82 4851
First Street and Verdugo Avenue
- Widen North approach to include one left-turn lane, one through lane, and two right-turn lanes.
- Restripe West approach to inclbde one left-turn lane, one through lane, and one shared through/right-turn lane.
Install a signal at this intersection.
Third Street and Burbank Boulevard
- Restripe South approach (Northbound Third Street) to include one leftturn lane and two through lanes.
Golden State Freeway Northbound Off-Ramp and Burbank Boulevard - Widen Golden State Freeway Off-ramp to two right-turn lanes.
Golden State Freeway Southbound Off-ramp and Burbank Boulevard - Widen Golden State Freeway Off-ramp to include two left-turn lanes, and one right-turn lane.
Golden State Freeway Southbound On-ramp and Burbank Boulevard - Widen West approach (Eastbound Burbank Boulevard) of the intersection to include one right�turn lane, and two through lanes.
- Widen east approach to include one right-turn lane, and three through lanes.
San Fernando Boulevard and Burbank Boulevard
- Widen West approach (Eastbound Burbank Boulevard} to include two leftturn lanes, two through lanes, and one continuous right-turn Jane. - Widen East approach (Westbound Burbank Boulevard) to include one left� turn lane, one through lane, and one shared through and right-turn lane. - Widen North approach (Southbound San Fernando Boulevard) to include one left-turn lane, two through lanes, and one right-turn lane. - Widen South approach to include two left-turn lanes, one through lane, and one shared through/right-turn lane.
83 4852
San Fernando Boulevard and Grinnell Drive
- Install a sighal at this intersection.
First Street and Cypress Avenue
- Install a signal at this intersection.
53. Applicant shall make street section improvements at the following 1 ocat ions:
On-Site:
-------=-"-------.!Gr-.i-ru1-eJJ_0_rJye_from San Fernando Boulevard to Thi rd Street .. - San Fernando Boulevard from Grinnell Drive to Cypress Avenue. - Cypress Avenue from Third Street to First Street.
Off-Site:
- Third Street from Burbank Boulevard to Magnolia Boulevard. - Burbank Boulevard from its Golden State Freeway intersection to Third Street.
- San Fernando Boulevard from Burbank Boulevard to Grinnell Drive. - Magnolia Boulevard from the Golden State Freeway overcro�sing to Third Street ..
- First Street from San Fernando Boulevard to Magnolia Boulevard.
54. The applicant shall install a traffic signal at Walnut and San Fernando with left-turn pha�ing.
55. The applicant shall install a traffic signal at the corner of Thtrd Street and Burbank Boulevard.
56. The appl kant shall extend Bonnywood under Magnolia to serve as an access for th� office building �arking structure at the northwest corner -0f First Street and Magno1ia Boulevard.
57. The �pplicant shall install signage for through traffic routes in the downtown.
• 58. The applicant sha11 install street name signs.
59. The applicant shall provide drop-off/pick-up turnouts at appropriate locations.
84 4853
)
J
60. The applicant shall indicate and provide extra-width driveway approaches ..
61. Existjng_�Dderground storage tanks shall be removed and �o�taminated surrounding soil. shall ·5e· remediated or removed and, a subsurface investigation shall .be performed at the locations of former tanks to detennine if' any significant soil contamination has occurred at the site as a result of leakage from the tanks. Both operations sha 11 be performed under the supervision of a qualified geologist and meet all applicable governrn�nt agencies guidelin es.
62. A site audit shall be p�iformed on those portions of the site where evidence suggests the past 1 oca ti en of undergr-ound storage tanks.. If evi de nee a f soil contamination or the presence of an underground_ storage tank is revealed, excayat ion sha 11 be conducted to remove underground storage tanks and rernove or rernediate contaminate'd soil. These pr,ocedures should be performed b)'a qualified geologist to applicable government agencies· • standards and guidelines.
63. Prior tQ�oving machinery onto the subject property in preparation for grading the applicant shall submit for review�nd approval_a proposed route. . .
' .
64. All gradjng shall be ci9ne in accordance with Article I of Chapter 13, Burbank Municipal Code .. _. A grading permit shall be required. All grading shall be within the project boundary unless otherrtise approved. The grading plans .submitteo with the grading pennit application shall ·indicate all details related tb grading and drainage facilities.
65. Grading shall be acc?mp1ished in accordance with the recommendations o.f a registered �oils englneer or engineering geologist. An approved soils and geology repor;t is to be filed With the City. • •
66. All graded pads sha11 -be such that the surface drainage from each pad wil 1 drain directly to a stonn drain through an approved easement.
67. The applicants �ha 11 '�ubmit an erosion control pl an for review and approva 1.
This plan shall �ddress at a �inimum the following issues:
a. Slopes �hall be protected as soon as possible after completion of grading and before the start of the rainy season. If the s 1 opes cannot be pl anted in time to estab1 i sh before the rainy season, temporary slope protection shall be constructed. The use of temporary s1ope protection shall not relieve the applicant of the requirements for planting and i rr i g at i on .
b. If construction is to be undertaken between October 15 - April 15, th� applicant may be required to· construct and maintain temporary drainage structures and devices.
85 4854
)
c. Wind erosion and dust control shall be provided on all graded, unlandscaped areas. Protection shall meet the requirements of U.S. Conservation Service manuals on_erqsion control. Erosion control and protection structures (i.e., silt basins} shall be provided where necessary at the sole and absolute determination of the Public Works Director to protect improvements and buildings located within and without the boundaries of the project. Sediment basin drains 'Shall be connected to storm drains. d. Erosion control and protection structure design shall be to the satisfaction of the Department of Public Works. Los Angeles County Flood Control District design criteria shall be used in al.1 design. e. A 11 temporary terraces in cut and fills, a 11 browd itches and other -------drain_a_g_Ld_evices shall be surfaced with a non� erodable material .. sloped
and designed in a manner satisfactory to tne PutrhL
c-Works-----l}e-p-artme-nt-.----
Design crit�ria, a� specifi�d in Article I, Chapter 13, of the Burbank Municipal Code, shall be used.
68. It shall be the applicant's responsibility to prevent any erosion that may occur from entering into the existing storm drain system, qr onto adjacent property or any existing street in or around the subject property. The applicant shall deposit with the Public Works,Oirector.prior toor simultaneously with the issuance by the City of a gradir,g permit, il su111, in cash or by certified check, in the amount of ssq,000.00, �hich the �ublic Works Di rector shall hold· and use to hancile any eras ion of m?-teri a ls f ram the subject property in the event the applicantdoes not take corrective action_as stipulated by the Director. The City shall be under no obligation ·to pay or earn in�erest on
_
said deposit. The City may u,se said deposit� or
any portion thereof, to compeµsate· it for any expens� incurred to clean u� any effects of erosion experienced during grading and construction of 'the subject property._ The Developer, on demand from the Public Works Directof, sha 11 promptly restore such deposit to the full amount required by this condition of approval. The City shall return said deposit to the appl i'cant upon completion of performance of all of its obligations under the • - improvements agreement referred, herein below, to the, satisfaction of the Public Works Director� The City shall be under.no obligation to.pay 6f earn interest on the deposit, but if interest is paid thereon, ·such interest sha 11 become· part of the deposit. The Devel aper shan have in. pl ace an erosion control plan, approved by the Pu.b1ic Works ·oirector, prior to October 1 of e�ch ·•year, otherwise no con�t.ruction �ha 11 be· per,ni tted during the peri ad between October 15 and Apri 1 15. • •
69. Storm drains shall be designed and constructed in accordance with the requirements of the Public Works Department and Los Angeles County. 86 4855
70. A drainage plan shall be submitted. All drainage is to be directed into an underground system to an existing underground system. A per�it from the County of Los Angeles will be required. No water is to drain to adjoining property nor across the sidewalk.
71. Applicant shall install the following storm drain system improvements subject to final engineering:
On-Site
- San Fernando Boulevard would require five new inlets and connecting 18- and 24-inch pipes.
- Cypress Avenue would require eight new inlets.and 18-inch connecting pipe.
San Jose Avenue would requir� two new inlets and 18-inch connecting pipe.
Off-Site
- San Fernando Boulevard would require two new inlets and 18-inch connecting pipe.
- Third Street would require fourteen new inlets and connecting 18- and 24-inch pipe to collect uphill stonn runoff and prevent it from running through the project site.
- Cypress Avenue would require rep 1 a cement of existing storm drains with larger 30 and 36 inch pipe to convey increased runoff from Third Street and the more impervious surfaces of the project. The increase in pipe . size would also require a larger casing under the Golden State Freeway. - First Street would require installation of a new drainage system as the street would be relocated by the project.
72. Permanent storm drain easements shal 1 be provided to the City of Burbank or Los Angeles County for storm drains located in private streets.
73. If the development is developed in phases, it will be necessary for the developer to construct an interi� drainage system. Any interim drainage system shall be totally self-sufficient as if no further development were to occur including separate hydrologic and hydraulic analysis.
74. Applicant shall clean storm drain inlets along roads, driveways, and parking facilities at least once a year in order to remain effective.
75. Applicant shal 1 i nsta 11 sanitary sewer improvements as required by· the Public Works Department.
87 4856
76. A trash recycling plan that minimizes the hauling of solid waste sha11 be submitted for approval.
77. All utilities necessary to serve the improvements to be constructed within the boundaries of the development (including electric, telephone, T.V. cable and necessary services) shall be undergrou�d.
78. Prior to final acceptance, the deve1oper shall file a set of «as-built" drawings for the development. This includes, but is not limited to, the grading plan, street improvements, and all other public improvements.
FIRE DEPARTMENT
The following mitigation measures shall be implementea t11-th-e-s-a-tts-f-action-o-f--- the Fire Chief:
79. The design of projects and size of the structures must assure that it is within applicable state and local code provisions that require substantial proprietary devices and operations, such as:
a. Automatic sprinkler system with on-site water supply. b. S�oke detection system.
c. Alarm and communication system.
d. Central control system.
e. Smoke control system.
f. Elevator control system.
g. Standby power, light and emergency systems.
h. Emergency evacuation plans, drills, and training.
i. Standpipe systems.
80. All surface access roads and fire hydrants shall be installed and made serviceable prior to and during·the time of combustible construction. 88 4857
)
81. Buildings with setbacks in excess of 150 feet shall provide emergency access in accordance with City of Burbank Fire Dep�rtment requirements.
Access roads may serve as driveways for the occupants" of the building, or may be provided solely for Fire Department access, but. in any case they shall meet the following criteria:
a. Roads shall be of hard surfaced material capable of supporting a weight of 25 tons at all times. b. The minimum unobstructed width shall be not less than 20 feet wide. c. All buildings, parts of buildings, or other obstructions (including trees or wires) over access roads, shall have not less than 13 feet 6 inches vertical clearance from the finished driveway surface. d. All dead .end access roads in excess of 150 feet in length shall be provided with approved provisions for turning around of fire apparatus.
82. At least two means of access for fire apparatus shall be provided for each mid-rise or high-rise building.
; 83. Mid-rise buildings (55 feet to 75 feet) will require the following:
a. Fire Alarm systems
b. • Automatic fire detection system.
·c.. Fire Department communication- system.
d. Smoke control.
e. Elevator special requirements.
f. Standby power.
g. Emergency electrical systems.
h. Automatic sprinkler systems.
i. Wet standpipe systems.
89 4858
84. High-rise buildings (more than 75 feet in height) will be subject to al 1 the same requirements for mid-rise plus additional:
a. On-site water supply for fire protection systems.
b. Emergency he 1 i copter landing • faci l i.ty.
c. On-site fire department equipment.
d. Fire control room.
e. Emergency pre-fire plan.
----. 8-5-;;-T-h-e-al:)pl-i-G-a-n-W-ha]J_p_r_o_v_id_e_fj rs t-aid and an ci 11 a ry t re a tmen t i n s id e the mall for visitor and project employee use.
P08904CON
90 4859
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NOTE: Drawings above are sehematic only and are presented for the visual appearance of the barricades. Cotot schemes A. 8 and C may be appfled to any of these barricades.
Leneri09 on the barricades shall be limited to the ·unr1ers· ·series and shaU be white or liQht oolo<s on dark backgrounds and limited to the siQn areas noted on the barricades.
Contractors shan be responsible lor the engineering al'\d ·strvaural reQuirements of an ponions of barricades.
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91 4860
ST ATE OF CALIFORNIA
COUNTY OF LOS ANGELES
CITY OF BURBANK
)
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ss:
(. )
I, Merle L. Woodburn, City Clerk of the City of Ourbank, do hereby certify that the foregoing Ordinan�e No. 3169 was duly and regularly passed and adopted .
. by the Council of the C.
ity of • '
Burbank at its regular meeting held on the 19th day of
_____ ....... Se"'"'t'pt.,...,erobe ............ ,,___,r __ , 19_8.9_, by the f cllow1:-ng vote:
AYES: COuncilnerrbers Flavin, Hastings, HCMa.rd, Murphy and BcMne.
NOES: Cbuncil.nanbers None.
ABSENT: Cbuncilrre:nbers None.
I further certify that said Synopsis was published as
required by law in the Burbank Leader as a newsp�per of general circulition in the City of Burbank,· California, ·on the ---- 27th day
of ____ Se_g=�:c,::..:..=r ___ , 19_89 __
sMerle L. Wcx:xfuum
Herl:c ·L. WQod\Jurn, City Clerk
92 4861
EXHIBIT B
OPERATING AGREEMENT
93 4862
1 OPERATING AGREEMENT
EXHIBIT B TO 2026 SUBLEASE AND MASTER LEASE MODIFICATION This Theater Operating Agreement (“Agreement”), is made and entered into as of this _____ day of __________ , 2026 (“Effective Date”) by and between the CITY OF BURBANK, a municipal corporation and charter city, (“City”), and The Colony Theatre Company, a California non-profit public benefit corporation, (“Colony”) (collectively, the “Parties”), on the following terms and conditions:
RECITALS
A. City is the “Tenant” under that certain Lease dated April 7, 1992 (the “Master Lease”), with Onni Burbank Town Center LLC, (“Onni”) a Delaware Limited Liability Company, as “Landlord,” (“Town Center”) successor in interest to Burbank Mall Associates, LLC, a Delaware Limited Liability Company formerly known as C.T. Operating Partnership, L.P., a California limited partnership formerly known as the Alexander Haagen Properties Operating Partnership L.P. successor in interest to The Haagen-Burbank Partnership, a California general Partnership for certain real property located in the City of Burbank and more fully described as the “Premises” (the “Premises”) in the Master Lease.
B. Pursuant to Section 7.01 of the Master Lease, City is granted the right to use the Premises for the operation of a cultural facility of the City of Burbank which provides educational, cultural, social and recreational activities to the general public. The City has subleased the Premises as a museum space and to the Colony since 2000 to be run as a community theater space.
C. Following a Request for Proposal process, in October 2023 the City Council determined that it is in the City’s best interest to again sublease the Premises to Colony, who have continued to operate a performing arts facility, producing theater, and maintaining a community performance space while the City and Colony negotiate a new Sublease and Agreement for the Premises.
D. Concurrently herewith and as a condition precedent thereto, Town Center, City and Colony have entered into that certain 2026 Sublease and Master Lease Modification, to which this Operating Agreement is attached as Exhibit “B”.
NOW THEREFORE, in consideration of the mutual covenants and provisions contained herein, each of the Parties hereto intending to be legally bound hereby agrees as follows:
1. Colony Purpose and Programming. The City hereby engages the Colony, and the Colony hereby agrees, to manage and operate the Premises, as a professional playhouse for the purpose of (a) providing legitimate theatrical productions by the Colony for public enjoyment; and (b) under the auspices of the Park Recreation, and Community Services Department, providing support for educational, charitable, and cultural community activities as required pursuant to the terms hereof. Colony’s programming may include, but will not necessarily be limited to, live theater productions, cabaret, readings, workshops, seminars, children’s theater, benefits, classes, and lectures, and will entail extensive use of the auditorium and multi-purpose room.
EXHIBIT B
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2 2. Effective Date. This Operating Agreement is effective on the Effective Date of the 2026 Sublease and Master Lease Modification.
a. Term. The Term of this Operating Agreement shall commence on the Effective Date and shall expire on the fifth (5th) anniversary of the Effective Date, subject to early termination upon breach of the terms of this Operating Agreement or renewal as herein provided:
i. Appointment by court order of a receiver, liquidator or trustee for the Colony; or the filing of a petition to liquidate or reorganize the Colony by a third party under any bankruptcy, reorganization, or insolvency law, which order or petition is not vacated or dismissed within ninety (90) days; or the filing by the Colony by petition under any bankruptcy, reorganization or insolvency law; or an assignment by the Colony for the benefit of creditors; or by the adjudication of the Colony as bankrupt, or as an insolvent company.
b. Extension of Term. Colony shall have the right to extend the Term of the Sublease and Operating Agreement for two (2) separate and successive periods of five (5) years and the third and final Term extension up to the Master Lease termination on November 14, 2044. Each extension of the Term of this Agreement shall be made by Colony giving City written notice of such extension at least nine (9) months prior to the date of this Operating Agreement would otherwise have expired, and in the event of an extension, the Term shall continue for such extension period, subject, however, to earlier termination as hereinafter set forth.
c. Notice of Director’s Determination. The Parks and Recreation Director (“Director”) will give written notice to Colony within thirty (30) calendar days after receipt of Colony’s request for extension whether or not, in the Director’s sole and reasonable discretion, Colony is in substantial and material compliance with this Operating Agreement and the Goals and Objectives (“Goals”) stated for the prior period. If the Director reasonably determines Colony is in substantial and material compliance, the extension will be granted. For purpose of this Operating Agreement, substantial and material compliance shall be deemed achieved if Colony demonstrates good-faith efforts to meet at least eighty percent (80%) of the outlined Goals for respective years within the prior term. Such Goals shall be subject to annual review and revision, as provided in this Operating Agreement as mutually agreed upon by Director and Colony.
Notwithstanding the foregoing, Colony shall not have the right to request an extension of the Term if, at the time Colony requests the extension, Colony (a) has created a material uncured Event of Default under the provisions of the 2026 Sublease and Master Lease Modification, The Master Lease, this Operating Agreement, (b) has failed to exercise its option by giving the required notice, or (c) is not then operating the Premises as a live performance theater. If the Director determines that Colony is not in substantial compliance with the Goals and Colony disagrees, Colony shall have the right, within three (3) calendar days of receipt of the Director’s determination, to make a written request, for a meeting with the Director. The meeting will be held within twenty-one (21) calendar days of the Director’s receipt of the request. During this meeting, Colony and Director will review the Director’s determination, and attempt to reach a compromise, including, but not limited to, allowing Colony a commercially 95 4864
3 reasonable period to cure any deficiencies. Following such meeting, the Director may issue a new determination or establish conditions upon which an extension may be granted. The Director’s determination will be final.
3. Management, Use and Operation.
a. Permitted Uses. Permitted Use (“Permitted Use”) are activities or functions that are allowed on Premises based on this Operating Agreement. Colony may use the Premises as a community art and/or performance center for the purpose of providing a venue for community groups and individuals to showcase educational, cultural, social or recreational activities, as limited pursuant to the terms hereof. Permitted Use may include, but will not necessarily be limited to, live theatre productions including joint ventures between the Colony and third-party theater groups, plays, musicals, dance recitals, cabaret, readings, workshops, private events, seminars, exhibits, children’s theater, education and training events, benefits, classes and lectures, events that serve local community or celebrate cultural diversity, and will entail extensive use of the auditorium and multi-purpose room. Furthermore, Colony’s use shall be consistent with the use of the Premises by the “Tenant” in accordance with the Master Lease and 2026 Sublease and Master Lease Modification.
b. Artistic Control. The Colony shall have the right to determine the content and quality of its own programming and scheduled third-party rental programming, provided that such programming is consistent with any applicable conditions or restrictions contained in the 2026 Sublease and Master Lease Modification and this Operating Agreement.
c. Identity. The Premises itself will be identified by the City as the “Burbank Center Stage” and will be described at the Premises as “Burbank Center Stage, Home of the Colony Theatre Company.” Colony shall incorporate and maintain the “Burbank Center Stage” branding consistently across all digital and print platforms, including but not limited to the following:
1. Website and Digital Presence: Display “Burbank Center Stage, Home of The Colony Theatre Company” prominently on the website landing page and consistently throughout the website.
2. Expand the website’s “About” section to include reference to the historical relationship between the City of Burbank, the Colony Theatre Company, and Burbank Center Stage.
3. Include reference to “The Colony Theatre at Burbank Center Stage” on the website footer and contact information page.
4. List the City of Burbank as the first-line partner under the “Our Partners” section of the website.
5. Add the City’s name and logo on the ticket sales page. 96 4865
4 6. “Burbank Center Stage” be displayed on all marketing materials along with Colony’s logo.
7. Include “Burbank Center Stage” in all marketing, promotional, and printed materials, including but not limited to playbills, programs, and advertisements.
d. Marquee. Subject to provisions of the Master Lease with the consent of the Landlord and compliance with provisions of the Reciprocal Easement Agreement (as defined in the Sublease) (“REA”), and the Burbank Municipal Code, the Colony will have control of the look and content of the outdoor marquee display. e. Tax Exempt Status. Notwithstanding any other provisions of this Operating Agreement, the Colony shall not engage in any activity which will impair or jeopardize its tax-exempt or non-profit status under California or federal law. Colony shall notify the City immediately if it fails to maintain its tax-exempt or non-profit status under either California or federal law.
f. Customization / Alterations. Colony may display its production photos, awards, and other decorative items that illustrate its history in the lobby of the Premises. Colony may also have rotating art, craft, and photography exhibits in suitable public places in the Premises. Additionally, Colony shall have the exclusive right to solicit donations, as permitted by law, for commemorative or identifying markers to be affixed to various walls, floors, and fixtures of the facility. Such commemorative or identifying markers may be affixed to seats, doors, rooms, the stage, etc., in recognition of these donations provided, however, that this shall in no event confer any possessory rights, removal rights with respect to such items or the Premises. Further, Colony may modify the existing stage by adding or removing any parts thereof, provided only that the stage is restored by Colony for use by the next group or individual utilizing same. Additionally, Colony may, subject to the terms and conditions of the 2026 Sublease and Master Lease Modification and this Operating Agreement, at its sole discretion, supplement the existing stage lighting system by the addition of gridwork, pipes, etc. to support stage lighting, instruments in accordance with applicable Building Codes and the Master Lease.
g. Colony Representation. The Colony represents that:
i. It is a California non-profit public benefit corporation, duly formed and operating under the provisions of California law, with federal tax exemption under Internal Revenue Code Section 501©(3) and California franchise tax exemption under Revenue and Taxation Code Section 23701(d), and that it shall maintain such status at all times during the term of this Operating Agreement.
ii. The persons executing this Operating Agreement on behalf of the Colony are authorized to do so.
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5 iii. To the best of its knowledge, it is not in violation of any order or decree of any court of competent jurisdiction or any governmental agency having jurisdiction, and there are no pending or threatened judicial or administrative proceedings which, if determined adversely to the interests of the Colony, could materially affect its ability to perform its obligations under this Operating Agreement or the 2026 Sublease and Master Lease Modification. h. Liaison. The Colony shall appoint an onsite, full-time person from among its staff regularly working at the Premises, to act as a liaison with the City for purposes of this Operating Agreement.
i. Designate one (1) individual who will be responsible for ensuring Operator remains in compliance with the 2026 Sublease and Master Lease Modification.
This person will serve as Operator’s primary liaison with the City concerning all administrative issues, such as preparation and submission of required data and reports, and will attend all meetings with the City, as needed. ii. Establish and maintain personnel policies in compliance with all applicable laws.
i. Parking. Subject to Landlord’s rules and regulations in the Town Center, Colony’s guests and invitees shall have the nonexclusive right to park in any of the public/customer parking areas in the Town Center. At no point during the Term of this Operating Agreement, may Colony provide valet parking in the Town Center parking lot.
4. Basic Service Obligations.
a. Customer Service. Colony shall conduct customer service satisfaction surveys to evaluate theater operations and performances no more frequently than quarterly and no less frequently than annually. The survey shall evaluate theater operations and solicit recommendations concerning said operations, including, without limitation, recommendations relative to quality, quantity and selection of service provided by Colony. Within thirty (30) days, Colony shall submit to City, an executive summary of the results of each survey conducted, and provide any recommendations made by the survey respondents. Customer service surveys shall be visible and readily available to all visitors, audience, and rental clients (as applicable). Colony shall also:
i. Establish pricing levels for all proposed programming including in-house events and third-party rentals (as applicable).
ii. Establish, maintain, and pay for the telephone and website, with up-to-date information about programs and events, contact information, access instructions, etc.
iii. Maintain consistent online commerce and office hours as necessary to accommodate visitors, phone calls, and meetings that may arise. 98 4867
6 iv. Operate a souvenir store and/or refreshment services for visitors subject to compliance with all applicable laws, regulations, and policies. No hot food may be prepared or served at the Premises with the exception of external catering services. Any external catering service will maintain all applicable state and local permits and licenses. Colony may, at its own expense, apply for and obtain applicable state and local permits to serve alcoholic beverages to visitors subject to compliance with all applicable laws, regulations and policies. Should alcohol be served, such service will be included in Colony’s insurance obligations as outlined in the 2026 Sublease and Master Lease Modification – Section 8 - Insurance and Indemnity.
5. Operation Guidelines. Colony will develop a set of guidelines (“Operational Guidelines”) for the Premises. The Operational Guidelines will include hours of operation and other policies relating to the operation of the Premises. Colony must comply with Operational Guidelines at all times. At a minimum, Colony will designate telephone hours and return voicemail calls within twenty-four (24) hours. Colony will schedule tours when requested with advance notice. The Premises must be operating during reasonable periods of time throughout the year and may only be closed on observed holidays when City offices are closed.
6. Management and Operations. Colony is a non-profit, public benefit Corporation governed by a board of directors. Key Leadership and Onsite Management for The Colony Theatre Company would include a Producing Artistic Director, Operations Manager, and Technical Manager or equivalent positions that may be titled differently.
a. Premises Personnel. Colony will, in its sole discretion, hire Premises staff, including all on-site management personnel, to oversee all rentals, programming and production, janitorial staff, administrative staff and others deemed by Colony to be appropriate for the efficient operation of the Premises. Such personnel may be hired as qualified independent contractors rather than employees to perform specified services. If Colony contracts with an independent contractor to provide such services, Colony shall ensure that the independent contractor complies with all provisions contained in this Operating Agreement relating to the management, use and operation of the Premises, as well as comply with all insurance provisions contained in the 2026 Sublease and Master Lease Modification. Upon request by the City, Colony shall submit a copy of its most recent agreement with any such independent contractor to the Director. At a minimum, the agreement shall require the independent contractor to comply with all terms and provisions contained in this Operating Agreement. Colony’s failure to ensure compliance by its independent contractor in accordance with this section, shall constitute a breach of this Operating Agreement. No provision of this Operating Agreement shall be construed to create an employment relationship between Colony’s employees, contractors, volunteers, board members, or other, and the City. b. Live Scan Fingerprinting and Background Check by the US Department of Justice (DOJ). All employees, independent contractors, and volunteers of the Colony interacting with minors or who have supervisory or disciplinary authority over minors must complete and pass the City of Burbank Live Scan Fingerprinting and Background Check (“Live Scan”) clearance by DOJ prior to performing work or other services for the Colony in such a capacity. Upon request by City, Colony shall submit a copy of its 99 4868
7 most recent list of employees, independent contractors, and volunteers interacting with minors, with verification of Live Scan to the Director. Colony will be responsible for paying all applicable fees related to Live Scan. Colony’s failure to ensure compliance of Live Scan in accordance with this section shall constitute a breach of this Operating Agreement.
c. Management and Operations Plan; Proposed Annual Budget. Colony must submit to the City for review, on or before March 1 of each year, a “Management and Operations Plan” that includes a detailed proposal for providing Management and Operations services at the Premises. In addition, Colony must submit a proposed operating budget (“Proposed Operating Budget”) to the City for the upcoming calendar year including draft calendar of events and/or programming. The Proposed Annual Budget must specify the amount of working capital required to continue operations of the Premises for the upcoming fiscal year (defined as July 1 through June 30) in light of all major policy decisions, specify all anticipated expenses required to operate the Premises and all projected expenses for long term improvements at the Premises. Director will have the right to comment upon and make suggestions with respect to the Management and Operations Plan and Proposed Annual Budget, provided, however, while Colony must consider all of Director’s suggestions and comments, Colony will not be obligated to implement the same. Such annual review will take place at a meeting between the Colony, the Director and such other persons, as parties consider necessary. d. Safety and Processing Claims. Colony must maintain safety standards that are consistent with acceptable industry practices for similar facilities. Colony will investigate and process all claims including those for property damage or personal injury. Colony will cooperate fully with the City in investigation of any property damage, accidental injury or death occurring on the Premises, including a prompt report to the Director of any injury within forty-eight (48) hours of its occurrence. e. License, Permits, Business Taxes and Accreditations. Colony will apply and use its commercially responsible efforts to obtain and maintain all licenses, permits, business taxes and accreditations required in connection with the management, operations and use of the Premises, the cost of which will be an operating expense incurred by Colony. f. Colony agrees not to commit or suffer to be committed any waste or nuisance in, or about the Premises (including allowing any offensive odors to carry outside the Premises). Colony will comply in all material respects with all federal, state and local laws, ordinances and regulations which pertain or apply to the use of the Premises now or subsequently imposed.
7. Maintenance and Repair; Alterations.
a. Colony’s Maintenance and Repair Obligations.
i. Colony hereby acknowledges and represents that Colony has inspected the Premises and agrees to the Premises in its present condition. In that condition, Colony agrees, at Colony’s sole cost and expense without right of 100
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8 reimbursement from the City, but subject to the provisions of this section, to make such repairs and improvements to the interior, nonstructural portions of the Premises as may be necessary for Colony’s use, and to maintain the Premises in good and sanitary order and repair; provided; however, that any such repairs, improvements or maintenance will be subject to the terms and conditions imposed upon “Tenant” in the Master Lease unless otherwise provided herein. Colony will be responsible for non-capital and capital repair and replacement, and general cleaning and maintenance of the interior of the Premises, as well as all repair obligations of “Tenant” under the Master Lease unless otherwise provided herein. Colony shall also be responsible for the maintenance and repairs at the Premises as outlined in Exhibit “A” (Maintenance Responsibility Matrix).
ii. During Colony’s occupancy of the Premises under this Operating Agreement, Colony will be responsible for repair, replacement and maintenance of all improvements made in and to the Premises by Colony (whether of a capital or non-capital nature). Colony will be responsible to complete certain improvements to the Premises that will include, but not limited to, restoration of exterior facility signage, restoration of exterior entrance tiles, seat refurbishment/replacement, carpeting throughout the facility, upgrade scaffold, upgrade rehearsal room with Marley flooring, update lighting fixtures in lobby and art gallery, electrical wiring for stage lights and sound and telecommunications, all control booth and dressing room amenities, and the labor to install same in the Premises. The Colony will also furnish the various offices and provide all office equipment, including computers and telephones needed for its operation. Colony will obtain City’s approval prior to completing any major repair, replacement, or maintenance to the Premises exceeding $5,000. City has absolute and sole discretion to approve any repairs. In the event any repairs, improvements, or maintenance requires approval by the Town Center under the Master Lease, Colony will first obtain City’s approval of such repairs, improvements, or maintenance to the Premises. Colony will provide timely notice to City and/or Town Center, as applicable, of any repairs that are the responsibility of City or Town Center of which Colony is aware of.
Upon expiration or termination of this Operating Agreement, Colony agrees to surrender the Premises in reasonably good and sanitary order, condition, and repair in the same condition as when leased to the Colony; permitted or approved alterations, improvements, additions, and reasonable wear and tear excepted.
iii. Janitorial Service. Colony will be responsible for complete janitorial services and the furnishing of janitorial supplies, lamps, and tubes for the proper maintenance of its interior facilities within the Premises. b. City’s Maintenance and Repair Obligations.
i. The maintenance, repair, and replacement obligations of each party are set forth in Paragraph 6 of the 2026 Sublease and Master Lease Modification as to each applicable party.
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9 ii. City shall comply with its obligations of maintenance and repair relative to the Premises as stated in the 2026 Sublease and Master Lease Modification including, without limitation, Section 6 (Maintenance. Maintenance Responsibility Matrix). In addition, the City shall be responsible for any and all improvements and maintenance necessary for compliance with applicable laws (including, without limitation, the Americans with Disabilities Act (ADA), and for maintenance related to the HVAC and heating equipment, for the pipes and conduits serving the Premises (including those contained between the exterior and interior walls), and for maintenance related to the elevator. City is responsible for repairs as outlined in Exhibit “A” (Maintenance Responsibility Matrix).
c. Town Center’s Maintenance and Repair Obligations.
i. The maintenance, repair, and replacement obligations of each party are set forth in Paragraph 6 of the 2026 Sublease and Master Lease Modification as to each applicable party.
ii. Town Center shall comply with its obligations of maintenance and repair relative to the Premises as stated in the Master Lease including, without limitation, Section 13.01 (Landlord’s Duty), provided however, that Town Center shall have no obligation or responsibility to repair, maintain or replace any improvements or work of construction installed or performed by the City or the Colony in or to the Premises.
d. Capital Improvements. Except as otherwise provided herein or as stated in Exhibit “B” (Goals and Objectives), neither Colony nor City will be obligated to construct any capital improvements to the Premises unless required by the Master Lease, nor will Colony or City be obligated to perform any repairs or maintenance to the roof (including the roof membrane), building systems, or structural components of the Premises (including the foundation), or replace any portion of the Premises, unless the cause for such repairs is due to the negligence or willful misconduct of the Colony, its agents or employees caused by alterations, additions or improvements made by Colony or anyone claiming under Colony, in which case Colony is required to make such repairs.
e. Insurance Rates. Colony will not do or permit activities on or in the Premises, nor bring or keep anything in the Premises, that will in any way invalidate, increase the existing premium rate of, or otherwise affect, any insurance upon the Premises, and if such activities should result in any increase in the existing premium rate of insurance, then Colony shall be liable for such additional cost.
f. Alterations.
i. General. Except as otherwise provided in this paragraph, Colony will not make any alterations, additions, or improvements to the Premises, without City’s prior written approval. Furthermore, if such alterations, additions, or 102
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10 improvements require approval by the Town Center under the Master Lease, Colony will obtain the Town Center’s approval prior to making such alterations, additions, or improvements. If Colony desires to make any such alterations, additions, or improvements, Colony will provide to City at least ten (10) calendar days’ written notice prior to commencement of construction. City will have the right to approve the contractor used by Colony for any work in the Premises, and to post notices of non-responsibility in connection with work being performed by Colony in the Premises. Colony agrees to indemnify, defend, and hold harmless the City, Town Center, and the Premises free and harmless from any and all liabilities, claims, liens, encumbrances and judgments created or suffered in connection with labor, services or materials furnished in connection with any alterations or additions which Colony causes to be made to the Premises. Colony will not permit any mechanic’s lien or stop order or other encumbrance as outlined in Section 2.04 of the Master Lease to be recorded against the Premises. If any mechanic’s lien or stop order or other encumbrance is recorded against the Premises, Colony will either cause the same to be discharged of record within ten (10) days after the date of recordation, or if Colony, in its discretion determines to contest the lien, Colony must furnish such security and bond as may be reasonably necessary to prevent any foreclosure proceedings against the Premises during the pendency of such contest. Work by Colony shall comply with all laws then applicable to the Premises. The foregoing will not be deemed a waiver of the police powers of the City to review and approve all applications for building permits to confirm that the proposed improvements comply with applicable building codes.
ii. Signs. All signage will be subject to the terms and conditions of Exhibit “F” (Sign Criteria, of the 2026 Sublease and Master Lease Modification). Colony will pay for and perform repair and/or improvements of all exterior signs and other advertising features installed at the Premises as of the Effective Date, including but not limited to the marquee sign. Such improvements will be subject to approval by the Town Center. All signs must be maintained in a fully operational condition at all times, free from any visible damage, deterioration, or other disrepair. Signs should present a clean, professional appearance that is consistent with its original design and construction, ensuring all elements are intact, functional and aesthetically consistent with new or well-maintained signage. If Colony chooses to remove signs or advertisements with new signage/advertisements, Colony agrees to restore the exterior of the Premises to a condition reasonably satisfactory to the City and the Town Center following such removal. Colony may also pay for and perform installation of new exterior sign that advertises Colony’s use of Premises, subject to approval by the City and the Town Center. At Colony’s sole cost and within thirty (30) days of the expiration or other termination of this Operating Agreement, Colony must remove all exterior signs and other advertising features installed by Colony and restore the Premises to a condition reasonably satisfactory to the City and the Town Center.
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11 g. Ownership of Improvements. All improvements affixed to the Premises, unless determined otherwise by the City, will be owned by City upon expiration of the Term or sooner termination of this Operating Agreement. Colony will not, however, remove any other improvements from the Premises nor waste, destroy, or modify any improvements to the Premises, except as permitted by this Operating Agreement. All improvements on the Premises at the expiration of the 2026 Sublease and Master Lease Modification and this Operating Agreement will without compensation to Colony, then become City property free and clear of all claims to or against them by Colony or any third person, and Colony will defend and indemnify City against all liability and loss arising from such claims or from City’s exercise of rights conferred by this paragraph.
8. Utilities and Services.
a. Utilities. Colony will pay all utility charges for the Premises. If City or Town Center incurs and costs for utilities, including but not limited to water, electric and/or gas, then Colony will reimburse the City or Town Center within five (5) days after being billed thereof. Upon request of City, Colony will provide to City proof of payment of any or all utilities in a manner acceptable to City in its reasonable discretion. Colony shall indemnify, defend, and hold harmless and protect Tenant from and against any and all claims, liabilities, damages, losses, costs and expenses (including reasonable attorney’s fees) in connection therewith. City is not and shall not be required to furnish to Colony and utility, facility equipment, labor, material or service of any kind whatsoever. City shall not be liable in damages or otherwise for any failure interruption or unavailability of any utility service being furnished to Premises. No such failure or interruption shall entitle Colony to terminate the 2026 Sublease and Master Lease Modification or this Operating Agreement or receive any abatement of rent. b. Regulations. Colony must comply with all government laws or regulations regarding the use or reduction of use of utilities on the Premises. Interruption of services or utilities will not be deemed an eviction or disturbance of Colony's use and possession of the Premises, render City or Town Center liable to Colony for damages, or relieve Colony from performance of Colony's obligations under this Operating Agreement. c. Security. City will not provide security services or adopt security measures regarding the Premises unless otherwise specified in Exhibit “A” (Maintenance Responsibility Matrix).
9. Taxes and Assessments.
a. Real Estate and other Ad Valorem Taxes and Assessments. To the extent Colony, or its subtenants or assigns, ceases to qualify as a tax-exempt entity with regard to property taxes or otherwise fails to maintain its tax-exempt status with regard to property taxes, Colony shall be responsible for and shall pay, during each year of the Term, all real estate and other ad valorem taxes and assessments of every kind (including general and special assessments, foreseen and unforeseen) with respect to all land, buildings and improvements on the Premises (collectively, “Taxes”) that may be charged directly by the Town Center against Colony or otherwise charged against the City pursuant to 104
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12 the Master Lease. For purposes of this paragraph, the provisions in the Master Lease shall govern Colony’s rights and obligations with regard to such Taxes. This paragraph shall not apply during all times that Colony is or remains a tax-exempt entity. b. Other Taxes. If applicable, Colony will pay all taxes, license fees or other governmental charges assessed or imposed on the Personal Property owned by Colony located on the Premises or upon the business operations of Colony conducted on the Premises.
10. Accounting Systems and Audits.
a. Accounting Systems and Business Records. Colony must maintain an accurate accounting of all receipts and disbursement in connection with the Premises. The method of accounting and bank accounts established for the Premises will be separate from the accounting system used by Colony for any other matters. Colony’s accounting system will be in accordance with Generally Accepted Accounting Principles (“GAAP”).
Such methods include the keeping of the following documents. i. Regular books of accounting such as general ledgers. ii. Journals including any supporting and underlying documents such as vouchers, checks, tickets, bank statements, etc.
iii. State and Federal income tax returns, sales tax returns and check and other documents providing payments of sums shown.
iv. California non-profit public benefit corporation filings. v. Internal controls on the receipt and recording of all cash receipts, and all others.
vi. Operational financial accounting controls and procedures as they relate to gross revenues are subject to the approval by the City. For the purpose of this agreement, “Gross Revenues” means all money received as a result of the operations of Colony and the sale of goods and services at Colony, determined in accordance with generally accepted accounting principles consistently applied. Gross Revenues shall not include the following: sales tax, excise taxes.
At a minimum, the internal control of cash must include an electronic cash register, Point of Sale (“POS”) with an auditable daily tape, daily reconciliation of the cash deposit and sales, issuance of physical dated receipt to every patron, a daily activity report listing number of patrons, total collection, merchandise sold (if applicable) and a monthly summary report. Any other accounting records that City, in its reasonable discretion, deems necessary for proper reporting of receipts.
b. Retention of Financial Records. Colony will maintain, at its principal offices, its financial records pertaining to such books of account, records, cash receipts, and other pertinent data pertaining to the Premises, which must be kept for a period of at least four (4) years after the conclusion of any fiscal year. The receipt by the City of any 105
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13 statement, or any payment of additional rent for any period, will not bind City as to the correctness of the statement or the payment.
c. Audit. City reserves the right during the Term, on an annual basis and within four (4) years after expiration or termination of the 2026 Sublease and Master Lease Modification or this Operating Agreement, to inspect and examine all Colony’s books of account, records, cash receipts, and other pertinent data relevant to operation, maintenance, and management of the Premises at City’s expense except as provided in this section specifically:
i. Copies of annual state and federal income tax returns, and annual and monthly detailed financial statements for a period of four (4) years. ii. The City’s right to audit will extend during the length of this Operating Agreement and for a period of four (4) years, or longer, if required by law, following the date of final payment of monies owed under this Agreement.
Colony agrees to retain all necessary records/documentation for the entire length of the City’s right to audit.
iii. An audit may be accomplished and paid for, in the City’s sole discretion, by either City forces or an outside auditing firm. In addition, City retains the right to perform spot check audits no more than once a year and upon providing notice to Colony at least forty-eight (48) hours in advance, this limitation does not apply to audits.
iv. To the extent legally possible, City will keep information gained from such statements, inspection, or audit confidential (subject to applicable laws, including but not limited, to the California Public Records Act and the Ralph M.
Brown Act), and will only disclose such information for the purpose of administering or otherwise carrying out the purpose of this Operating Agreement.
11. Annual Report to City’s Parks and Recreation Board. On an annual basis, Colony must prepare and present a report to the City’s Parks and Recreation Board (Board), on a date mutually agreed upon by the parties. The report must identify all aspects of the operations as defined herein. Report will include but not limited to revenue, expenses, programming, attendance and maintenance, and all goals accomplished in the past year. The annual report shall be in form and substance reasonably acceptable to the Director.
12. Use by City. Throughout the Term, at least five (5) non-weekend and non-consecutive days each calendar year shall be made available for use of the Premises by the City including City Board, Commission, and Committee meeting, at no cost, or City may authorize a Community Group (as defined below) to use such day(s). A day shall be deemed as eight (8) hours. The exact dates shall be determined by the Colony and Director. Best efforts will be used to achieve maximum scheduling separation. City will provide the Colony with a minimum of thirty (30) days’ advance written notice prior to any scheduled use of the premises by Community Groups. Dates allocated to the City, but not used by them, shall revert to the Colony’s use. 106
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14 13. Use by Community Groups. Community Group is defined as, may include, but is not limited to, neighborhood associations, non-profit organizations, volunteer groups, or other collectives that represent the interests of or provide services to the community. a. Use by Burbank-based Non-Profit Organizations. Colony agrees to provide free and at-cost meeting space in the rehearsal studio to Burbank based non-profits as Colony’s performance schedule allows. Use(s) under this subsection will not be considered use by the City under Paragraph 12 above.
14. Colony Support Services for City and Community Group Use. Upon request, the Colony will provide the following support services for City or City-selected Community Groups when such are utilizing the Premises pursuant to Section 13 (Use by Community Groups) collectively “Support Services.” City or City-selected Community Group shall pay Colony for any and all direct costs related to such support services including:
a. If applicable, maintain consistent online commerce and weekly box office hours of operations to accommodate Facility walk-ups, phone calls, and meetings that may arise.
b. A box office at the Premises during business hours for reservations/advance ticketing services for community group performances to take place at the Premises. c. If applicable, notification on the outdoor marquee at the Premises of current and upcoming events (subject to the Colony’s rights of use relative to such marquee, as set forth in the 2026 Sublease and Master Lease Modification). Colony shall not be obligated to pay for any such notifications, posters or advertising/promotional materials.
d. Use at the Premises of Colony’s lighting, sound, projection, intercom, headsets and audio/video monitoring systems under the supervision of Colony’s staff. e. Use of the theater backstage areas at the Premises for sets, props, and costumes during performance or use periods in the main auditorium. f. Basic consulting services by the Colony’s Technical Director to community groups using the facilities at the Premises.
g. If requested, help and consultation by the Colony’s professional staff of directors, subject to availability.
h. Maintenance, janitorial and lockup services at the Premises.
15. Concession and Ticketing Operations.
a. Concession. When the Premises is being used by City and Community Groups, Colony shall permit the City and Community Groups to sell concessions during their use of the Premises. The City and Community Groups shall not use Colony’s concession 107
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15 equipment or supplies, except for tables, which shall be made available by Colony as part of the rental agreement. All other equipment and supplies required for concession sales, including but not limited to point-of-sale (POS) systems, shall be the sole responsibility of the City or the applicable Community Group. b. Ticketing. When the Premises is used by the City or Community Groups for events requiring ticketing, the respective group shall be solely responsible for establishing and managing its own ticketing, registration, and financial processing systems. The group may use the physical ticketing booth located on the Premises, but shall not utilize Colony’s ticketing platform, software, or financial accounts for any event-related transactions.
16. Additional Groups. The 2026 Sublease and Master Lease Modification permits the Colony to offer the Premises to groups other than the Community Groups discussed in Section 13 of this Operating Agreement, the financial arrangements of which may include, without limitation, that of joint venturing with other persons or entities with respect to specific productions to be staged at the Premises.
17. Use Agreement. With the exception of uses pursuant to Section 3(a), the Colony shall have the right to determine the content and quality of scheduled third-party rental programming. Any rental group, licensed caterers, and third-party contractors utilizing the Premises pursuant to this Operating Agreement shall be required to execute a use agreement (“Use Agreement”) with the Colony, the general form for which shall be approved by the Burbank City Attorney’s Office and Landlord, which shall establish box office and facility hours, and will enumerate specific services to be provided by the third-party and Colony. It shall retain, for the Colony, the right to approve personnel operating the Colony’s equipment and shall require such groups to (a) to exercise safe and reasonable care in their use of the Premises and its fixtures and equipment, (b) to agree to be fully responsible for damage to the Premises and its fixtures caused by such groups of their audiences, ordinary wear and tear excluded, and (c) to furnish proof of insurance (naming the City, Colony, Landlord and Landlord’s Lender and additional insureds) covering any damage to the Premises and fixtures occurring as a result of the group’s use of same, as well as insurance as outlined in Section 8 of the 2026 Sublease and Master Lease Modification.
18. Refusal to Permit Use of Facility. The Colony may refuse to permit the use or continued use of the Premises by any third party that, in the Colony’s reasonable discretion, has not observed its Use Agreements with the Colony or similar agreements with other theaters, or whose performances are functionally incompatible with the orderly use of the Premises, or may cause damage to the Premises and its fixtures and improvements.
19. Default.
a. Default. Any of the following will constitute a default by Colony under this Operating Agreement.
i. Colony’s failure to pay Rent or any other charge under the 2026 Sublease and Master Lease Modification within seven (7) days after it is due. 108
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16 ii. Colony’s failure to observe or perform any of the covenants, conditions or provisions of this Operating Agreement to be observed or performed by Colony, including but not limited to obligations imposed under the Master Lease, 2026 Sublease and Master Lease Modification, and the REA, other than described in subsection 20(a)(i) above where such failure continues for a period of third (30) days after written notice hereof from City to Colony; provided, however, that if the nature of Colony’s default is such that more than thirty (30) days are reasonably required for its cure, then Colony will not be deemed to be in default if Colony commenced such cure within said thirty (30) day period and thereafter diligently prosecutes such cure to completion; or failure to comply with any other term or condition imposed under this Operating Agreement, the Master Lease, or the REA, within thirty (30) days following written notice from City specifying the noncompliance. iii. Colony’s insolvency, business failure or assignment for the benefit of its creditors. Colony’s commencement of proceedings under any provision of any bankruptcy or insolvency law or failure to obtain dismissal of any petition filed against it under such laws within the time required to answer; or the appointment of a receiver for all for any portion of Colony’s properties or financial records.
iv. Colony’s abandonment of the Premises for at least 30 days, with or without notice to the City of such action.
v. Failure to complete and provide documentation of adherence to any of the obligations described herein, including but not limited to Goals and Objectives, Operation Guidelines, Livescan, Management and Operation Plan, proposed Annual Budget, Financial Reporting, and Annual Report to Parks and Recreation Board.
b. Remedies. In the event of a default or breach, City may, with or without further notice or demand, and without limiting City in the exercise of any right or remedy which City may have by reason of such breach:
i. Terminate Colony’s right to possession of the Premises by any lawful means, in which case this Operating Agreement will terminate, and Colony must immediately surrender possession to City. In such event, City will be entitled to recover from Colony:
(1) Unpaid Rent which had been earned at the time of termination; (2) the worth at the time of award of the amount by which the unpaid Rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that the Colony proves could have been reasonably avoided; (3) the worth at the time of award of the amount by which the unpaid rent for the balance of the Term after the time of award exceeds the amount of such rental loss that the Colony proves could be reasonably avoided; (4) any other 109
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17 amount necessary to compensate City for all the detriment proximately caused by the Colony’s failure to perform its obligations under the 2026 Sublease and Mater Lease Modification or this Operating Agreement, which in the ordinary course of things would be likely to result therefrom, including but not limited to the cost of recovering possession of the Premises, expenses of reletting, including necessary renovation and alteration of the Premises, reasonable attorneys’ fees, and that portion of any leasing commission paid by City in connection with this Operating Agreement applicable to the unexpired Term of this Operating Agreement. The worth at the time of award of the amount referred to in provision; and (5) of the immediately preceding sentence will be computed by discounting such amount at the discount rate of the Federal Reserve Bank of the District within which the Premises are located at the time of award plus one percent (1%). Efforts by City to mitigate damages caused by Colony’s breach of this 2026 Sublease and Mater Lease Modification will not waive City’s right to recover damages hereunder. If termination of this 2026 Sublease and Mater Lease Modification is obtained through the provisional remedy of unlawful detainer, City will have the right to recover in such proceeding any unpaid Rent and damages as are recoverable therein, or City may reserve the right to recover all or any part thereof in a separate suit. If a notice and grace period required above, was not previously given, a notice to pay rent or quit, or to perform or quit given to Colony under the unlawful detainer statute will also constitute the notice required above. In such case, the applicable grace period required above, and the unlawful detainer statute will run concurrently, and the failure of Colony to cure the Default within the greater of the two such grace periods will constitute both an unlawful detainer and a breach of this 2026 Sublease and Mater Lease Modification entitling City to the remedies provided for in the 2026 Sublease and Mater Lease Modification and/or by statute. ii. Pursue any other remedy now or hereafter available under the laws or judicial decisions of the state of California. The expiration or termination of this Operating Agreement and/or the termination of Colony’s right to possession will not relieve Colony from liability under any indemnity provisions of this Operating Agreement as to matters occurring or accruing during the Term hereof or by reason of Colony’s occupancy of the Premises. iii. City may make any payment or perform any obligation which Colony has failed to perform, in which case City will be entitled to recover from Colony upon demand all amounts so expended, plus interest from the date of expenditure at the rate of ten (10) percent per annum. Any such payment or performance by City will not waive Colony’s default.
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18 20. General Terms.
a. Titles and Headings; Context. Titles and headings to paragraphs in this Operating Agreement are for the purpose of reference only and shall, in no way limit, define, or otherwise affect the provisions of it.
b. Incorporation by Reference. Every exhibit, schedule, and other appendix attached to this Operating Agreement and referred to herein is hereby incorporated into this Operating Agreement by reference.
c. Non-Assignment. This Operating Agreement, and any rights or obligations hereunder, are personal to the Colony and shall not be assignable by the Colony without the City’s prior written consent.
d. Successors. Notwithstanding any other provisions hereof, all the terms, covenants and conditions of this Operating Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the Parties hereto. e. Third Parties. Nothing contained in this Operating Agreement is intended to confer any benefit or right of any kind on any person who is not a signatory to this Operating Agreement.
f. Notices. Notices between the parties relating to this Operating Agreement will be in writing, including but not limited to, e-mail communications, requests and other communications hereunder shall be effective when received, but if sent by registered or certified mail, postage prepaid, shall be effective from three (3) business days after being deposited in the United States Mail.
g. Authority. Each individual executing this Operating Agreement on behalf of an entity represents and warrants full authority to execute this Operating Agreement on behalf of such entity and the execution of this Operating Agreement, and entry into this transaction of the undersigned has been duly authorized by such entity. h. Governing Law; Partial Invalidity. This Operating Agreement shall be governed by and construed in accordance with the laws in the State of California. i. No Joint Venture. Nothing contained herein, in this Operating Agreement or in any document executed in connection herewith shall be construed as making the Colony, on the one hand, and the City, on the other hand, as joint venturers or partners or agents of each other.
j. Waiver of Claims. Colony hereby irrevocably waives on behalf of itself, its successors and assigns and all persons claiming through it, any claim which Colony may assert against the City for inverse condemnation, relocation payment or compensation for fixtures and equipment and/or any other costs, expenses or claims not specifically listed herein incurred by Colony in connection with any termination, either by operation of law or otherwise of this Operating Agreement. Colony specifically 111
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19 acknowledges that this Operating Agreement may be pleaded as a defense and a bar to any such claim. Colony further specifically acknowledges that in making this waiver, Colony has consulted with its attorney and that this waiver is made freely and with knowledge of the character and extent of the rights thus waived. k. Reciprocal Easement Agreement; Master Lease; Sublease. This Operating Agreement is subject to the terms and conditions of the REA, the 2026 Sublease and Master Lease Modification, and the Master Lease.
l. Laws and Ordinances. Colony and its subcontractors shall obtain any and all permits and licenses that may be required in connection with its operations at the Premises and shall comply with all applicable federal, state, county and local laws and regulations in the exercise of the rights and privileges granted to it by the 2026 Sublease and Master Lease Modification and this Operating Agreement.
m. Attorney’s Fees. In any litigation arising out of this Operating Agreement, the prevailing party will be entitled to recover reasonable attorney’s fees and costs associated therewith.
n. Execution Counterparts. This Operating Agreement may be executed in counterparts and each such duplicate counterpart shall constitute an original, any one of which may be used for any purpose without the production of its duplicate counterpart. Moreover, each counterpart shall be deemed for all purposes to be an original, and all such counterparts together shall constitute one and the same instrument, binding on all Parties hereto.
Transmission by electronic mail, and/or other validated instantaneous electronic transmission to one Party of a true copy of a counterpart duly executed by the other Party shall constitute valid delivery ofsuch counterpart, and shall be valid, binding and effective for all purposes. Notwithstanding the foregoing, the authority under this Section to execute this Sublease with an electronic signature shall be limited to a physical “wet” ink signature placed on a counterpart to this Operating Agreement by a Party and transmitted electronically as described in this Section to the other Party. [Signatures on following page]
112
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20 IN WITNESS WHEREOF, this Agreement has been executed by the parties as of the Effective Date. “CITY” “OPERATOR”
THE COLONY THEATRE COMPANY,
a California nonprofit public benefit
corporation
By:______________________________
Heather Provost
Authorized Signatory
CITY OF BURBANK
By: _______________________________
Marisa Garcia
Parks and Recreation Director
Attest:
_________________________________
Kimberley Clark
City Clerk
Approved as to Form
Office of the City Attorney
By:______________________________
Jill Vander Borght
Chief Assistant City Attorney
Address for Notices:
150 North Third Street
P. O. Box 6459
Burbank, CA 91510-6459
Attn: Director, Parks and Recreation Department
Telephone: 818.238.5300
Fax Number 818.238.5321
Email: [email protected]
113
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21 EXHIBIT A
MAINTENANCE RESPONSIBILITY MATRIX
114
4883
FACILITY / LEASE: COLONY THEATRE
SF = 28,950
BUILT = 1998
MAINTENANCE RESPONSIBILITY MATRIX
TENANT /
CITY
SUBLESSEE /
COLONY
LANDLORD /
TOWN
CENTER
COMMENTS
1 Building Envelope
Roof and waterproofing inspection X
Roof, roof drain and downspout cleaning X
Roof waterproofing investigation and repair X
Exterior painting and lifecycle replacement X
2 Openings
Door and window repair X
Door and window replacement X
Electrified door and window maintenance and
repair X
Key duplication, lock service and small
repairs X
Repairing locks and duplicating keys on an as needed basis.
Lock replacement and lock addition X
3 Interior Finishes
Future tenant Improvements XMust be approved by Tenant / City prior to construction - See Operating Agreement - Exhibit B - Goals and Objectives
Floor repair and replacement -
(non-structural) X
Tenant / City is not responsible for wear and tear on facility carpeting and flooring throughout the facility including restrooms, lobby, offices, ticket booth, stage area, etc.
Floor maintenance XSublessee / Colony must maintain flooring throughout the facility including restrooms, lobby, offices, ticket booth, stage area, etc.
Interior painting X
Interior paint and finishing, lifecycle
replacement X
Restroom finishes including all fixtures (e.g.
faucets, partitions, tile, mirrors and towel
bars)
X
All upgrades / replacements / repairs must comply with ADA standards. All fixtures must be in compliance with ADA standards.
Casework/Cabinets - repair X
Window treatment XIncludes window treatments inside the facility such as shutters, curtains, blinds, etc. 4 Plumbing
Waste Water Systems
Sewer maintenance and stoppages - to
Building X
Sewer maintenance and stoppages - within
Building X
Includes clogged sinks, faucets, toilets, drains, etc.
Sewer repair and replacement X
Water Supply Systems
Backflow device test and inspection X
Backflow device repair X
Backflow device replacement X
Fire sprinkler replacement X
Fire sprinkler maintenance and repair X
Water filters- appliance XIncludes all appliance filters such as water drinking fountains, water bottle fill stations, refrigeration units , etc. owned by Sublessee / Colony or City / Tenant.
Plumbing system large repair and lifecycle
replacement (includes fire water) X
Plumbing fixtures and valve maintenance
within the building
X
Includes any plumbing or valve maintenance such as sink or toilet adjustments (toilet running, sink dripping, etc.). This includes only plumbing fixtures mounted on the exterior walls, such as wall-mounted facets, or exposed exterior plumbing. Exclusions include any plumbing systems, pipes or fixtures that are located within the walls.
Plumbing fixture, valve repair and
replacement within the building X
All repairs and replacement exceeding $5,000 must be approved by Tenant/City. 5 Electrical
Uninterruptible Power Supply system
maintenance - personal computer X
Uninterruptible Power Supply system repair
and replacement for building X
Computers and internal network X
Electrical system maintenance X No work allowed inside panels unless authorized by Tenant/City.
Electrical system large repair and lifecycle
replacement X
Lighting control system modification XAny change or modifications requires approval by Tenant / City such as electrical re-wiring.
Including timers, dimmers, lighting schedules, and any complex system. 6 Mechanical/HVAC
HVAC system maintenance X
HVAC system repair and replacement X
Exhaust Systems
Exhaust system and hood maintenance,
repair and replacement X
Includes HVAC vents, restroom fans, kitchen appliance exhaust system, laundry vents / chutes, etc. including supply vents/registers, return vents located on interior walls, floors, ceilings.
Exhaust system and hood cleaning
X
Includes cleaning of HVAC vents, restroom fans, kitchen appliance exhaust system, laundry vents / chutes, etc. including supply vents/registers, return vents located on interior walls, floors, ceilings.
7 Communication
Data, low voltage infrastructure maintenance
and repair X
Includes network maintenance or repair for PC, computer networks, alarm, surveillance, fiber optics, communication systems, etc.
MAINTENANCE DIVISIONS
EXHIBIT A
115
4884
FACILITY / LEASE: COLONY THEATRE
SF = 28,950
BUILT = 1998
MAINTENANCE RESPONSIBILITY MATRIX
TENANT /
CITY
SUBLESSEE /
COLONY
LANDLORD /
TOWN
CENTER
MAINTENANCE DIVISIONS COMMENTS
Data, Low Voltage Infrastructure replacement
and new installations X
Requires approval by Landlord/Town Center.
Internal virtual network service and repair X
8 Elevators
Elevators, vertical lift systems test, inspection
and repair X
Elevators, vertical Lift systems large repair
and replacement X
9 Low voltage Systems
Access Control test inspection and
replacement X
Security - Intrusion systems (sec sys) Test,
Inspection and replacement X
Requires approval by Landlord / Town Center.
Surveillance/Cameras/CCTV X Requires approval by Landlord / Town Center.
Access to data X Applies if Tenant / City approves Sublessee / Colony to install surveillance. 10 Special Equipment
Emergency generator test, repair and
replacement X
Bolt-on specialty equipment specific to tenant
use
X
Modifications may require approval by Landlord / Town Center. any items that are bolted or affixed to the building’s structural elements—such as walls, floors, or ceilings -including, but not limited to, large cabinets secured for stability, rigging equipment, or any other fixtures necessary to support and operate the CTC business.
Appliance maintenance and repair X
Appliance replacement X May require approval by Landlord / Town Center. 11 Regulatory and Compliance
Exit signs and evacuation lighting - test,
inspection and replacement X
Fire extinguisher test and inspection X Performed monthly.
Evacuation plans X
Fire, life & safety monitoring equipment test
and inspection X
Hazardous materials inspections and
compliance X
Hazardous materials awareness training,
notifications X
Any relevant state, local, federal laws.
ADA compliance - tenant improvements X
ADA compliance - building X
12 Site (Facility to Prop Line)
Site and Site Drain cleaning
Site drain large repair and replacement X
Site drain inspection and repair X
Parking area, ADA compliance X
Parking area cleaning X NA
Landscape maintenance X
Landscape maintenance - all trimming X
Landscape maintenance - repair and
replacement X
General site maintenance (e.g. benches,
flagpole, walking paths) X
13 Other Maintenance Activities
Pest control X
Janitorial X
Window washing X
Floor cleaning X
Lamp replacement X
Light surface mounted fixture replacement
X
May require approval by Landlord / Town Center. Including surface mounted lights, restroom fixtures, sconces, hanging lights, office lights, etc. Required permits must be obtained and any replacements/upgrades must be installed according to current building codes.
Building cleaning (Interior) X
Grease trap - cleaning X
Facility Cleaning due to unusual
circumstances and weather (Interior) X
Includes debris within the building such as windstorm debris, etc. ** Annual inspections, maintenance, and maintenance coordination managed by Sublessee/City
EXHIBIT A
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22 EXHIBIT B
GOALS AND OBJECTIVES
117
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DESCRIPTION WEIGHT
35 Programs being produced or presented by Colony, a Co-Production involving Colony, or renters or civic groups, each of which may run 1 day to 4 weeks or longer, so as to constitute a minimum of 200 days of programming per calendar year. At least 1 Program will be an Actors' Equity Association Program. 10
1 Art Show/Exhibit 10
1 Annual Community Survey 10
1 Hosted networking event for Burbank Cultural Art Commission at no cost 5 Implement Membership Program 5
Consistently provide high-quality professional entertainment programming in the theater and art gallery. 5
Grow The Burbank Center Stage, Home of The Colony Theatre Company brand within Burbank community. Target marketing and presence within Burbank area, online, in print, in schools, and in-person booth appearances. To include Holiday in the Park, Downtown Burbank Cultural Arts Market, MyBurbank.com, and Burbank Leader, cross-promotion with local Burbank businesses. 5
Through BUSD’s Workability Program, Glendale Youth Alliance, or Colony program, provide an internship opportunity for at least one (1) student annually. 10 Offer youth programming by way of offering summer camp sessions (minimum of one week) to the summer camp students of local performing arts organizations, which have ranged in attendance on average of 10 - 30 students annually depending on those organization's marketing/communication efforts with local schools; providing ongoing year-round classes (minimum of 6 weeks) to the students of private theatre instructors, which have ranged in attendance on average from 10-20 students depending on the size of the classes of those instructors; and/or Theater for Young Audiences (TYA) events, which have ranged historically on average from 100-150 young attendees per performance, depending on the level of funding that TYA has each year to devote to its events. 15 Restore Exterior Signage 20
Restore Exterior Entrance Tiles 20
Upgrade Scaffold 20
Upgrade rehearsal room with Marley flooring 20
Reinforcement/Update of balcony spaces in theater 20
TOTAL 175
Substantial Compliance -Year 1 140
COLONY THEATER COMPANY GOALS AND OBJECTIVES
Substantial Compliance is met when 80% of total weighted value is met per year.
YEAR 1
118
4887
DESCRIPTION WEIGHT
35 Programs being produced or presented by Colony, a Co-Production involving Colony, or renters or civic groups, each of which may run 1 day to 4 weeks or longer, so as to constitute a minimum of 215 days of programming per calendar year. At least 2 Program will be an Actors' Equity Association Program. 10
2 Art Shows/Exhibits 10
2 Annual Community Survey 10
1 Hosted networking event for Burbank Cultural Art Commission at no cost 5 Consistently provide high-quality professional entertainment programming in the theater and art gallery. 5
Grow The Burbank Center Stage, Home of The Colony Theatre Company brand within Burbank community. Target marketing and presence within Burbank area, online, in print, in schools, and in-person booth appearances. To include Holiday in the Park, Downtown Burbank Cultural Arts Market, MyBurbank.com, and Burbank Leader, cross-promotion with local Burbank businesses. 5
Through BUSD’s Workability Program, Glendale Youth Alliance, or Colony program, provide an internship opportunity for at least one (1) student annually. 10 Offer youth programming by way of offering summer camp sessions (minimum of one week) to the summer camp students of local performing arts organizations, which have ranged in attendance on average of 10 - 30 students annually depending on those organization's marketing/communication efforts with local schools; providing ongoing year-round classes (minimum of 6 weeks) to the students of private theatre instructors, which have ranged in attendance on average from 10-20 students depending on the size of the classes of those instructors; and/or Theater for Young Audiences (TYA) events, which have ranged historically on average from 100-150 young attendees per performance, depending on the level of funding that TYA has each year to devote to its events. 15 TOTAL 70
Substantial Compliance -Year 2 56
YEAR 2
119
4888
DESCRIPTION WEIGHT
35 Programs being produced or presented by Colony, a Co-Production involving Colony, or renters or civic groups, each of which may run 1 day to 4 weeks or longer, so as to constitute a minimum of 230 days of programming per calendar year. At least 1-2 Program will be an Actors' Equity Association Program. 10
2 Art Shows/Exhibits 10
1 Annual Community Survey 10
1 Hosted networking event for Burbank Cultural Art Commission at no cost 5 Consistently provide high-quality professional entertainment programming in the theater and art gallery. 5
Grow The Burbank Center Stage, Home of The Colony Theatre Company brand within Burbank community. Target marketing and presence within Burbank area, online, in print, in schools, and in-person booth appearances. To include Holiday in the Park, Downtown Burbank Cultural Arts Market, MyBurbank.com, and Burbank Leader, cross-promotion with local Burbank businesses. 5
Through BUSD’s Workability Program, Glendale Youth Alliance, or Colony program, provide an internship opportunity for at least one (1) student annually. 10 Offer youth programming by way of offering summer camp sessions (minimum of one week) to the summer camp students of local performing arts organizations, which have ranged in attendance on average of 10 - 30 students annually depending on those organization's marketing/communication efforts with local schools; providing ongoing year-round classes (minimum of 6 weeks) to the students of private theatre instructors, which have ranged in attendance on average from 10-20 students depending on the size of the classes of those instructors; and/or Theater for Young Audiences (TYA) events, which have ranged historically on average from 100-150 young attendees per performance, depending on the level of funding that TYA has each year to devote to its events. 15 Update lighting fixtures in lobby and art gallery. 25
Reinforcement/update of balcony spaces in theater. 20
TOTAL 115
Substantial Compliance -Year 3 92
YEAR 3
120
4889
DESCRIPTION WEIGHT
35 Programs being produced or presented by Colony, a Co-Production involving Colony, or renters or civic groups, each of which may run 1 day to 4 weeks or longer, so as to constitute a minimum of 245 days of programming per calendar year. At least 1-2 Program will be an Actors' Equity Association Program. 10
3 Art Shows/Exhibits 10
1 Annual Community Survey 10
1 Hosted networking event for Burbank Cultural Art Commission at no cost 5 Consistently provide high-quality professional entertainment programming in the theater and art gallery. 5
Grow The Burbank Center Stage, Home of The Colony Theatre Company brand within Burbank community. Target marketing and presence within Burbank area, online, in print, in schools, and in-person booth appearances. To include Holiday in the Park, Downtown Burbank Cultural Arts Market, MyBurbank.com, and Burbank Leader, cross-promotion with local Burbank businesses. 5
Through BUSD’s Workability Program, Glendale Youth Alliance, or Colony program, provide an internship opportunity for at least one (1) student annually. 10 Offer youth programming by way of offering summer camp sessions (minimum of one week) to the summer camp students of local performing arts organizations, which have ranged in attendance on average of 10 - 30 students annually depending on those organization's marketing/communication efforts with local schools; providing ongoing year-round classes (minimum of 6 weeks) to the students of private theatre instructors, which have ranged in attendance on average from 10-20 students depending on the size of the classes of those instructors; and/or Theater for Young Audiences (TYA) events, which have ranged historically on average from 100-150 young attendees per performance, depending on the level of funding that TYA has each year to devote to its events. 15 Replace carpeting throughout facility. 25
Seat Refurbishment. 25
TOTAL 120
Substantial Compliance -Year 4 96
YEAR 4
121
4890
DESCRIPTION WEIGHT
35 Programs being produced or presented by Colony, a Co-Production involving Colony, or renters or civic groups, each of which may run 1 day to 4 weeks or longer, so as to constitute a minimum of 260 days of programming per calendar year. At least 1-2 Program will be an Actors' Equity Association Program. 10
4 Art Shows/Exhibits 10
1 Annual Community Survey 10
1 Hosted networking event for Burbank Cultural Art Commission at no cost 5 Consistently provide high-quality professional entertainment programming in the theater and art gallery. 5
Grow The Burbank Center Stage, Home of The Colony Theatre Company brand within Burbank community. Target marketing and presence within Burbank area, online, in print, in schools, and in-person booth appearances. To include Holiday in the Park, Downtown Burbank Cultural Arts Market, MyBurbank.com, and Burbank Leader, cross-promotion with local Burbank businesses. 5
Through BUSD’s Workability Program, Glendale Youth Alliance, or Colony program, provide an internship opportunity for at least one (1) student annually. 10 Offer youth programming by way of offering summer camp sessions (minimum of one week) to the summer camp students of local performing arts organizations, which have ranged in attendance on average of 10 - 30 students annually depending on those organization's marketing/communication efforts with local schools; providing ongoing year-round classes (minimum of 6 weeks) to the students of private theatre instructors, which have ranged in attendance on average from 10-20 students depending on the size of the classes of those instructors; and/or Theater for Young Audiences (TYA) events, which have ranged historically on average from 100-150 young attendees per performance, depending on the level of funding that TYA has each year to devote to its events. 15 Equipment Upgrades. 20
TOTAL 90
Substantial Compliance -Year 5 72
YEAR 5
YEARS 6-10
To be determined by Colony Theater and Parks and Recreation Director. 122
4891
EXHIBIT C
FIRST AMENDED AND RESTATED CONSTRUCTION, OPERATION AND RECIPROCAL EASEMENT
AGREEMENT
123
4892
RECORDING REQUEST�D BY:
WHEN RECORDED MA:. TO:
The Alexander Haagen Company, Inc.
3500 Sepulveda Boulevard
P. o. Box 10010
Manhattan Beach, California 90266
Attention: Edward Krasnove
FIRST AMENDED AND RESTATED
CONSTRUCTION, OPERATION AND RECIPROCAL
EASEMENT AGREEMENT
(Burbank, California)
by and among
HAAGEN-BURBANK PARTNERSHIP
SEARS, ROEBUCK AND CO.
MERVYN'S,
IKEA PROPERTY, INC.
AND
BULLOCK'S PROPERTIES CORP.
EXHIBIT C
124
4893
SECTION
I
II
III
IV
TABLE OF CONTENTS
DEFINITIONS ..... .
A.
B.
c.
D.
E.
F.
G.
H.
I.
J.
K.
L.
M.
N.
o.
P.
Q.
R.
s.
T.
u.
v.
w.
x.
Y.
z.
AA.
BB.
cc.
DD.
EE.
FF.
GG.
HH.
II.
JJ.
KK.
ACCOUNTING PERIOD .
ALLOCABLE SHARE .
AUTOMOBILE PARKING AREA .
COMMON AREA.
COMMON AREA MAINTENANCE COST
COMMON BUILDING COMPONENT .
COURT . . . . . . . . . .
DEVELOPER IMPROVEMENTS
DEVELOPER MALL STORES .
DEVELOPER NON-MALL STORES ..
ENCLOSED MALL . . . . . . . ...
ENCLOSED MALL OPERATION AND MAINTENANCE EXPENSE .
FLOOR AREA
INITIAL PLANNED FLOOR AREA
MAJOR OR MAJORS .....
MORTGAGEE AND MORTGAGE
OCCUPANT .....
OPERATE, OPERATING, OPERATION
OPERATOR . . . . . . . . . . . . . .
PARKING FACILITIES .....
PARTY . . . . . . . .
PERIMETER SIDEWALKS
BLANK.
PERMISSIBLE DEVELOPMENT AREAS
PERMITTEES
PERSON
PHASE 1 DEVELOPMENT; PHASE 2 DEVELOPMENT; FUTURE
DEVELOPMENT . . . . . ...
PROJECT ARCHITECT .
STORE OR STORES ..
TERMINATION DATE .... .
TRACT OR TRACTS ..... .
DEVELOPER, SEARS, MERVYN'S, BULLOCK'S, IKEA, and
AGENCY . . . . . . . . . . . . . . .
CULTURAL FACILITIES ....
PHASE 1 DEVELOPER MALL STORES .
PHASE 2 DEVELOPER MALL STORES .
PHASE 1 ENCLOSED MALL .
PHASE 2 ENCLOSED MALL
EASEMENTS . . . . . . . . . . . . . . . . .
A. NON-:-EXCLUSIVE EASEMENTS GRANTED BY THE PARTIES
FOR AUTOMOBILE PARKING, PEDESTRIAN AND INCIDENTAL
B.
c.
USES.. . . . . . . . . . . . . . . . . . . . . • .
UTILITY EASEMENTS GRANTED BY THE PARTIES
CONSTRUCTION EASEMENTS GRANTED BY THE PARTIES ...
D. EASEMENTS FOR PEDESTRIAN BRIDGES, PEDESTRIAN
E.
F.
G.
H.
I.
DECKS . . . . . . . .
BLANK . . . . . . . . . . . . . . .
DOMINANT AND SERVIENT ESTATES ...
FIRE AND SERVICE CORRIDOR EASEMENTS .
REDESIGNATION OF AREAS WITHIN THE STORE SITES ..
PROHIBITION AGAINST GRANTING EASEMENTS
J. ACCESS EASEMENTS FOR SEARS, MERVYN'S, BULLOCK'S
K.
L.
M.
IT•
o.
AND IKEA. . . . . . . . . . . .
RENTAL CAR PARKING EASEMENT FOR SEARS.
BULLOCK'S TRUCK DOCK EASEMENT .... .
BULLOCK'S TRANSFORMER EASEMENT ... .
BULLOCK'S PICK-UP AREA EASEMENT .
SEAR'S PICK-UP AREA EASEMENT
EXERCISE AND DURATION OF EASEMENTS
IMPROVEMENT PLANS . . . . . . . . . . ......... .
A. PROCEDURES FOR CONSTRUCTION OF SHOPPING CENTER
B.
c.
D.
IMPROVEMENTS . . . . . . . . . . . . . . . . . .
COMMON AREA IMPROVEMENT PLANS .
ENCLOSED MALL DESIGN AND IMPROVEMENT PLANS
PLANS FOR THE STORES
REA-HB/lST-AMENDED.HB/10.18.90 - i -
PAGE
6 6
6 7
7 8
12 12
12 12
12 13
13 14
16 16
16 17
17 18
18 18
18 19
19 19
19 19
19 19
20 20
20 22
22 23
23 23
24 24
25 25
27 27
27 28
28 29
29 29
30 30
30a
30a
31 35
35 36
40 42
125
4894
SECTION
V
VI
VII
VIII
IX
X
XI
XII
E.
F.
G.
H.
I.
TABLE OF CONTENTS (continued)
GENERAL DESIGN DATA FOR COMMON AREA .
EXERCISE OF APPROVAL RIGHTS .... ·.
CHANGES IN IMPROVEMENT PLANS .... .
QUALITY OF ENCLOSED MALL CONSTRUCTION .
PHASE 1 DEVELOPMENT IMPROVEMENT PLANS .
CONSTRUCTION OF DEVELOPER IMPROVEMENTS
CONSTRUCTION OF COMMON AREA ..... .
A. CONSTRUCTION OF COMMON AREA IMPROVEMENT WORK BY
B.
c.
D.
DEVELOPER . . . . . . . . . . . . . . . . . .
SCOPE OF CONSTRUCTION BY DEVELOPER
DESIGN AND CONSTRUCTION OF PERIMETER SIDEWALKS ... .
SCHEDULING OF COMMON AREA IMPROVEMENT WORK ..... .
CONSTRUCTION OF STORES; OPENING DATES .
A. CONSTRUCTION . . . .
B.
c.
D.
OPENING DATES ..
TIME FOR OPENING AND LEASING OF DEVELOPER MALL
STORES AND OPENING OF THE ENCLOSED MALL ..... .
FUTURE DEVELOPMENT
FLOOR AREA, USE, OPERATION, SIZE AND HEIGHT .
A.
B.
c.
D.
E.
F.
G.
H.
FLOOR AREA
HEIGHTS AND CONDITIONS
USES ...... .. .
PROHIBITIONS
NO SALES OUTSIDE FLOOR AREA .... .
COMPLIANCE WITH REGULATIONS ... .
IMPROVEMENTS ON PERMISSIBLE DEVELOPMENT AREAS .
USES FOR PERMISSIBLE DEVELOPMENT AREAS
GENERAL CONSTRUCTION REQUIREMENTS ....
A. INTERFERENCE WITH CONSTRUCTION
B.
c.
D.
E.
F.
G.
CONSTRUCTION BARRICADES
SUBMISSION OF PLANS AND SCHEDULE
WORKMANSHIP ...
COORDINATION
MECHANICS' LIENS
INDEMNITY ..... .
OPERATION AND MAINTENANCE OF ENCLOSED MALL AND OTHER
COMMON AREA ........ .
A.
B.
c.
D.
E.
ENCLOSED MALL - STANDARDS ........ .
OTHER COMMON AREA - STANDARDS ...... .
AUTOMOBILE PARKING AREA RATIO AND STANDARDS
INDEMNITY . . . . . . . . . . . .
PARKING REGULATIONS ...... .
F. OBLIGATIONS OF PARTIES FOR COMMON AREA MAINTENANCE
COST
G.
H.
TAKE-OVER OF MAINTENANCE
DESIGNATION OF OPERATOR .
INDEMNIFICATION AND PUBLIC LIABILITY INSURANCE
A.
B.
c.
D.
E.
FIRE
A.
B.
c.
D.
E.
F.
INDEMNITY - COMMON AREA ........ .
INDEMNITY - TRACTS ........... .
PUBLIC LIABILITY INSURANCE - COMMON AREA
PUBLIC LIABILITY INSURANCE - TRACTS ..
BLANKET INSURANCE AND SELF-INSURANCE
AND EXTENDED COVERAGE INSURANCE
DEVELOPER IMPROVEMENTS ... . .
STORES OF MAJORS AND IKEA ...
SELF-INSURANCE
MUTUAL RELEASE AND WAIVER OF SUBROGATION
OCCUPANTS ' INSURANCE - DEVELOPER MALL STORES,
DEVELOPER NON-MALL STORES AND FUTURE DEVELOPMENT
IMPROVEMENTS .... .
INSURANCE TRUSTEE .. . .
REA-HB/lSf-AMENDED.HB/10.18.90 - ii -
PAGE
43 47
47 48
48 49
so
50 52
53 53
55 55
56 58
59 62
62 63
64 64
66 66
66 67
68 68
68 68
69 70
70 70
72 72
73 75
76 77
79 82
85 86
86 86
87 88
88 90
90 91
91 92
93 93
126
4895
SECTION
XIII
XIV
xv
XVI
XVII
XVIII
XIX
xx
XXI
XXII
XXIII
XXIV
TABLE OF CONTENTS (continued)
COVENANTS AS TO REPAIR, MAINTENANCE, ALTERATION AND
RESTORATION . •. • .••
A. MAINTENANCE . . . .
. . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . .
B.
c.
REPAIRS AND ALTERATIONS TO IMPROVEMENTS ..... .
RESTORATION OF COMMON AREA (EXCLUDING THE ENCLOSED
96 96
96 MALL) • • • • • • • • • • • • • • • • • • • • • • • 96 D. RESTORATION OF DEVELOPER MALL STORES AND ENCLOSED
MALL. • • • • • • • • • • • • • • • • •
E.
F.
G.
H.
I.
J.
K.
RESTORATION OF STORES OF MAJORS AND IKEA
BLANK • • ••••
STANDARDS OF REPAIR,
RECONSTRUCTION .. ..... .
LICENSES FOR RECONSTRUCTION
CLEARING OF PREMISES
COMMON BUILDING COMPONENTS
LIABILITY OF MORTGAGEE
RESTORATION AND
TRANSFER OF INTEREST. RIGHTS. POWERS AND OBLIGATIONS
A. LIMITATIONS ON TRANSFER OR ASSIGNMENT .
8. TRANSFER OF ENTIRE INTEREST
c.
D.
RETENTION OF INTEREST
MULTIPLE OWNERSHIP
EXCUSE FOR NON-PERFORMANCE
CONDEMNATION ...... .. .
A. DISTRIBUTION . . . .
B.
c.
METHOD OF DISTRIBUTION
RESOLUTION OF DISPUTES
D. TERMINATION OF REA FOR CONDEMNATION OF AUTOMOBILE
PARKING AREA OR FLOOR AREA
E.
F.
G.
RIGHTS OF MORTGAGEES
RECONSTRUCTION ON CONDEMNATION
INVERSE qONDEMNATION
CORRECTION OF SITE DESCRIPTIONS; GRANT OF EASEMENTS
A. CORRECTION OF SITE DESCRIPTIONS . . ...
8. GRANT OF EASEMENTS
SIGNS
A. CRITERIA
B. APPROVAL OF SPECIAL SIGNS .
RULES AND REGULATIONS .
COVENANTS OF DEVELOPER
A.
8. c.
D.
E.
STANDARDS . . . . . . . . . MANAGEMENT CRITERIA .
COVENANTS RUNNING WITH THE LAND .
DOMINANT AND SERVIENT ESTATES
DDA . . . . .
COVENANTS OF MAJORS AND IKEA
A.
B.
c.
D.
E.
OPERATION COVENANTS ...
RELEASE FROM OBLIGATIONS
SUBORDINATION TO LIEN ...
COVENANTS RUNNING WITH THE LAND .
DOMINANT AND SERVIENT ESTATES .
TAXES AND ASSESSMENTS .
A. PAYMENT ..
B.
c.
D.
CONTEST .. ..
NON-PAYMENT OF TAXES
ASSESSMENT BENEFITING SHOPPING CENTER .
ARBITRATION . . . . . . . . . .
A. DISPUTES COVERED
B. ARBITRATION PROCEDURE .
ATTORNEYS' FEES .
. . . . . .
. . . . . . .
. . . . . .
. . . . . .
97 100
101
101
102
103
103
106
108
108
108
108
109
112
113
113
113
116
116
117
118
118
119
119
119
121
121
121
122
123
123
123
127
127
127
128
128
129
133
134
135
136
136
136
136
137
138
138
138
140
REA/lST-AMENDED.HB/10.18.90 - iii -
127
4896
SECTION
XXV
XXVI
XXVII
XXVIII
XXIX
XXX
TABLE OF CONTENTS (continued)
NOTICES ....
A.
B.
NOTICE TO PARTIES AND SIGNATORIES
MORTGAGEE NOTICE ........ .
AMENDMENT; NO BENEFICIARY .
A. METHOD OF AMENDMENT .
B. NO THIRD PARTY BENEFICIARY
TERMINATION OF REA
DEDICATION .............. .
A. JOINDER IN NECESSARY DEDICATIONS
B. LIMITATIONS .
MISCELLANEOUS ..
A. BREACH SHALL NOT DEFEAT MORTGAGE
B.
c.
D.
E.
F.
G.
H.
I.,
J.
K.
L.
M.
N.
o.
P.
Q.
R.
s.
T.
u.
v.
w.
x.
Y.
BREACH SHALL NOT PERMIT TERMINATION
CAPTIONS . . . . . . . . ....
CONSENT ....... .
NON-DISCRIMINATION
ESTOPPEL CERTIFICATE
GOVERNING LAWS ..... .
INJUNCTIVE RELIEF .
BLANK. . . . . .
NO PARTNERSHIP ....
NOT A PUBLIC DEDICATION .
PAYMENT ON DEFAULT ....
BLANK.
RELEASE
SEVERABILITY
SINGULAR INCLUDES THE PLURAL
SUCCESSORS
TIME FOR APPROVAL
TIME OF ESSENCE . . . . . . . . . . . . . . . .
WAIVER OF DEFAULT; CUMULATIVE REMEDIES
JOINT PREPARATION .
INDEX ADJUSTMENT
COUNTERPARTS. . •. . . . ... . . .
PERFORMANCE OF CERTAIN COVENANT·s . . . .
FORMER RIGHTS SUPERSEDED ...... .
LIMITATION OF LIABILITY .
CONSENT AND AGREEMENT ..
COVENANT OF IKEA, U.S., INC.
EXHIBITS
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E
EXHIBIT F
EXHIBIT G
LEGAL DESCRIPTIONS
Part 1 Shopping Center Site
Part 2 Developer Tract
Part 3 Sears Tract
Part 4 Mervyn's Tract
Part 5 Ikea Tract
Part 6 Bullock's Tract
PLOT PLAN
HEIGHT LIMITATIONS
SIGN CRITERIA
RULES AND REGULATIONS
·SCOPE OF DEVELOPMENT
SCHEDULE OF PERFORMANCE
REA-HB/lSI'-AMENDED.HB/10.18.90 - iv -
141
141
142
144
144
144
145
146
146
146
147
147
147
147
147
148
149
150
150
150
150
150
150
151
151
153
154
154
154
154
155
155
155
157
157
157
159
166
169
171 .
128
4897
FIR ST AMENDED AND REST ATED
CONSTRUCT ION, OPERATION AND RECI PR OCAL
EASEMENT AGREEMENT
(Burbank, California)
THIS FIRST AMENDED AND RESTATED CONSTRUCTION, OPERATION AND RECIPROCAL EASEMENT AGREEMENT is made and entered into as of the ___ day of __________ , 1990, by and among HAAGENBURBANK PARTNERSHIP, a California general partnership (hereinafter·referred to as "Developer"); SEARS, ROEBUCK AND co., a New York corporation (hereinafter referred to as "Sears"); MERVYN'S, a California corporation (hereinafter referred to as "Meryyn's"); IKEA PROPERTY, INC., a Pennsylvania corporation (hereinafter referred to as "Ikea")·; and BULLOCK'S PROPERTIES CORP., a Delaware corporation (hereinafter referred, to as "Bullock's").
WIT NE SS ETH:
WHEREAS, the City of Burbank, California (hereinafter
referred to as the "City"), by Ordinance No. P.D.89-4, adopted September 19, 1989 and recorded November 15, 1989 as Instrument No. 89-1842284, approved and adopted the Redevelopment Plan for the City Centre Redevelopment Project (hereinafter referred to as the "Redevelopment Plan") for a project area located within the boundaries of the city, in the County of Los Angeles, State of California, entitled the "City Centre Redevelopment Project Area" (hereinafter referred to as the "Redevelopment Project"); and
WHEREAS, a portion of said Redevelopment Project (the
"Shopping Center Site") is described in Part 1 of Exhibit A and is shown on the plot plan attached hereto as Exhibit B; and WHEREAS, Developer is the lessee, under a written lease agreement dated as of the date hereof (the "Ground Lease"), of certain parcels of real property situated within the Shopping Center Site, described in Part 2 of Exhibit A and shown on REA/lST AMENDED.HB/10.18.90 - 1 -
129
4898
Exhibit Bas Parcels 2, 3, 4, 6, 8, 9, 11 and 12, inclusive (hereinafter collectively referred to as the "Developer Tract"); and
WHEREAS, Sears is the sublessee of a certain tract of real property, under a written lease agreement between Developer as sublessor and Sears as sublessee (hereinafter referred to as the "Sears Lease") situated within the Shopping Center Site, described in Part 3 of Exhibit A and shown on Exhibit Bas Sears Tract (hereinafter referred to as the "Sears Tract"); and WHEREAS, Mervyn's is the sublessee of a certain tract of real property, under a written sublease agreement between Developer as sublessor and Mervyn•s as sublessee (hereinafter referred to as the "Meryyn's Lease"), situated within the Shopping Center Site, described in Part 4 of Exhibit A and shown on Exhibit Bas Mervyn's Tract (hereinafter referred to as the "Meryyn's Tract"); and
WHEREAS, Ikea is the lessee of a certain tract of land, pursuant to a written lease agreement between the Redevelopment Agency of the City of Burbank, a public body, corporate and politic, formed, organized and existing under the provisions of Chapter 2 of the California Community Redevelopment Law (hereinafter referred to as the "Agency"), as lessor, and Ikea as lessee (hereinafter referred to as the "Ikea Lease") situated within the Shopping Center Site, described in Part 5 of Exhibit A and shown on Exhibit Bas the Ikea Tract
(hereinafter referred to as the "Ikea Tract"); and
WHEREAS, Bullock's is the sublessee of a certain tract of real property, under a written lease agreement between
Developer as sublessor and Bullock's as sublessee (hereinafter referred to as the "Bullock's Lease") situated within the Shopping Center Site, described in Part 6 of Exhibit A and shown on Exhibit Bas the Bullock's Tract (hereinafter referred to as the "Bullock's Tract"); and
WHEREAS, the "Parties" desire to cause the construction of certain on-and off-site improvements sufficient to enable all RFA/lST AMENDED.HB/10.18.90 - 2 -
130
4899
of the "Tracts" to be developed in accordance with the
Redevelopment Plan, the DDA and this REA; and
WHEREAS, Developer (as "Developer") and the Agency have heretofore entered into a Disposition and Development Agreement dated November 15, 1989 and recorded November 15, 1989 as Instrument No. 89-1842284 (the Disposition and Deve_lopment Agreement as implemented by that certain First Implementation Agreement dated ____ , 1990 and recorded ______ , 1990
concurrently herewith, and as may be further implemented and amended from time to time is hereinafter referred to as the "DDA"), pursuant to the terms of which Developer has agreed to cause the construction of certain buildings and improvements on and off the Shopping Center Site so as to create a multipurpose commercial complex on the Shopping Center Site; and WHEREAS, pursuant to the provisions of the Redevelopment Plan and of the DDA, the Agency is obligated to cause the construction of certain capital improvements within, in the vicinity of, and adjacent to the Shopping Center Site; and WHEREAS, in order to set forth the rights, obligations, duties and responsibilities in connection with the development and use of and the buildings and operations on the Shopping Center Site, Developer, Sears, Mervyn's, Ikea and the Agency entered into that certain construction, Operation and
Reciprocal Easement Agreement (hereinafter called the "Original REA") dated November 15, 1989 and recorded November 15, 1989 as Instrument No. 89-1842288; and
WHEREAS, Developer, Sears, Mervyn's, Ikea, Bullock's and the Agency desire to amend, restate and supersede the Original REA and to enter into this First Amended and Restated
Construction, Operation and Reciprocal Easement Agreement (hereinafter called the "REA"); and
WHEREAS, Developer, Sears, Mervyn•s, Ikea, Bullock's and the Agency desire to make an integrated use of the Tracts, and initially develop and improve the same as a regional shopping center of the so-called "Enclosed Mall" type (which regional REA/lSf AMENDED.HB/10.18.90 - 3 -
131
4900
shopping center is hereinafter collectively referred to as the "Center" or the."_Shoppinq Center") and ultimately develop and improve same as a fully integrated mixed-use project involving retail, service, office and such other uses as are approved by the Parties and the Agency; and
WHEREAS, Sears desires to cause to be constructed and
thereafter to Operate, or to cause to be Operated, a retail facility as a part of the Center as hereinafter provided, in a building or installation (hereinafter called the "Sears Store"), to be located on a portion of the Sears Tract (which portion is sometimes hereinafter called the "Sears Store Site" and is shown on Exhibit B); and
WHEREAS, Mervyn•s desires to cause to be constructed and thereafter to Operate, or to cause to be Operated, .a retail facility as a part of the Center as hereinafter provided, in a building or installation (hereinafter called the "Meryyn•s Store"), to be located on a portion of the M�rvyn's Tract (which portion is sometimes hereinafter called the "Meryyn's Store Site" and is shown on Exhibit B); and
WHEREAS, Ikea desires to cause to be constructed and
thereafter to Operate or to cause to be Operated, a retail facility as a part of the Center as hereinafter provided, in a building or installation {hereinafter called the "Ikea Store"), located on a portion of the Ikea Tract (which portion is sometimes hereinafter called the "Ikea Store Site" and is shown on Exhibit B); and
WHEREAS, Bullock's desires to cause to be constructed and thereafter to Operate or cause to be Operated, a retail facility as a part of the Center as hereinafter provided, in a building or installation {hereinafter called the "Bullock's Store") located on a portion of the Bullock's Tract {which portion is sometimes hereinafter called the "Bullock's Store Site" and is shown on Exhibit B); and
WHEREAS, Developer desires to cause to be constructed and thereafter to Operate, or to cause to be Operated as part of RFA/lSf AMENDED.HB/10.18.90 - 4 -
,_·
132
4901
the Center, buildings or installations for retail and related facilities, as part of the Center as hereinafter provided, in the "Developer Improvements" in accordance with this REA, including the "Enclosed Mall" and other Common Area, all of which shall be located on portions of the Developer Tract as shown on Exhibit B; and
WHEREAS, the Parties desire to grant certain easements in, under, over, across and through the Developer Tract, the Sears Tract, the Mervyn's Tract, the IKEA Tract, and the Bullock's Tract respectively; and
WHEREAS, the Parties desire to enter into mutual covenants which shall provide for the construction, maintenance and Operation of the "Common Area" and of the other buildings and improvements constructed and to be constructed upon the Shopping Center Site, and to make certain other covenants and agreements as hereinafter specifically set forth; and
WHEREAS, the Agency has determined that entering into this REA will assure certain benefits to the public and will carry out the public purposes described in the DDA and that the full and beneficial use of the public improvements to be constructed will serve the public interest and will implement the
Redevelopment Plan pursuant to the California �ommunity Redevelopment Law.
NOW THEREFORE, in consideration of the foregoing, and of the covenants, conditions and agreements as hereinafter set forth, IT IS AGREED as follows:
II
II
II
II
II
II
II
II
II
RFA/lST AMENDED.HB/10.18.90 - 5 -
·'
''
133
4902
SECTION I
DEFINITIONS
As used hereinafter in this REA, the following terms
shall have the following respective meanings:
A. ACCOUNTING PERIOD. The term "Accounting Period"
refers to any period commencing January 1 and ending on the next following December 31, except that the first Accounting Period shall commence as to each Party, respectively, as to its Tract on a date thirty (30) days prior to the earlier of (i) the date each such Party first opens for business in its "Store" or (ii) the date such Party is required to first open for business in its Store pursuant to Section VII-B hereof, and shall end on and include the next following December 31, and as respects each Party hereto, the last Accounting Period shall end on the date that this REA terminates as to the Tract ·of such Party. Any portion or portions of "Common Area
Maintenance Cost" (as hereinafter defined) relating to a period of time only part of which is included within the first Accounting Period or the last Accounting Period of a Party shall be prorated on a daily basis as respects such Party.
B. ALLOCABLE SHARE. The term "Allocable Share"
refers to that part of Common Area Maintenance Cost allocable to each re�pective Party for each Accountin� Period, to be computed by multiplying Common Area Maintenance Cost by a fraction, the numerator of which shall be the "Initial Planned Floor Area" of the Sears Store, the Mervyn's Store, the Ikea Store, the Bullock's Store, the "Developer Mall Stores" and the "Developer Non-Mall Stores", as designated in Section VIII-A hereof and located on the Tract of the Party whose Allocable Share is to be determined, and the denominator of which shall be the total Initial Planned Floor Area of the Sears Store, the Mervyn•s Store, the Ikea Store, the Bullock's Store, the Developer Mall Stores and the Developer Non-Mall Stores located on the Tracts of all the Parties whose Tracts are being maintained by the same "Operator" at the time of calculation.
RFA/lSf AMENDED.HB/10.18.90 - 6 - Section I. A,B
134
4903
The Allocable Share of each Party is subject to adjustment as set forth in Section I-M hereof.
C. AUTOMOBILE PARKING AREA. The term "Automobile
Parking Area" refers to all Common Area used for the parking of motor vehicles, including the Parking Facilities, and including incidental and interior roadways, ramps, pedestrian stairways, pedestrian bridges, decks, walkways and tunnels, curbs and landscaping located within or adjacent to areas used for parking of motor vehicles, together with all improvements which at any time are constructed thereon or therein, subject to the provisions of Section II-H hereof. The Automobile Parking Area shall not include truck ramps and loading and delivery areas.
D. COMMON AREA. The term "Common Area" refers to
all areas (other than those areas located within any hotel or office building) within the exterior boundaries of the Shopping Center Site which are made available, as hereinafter provided, for the general use, convenience and benefit of all "Occupants" and "Permittees"; provided that the portions of the Common Area designated on Exhibit Bas "Ikea Pick-up Area", "Bullock's Pick-Up Area" and "Sears Pick-Up Area" shall be primarily reserved for loading and unloading in connection with the Operation of the Ikea Store, the Bullock's Store, and the Sears Store, respectively.
Such Common Area shall include, but not be limited to,
utility lines and systems; Automobile Parking Area; access roads, driveways; "Perimeter Sidewalks"; malls, including the Enclosed Mall; pedestrian walkways; pedestrian bridges
(including expansion joints and supporting columns), pedestrian decks, pedestrian tunnels; rest rooms, emergency exit
corridors, stairs, elevators, escalators and similar areas not located within the premises of any Occupant; parking areas located outside the Shopping Center Site as may be approved by the Parties; and in addition, a Common Area maintenance office and Common Area equipment sheds, to which free access may not be allowed except to Persons so authorized by Operator. The REA/lST AMENDED.HB/10.18.90 - 7 - Section I. B,C,D
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Common Area shall include, but not be limited to, all items of Common Area shown on Exhibit B, and the "Office Parking Area" described in Section X-E-3 of this REA during certain hours that the Office Parking Area is available for use by
Permittees.
Common Area shall not include restrooms, emergency
exit corridors, stairs, elevators, escalators and similar areas contained within any area exclusively appropriated for the use of any single Occupant.
E. COMMON AREA MAINTENANCE COST. The term "Common
Area Maintenance Cost" refers to the total of �11 monies paid out during an Accounting Period by Operator (subject to the terms and conditions of this Section I-E relating to Office Parking) for reasonable costs and expenses directly relating to the maintenance, repair, Operation and management of the Common Area, as provided in Section X, excluding (i) any "Enclosed Mall Operation and Maintenance Expense", (ii) wages, salaries and any other costs, expenses or reimbursements paid to management or supervisory personnel based off-site, except field supervisors.such as foremen, (iii) costs related to Automobile Parking Area, if any, constructed by a Party pursuant to Section VIII-A to support Floor Area a Party constructs in excess of one hundred three percent (103%) of its Initial Planned Floor Area, and (iv) principal and interest on Developer's Mortgage, and ground rent paid by Developer under the Ground Lease, and any and all charges associated therewith.
Common Area Maintenance Cost shall include, but not be limited to, real property taxes and assessments (including any
possessory use or interest tax); all rental charges for equipment and cost of small tools and supplies; all acquisition costs of maintenance equipment or rental charges therefor, which costs, if in excess of Ten Thousand Dollars ($10,000.00) per year for any single item, or if in excess of Twenty Thousand Dollars ($20,000.00) per year in the aggregate, must have been approved by the Parties; all costs of policing, REA/lSf AMENDED.HB/10.18.90 - 8 - Section I. D ,E
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security protection, traffic direction, control and regulation of Automobile Parking Area; all costs of cleaning the Common Area and removal of rubbish, dirt and debris therefrom; the cost of landscape maintenance, repairs and replacement
(excluding that necessitated because of the casualties
described in Section XIII-C) and supplies for maintenance of the Common Area (including Perimeter Sidewalks); the cost of restriping the Automobile Parking Area; all charges for utility services utilized in connection with the Common Area, together with all costs of maintaining and replacing lighting fixtures in the Automobile Parking Area; all costs of compliance with governmental requirements affecting the Common Area; all premiums for fire and extended coverage insurance and for public liability and property damage insurance required to be carried by Operator or "Operator's Nominee" pursuant to the provisions of Section XI-C hereof; and the cost of the annual audit of Common Area Maintenance Cost referred to in Section xF hereof.
No capital improvements to, or reconstruction of, the
Common Area shall be made without the prior written approval of all Parties; provided, however, there may be expended for replacement or reconstruction of capital improvements to the Common Area (excluding those necessitated because of the casualties described in Section XIII-C) in any one Accounting Period an aggregate sum not to exceed Twenty Thousand Dollars {$20,000} without all Parties' prior approval. The actual amount received for any capital item, which is included in common Area Maintenance Cost, disposed of by Operator shall be credited against Common Area Maintenance Cost. No actual capital expenditure shall be included in Common Area
Maintenance Cost if the amortization of such capital
expenditure has been or is to be included in Common Area Maintenance cost. Depreciation applicable to all capital expenditures included in Common Area Maintenance Cost shall be REA/lST AMENDED.HB/10.18.90 - 9 - Section I. E
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prorated between the Parties on the same basis as Allocable Shares are computed.
Subject to the immediately foregoing paragraph, Common
Area Maintenance Cost shall also include the cost of
maintenance, replacement and reconstruction (except for costs associated with replacement and reconstruction as provided in Sections XIII-C and D) work as shall be required to preserve the utility of the Common Area (excluding the Enclosed Mall) in accordance with the provisions �f Section X hereof, but shall not include Enclosed Mall Operation and Maintenance Expense.
From time to time, and subject to any applicable
provisions of the separate agreements, the Parties shall approve Operator's inclusion in Common Area Maintenance Cost of such portion of Operator's reasonable costs and expenses directly relating·to the maintenance, repair, Operation and. management of the Office Parking ("Office Parking Cost") as shall compensate Operator for the Parties' and their
Permittees' use of the Office Parking on weekends and holidays and in the evenings. Office Parking Cost shall be calculated as if it were Common Area Maintenance Cost. Initially, fifteen percent (15%) of the Office Parking Cost shall be included in Common Area Maintenance Cost; provided however, that such percentage shall be equitably adjusted from time to ti�e (but not more frequently than once in any one Accounting Period) to reflect the then actual use of the Office Parking by retail Permittees as the Parties shall agree, but if they are unable to agree, then as determined by arbitration pursuant to Section XXIII hereof.
In lieu of any other charge for indirect costs
(including, but not limited to, the cost of the operation of any office, accounting services, [but excluding the annual audit of Common Area Maintenance Cost referred to in Section XF hereof], and other services not directly involved with maintenance and Operation), Common Area Maintenance Cost shall include an allowance to Operator for Operator's supervision, RFA/lSf AMENDED.HB/10.18.90 Section I. E
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management and Operation of the Common Area equal to ten percent (10%) of the total of the aforementioned cost and expense of work performed by Operator, or under its direct supervision for each Accounting Period, except (i) real property taxes and assessments, utilities services and
insurance on the Common Area, (ii) the purchase price or rental cost of capital items, (iii) depreciation or amortization, and (iv) the amount Operator has paid Operator's Nominee to perform all or any part of Operator's Operation and maintenance duties under Section X (the "Nominee Cost"). The Nominee Cost may be included in Common Area Maintenance Cost (notwithstanding that such amount may include reasonable overhead and/or profit to such other Person, as the Parties hereto may from time to time agree in writing, or which shall be a r�sult of competitive bid or contract approved by the Parties), but only to the extent that such amount so paid to such other Person shall be for items of cost and expense which would be included in the definition of Common Area Maintenance Cost with respect to such activities or work if preformed by Operator with its own employees. Any capital expenditures which may be incurred shall be excluded from computation of the allowance to be paid to Operator or allowed to Operator's Nominee, as the case may be. Operator shall note on its statements of costs referred to in Section X-F hereof that such activities and work were not performed by Operator with its own employees.
Nothing in this Section I-E contained shall be deemed
to preclude Developer from charging or collecting any
additional or different charges pursuant to any lease or other agreement between Developer and any Occupant.
It is expressly understood that there are separate
agreements between Developer and each other Party with respect to common Area Maintenance Cost, and in the event of any conflict between the obligations of such other Party as set forth in this REA and as set forth in such separate agreement, as between Developer and such other Party, the provisions of REA/lSf AMENDED.HB/10.18.90 - 11 - Section I. E
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such other Party's separate agreement shall control as between the Parties thereto. Developer and each other Party may agree in such a separate agreement that Developer may be obligated to such other Party to pay a portion of such other Party's Allocable Share as is set forth in such other Party's separate agreement with Developer.
F. COMMON BUILDING COMPONENT. The term "Common
Building Component" refers to any single improvement or portion thereof, including, but not necessarily limited to, the Enclosed Mall structure, which is located partly on the Tract of one Party and partly on the Tract of another Party, or wholly on one Tract but which provides a structural benefit to the improvements on another Tract.
G. COURT. The term "Court" refers to those certain
areas within the Enclosed Mall, on each level thereof, abutting the Store of each Major as shown on and.so designated on Exhibit B.
H. DEVELOPER IMPROVEMENTS. The term "Developer
Improvements" refers to "Developer Mall Stores", "Developer Non-Mall Stores", the Enclosed Mall, the Parking Facilities, parking areas located outside the Shopping Center Site as may be approved by the Parties, and all other improvements situated upon the Developer Tract, as the same may exist from time to time, including any replacements thereof.
I. DEVELOPER MALL STORES. The term "Developer Mall
stores" refers to any "Store" located on the Developer Tract abutting the Enclosed Mall, designated on Exhibit Bas DMS-1 A through F, and DMS-2 AA and BB, as the same may exist from time to time, including any replacements thereof.
J. DEVELOPER NON-MALL STORES. The term "Developer
Non-Mall Stores" refers to any Store located on the Developer Tract which does not abut the Enclosed Mall and is designated on Exhibit Bas a Developer Non-Mall Store, as the same may exist from time to time, including any replacements thereof.
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K. ENCLOSED MALL. The term "Enclosed Mall" refers
to the multi-level ventilated, air conditioned and sprinklered mall located in the Center which is constructed so that climatic control may be provided therein and/or which is actually enclosed by walls and ceiling, and which is designated as such on Exhibit B, as the same may exist from time to time, including any replacements thereof.
L. ENCLOSED MALL OPERATION AND MAINTENANCE EXPENSE.
The term "Enclosed Mall Operation and Maintenance Expense" refers to the actual costs and expenses paid in connection with the Enclosed Mall for the Operation thereof, including but not limited to: real estate and personal property taxes and assessments thereon; utility expenses for lighting, operation of air conditioning and ventilating equipment; premiums for t •
fire, extended coverage, vandalism, plate glass and earthquake insurance (if required) for the Enclosed Mall improvements and equipment; maintenance, repair and replacement (including service contracts) of mechanical equipment, including elevators and e�calators, automatic door openers, lighting fixtures (including replacement of tubes and bulbs), air conditioning and ventilating equipment, fire sprinkler system, and sound system; maintenance of landscaping and plants within the Enclosed Mall; repair, maintenance, sweeping, cleaning and painting of the Enclosed Mall, including ceiling, roof, skylights, windows, floors and floor covering and artifacts; and all other items of expense which are incurred for the Operation of the Enclosed Mall, plus a reasonable allowance to Operator for supervision and management of Operation of the Enclosed Mall. Operator, may, however, cause any or all services to be provided by an independent contractor or contractors. Nothing herein contained shall be deemed to limit Developer as to having any additional or different cost factors in any lease or other arrangement which it may have with any Occupant. It is expressly understood by the Parties that there are separate agreements between Developer and each Major RFA/lSf AMENDED.HB/10.18.90 - 13 - Section I. K,L
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relating to the Enclosed Mall Operation and Maintenance Expense, and in the event of any conflict between the
obligations of a Major as set forth in this REA and as set forth in any such separate agreement, as between Developer and/or Operator and such Major, the provisions of the separate agreement shall control as between the Parties thereto. The Operator of the Enclosed Mall shall maintain accounting records in a manner which will separate the Enclosed Mall Operation and Maintenance Expense from Common Area Maintenance Cost and any other costs and expenses.
M. FLOOR AREA. The term "Floor Area" refers to the
actual number of square feet of floor space of all floors in any building located on the Shopping Center Site exclusively appropriated for use by an Occupant, whether or not actually occupied, including basement space, subterranean areas and mezzanine space within the exterior facade or exterior line of exterior walls (including basement walls), except party and interior common walls as to which the center thereof instead of the exterior faces thereof shall be used. Floor Area shall also include the actual number of square feet of kiosks, if any, contained within the Enclosed Mall.
The term "Floor Area" shall not include the following:
1. The upper levels of any multi-deck stock areas
created for convenience to increase the usability of sp�ce for stock purposes;
2. Areas which are used exclusively for mechanical
equipment, electrical equipment (including electrical equipment to operate point of sale, telecommunication and computer equipment), vestibules (which shall not exceed an aggregate of (600] square feet per floor measured as if it were Floor Area), elevator shafts, escalator wells, telephone equipment, fire protection equipment, HVAC and other such building operating equipment, including trash compacting and baling rooms, whether or not physically separated or whether or not required by building codes, exterior walls, toilet rooms and janitor RFA/lSf AMENDED.HB/10.18.90 - 14 - Section I. L,M
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closets;
3. Any Common Area;
4. Any (i) Center management office and/or (ii)
Merchants• Association offices, provided that the sum of (i) and (ii) shall not exceed an aggregate of eight thousand (8,000) square feet;
s. A United States post office not exceeding one
thousand (1,000) square feet, provided that the rental for such area does not exceed $1,000 per year;
6. Emergency exit corridors, service elevators,
service corridors or stairs between fire resistant walls required by building codes;
7. All truck loading areas, truck tunnels and tr-uck
parking, -turn-around and dock areas and ramps and approaches to such truck loading areas, truck tunnels and truck parking, turn-around and dock areas;
8. "Cultural Facilities"; and
9. Any so-called dead space which may be created by
partitions enclosing unoccupied space so long as such space is not used for any purpose other than the hanging or support of mechanical equipment not to exceed 40,000 square feet of space in the aggregate.
After the completion and opening of the
respective Stores of the Parties, each Party shall, at its sole cost and expense, cause its architect to make a determination as to the number of square feet of Floor Area of each such Party. Such determination shall be completed and furnished to each other Party not later than one hundred twenty (120) days following the date on which the Store of each such Party first opens for business. In lieu of such determination by a Party's architect, any Party may elect to furnish to the other Parties a written certification of its Floor Area. such certification by a Party shall be furnished within the time period above provided. Any dispute arising from such determination or certification shall be resolved by arbitration as provided for RFA/lSf AMENDED.HB/10.18.90 - 15 - Section I. M
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in Section XXIII. In the event such determination of Floor Area by the Party's architect or certification by a Party shows that any Party has constructed Floor Area in excess of its Initial Planned Floor Area and provided such excess does not require such Party to construct additional Automobile Parking Area pursuant to Section VIII-A hereof, such Party's Allocable Share under Section I-B shall increase in accordance with such increase over Initial Planned Floor Area. Notwithstanding anything to the contrary contained in this REA, during the period of any damage, destruction, razing, rebuilding,
repairing, replacement or reconstruction to, on or of any building in the Center, the Floor Area of such building shall be deemed to be the same as the Floor Area of such building immediately prior to such period, and upon the completion of the rebuilding, repairing, replacement or reconstruction of such building, the architect of such Party shall make a new determination of Floor Area or such Party shall furnish a certification of Floor Area for such building as provided in the foregoing provisions of this Section I-M.
N. INITIAL PLANNED FLOOR AREA. The term "Initial
Planned Floor Area" refers to the Floor Area which each Party has designated as the amount of Floor Area it anticipates constructing on its Tract, as provided in Section VIII-A hereof, and, which amount of Floor Area has been utilized in this REA for purposes of determining such Party's Allocable Share and the extent of Common Area and Automobile Parking Area required for the Shopping Center.
o. MAJOR OR MAJORS. The term "Major" or "Majors"
refers to Sears, Mervyn's, and Bullock's severally or
collectively, as may be appropriate, as those terms are defined in Section I-FF.
P. MORTGAGEE AND MORTGAGE. The term "Mortgagee"
refers to a mortgagee, trustee and beneficiary under a
"Mortgage" and, to the extent applicable, a fee owner of a Tract of a Party which is the subject of a sale and leaseback RFA/lST AMENDED.HB/10.18.90 - 16 - Section I. M,N,O,P
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transaction, or the lessee (as distinguished from a sublessee) of any Tract of a Party which is the subject of an assignment and subleaseback transaction, or the sublessee (as
distinguished from a sub-sublessee) of any Tract which is the subject of a sublease and subleaseback transaction. The term "Mortgage" refers to any mortgage, indenture of mortgage, or deed of trust, and, to the extent applicable, a sale and/or assignment or sublease and leaseback transaction, with respect to any Tract of a Party. The terms "Mortgage" and "Mortgagee" shall not refer to any bond, indenture or other security instrument, or trustee, bondholder or other Person, with respect to any bonds issued or financing undertaken by the Agency or City.
Q. OCCUPANT. The term "Occupant" refe;-s to
Developer, the Majors, Ikea and to any Person from time to time entitled to the use and occupancy of Floor Area in the Center under any lease, sublease, deed or other instrument or
arrangement whereunder such Person has acquired rights with respect to the use and occupancy of any Floor Area.
R. OPERATE, OPERATING, OPERATION. The terms
"Operate", "Operating", or "Operation": (i) as respects Stores, mean the Store is open to the general public for business during its business hours·or shall be temporarily not so open for business by reason of any provision of Section XV or XVI, or during any period of restoration or reconstruction of any Store pursuant to the provisions of Section XIII, or by reason of such reasonable interruptions as may be incidental to the conduct of its business; (ii) as respects the Enclosed Mall, mean that the,Enclosed Mall is open to the public during the business hours of the Majors or any of them, and for not less than one-half hour before and after the same are open, and is properly maintained, air-conditioned, lighted, ventilated, and sprinklered and that all services are being performed necessary to operate and maintain said Enclosed Mall as required by the provisions of Section X-A and as provided for RFA/lSI' AMENDED.HB/10.18.90 - 17 - Section I. P,Q,R
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in the definition of Enclosed Mall Operation and Maintenance Expense, or shall be temporarily not so open for business by reason of any provision of Section XV or XVI, or during any period of restoration or reconstruction pursuant to the provisions of Section XIII; and (iii) as respects the Common Area, other than the Enclosed Mall, mean that the Common Area is available for the uses contemplated herein, subject to interruptions contemplated by Sections XV and XVI, or during any period of restoration or reconstruction pursuant to the provisions of Section XIII, and is being operated and
maintained in accordance with the requirements of Section X. s. OPERATOR. The term "Operator" refers to the
Person responsible for the Operation of the Common Area, or any part thereof, under the provisions of Section X, including any• I
Person(s) taking over Operation pursuant to Section X-G, and unless otherwise specified includes Operator's Nominee.
T. PARKING FACILITIES. The term "Parking
Facilities" shall mean any multi-level parking structure within the Shopping Center Site, which structure is so identified on Exhibit B, including the incidental and interior roadways; stairways; elevators; ramps; pedestrian decks; pedestrian tunnels; pedestrian bridges (including without limitation expansion j·oints and supporting columns) connecting .said parking structure with the Developer Improvements and the Store of any other Party, if any; walkways, curbs and landscaping within or adjacent thereto; and any improvements which at any time are erected thereon or therein, including any replacements thereof.
u. PARTY. The term "Party" means Developer, Ikea,
and each Major, and any Person succeeding to their respective interests in or to any portion of their respective Tracts, and their respective rights, duties and obligations pursuant to Section XIV.
v. PERIMETER SIDEWALKS. The term "Perimeter
Sidewalks" refers to those areas adjacent to the Stores between RFA/lSf AMENDED.HB/10.18.90 - 18 - Section I. R,S,T,U,V 146
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exterior building faces and interior curb faces, including sidewalks and all other improvements adjacent to the respective buildings of the Parties, which shall be designed and
constructed as provided in Section VI-C.
W. BLANK.
X. PERMISSIBLE DEVELOPMENT AREAS; PDA'S. The term
"Permissible Development Areas" or "PDA's" refers to the areas of land shown on Exhibit B and designated as "PDA-1" through "PDA-4".
Y. PERMITTEES. The term "Permittees" refers to all
Occupants and their respective officers, directors, employees, agents, contractors, customers, visitors, invitees, licensees, subtenants and concessionaires.
z. PERSON. The term "Person" refers to and shall
include individuals, partnerships, firms, associations and corporations, or any other form of business or government entity, and the use of the singular shall include the plural.
AA. PHASE 1 DEVELOPMENT; PHASE 2 DEVELOPMENT; FUTURE
DEVELOPMENT. The term "Phase l. Development" refers to those buildings and other improvements in the Center constructed or to be constructed as shown on Exhibit Bas the "Phase 1
Development". The term "Phase ,a Development" refers to those buildings a-nd other improvements in the ce,nter constructed or to be constructed as shown on Exhibit Bas the "Phase 2
Development". The term "Future Development" refers to any building and other improvements which may be constructed in the PDA's at the location shown on Exhibit B subsequent to the Phase 1 Development and the Phase 2 Development.
BB. PROJECT ARCHITECT. The term "Project Architect"
refers to Leason Pomeroy Associates, or such other architect or architects duly licensed to practice in the State of
California, as may from time to time be designated by Developer and approved by the Majors.
CC. STORE OR STORES. The term "Store" or "Stores"
refers to the building(s), respectively, housing the Sears, REA/lSf AMENDED.HB/10.18.90 - 19 - Section I. V,W,X,Y,2,AA,BB,CC 147
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Store and/or the Mervyn•s Store and/or the IKEA store and/or the Bullock's Store and/or the Developer Mall Stores and/or the Developer Non-Mall Stores, as the context may appropriately require. For purposes of Section XIII of this REA, the term "Store" or "Stores" shall be deemed to include truck parking, turn-around and dock areas; the depressed portions of truck tunnels or ramps; and emergency exit corridors and stairs exclusively located within a Store.
DD. TERMINATION DATE. The term "Termination Date"
refers to the date on which this REA shall terminate pursuant to the terms and provisions of Section XXVII hereof.
EE. TRACT OR TRACTS. The term "Tract" or "Tracts"
refers to the Developer Tract and/or the Sears Tract and/or the Mervyn•s Tract and/or the IKEA Tract and/or the Bullock's Tract, as the context may require.
FF. DEVELOPER, SEARS, MERVYN'S, BULLOCK'S, IKEA, and
AGENCY. The terms "Developer", "Sears", "Meryyn's",
"Bullock's" and "Ikea", respectively, refer to the Person who at the time in question is the Party with respect to the Developer Tract, the Sears Tract, the Mervyn's Tract, the Bullock's Tract, and the Ikea Tract, as the case may be appropriate, it being agreed and understood that the terms, covenants and conditions of this REA shall be binding upon and enforceable by Developer, Sears, Mervyn's, Bullock's, and Ikea only during and in respect of the respective time periods in which each, respectively, is a Party. Notwithstanding the foregoing, it is expressly understood and agreed that (i) the requirements to design and construct improvements and open Floor Area pursuant to Sections IV, V, VI and VII shall be and remain the respective personal covenants of each respective signatory obligated hereunder, and no such signatory (which with respect to Developer shall mean the constituent general partners of Developer as of the date hereof) shall be released from such obligation upon or by any transfer by the signatory of its interest in its Tract (such requirements shall
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additionally be deemed to be covenants running with the land, as well as the personal covenants of each such signatory, and any transferee of such signatory shall, by acquiring a
possessory interest in the Shopping Center, be responsible along with such signatory, to the extent of such transferee's interest, for the performance of such covenants), and (ii) the covenants to Operate pursuant to Section XXI are and shall remain a personal covenant of each such respective signatory, and their successors by means of merger or consolidation, and no such signatory shall be released from any obligation under such covenant upon or by any transfer by the signatory of its interest in its Tract.
Anything in this Section I-FF to the contrary
notwithstanding, it is expressly understood and agreed- -that the • terms "Sears", "Mervyn's", "Bullock's" and "Ikea", for the purposes solely of subparagraphs (i) and (ii) above of this Section I-FF and Section XXI, shall mean Sears, Roebuck and Co., a New York corporation, Mervyn•s, a California
corporation, Bullock's Properties Corp., a Delaware
corporation, and Ikea U.S., Inc., a Pennsylvania corporation, respectively, or any parent or subsidiary corporation thereof, or any other corporation which may succeed to the business (but not the trade name) of Sears, Roebuck and. Co., Mervyn's, Bullock's Properties Corp. and Ikea U.S., Inc., respectively, in Southern California, or any corporation which may, as a result of reorganization, merger, consolidation or sale of stock or assets, succeed to such business (but not the trade name), and each such Party shall be released from all further obligations under this REA if it transfers its interest in its Tract to a Person who acquires, as to Sears, Mervyn•s and Ikea, all or substantially all of that portion of such Party's assets consisting of all of its stores in Southern California, and as to Bullock's, five (5) stores (including the Bullock's Store), then Operating under the respective trade names set forth in Section XXI-A, and by written instrument in recordable form RFA/lST AMENDED.HB/10.18.90 - 21 - Section I. FF
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expressly assumes all of such obligations hereunder, including a personal covenant to be.bound for the full remaining period of the transferring Party's Operating covenant in said Party's Store as and to the extent provided in Section XXI. As to Sears, Mervyn•s and Ikea, any reference in this Section I-FF to Southern California shall be deemed a reference only to the following counties in the State of California: Los Angeles, San Diego, Riverside, Santa Barbara, Orange, Ventura, Kern and San Bernardino, but as to Bullock's, such reference to Southern California shall be deemed to include only Los Angeles and Orange Counties.
The term "Agency" refers to the Redevelopment Agency
of the City of Burbank, and its successors and assigns, and, as used in this REA, shall, as respects the terms, covenants, conditions and provisions of the REA to which the interest of the Agency in the Tract of each Party is subject and
subordinate (pursuan� to the Consent and Subordination attached to this REA), refer only to the Person who at the time in question is the owner of the fee interest with respect to (i) the Developer Tract, (ii) the Sears Tract, (iii) the Mervyn's Tract, (iv) the Bullock's Tract, and/or (v) the IKEA Tract, as the case may be, all of which fee interests are now owned by the Agency.
GG. CULTURAL FACILITIES. The term "Cultural
Facilities" refers to those portions of the Developer Mall Stores and Developer Non-Mall stores which are used for cultural, civic or educational purposes, including without limitation a library, a museum, and a community room. Such cultural Facilities shall not exceed 12,500 square feet of floor space measured as if it were Floor Area.
HH. PHASE 1 DEVELOPER MALL STORES. The term "Phase 1
Developer Mall Stores" refers to those Developer Mall Stores constructed or to be constructed as shown on Exhibit Bas the "Phase 1 Developer Mall Stores".
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II. PHASE 2 DEVELOPER MALL STORES. The term
"Phase .2. Developer Mall Stores" refers to the Developer Mall Stores constructed or to be constructed as shown on Exhibit B as the "Phase 2 Developer Mall Stores".
JJ. PHASE 1 ENCLOSED MALL. The term "Phase .l.
Enclosed Mall" refers to that portion of the Enclosed Mall constructed or to be constructed as shown on Exhibit Bas the "Phase 1 Enclosed Mall".
KK. PHASE 2 ENCLOSED MALL. The term "Phase 2.
Enclosed Mall" refers to that portion of the Enclosed Mall constructed or to be constructed as shown on Exhibit Bas the •• Phase 2 Enclosed Mall".
RFA/lST AMENDED.HB/10.18.90 - 23 - Section I. 11,JJ,KK
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SECTION II
EASEMENTS
A. NON-EXCLUSIVE EASEMENTS GRANTED BY THE PARTIES
FOR AUTOMOBILE PARKING, PEDESTRIAN AND INCIDENTAL USES. Each Party hereby grants to each of the other Parties for their respective use, and for the use of their respective Permittees, in common with all others entitled to use the same, nonexclusive easements over the Common Area of its Tract, for ingress to and egress from such Tract, for the passage and parking of vehicles, and for passage and accommodation of pedestrians, on such portions of such Common Area as are set aside, maintained and authorized for such use pursuant to the terms of this REA, and for the doing of such other things as are authorized or required to be done on said Common Area pursuant to this REA. Subject to Section II-I, each Party further reserves to itself the right to grant such easements over the Common Area of its Tract, for the purposes hereinabove enumerated, to such other Persons as may own or lease real property within the Shopping Center Site.
Subject to Section II-H, each Party hereby reserves
the right to eject or cause the ejection from the Common Area of its Tract of any Person or Persons not authorized, empowered or privileged to use the Common Area of such Tract.
Notwithstanding the foregoing, each Party reserves the right to -close off the Common Area of its Tract for such reasonable period or periods of time as may be legally necessary to prevent the acquisition of prescriptive rights by anyone; provided, however, that within a reasonable time prior to closing off any portion of the Common Area, as herein provided, such Party shall give written notice to each other Party of its intention so to do, and shall coordinate such closing with all other Parties so that no unreasonable interference with the Operation of the Shopping Center shall occur.
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B. UTILITY EASEMENTS GRANTED BY THE PARTIES.
1. Separate Utility Lines. Each Party hereby grants
to each of the other Parties for their respective use and for the use of their respective Permittees, non-exclusive easements in, to, over, under and across the Common Area of its Tract for the installation, operation, flow and passage, use,
maintenance, repair, relocation and removal of sanitary sewers, storm drains, water and gas mains, electrical power lines, cable TV lines, telephone lines and other utility lines, all of such sewers, drains, mains and lines to be underground, serving the Tracts of each of the Parties.
2. Common Utility Lines. · Each Party hereby grants
to each of the other Parties for their respective use and for the use of their respective Permittees, non-exclusiye easements, in, to, over, under and across the Common Area of its Tract for the installation, operation, flow and passage, use, maintenance, repair, relocation and removal of sanitary sewers, storm drains, water and gas mains, electrical power lines, cable TV lines, telephone lines and other utility lines, all of such sewers, drains, mains and lines to be underground, servicing the Common Area and for use in common with the other Parties.
3. Location of Easements. The location of all
easements of the character described in this Section II-B shall be subject to the approval of the Party in, to, over and under whose Tract the same is to be located. Upon completion of construction of such utility facilities, the Parties shall join in the execution of an agreement, in recordable form,
appropriately identifying the type and location of such respective utility facility.
C. CONSTRUCTION EASEMENTS GRANTED BY THE PARTIES.
Each Party, with respect to its Tract, hereby grants to each of the other Parties non-exclusive easements in, to, over, under and across the Common Area of each such Tract for the
construction, reconstruction, erection and removal and
REA/lSf AMENDED.HB/10.18.90 - 25 - Section II. B,C
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maintenance on, to, over, under and across such Tract of (i) Common Building Components, (ii) footings, foundations, supports and common walls to a maximum lateral distance of six feet (6'), (iii) canopies, flag poles, roof and building overhangs, facades, awnings, alarm bells, signs, lights and lighting devices and other similar appurtenances to the building to a maximum lateral distance of fourteen feet (14'), and (iv) electrical or similar vaults and HVAC supply-exhaust shafts below the surface of such Common Area, to a maximum lateral distance of fourteen feet (14'), as any of the
foregoing are shown in the working drawings for such building, submitted to the granter at least sixty (60) days prior to commencement of construction, and approved by the Parties pursuant to the provisions of Section IV hereof, or pursuant to any other written agreement hereafter executed between any of the Parties (including the Party whose Tract is burdened thereby). Should a Party desire to have footings in common with any other Party, such common footings shall be compatible with the design of the building to be erected by the granter Party. If common footings are approved, the first such Party prepared to construct footings for its building shall, upon request, be furnished by the other Party with all required column loading and anchor bolt information required by the Party first constructing in order to cast same in'the common footings at the time of concrete placement. The cost of common footings shall be allocated among the applicable Parties based on the weight each Party's building will place on such common footings. Each Party hereby covenants and agrees that its exercise of such easements shall not result in damage or injury to the buildings or other improvements of any other Party, and shall not interfere with the business operation conducted by any other Party or by Operator. The exercise of the rights referred to in this Section II-C shall be in conformity with Section III hereof. Upon completion of the construction elements referred to above, and upon the request of any Party, RFA/lSf AMENDED.HB/10.18.90 - 26 - Section II. C
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the Parties shall join in the execution of an agreement, in recordable form, appropriately identifying the nature and location of each such construction element.
D. EASEMENTS FOR PEDESTRIAN BRIDGES, PEDESTRIAN
DECKS AND PEDESTRIAN TUNNELS. The other Parties as to their respective Tracts hereby grant to Developer easements for the construction and attachment of the pedestrian bridges,
pedestrian decks and pedestrian tunnels (including without limitation expansion joints and supporting columns) shown on Exhibit B, and for the maintenance, repair and replacement thereof; provided that the Party(ies) to whose Store any such pedestrian bridge, pedestrian deck or pedestrian tunnel is to attach has approved the plans for such pedestrian bridge, pedestrian deck or pedestrian tunnel pursuant to Section IV-E10. Each pedestrian bridge and deck .
so erected and constructed
shall at all points where it crosses any access drive be maintained in such a manner so as to at all times provide for a clearance between such access drive and such bridge and deck of not less than fourteen feet six inches (14 1 6
11 ) (or greater
height if required by City code) for truck passage. Developer shall coordinate the construction of the pedestrian bridges, pedestrian decks and pedestrian tunnels with the Party(ies) to whom the pedestrian bridge, deck or tunnel i� to attach so as to minimize the interference with the business and construction of such Party.
E. BLANK.
F. DOMINANT AND SERVIENT ESTATES. Each easement
granted pursuant to the provisions hereof is expressly for the benefit of the Tract of the grantee, and the Tract so benefited shall be the dominant estate and the Tract upon which such easement is located shall be the servient estate, but where only a portion thereof is bound and burdened, or benefited by a particular easement, only that portion so bound and burdened, or benefited, as the case may be, shall be deemed to be the servient or dominant tenement, as the case may be. Any
RFA/lSf AMENDED.HB/10.18.90 - 27 - Section II. C,D,E,F
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easement granted pursuant to the provisions of this Section II may be abandoned or terminated by execution of an agreement so abandoning or terminating the same, by the owners of the dominant and servient estates and consented to by the
Mortgagee, if any, of the dominant estate. Any relocation of any easement shall be made at the expense of the Person requesting such relocation.
G. FIRE AND SERVICE CORRIDOR EASEMENTS. Developer
hereby grants to each of the other Parties such easements on the Developer Tract as such other Parties may reasonably require in order to provide emergency fire ex�t corridors or stairs as required by building codes, leading from the Store or Stores of such other Parties to the Automobile Parking Area or such other location as is required by applicable codes; provided such location does not result in the loss of any Floor Area. The easements granted under this Section II-G shall remain in effect and shall not terminate as long as the grantee's Store is in existence.
H. REDESIGNATION OF AREAS WITHIN THE STORE SITES.
Subject to the provisions of Sections VIII-A the Parties shall each have the right, as to their respective Tracts, in those areas designated on Exhibit Bas Store Sites at any time and from time to time, to designate, withdraw and redesignate as Floor Area, or Common Area, such areas, excluding fire exit or service corridors, as each may, respectively, from time to time select, provided that each such Person shall improve said area at its sole cost and expense in accordance with such
designation and with all applicable requirements of this REA, and provided further, that if a Major is Operating in the Center, a building facade of the store of such Major shall always be located so as to provide a customer entrance on the following levels of the Enclosed Mall: Sears and Bullock's shall each provide a customer entrance on levels 1, 2 and 3 of the Enclosed Mall, and Mervyn•s shall provide a customer entrance on levels 2 and 3 of the Enclosed Mall; and so as to RFA/lST AMENDED.HB/10.18.90 - 28 - Section II. F,G,H
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complete the enclosure of the Enclosed Mall from and after the date of completion of construction of the Enclosed Mall and said Store and so long thereafter as said Enclosed Mall is required to be maintained as such; and provided further, that if a Major is Operating in the Center, the Enclosed Mall shall always be located so as to provide customer entrances on the following levels of the Enclosed Mall: if the Major so
Operating in the Center is Sears, or Bullock's, Developer shall provide a customer entrance on Levels 1, 2 and 3 of the Enclosed Mall, and if the Major so Operating in the Center is Mervyn's, Developer shall provide a customer �ntrance on Levels 2 and 3 of the Enclosed Mall. Nothing in this Section II-H shall be deemed to permit Developer to change the location of the Developer Mall Stores or the Enclosed Mall as shown on Exhibit B without the prior written approval of the other Parties.
I. PROHIBITION AGAINST GRANTING EASEMENTS. No Party
nor the Agency shall grant an easement or easements of the type set forth in this Section II for the benefit of any property not within the Shopping Center Site without the prior written approval of each other Party.
J. ACCESS EASEMENTS FOR SEARS, MERVYN'S, BULLOCK'S -
AND IKEA. Developer hereby grants to each of Sears, Mervyn•s, Bullock's and Ikea, a non-exclusive easement over the portions of the Developer Tract which are shown on Exhibit B and designated respectively as the Sears Access Easement Area, Mervyn's Access Easement Area, Bullock's Access Easement Area and Ikea Access Easement Area for ingress and egress of vehicles and pedestrians. The easements granted by this Section II-J shall be perpetual and shall survive the
Termination Date.
K. RENTAL CAR PARKING EASEMENT FOR SEARS. Developer
hereby grants to Sears an easement to maintain up to twenty (20) parking spaces in Parking Facilities No. 2 at the location shown on Exhibit "B" (the "Sears Rental Car Parking Area") for RFA/lST AMENDED.HB/10.18.90 - 29 - Section II. H,l,J,K
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the purpose of operating a rental car operation, provided however that there be no advertising for any of said
automobiles, including, but not limited to, pedestal-type signs, located on the Developer Tract, provided further however, Sears may utilize directional signage for its rental car operation on the Developer Tract, the location and content of which signage shall be subject to the mutual approval of Sears and Developer. At such time as Sears shall use any portion of the Sears Rental Car Parking Area as a rental car parking area, such area shall not be included in the parking space count for the purpose of maintaining the parking space ratio set forth in Section x-c.
L. BULLOCK'S TRUCK DOCK EASEMENT. Developer hereby
grants to Bullock's an-exclusive easement for ,the purposes of deliveries to the Bullock's Store, loading, unloading and access, and other activities reasonably related thereto (hereinafter referred to as the "Bullock's Truck Dock
Easement"), at the location designated on Exhibit Bas
"Bullock's Truck Dock Easement Area", and more particularly described as a part of the Bullock's Tract in Part 6 of Exhibit A.
Bullock's shall indemnify, defend and hold
Developer harmless from any loss, liability, cost or expense incurred in connection with or as a result of Bullock's exercise of the Bullock's Truck Dock Easement unless occasioned by Developer's sole negligence or intentional act or omission.
The easement granted in this Section II-L shall remain in existence so long as the Bullock's Store (or any restoration or replacement thereof made during the term of this REA) remains in existence.
M. BULLOCK'S TRANSFORMER EASEMENT. Developer hereby
grants to Bullock's an exclusive easement for the purposes of the construction, operation and maintenance of a transformer and other activities reasonably related thereto (hereinafter referred to as the "Bullock's Transformer Easement"), at the location designated on Exhibit Bas "Bullock's Transformer Easement Area", and more particularly described as a part of the Bullock's Tract in Part 6 of Exhibit A.
Bullock's shall indemnify, defend and hold
Developer harmless from any loss, liability, cost or expense incurred in connection with or as a result of Bullock's exercise of the Bullock's Transformer Easement unless
occasioned by Developer's sole negligence or intentional act or omission. The easement granted in this Section II-M shall , remain in existence so long as the Bullock's Store (or any restoration or replacement thereof made during the term of this REA) remains in existence.
RFA/lST AMENDED.HB/10.18.90 - 30 - Section II. K,L,M
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N. BULLOCK'S PICK-UP AREA EASEMENT. Developer
hereby grants to Bullock's an exclusive easement for the purposes of loading, unloading and access, in connection with the Operation of the Bullock's Store (hereinafter referred to as the "Bullock's Pick-Up Area Easement"), at the location designated on Exhibit Bas "Bullock's Pick-Up Area", and more particularly described as a part of the Bullock's Tract in Part 6 of Exhibit A.
Bullock's shall indemnify, defend and hold
Developer harmless from any loss, liability, cost or expense incurred in connection with or as a result of •Bullock's exercise of the Bullock's Pick-Up Area Easement unless
occasioned by Developer's sole negligence or intentional act or omission. The easement granted in this Section II-N- shall remain in existence so long as the Bullock's Store (or any restoration or replacement thereof made during the term of this REA) remains in existence.
O. SEARS PICK-UP AREA EASEMENT. Developer hereby
grants to Sears an exclusive easement for the purposes of loading, unloading and access, in connection with the Operation of the Sears Store (hereinafter referred to as the "Sears PickyP Area Easement"), at the location designated on Exhibit Bas "Sears Pick-Up Area", and more particularly described as a part of the Sears Tract in Part 3 of Exhibit A.
Sears shall indemnify, defend and hold Developer
harmless from any loss, liability, cost or expense incurred in connection with or as a result of Sears exercise of the Sears Pick-Up Area Easement unless occasioned by Developer's sole negligence or intentional act or omission. The easement granted in this Section II-0 shall remain in existence so long as the Sears Store (or any restoration or replacement thereof made during the term of this REA) remains in existence.
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SECTION III
EXERCISE AND DURATION OF EASEMENTS
A. The exercise of the easements granted pursuant to
Section II hereof shall be subject to the following provisions:
1. The grantee of any of the utility easements
referred to in Sections II-B-1 and II-B-2 shall be responsible as between the granter and the grantee thereof for the
installation, maintenance, repair and replacement of all sanitary sewers, storm drains, pipes and conduits, mains and lines and related equipment installed pursuant to such grant.
Any such maintenance, repair and replacement shall be performed only after notice to the granter of the grantee's intention to do such work and grantor's approval of the scope and timing of the performance of such work and its impact on grantor's utilities, except in the case of emergency, and any such work shall be done without cost or expense to the granter and in such manner as to cause as little disturbance in the use of the Common Area as may.be practicable under the circumstances.
Upon completion of such work, the grantee shall, at its sole cost and expense, restore the Common Area affected by such work to the same condition as existed before the commencement of such work.
2. At any time the granter of any of the utility
easements granted pursuant to Sections II-B-1 and II-B-2 shall have the right to relocate on the Tract of the granter any such sewers, drains, mains and lines and related equipment then located on the Tract of the granter, provided that such relocation shall be performed only after thirty (30) days' notice of the grantor's intention to so relocate shall be given to the grantee, and such relocation: (i) shall not
unreasonably interfere with or diminish the utility services to the grantee; (ii) shall not reduce or unreasonably impair the usefulness or function of such utility; and (iii) shall be performed without cost or expense to the grantee. Notwithstanding such relocation, the maintenance of the sewers, RFA/1Sf AMENDED.HB/10.18.90 - 31 - Section III. A
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drains, lines, mains, and/or equipment located on the Tract of the grantor shall be the obligation of the grantee; provided that if there shall be any material increase in the cost of such maintenance by reason of such relocation, the grantor shall bear the cost of such material increase.
3. The easements granted by Section II-A hereof
shall terminate and expire on the Termination Date.
4. The easements granted by Sections II-B and II-J
hereof shall" be perpetual, provided, however, if the use of the easements granted by Sections II-B and II-J or of the
facilities therein shall have ceased for a period of two {2) years and prior to the resumption of use {a) the then record owner of the fee of the Tract burdened with such easement gives written notice by U. s. registered mail return receipt req-qes-ted _ _ 1
·
•·
to the then record owner of the fee of the Tract benefited by such easement and the then record owner, if any, of· any leasehold estate in such benefited Tract, stating that such easement has been abandoned, (b) there is placed of record in the Recorder's Office in Los Angeles County, California, an affidavit that such abandonment has taken place and that such notice has been properly given, and (c) any record owner of the fee of and the then record owner of any leasehold estate in the benefited Tract within ninety {90) days after such notice fails to place of record in the Recorder's Office in Los Angeles County, California, an affidavit that such easement has been used within such two (2) year period, then any Person at any time acquiring an interest in any Tract after the first such affidavit or notice described above has been placed of record shall (provided such affidavit and recording shall have been made after the Termination Date as provided above) be entitled to rely absolutely upon the failure of the Person receiving the first such notice to have placed of record an affidavit of use within such ninety (90) day period as being conclusive evidence that such easement has been abandoned and terminated.
RFA/1ST AMENDED.HB/10.18.90 - 32 - Section III. A
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5. The easements granted by Sections II-C, IID, II-G and, as to Sears only, II-K shall remain in existence so long as the respective Stores of the grantees and, as to Developer, the Enclosed Mall shall be in existence in the Center (including any period of reconstruction pursuant to Section XIII), except to the extent that the same physically relate to the buildings and improvements (other than Common Building Components) of the granter of any such easements, in which event such easements shall remain in existence only so long as the respective Stores and, as to Developer, the Enclosed Mall, of the grantees of such easements shall be in existence in the Center. Interruption in service of any such easements shall be permitted as a result of any cause or event referred to in Section XV-A hereof.
B. Each of the Parties agrees that in the event the
Store·of a Major, the Enclosed Mall or the Parking Facilities shall be removed or destroyed, at such time as such Party is not required and does not elect to restore the same pursuant to the provisions of this REA, it will, as to its Tract, leave in place any foundations, footings or supports not destroyed which immediately prior to such removal or destruction were shared jointly between such removed or destroyed structure and the Store of any Major, or the Enclosed Mall or the Parking Facilities, as the case may be, for so long as such other Store or the Enclosed Mall or the Parking Facilities, as the case may be, is in existence, including any period of restoration or reconstruction of same.
Nothing contained in this Section is or shall be
determined to impose upon any Person any obligation to
reconstruct all or any part of any Store or the Enclosed Mall or the Parking Facilities, beyond the period when such
reconstruction is required under this REA. Anything contained herein to the contrary notwithstanding, but subject to the preceding paragraph, upon the Termination Date, any Party may demolish its Store, and Developer may demolish the Enclosed REA/ISf AMENDED.HB/10.18.90 - 33 - Section III. A,B
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Mall; provided, however, that no such demolition by any Party shall affect the structural integrity of any dependent
structures.
RFA/lST AMENDED.HB/10.18.90 - 34 - Section III. B.
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SECTION IV
IMPROVEMENT PLANS
A. PROCEDURES FOR CONSTRUCTION OF SHOPPING CENTER
IMPROVEMENTS. Developer shall cause the Project Architect to prepare the improvement plans and specifications (hereinafter "Improvement Plans"), consistent with Exhibit B, for the Developer Improvements, which Improvement Plans shall show the general architectural concept of the improvements to the Center contemplated herein and the integrated development of all Common Areas of the Center, provided that the Improvement Plans for all or any part of the Future Development ·shall be prepared only if Developer elects to construct all or any part of the Future Development as provided in Section VII�D, it being agreed that notwithstanding anything to the
1 contrary contained
elsewhere in this REA, there is no obligation whatsoever for Developer to construct any of the Future Development. The Parties shall be consulted frequently during the course of the preparation of such Improvement Plans and shall be provided progress prints. From time to time during the course of the preparation of such Improvement Plans, Developer shall cause the Project Architect to submit progressive working drawings of such Improvement Plans to each of the Parties for review, recommendation and approval.
In order to produce an architecturally compatible and
unified Shopping Center, each Party agrees to consult with the other Parties concerning the design, the color treatment and the exterior materials to be used in the construction of all buildings and structures on its Tract, and to consider the views of the other Parties with respect thereto prior to selecting the specific materials and colors for its
improvements. Each Party also agrees to cause its architect to work in good faith with the Project Architect and the other Parties so that the buildings to be erected and constructed in the Center will have an overall cohesive and related
architectural continuity and will be in harmony with the REA/lST AMENDED.HB/10.18.90 - 35 - Section N. A
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balance of the Shopping Center improvements. Notwithstanding the above, each of the Parties agrees that in the event of a dispute between a Party and the Project Architect as to such matters, the Party shall have the right to make the final decision in its sole and absolute judgment, which decision shall not be subject to arbitration under Section XXIII.
1. Basic Concept Drawings. The Agency heretofore
has approved Basic Concept Drawings prepared by the Project Architect. All Improvement Plans prepared pursuant hereto by the Project Architect shall be developed in accordance with the general concept set forth in said Basic Concept Drawings and Exhibit B.
2. Schematic Improvement Plans. Developer shall
cause the Project Architect to prepare and submit to the other Parties, for review and approval, schematic-Improvement Plans which show the architectural appearance of the improvements to be constructed by Developer, including the elevations,
graphics, colors, materials, landscaping and night lighting to be used in the design of such improvements, but excluding the interiors and storefronts of the Developer Mall Stores and Floor Area on the Developer Tract. Changes may be made in the approved schematic Improvement Plans only by the agreement in writing of the Parties and the Agency.
B. COMMON AREA IMPROVEMENT PLANS (excluding the
Enclosed Mall).
1. Content of Preliminary Improvement Plans for
Common Area. The preliminary Improvement Plans prepared by the Project Architect on behalf of Developer with respect to the construction of the Common Area shall, no later than one hundred twenty (120) days after approval of the schematic Improvement Plans (as such period may be reasonably extended due to any delays caused by any utility company in preparing any such Improvement Plans), be submitted to the other Parties for their review and approval, and shall show, without
limitation, the following items:
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(a) All access roadways; exterior boundary
walls or fences; project signs; curbs; curb cuts; entrance driveways; interior roadways; the Automobile Parking Area; utility systems and lines to serve Common Area improvements and such Floor Area as each Party may designate as to its Store Site; sanitary sewer lines, storm drains and other drainage lines or systems, including extensions thereof situated outside the Shopping Center Site to connect to established public utility systems; fire hydrants; lighting facilities and other similar facilities for common use, provided that the design and working drawings for storm drains and area drains, including extensions thereof off the Shopping Center Site, sanitary sewers, water, telephone, gas, electric power and other utility lines, conduits and systems, including taps for commercial •• connections to points designated by each respective Party, not closer than five feet (5') from the building face, may be prepared, under the supervision of the Project Architect, by the utility companies responsible for such installations or by architects or engineers other than the Project Architect, but same shall be subject to the approval in writing by the Parties.
(b) The location of all facilities for
common use where the fixing of such location is reasonably possible, and if precise location ·cannot be shown,
specifications for such location shall be set forth.
(c) A comprehensive rough grading plan for
the entire Shopping Center, including the size and dimensions of all facilities for common use; storm drains, including area drains, surface drainage installations and taps for building connections; and sanitary sewers for common use, including taps for building connections.
(d) A composite parking layout for the
entire Shopping Center which shall show paving, striping, compact parking spaces, bumpers, curbs, location of lighting standards, and which shall designate areas which may be REA/lSf AMENDED.HB/10.18.90 - 37 - Section IV. B
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separately illuminated from time to time at the request of any Party.
(e) A composite landscaping and landscape
irrigation plan as prepared by the landscape architect, which shall specify overall plant materials and planting, together with illustrations of all such plantings.
(f) The conditions, standards and
architectural treatment under which the foregoing improvements and appurtenances shall be located, constructed or installed.
Such conditions, standards or architectural treatment shall not be less than the minimum requirements of the City or of any other governmental agency having jurisdiction over the
performance of the work and shall provide that sewers,
drainage, utility lines and conduits, except within structures,· including the Parking Facilities, shall not be constructed or maintained above the ground level of the Common Area.
(g) The general location of all Floor Area
and other areas not included within the definition of either "Floor Area" or Common Area".
(h) The design of all waterline systems of
such size and standards so as to meet the necessary fire protective requirements of various fire underwriters, as hereinafter provided.
(i) The location and extent of Perimeter
Sidewalks. The Perimeter Sidewalks shall be designed and constructed in accordance with Section VI-C hereof.
(j) The location and extent of stairways,
decks, tunnels, bridges and escalators, if any, from the Parking Facilities to the Enclosed Mall or to the Store of any Party.
(k) A directional graphics package for the
Automobile Parking Area.
(1) Improvement of adjacent streets,
including traffic signals, as required by the DDA and this REA, RFA/lST AMENDED.HB/10.18.90 - 38 - Section IV. B
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and any other off-site improvements to the extent shown on Exhibit B.
2. Final Improvement Plans. Within one
hundred eighty (180) days from the date of approval of the preliminary Improvement Plans, Developer shall cause the Project Architect to submit final Improvement Plans to each of the Parties for review and approval; such final Improvement Plans shall be developed from the approved preliminary
Improvement Plans.
3. Approval of Common Area Improvement Plans.
From time to time during the course of the preparation of each stage of the Improvement Plans, Developer shall cause the Project Architect or other architects responsible for
preparation of such Improvement Plans to submit progressive drawings to each of the Parties for review, recommendation and approval. Developer shall cause all plans approved by the Parties to be submitted by the Project Architect to the Agency for review and approval as required by the DOA. In the event a Party objects to the Common Area Improvement Plans submitted, such objections shall be made in writing to the Project Architect. If there is an objection from any Party which cannot be resolved by the Project Architect, the Project Architect shall call a meeting of the Parties to be held within forty-five (45) days from such date of submission to resolve such objection. All objections shall be considered at such meeting with the intent that such Common Area Improvement Plans will be agreed to in their final form at such meeting. If at such meeting the Parties are unable to agree unanimously, all matters of disagreement as between the Parties shall be resolved between the Parties by the arbitration procedures of Section XXIII hereof. To the extent practical, all work shall continue during any period of arbitration.
4. Additional Common Area Improvement Plans.
Additional Improvement Plans for the development of the Common RFA/lST AMENDED.HB/10.18.90 - 39 - Section N. B
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Area or for the construction of permitted additional
improvements in the Center may be developed by the Project Architect or may be developed by others and submitted to the Project Architect for approval. Upon such preparation or approval by the Project Architect, as the case may be, such Improvement Plans shall be submitted to the Parties and to the Agency for their approval in writing pursuant to Section XXIXR.
To provide continuity and harmonious architectural treatment in the development or approval of such Improvement Plans, prior approved .Improvement 'Plans shall be followed as a guide in any such additional Improvement Plans and in the establishment of conditions, standards and
architectural treatment under which unimproved areas shall. be improved or additional improvements shall be made. Any
material change from previously approved Improvement Plans shall be subject to the approval of the Parties.
5. Delivery of Approved Improvement Plans. All
Improvement Plans shall be stamped "approved", dated and certified by the Project Architect and maintained by it in a safe and convenient place. The Parties and the Agency shall each receive a copy of the final Improvement Plans. In the event of the designation of another Project Architect, alJ._. _
(-:: •.
Improvement Plans and other records relating thereto shall be delivered to the new Project Architect at the time of such designation.
C. ENCLOSED MALL DESIGN AND IMPROVEMENT PLANS.
Developer shall send each Major one (1) reproducible copy of the general design plans and specifications for the Enclosed Mall, and each Major sha�l have the right to approve same pursuant to Section XXIX-R. After approval of the general design plans and specifications for the Enclosed Mall by each Major, Developer shall prepare final plans and specifications for the Enclosed Mall and submit them to each of the Majors for approval. Such plans shall include the plans and
RFA/lST AMENDED.HB/10.18.90 - 40 - Section IV. B,C
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specifications for attachment of the Enclosed Mall to the Store of any Major, and the architect preparing the same shall consider the facade of the building to which the attachment is to be made; the sheathing of any columns in the Enclosed Mall adjacent to any such building facade; the signing requirements of the Major at its Enclosed Mall entrance or in the Major's Court; the insurance requirements of the Major so as to maintain the quality of its usual fire and extended coverage insurance without increased premium; building code
requirements; and the fact that there shall be no seismic loading or structural stress imposed upon any Store which would require additional support by such Store. Each Major shall have the right to approve, in its sole and absolute judgment, the plans and specifications for attachment of the Enclosed Mall to its store, and in such determination, each of the requirements set forth above shall be relevant circumstances.
In the event plans and specifications for such attachment are submitted and approved by any Major in sufficient time to enable it to construct its Store so as to receive such
attachment such Major shall so construct its Store. In the event such plans and specifications are not submitted in sufficient time, but are thereafter approved, then and in that event the expense of any change incurred by any Major in ·,'. preparing or changing its Store plans or specifications anti any additional cost in constructing such Store, or any change or modification thereto, shall be borne by Developer.
Notwithstanding anything contained herein to the
contrary, in the development of plans and specifications for the attachment of the Enclosed Mall to the Stores, the Majors shall coordinate their Store plans with Developer to the extent that the walls of the Stores may be constructed to permit attachment to the Enclosed Mall in accordance with such coordinated plans.
The general interior design and construction of, the
elevation of, and the architectural treatment of, the Enclosed REA/lST AMENDED.HB/10.18.90 - 41 - Section IV. C
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Mall, excluding the store fronts of Occupants, shall be subject to the prior written approval of each of the Parties other than Ikea. Developer agrees to submit in a timely fashion to each of the Majors, for informational purposes only, a directional graphics package for the Enclosed Mall. Directional graphics shall include indicators for the location of each Major.
Notwithstanding anything contained in this Section IV,
each Major shall have the right of approval of the design of its respective Court, including such items as column locations, decor, floor coverings, layout, decorative elements, floor elevations, ceiling heights, lighting, wiring, elevators, escalators, stairways and furnishings. Notwithstanding the right of each such Major to disapprove the design of its Court, no such disapproval may be predicted on a requirement wh'ich would materially alter the general design concept of the Enclosed Mall which was previously approved in accordance with the requirements of this Section IV.
The Parties agree that they shall use their diligent
efforts to construct their respective Stores within their respective property lines.
As used herein the word "attachment" shall mean
abutment without structural support so that the improvements in question have structural independence, but the improve��nts may attach for purposes of waterproofing.
D. PLANS FOR THE STORES. The plans for the
respective Stores of the Parties shall be prepared in
substantial conformity and shall be consistent with the schematic Improvement Plans approved by the Parties and the Agency. The locations, number of levels, height, and exterior plan configurations of all buildings and structures to be constructed by each of the Parties on its Store Site shall, if not indicated thereon or if different from Exhibit B or if greater than Exhibit c, be subject to the prior written approval of each of the Parties, in their sole and absolute discretion. In order to produce an architecturally compatible REA/lSI' AMENDED.HB/10.18.90 - 42 - Section N. C,D
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unified Shopping Center, each Party agrees to consult with all other Parties concerning the design, color treatment and exterior materials to be used in the construction and
reconstruction of all buildings and structures on its Tract and to consider the views of all other Parties with respect thereto prior to selecting the specific materials and colors for its improvements. The design standards for the on-site
improvements, including schematic parking layout, landscaped areas and driveways, shall be uniform for all Parties• Tracts so far as the same are to be constructed at or above ground level.
The Majors and Ikea shall cause to be delivered to
Developer, the Project Architect and to each other Party, for informational purposes only, at least ninety (90) days- before . commencement of construction of such Party's Store, one copy of their proposed plans and specifications as respects the exterior design, including color and material, of their respective Stores. The Project Architect shall, within twenty (20) days after the receipt thereof, notify each such Party of any exterior design features, color or material which in the Project Architect's judgment are not compatible with the design concept of the Shopping Center. In the event any such notice is given by the Project Architect to any Party, such Party agrees to cause its architect thereafter to work in good faith with the Project Architect and the other Parties so that the buildings to be erected and constructed will be in harmony with the approved architectural general concept of the Shopping Center. The question of architectural compatibility shall not, however, be subject to arbitration under Section XXIII.
E. GENERAL DESIGN DATA FOR COMMON AREA. In the
preparation of all Improvement Plans provided for in Section IV, and any further plans for additional development or changes in the Common Area, the following general design data, without limitation, shall be followed, as minimums, unless governmental RFA/lSf AMENDED.HB/10.18.90 - 43 - Section IV. D,E
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specifications for such work establish higher standards, in which event the higher standards shall prevail:
1. Sewer and other utility lines, conduits or
systems shall not be constructed or maintained above the ground level of the Shopping Center Site unless such installations are approved by the Parties and the Agency, are within enclosed structures, and conform with the requirements of the City and other applicable governmental or private agencies having jurisdiction thereof.
2. Street improvements shown on Exhibit B
respecting future and existing streets and roads adjacent to the Shopping Center shall be made in accordance with the requirements of the City and other governmental agencies hav�ng jurisdiction thereof.
3. Lighting for Automobile Parking Area shall
be provided by fixtures of such type as the Parties shall approve, with separate meters and area controls and with electric time switches on a seven (7) day program. Unless otherwise provided for in the approved Improvement Plans, the lighting requirements for various areas in the Automobile Parking Area shall be sufficient to provide a minimum
maintained lighting intensity in open areas of one (1)
footcandle, and within the Parking Facilities an intensity of five (5) footcandles, with an average to minimum ratio of not greater than 2 to 1, and four (4) footcandles at all entrances to the Automobile Parking Area, each measured at grade. The lighting system shall be designed so that it can be illuminated at twenty-five percent (25%) of full intensity, uniformly distributed throughout the Automobile Parking Area, during hours of darkness that the Shopping Center is not open for business.
4. The driving ramps in the Parking Facilities
which have automobile parking spaces thereon shall have a maximum slope within the Parking Facilities not to exceed five RFA/lSf AMENDED.HB/10.18.90 - 44 - Section IV. E
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percent (5%), unless otherwise shown on the approved
Improvement Plans.
s. All sidewalks, unenclosed malls, if any,
pedestrian bridges and pedestrian aisles and pedestrian decks and tunnels shall be of approved materials, and the surface of the Automobile Parking Area and access roads shall be paved by installing a suitable base, with a bituminous or asphaltic wearing surface or other material as shown on the approved Improvement Plans, or other approved material.
6. The surface of that portion of each level of
the Enclosed Mall devoted to pedestrian traffic shall to the extent practicable be installed in a continuous plane without steps. The maximum slope in such surface shall not exceed onehalf of one percent (1/2%), unless otherwise shown on the approved Improvement Plans.
7. All fire protective systems shall be
installed in accordance with the requirements of local
authorities having jurisdiction over such installation, and in accordance with any additional requirements of a qualified, independent inspection firm representing any Party with respect to its improvements, such as the Insurance Services Office of California, Industrial Risk Insurers, Factory Mutual
Engineering Association or Frank B. Hall.
8. The ventilating and cooling system of the
Enclosed Mall shall be capable of maintaining seventy-two degrees (72°) Fahrenheit dry bulb and fifty percent (50%) humidity inside conditions with outside conditions of ninety degrees (90°) Fahrenheit dry bulb and seventy-one degrees {71 °) Fahrenheit wet bulb. The entire system shall be automatically controlled.
9. BLANK.
10. The plans for construction of any pedestrian
bridges, decks and tunnels from the Parking Facilities to the Developer Improvements or to the Store of any other Party shall clearly designate lighting, landscaping (if any), materials, RFA/1ST AMENDED.HB/10.18.90 - 45 - Section IV. E
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colors, finishes, the length, height, design and drainage characteristics thereof and shall be subject to the approval of all Parties. At the point of connection with a Store or the Developer Improvements,. as the case may be, the height of the finished surface of each such pedestrian bridge shall be established at the same elevation as the corresponding floor of the Store or Developer Improvements to which such pedestrian bridge connects. The location, width and extent of any
pedestrian bridges, decks and tunnels from the Parking
Facilities to the extension of the Enclosed Mall or to a store of any Party shall be as shown on Exhibit B, and any variation therefrom shall be subject to the approval of all Parties and the Agency. The Majors shall have the right to approve, in their sole and absolute discretion, th� plans for attachment of any pedestrian bridge, deck or tunnel to the Store of each such Major, and each Major shall have the right to approve the plans and specifications for the construction of any pedestrian bridge, deck or tunnel.
11. The maximum slope of any pedestrian bridge
extending from the Parking Facilities to the Developer Mall Stores, the Enclosed Mall, or to any other Store shall not exceed 8.5% and shall slope away from the Stores, unless otherwise shown on the approved Improvement Plans.
12. To the extent required by Section II-H
hereof, the Sears Store and the Bullock's Store shall each have at least one exterior entrance, and at least one interior entrance into levels one, two and three of the Enclosed Mall on each such level of the Enclosed Mall, and the Mervyn•s Store shall have at least one exterior entrance, and at least one interior entrance into levels two and three of the Enclosed Mall on each such level of the Enclosed Mall.
13. The Enclosed Mall shall contain sprinkler
protection (including a deluge system or a fire protection water curtain, if required by building code requirements) within the ceiling plane and at all windows and doors of the REA/lST AMENDED.HB/10.18.90 - 46 - Section IV. E
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Store of any Major, and shall include any smoke vents required by code or the insurance requirements set forth in Section IVc.
14. The air conditioning specification of the
Stores (except the Developer Non-Mall Stores) and of the Enclosed Mall shall be so designed, constructed, operated and maintained so as not to unduly drain conditioned air from, nor unduly discharge or return air into, the Enclosed Mall or Stores, as the case may be, and Developer agrees that Occupants of the Developer Mall Stores shall be similarly required not unduly to drain conditioned air from, or unduly discharge residue or return air into, the Enclosed Mall.
F. EXERCISE OF APPROVAL RIGHTS. Subject to the
applicable provisions of Section IV-C hereof, no Party shall, in exercising its right of.approval over the plans and
specifications of any other Party, or over the Common Area Improvement Plans, make any unreasonable request, or make any request whatsoever which would unreasonably increase the cost of the work to be performed. Except as expressly otherwise provided herein, the reasonableness of any such request shall, as between the Parties, if disputed by any Party, be determined by arbitration as provided in Section XXIII hereof. No
approval of Improvement Plans by a Party shall constitute the assumption of any responsibility by that Party, as to third parties, for the accuracy, sufficiency or propriety of such Improvement Plans, or a representation or warranty that the Improvement Plans require the construction of economic
improvements or improvements which comply with applicable laws.
G. CHANGES IN IMPROVEMENT PLANS. Changes may be
made in approved Improvement Plans only by the agreement in writing of all the Parties. The Party requesting any such change shall pay any resulting additional cost incurred in connection with such changes; provided, however, the requesting Party or Parties shall pay such additional cost only if: (i) the request for change is made after such Party or Parties has REA/lSf AMENDED.HB/10.18.90 - 47 - Section IV. E,F,G
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or have first approved the Improvement Plans, and (ii) the request for change is not the result of an error by the Project Architect, governmental requirements or a pre-existing
condition. In the event any Party shall fail to respond to a request for approval of such change in writing within thirty {30) days from the date of submission of such change, subject to the requirements of Section XXIX-D, such change shall be deemed to have been rejected by such Party. The cost of such changes shall be estimated by the Project Architect and approval obtained from the Party(ies) responsible for the payment thereof prior to the issuance of authorization for the work in question to proceed.
H. QUALITY OF ENCLOSED MALL CONSTRUCTION. The
quality of (i) the construction, (ii) the construction
components, (iii) the decorative elements and (iv) the
furnishings and the general architectural character and general design (including, but not by way of limitation, decorative elements), the material selection, the decor and the treatment values, approaches and standa�ds of the Enclosed Mall shall be comparable, at minimum, to the qualities, values, approaches and standards (as of the date hereof) of the Crystal Court at South Coast Plaza, Costa Mesa, California.
I. PHASE 1 DEVELOPMENT IMPROVEMENT PLANS.
Notwithstanding anything to the contrary contained in this REA, the Parties and the Agency hereby agree that·a11 of the Improvement Plans required for the Phase 1 Development are hereby approved and accepted, and all of the Plans of Sears, Mervyn•s and Ikea required to be approved are hereby approved and accepted.
REA/lST AMENDED.HB/10.18.90 - 48 - Section IV. G,H,I
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SECTION V
CONSTRUCTION OF DEVELOPER IMPROVEMENTS
Developer agrees, on a date as soon as reasonably
possible after approval of the final Improvement Plans and, subject to Section XV, in accordance with the construction schedule set forth in Exhibit G, to commence the construction of the Developer Improvements (exclusive of any Developer NonMall Stores) in the Phase 1 Development as shown on Exhibit B, and thereafter diligently proceed to completion. Developer agrees, on or before September 9, 1991 and, subject to Section XV, in accordance with the construction schedule set forth in Exhibit G, to commence construction of the Developer
Improvements in the Phase 2 Development as shown on Exhibit B and thereafter diligently proceed to completion. Developer shall be deemed to have commenced the construction referred to in the preceding sentences upon the date that Developer shall have let a firm contract or contracts for the construction of the Developer Improvements and shall have commenced the construction of the foundations of the Developer Improvements.
Developer agrees to complete construction of the Phase 1 Developer Mall Stores, at least as to all structural elements, including without limitation, exterior walls and roofs; and the ·,Phase 1 Enclosed Mall, and any tempor�ry closures which may be required, on or before August 21, 1991. Developer agrees to complete construction of the Phase 2 Developer Mall Stores, at least as to all structural elements, including without
limitation, exterior walls and roofs, and the Phase 2 Enclosed Mall, and any temporary closures which may be required, on or before September 9, 1992. Developer agrees to complete
construction of the Common Area (exclusive of the Enclosed Mall) as and when required by Section VI hereof.
The construction of the Developer Improvements in the
Phase 1 Development and the Phase 2 Development shall be performed in accordance with the final approved Improvement Plans relating thereto and in accordance with Exhibit B.
RFA/lSf AMENDED.HB/10.18.90 - 49 - Section V.
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SECTION VI
CONSTRUCTION OF COMMON AREA
A. CONSTRUCTION OF COMMON AREA IMPROVEMENT WORK BY
DEVELOPER.
1. Upon approval of the Common Area Improvement
Plans referred to in Section IV-B-2 hereof, Developer shall enter into written contracts providing for the construction of the portions of the Common Area improvements which it is required to perform pursuant to this REA and the DDA. The portions of such work which Developer has agreed to perform are more specifically set forth in Section VI-B hereof. Each such contract shall expressly provide that no Major or Ikea shall have any liability for any portion of the cost of such work.
It is expressly recognized by the Parties that there are separate agreements between Developer and each other Party relating to the payment of its portion of the cost of the . common improvement work. Such other Party's obligation in respect of such work is limited as provided in its separate agreement.
2. The common improvement work shall consist
of the following items of work as approved by the Parties:
(a) Preliminary Development of Site.
Preliminary development of the Shopping Center Site, including, but not limited to, the following:
(1) Preliminary and master planning.
(2) Traffic studies and environmental
impact reports or studies and all other requirements of applicable federal, state and local law.
(3) Design, planning and construction
of off-site and/or on-site storm drains, flood control
facilities, and planning of appropriate off-site and on-site improvement for development by Developer or public bodies. (4) Design, planning and construction
of off-site and on-site improvements for the general benefit of the Shopping Center Site, including, but not limited to, REA/lSf AMENDED.HB/10.18.90 - 50 - Section VI. A
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perimeter streets and access roads (whether or not dedicated to public use) and planning and erection of directional signs, traffic signalization, street lighting, and other facilities, all as reasonably required to provide proper ingress and egress for the Center.
(5) Undergrounding or off-site
relocation of overhead utility facilities.
(6) Demolition, clearing, rough
grading, and fill of the Shopping Center Site, including, but not limited to, removal of subsurface obstructions and
utilities and including the building pads and any building excavations, excluding, however, any backfill adjacent to any Store that may be required as a result of the excavation of the building pad of such Store, which backfill work shall be done by and at the sole cost and expense of the Party constructing such Store, provided material is stockpiled on-site and available for use by such Party.
(7) Improvement, including landscaping, of all areas between the boundaries of the Shopping Center Site and the street curbs immediately adjacent thereto. (b) Improvement of Common Area. The
design, construction and improvement of the Common Area including, but not limited to, the following:
(1) Fill and compaction requirements,
if any, ·to develop the same.
(2) Finish grading.
(3) All paving, striping and lighting,
including panelboards, switches and electric time clock controls.
(4) Facilities for surface and
subsurface drainage.
(5) Malls (excluding the Enclosed
Mall), sidewalks, gutters and curbs, exclusive of Perimeter Sidewalks, which Perimeter Sidewalks shall be designed and constructed as provided in Section VI-C.
RFA/lSf AMENDED.HB/10.18.90 - 51 - Section VI. A
.,
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(6) Landscaping, including related
water systems and related automatic control systems, except for landscaping and related facilities within Perimeter Sidewalks, which shall be designed and constructed as provided in Section VI-C, and except those related to construction of the Enclosed Mall.
(7) Common sanitary sewers, storm
drains, gas, electrical, water and telephone and other utility facilities beyond five feet (5') from the building face of the respective buildings of the Parties, but in no event closer than five feet (5') to said building face.
(8) All amenities such as benches,
trash baskets, public telephones, newspaper stands, drinking fountains, bicycle racks, decorative features and similar facilities for the comfort or benefit of the Permittees, together with institutional signs, symbols, directories and similar notices for and to the Center, including signs during construction, which signs shall be of such size, form and content as the Parties shall approve.
(9) All Automobile Parking Area,
including without limitation the Parking Facilities.
B. SCOPE OF CONSTRUCTION BY DEVELOPER. Pursuant to
the DDA, the Agency has agreed·to construct certain
improvements within, adjacent to and in the vicinity of the Shopping Center Site, including street improvements, street lighting, intersection signalization, sewer systems, water systems, gas systems, telephone systems, cable TV systems, drainage systems and landscaping. All such work shall be performed as shown in the Common Area improvement plans prepared pursuant to Section IV-B and in accordance with and subject to the monetary and other limitations contained in those certain documents attached as exhibits to the DDA entitled "Scope of Development" and "Schedule of Performance", which documents are attached hereto as Exhibits F and G and which are incorporated herein by this reference. Developer RFA/lSf AMENDED.HB/10.18.90 - 52 - Section VI. A,B
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shall perform or construct, or cause to be performed or constructed, all of the items of common improvement work specified in Section VI-A-2 and as shown on Exhibit B except for those items which the Agency is obligated to construct pursuant to Exhibits F and G. It is understood and agreed that the Parties are relying upon the provisions of this Section and the construction by the Agency and/or by the city of the improvements, in accordance with the terms of Exhibits F and G and the DDA, in entering into this REA.
C. DESIGN AND CONSTRUCTION OF PERIMETER SIDEWALKS.
Perimeter Sidewalks shall be designed, improved, and the cost and expense of design and construction thereof shared or borne by the Parties as follows:
1. Design. All surface improvements
constructed within said Perimeter Sidewalk areas, including curbs, sidewalks, landscapi�g, landscape sprinkler systems, retaining walls, earth fill, and special planters shall be designed by the architect for the Store whose exterior wall is adjacent to such surface improvements, subject to the approval of the Project Architect for conformity with approved general design standards for Perimeter Sidewalks and with respect to architectural compatibility, and each Party shall pay the design fee of its architects or other consultants with respect to the Perimeter Sidewalks adjacent to its Store.
2. Construction. Each Party shall construct or
shall cause the construction of its Perimeter Sidewalk areas, including all surface improvements located therein, which construction shall be performed at such Party's cost and expense, and in accordance with the final approved plans with respect thereto and in accordance with the construction schedule for the construction of the Store of each Party.
D. SCHEDULING OF COMMON AREA IMPROVEMENT WORK. The
performance of the construction of the Common Area under any contract shall be scheduled by Developer in consultation with the other Parties so as to coordinate such performance with the REA./lST AMENDED.HB/10.18.90 - 53 - Section VI. B,C,D
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construction of the Stores. Developer covenants with each of the Majors that all Common Areas (exclusive of the Enclosed Mall) shall be completed and available for commercial use and Operation as contemplated by this REA by a date at least thirty {30) days prior to the date the first of Sears or Mervyn's shall open for business, but in no event shall the foregoing require completion of construction prior to June 12, 1991.
Notwithstanding anything to the contrary contained above, Developer covenants with Ikea that the Common Area shown on Exhibit Bas "Parking Facilities No. 3" shall be substantially completed and available for commercial use and Operation as contemplated by this REA by a date at least ten (10) days prior to the date Ikea opens for business, but in no event shall the foregoing require completion of construction prior to
September 30, 1990. Developer covenants with each of the Majors that the Phase 1 Enclosed Mall shall be completed and available for use and Operation as contemplated by this REA by August 21, 1991, and the Phase 2 Enclosed Mall shall be completed and available for use and Operation as contemplated by this REA by September 9, 1992.
REA/lSf AMENDED.HB/10.18.90 - 54 - Section VI. D
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SECTION VII
CONSTRUCTION OF STORES; OPENING DATES
A. CONSTRUCTION. Subject to the provisions of this
Section VII and Section XV, each of Sears, Mervyn•s, Bullock's and Ikea agrees to cause construction of its Store to commence as follows: (i) Sears agrees to cause construction of its Store to commence no later than thirteen (13) months prior to the "Grand Opening" (as hereinafter defined); (ii) Mervyn•s agrees to cause construction of its Store to commence no later than twelve (12) months prior to the "Grand Opening"; (iii) Bullock's agrees to cause construction of its Store to commence no later than eighteen (18) months prior to the "Bullock's Grand Opening" (as hereinafter defined); and (iv) Ikea agrees to cause construction of its Store to commence no later than twelve (12) months prior to the "Ikea Grand Opening" (as hereinafter defined). Each of Sears, Mervyn•s, Bullock's and Ikea further agrees thereafter diligently to prosecute such construction to completion so that each such Store shall be constructed within its Store Site, with at least the Initial Planned Floor Area specified in Section VIII-A and shall be open to the general public for business on or before the dates hereinafter provided. Notwithstanding the foregoing,
commencement of construction by each Major is conditione� up�n:
(i) approval by such Major of the Improvement Plans, (ii) ·prior commencement and diligent continuation of construction by Developer pursuant to the provisions of Sections V and VI, (iii) prior commencement and diligent continuation of
construction by Ikea of the Ikea Store, so that Ikea can be reasonably expected to complete construction of the Ikea Store and open for business no later than the Grand Opening; and (iv) Developer's approval of all construction easements reasonably required by such Major as provided in Section II-C.
In the event that Ikea has not commenced or is not
diligently proceeding with construction of the Ikea Store by August 21, 1991 (subject to Section XV), or if Ikea has not RFA/lST AMENDED.HB/10.18.90 - 55 - Section VII. A
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completed construction of the Ikea Store and opened for business by August 21, 1992 (subject to Section XV), then each of the other Parties shall have the right to terminate this REA by so notifying each of the other Parties of its election to terminate this REA, effective thirty (30) days after said notice.
All such construction shall be performed in accordance
with the requirements of this REA and the DOA and in accordance with each such Party's final Store plans.
B. OPENING DATES. Subject to Section XV, each of
Sears and Mervyn•s shall open for business in 'its Store no later than August 21, 1991 (the "Grand Opening"); Bullock's shall open for business in its Store no later than September 9, 1992 (the "Bullock's Grand Opening") and Ikea shall be open for business in its Store no later than October 31, 1990 (the "Ikea Grand Opening"). The obligation·of each such Party to open for business by its Grand Opening is subject to (i) completion by Developer of the required common improvement work and the availability of same for use and Operation as set forth in Section VI-D on or before July 21, 1991 as to Sears and Mervyn's, August 9, 1992 as to Bullock's and September 30, 1990 as to Ikea, (ii) completion by the Agency of its common improvement work on or before September 30, 1990.
The obligation of each of Sears and Mervyn's to open·
for business by the Grand Opening is also subject to Developer having at least sixty percent (60%) of the Initial Planned Floor Area of the Phase 1 Developer Mall Stores leased and obligated to be open for business on or before the Grand Opening. The obligation of Sears to open for business by the Grand Opening is also subject to Ikea being open or prepared to open for business simultaneously. The obligation of Mervyn•s to open for business by the Grand Opening is also subject to Sears being open or prepared to open for business
simultaneously. The obligation of Bullock's to be open for business by the Bullock's Grand Opening is also subject to (i) RFA/lST AMENDED.HB/10.18.90 - 56 - Section VII. A,B
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Developer having at least seventy percent (70%) of the number of Occupants of all of the Developer Mall Stores leased and open for business on or before Bullock's Grand Opening, (ii) Sears, Mervyn•s and Ikea being open or prepared to open for business simultaneously, and (iii) the full payment to
Bullock's by Developer of the "Reimbursement" (as defined in the Bullock's Lease) as required by the Bullock's Lease.
Developer shall notify each of Sears and Mervyn•s at least thirty (30) days prior to the Grand Opening as to the amount of Floor Area of Phase 1 Developer Mall Stores Developer estimates will be leased and obligated to be open for business on the Grand Opening. If such notice discloses that less than sixty percent (60%) of the Initial Planned Floor Area of the Phase 1 Developer Mall Stores will be leased and obligated to be open for business on the Grand Opening, Developer shall then notify Sears and Mervyn•s at least thirty (30) days prior to the date Developer estimates it will have at least sixty percent (60%) of the Initial Planned Floor Area of the Phase 1 Developer Mall Stores leased and obligated to be open for business, and Developer shall then notify Bullock's at least thirty (30) days prior to the date Developer estimates it will have at least seventy percent (70%) of the number of Occupants of all of the Developer Mall Stores leased and open for business. In the event that either Developer or the Agency,_ as the case may be, shall not have satisfied their respective requirements on or before the respective dates provided for in this Section VIIB, then the Grand Opening of the Party in question may be postponed at such Party's election by a period equal to the number of days commencing on the date such requirement was to have been satisfied, up to and including the date both
Developer and the Agency have satisfied their respective requirements.
The obligation of each Major and Ikea to be open for
business by their respective Grand Openings is also subject to Developer delivering to each of Sears, Mervyn•s, Bullock's and REA/lSf AMENDED.HB/10.18.90 - 51 - Section VII. B
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Ikea possession of its Store Site in accordance with the requirements in the respective separate agreements between Developer and each of Sears, Mervyn•s, Bullock's and Ikea at least thirteen (13) months prior to such opening date as to Sears, at least twelve (12) months prior to such opening date as to Mervyn•s, at least eighteen (18) months prior to such opening date as to Bullock's and at least twelve (12) months prior to such opening date as to Ikea; free from all surface and subsurface improvements, rough graded, equipped with temporary utilities and with a staging area pursuant to plans approved by the Majors and Ikea, respectively. In the event Developer fails to deliver possession to such Majors and Ikea, respectively, as provided herein, then, subject to the
provisions of Section VII-A, the opening date of such Party•s· Store shall be deemed to be-extended on a day for day basis so that such Party will have the time period required by Section VII-A hereof within which to construct its Store.
Anything herein to the contrary notwithstanding, in no
event shall any Major be required to open its Store for business between November 1 of any calendar year and March 1 of the next succeeding calendar year, or during the period from March 10 to June 30 of any calendar year, or from August 1 to September 30 in any calendar year, or during the thirty (30) day period prior to Easter Sunday.
C. TIME FOR OPENING AND LEASING OF DEVELOPER MALL
STORES AND OPENING OF THE ENCLOSED MALL. Developer agrees that if Sears and Mervyn's shall be open for business or ready to open for business on the Grand Opening, Developer shall, on the Grand Opening, and with respect to the Phase 1 Development, open the Enclosed Mall to the public and use its diligent efforts to have all of the Initial Planned Floor Area of the Phase 1 Developer Mall Stores open for business and have leased and obligated to be open for business at least sixty percent (60%) of the Initial Planned Floor Area of the Phase 1
Developer Mall Stores. Developer agrees that if Bullock's RFA/lSI AMENDED.HB/10.18.90 - 58 - Section VII. B,C
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shall be open for business or ready to open for business on the Bullock's Grand Opening, Developer shall, on the Bullock's Grand Opening, and with respect to the Phase 1 Development and the Phase 2 Development, open the Enclosed Mall to the public and use its diligent efforts to have all of the Initial Planned Area of all of the Developer Mall Stores open for business and have leased and open for business at least seventy percent (70%) of the number of Occupants of all of the Developer Mall Stores.
D. FUTURE DEVELOPMENT.
1. The areas comprising the Future Development
initially constitute a part of the Common Area on the Developer Tract. The Future Development is designated on Exhibit Bas "PDA 1" through "PDA 4", inclusive.
2. The Future Development area shall be
improved in the Phase 1 Development by Developer as part of the Common Area as shown on Exhibit B, in conformity with the Improvement Plans prepared and approved as provided in Section IV hereof, and shall be completed by Developer on or before the date provided in Section VI-D, and shall remain as shown on Exhibit B until construction of the Future Development to be constructed thereon is commenced. After construction of any portion of the Future Development is commenced, the portion .. of any PDA improvements as are actually constructed shall not be part of the Common Area, if, and to the extent, such
improvements constitute Floor Area or other non Common Area improvements.
3. Blank.
4. Developer, at no expense to the Majors or
Ikea, may construct or cause to be constructed the Future Development improvements only within the areas respectively shown on Exhibit B and designated PDA 1, PDA 2, PDA 3 and PDA 4.
5. Developer agrees that the construction and
Operation of any improvements constructed on PDA 1 through PDA 4 in connection with the Future Development shall be subject to RFA/IST AMENDED.HB/10.18.90 - 59 - Section VII. C,D
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and conform to the following limitations:
a. Such improvements shall not exceed the
height limitations set forth for such improvements on Exhibit c attached hereto and made a part hereof.
b. The total Floor Area on all floors of
such improvements shall not at any time in the aggregate exceed the maximum amount of Floor Area permitted in accordance with the Automobile Parking Area ratio provided in Section x-c hereof.
c. All improvements on PDA 1 through PDA 4
shall be located as shown on Exhibit B.
d. All signs on such improvements shall be
subject to the Sign Criteria attached hereto as Exhibit D and made a part hereof.
e. Such improvements shall be maintained
and used for occupancy only by businesses for the retail selling of goods, wares, and merchandise and/or services, and for hotel, motel or office building purposes and/or parking structures.
The specific uses for the PDA's are set
forth in Section VIII-H hereof.
f. The construction and Operation of such
improvements shall be subject to all applicable terms,
requirements, conditions and provisions of the ODA and this REA.
6. In the event Developer elects to construct
or cause the construction of the Future Development (or any portion of it), Developer shall, at no expense to the Majors or Ikea, and prior to the completion of construction and Operation of any such improvements, complete construction of sufficient Automobile Parking Area in order to maintain the Automobile Parking Area ratios required on the Shopping Center Site pursuant to Section x-c.
7. The Future Development, if constructed,
shall be constructed in accordance with Exhibit B and all REA/lSf AMENDED.HB/10.18.90 - ti() - Section VII. D
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applicable requirements of the DDA and of this REA applying to the Developer Improvements. All Common Area to be constructed as part of the Future Development shall be constructed by Developer at no expense to the Majors or Ikea and in accordance with Exhibit B and all applicable requirements of the DDA and of this REA applying to the construction of the Common Area.
RFA/lSf AMENDED.HB/10.18.90 - 61 - Section VII. D
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SECTION VIII
FLOOR AREA, USE, OPERATION, SIZE AND HEIGHT
A. FLOOR AREA. The Initial Planned Floor Area and
the minimum Floor Area of each of the Parties are as follows:
Phase 1 Development
Developer
Mall Stores
Sears Store
Mervyn's Store
Ikea Store
Phase 2 Development
Bullock's Store
Developer Mall Stores
Future Development
Future Office (PDA 3)
(including related
restaurant and retail)
Initial Planned
Floor Area
305,000
116,550
84,000
215,510
220,800
65,800
up to 159,800
(up to 170,000
gross building
area)
Developer
Non-Mall Stores
PDA 1
PDA 2
PDA 4
not to exceed
not to exceed
not to exceed
5,000
6,000
10,000
Minimum
Floor Area
220,000
81,585
58,800
125,200
154,560
46,060
0 0
0 Each Party shall initially construct its Initial Planned Floor Area as set forth above; provided, however, that except as provided in Section VII-D-2 Developer shall not be obligated to construct any of the Future Development improvements.
The Initial Planned Floor Area of the Developer Mall
Stores and the Developer Non-Mall Stores of the Future
Development shall be deemed part of Developer's Initial Planned Floor Area upon the substantial completion of construction thereof.
Notwithstanding the foregoing, nothing herein is
intended to limit the maximum size of any Party's Store or, except to the extent expressly set forth herein, require that any Party maintain any minimum Floor Area on its Tract. In the event that any Party constructs more than three percent (3%) in excess of its Initial Planned Floor Area, all such construction shall comply with the following conditions:
REA/lSf AMENDED.HB/10.18.90 - 62 - Section VIII. A
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1. It shall be located within the area shown
for such Party's Floor Area as shown on Exhibit B.
2. It shall be constructed in accordance with
the provisions of Section IX and all other applicable
provisions of the DOA and this REA.
3. It shall not exceed the maximum height for
such Store as shown on Exhibit c.
4. Such Party shall provide, at its sole cost
and expense, additional Automobile Parking Area, either by adding land to its Tract at a location approved by the Parties or by construction of a parking structure on its Tract or in the Center at a location approved by the Parties and containing sufficient automobile park�ng spaces so that there shall be the same ratio of automobile parking spaces to the aforementioned excess Floor Area as is provided in Section x-c for the Shopping Center as a whole. The Automobile Parking Area for such excess Floor Area shall be designed and constructed in accordance with the Improvement Plans approved by the Parties in like manner as provided in Sections IV, VI and IX hereof for the original construction of the Automobile Parking Area. s. Such Party shall maintain such additional
Automobile Parking Area at its sole cost and expense, or such maintenance shall be performed �y the Operator pursuant to a separate agreement with the Operator providing for said maintenance by the Operator at such Party's expense. Such additional Automobile Parking Area shall, upon completion, become a part of the Common Area, and it shall be maintained pursuant to the same standards as set forth in Section x. In no event, however, shall any costs of Operation, maintenance and reconstruction of any such additional Automobile Parking Area, including real estate taxes and assessments, be included in Common Area Maintenance Cost.
B. HEIGHTS AND CONDITIONS. The heights of all
buildings in the Center shall not exceed those specified in RFA/lSf AMENDED.HB/10.18.90 - 63 - Section VIII. A,B
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4961
Exhibit c attached hereto and by this reference made a part hereof.
Each of the Parties covenants and agrees with
each other that no building or buildings or improvements, other than Common Area improvements or Permissible Development Area improvements, shall be erected or expanded on the respective Tracts of the Parties, except within their respective Store Sites designated on Exhibit B, and that the exterior wall or walls, as the case may be, of buildings erected on all such Tracts shall be along the building lines fixed in Exhibit B, and such buildings shall be located as shown on Exhibit B.
C. USES. Neither the Center, nor any part thereof,
shall be used, and no building or other improvement shall be constructed, maintained or used for any purpose other'than the·· following: retail, office, cultural and service establishments of the type common to a first-class regional shopping center, including, without limitation, financial institutions,
brokerage offices, restaurants and travel and other agencies (collectively the "Permitted Uses"); provided that throughout the term of this REA, so long as two Parties are Operating in their minimum Floor Area, or one Major is Operating in its minimum Floor Area, (i) no office building shall be permitted other than in PDA 3; and (ii) service establishments (excluding theatres and restaurants), financial institutions and brokerage offices shall not, as to Developer, exceed ten percent (10%) of the Initial Planned Floor Area of the Developer Mall Stores, and, as to each Major and Ikea, shall not exceed ten percent (10%) of the Initial Planned Floor Area of each Major's Store and Ikea's Store, respectively. Nothing contained in this Section VIII-C shall be construed so as to expand the
construction, development and use limitations on the Future Development set forth in Section VIII-H.
D. PROHIBITIONS. No use or operation will be made,
conducted or permitted on or with respect to all or any part of the Center, which use or operation is obnoxious to or out of REA/lST AMENDED.HB/10.18.90 - 64 - Section VIII. B,C,D
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harmony with the development or operation of a first-class regional shopping center containing an enclosed air-conditioned mall, including, but not limited to, the following:
1. Any public or private nuisance.
2. Any noise or sound that is objectionable due
to intermittence, beat, frequency, shrillness or loudness.
3. Any obnoxious odor.
4. Any noxious, toxic, caustic or corrosive
fuel or gas, including gas or fuel used for vehicles.
5. Any dust, dirt or fly ash in excessive
quantities.
6. Any unusual fire, explosion or other
damaging or dangerous hazard, including the storage, display or sale of fireworks or other material whose primary purpose is.to cause explosions.
7. Any warehouse (but any area for the storage
of goods intended to be sold or distributed at any retail or service establishment in the center shall not be deemed to be a warehouse), assembly, manufacture, distillation, refining, smelting, agriculture or mining operations.
8. Any mobile home or trailer court, labor
camp, junk yard, stock yard or animal raising. Notwithstanding the foregoing, pet shops shall be permitted within the Center, provided that such shops shall be conducted so that t�ere shall be no violation of the other prohibitions of this Section VIIID by reason of the operation of such shops.
9. Any drilling for and/or removal of
subsurface substances.
10. Any dumping of garbage or refuse.
11. Any commercial laundry or dry cleaning plant
other than as shown on Exhibit B, laundromat, veterinary hospital, car washing establishment, bowling alley, mortuary or similar service establishment.
12. Any automobile body and fender repair work.
REA/ISf AMENDED.HB/10.18.90 - 6.5 - Section VIII. D
I•
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13. Any pet shops within 150 feet measured from
the center line of Sears, Bullock's and Mervyn's respective Court entrances.
14. Any kiosks, except those located within the
"Permissible Kiosk Areas" shown on Exhibit B.
15. Any theatre other than as shown on
Exhibit B.
E. NO SALES OUTSIDE FLOOR AREA. No merchandise
and/or services shall be displayed, sold, leased, stored or offered for sale or lease outside the physical limits of Floor Area, or outside the "Ikea Activity Area" as shown on Exhibit B, except for the parking of rental cars in the Sears Rental Car Parking Area as provided in Section II-K and except for occasional Center promotions first approved by the Parties.
F. COMPLIANCE WITH REGULATIONS. The Parties shall
at all times, both during and after completion of construction of their respective facilities, comply with all federal, state, county, and municipal laws, ordinances, rules, and regulations, and with all regulations of the local Fire Insurance Rating organizations having jurisdiction or any other organization or board exercising similar functions, respecting the
construction, maintenance and Operation of its respective Store. As to the Common Area, Developer, or if Developer is_ not the Operator as to all or any'portion of said Common Area, then the successor Operator, shall comply with the foregoing laws, ordinances, rules and regulations.
G. IMPROVEMENTS ON PERMISSIBLE DEVELOPMENT AREAS.
Exhibit B designates the location of the "Permissible
Development Areas" or "PDA's". Any improvements on the
Permissible Development Areas shall be compatible with the improvements on the Shopping Center Site. The Permissible Development Areas shall be utilized in a manner consistent with first-class mixed use projects, consistent with the use restrictions contained in Section VIII-H, and consistent with RF.A/lST AMENDED.HB/10.18.90 - 66 - Section VIII. D,E,F,G 195
4964
the development and Operation of the Shopping Center Site contemplated by the DDA and this REA.
In addition to the requirements set forth in Section
VII-D-8, Developer agrees to provide the Majors with copies of all plans for improvements to be constructed on the Permissible Development Areas promptly upon receipt thereof so as to permit the Majors to exercise a right of approval or disapproval as to their compatibility with the Shopping Center.
H. USES FOR PERMISSIBLE DEVELOPMENT AREAS. The
construction, development and use of the Permissible
Development Areas shall be limited as follows:
PDA 1 may be used only for any of the Permitted Uses
defined in Section VIII-C.
PDA 2 may be used only for any of the Permitted•Uses
defined in Section VIII-C.
PDA 3 may be used only for office and related retail
and restaurant uses.
PDA 4 may be used only for any of the Permitted Uses
defined in Section VIII-C.
The Parties acknowledge that Attachment 4 to the DDA,
the Scope of Development (attached as Exhibit F to this REA), imposes certain limitations and restrictions on the development of the Shopping Center. Each of the Parties agrees that it will comply with all of the limitations and restrictions set forth in Exhibit Fas to its Tract.
REA/lST AMENDED.HB/10.18.90 - 67 - Section VIII. G,H
- !
er::."
(• . ·:•\
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SECTION IX
GENERAL CONSTRUCTION REQUIREMENTS
A. :INTERFERENCE WITH CONSTRUCTION. Any Person
performing construction pursuant to this REA shall perform such work so as not to cause any increase in the cost of
constructing the remainder of the Shopping Center or any part thereof, and so as not to unreasonably interfere with any construction work being performed on the remainder of the Shopping Center Site or any part thereof, or with the use, occupancy or enjoyment of the Shopping Center Site or any part thereof by any Party, Occupant or Permittee.
Each Party severally, as to the respective work of
each, agrees to defend and hold each other Party harmless from all claims, including any lawsuits or similar proceedings; and from all costs, including attorneys' fees, resulting from any accident, injury, loss or damage whatsoever occasioned to any Person or property of any Person as shall occur by reason of the performance of its work.
B. CONSTRUCTION BARRICADES. Except with respect to
the Phase 1 Development, each Party constructing any building on the Shopping Center Site shall construct a solid barricade or other protective fencing, at least six feet (6') in height, surrounding the building or buildings so being constructeq.
Such construction barricade shall be kept in place, in good condition and repair, until the building so being constructed is secure from unauthorized intrusion. All solid barricades shall be painted in colors approved by the Parties.
C. SUBMISSION OF PLANS AND SCHEDULE. At
least ninety (90) days prior to the commencement of the work to be performed by Developer and Bullock's, Developer shall cause the Project Architect to submit to each
other Party for approval: (i) a plot plan of the Center showing, as respects the buildings, utility lines and
other improvements to be constructed by Developer and
Bullock's, material and equipment storage sites,
REA/lST AMENDED.HB/10.18.90 - 68 - Section IX. A,B,C
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haul roads, construction shacks and other temporary improvements, and the workmen's parking area; and (ii) a time schedule for the construction and completion of the buildings and other improvements being constructed, indicating the approximate date or dates when such construction will commence and be completed, including the date or dates upon which each portion of the Center used for the purposes referred to in the preceding subdivision (i) shall cease to be so used by Developer and/or Bullock's. Each other Party shall have fifteen (15) days from the receipt of said plot plan and time schedule within which to approve or disapprove the locations of such sites, improvements and area and the time schedule for such construction, it being expressly understood and agreed that any disapproval must specify the reasons therefor. If any other Party disapproves said plot plan and/or time schedule, Developer and/or Bullock's shall_make appropriate changes thereto in order to prevent any construction conflicts or undue interference with the operation of such other Party's Store.
D. WORKMANSHIP. Each Party, as respects all
construction which it is required to perform, agrees that such construction shall be done in a good and workmanlike manner, with first-class materials and in accordance with all
applicable laws, rules, ordinances and regulations. Each P�rty agrees to pay all costs, expenses, liabilities and liens arising out of or in any way connected with its construction; provided, however, that nothing herein shall be deemed to prevent a lien secured by a Mortgage on a Tract. Developer shall be required, upon demand, to deliver to any other Party evidence (i) of completion of Developer's work in compliance with all applicable laws, ordinances, regulations and rules, including a copy of the recorded Certificate of Completion issued by the Agency as required by the DOA as to work
performed on the Shopping Center Site; (ii) of compliance with approved plans applicable thereto; and (iii) of payment of all costs, expenses, liabilities and liens arising out of or in any RFA/lSf AMENDED.HB/10.18.90 - 69 - Section IX. C,D
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way connected with such construction (except for liens which are contested in the manner provided herein and except for any Mortgage on the Developer Tract).
E. COORDINATION. Each Party, as respects the
construction it is required to perform, shall use all
reasonable efforts to cause its architects and contractors to cooperate and coordinate their construction with the
architects, contractors and construction work of each other Party, to the extent reasonably practicable, and shall cause all construction to be performed pursuant to the approved plans provided for in Section IV hereof.
F. MECHANICS' LIENS. In the event any mechanics'
liens are filed against the Tract of any Party, the Party permitting or causing such lien to be filed hereby covenants to either pay the same and have it promptly discharged of record, or to take such action as may be.required to reasonably and legally object to such lien, or to have the lien removed from such Tract, and in all events agrees to have such lien
discharged prior to the foreclosure thereof, and further covenants, upon the request of any other Party or the Agency to furnish such security as may be required, for the benefit of such requesting Party or of any title insurance company designated by such Party to permit a report Qf title to'- be issued relating to its Tract without showing thereon the effect of such lien. For all purposes applicable to the provisions of Sections 3082-3265 of the Civil Code of the State of
California, the construction of the Enclosed Mall, the
remainder of the Common Area and each of the Stores, as the case may be, shall be deemed to be separate works of
improvement even if same are integrated.
G. INDEMNITY. The Parties each severally covenant
and agree to indemnify, defend and hold harmless each other and the Tract of each other against liability, loss, damage, costs or expenses, including attorneys• fees, on account of claims of lien of laborers or materialmen, or others, for work performed REA/lST AMENDED.HB/10.18.90 - 70 - Section IX. D,E,F,G
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or supplies furnished, in connection with any construction performed by it, including any work authorized hereunder to be performed on the Tract of another, and in the event that any Tract shall become subject to any such lien on account of work performed, or supplies furnished in connection with such construction, then the Party performing such work shall, at the request of the owner of the Tract subject to such lien, 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.
REA/lST AMENDED.HB/10.18.90 - 71 - Section IX. G
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SECTION X
OPERATION AND MAINTENANCE OF ENCLOSED
MALL AND OTHER COMMON AREA
A. ENCLOSED MALL - STANDARDS. From and after the
date upon which the Enclosed Mall (including without limitation the Phase 2 Enclosed Mall upon completion thereof) is required to be open for business, pursuant to the provisions of Section VII-C hereof, and continuing thereafter in accordance with the provisions of this REA, Operator shall Operate and maintain, or cause to be Operated and maintained, the Enclosed Mall
(including without limitation the Phase 2 Enclosed Mall upon completion thereof) in good order, condition and repair, without expense to any Major or Ikea except as set forth in the separate agreements between Developer and each Major. Operator shall have the right to select, from time to time, a Person or Persons, other.than Operator or any Person Operator controls, is controlled by or is under common ownership or control with Operator (hereinafte:r called "Operator's Nominee"), to Operate and maintain the Enclosed Mall and/or other Common Area, provided, however, that such nomination shall not diminish Operator's responsibility for such Operation and maintenance.
Without limiting the generality of the foregoing,
Operator, in the Operation and maintenance of the Enclosed Mall, shall observe the following standards:
1. Maintain the surface thereof smooth and
evenly covered with the type of surfacing material originally installed thereon, or such substitute therefor as shall have been approved by the Parties.
2. Remove all papers, debris, filth and refuse
and wash or thoroughly sweep the surface thereof.
3. Clean lighting fixtures and relamp as
needed.
4. Maintain the landscaping in a first class,
thriving condition.
RFA/lSI AMENDED.HB/10.18.90 - 72 - Section X A
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5. Maintain all signs (excluding those of the
Occupants) in a clean and orderly condition, including
relamping and repairing as may be required. Developer shall also enforce all sign maintenance provisions which shall be included in Occupants• leases.
6. Patrol the Enclosed Mall during Store hours
and such other hours as may be prudent for the safety and security of Permittees and consistent with prevailing practice in similar regional shopping centers in Southern California.
7. Maintain and keep in a sanitary condition
the public restrooms and other common use facilities therein.
8. Clean, repair and maintain all utility
systems that are a part thereof.
9. Clean, repair and maintain the structure
thereof, the roof, skylights, wall surfaces, doors and other appurtenances thereto.
10. Maintain the ventilating and cooling system
thereof, fire protection system and mechanical systems in good order, condition and repair, so that at all times the same shall operate within the standards prescribed in Section IV-Ea hereof, and so as not to unduly discharge air out of or return air into the Enclosed Mall or the stores.
11. Observe and enforce t�e provisions of
Exhibits D and E as they relate to the Enclosed Mall.
B. OTHER COMMON AREA - STANDARDS. Except as
hereinafter expressly provided, from and after the beginning of the first Accounting Period of any Party, and continuing thereafter for so long as the Shopping Center Site is being Operated as a shopping center, but in no event longer than the term of this REA, Operator shall Operate and maintain or cause to be Operated and maintained the Common Area, including the Office Parking described in Section I-D hereof, but excluding the Enclosed Mall, in good order, condition and repair, and Operator, if a Party, shall have the right to select, from time to time, an Operator's Nominee to Operate and maintain such RFA/lST AMENDED.HB/10.18.90 - 73 - Section X A,B
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4971
Common Area, provided that such nomination shall not diminish Operator's responsibility for Operating the Common Area.
Without limiting the generality of the foregoing,
Operator, in the Operation and maintenance of the Common Area, exclusive of the Enclosed Mall, shall observe the following standards:
1. Maintain the surface of the Automobile
Parking Area and sidewalks (including Perimeter Sidewalks) level, smooth and evenly covered with the type of surfacing material originally installed thereon, or with such substitute therefore as shall be in all respects equal thereto in quality, appearance and durability.
2. Remove all papers, debris, filth and refuse
and wash or thoroughly sweep paved areas ,as required. _, 'i
3. Maintain such appropriate Automobile.Parking
Area entrance, _exit and directional signs, markers and lights in the Center as shall be reasonably required and in accordance with the practices prevailing in the operation of similar regional shopping centers in Southern California.
4. Illuminate the Common Area during hours of
darkness to the levels of illumination required by the approved Improvement Plans, and clean Common Area lighting fixtures of the Center (but not those belonging to.premises of Occupants) and relamp and reballast as needed.
5. Repaint striping, markers, directional
signs, etc., as necessary to maintain in first-class condition.
6. Maintain landscaping as necessary to keep in
a first-class, thriving condition.
7. Clean signs of the Center (and cause those
of Occupants to be cleaned), including relamping and repairs as needed.
s. Patrol the Common Area during Store hours
and such other hours as are prudent for the safety and security of Permittees, and consistent with prevailing practices in similar regional shopping centers in Southern California.
REA/lST AMENDED.HB/10.18.90 - 74 - Section X. B
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9. Maintain and keep in a sanitary condition
public restrooms and other common use facilities.
10. Clean, repair and maintain all utility
systems that are part of the Common Area to the extend that the same are not cleaned, repaired and maintained by public utilities or by public agencies.
11. Maintain not less than the minimum parking
ratio set forth in Section x-c hereof.
12. Observe and enforce the provisions of
Exhibits D and E as they relate to the Common Area, exclusive of the Enclosed Mall, and the rules and regulations for control of parking as approved by the Parties pursuant to Section X-E1. c. AUTOMOBILE PARKING AREA RATIO AND STANDARDS.
Subject to Section XVI, _the Shopping Center Site shall initially have available within the Automobile Parking Area thereof, at all times from and after completion of construction of the Phase 1 Devel�pment until commencement of construction of the Phase 2 Development not less than (i) five (5)
automobile parking spaces for each 1,000 square feet of Initial Planned Floor Area in existence in the Sears Store, Mervyn's Store, Ikea Store and Developer Mall 'stores, (ii) three (3) automobile parking spaces for each 1,000 square feet o� rentable area in existence for any office building, (iii) five (5) automobile parking spaces for each 1,000 square feet of Floor Area in existence for any retail use in the Developer Non-Mall Stores or for any restaurant use, and (iv) one (1) automobile parking space for every five (5) seats in any theatre.
Subject to Section XVI, the Shopping Center Site shall
have available within the Automobile Parking Area thereof, at all times from and after commencement of construction of the Phase 2 Development, not less than (i) 4.6 automobile parking spaces for each 1,000 square feet of Initial Planned Floor Area in existence in the Sears Store, Mervyn's Store, Bullock's RPA/lSf AMENDED.HB/10.18.90 - 75 - Section X. B,C
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Store, Ikea Store and Developer Mall Stores; (ii) three (3) automobile parking spaces for each 1,000 square feet of rentable area in existence for any office building; (iii) 4.6 automobile parking spaces for each 1,000 square feet of Floor Area in existence for any retail use in the Developer Non-Mall Stores or for any restaurant use; and (iv) one (1) automobile parking space for every five (5) seats in any theater.
Subject to the applicable requirements of any
governmental agency having jurisdiction over the Center, each parking space, regardless of angles of parking, shall have a width of nine feet (9') on center (except for.compact car spaces which shall have a width of seven and one-half feet (7.5') on center, measured at right angles to the side line of the parking space). Parking lanes or bays (which include two [2] rows of parking spaces and incidental driveway) shall have the following widths, at the angles of parking designated below:
Degrees
90°
90° compact spaces
Widths
60 1
59 1
Each Party agrees with the others to take no action
which would reduce the parking ratios below those specified herein.
D. INDEMNITY. Operator agrees to indemnify, defend,
protect, and hold harmless all Parties and their respective Tracts, from and against any mechanics', materialmen's and/or laborers' liens, and all costs, expenses and liabilities in connection therewith, including attorneys' fees, arising out of the Operation and maintenance performed by Operator in respect of the Common Area, pursuant to the provisions of this Section X (whether performed prior to or after the execution of this REA). In the event that any Tract shall become subject to any such lien, Operator shall at the request of the owner of such Tract, promptly cause such lien to be released and discharged REA/lSI' AMENDED.HB/10.18.90 - 76 - Section X. C,D
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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.
E. PARKING REGULATIONS.
1. Except as provided in Exhibit E, and except for
(i) charges of any kind whatsoever imposed by any governmental authority on the Agency, the Operator, or the Permittees using the Parking Facilities as part of a parking management program, transportation control plan, or other governmental regulation of parking, and (ii) charges imposed on office Occupants of PDA's 1 and/or 6 and their Permittees for the use of the Office Parking, and unless all Parties otherwise consent and agree in writing, no charge of any type shall be made to or collected from any Occupant, or the Permittees of any Occupant, for parking, or the right to park, vehicles in the Automobile Parking Area, except such Common Area maintenance charges as may be provided for in any lease agreement with any Occupant.
No Permittee shall be prohibited or prevented from parking a vehicle in the Automobile Parking Area, provided that space is available therein, and provided further that such Permittee does not violate the reasonable rules and regulations governing the use of the Automobile Parking Area which may be promulgated by the Parties from time to time. In order to control the . parking of Permittees of the non-retail portions of the PDA's, the Automobile Parking Area for the retail portion of the Shopping Center shall be barricaded, gated or chained at locations previously approved by the Parties every day from 6:00 a.m. until 9:30 a.m. in order to regulate entry into the retail portion of the Shopping Center by users of the nonretail PDA's.
The Parties shall, by mutual agreement, prescribe
certain sections within the Common Area, or on other land outside the Shopping Center Site within a reasonable distance from the nearest boundary of the Center for use as parking space by the Occupants of the Center, and the employees, RFA/lSf AMENDED.HB/10.18.90 Section X. D,E
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tenants, agents, contractors, licensees and concessionaires of such Occupants. Each Party also shall require its employees and the employees of its agents, contractors, tenants,
licensees and concessionaires to use only such sections as are so prescribed for parking in rules and regulations approved by the Parties. The Parties agree to use their good faith
diligent efforts to orient all such parking to any compact parking spaces located in the Parking Facilities. Each Party also agrees ·to use reasonable efforts to enforce the provisions hereof.
2. Other than as expressly permitted by this REA, or
as required by law, no Party nor the Agency shall take any action, or permit any action to be taken, which would reduce or cause the reduction of the parking ratios specified i_n section x-c.
3. The Parties acknowledge that approximately 517
automobile parking spaces located in Parking Facilities No. 3 may be set aside on a non-exclusive basis for office parking, which spaces are designated on Exhibit "B" as "Office Parking Area"; provided that approximately 103 automobile parking spaces located within the Office Parking Area (the "Reserved Spaces") may be marked as "Reserved" and shall not be available for parking at any time to Persons other than Occupants of �he office building to be constructed on PDA 3 (the "Office Building") and their Permittees. Each of the Parties agrees to use its good faith reasonable efforts to cause its Permittees not to park in the Office Parking Area during the hours of 7:00 A.M. to 6:00 P.M. on weekdays and from 7:00 A.M. to 1:00 P.M. on Saturdays ("Office Hours"). The Office Parking Area shall be for the exclusive use of the Occupants of the Office Building and their Permittees during Office Hours, and, in furtherance of the foregoing, the Parties acknowledge and agree that the entrance to Parking Facilities No. 3 nearest to the Office Building on First Street shall be an entrance which is designed to permit entry solely into the Office Parking Area REA/lST AMENDED.HB/10.18.90 - 78 - Section XE
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and shall be reserved, during Office Hours, exclusively for use by Occupants of the Office Building and their Permittees. At all other hours and on "holidays", as that term is defined in the Office Building's form lease, and the day after
Thanksgiving, all parking spaces located on the Office Parking Area other than the Reserved Spaces shall be available to the Parties and their Permittees on a non-exciusive basis with the Occupants of the Office Building and their Permittees for parking by other Persons.
Operator shall take such actions as may be reasonably
necessary, which actions may include use of signage,
barricades, and parking control systems, in order for Occupants of the Office Building and their Permittees to park solely in the Office Parking Area, to direct other Persons entitled to use Parking Facilities No. 3 to park elsewhere in Parking Facilities No. 3 during Office Hours and to cause the Occupants of the Office Building and their Permittees to avoid any interference with the business operations of the Parties and their respective Permittees. Such efforts shall include, but not be limited to: (a) requiring the owner of the Office Building to insert a provision in all leases of space in the Office Building requiring the Occupant thereunder and its Permittees to use their good faith reasonable efforts to p _
ar�
only in the Office Parking Area, and prohibiting the Occupant and its Permittees from parking anywhere else in the Shopping Center site; and (b) requiring the owner of the Office Building to furnish to the Parties, from time to time upon request, a list of the Occupants• and their employees' vehicle license numbers.
F. OBLIGATIONS OF PARTIES FOR COMMON AREA
MAINTENANCE COST.
1. Budget of Common Area Maintenance Cost. At least
one hundred twenty (120) days prior to the commencement of each Accounting Period, Operator shall submit, for approval, to each of the Parties which is .then Operating or will Operate during REA/lST AMENDED.HB/10.18.90 - 79 - Section X. E,F
,, .
'·•>\�-
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the next succeeding Accounting Period, a proposed annual budget of the Common Area Maintenance Cost ("Budget") covering such Accounting Period. If each such Party shall approve the Budget, it shall immediately go into effect and be binding upon all Parties. If any Party shall disapprove the Budget, such Party shall communicate in writing such disapproval to Operator and each other Party specifying the grounds for disapproval.
Thereupon, -operator shall call a meeting of all Parties to attempt to resolve any differences, such meeting to be held within forty-five (45) days after receipt by each Party of the Budget. Except with respect to the first Accounting Period, if a proposed Budget shall not be approved by all Parties, Operator shall nevertheless continue to Operate and maintain the Common Area on the same budgetary basis as �hough·the Parties had re-adop�ed the then current Budget. With respect to the first Accounting Period, if a proposed Budget shall not be approved by all Parties prior to the beginning of the first Accounting Period, Operator shall nevertheless Operate and maintain the Common Area and each Party shall pay monthly to Operator on account of its Allocable Share the amount of five cents ($.05) per square foot of Initial Planned Floor Area on each Party's Tract. Notwithstanding the above, the Parties shall continue with efforts to agree on a Budget and if. they are unable to agree w_ithin ninety (90) days of the next succeeding Accounting Period, the matter will be submitted to arbitration pursuant to Section XXIII hereof.
2. Payment of Common Area Maintenance Cost. If no
Budget has been approved by all Parties by the end of the first ninety (90) day period of any Accounting Period, each Party shall pay to Operator on account of its Allocable Share, for the remainder of any such Accounting Period until the Budget is approved, (i) with respect to the first Accounting Period and any ensuing Accounting Period until the first Budget is approved, the sum specifie4 above to be paid during the first Accounting Period or (ii) with respect to any Accounting Period REA/lSf AMENDED.HB/10.18.90 - 80 - Section X. F
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after the approval of a Budget, on the same budgetary basis as though the Parties had re-adopted the then current Budget.
Once the Budget is approved or arbitrated, the Parties will pay on the new Budgetary basis. The provisions of this Section XF pertaining to payments by each Party to Operator on account of its Allocable Share shall be subject to the respective separate agreements between each Major and Developer and Ikea and Developer.
Each Party shall, commencing on the first day of its
first Accounting Period, pay to Operator on account of its Allocable Share an amount equal to one-twelfth· (1/12) of its Allocable Share of the approved or arbitrated annual Budget, if the Budget has been approved, and shall pay a like amount on the first day of each calendar month thereafter,. At the end of each Accounting Period, Operator shall render to each Party a full and complete audited statement of Common Area Maintenance Cost, and in the event any Party shall have paid more than its Allocable Share, Operator shall promptly refund to the Party so paying in excess of such Allocable Share the amount thereof.
Should any Party have paid less than the Allocable Share for which it is obligated hereunder during said preceding
. Accounting Period, then in that event, the Party so paying less than such Allocable Share shall pay to Operator, within.thirty (30) days following the rendition of said audited statement;. the deficiency in such Allocable Share. Operator shall
maintain complete books and records in such a manner as to accurately cover and reflect separately all items affecting or entering into the determination of the Allocable Share of each Party for each Accounting Period, and shall keep the same for a period of at least three (3) years after the end of such Accounting Period or for any longer period of time during which any Party is contesting in good faith the determination of common Area Maintenance Cost or a Party's Allocable Share thereof for a particular Accounting Period.
Notwithstanding anything to the contrary contained in
RFA/lST AMENDED.HB/10.18.90 - 81 - Section X. F
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this REA, including but not limited to this Section X-F-2, the Allocable Share of the Majors and Ikea shall be payable by them only to the extent provided in their respective separate agreements with Developer. To the extent the Allocable Share of a Major or Ikea exceeds the amount it has agreed to pay in such separate agreement, if any, any such excess amount shall be payable by Developer. The Parties recognize and agree that to the extent any such separate agreement provides that Developer and/or Operator do not receive complete reimbursement from the Majors and Ikea for their Allocable Shares, then such remainder shall be payable by Developer and shall become a burden of Developer and the Developer Tract.
Each Party shall have the right, exercisable upon five
(5) days' notice to Operator, to make one audit as to each Accounting Period of such books and records as are relevant to any such audited statement or statements. In the event that any such audit shall disclose any error in the determination of the Allocable Share of any Party or the correct allocation thereof as set forth in any separate agreement, appropriate adjustment shall promptly be made between the Parties to correct such error. In addition, if any such audit shall disclose an error of two percent (2%) or more in the
overpayment of the Allocable Share of any Party, Operator shall promptly pay to the auditing Party the reasonable cost of such audit, which cost shall not be charged to Common Area
Maintenance Cost.
G. TAKE-OVER OF MAINTENANCE. In the event that any
two of Sears, Mervyn's and Bullock's shall at any time, or from time to time, be dissatisfied with Operator's performance of its obligations under Section X-A hereof, and/or in the event that any three of Sears, Mervyn's, Bullock's and Ikea shall at any time, or from time to time, be dissatisfied with Operator's performance or the cost, but as to the cost, only if the cost exceeds the approved Budget by more than ten percent (10%), of its obligations under Section X-B hereof, or in the REA/lSf AMENDED.HB/10.18.90 - 82 - Section X. F,G
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event that Developer is not the Operator, then if three or more of the Parties are dissatisfied with Operator's performance of its obligations under Sections X-A and/or X-B hereof (including the expenses of maintenance and Operation), such Parties shall have the right (provided that none of such Parties is in default hereunder) to give Operator written notice of such dissatisfaction, specifying the particulars in which Operator's performance is deemed by such Parties to be unsatisfactory. If during the JO-day period from the date of such notice
Operator's performance shall continue to be unsatisfactory, such Parties shall have the right (provided that none of such Parties is in default hereunder) to give Operator a second fifteen (15) day notice of such dissatisfaction, specifying the particulars in which Operator's performance.is deemed by such Parties to be unsatisfactory, and if during the 15-day period from the date of such second notice Operator's performance shall continue to be unsatisfactory, such Parties shall have the right to cause to be taken over from Operator (either by designating one of such Parties to be the Operator, or by means of a Person hired for such purpose by such Parties), effective on the first day of the next succeeding calendar month, the Operation of all of the Collllllon Area, except for the Enclosed Mall, if the Enclosed Mall is excluded from the notice of dissatisfaction as hereinafter provided. Such Person shall become the new Operator. Anything herein to the contrary notwithstanding such take-over of the Operation of the Common Area shall not (i) obligate any Party to pay any cost or expense in respect of the Operation of the Common Area, except to the extent it is otherwise obligated hereunder or in the separate agreements referred to in Sections I-E and I-L; (ii) relieve any Party of its obligation to pay such portion of Common Area Maintenance Cost as it is otherwise obligated to pay hereunder; (iii) relieve Developer of its obligation to pay that part of Common Area Maintenance Cost not paid by the Majors or Ikea; or (iv) relieve Developer of the obligation to RE'A/ISf AMENDED.HB/10.18.90 - 83 - Section X. G
•
1 212
4981
keep, perform and observe all of th� other terms, provisions and conditions of this REA to be kept and performed by
Developer, other than those relating to Common Area Operation by Developer. In the event a new Operator performs the
functions required for Common Area Operation, Developer shall promptly upon such takeover furnish the new Operator with a complete list of all Occupants of the center, setting forth in such statement the amount of Common Area Maintenance Cost to be paid by each such Occupant.
Each Party covenants and agrees to pay promptly to the
new Operator, upon demand, any sum which it shall be obligated to pay to the new Operator pursuant to this Section X-G. In the event that the maintenance, management and Operation of the Common Area shall be performed by an Operator other than Developer, and Developer shall have failed to make the payments herein required to be made to the Operator, the other Parties shall cause the Operator to give Developer written notice of delinquency and if payment is not made by Developer within ten (10) days after receipt of such written notice from Operator, then any and all sums payable to Developer by any and all Occupants of the Center in respect of its or their pro rata shares of Common Area Maintenance Cost, as specifically defined herein, including an Allocable Share, but exclusive of any • I •
taxes collected by Developer from Occupants on the Developer Tract, together with the right to enforce payment of and to collect the same, shall be deemed assigned to the new Operator without the necessity of the execution of any further
instrument of assignment thereof by Developer, other than this REA; and the new Operator shall thereafter remain responsible for such maintenance, management and Operation of the Common Area until another Operator shall resume the maintenance, management and Operation of the Common Area. Any assignment shall be limited to the payments for the Common Area so maintained by such new Operator whether the same is inclusive or exclusive of the Enclosed Mall.
RFA/lST AMENDED.HB/10.18.90 - 84 - Section X. G
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Notwithstanding the foregoing, any notice of
dissatisfaction given pursuant to this Section X-G may by its terms be inclusive or exclusive of that portion of the Common Area within the Enclosed Mall as is covered by Enclosed Mall Operation and Maintenance Expense. In the event that such notice is exclusive of the Enclosed Mall Operation and
Maintenance Expense, then and in that regard Developer shall continue to perform the services of Operator with respect to the Enclosed Mall. In the event that such notice shall be inclusive of Enclosed Mall Operation and Maintenance Expense, then and in that event the new Operator shall .perform the functions required for such Enclosed Mall Operation and maintenance; provided, however, �hat such take-over of Enclosed Mall Operation and maintenance s_h�lil ·not (i) obligate any Major to pay any Enclosed Mall Operation and Maintenance Expense, except as may have been provided by separate agreement with any such Major, (ii) relieve any Major, or the Person assuming any such obligation on behalf of such Major, of its obligation to pay its agreed share, if any, of Enclosed Mall Operation and Maintenance Expense, (iii) relieve Developer of its obligation to pay that part of Enclosed Mall Operation and Maintenance Expense not paid by the Majors, or (iv) relieve Developer of the obligation to keep, perform and �bserv� any of the other terms, provisions and conditions of this REA to be kept and performed by Developer, other than those relating to Enclosed Mall Operation and maintenance by Developer. In the event a new Operator performs the functions required for Enclosed Mall Operation and maintenance, Developer shall promptly upon such take-over furnish the new Operator with a complete list of all Occupants of the Developer Mall Stores, setting forth in such statement the amount of Enclosed Mall Operation and Maintenance Expense to be paid by each such Occupant.
H. DESIGNATION OF OPERATOR. The Parties hereby
designate Developer as Operator of the Common Area, and Developer hereby accepts such designation.
RFA/lST AMENDED.HB/10.18.90 - 85 - Section X. G,H
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SECTION XI
INDEMNIFICATION AND PUBLIC LIABILITY INSURANCE
A. INDEMNITY - COMMON AREA. Developer, in.its
capacity as Operator, and any other Party or Person who acts as Operator, covenants to, and does hereby, subject to the last sentence of this paragraph, indemnify, defend, protect and hold each other Party and the City harmless from and against all claims and costs, expenses and liabilities (including
reasonable attorneys• fees) incurred in connection with all claims, including any action or proceedings brought thereon, arising from or as a result of the death of or any accident, injury, loss or other damage to any Person or the property of any Person, as shall occur in or about the Common Area. A Party shall not be entitled to such -�ndemnification for qamage caused to such Party by reason of its sole negligence -and/or its intentional acts or omissions. The.indemnitee shall give the indemnitor notice of any suit or proceeding entitling the indemnitee to indemnification pursuant to this Section XI-A and the indemnitor shall defend the indemnitee in said suit or proceeding. Any Party ejecting or causing the ejection from the Common Area of its Tract of any Person or Persons pursuant to Section II-A covenants to, and does hereby, indemnify, defend, protect and hold each other �art� harmles
_
s from a_n�_
against all claims and costs, expenses and liabilities
(including reasonable attorneys' fees) incurred in connection with all claims, including any action or proceeding brought thereon, arising from or as a result of the death of or any accident, injury, loss or damag·e to any Person or the property of any Person as shall occur as a result thereof.
B. INDEMNITY - TRACTS. Each Party, severally, as to
its obligations under this REA pertaining to its Tract
covenants to, and does hereby, indemnify, defend, protect and hold each of the other Parties harmless from and against all claims and all costs, expenses and liabilities (including reasonable attorneys' fees) incurred in connection with all REA/IST AMENDED.HB/10.18.90 - 86 - Section XI. A,B
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claims, including any action or proceedings brought thereon, arising from or as a result of the death of or any accident, injury, loss or damage to any Person or to the property of any Person as shall occur on its Tract except for claims which are (i) required to be indemnified against by Operator as provided for in Section XI-A hereof, (ii) insured against by the insurance referred to in Section XI-C hereof, (iii) caused by the sole negligence or intentional act or omission of each indemnified Person, its licensees, concessionaires, agents, servants or employees or any licensee or concessionaire of such agents, servants or employees wherever the sa�e may occur; or (iv) released and waived pursuant to the provisions of
Section XII-D hereof.
c. PUBLIC LIABILITY INSURANCE - COMMON AR;eA.
Operator shall at all applicable times during the term of this REA maintain i� full force and effect comprehensive public liability and property damage insurance covering the entire Common Area. Such insurance (i) shall include coverage for any accident resulting in personal injury to or death of any person and consequential damages arising therefrom; (ii) shall include comprehensive property damage insurance; (iii) shall be in an amount not less than $5,000,000 (in 1989 Dollars) per
occurrence; (iv) shall be issued by a financially responsible insurance company or companies licensed or authorized to do business in California; (v) shall name all Parties and the City as named insureds thereunder; (vi) shall provide that the same may not be canceled, or reduced below the permitted limits set forth herein, without at least thirty (30) days• prior written notice being given by the insurer to the named insured Persons; and (vii) shall expressly insure the indemnity of Operator contained in Section XI-A hereof. Operator shall obtain the approval of the other Parties to the terms and cost of such insurance; provided, however, prior to requesting such
approval, Operator shall furnish to the other Parties an analysis of such cost. Operator shall also maintain automobile RFA/lST AMENDED.HB/10.18.90 - 87 - Section XI. B,C
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liability insurance, including owned, hired and non-owned automobile coverage with limits of at least $5,ooo,ooo (in 1989 Dollars). Operator shall furnish to the other Parties, on or before the effective date of any such policy, evidence that the insurance referred to in this Section XI-C is in force and effect and that the premiums therefor have been paid.
D. PUBLIC LIABILITY INSURANCE - TRACTS. Subject to
the provisions of the preceding Section XI-C, each Party shall at all times during the term of this REA maintain, or cause to be maintained, in full force and effect comprehensive public liability insurance covering its Tract, excluding any Common Area thereon. such insurance (i) shall include coverage for any accident resulting in personal injury to or death of any Person and consequential damages arising therefrom; {ii) shall include comprehensive property damage insurance; (iii) shall be in an amount of not less than $5,000,000 (in 1989 Dollars) per occurrence; (iv) shall be issued by a financially responsible insurance company or companies licensed or authorized to do business in California; (v) shall name each of the other Parties as additional insureds; (vi) shall provide that the same may not be canceled without at least thirty (30) days• prior written notice being given by the insurer to each of the additional insured Persons; and (vii) shall expressly.insure , .. . - ,.
the indemnity of each of such Persons contained in· Section XIB hereof.
Each Party shall furnish to any other Party, or the
City, requesting same, evidence that such insurance is in full force and effect and that the premiums therefor have been paid.
E. BLANKET INSURANCE AND SELF-INSURANCE. The
insurance described in Sections XI-C and XI-D hereof may be carried under a policy or policies covering other liabilities and locations of a Party, or a subsidiary, affiliate or controlling corporation of such Party and the insurance described in Section XI-D may be satisfied in whole or in part under any plan of self-insurance from time to time maintained RFA/lSI' AMENDED.HB/10.18.90 - 88 - Section XI. C,D,E
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by any Party on condition that such Party, or its subsidiary, affiliate or controlling corporation ("Affiliate") (provided such Affiliate covenants to the Parties to perform such insurance obligations or to cause the performance of such obligations), so self-insuring has and maintains adequate reserves or assets for the risks so self-insured against and furnishes to any other Party requesting the same evidence of the adequacy of said reserves or assets (net current assets of $100,000,000 (in 1989 Dollars), or more, and net worth of $200,000,000 (in 1989 Dollars), or more, as disclosed on the latest annual audited statement of such Party or its Affiliate (or, in the case of Mervyn's and Ikea, or, in the case of Bullock's if Bullock's no longer has an annual audited
statement, as disclosed in a statement certified: l?Y a corporate • .. • officer of Mervyn's, Ikea or Bullock's, as the case may be), shall in all instances conclusively be deemed to be adequate for the purposes of this Section).
RFA/lST AMENDED.HB/10.18.90 - 89 - Section XI. E
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SECTION XII
FIRE AND EXTENDED COVERAGE INSURANCE
A. DEVELOPER IMPROVEMENTS. Developer shall maintain
or cause to be maintained in full force and effect fire and extended coverage insurance covering the Developer Improvements and the Common Area on the balance of the Shopping Center Site.
Such insurance, as to each of the Developer Improvements and the Common Area on the balance of the Shopping Center Site (i) shall be in an amount equal to one hundred percent (100%) of the replacement cost thereof, without deduction for
depreciation, exclusive of the cost of excavations, footings and foundations; (ii) shall obtain an "all risk" policy of insurance insuring against all risks except war or nuclear accident, including but not limited to loss or damage by r·ire, windstorm, cyclone, tornado, hail, explosio·n, earthquake· (if available at commercially reasonable rates), riot, riot attending a strike, civil commotion, malicious mischief, vandalism, aircraft, vehicle, smoke damage and sprinkler leakage; provided that the requirement of this Section XII-A for Developer to maintain or cause to be maintained an
earthquake damage endorsement as part of the "all risks" coverage described above, may be satisfied by self-insurance for so long as such Person who is Developer maintains a minimum net worth of $200,000,000 (in 1989 Dollars) and net current assets of $100,000,000 (in 1989 Dollars) or more; (iii) shall be purchased from financially responsible insurance companies licensed or authorized to do business in the State of
California; (iv) may be carried under a policy or policies covering other property owned or controlled by Developer or by a general partner of Developer, or by any subsidiary, affiliate or controlling corporation of a general partner of Developer, provided that such policy or policies do not reduce the coverage provided for herein; and (v) shall provide that same may not be canceled without at least thirty (30) days' prior written notice being given by the insurer to the other Parties.
REA/lSf AMENDED.HB/10.18.90 - 90 - Section XII. A
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Developer shall furnish to the other Parties, prior to
the effective date of any of such insurance, evidence that same shall be in full force and effect on said date and that the premiums therefor have been paid.
B. STORES OF MAJORS AND IKEA. Each of the Majors
and Ikea, as respects its Store, shall maintain, or cause to be maintained, in full force and effect, for so long as it is required to Operate pursuant to Section XXI-A hereof, and for so long as it has agreed to Operate pursuant to Section XIII-D hereof, fire and extended coverage insurance covering such Store. Such insurance (i) shall be in an amount equal to one hundred percent (100%) of the replacement cost of such Store, exclusive of the cost of excavations, footings and foundations and without deduction for depreciation; (ii) shall insure against the risks enumerated in Section XII-A-(ii) hereof except earthquakes; (iii.) may be carried under a policy or policies covering other property owned or controlled by such Party, or by a subsidiary, affiliate or controlling corporation of such Party, provided that such policy or policies do not reduce the coverage provided for herein; and (iv) shall provide that same may not be canceled without at least thirty (JO) days• prior written notice being given by the insurer to the other Parties.
Each Major and Ikea shall furnish to any Party
requesting same evidence that such insurance is in full force and effect and that the premiums therefor have been paid. c. SELF-INSURANCE. The insurance referred to in
this Section XII may be satisfied in whole or in part under any plan of self-insurance from time to time maintained by any Party, on condition that such Party, or its subsidiary, affiliate or controlling corporation ("Affiliate") (provided such Affiliate covenants to the Parties to perform such insurance obligations or to cause the performance of such obligations), has and maintains adequate reserves or assets for the risks so self-insured against and furnishes to any other RFA/lST AMENDED.HB/10.18.90 • 91 - Section XII. A,B,C
220
4989
Party requesting same evidence of the adequacy of said reserves or assets [net current assets of $100,000,000 (in 1989
Dollars), or more, and net worth of $200,000,000 (in 1989 Dollars), or more, as disclosed on the latest annual audited statement of such Party or its Affiliate (or, in the case of Mervyn's and Ikea, or in the case of Bullock's, if Bullock's no longer has an annual audited statement, as disclosed in a statement certified by a corporate officer of Mervyn•s, Ikea, or Bullock's, as the case may be), shall in all instances conclusively be deemed to be adequate for the purposes of this Section].
D. MUTUAL RELEASE AND WAIVER OF SUBROGATION. Each
Party, for itself and to the extent it does not violate any applicable laws or regulations, on behalf of its �nsurers, hereby waives and releases each of the other Parties from all liability for any loss or damage to its property located upon the Shopping Center Site, which loss or damage is of the type generally covered by the type of insurance required to be carried pursuant to Section XII by the Party waiving such liability, without regard to any negligence on the part of the other Party(ies) which may have caused or contributed to such loss. Each Party shall, to the extent available, obtain for the benefit of the other Parties, a release and waiv�r of any right of subrogation which the issuer of the fire and extended coverage insurance policy to such Party may acquire against the other Parties by virtue of the payment of any loss covered by such insurance. In the event that a Party causes any portion of the insurance required to be maintained under this Section to be purchased by an Occupant, then such Party shall cause such Occupant to obtain for the benefit of the other Parties the release and waiver -of the right of subrogation in the manner provided in the preceding sentence. The foregoing waiver and release shall be operative only so long as the same shall not prejudice the right of each Party to obtain insurance coverage.
REA/lSf AMENDED.HB/10.18.90 - 92 - Section XII. C,D
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E. OCCUPANTS' INSURANCE - DEVELOPER MALL STORES,
DEVELOPER NON-MALL STORES AND FUTURE DEVELOPMENT IMPROVEMENTS.
Developer covenants to and with the other Parties that it will, to the extent that it is legally possible for its Occupants to do so, require all Occupants occupying any building on the Developer Tract, upon which Developer does not itself carry fire and extended coverage insurance, to carry such insurance, including the perils specified in Section XII-A hereof, on the Floor Area on the Developer Tract occupied by such Occupant with financially responsible fire insurance companies licensed or authorized to do business in California, iri an amount which, together with the insurance carried by Developer, is at least equal to the insurance required to be carried by Developer under Section XII-A, and that it will obtain for the' benefit of· the other Parties a waiver of any right of·subrogation which the insurer of any such Occupant may acquire against any Party by virtue of the payment of any such loss covered by such insurance.
F. INSURANCE TRUSTEE. Each policy of fire and
extended coverage insurance required to be carried by
Developer, Operator or any other Party which is not qualified to self-insure pursuant to Section XII-C (except the insurance required under Section XII-B) shall expressly provide that-· proceeds payable thereunder in excess of $50,000 shall be paid, for custody and disposition thereof as herein provided, to either the holder of the Mortgage on the Tract of such Party or to a bank or trust company qualified to do business in the State of California, as such Party shall designate.
The recipient of such proceeds is hereinafter referred
to as the "Insurance Trustee".
In case of loss or damage to the Developer
Improvements or the Common Area on the balance of the Shopping Center Site, or any portion thereof, all proceeds of fire and extended coverage insurance (excluding.the proceeds of any rental value or use and occupancy insurance maintained by RFA/lST AMENDED.HB/10.18.90 - 93 - Section XII. E,F
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4991
Developer) received by Developer or the Insurance Trustee •ust be applied, subject to Section XIII-D hereof, for the diligent rebuilding, repairing or reconstructing of the Developer Improvement• and the Common Area on the balance of the Shopping Center Site in accordance with the provisions of Section XIII hereof.
The Insurance Trustee ■hall pay ■uch insurance
proceeds received by it to Developer, or such other Party, as the case aay be, as follows:
1. At the end of each •onth, or from time to
time as aay be agreed upon by the Insurance TrUstee and Developer or such other Party, as appropriate, _the Insurance Trustee, upon receipt of such Party's independent licensed architect's certificate as to costs incurred or work perfol"J!led, shall pay to Developer or such other Party an amount which shall be that proportion of the proceeds held in trust which ninety percent (901) of the payments to be_aade to contractors, laborers, materialmen or aupplie�s for work done, services rendered and/or material supplied during such month or other - ,but never more than 90% of the amount requested
period bears to the total contract pric• provided however that the amount necessary for the reconstruction or repair in excess of the amount received upon the insurance policies has first been provided by the Party for such purposes and its
application for such purposes assured.
2. Upon completion of such work, the Insurance
Trustee shall pay to Developer or such other Party the balance of such proceeds, provided that at the time of such payment (i) there are no liens against the property by reason of auch work and either the pe�iod within which a lien may be filed has expired or proof has been submitted that all costs of work theretofore incurred have been paid, and (ii) the Project Architect shall certify that all required work is completed and proper and of a quality and class of the original work required by this REA and in accordance with the plans and ■pacifications approved therefor.
REA/lST AMENDED.HB/10.18.90 Section XII. F
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3. In the event Developer or such other Party
is not required to rebuild or raze and clear pursuant to the provisions of Section XIII hereof, and does not elect so to do, then all of said funds received by reason of damage to the respective improvements of Developer or such other Party shall be paid by the Insurance Trustee to Developer or such other Party, as the case may be, or to the holder of the Mortgage on their respective Tracts, as their interests may appear.
RFA/lST AMENDED.HB/10.18.90 - 95 - Section XII. F
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SECTION XIII
COVENANTS AS TO REPAIR, MAINTENANCE, ALTERATION
AND RESTORATION
A. MAINTENANCE. Each Party shall, at all times
during the term of this REA from and after the opening for business of its Store or the Developer Improvements, as the case may be, keep and maintain all completed portions of same, or cause all completed portions of same to be kept and
maintained in good order, condition and repair. Such
maintenance of the Developer Improvements shall be in
accordance with the rules and regulations set.forth in Exhibit E to this REA.
B. REPAIRS AND ALTERATIONS TO IMPROVEMENTS. Each
Party may make repairs, alterations, additions or improvem�nts to any Common Area on its Tract and 'to its Store, so long as such Party complies with the provisions contained in this REA.
At any time that a Store is not required to be
reconstructed, it may be razed by the Party upon whose Tract such Store is located. In the event that a Store is razed, such Party shall cause the Enclosed Mall to be enclosed at the location where such Store has been removed so that conditioned air shall not be allowed to escape therefrom. All or any portion of the ground floor of the Store so razed shall be improved as Common Area in. the manner provided in Section XIIII hereof.
C. RESTORATION OF COMMON AREA (EXCLUDING THE
ENCLOSED MALL). Except as hereinafter expressly provided, in the event of any casualty (which shall include acts of God, fire, earthquake, explosion or similar occurrences) which results in damage or destruction to the Common Area (excluding the Enclosed Mall), during the term of this REA, whether insured or uninsured, Developer shall cause the Operator to restore, repair or rebuild such Common Area with all due diligence. Such restoration and repair shall be performed in accordance with the applicable requirements of paragraph G of REA/lSI' AMENDED.HB/10.18.90 - 96 - Section XIII. A,B,C 225
4994
this Section XIII. To the extent that insurance proceeds are insufficient to pay the cost of such work, then Developer, each Major and Ikea shall bear the cost in excess of insurance proceeds in the ratio that the Initial Planned Floor Area of each bears to the total Initial Planned Floor Area in the Shopping Center; provided however, if Developer is in default of its insurance obligations under Section XII-A Developer alone shall bear such cost.
Developer covenants that all insurance proceeds, if
any, payable on account of any damage or destruction to the Common Area (excluding the Enclosed Mall) shall first be made available to Operator for the repair and restoration of any such damaged Common Area. The amount of any insurance proceeds shall be made available to Operator in progress payments during the progress of the restoration of such Common Area in the same manner as progress payments are to be made for damage to the Common Area by reason of any taking under eminent domain as provided in Section XVI, subsection B(b)(ii).
D. RESTORATION OF DEVELOPER MALL STORES AND ENCLOSED
MALL. Developer covenants with each Major, severally, that in the event of any damage or destruction to all or any portion of the Developer Mall Stores or the Enclosed Mall, it shall:
1. During the fifteen (15) year period for
which Operation is required as set forth ih·section XXI, at its own expense, and with all due diligence, restore, repair or rebuild the Developer Mall Stores (at least to the extent of the minimum Floor Area set forth in Section VIII-A) and the Enclosed Mall. The provisions of this subparagraph 1 shall apply regardless of the cause of such damage or destruction and regardless of whether such damage or destruction was insured against or uninsured.
2. In the event that such damage or destruction
occurs after the period referred to in Section XIII-D-1 above, at its own expense, and with all due diligence, restore, repair or rebuild the Developer Mall Stores (at least to the extent of REA./lST AMENDED.HB/10.18.90 - 97 - Section XIII. C,D
226
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the minimum Floor Area set forth in Section VIII-A) and the Enclosed Mall, unless:
(a) Such damage or destruction was caused by a
peril other than those risks required to be insured against under the provisions of Section XII-A and which is in fact not insured against, or covered by Developer's self-insurance, and the cost of such restoration, repair or rebuilding exceeds the greater of (i) One Million Dollars ($1,000,000 in 1989
Dollars), or (ii) seven and one-half percent (7.5%) of the then-replacement cost of the Developer Mall Stores and/or the Enclosed Mall, as the case may be; or
(b) Such damage or destruction was caused by a
peril required to be insured against or was-caused by a peril which was actually insured against �y Developer under the provisions of Section XII-A and the cost of such restoration, repair or rebuilding is more than the greater of (i) One Million Dollars {$1,000,000 in 1989 Dollars), or (ii) seven and one-half percent (7.5%) of the then-replacement cost of the ·Developer Mall Stores and/or the Enclosed Mall, as the case may be, and occurs at a time when Developer does not receive the covenants in this subsection provided.
Promptly following such damage or destruction,
Developer shall request in writing of each of the Majors that they agree to extend their obligations to Operate hereunder for a period of ten (10) years commencing on the earlier of the date of completion of such restoration, repair or rebuilding, or eighteen (18) months after the date of such damage or destruction. The provisions of this subparagraph (b) relieving Developer of its obligation to restore, repair or rebuild the Developer Mall Stores and/or the Enclosed Mall shall be limited as hereinafter provided if within sixty (60) days after such request is made any of the Majors covenants with Developer (in recordable form if requested) to Operate for such ten (10) year period in its or their minimum Floor Area and otherwise as herein provided in Section XXI:
REA/lST AMENDED.HB/10.18.90 - 98 - Section XIII. D
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If Developer obtains from each of the Majors the
written assurances requested pursuant to the preceding
paragraph that it will have such a ten-year period of
Operation, Developer shall restore, repair or rebuild the Developer Mall Stores (at least to the extent of the Minimum Floor Area set forth in Section VIII-A) and/or the Enclosed Mall in its entirety.
If Developer obtains from two of the Majors the
written assurances requested above that it will have such a ten (10) year period of Operation, Developer's obligation to restore, repair or rebuild shall be limited to the following:
If Developer obtains the written assurance
requested from Sears and Mervyn's, Developer shall
restore, repair or rebuild all of the Developer
Improvements in the Phase 1 Development, at least to
the extent of the minimum Floor Area set forth in
Section VIII-A. If Developer obtains the written
assurance requested from Bullock's and one of Sears or
Mervyn•s, Developer shall restore, repair or rebuild
all of the Floor Area in the Developer Mall Stores
located between Bullock's and whichever of Sears or
Mervyn•s gives Developer the written assurance
requested to extend its obligation to Operate as
described above in its minimum Floor Area as set forth
in Section VIII-A, and shall include the portion of the Enclosed Mall lying between and connecting such majors
so assuring Developer.
If Developer obtains the written assurance requested
from only one of the Majors, Developer shall be required to restore, repair or rebuild only those portions of the Developer Mall Stores and the Enclosed Mall which are located immediately adjacent to the Store of whichever of the Majors has given Developer such written assurance that such Major will have such a ten-year period of Operation. The term "immediately
adjacent" as used in this subparagraph (b) shall mean as to RF.A/1ST AMENDED.HB/10.18.90 Section XIII. D
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Sears and Mervyn•s those portions of the Developer Mall Stores and the Enclosed Mall located within 320 feet of the entrance of the Sears Store or the Mervyn•s Store, as the case may be, and as to Bullock's those portions of the Developer Mall Stores and the Enclosed Mall located between the entrance of the Bullock's Store and the Magnolia Street entrance of the Enclosed Mall, which Developer Mall Stores and Enclosed Mall shall be in a configuration mutually satisfactory to Developer and Sears, Mervyn's, or Bullock's, as the case may be. Said restoration shall include leveling, paving, the creation of proper exterior walls for what previously constituted common party walls, and the creation of a reasonably useful entrance and exit, with proper ingress to and egress from the Enclosed Mall, and between the Enclosed Mall and the Automobile Parking Area.
If one Major is Operating in at least its minimum
Floor Area, Developer shall Operate the Enclosed Mall and Developer Mall Stores as required by Section XX.
Developer shall be excused from the performance of its
obligations set forth in Section XIII-C and this Section XIIID for and during any period of time (i) when all of the Majors are in default of their respective covenants contained in Section XIII or XXI, or (ii) when reconstruction upon the Tracts of all of the Majors is excused pursuant to Section XIII-K.
E. RESTORATION OF STORES OF MAJORS AND IKEA. The
Majors, each severally, covenant with the other Parties that if any damage or destruction to all or any portion of a Major's Store occurs during the period when such Major is required to Operate pursuant to Section XXI-A hereof or agrees to Operate pursuant to Section XIII-D hereof, it will cause said Store to be repaired, rebuilt and reconstructed in accordance with the provisions of this Section XIII, at least to the extent of the minimum Floor Area as set forth in Section VIII-A.
REA/lSI' AMENDED.HB/10.18.90 - 100 - Section XIII. D,E
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Ikea covenants with the other Parties that if any
damage or destruction to all or any portion of the Ikea Store occurs during the period when Ikea is required to Operate pursuant to Section XXI-A hereof, it will cause said Store to be repaired, rebuilt and reconstructed in accordance with the provisions of this Section XIII, at least to the extent of the minimum Floor Area as set forth in Section VIII-A.
Each Major and Ikea (the "Excused Person") shall be
excused from the performance of its obligations set forth in this Section XIII-E for and during any period of time (i) in which Developer shall be in default of its covenants as set forth in Section XIII or XX hereof; (ii) when reconstruction upon the Tracts of two (2) other Parties is excused pursuant to Section XIII-K; or (iii) when the Excused Person shall ·be released from the performance of its obligations under Section XXI-A pursuant to Section XXI-B.
F. BLANK.
G. STANDARDS OF REPAIR, RESTORATION AND
RECONSTRUCTION. All restoration, repair, rebuilding,
maintenance, alterations, additions or improvements (for the purposes of this Section XIII-G collectively called the "Work") performed by any Party pursuant to the provisions of this REA shall be performed in strict com�liance with each of the following requirements as are applicable thereto:
1. Prior to commencement of the Work, the
Project Architect shall approve the plans and specifications insofar as same relate to the compatibility of the exterior appearance of the improvements located in the Center and to the schematic drawings approved by the Project Architect. The approval of the Project Architect shall be required to the same extent and in the same manner as provided in Section IV and Section IX hereof.
2. Work shall be performed in a good and
workmanlike manner and shall strictly conform to and comply with:
RFA/lSf AMENDED.HB/10.18.90 - 101 - Section XIll. E,F,G 230
4999
(a) The plans and specifications approved
by the other Parties to the extent_plan approval is required pursuant to Section IV for the initial construction work; (b) All applicable requirements, laws,
codes, rules and regulations of governmental agencies having jurisdiction thereof and of insurance underwriters;
{c) To the extent applicable, the
requirements of Sections IV, V, VI, VII, VIII and IX hereof; and
hereof.
(d) The requirements of Section IX-B
3. All Work shall be completed with due
diligence, and, except as herein provided to the contrary, at the sole cost and expense of the Party performing same.
4. Developer shall coordinate the
reconstruction of the pedestrian bridges, decks and tunnels with the Major(s) with whose store the pedestrian bridge, deck or tunnel is to attach so as to minimize the interference with the business and reconstruction of such major.
H. LICENSES FOR RECONSTRUCTION. It is recognized
that from time to time during the term of this REA, each Party may require and is hereby granted a temporary license to use portions of the Common Area for the purposes of:
1. Performing maintenance upon, making repairs
to, making alterations, additions and improvements, .or razing and replacing the whole or any part of the Developer
Improvements, or the Stores of the Majors, or the Ikea Store, as the case may be (such activities for the purposes of this Section XIII-H are collectively referred to as the
"Construction"); and
2. Obtaining ingress and egress to and from the
Developer Improvements, the Stores of the Majors, or the Ikea store, as the case may be, to carry on the Construction.
Within a reasonable time prior to the commencement of
any such Construction, the Party desiring to undertake the same shall submit to the owner of the Tract in question for approval {which approval shall not be unreasonably withheld) a plot plan of the Center on which shall be delineated those portions of RFA/lSf AMENDED.HB/10.18.90 - 102 - Section XIII. G,H
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5000
the Common Area with respect to which such temporary license is reasonably required for such ingress and egress, and the recipient of such plot plan shall, within thirty (30) days thereafter, notify such requesting Party whether it approves or disapproves of same. The temporary licensee, in its exercise of its license, shall comply with the applicable requirements of Section IX hereof, and, upon completion of the Construction, shall promptly restore the portions of the Common Area so used to the condition in which same were in prior to the
commencement of the Construction, including the clearing of such area of all loose dirt, debris, equipment and construction materials. The temporary licensee shall also restore any portions of the Center which may have been damaged by the Construction promptly upon the occurrence of such damage, and• shall at all times during the period of the Construction keep all portions of the Center, except the portions of the Common Area subject to such temporary license, free from and
unobstructed by any loose dirt, debris, equipment or
construction materials.
I. CLEARING OF PREMISES. Whenever a Party is not
obligated by the terms of this REA to repair, rebuild or restore any building or other improvement that has been damaged or destroyed and elects not to do so, then, and in such �ven�, such Party, at its sole cost and expense, shall raze such building and/or other improvements or such part thereof as has been so damaged or destroyed, clear the premises of all debris and level and clear all areas not restored and improve same as Common Area approved by the Parties of like standard as the Common Area of the balance of the Shopping Center. The
obligations pursuant to this Section XIII-I shall be to raze such improvements to the top of the underlying building slab.
J. COMMON BUILDING COMPONENTS. Except as may be
otherwise expressly provided in this REA, the following provisions shall apply to the repair, alteration or restoration of Common Building Components:
REA/lSJ' AMENDED.HB/10.18.90 - 103 - Section XIII. H,I,J 232
5001
1. Subject to the provisions of this
subparagraph 1, each Party owning any improvement in the Center which contains a Common Building Component shall, for so long as another Party owns an improvement which is benefited by the subject Common Building Component, maintain, repair and restore such Common Building Component at its own cost and expense so that, subject to paragraph 2 of this Section, it shall continue to have the capacity to be so used in common with such
benefited improvement in question. The cost of such
maintenance shall be shared by the Parties which benefit from the subject Common Building Component in proportion to the benefit derived from the existence of such Common Building Component.
2. Each Party owning any benefited improvement
which utilizes any Common Building Component shall not place upon the Common Building Component in question any burden which is in excess of the capacity of such Common Building Component or which will prevent the use of the improvement containing the Common Building Component in question for its intended purposes.
3. Any Party owning either an improvement
containing a Common Building Component or a benefited
improvement, as the case may be, may do any work of repair, alteration, restoration or otherwise with respect to such improvements, notwithstanding that during the course of performing such work a condition otherwise prohibited by the provisions of this Section XIII-J may result, if:
(a) During the course of performance of such
work the Party by whom or on whose behalf such work is being done shall, at its own cost and expense, provide such temporary facilities as may be necessary and applicable:
(1) To perform the function performed by
the Common Building Component, if such work is performed with respect to the improvement containing same; or
RfA/lST AMENDED.HB/10.18.90 - 104 - Section XIII. J
233
5002
(2) To increase the capacity of, or
supplement, the Common Building Component to the extent necessary so that the benefited improvement shall not, during the performance of such work, either place on such Common Building Component a burden in excess of its capacity or otherwise prevent the use of the improvement containing the Common Building Component for its intended purposes, if such work is performed with respect to the benefited improvement in question; and
(b) At the conclusion of such work there is
compliance with the provisions of whichever paragraph 1 or 2 of this Section XIII-J is applicable.
4. Notwithstanding the provisions of paragraphs 1
and 2 of this Section, the Party upon whose Tract the
improvements with respect to which the work in question was done shall not be liable to the Party (or its Occupant) upon whose Tract such other improvement affected by such work is located for any inconvenience, annoyance, disturbance or loss of business caused by the performance of such work, except that the Party performing such work, if it or its agents are negligent, shall be liable. The Party upon whose Tract the improvements with respect to which such work is being performed shall make all reasonable efforts to keep any such
inconvenience, annoyance, disturbance or loss of business to a minimum.
5. In the event of damage or destruction to a
Common Building Component, and in the event that a Party is required by this Section XIII to restore a Store or the Developer Improvements, as the case may be, then subject to the limitations of this Section XIII as to their respective obligations, the Party upon whose Tract the Common Building Component in question is located shall restore, repair or rebuild same or cause the same to be restored, repaired or rebuilt.
RFA/lSf AMENDED.HB/10.18.90 - 105 - Section XIII. J
,.-·
,,
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5003
6. Anything in this Section XIII-J to the
contrary notwithstanding, it is expressly understood and agreed that the obligations of Developer for the maintenance, repair and alteration of the Enclosed Mall and the Parking Facilities shall at all times remain its obligation, even though the same may be Common Building Components.
K. LIABILITY OF MORTGAGEE. Anything in this Section
XIII to the contrary notwithstanding, it is expressly
understood and agreed that the provisions of paragraphs D and E hereof shall not be applicable to any Mortgagee of any Tract except in the following instances:
1. Where any such Mortgagee acquires title by
reason of foreclosure, or by deed in lieu of foreclosure, or by termination of a leaseback in a sale and leaseback tran�actiqn, .·_ or otherwise, such Mortgagee or the purchaser at a foreclosure sale shall be obligated to reconstruct only those improvements damaged following the date such Mortgagee or purchaser at a foreclosure sale acquires title by reason of such foreclosure, sale or conveyance, or termination of leaseback; provided, however, that where damage or destruction is caused by a peril included within the risks required to be insured against under this REA, or not required to be insured against, but actually insured against, and the damage or destruction occurs pri�� tp such foreclosure, sale or termination of leaseback, any Mortgagee who acquires title by reason of foreclosure or termination of leaseback, or the purchaser at the foreclosure sale, shall reconstruct the damaged improvements to the extent insurance proceeds are payable therefor.
2. If a Mortgagee which has acquired title in
the manner set forth in subparagraph 1 above or the purchaser at a foreclosure sale is not required to repair, rebuild or restore any building that has been damaged or destroyed and elects not to do so, then such Mortgagee or purchaser shall raze such building or any part thereof that has been so damaged or destroyed, clear the premises of all debris, and improve REA/lST AMENDED.HB/10.18.90 - 106 - Section XIII. J,K
235
5004
said area at its expense as Automobile Parking Area in
accordance with Section XIII-I hereof. Thereafter said area shall become a portion of the Common Area until such time as said Person may elect to rebuild thereon. Should such
Mortgagee desire to raze only a portion of any such building the remaining building must contain not less than the minimum Floor Area for such building pursuant to Section VIII hereof ..
Nothing in this Section XIII-K shall be construed to relieve the Party whose interest has been so acquired of its
obligations under Sections XIII-D or XIII-E hereof.
Nothing contained in this Section XIII-K shall limit
the rights of the Majors and Ikea under Section XIII-E or the rights of the Majors and Ikea under Section XXI-B if there is such limited performance of the provisions of Section XIII-D • or XIII-Eby such Mortgagee or purchaser at a foreclosure sale.
REA./lSf AMENDED.HB/10.18.90 - 107 - Section XIII. K
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5005
SECTION XIV
TRANSFER OF INTEREST, RIGHTS, POWERS AND OBLIGATIONS
A. LIMITATIONS ON TRANSFER OR ASSIGNMENT. In no
event shall the rights, powers and obligations conferred upon a Party pursuant to this REA be at any time transferred or assigned by any such Party except through a transfer of its interest in its Tract, and then only to the extent and in the manner hereinafter provided.
B. TRANSFER OF ENTIRE INTEREST. In the event of the
transfer, conveyance or termination of the whole of the interest of a Party in its Tract w.ithout retaining any beneficial interest therein, other than as beneficiary under the terms of a Mortgage or without simultaneously acquiring a new interest by way of fee ownership, leasehold, life estate, or any other similar interest, theri the rights and powers conferred upon and the obligations under this REA of the transferring Party shall be deemed transferred and assigned with its interest, or termination thereof, and the successor shall become the Party as to its Tract and shall (except as specifically set forth in this REA) be deemed to have assumed all of the obligations under this REA of the transferring Party thereafter to be performed.
c. RETENTION OF INTEREST. In the ev.ent that ( i) -the
whole of the interest of a Party in its Tract is transferred or conveyed, but a new interest is created in the transferring Party simultaneously with the conveyance of its previous interest, by way of fee ownership, leasehold, life estate, or any other similar interest, or (ii) the transferring Party shall convey its interest in its Tract, or a portion thereof, by Mortgage or other security instrument as security for any obligation or indebtedness of such Party, then none of the rights and powers conferred upon, or obligations under this REA of, the transferring Party shall be transferred or assigned with the transfer or conveyance of its interest, but all of the rights and powers conferred upon and obligations under this REA RFA/lST AMENDED.HB/10.18.90 - 108 - Section XIV. A,B,C
•:.
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5006
of the transferring Party shall remain in such Party so long as such Party retains, under clause (i) above, the new interest in and to its Tract (other than as beneficiary under the terms of a Mortgage), or so long as such Party remains, under clause (ii) above, the beneficial owner of the interest in its Tract.
Upon the termination of the new interest created in the transferring Party as specified in this Section XIV-C, the rights and powers conferred upon, and the obligations of such Party, shall vest in accordance with Section XIV-B or XIV-D hereof, whichever is applicable, as if the new interest created in such Party had never existed, subject only.to the release provisions of Section I-FF of this REA.
D. MULTIPLE OWNERSHIP.
(1) Designation. In the event that a Party
transfers or conveys its interest in its Tract, or any portion of its interest in its Tract, in such manner as to vest ownership of the Tract of interest therein in more than one Person, then the Persons owning all of such interest in such Tract shall be jointly considered a single Party and such Persons shall designate one of their number to act on behalf of all such Persons in the performance of the provisions of this REA. Any such designation shall be in writing,_�uly executed, verified and acknowledged by each such Person, shall be served upon all the other Parties in accordance with the notice provisions of Section XXV of this REA, shall contain a
certificate that a copy thereof has been so served, and shall be recorded in the Office of the Recorder of Los Angeles County.
(2) Effect of Designation. In the absence of
such written designation, the acts of the transferring Party whose interest is so divided with respect to the performance of the provisions of this REA shall be binding upon all of the Persons owning any interest in such Tract, until such time as the written designation is properly served and recorded as provided by this Section XIV-D, and whether or not such Party RFA/lSf AMENDED.HB/10.18.90 - 109 - Section XIV. C,D
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5007
retains any interest in the Tract in question. The exercise or performance of any rights, powers or obligations of a Party under this REA by the Person designated to represent such Party shall be binding upon all Persons having an interest or right in such Tract and/or upon all Persons having an interest in such Party. So long as such designation remains in effect, all Persons having an interest or right in the Tract and/or all Persons having an interest or right in such Party shall act only through such Person designated hereunder and the other Parties shall have the right to deal exclusively with and rely solely upon the acts or omissions of such Person in the performance or provisions of this REA.
(3) Removal of Designated Person. Any Person
designated hereunder may be removed by the Persons so
designating, provided that written notice of such removal and designation of a new Person to act as the Party on behalf of all such Persons under th.is REA is given and made in the manner specified in this Section XIV-D, and in the absence of any such written notice and designation, the previous designation shall continue in effect and the acts of the Person previously designated with respect to the performance of the provisions of this REA shall be binding upon all such Persons until such time as the written notice and designation is properly served as provided by this Section XIV-D.
(4) Designation of Party Representative by Other
Parties. Notwithstanding anything to the contrary herein contained, if (i) at any time after a Person has been
designated to act on behalf of a Party hereunder, such Person is removed or dies, becomes incapacitated or is dissolved and no new Person is designated to act on behalf of such Party pursuant to Section XIV-D-1 above, or (ii) if a Person has not been designated hereunder within thirty (30) days after any other Party receives notice of any change in ownership of any portion of a Tract which would give rise to the requirement for designation under this Section XIV-D, or (iii) if the
RFA/lST AMENDED.HB/10.18.90 - 110 - Section XIV. D
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5008
designation of a Person to act on behalf of a Party earlier than the expiration of such thirty (30) day period is
reasonably necessary to enable or entitle any other Party to comply with any of- its obligations under this REA, or to take any other action which may be necessary or permitted to carry out the purposes of this REA, then in any such event, the other Parties acting jointly or, upon failure· or such joint action, any Party at any time may make such designation of a Person to act on behalf of all such Persons comprising such Party under this REA, which designation shall be made and given in
accordance with the applicable provisions of this Section XIVD. Such designation made hereunder shall remain in full force and effect until the Persons comprising such Party make a new designation pursuant to the provisions of this Section XIV-D. (5) Status of Designated Person. Any Person
designated pursuant to the provisions of this Section XIV-D shall be the agent of each of its principals, hereby
irrevocably appointed for such purpose, and upon whom service of any process, writ, summons, order or other mandate of any nature of any court in any action, suit or proceeding arising out of this REA may be made, and service upon such designated Person shall constitute due and proper service of any such matter upon each of its principals, provided a copy of, _such_. matter is also mailed to such principals at the principals' last addresses known to the sender. As used herein, the term "principals" means all Persons comprising the Party who have interests of record in connection with the ownership of such Party's interest in its Tract.
(6) Obligation of Other Persons Comprising
Party. Notwithstanding anything to the contrary herein
contained, the designation of a Person to act on behalf of a Party under this Section XIV-D shall not for any purpose relieve any such Party from the obligations or liabilities created by or arising from this REA.
REA/lST AMENDED.HB/10.18.90 - 111 - Section XIV. D
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SECTION XV
EXCUSE FOR NON-PERFORMANCE
Each Party shall be excused from performing any
obligation or undertaking provided in this REA, except any obligation to pay any sums of money under the provisions hereof (unless conditioned upon performance of an obligation or undertaking excused by this Section XV), in the event, but only so long as the performance of any such obligation is prevented or delayed, ·retarded or hindered by act of God, fire,
earthquake, floods, explosion, actions of the elements, war, invasion, insurrection, riot, mob violence, s�botage, inability to procure or general shortage of labor, equipment, facilities, materials or supplies in the open market, failure of
transportation, strikes, lockouts, action of labor unions, condemnation, requisition, laws, orders of governmental or civil or military or naval authorities, acts or the failure to act of a public or governmental agency or entity (except that any act or the failure to act of the Agency or City shall not excuse performance by the Agency) or any other cause, whether similar or dissimilar to the foregoing, not within the
respective control of such Party (other than the lack or inability to procure monies to fulfill commitments and
obligations or undertakings provided in this REA).
Notwithstanding any specific references in certain provisions of this REA to this Section xv, the absence of such specific reference in any other provision shall not be deemed to diminish the general applicability of this Section xv.
REA/lST AMENDED.HB/10.18.90 - 112 - Section XV.
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SECTION XVI
CONDEMNATION
A. DISTRIBUTION. Any award for damages, whether the
same shall be obtained by agreement prior to or during the time of any court action or by judgment, verdict or order, or after any such court action resulting from a taking by exercise of right of eminent domain of the Shopping Center Site or any portion thereof, or resulting from a requisitioning thereof by military or other public authority for any purpose arising out of a temporary emergency or other temporary circumstances, shall be distributed between the Parties pursuant to the terms and conditions of this Section XVI.
B. METHOD OF DISTRIBUTION. If a Party exercises its
I • : .. �: • • right to terminate this REA as to its Tract as provided in Section XVI-D, such Party shall be entitled to the entire award received by it. If a Party does not have a right to terminate this REA as to its Tract or does not elect to exercise such right, the following provision shall be applicable. Any such award shall be paid promptly by the Party receiving the same in trust to a bank or trust company approved by the Parties having an office in Los Angeles, California, as trustee, to be distributed in accordance with the provisions of this Section.
Any such award shall be distributed by the trustee as
'
follows:
(a) If all or any portion of any Tract,
exclusive of Common Area, and the land thereunder, within the Center shall be condemned, the total award shall be paid to the Party owning or leasing such Tract so taken, exclusive of any award or compensation paid for any Common Area; or
(b) If all or any portion of the Common Area
shall be condemned, the award applicable to the Common Area shall be distributed by the trustee in the following order of priority:
(i) To the Party or Parties owning or
leasing the Common Area so taken, any and all reasonable REA/lSf AMENDED.HB/10.18.90 - 113 - Section XVI. A,B
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expenses or disbursements such Party or Parties may have incurred or obligated itself or themselves for in connection with such proceedings;
(ii) To such Party or Parties (after the other
Parties shall have approved complete plans and specifications for any substituted Common Area and the contract or contracts for construction of such Common Area) under progress payments during the progress of the restoration of the Common Area, out of the net proceeds in ·condemnation so held to the extent such proceeds or such award will permit, as follows: (1) at the end of each month, or from time to time as may be agreed upon by the affected Parties, there shall be paid, against such Party's architect certificates, an amount which shall be that proportion of the proceeds held in trust which 90% of the payment to be made to the contractors or materialmen of such Party for work done, materials supplied and services rendered during each month or other period bears to the total contract price, but never more than 90% of the amount requested; and (2) at the completion of the work, the balance of such condemnation award monies required to complete the payment for such work shall be paid to such Party; provided that at the time of such payment (A) there are no liens against the Tract of such Party, or notices to withhold by reason of such work and that, with respect to the time of payment of any balance remaining to be paid at the completion of such work, the period within which a lien or notice to withhold may be filed has expired or that the other Parties are satisfied by proof submitted by such Party that all costs of such work theretofore incurred have been paid, (B) such Party's architect shall certify that all work so far done is proper and of a quality and class equal to the original work required by the DOA and this REA and in accordance with the approved plans and
specifications, and (C) such Party shall furnish to the trustee evidence satisfactory to said trustee that all previous advances have been devoted to defray the actual cost of such work up to the amount of such cost, or that such cost has RFA/lSf AMENDED.HB/10.18.90 - 114 - Section XVI. B
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actually been paid by such Party in the amount of all such previous advances. In no event shall the trustee be liable for any amount in excess of the net proceeds of the award in condemnation. The Parties agree to cooperate in an effort to have the cost of such work performed for an amount not to exceed the net proceeds of the condemnation award. However, should the cost of such work exceed the net proceeds of the award in condemnation, Developer, the Majors and Ikea shall pay such addi tio·nal cost in the same respective proportions as the Allocable Shares of their iespective Tracts.
Should (1) the cost of such work be less
than the net award in condemnation so held in trust, or (2) no substituted Common Area be provided, the award or the balance of said award shall be apportioned between the Parties as their respective property interests may appear, in the Tract or Tracts so taken; provided, however, there is first distributed to all Parties, any and all reasonable expenses or
disbursements each such Party may have incurred or obligated itself for.in connection with such condemnation proceedings.
Anything to the contrary in this Section
XVI-B notwithstanding, if a Party or its Affiliate (as defined in Section XI-E), has net current assets of $100,000,000 or more, and net worth of $200,000,000 (in 1989 Dollars), or m�re, as disclosed on the latest annual audited statement of such Party or its Affiliate (or in the case of Mervyn•s or I�ea, or in the case of Bullock's if Bullock's no longer has an annual audited statement, a statement certified by a corporate officer of Mervyn•s, Ikea or Bullock's, as the case may be), provided such Affiliate covenants to the other Parties to perform such Party's obligations relating to condemnation and restoration of the land and the improvements or portions thereof, not taken, or to cause the performance of such obligations, payment of such Party's portion of the award for damages shall be made directly to such Party rather than to the trustee as
hereinabove provided. Notwithstanding anything contained in REA/lST AMENDED.HB/10.18.90 - 115 - Section XVI. B
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Section XVI-B, payment of any award to Developer shall be held in trust by the Mortgagee of the Mortgage on the Developer Tract for application under the provisions of this Section XVI.
If Developer's Mortgagee is the holder of such award, such award shall be deposited in a California bank.
c. RESOLUTION OF DISPUTES. Any issue which is not
resolved by any judgment in the condemnation proceeding or supplemental determination therein shall be resolved among the Parties under the arbitration provisions of Section XXIII.
D. TERMINATION OF REA FOR CONDEMNATION OF AUTOMOBILE
PARKING AREA OR FLOOR AREA. Notwithstanding anything contained herein to the contrary, if all or a portion of the Automobile Parking Area shall be taken in eminent domain so that after such taking the parking ratio in the Center shall be reduced to less than eighty percent (80%) of the applicable parking ratio provided for in Section x-c, then this REA may be terminated upon the taking of permanent possession (as distinguished from a temporary requisition for a period of less than ninety [90] days) of such Automobile Parking Areas by the condemning authorities, as hereinafter provided. Any Party desiring to terminate this REA shall give notice of such desire to all other Parties and, if within thirty (30) days after the giving of such notice, one or more of the remaining Parties shall not give notice in writing of its or their objection to such termination, this REA shall terminate as to the first Party on the sixtieth (60th) day after the giving of the such notice of intention to terminate.
In the event one or more of the remaining Parties
does give its notice of objection within such thirty (30) day period to the Party desiring to terminate this REA as
hereinabove provided, then such Party or Parties shall submit to the other Parties with its or their notice of objection plans, specifications and a construction schedule for
alternative automobile parking facilities to increase the RFA/1ST AMENDED.HB/10.18.90 - 116 - Section XVI. B,C,D
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parking ratio to an amount sufficient to have otherwise prevented such termination. Any parking structure required to be constructed to so increase the parking ratio shall be paid for solely by the Party or Parties so objecting to the
termination. This REA shall not terminate in the event such notice of objection is given unless all other Parties and the Agency shall, within sixty (60) days following the receipt of such request, reject in writing such proposed additional automobile parking facilities. The determination of whether or not a Party shall reject or approve such additional automobile parking facilities shall be made in good faith by each Party, but in its sole and absolute discretion. If such additional automobile parking facilities are not rejected by any Party, such facilities shall be constructed in accordance with plans approved by the Parties and the cost thereof shall be borne by the Parties on the basis of their respective Allocable Shares.
Notwithstanding the foregoing, if ten percent (10%) or
more of the Floor Area contained in a Major's Store, the Ikea Store, or the Developer Mall Stores shall be so taken in eminent domain, or if twenty percent (20%) or more (as to Bullock's and Developer, in the aggregate) of the automobile parking spaces located within Parking Facilities No. 1 as to Mervyn's, Parking Facilities No. 2 as to Sears, Parking Facilities No. 2 and J as to Bullock's, Parking Facilities No. 3 as to Ikea or Parking Facilities No. 1, 2 and J as to Developer, shall be so taken in eminent domain, then such Party shall have the right to terminate this REA as to its Tract, upon giving not less than sixty (60) days' written notice to the other Parties of its intention so to do.
E. RIGHTS OF MORTGAGEES. Nothing herein contained
shall be deemed to prohibit any Mortgagee from participating in any eminent domain proceedings on behalf of or in conjunction with any Party upon whose Tract it has a Mortgage, provided the same does not reduce the award to any other Party or the distribution thereof in accordance with Section XVI-B.
RFA/lST AMENDED.HB/10.18.90 • 117 • Section XVI. D,E
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F. RECONSTRUCTION ON CONDEMNATION. Each Party not
terminating this REA as to its Tract shall, to the extent practicable, reconstruct its Tract to the same extent it would be required to reconstruct pursuant to Section XIII and in accordance with the requirements and subject to the provisions of this Section, and in accordance with Section IX hereof.
If this REA is terminated as to the Tract of an
individual Party or Parties, but not in its entirety, the Party or Parties as to whom this REA has terminated shall in all events (i) comply with the obligation to cause the portions of the Enclosed Mall to be secured and enclosed �here its building had been, or is, situated, as provided for in Section XIII-B; (ii) raze its buildings or perform such restoration as
necessary so that its former improvements ,do·��t.constitute a hazard or a nuisance; (iii) maintain its Tract and the
improvements situated thereon in such a manner so as not to interfere with the Operation of the Stores or other
improvements of the Parties still Operating under this REA, and (iv) until the Termination Date comply with the prohibitions and restrictions set forth in Sections VIII-D and VIII-E hereof.
G. INVERSE CONDEMNATION. Should any inverse
condemnation result by reason of actions o.f a public authority, • •• I •
including without limitation any acts or-actions of any environmental protection agency, and a judgment of a court of competent jurisdiction shall so determine, then the rights of the Parties shall be the same as though condemnation had taken place.
RFA/lST AMENDED.HB/10.18.90 - 118 - Section XVI. F,G
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SECTION XVII
CORRECTION OF SITE DESCRIPTIONS; GRANT
OF EASEMENTS
A. CORRECTION OF SITE DESCRIPTIONS. It is
recognized that by reason of construction, engineering or design errors, the Developer Improvements, the Stores of the Majors and the Ikea Store may not be precisely constructed within their respective Tracts as described in Exhibit A. As soon as reasonably possible after completion of the
construction of the Developer Improvements and the Majors' Stores, Developer, each Major and Ikea, as the case may be, shall cause, each at its own expense, an "as-built" survey to be made of its Tract showing all building perimeters (including overhangs and encroachments), Common Area and other
improvements and Tract boundaries and shall also cause a copy of such survey to be delivered to the other Parties. In the event such survey shall disclose that the building or buildings of the Party making such survey have not been precisely constructed within its Tract, then promptly upon request of any other Party, all Parties will join in the execution of an agreement, and the Agency will join in a consent thereto, in recordable form, amending Exhibit A to this REA, so as to revise the description of such Tract and the adjoining Tract to coincide with the as-built perimeter of the buildings and improvements constructed on such Tract and to include in the adjoining Tract a portion of land equivalent to that which has been taken by the encroachment. Nothing herein contained shall be deemed to relieve or excuse any Party from exercising all due diligence to construct or cause the construction of Floor Area, Common Area and other improvements within its Tract as described on Exhibit A.
B. GRANT OF EASEMENTS. Upon request of any Party
whose Tract description is being revised pursuant to this Section, each Party upon whose Tract the encroachment occurred agrees to either grant an easement (and the Agency will join in RFA/1ST AMENDED.HB/10.18.90 - 119 - Section XVII. A,B
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a consent thereto, if necessary) over that portion of its Tract as is required to correct such description.
RFA/lST AMENDED.HB/10.18.90 - 120 - Section XVII. B
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SECTION XVIII
SIGNS
A. CRITERIA. No signs shall be erected in the
Shopping Center Site which do not conform in all respects to the criteria attached hereto as Exhibit D. It is understood that said criteria expressly exclude therefrom, except for specific provisions thereof, the building identification signs on the Stores of the Majors and the building identification signs and flags of nations located on, and/or about the Ikea Store. Any Occupant of Floor Area within the Ikea Store not Operating the same as part of the business of Ikea shall be entitled to erect and maintain signage on the exterior of the Ikea Store provided such signage conforms in all respects to the requirements of Exhibit D.
B. APPROVAL OF SPECIAL SIGNS. If any Occupant shall
request a sign not completely in accordance with the sign criteria, such sign shall not be erected without the written consent of the Parties. Any change made to any initially completed sign which causes the same not to fall within the scope of the sign criteria is hereby prohibited, and any such changed sign shall be considered as a new installation and deviation from the sign criteria shall similarly require the approval of the Parties.
REA/lST AMENDED.HB/10.17.90 - 121 - Section XVIII. A,B
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SECTION XIX
RULES AND REGULATIONS
Each Party agrees to observe and comply with, and
shall cause its respective Permittees to observe and comply with, the Rules and Regulations attached hereto and marked Exhibit E. Such rules and regulations shall be amended only by agreement in writing, executed by the Parties, provided however, such amendment need not be an amendment to this REA.
REA/lST AMENDED.HB/10.17.90 - 122 - Section XIX.
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SECTION XX
COVENANTS OF DEVELOPER
A. STANDARDS. The Parties agree that it is in their
mutual best interests, and important to the maximum utilization of their Tracts, that the Shopping Center Site and each Store Site be developed and maintained as an integrated shopping center and mixed use project which will contain a combination of Occupants which (i) represent a sound and balanced
diversification of merchandise, (ii) are well qualified and willing to direct an intensive and continuous merchandising and promotional program, (iii) will be of strong financial
condition and good repute, (iv) will efficiently utilize and not exceed the capacity of the available Automobile Parking Area, or any portion thereof, and (v) will fixturize, decorate and maintain their respective Store premises in a tasteful and decorous manner, having regard for the general standards of appearance prevailing in the Shopping Center. In furtherance of such purpose the Parties have agreed to the provisions of Section IV, VIII, IXJ X, this Section XX and Section XXI.
B. MANAGEMENT CRITERIA. Developer covenants and
agrees, subject to the provisions of Sections XIII, XV, XVI and XXIX-N of this REA, and subject to the other provisions of this Section, that, so long as at least one (1) Major is Operating · in its minimum Floor Area, it will manage and Operate, or cause to be managed and Operated, the Enclosed Mall, the other Common Area and the Developer Mall Stores and the Developer Non-Mall Stores, in the following manner:
1. The Developer Mall Stores and the Developer
Non-Mall Stores as a complex of retail stores and commercial enterprises which are a part of a first-class regional shopping center development with an Enclosed Mall and other related Common Area facilities.
2. use its professional diligent efforts to:
(a) Have the Floor Area of the Developer
Mall Stores Operated in its entirety; provided, however, that RFA/lST AMENDED.HB/10.18.90 - 123 - Section XX. A,B
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at any time after the Operating period provided for in Section XXI, if there shall be at least: (i) three Majors Operating in at least their minimum Floor Area in the Center, Developer shall be required to use its professional diligent efforts to have the Floor Area in the Developer Mall Stores Operated in its entirety; (ii) two Majors Operating in at least their minimum Floor Area in the Center, Developer shall be required only to have the following Floor Area of the Developer Mall Stores open for business:
(x) If the two Majors so open are Sears and
Mervyn's, Developer will use its professional diligent
efforts to have open for business all of the Floor Area in the Phase 1 Developer Mall Stores; or
(y) If the two Majors so open are Bullock's
and one of Sears or Mervyn•s, Developer shall use its
professional diligent efforts to have open for business on all three levels of the Enclosed Mall all of the
Floor Area in the Developer Mall Stores on both sides
of the Enclosed Mall located between Bullock's and
whichever of Sears or Mervyn's is so open; and
(iii) one Major Operating in at least its minimum Floor Area in the Center, Developer shall use its professional diligent efforts to have open for business only the Floor Area in the Developer Mall Stores located "immediately adjacent" (as such term is defined in Section XIII-D-2 to such Major so
Operating. In the event of damage ·or destruction, Developer shall not be required to have open for business more Floor Area in the Developer Mall Stores than it would be required to restore, repair or rebuild under Section XIII-D;
(b) Have at all times a proper mixture and
balance of Occupants consistent with first-class, well
diversified regional shopping centers in Southern California; and
(c) Maintain a quality of management and
Operation that is first-class and is not less than that REA/lSf AMENDED.HB/10.18.90 - 124 - Section XX. B
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generally adhered to in other similar first class regional shopping centers in Southern California.
3. Under the name of Media City Center, and under no
other name without the prior approval of each Major and Ikea, in its sole and absolute discretion, provided however if such Major or Ikea is not a Party, it shall not have such right of approval.
4. So as to have available for use Floor Area in the
Developer Mall Stores of not less than the minimum Floor Area provided in Section VIII-A; provided, however, that in the event of damage or destruction, Developer need not have more Floor Area available for use than would be required at the time in question under the applicable provisions of Section XIII-D.
5. In accordance with the rules and regulations
prescribed in Exhibit E or as may be adopted by the Parties from time to time and in accordance with the Sign Criteria prescribed in Exhibit D.
6. To have leases requiring sixty percent (60%) of
the Initial Planned Floor Area of the Phase 1 Developer Mall Stores obligated to be open for business when provided in Section VII-C hereof, if Sears or Mervyn's is Operating in its minimum Floor Area, and to have leases requiring seventy percent (70%) of the Occupants of all of the Developer Mall Stores obligated to be open for business when provided in Section VII-C hereof, if Bullock's is Operating in its minimum Floor Area.
7. To open the Enclosed Mall when provided in
Section VII-C.
8. Except as expressly permitted in this REA, so as
not to substantially change, modify or alter in any manner or to any extent whatever the Enclosed Mall and the exterior of the Developer Mall stores, without the prior approval of each Major; provided, however, this prohibition shall not apply to changes, modifications or alterations of the storefronts of the REA/lST AMENDED.HB/10.18.90 - 125 - Section XX. B
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Developer Mall Stores so long as there is no encroachment on the Enclosed Mall.
9. Except as expressly permitted in this REA, so as
to maintain the layout of the Developer Improvements on the Developer Tract as shown on Exhibit B, and to Operate the Developer Improvements within the confines of the Shopping Center Site as depicted on Exhibit B.
10. So as to Operate and provide cooling and
ventilation for the Enclosed Mall and to maintain the airconditioning system therein at all times when the retail operations on the Developer Tract or the Tract of any Major are open for business, and for not less than one-half hour before and after the same are open, and in such manner so that the temperature and humidity throughout the Enclosed Mall is at a. reasonably comfortable level and in accordance with the provisions of Section IV-E-8 of this REA and so as not to unduly discharge air out of or return air into the Stores; provided, however, that at any time after the period for which Operation is required pursuant to Section XXI, if there shall be only two Majors Operating in at least their respective minimum Floor Area, Developer shall be required to Operate in accordance with the provisions of this Section XX-B-10 only that portion of the Enclosed Mall located in the area between such Majors' Stores; and provided further that at any time after the period for which Operation is required pursuant to Section XXI, if there shall be only one Major Operating in at least its minimum Floor Area, Developer shall be required to Operate in accordance with the standards of this Section XX-B10 only that portion of the Enclosed Mall located "immediately adjacent" (as such term is defined in Section XIII-D-3) to the Major so Operating.
Notwithstanding anything to the contrary, the
covenants contained in this Section XX shall not impose any greater obligation on Developer to rebuild, reconstruct or restore than as set forth in Section XIII hereof.
REA/lSf AMENDED.HB/10.18.90 - 126 - Section XX. B
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c. COVENANTS RUNNING WITH THE LAND. Each and all of
the provisions of this REA on Developer's part to be performed, and each and all of Developer's covenants herein not to use, or permit the use of, any part of the Developer Tract contrary to the provisions of the ODA and this REA, are also intended to and shall bind the Developer Tract, each and every Person having any fee, leasehold or other interest in any part of the Developer Tract, at any time and from time to time, or derived through any Person now or hereafter comprised within the term Developer to the extent that such part of the Developer Tract is affected or bound by the covenants in question, or that such covenant is to be performed thereon, and shall inure to the benefit of each Major and its Tract and shall run with the ·land.
D. DOMINANT AND SERVIENT ESTATES. With respect to
the various covenants (whether affirmative or negative) on the part of Developer contained in this REA which affect, or bind, or are to be performed on portions of the Tract of any Party, the Tract benefited by such covenant shall, during the term of this REA, be the dominant estate, and the Developer Tract (or if the particular covenant affects, binds or is to be performed on less than the whole of the Developer Tract, then with respect to the particular covenant, such portion there�f, as is affected by, or bound by,the particular covenant, or on which the particular covenant is to be performed) shall, during the term of this REA, be the servient estate.
E. ODA. Developer covenants with each of the Majors
and Ikea that Developer shall perform or shall cause the performance of each of Developer's obligations and covenants as "Developer" under the ODA in the time and manner set forth therein at Developer's sole cost and expense, shall enforce each and every Agency covenant under the ODA at Developer's sole cost and expense and shall not waive any of the Agency's obligations thereunder or modify any of the terms or conditions thereof without the consent of the Majors and Ikea.
RFA/lST AMENDED.HB/10.18.90 - 127 - Section XX. C,D,E
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SECTION XXI
COVENANTS OF MAJORS AND IKEA
A. OPERATION COVENANTS. Each of Sears, Mervyn•s,
Bullock's and Ikea covenant and agree with and for the benefit of Developer and Developer's Mortgagee, subject to the
provisions of Sections VII, XIII, XV, XVI and XXIX-N, and subject to the other provisions of this Section, that it will open its Store on or before the date set forth for such opening in Section VII hereof and that it will thereafter Operate, or cause to be Operated, the same as a single retail facility compatible with the Shopping Center under the trade names, respectively, of "Sears", "Mervyn's", "Bullock's" or "Macy's" and "Ikea" , or under such other name ( i) in the case of Sear·s, as Sears is doing business in a majority of its retail
department stores in regional shopping centers in southern California, and (ii) in the case of Mervyn's, as Mervyn's is doing business in a majority of its retail department stores in regional shopping centers in Southern California, (iii) in the case of Bullock's, as Bullock's or R. H. Macy & Co., Inc.,.a Delaware corporation ("RHM"), is doing business in a majority of its retail department stores in regional shopping centers in Los Angeles and/or Orange Counties, except that,
notwithstanding anything to the contrary in this REA, if Bullock's transfers to a single transferee the Bullock's Store and four (4) other stores operating in Los Angeles and/or Orange Counties under the name "Bullock's" or such other name as Bullock's is doing business in a majority of its stores in Los Angeles and/or Orange Counties, such transferee shall not be required to Operate under the name "Bullock's" or "Macy's" or such other name as Bullock's or RHM is operating a majority of its stores in Los Angeles and/or Orange Counties, but such transferee shall be required to Operate the Bullock's store under the same trade name as the other four (4) stores so transferred are operating or under such other trade name as such transferee is operating a majority of its stores in Los Angeles and/or Orange Counties, and (iv) in the case of Ikea, under
REA/lSf AMENDED.HB/10.18.90 - 128 - Section XXI. A
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such name as Ikea is doing business in a majority of its retail stores in the United States, and in each case in not less than the minimum number of square feet of Floor Area required under Section VIII hereof, for ten (10) consecutive years from the date as to Sears, Mervyn's and Ikea, upon which at least two (2) of Sears, Mervyn's and Ikea shall first be open for business, and as to Bullock's, upon which Bullock's shall first be open for business, and each will continuously Operate or cause to be Operated its Store as a single retail facility (but without any trade name requirement) in not less than the minimum number of square feet required under Section VIII hereof for five (5) years thereafter.
The hours of business, the number and types of
departments to be Operated in each such Store, the particular contents, wares and merchandise to be offered for sale and the services to be rendered, the methods and extent of
merchandising and storage thereof, and the manner of Operating such Store in every respect whatsoever shall be within the sole and absolute discretion of each of Sears, Mervyn's, Bullock's and Ikea. Each of Sears, Mervyn•s, Bullock's and Ikea may Operate a department or departments in their respective Stores, in whole or in part through licenses, tenancies and/or
concessionaires. Provided Ikea is not in default of its Operation covenant as set forth above, Ikea Property Inc. (but no successor thereto except as permitted by Section I-FF hereof) shall have the right to sublease and/or license for use portions of the Ikea Store not to exceed 100,000 square feet of Floor Ar·ea for Operation of businesses that are not part of the Operation of Ikea's retail business, and provided further that the location of any Ikea Store entrances which are not as shown on Exhibit B will be subject to Developer's reasonable
approval.
B. RELEASE FROM OBLIGATIONS. Each of Sears,
Mervyn•s, Bullock's and Ikea shall be released from the performance of its Operation covenant contained in Section XXIREA./lSf AMENDED.HB/10.18.90 - 129 - Section XXI. A,B 258
5027
A: (i) in the event Developer ceases to comply with the provisions of Section XX-B-1, -2, -4, -7, -a, -9, -10 or Section X-B (if as to XX-B-9 or X-B, such cessation has a material adverse impact on its Operation as hereinafter provided) hereof, provided, however, that Developer shall have sixty (60) days after written notice to cure any such default, or if such default cannot be cured within sixty (60) days, to diligently commence curing within such time, and diligently complete curing same within a reasonable time thereafter; (ii) if such Party is excused from the performance of its
obligations under Section XIII-D.
In case Developer �ails to comply with the
provisions of Section X-B or XX-B-9, which default, in the reasonable, good faith judgment of any other Party, materially adversely affects such Party's Operation (e.g., such default directly results in a material loss of revenue, a closure of such Party's Store, a material adverse condition in the Common Area materially limiting customer access to or parking for such Party's Store, or other material demonstrable matters), and Developer has failed to cure or commence the curing of said default within the time periods set forth above, such Party shall have the right to send Developer another notice (the "Second Notice") notifying Developer of such failure in writing, specifying with particularity the reasons why such Party believes that Developer is failing to pursue said cure with reasonable diligence and how such failure materially adversely affects such Party's Operation. The Second Notice shall also state that if Developer fails to commence the curing of said default within fifteen (15) days after the Second Notice, such Party shall be released from its Operation covenant hereunder. If Developer fails to commence the curing of said default within said fifteen (15) day period and to diligently complete said curing as soon as reasonably
practicable, such Party shall be released from the performance of its Operation covenant under Section XXI-A.
RFA/1Sf AMENDED.HB/10.18.90 - 130 - Section XXI. B
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Any dispute as to the failure of performance
and/or due diligence respecting the curing of a default, or what constitutes a reasonable time for the curing of default, shall be subject to the provisions of Section XXIII hereof.
Sears and Mervyn•s shall each be released from
the performance of its obligations contained in Section XXI-A in the event Developer ceases to have occupied and open for business at least sixty percent (60%) of the Initial Planned Floor Area of the Phase 1 Developer Mall Stores. Bullock's shall be released from the performance of its obligations contained in Section XXI-A in the event Developer ceases to have occupied and open for business at least seventy percent (70%) of the number of Occupants of all of the Developer Mall Stores. Ikea shall be released from the performance of its obligations contained in Section XXI-A in the event there is not occupied and open for business an amount of Floor Area equal to at least the sum of (i) sixty percent (60%) of the Initial Planned Floor Area of the Phase 1 Developer Mall Stores plus (ii) the minimum Floor Area of at least one Major; provided, however, that with respect to a Major and Ikea, Developer shall have twelve (12) months after written notice of such default to remedy the same. With respect to Sears, Mervyn•s and Ikea such condition shall be conclusively deemed to have been remedied if during said twelve (12) month period Developer shall have entered into bona fide leases which require the opening for business of Floor Area of Developer Mall Stores sufficient to increase the Phase 1 Developer Mall Stores to more than sixty percent {60%) of their Initial Planned Floor Area (and with respect to Ikea only, the opening for business of the Floor Area of at least one Major sufficient to increase the Floor Area of such Major to the minimum Floor Area of such Major) which bona fide leases shall provide for the actual commencement of occupancy of Floor Area by the Occupant(s) within said twelve (12) month period, and for the Occupants• commencement of Operation no later than three (3) REA/lSf AMENDED.HB/10.18.90 - 131 - Section XXI. B
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months after the expiration of said twelve (12) month period.
With respect to Bullock's, such condition shall be conclusively deemed to have been remedied if during said twelve (12) month period Developer shall have entered into bona fide leases which require the opening for business of seventy percent (70%) of the number of Occupants of all of the Developer Mall Stores which bona fide leases shall provide for the actual
commencement of occupancy of Floor Area by the Occupant(s) within said twelve (12) month period, and for the Occupants• commencement of Operation no later than three (3) months after the expiration of said twelve (12) month period.
Sears shall also be released from the performance of
its Operation covenant contained in Section XXI-A in the event Ikea has not opened its Store for business wi�hin .one. (1) year •,.··-:-:
after the Grand Opening or having so opened, thereafter ceases to Operate its Store pursuant to Section XXI-A for a period in excess of six (6) consecutive months.
Mervyn's shall also be released from the performance
of its Operation covenant contained in Section XXI-A in the event Sears has not opened its Store for business within one (1) year after the Grand Opening or having so opened,
thereafter Sears ceases to Operate its Store pursuant to Section XXI-A for a period in excess of six (6) consecutive months.
Sears and Mervyn's shall also be released from the
performance of their respective Operation covenants contained in Section XXI-A in the event Bullock's has not opened its store for business within one (1) year after the Bullock's Grand Opening or having so opened thereafter ceases to Operate its Store pursuant to Section XXI-A for a period in excess of six (6) months; provided, however, that, in such event, the Operation covenants of Sears and Mervyn's shall continue in full force and effect for the periods and to the extent set forth in the Original REA.
Bullock's shall also be released from the performance
RFA/lST AMENDED.HB/10.18.90 - 132 - Section XXI. B
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of its Operation covenant contained in Section XXI-A in the event Sears or Mervyn•s has not opened its Store for business within one (1) year after the Grand Opening or, having so opened, thereafter either Sears or Mervyn•s ceases to Operate its Store pursuant to Section XXI-A for a period in excess of six (6) months.
Ikea shall also be released from the performance of
its Operation covenant contained in Section XXI-A in the event Sears and Mervyn's have not opened their respective Stores for business within one (1) year after the Ikea Grand Opening or, having so opened, thereafter cease to Operate their respective Stores pursuant to Section XXI-A for a period in excess of six (6) consecutive months.
The release from the covenants and obligations of
Section XXI-A shall be effective upon the released Party's giving notice thereof to Developer and the other Major(s) and/or Ikea and the expiration of any relevant grace period without curing of the noticed matter, and thereupon the Operation covenant provided in Section XXI-A and the
reconstruction covenant provided in Section XIII-D of the Party giving said notice shall terminate and such Party shall not be required to thereafter continue Operating its Store or to reinstitute such Operation, notwithstanding the subsequent curing of any default or condition referred to herein.
Continued Operation by such Party following such notice and the expiration of and any grace period shall not affect the effectiveness of such notice nor the release.
If any Major or Ikea shall cease Operation pursuant to
the provisions hereof, it shall not be required to thereafter continue in business or to reinstitute such business,
notwithstanding the subsequent curing of any default referred to herein.
C. SUBORDINATION TO LIEN. The covenants contained
in Section XXI-A are subordinated to the lien of any Mortgage recorded against the Tract which is burdened by such covenant REA/lSf AMENDED.HB/10.18.90 - 133 - Section XXI. B,C
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(including, but not be way of limitation, any blanket Mortgage which may cover any other property or properties of such Party, whether owned in fee or as a leasehold, in addition to the property interest or interests previously referred to in this sentence), to the end that the Mortgagee and a purchaser or purchasers in any foreclosure proceedings, or pursuant to any exercise of power of sale, or any grantee under a deed in lieu of foreclosure, and all successors to or through any such purchaser or purchasers, or to or through any such grantee, shall take free and clear of the Operation covenant. Each Party covenants and agrees to execute and deliver to the others, upon request therefor, such instruments, in recordable form, as shall at any time and from time to time be required (the form of which shall be in the sole and absolute judgment of counsel for such Party) in order to confirm or effect any such subordination as referred to in the preceding sentence.
Except as otherwise provided herein, nothing herein contained shall be deemed to relieve the Majors and Ikea of their respective obligations to Operate pursuant to Section XXI-A.
D. COVENANTS RUNNING WITH THE LAND. Each and all of
the provisions of this REA on the respective parts of the Majors and Ikea herein to be performed and each and all covenants of the Majors and Ikea herein not to u�e, or permit the use of, any part of their respective Tracts, as the case may be, contrary to the provisions of the DOA and this REA, are intended to, and shall bind the Sears Tract, the Mervyn's Tract, the Bullock's Tract and the Ikea Tract and each and every Person having any fee, leasehold or other interest in any part of such Tract, at any time and from time to time, or derived through any Person which comprises or is a part of each Major and Ikea, to the extent that such part of their
respective Tracts is affected or bound by the covenant in question, or that such covenant is to be performed thereon, and shall inure to the benefit of the other Parties and their iespective Tracts and shall run with the land.
RFA/1Sf AMENDED.HB/10.18.90 - 134 - Section XXI C,D.
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E. DOMINANT AND SERVIENT ESTATES. With respect to
the various covenants (whether affirmative or negative) on the part of each Major and Ikea contained in this REA, which affect or bind, or are to be performed on portions of their respective Tracts, the Tract benefited by such covenant shall, during the term of this REA, be the dominant estate, and the Tract of the respective Major and Ikea, as the case may be (or if the particular covenant affects, binds or is to be performed on less than the whole of such Tract, then with respect to the particular covenants, such portion thereof as is affected by, or bound by the particular covenant, or on which the particular covenant is to be performed), shall, during the term of this REA, be the servient estate.
RFA/lSf AMENDED.HB/10.18.90 - 135 - Section XXI. E
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SECTION XXII
TAXES AND ASSESSMENTS
A. PAYMENT. Except as same may be included as a
portion of Common Area Maintenance Cost, each Party shall pay, or cause to be paid, prior to delinquency, all taxes and assessments upon its Tract, and the buildings and improvements and personalty owned or leased by such Party located in the Center, provided that if said taxes or assessments, or any portion thereof, may be paid in installments, any Party may pay each such installment as and when the same becomes due and payable. Each Party shall, upon the request of any other Party exhibit to such other Party for examination, receipts for all said taxes and assessments required to be paid by such Party pursuant to this Section XXII, and within ten (10) qays of receipt of its tax bill each Major and Ikea shall deliver a copy of such tax bill to Developer.
B. CONTEST. If any Party shall deem said taxes
and/or assessments, or any part thereof, to be paid by such Party to be excessive or illegal, such Party shall have the right to contest the same at its own cost and expense, and shall have the further right to defer payment thereof so long as the validity or the amount thereof is contested in good faith; provided, however, that if at any time payment of the whole or any part thereof shall be necessary in order to prevent the sale of property subject to a lien for any such unpaid tax or assessment, then the contesting Party shall pay or cause same to be paid in time to prevent such sale. Any such payment may be paid under protest.
c. NON-PAYMENT OF TAXES. In the event any Party
shall fail to comply with its covenant as set forth in this Section XXII, any other Party may pay such taxes and penalties and interest thereon, and shall be entitled to prompt
reimbursement from the defaulting Party for the sums so expended, with interest thereon as provided in Section XXIX-K hereof.
REA/lST AMENDED.HB/10.18.90 - 136 - Section XXII. A,B,C ·•.,·
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D. ASSESSMENT BENEFITING SHOPPING CENTER. Anything
in Section XXII-A to the contrary notwithstanding, in the event an assessment is levied against one or more Tracts that is of general benefit to the Shopping Center as a whole as opposed to a special benefit to the Tract or Tracts levied against, such assessment shall be prorated among the Parties on the same basis as the Allocable Share of each Party is computed, as though the Tracts of all Parties were being maintained by one Operator.
REA/lSf AMENDED.HB/10.18.90 - 137 - Section XXII. D
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SECTION XXIII
ARBITRATION
A. DISPUTES COVERED. Any dispute for which
arbitration is required under this REA, and only such disputes, shall be resolved by arbitration in the manner provided in the following Section XXIII-B; provided, however, that any Party may seek injunctive relief and/or sue for specific performance without first submitting a controversy to arbitration.
B. ARBITRATION PROCEDURE. Any Party involved in the
dispute may request a meeting to be attended by all Parties involved in the dispute for the purpose of resolving such dispute. If the matter is not resolved at such meeting, or the meeting is not held, any involved Party may within thirty (30) days from the date set for such meeting file a written. request to resolve such dispute by arbitration. Within ten (10) days from the date of receipt of such notice, a panel of three (3) neutral arbitrators shall be selected by the involved Parties in accordance with the rules of the American Arbitration Association and shall resolve the dispute in accordance with such rules.
Promptly after such appointment, said arbitrators
shall meet and determine the matter in dispute and shall resolve the same and all questions pertaining thereto as promptly thereafter as is reasonably practical under the circumstances. A majority decision shall be final at any stage of the proceeding. In any arbitration proceeding involving Section IV hereof, arbitrators having substantial experience in shopping center design and development shall be selected as arbitrators by the involved Parties and shall be members of the International Council of Shopping Centers or the Urban Land Institute or some other industry recognized trade organization, if neither the International Council of Shopping Centers or the Urban Land Institute is in existence at the time questioned.
Each involved Party shall bear its pro rata share of the expense of such proceeding {in the same ratio as its Allocable REA/lSf AMENDED.HB/10.18.90 - 138 - Section XXIII. A,B
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Share bears to the Allocable Shares of the other Parties participating in such arbitration).
The decision of the arbitrators shall be in writing.
A copy of the decision of the arbitrators shall be signed by at least a majority of the arbitrators and given to each involved Party in the manner provided in Section XXV of this REA for the giving of notice.
No damages, either compensatory or punitive, may be
awarded in any arbitration proceeding.
The decision of the arbitrators may be entered as a
judgment in a court of competent jurisdiction. To the extent permitted by law, and except as provided in Section XXIII-A, compliance with this Section XXIII is a condition precedent to the commencement by any Party of a judicial proceeding arising out of a dispute which is subject to arbitration hereunder.
RFA/lST AMENDED.HB/10.18.90 - 139 - Section XXIII. B
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SECTION XXIV
ATTORNEYS' FEES
In the event at any time during the term of this REA
any Party shall institute any action or proceeding, including an arbitration proceeding, against any other Party relating to the provisions of this REA or any default hereunder, then, and in that event, the unsuccessful litigant in such action or proceeding agrees to reimburse the successful litigant therein for the reasonable expenses of attorneys' fees and
disbursements incurred therein by the successful litigant.
RFA/lST AMENDED.HB/10.18.90 - 140 - Section XXIV.
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SECTION XXV
NOTICES
A. NOTICE TO PARTIES AND SIGNATORIES. Any notice,
demand, request, consent, approval, designation, or other communication which any Party or the Agency is required or desires to give or make or communicate to any other Party or the Agency shall be in writing and shall be given or made or communicated by United States registered or certified mail or by recognized overnight courier service, addressed, in the case of Developer, to:
with a copy to:
Alexander Haagen Developme�t Company
3500 Sepulveda Boulevard
Manhattan Beach, California 90266
Attention: Managing Partner
Alexander Haagen Development Company
3500 Sepulveda Boulevard ·
M�nhattan Beach, California 90266
Attention: General Counsel
and addressed, in the case of Sears, to:
with a copy to:
Sears, Roebuck and Co.
Sears Tower
Chicago, Illinois 60684
Attn: National Manager
Real Estate Planning Group
Department 824RE
Sears, Roebuck and co.
Sears Tower
Chicago, Illinois 60684
Attn: General Counsel
Sears Merchandise Group
Department 766
and addressed, in the case of Mervyn•s, to:
with a copy to:
RFA/lST AMENDED.HB/10.18.90
Mervyn's
25001 Industrial Boulevard
Hayward, California 94545
Attention: Chairman
Mervyn's
22301 Foothill Boulevard
Hayward, California 94541
Attention: Property Administration
- 141 - Section XXV. A
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and addressed, in the case of Bullock's, to:
with a copy to:
Bullock's Properties Corp.
c/o R. H. Macy & Co., Inc.
151 West 34th Street
New York, New York 10001
Attention: General Counsel
Bullock's Properties Corp.
c/� Macy's South Inc.
180 Peach Tree Street N.W.
Atlanta, Georgia 30303
Attention: Chairman
and addressed, in the case of Ikea, to:
with a copy to:
Ikea Property, Inc.
Plymouth Commons, suite 120
Plymouth Meeting, Pennsylvania 19462
Attention: President
Ikea U.S., Inc.
Plymouth Commons, Suite 120
Plymouth Meeting, Pennsylvani'a 19462
Attention: Executive Vice President,
Finance
and addressed, in the case of the Agency, to:
City of Burbank Redevelopment Agency
275 East Olive Avenue
Burbank, California 91502
Attention: Executive Director and
city Attorney
subject to the right of any Party or the Agency to designate a different address by notice similarly given. Any notice, demand, request, consent, approval, designation, including any duplicate original, or other communication so sent shall be deemed to have been given, made or communicated, as the case may be, on the date the same was delivered by the United States Postal Service as registered or certified matter, with postage thereon fully prepaid, or on the date of actual delivery if delivered by overnight courier.
B. MORTGAGEE NOTICE. The Mortgagee under any
Mortgage affecting any Tract shall be entitled to receive notice of any default by any Party, provided that such
Mortgagee shall have delivered a copy of a notice in the manner provided in the preceding paragraph in the form herein
contained. The form of such notice shall be as follows:
The undersigned, whose address is
does hereby certify that it is the holder of a
first lien upon the land (or, alternatively, the
holder of a first leasehold lien upon the
RFA/lSf AMENDED.HB/10.17.90 - 142 - Section XXV. A,B
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leasehold estate] described on Exhibit A attached
hereto and made a part hereof, which lien
encumbers [specify either the fee or the leasehold
estate] in the _______ Tract(s) in the
Shopping Center and is the
trustee, beneficiary or Mortgagee holding the
security interest in said land.
In the event that any notice shall be given of the
default of the Party upon whose Tract this lien
applies, a copy thereof shall be delivered to the
undersigned who shall have all rights of such
Party to cure such default. Failure to deliver a
copy of such notice to the undersigned shall
affect in no way the validity of the notice of
default as it respects such Party, but shall make
the same invalid as it respects the interest of
the undersigned and its lien upon said Tract.
Any such notice to a Mortgagee shall be given in
the same manner as provided in Section XXV-A hereof. The giving of any notice of default or the failure to deliver a copy to any Mortgagee shall in no event creat� any liability on , ... :
the part of the Party so declaring a default.
In the event that any notice shall be given of
the default of a Party and such defaulting Party has failed to cure or commence to cure such default as provided in this REA, then and in that event any such Mortgagee under any Mortgage affecting the Tract of the defaulting Party shall be entitled to receive an additional notice given in the manner provided in Section XXV-A hereof that the defaulting Party has failed to cure such default. All Mortgagees jointly and/or severally {but not cumulatively) shall have thirty (30) -days after said additional notice to cure or, if such default cannot be cured within thirty (30) days, to commence to cure any such default and to prosecute said cure continuously and diligently until completed; provided, however,no dispute of any nature between Mortgagees shall serve to toll or extend said cure period nor impose liability of any nature on any Party to resolve such dispute in connection with accepting cure from any particular Mortgagee.
RFA/lSf AMENDED.HB/10.17.90 - 143 - Section XXV. B
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SECTION XXVI
AMENDMENT; NO BENEFICIARY
A. METHOD OF AMENDMENT. Except for the separate
agreements referred to in Sections I-E and I-L hereof, the provisions of this REA may be modified or amended, in whole or in part, only with the consent of all of the Parties, by declaration in writing, executed and acknowledged by all of same, duly recorded in the Office of the county Recorder of the County of Los Angeles, State of California.
B. NO THIRD PARTY BENEFICIARY. The provisions of
this REA are for the exclusive benefit of the Parties, and of their successors and assigns, and not f�r the benefit of any third Person, nor shall this REA be deemed to have conferred any rights, express or implied, upon any third Person, except for provisions expressly for the benefit of the 9perator or a Mortgagee. It is expressly understood and agreed that no modification or amendment, in whole or in part, of this REA shall require any consent or approval on the part of any Occupant or Permittee which is not also a Party.
RFA/lST AMENDED.HB/10.17.90 - 144 - Section XXVI. A,B
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SECTION XXVII
TERMINATION OF REA
This REA shall terminate fifty-five (55) years from
the date of the Original REA, subject to sooner termination in whole or in part under the provisions of Sections VII and XVI and this Section XXVII hereof; provided, however, that the termination of this REA shall not terminate those easements set forth in Section III hereof which by their terms survive the REA terminatlon.
In the event the opening of the Shopping Center is
delayed as a result of any event(s) set forth in Section XV so that neither Developer, Ikea, Sears, Bullock's nor Mervyn•s has opened the Initial Planned Floor Area in its store prior to July 31, 1994, this REA shall terminate on that date.
REA/lST AMENDED.HB/10.17.90 - 145 - Section XXVII.
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SECTION XXVIII
DEDICATION
A. JOINDER IN NECESSARY DEDICATIONS. The Parties
shall each, to the extent necessary, join in the execution of such instruments as may be required in order to effectuate widenings of peripheral streets or the installation, for the sole benefit of the Shopping Center Site, of public utilities and similar easements under the Common Area portions of their respective Tracts.
B. LIMITATIONS. No Party shall dedicate any portion
of its Tract, except as provided in A above, for public purposes.
REA/1Sf AMENDED.HB/10.17.90 - 146 - Section XXVIII. A,B 275
5044
SECTION XXIX
MISCELLANEOUS
A. BREACH SHALL NOT DEFEAT MORTGAGE. A breach of
any of the terms, conditions, covenants or restrictions of this REA shall not defeat or render invalid the lien of any Mortgage made in good faith and for value, but such term, condition, covenant or restriction shall be binding upon and effective against any Person whose title to the Tract in question is acquired by foreclosure, trustee's sale or otherwise.
B. BREACH SHALL NOT PERMIT TERMINATION. It is
expressly agreed that no breach of this REA shall entitle any Party to cancel or rescind or otherwise terminate this REA, but such limitation shall not affect, in any manner, any other rights or remedies which the Parties may have hereunder by reason of any breach of this REA.
C. CAPTIONS. The captions of the paragraphs of this
REA are for convenience only and shall not be considered nor referred to in resolving questions of interpretation and construction.
D. CONSENT. In any instance in which any Party or
the Agency shall be requested to consent to or approve of any matter with respect to which Party's or Agency's consent or approval is required by any of the provisions of this REA, such consent or approval shall be given in writing, and shall not be unreasonably withheld, unless the provisions of this REA with respect to a particular consent or approval shall expressly provide that the same shall be given or refused in the sole and absolute judgment or discretion or words of similar import of any Party or the Agency. Requests for consent shall be subject to the provisions of Section XXIX-R.
Each plan submitted pursuant to Section IV to the
Parties or to the Agency shall contain a cover page prominently listing the date mailed, the required return date, a detailed description of each change, if any, made upon such document from the previously submitted drawing, and a statement to the RFA/lSf AMENDED.HB/10.18.90 - 147 - Section XXIX. A,B,C,D 276
5045
effect that the document will be deemed approved by the recipient unless said recipient makes objection thereto in writing within thirty (30) days from the date such plans are submitted.
E. NON-DISCRIMINATION. No Party shall restrict the
sale, 1ease, sublease, rental, transfer, use, occupancy, tenure or enjoyment of its Tract on the basis of sex, marital status, race, color, religion, creed, ancestry or national origin of any person. All deeds, leases or contracts pertaining to the Tracts shall contain or be subject to the following nondiscrimination or non-segregation clauses:
1. In deeds: "The grantee herein covenants by and
for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no
discrimination against or segregation of, any person_or group of persons on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the land herein conveyed. The foregoing covenants shall run with the land".
2. In leases: "The lessee herein covenants by and
for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of sex, marital status, race, color, religion, creed, national origin, or ancestry, in the leasing, subleasing, renting, transferring, use, occupancy, tenure or enjoyment of the land herein leased, nor shall lessee itself, or any person claiming under or through it, establish REA/1Sf AMENDED.HB/10.18.90 - 148 - Section XXIX. D,E
277
5046
or permit such practice or practices of discrimination or segregation with reference to the selection, location, number or occupancy of tenants, lessees, sublessees, tenants, or vende�s in the land herein leased".
3. In contracts: "There shall be no discrimination
against or segregation of, any person or group of persons on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, rental, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees of the land".
There shall be no discrimination against or
segregation of, any person or group of persons on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, rental, transfer, use, occupancy, tenure or enjoyment of the Shopping Center Site, nor shall any transferee himself or any Person claiming under or through him establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees of the Shopping Center Site.
F. ESTOPPEL CERTIFICATE. Each Party and the Agency
hereby severally covenants that upon written request of any other Party, it will issue to such other Party, or to such Party's Mortgagee, or any other Person specified by such requesting Party, an estoppel certificate stating: (i) whether the Person to whom the request has been directed knows of any default under this REA, and if there are known defaults, specifying the nature thereof; (ii) whether to its knowledge this REA has been assigned, modified or amended in any way (or if it has, then stating the nature thereof); (iii) that to the RFA/lSf AMENDED.HB/10.18.90 - 149 - Section XXIX. E,F
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Person's knowledge this REA as of that date is in full force and effect if that is the case.
G. GOVERNING LAWS. This REA shall be construed in
accordance with the laws of the State of California.
H. INJUNCTIVE RELIEF. In the event of any violation
or threatened violation by any Party, lessee or Occupant of any part of the Center of any of the terms, restrictions, covenants and conditions herein provided, any of the other Parties shall have the right to enjoin such violation or threatened violation or bring an action for specific performance or declaratory relief in a court of competent jurisdiction.
I. BLANK.
J. NO PARTNERSHIP. Neither anything in this REA
contained nor any acts of the Parties or the Agency shall be deemed or construed by any Person to create the relationship of principal and agent, or of partnership, or of joint venture, or of any association between any of the Parties, the City or the Agency.
K. NOT A PUBLIC DEDICATION. Except as provided in
Section XXVIII-A hereof, nothing herein contained shall be deemed to be a gift or dedication of any portion of the Center to the general public or for the general public or for any public purpose whatsoever, it being the intention of the Parties that this REA shall be strictly limited to and for the purposes herein expressed.
L. PAYMENT ON DEFAULT. If pursuant to this REA any
Party is compelled or elects to pay any sum of money or do any acts which require the payment of money by reason of the failure or inability by any other Party to perform any of the terms and provisions in this REA to be performed by such other Party, the defaulting Party shall promptly upon demand, reimburse the paying Party for such sums, and all such sums shall bear interest at the rate of two percent (2%) over the then existing prime or reference rate of interest announced by Wells Fargo Bank N.A., Los Angeles, California (but in no event RFA/lSf AMENDED.HB/10.18.90 - 150 - Section XXIX. F,G,H,l,J,K,L 279
5048
exceeding the maximum rate permitted by law) from the date of expenditure until the date of such reimbursement. Any other sums payable by any Party, or the Agency, to any other of such Persons pursuant to the terms and provisions of this REA that shall not be paid when due shall bear interest at the rate of two percent (2%) over the then existing prime or reference rate of interest announced by said banking institution (but in no event exceeding the maximum Fate permitted by law) from the due date to the date of payment hereof.
If repayment shall not be made within ten (10) days
after such demand is made, the Party having so paid shall have the right to deduct the amount thereof, together with interest as aforesaid, without liability or forfeiture, from any sums then due or thereafter becoming due from it to the defaulting Party hereunder or under a Party's separate agreement.
Any deduction made by any Party pursuant to the
provisions of this Section from any sums due or payable by it hereunder or under a Party's separate agreement shall not constitute a default in the payment thereof unless such-Party fails to pay the amount of such deduction to the Party to whom the sum is owing within thirty (30) days after final
adjudication that such amount is owing. The option given in this Section is for the sole protection of the Party so paying and its existence shall not release the defaulting Party from the obligation to perform the terms, provisions, covenants and conditions herein provided to be performed thereby or deprive the Party so paying of any legal rights which it may have by reason of any such default.
M. BLANK.
N. RELEASE. Subject to the provisions of this
Section XXIX-N, if a Party shall sell, transfer or assign all of its interest in its Tract and all of its rights under this REA, it shall, except as provided in this Section or in Section I-FF, be released from all unaccrued obligations hereunder as of the date of such sale or assignment. It shall be a
RFA/lST AMENDED.HB/10.18.90 - 151 - Section XXIX. L,M,N 280
5049
condition precedent to the release and discharge of any grantor or assignor that any and all amounts which shall then be due and payable by such grantor or assignor to any other Party • shall have been paid to such Party and that such grantor or assignor shall give notice to the other Parties of any such sale, transfer, conveyance or assignment and a copy of a duly executed and acknowledged instrument by which the grantee or assignee shall expressly assume all of the obligations of the grantor or assignor under this REA (and, where appropriate, under such grantor's or assignor's separate agreement) shall have been delivered to the other Parties).
Except as provided in the last paragraph of this
Section XXIX-N, anything in this REA to the contrary
notwithstanding, it is expressly understood and agreed that nothing in this REA shall preclude or constitute a condition precedent to a release in any of the following circumstance�:
1. The release from all unaccrued obligations
under this REA of a lessee in a sale and leaseback transaction or of a sublessee in an assignment or sublease and sublease transaction, upon the termination or expiration of the
leaseback;
2. The release from all unaccrued obligations
under this REA of any Mortgagee which shall have acquired title. or other interest through foreclosure, upon sale, transfer, conveyance or assignment of its title or interest; or
3. The release from all unaccrued obligations
under this REA of any leaseback lessor (or sublessor) which shall have acquired possession through termination or
expiration of the leaseback, upon the sale, transfer,
conveyance or assignment of its title or other interest.
In the event of any termination or expiration of the
interest of the leaseback lessee or any surrender thereof to the leaseback lessor or any nominee of the leaseback lessor which shall hold said interest for the benefit of such
leaseback lessor, the leaseback lessor and its successors and RFA/lST AMENDED.HB/10.18.90 - 152 Section XXIX. N
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assigns shall (notwithstanding any language in the leaseback document or any other instrument, or in any instrument of surrender, preventing the merger of title in said leaseback lessor and notwithstanding the fact that such surrender may be made to such a nominee of the leaseback lessor) be liable for the performance of the thereafter accruing obligations under and pertaining to the terms of this REA, except that said leaseback lessor shall have the right to have the covenants of the Majors contained in Section XXI-A which is applicable to it subordinated to its interest as provided in Section XXI-C with respect to a Mortgage. Where the term lease, ieaseback, lessor or lessee is used in this paragraph, such term shall be deemed to include any sublease, subleaseback, sublessor or sublessee, as the case may be.
· Anything in this Section XXIX-N to the contrary
notwithstanding, it is expressly understood and agreed that, except as permitted in Section I-FF hereof, in the event of any sale or assignment, no signatory to this REA shall be released from its obligations to construct improvements pursuant to the requirements of Section V, VI or VII, nor from its covenants to open Floor Area pursuant to Section VII, nor shall any Major or Ikea be released from its covenant to Operate pursuant to Section XXI of this REA, except as specifically provided in Section XXI of this REA.
o. SEVERABILITY. If any term, provision, or
condition contained in this REA shall, to any extent, be invalid or unenforceable, the remainder of this REA (or the application 0£ such term, provision or condition to Persons or circumstances other than those in respect of which it is invalid or unenforceable), except those terms, provisions or conditions which are made subject to, dependent upon or conditioned upon such invalid or unenforceable term, provision or condition, shall not be affected thereby, and each term, provision and condition of this REA shall be valid and
enforceable to the fullest extent permitted by law.
REA/lSf AMENDED.HB/10.18.90 - 153 - Section XXIX. N,O
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p. SINGULAR INCLUDES THE PLURAL. The use of the
singular herein includes the plural and the use of neuter herein includes the masculine and/or feminine, as the context may require.
Q. SUCCESSORS. This REA shall, except as otherwise
provided herein, be binding upon and inure to the benefit of the successors and assigns of the Parties and their respective Tracts.
R. TIME FOR APPROVAL. Wherever in this REA approval
of any Party or the Agency is required, unless a different time limit is provided in any Section of this REA, •such approval or disapproval shall be given within thirty (30) days following the receipt of the item to be so approved or disapproved, or the same shall be conclusively deemed to.have been approved by such Party or the Agency, provided that the requirements of the next paragraph are complied with. Any disapproval shall specify with particularity the reasons therefor; provided, however, that wherever in this REA any Party or the Agency is given the right to approve or disapprove in its sole and absolute judgment or discretion or words of similar import, it may disapprove without specifying a reason therefor.
Any document submitted for the consent or approval of
any Party or the Agency shall contain a cover page prominently listing the date mailed, and if applicable, a statement to the effect that the document or the facts contained within such document shall be deemed approved or consented to be the recipient unless the recipient makes objection thereto within the time specified in such notice, which shall be thirty (30) days unless this REA shall specify a different period.
Wherever in this REA provision is made for approval
"by the Parties" or "by the Majors" such phrase shall mean the approval of each of the Parties to this REA or each of the Majors.
S. TIME OF ESSENCE. Time is of the essence with
respect to the performance of each of the covenants and RFA/lST AMENDED.HB/10.18.90 .. 154 - Section XXIX. P,Q,R,S 283
5052
agreements contained in this REA.
T. WAIVER OF DEFAULT; CUMULATIVE REMEDIES. No
waiver of any default by any Party to this REA or the Agency shall be implied from any omission by any other Party or the Agency to take any action in respect of such default if such default continues or is repeated. No express waiver of any default shall affect any default or cover any period of time other than the default and period of time specified in such express waiver. One or more waivers of any default in the performance of any term, provision or covenant contained in this REA shall not be deemed to be a waiver of any subsequent default in the performance of the same term, provision or covenant or any other term, provision or covenant contained in this REA. The consent or approval by any such Pa�ty or the Agency to or of any act or request by any other Party or the Agency requiring consent or approval shall not be deemed to waive or render unnecessary the consent or approval to or of any subsequent similar acts or requests. The rights and remedies given to any Party or the Agency by this REA shall be deemed to be cumulative and no one of such rights and remedies shall be exclusive of any of the others, or of any other right or remedy at law or in equity which any such Party or the Agency might otherwise have by virtue of a default under.this REA, and the exercise of one such right or remedy by any such Party or the Agency shall not impair such Party's or the Agency's standing to exercise any other right or remedy.
U. JOINT PREPARATION. This REA is to be deemed to
have been prepared jointly by the Parties, and any uncertainty or ambiguity existing herein, if any, shall not be interpreted against any Party, but according to the application of the rules of interpretation of contracts.
V. INDEX ADJUSTMENT. As used in this REA, the term
"(in 1989 Dollars)" shall mean that the amount to which such term applies shall be increased or decreased for each year during the term of this REA in proportion to the increase or REA/lST AMENDED.HB/10.18.90 - 155 - Section XXIX S,T,U,V 284
5053
decrease in the Implicit Price Deflator of the Gross National Product of the United States, issued and published by the United States Department of Commerce (1972 = 100) (the
"Index"), or any successor index thereto, appropriately adjusted. In the event that the Index is converted to a different standard reference base or otherwise revised, the determination of the adjustment to be made with reference to the Index shall be made with the use of such conversion factor, formula or table for converting the Index as may be published by the Department of Commerce or, if said Department shall not publish the same, then with the use of such conversion factor, formula or table as may be published by Prentic·e Hall, Inc. or other nationally recognized publisher of similar statistical information as may be agreed upon by the Parties. If the Index ceases to be published, and there is no successor thereto, then a reasonable index selected by Developer and approved by the other Parties shall be utilized; or, if such a substitute index is not available or may not lawfully be used for the purposes stated herein, then based upon a reliable governmental or other non-partisan publication selected by Developer and approved by the other Parties, evaluating changes in the cost of living or purchasing power of the consumer dollar, if such a publication is available and may be lawfully used for the purposes stated herein. For the purposes of calculating fluctuations in the Index, the calendar year of the date. of this REA shall be considered to be the base year (the "Base Year"). With respect to any amount referred to in this REA to which the Index Adjustment is to be made, such amount shall for the purpose of calculating such adjustment be referred to in this Section XXIX-V as the "Base Amount" and the Base Amount, as adjusted by the application of this Section XXIX-V, shall be referred to herein as the "Adjusted Amount".
The Adjusted Amount shall be determined as follows:
With respect to each time at which the Index
Adjustment is to be made, the Base Amount shall be increased or RFA/lSf AMENDED.HB/10.18.90 - 156 - Section XXIX. V
285
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decreased to equal the product obtained by multiplying the Base Amount by a fraction, the numerator of which is the average annual Index for the most recent complete calendar year, and the denominator of which is the average annual Index for the Base Year.
For purposes of this Section XXIX-V, the Base Amount
utilized for any initial calculation made hereunder shall continue to be utilized as the Base Amount for each subsequent application of this provision.
w. COUNTERPARTS. This REA may be signed in several
counterparts, each of which shall be deemed an original, and all such counterparts shall constitute one and the same instrument. The signature of a Party or the Agency to any counterpart may be removed and attached to any other
counterpart. Any counterpart to which the signatures of all Parties and the Agency are attached shall constitute an original of this REA.
X. PERFORMANCE OF CERTAIN COVENANTS. If Operator
shall fail to perform any of the covenants to be performed by it pursuant to Section X of this REA, and if such failure relates to a matter which in the prudent, good faith judgment of any Party, reasonably exercised, is of an emergency nature, and such failure shall remain uncured for a period of fortyeight (48) hours (or such shorter period as is reasonably re9uired by the emergency) after service upon Operator of notice of such failure, then the Party giving such notice may, at its option, and in its sole discretion as to the necessity thereof, perform any such covenant, or make any such payment on its own behalf and be entitled to repayment upon demand and the right of deduction as provided in Section XXIX-L.
Y. FORMER RIGHTS SUPERSEDED. This REA, together
with all agreements supplementing or ancillary hereto, contains the entire agreement of the Parties and supersedes the Original REA; all rights contained in the Original REA not restated in this REA are relinquished by the parties thereto; and the RFA/lSf AMENDED.HB/10.18.90 - 157 - Section XXIX. V,W,X,Y 286
5055
Parties hereto are relieved of all obligations contained in the Original REA not amended by or restated in this REA; provided, however, that the foregoing shall in no way be deemed to terminate the Original REA, and all easements, rights and obligations set forth in the Original REA which are amended by or restated in this REA are uninterrupted and shall be deemed effective from the date of recordation of the Original REA.
RF.A/lSf AMENDED.HB/10.18.90 - 158 - Section XXIX. Y
287
5056
SECTION XXX
LIMITATION OF LIABILITY
(a) Notwithstanding anything to the contrary herein,
except with respect to the provisions of Section I-FF and with respect to a Party's undertaking to self-insure pursuant to Section XII-C, the Parties shall look solely to the equity of the other Parties in and to the Shopping Center in the event of breach or default by any Party pursuant to the provisions of this REA or any agreement or instrument executed in connection herewith·, and each Party agrees that the liability of any other Party under this REA or any such agreement or instrument shall not exceed the value of such equity of such Party in and to the Shopping Center. Without limitation on the foregoing, no properties or assets of a Party other than its interest in the Shopping Center shall be subject to levy, execution or other enforcement procedures for the satisfaction of any judgment (or other judicial process) arising out of, or in connection with, this REA; and if any Party shall acquire a lien on any other properties or assets of any other Party by judgment or
otherwise, the Party acquiring the lien shall promptly release such lien on such other properties and assets by executing, acknowledging and delivering to the other Party an instrument to that effect prepared by such Party's attorneys.
(b) This REA is executed by the managing general
partner of Developer solely as such partner of the same and not in his own individual capacity. No advisor, trustee, director, officer, partner, employee, beneficiary, shareholder,
participant or agent of Developer whatsoever shall be
personally liable in any manner or to any extent under or in connection with this REA, and each of Sears, Mervyn•s and Ikea and their respective successors and assigns and, without limitation, all other Persons, shall look solely to Developer's equity in the Shopping Center (as provided in subparagraph (a) above) for the payment of any claim arising out of any default hereunder.
REA/lST AMENDED.HB/10.18.90 - 159 - Section XXX.
288
5057
Notwithstanding anything seemingly to the contrary
contained herein, this Section XXX shall not affect the ability of any Party to bring an action for and obtain injunctive relief, a declaratory judgment or specific performance. (c) The limitations of liability provided in
subsections (a) and (b) above are in addition to, and not in limitation of, any limitation on liability applicable to a Party or the advisors, trustees, directors, officers, partners, employees, beneficiaries, shareholder, participants or agents of such Party provided by law or by another contract, agreement or instrument, and this Section shall not prevent a Party from naming any partner of any other Party in any action to enforce such Party's rights, or to seek any remedy, but such Person shall not enforce any judgment beyond, and such Person's recourse shall be limited to, such Party's equity in the Shopping Center.
This REA has been executed by the Parties .as of the
day and year first above written and shall be effective only upon recording in Official Records of Los Angeles County, California.
REA/lST AMENDED.HB/10.18.90
SEARS, ROEBUCK AND CO.
a New York corporatio
By:
Its
MERVYN'S,
a California corporation
By:
Its
IKEA PROPERTY, INC.,
a Pennsylvania corporation
By:
Its
BULLOCK'S PROPERTIES CORP.,
a Delaware corporation
By:
Its
- 160 -
hip
Section XXX.
289
5058
Notwithstanding anything seemingly to the contrary
contained herein,- this Section XXX shall not affect the ability of any Party to bring an action for and obtain injunctive relief, a declaratory judgment or specific performance. (c) The limitations of liability provided in
subsections (a) and (b) above are in addition to, and not in limitation _of, any limitation on liability applicable to a Party or the advisors, trustees, directors, officers, partners, employees, beneficiaries, shareholder, participants or agents of such Party provided by law or by another contract, agreement or instrument, and this Section shall not prevent a Party from naming any partner of any other Party in any action to enforce such Party's rights, or to seek any remedy, but such Person shall not enforce any judgment beyond, and such Person's recourse shall be limited to, such Party's equity in the Shopping Center.
This REA has been executed by the Parties as of the
day and year first above written and shall be effective only upon recording in Official Records of Los Angeles County, California.
REA/lST AMENDED.HB/10.18.90
HAAGEN-BURBANK PARTNERSHIP,
a California general partnership
By:
Managing General Partner
SEARS, ROEBUCK AND CO.,
a New �oratio� By: @.
Its NATIONAL MANAGER
REAL ESTATE PLANNING GROUP
MERVYN'S,
a California corporation
By:
Its
IKEA PROPERTY, INC.,
a Pennsylvania corporation
By:
Its
BULLOCK'S PROPERTIES CORP.,
a Delaware corporation
By:
Its
- 160 - Section XXX.
290
5059
Notwithstanding anything seemingly to the contrary
contained herein, this Section XXX shall not affect the ability of any Party to bring an action for and obtain injunctive relief, a declaratory judgment or specific performance. (c) The limitations of liability provided in
subsections (a) and (b) above are in addition to, and not in limitation of, any limitation on liability applicable to a Party or the advisors, trustees, directors, officers, partners, employees, beneficiaries, shareholder, participants or agents of such Party provided by law or by another contract, agreem�nt or instrument, and this Section shall not prevent a Party from naming any partner of any other Party in any action to enforce such Party's rights, or to seek any remedy, but such Person shall not enforce any judgment beyond, and such Person's recourse shall be limited to, such Party's equity in the Shopping Center.
This REA has been executed by the Parties as of the
day and year first above writte� and shall be effective only upon recording in Official Records of Los Angeles County, California.
RFA/1Sf AMENDED.HB/10.18.90
HAAGEN-BURBANK PARTNERSHIP,
a California general partnership
By:
Managing General Partner
SEARS, ROEBUCK AND CO.,
a New York corporation
By:
Its
IKEA PROPERTY, INC.,
a Pennsylvania corporation
By:
Its
BULLOCK'S PROPERTIES CORP.,
a Delaware corporation
By:
Its
- 160 - Section XXX.
291
5060
Notwithstanding anything seemingly to the contrary
contained herein, this Section XXX shall not affect the ability of any Party to bring an action for and obtain injunctive relief, a declaratory judgment or specific performance. (c) The limitations of liability provided in
subsections (a) and (b) above are in addition to, and not in limitation of, any limitation on liability applicable to a Party or the advisors, trustees, directors, officers, partners, employees, beneficiaries, shareholder, participants or agents of such Party provided by law or by another contract, agreement or instrument, and this Section shall not prevent a Party from naming any partner of any other Party in any action to enforce such Party's rights, or to seek any remedy, but such Person shall not enforce any judgment beyond, and such Person's recourse shall be limited to, such Party's equity in the Shopping Center.
This REA has been executed by the Parties .as of the
day and year first above written and shall be effective only upon recording in Official Records of Los Angeles County, California.
REA/lSf AMENDED.HB/10.18.90
HAAGEN-BURBANK PARTNERSHIP,
a California general partnership
By:
Managing General Partner
SEARS, ROEBUCK AND CO.,
a New �ork corporation
By:
Its
MERVYN'S,
a California corporation
By:
Its
IKEA PROPERTY, INC.,
a Pennsylvan· r rati
By:
Its
BULLOCK'S. PROPERTIES CORP.,
a Delaware corporation
By:
Its
- 160 - Section XXX.
292
5061
Notwithstanding anything seemingly to the contrary
contained herein, this Section XXX shall not affect the ability of any Party to bring an action for and obtain injunctive relief, a declaratory judgment or specific performance. (c) The limitations of liability provided in
subsections (a) and (b) above are in addition to, and not in limitation of, any limitation on liability applicable to a Party or the advisors, trustees, directors, officers, partners, employees, beneficiaries, shareholder, participants or agents of such Party provided by law or by another contract, agreem�nt or instrument, and this Section shall not prevent a Party from naming any partner of any other Party in any action to enforce such Party•-s rights, or to seek any remedy, but such Person shall not enforce any judgment beyond, and such Person's recourse shall be limited to, such Party's equity in the Shopping Center.
This REA has been executed by the Parties .as of the
day and year first above writte� and shall be effective only upon recording in Official Records of Los Angeles County, California.
REA/lSI' AMENDED.HB/10.18.90
HAAGEN-BURBANK PARTNERSHIP,
a California general partnership
By:
Managing General Partner
SEARS, ROEBUCK AND CO.,
a New York corporation
By:
Its
MERVYN'S,
a California corporation
By:
Its
IKEA PROPERTY, INC.,
a Pennsylvania corporation
By:
Its
BULLOCK'S PROPERTIES CORP.,
a Delaware corporation
�By:
7 - 160 - Section XXX.
293
5062
/
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
ss.
On December 3 , 1990, before me, the undersigned, a
Notary Public in and for said State, personally appeared Alexander Haagen •
, personally known to me or proved to
me on the basis of satisfactory evidence to be the person who executed the within instrument as Managing General Partner of Haagen-Burbank Partnership, a California general partnership, and acknowledged to me that the partnership executed it.
WITNESS my hand and official s;,a:,;7�. /;2. -� ___ ,.--.....
OFFICIAL SEAL 0
MIWE S. HOITA NOTARY PUBLIC . CALIFORNIA LOS ANGELES COUNTY My _
C.
0m'.11
. upires July 23, 199J
RFA/lST AMENDED.HB/10.18.90
Jotary Pu-lie �
- 161 -
294
5063
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF MONTGOMERY
)
) ss.
)
On ___ D=--��----------'=-\-�-'--' 1990, before me, the undersigned, a Notary and for said State, personally appeared
,-------������--���----,-------------' personally
known to me or p basis of satisfactory evidence
to be the person who executed the within instrument as
President on behalf of IKEA PROPERTY, INC. , the
corporation therein named, and acknowledged to me that such corporation executed the within instrument pursuant to its bylaws or a resolution of its board of directors.
WITNESS my hand and official seal.
Notary Publi�
REA/1Sf AMENDED.HB/10.18.90 - 162 -
----·•· · ·-·- ------........
l\�-:.:::i'\/4" ; ·X1
Mary B. Heuer, Notary Public
Plymouth Township, Montgomery County
My Commission Expires Oct. 19, 1992
Member, Ponnsylvti,nia �elation of Notaries
295
5064
STATE OF ILLINOIS
ss.
COUNTY OF COOK
on �/iJlv,£,/.ti,, 1990, before me, the undersigned, a
No�ry -bljp �and for said State, personally appea
.
red
K� //1. �a , known to me to be the person who
executed the within instrument on behalf of the corporation therein named, and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of its board of directors.
WITNESS my hand and official seA . D /}
/� if_�
Notary Public//
RFA/lSf AMENDED.HB/10.18.90 - 163 -
296
5065
STATE OF NEW YORK
COUNTY OF NEW YORK
ss.
On NduQ.l.v.½ L,, 1990, before me, the undersigned, a
� E.Ul\.....,
Notary Public in an? for said State, personally appeared m:, �V,-.;?,-...., known to me to be the person who
e ecuted the �ithin instrument on behalf of the corporation therein named, and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of its board of directors.
WITNESS my hand and official seal.
RFA/lST AMENDED.HB/10.18.90
�e� Notary Pubr
- 164 -
ELSAC. AZIZ
No� Public, State of New York
No.4514-875
Qualified in Queens County
Certificate Filed in New York County
Commission 1::.Xpires 1v)arch 30, 1992
297
5066
STATE OF CALIFORNIA
COUNTY OF ALAMEDA
ss.
On M._::jj , 1990, before me, the undersigned, a
�
�bl�n a�pr said state, personally appeared
�. " J: "/J t1f/ eiecutfithe
, known to me to be the person who
within instrument on behalf of the corporation
therein named, and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of its board of directors.
WITNESS my hand and
Notary
REA/lST AMENDED.HB/10.18.90 - 165 -
298
5067
CONSENT AND AGREEMENT
The undersigned, REDEVELOPMENT AGENCY OF THE CITY OF
BURBANK (the "Agency"), a public body, corporate and politic, formed, organized and existing under the provisions of Chapter 2 of the Community Redevelopment law, in consideration of the execution of this REA by Developer, Sears, Mervyn•s, Bullock's and Ikea, agrees as follows:
(i) Any and all fee and other rights which the
Agency now has or may hereafter have in and to the Shopping Center are hereby made subject and subordinate to each and every term of the REA;
(ii) The Agency joins with Developer, Sears,
Mervyn•s, Bullock's and Ikea in the grant by Developer, Sears, Mervyn's, Bullock's and Ikea of those certain easements and temporary licenses for reconstruction in, to, under, upon, over, through and across the Shopping Center, set forth in the REA in favor of the Parties and their respective Tracts; (iii) The Agency shall join in the execution of an
amended Exhibit A to the REA, and/or of an easement agreement, if same are required pursuant to the provisions of Section XVII of the REA; and
(iv) The Agency conse�ts to and agrees to be
bound by the covenants and agreements on its part to be performed as set forth in the REA and the DDA.
The Agency hereby agrees that each of the terms,
covenants and conditions contained in the REA are in conformity with and comply with the DDA. The Agency hereby approves the REA. In approving the REA, the Agency has determined and found that the provisions thereof and their consent are necessary and desirable in order to implement the Redevelopment Plan and the DOA and that the provisions of the REA are consistent with and comply with the provisions of the Redevelopment Plan, the DOA, and other agreements heretofore entered into by the Agency to carry out the Redevelopment Project.
REA/lST AMENDED.HB/10.18.90 - 166 -
..... .
299
5068
The foregoing provisions of this Consent and Agreement
shall be deemed covenants running with the land and shall be binding upon the Agency and its successors in interest and assigns and its interest in the Shopping Center and shall inure to the benefit of the Parties and their respective Tracts as the benefited parcels.
IN WITNESS WHEREOF, the Agency has caused this Consent
and Agreement to be validly approved and duly executed as of the day and year first above written for the REA.
APPROVED AS TO FORM:
REA/lSf AMENDED.HB/10.18.90
REDEVELOPMENT AGENCY OF
THE CITY OF BURBANK
By:
Its: Ass��tive Director
APPROVED AS TO FORM:
- 167 -
300
5069
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
ss.
On ./)/.dfJ/.,, IC , 1990 before me, the undersigned, a Notary Public in and for said State, personally appeared Wf LL.,1 ftn1 I?. Ke7--�� personally known to me ( or proved to me on the basis of1 satisfactory evidence) to be the a�f"FeX&,�/,f'P�� of the Community Redevelopment Agency of the Ciy o:fBurank, a public body, corporate and politic, of the State of California, and known to me to be the person who executed the within instrument on behalf of said Agency, and acknowledged to me that he executed the same.
WITNESS my hand and official seal.
OFFICIAL SEAL WALTER E. KUCH
Notary Public-California
LOS ANGELES COUNTY
My Comm. Exp. Jan. 7, 1991
REA/lSI' AMENDED.HB/10.18.90
Notal(�, ¥:?�4( <
- 168 -
301
5070
COVENANT OF IKEA U.S., INC.
Reference is made to that certain First Amended and
Restated Construction, Operation and Reciprocal Easement Agreement (the "BEA"), dated as of the date hereof, made and entered into by and among Haagen-Burbank Partnership, a California general partnership ("Developer"); sears, Roebuck and Co., a New York corporation ("Sears"); Mervyn•s, a
California corporation ("Meryyn's"); Bullock's Properties Corp., a Delaware corporation ("Bullock's"); and, Ikea
Property, Inc., a Pennsylvania corporation ("Ikea").
As an inducement to Developer, Sears, Bullock's and
Mervyn•s for entering into the REA with Ikea, Ikea U.S., Inc._, a Pennsylvania corporation ("Ikea U.S."), does hereby covenant to and makes this agreement ("Covenant") with each of
Developer, Sears, Bullock's and Mervyn's as follows:
Ikea U.S. agrees that it will cause full performance
of each and all of the terms, covenants and conditions of Sections IV-D, VI-C, VII, VIII, IX, XIII-A, XIII-E, XIII-I, XVI-F, and XXI of the REA to be kept and performed by Ikea, but only for the period or periods of time during which Ikea is obligated to perform them, and, in addition, will undertake to assume the obligation of Ikea for purposes of direct payment of an award pursuant to Section XVI-B of the REA, if required to do so pursuant to the terms of such Section; provided, however, the benefit of this Covenant with respect to Section XXI shall accrue only to Developer and its "Mortgagee" (as that term is defined in the REA).
Ikea U.S. hereby further agrees that this Covenant on
its part shall remain in effect in favor of said Parties to the REA notwithstanding any extension, modification or alteration of the REA entered into by and among the Parties thereto or REA/lSf AMENDED.HB/10.18.90 - 169 -
302
5071
their successors or assigns, or notwithstanding any assignment of the REA, with or without the consent of the other Parties, and no extension, modification, alteration or assignment of the REA shall in any manner release or discharge Ikea U.S. hereunder; provided, however, that the obligations of Ikea U.S. shall not be increased without its written consent.
This Covenant shall remain in effect notwithstanding
any bankruptcy, reorganization or insolvency of Ikea, or any successor or assignee thereof or by any disaffirmance or abandonment by a trustee of Ikea, and shall be binding upon and inure to the benefit of the respective successors and assigns of the Parties herein named.
IN WITNESS WHEREOF, Ikea U.S., Inc. has c
.
·
au�
.
ed thi� _
- j ftJ_� � :D.e.c��
Covenant to be executed as of the� day of {)et{}(R)L},
1990.
IKEA�C.,
a ~Pet :'Va""n�a corporation
By
Commonwealth of Pennsylvania
County of Montgomery
)
) ss.
)
On, O� d\ , 1990, before me, the undersigned, a Notary in and for said State, personally appeared '-{\'\ uk.Q__ -�c::..�Jj)_ , personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as ,
c..J� _,�.A.Ju.... .. p:r=es-.id-en-1::- on behalf of IKEA U. s. , INC., the corporation thelsein named, and acknowledged to me that such corporation executed the within instrument pursuant to its bylaws or a resolution of its board of directors.
WITNESS my hand and official seal.
RFA/lSf AMENDED.HB/10.18.90 - 170 -
� b. \:\ WJLL __- - -
Notary Pub�
Nc�rial Seal
Mary B. Heuer, Notary Pu�!ic
Plymouth Township, Montgomery County
My Commission Expires Oct. 19, 199�.--
Member, Permsy!vania /\5...�atlon ef Netil�
303
5072
EXHIBITS
RFA/lST AMENDED.HB/10.18.90 - 171 -
304
5073
EXHIBIT "A"
Part 1
.• ,
-... '
305
5074
.Burbank Gateway center
Burbank, CA
PALLER-ROBERTS ENGINEERING
CONSUi.. TING CML ENOINEEltS
Rev. Sept. 19, 1989
Sept. 22, 1989
TENTATIVE LEGAL DESCRIPTION
· FOR
SHOPPING CENTER SITE
PORTIONS OF LOTS l THROUGH 20 INCLUSIVE AND PORTION OF ALLEY (VACATED BY RESOLUTION NO. 8823, AND RESOLUTION NO. 21585), 15 FEET IN WIDTH, IN BLOCK D, AND LOT�3 'l'liROUGH _20 INCLUSIVE AND • PORTIONS OF LOTS 1 • A.No 2 AND PORTION·.· oF. A°LLEY (VACATED ·sy RESOLUTION NO. 21585, DESCRIBED AS PARCEL J), 15 FEET IN "WIDTH, IN BLOCK C OF SUBDIVISION OF BLOCK NO. 49, TOWN OF BURBANK, IN THE
CITY OF BURBANK, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 22, PAGE 74, OF MISCELLANEOUS RECORDS:
TOGETHER WITH PORTION OF SAN JOSE STREET (VACATED BY RESOLUTION NO. 21585, DESCRIBED AS PARCEL F), 60 FEET IN WIDTH, LYING SOUTHWESTERLY OF THIRD STREET 60 FEET IN WIDTH AS SHOWN ON SAID BLOCK NO. 49, TOWN OF BURBANK: TOGETHER WITH LOTS 14 THROUGH 18 INCLUSIVE, PORTION OF LOT 13 AND SOUTHWESTERLY HALF OF LOT 19 OF BALLAGH VILLA TRACT, IN THE CITY OF BURBANK, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 38 PAGE 1 OF MAPS; TOGETHER WITH SOUTHWESTERLY HALF OF LOT 5, IN BLOCK 104
OF THE SUBDIVISIONS OF RANCHO PROVIDENCIA AND SCOTT TRACT IN THE CITY OF BURBANK, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS _ PER MAP RECORDED IN BOOK 43, PAGE 47 OF MISCELLANEOUS RECORDS;
TOGETHER WITH PORTION OF SAN FERNANDO BOULEVARD, FORMERLY SECOND STREET, 80 FEET IN WIDTH, LYING SOUTHEASTERLY OF GRINNELL AVENUE, FORMERLY ROYCOURT AVENUE, 60 FEET IN WIDTH AND PORTION OF CYPRESS AVENUE, 60 FEET IN WIDTH, LYING SOUTHWESTERLY OF THE THIRD STREET, 60 FEET IN WIDTH AS SHOWN ON THE SUBDIVISION OF THE
RANCHO PROVIDENCIA AND SCOTT TRACT, IN THE CITY OF BURBANK, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, RECORDED IN BOOK 17, PAGES 15, ET SEQ., OF MISCELLANEOUS RECORDS VACATED BY RESOLUTION NO. 21585, DESCRIBED AS PARCEL E: TOGETHER WITH, THE PORTION OF LOT 4, IN BLOCK 91, OF SUBDIVISION OF RANCHO PROVIDENCIA AND
SCOTT TRACT, IN THE CITY OF BURBANK, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 17, PAGE 15, ET SEQ.
OF MISCELLANEOUS RECORDS; TOGETHER, WITH CERTAIN STRIP OF LAND, 15 FEET IN WIDTH, IN LOT 3, IN BLOCK 91 OF RANCHO PROVIDENCIA AND SCOTT TRACT, AS PER MAP RECORDED IN BOOK 17, PAGES 15 ET SEQ. OF
MISCELLANEOUS RECORDS, AS DESCRIBED IN THE DEED TO THE CITY OF BURBANK, RECORDED IN BOOK 1745, PAGE 94 OF OFFICIAL RECORDS, SAID STRIP OF LAND SINCE VACATED BY RESOLUTION NO. 21585, DESCRIBED AS PARCEL M ·: TOGETHER WITH, CERTAIN STRIP OF LAND, is FEET IN WIDTH, IN LOT 4, IN BLOCK 91 OF RANCHO PROVIDENCIA AND SCOTT
TRACT, AS DESCRIBED IN DEED TO THE CITY OF BURBANK, RECORDED MARCH 12, 1924, AS INSTRUMENT NO. 1102, IN BOOK 3111, PAGE 139 OF OFFICIAL RECORDS, SAID STRIP OF LA.ND SINCE
EXHIBIT A - PART 1