LEGAL APPROVAL
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JAN-29-1'196 ~: 15Fm 96-030570
ORB 9100?9 1799
111.111111111...111 Iii
This instrument was prepared by:
W. Allen Ames, Esq.
McGuire, Woods, Battle & Boothe, L.L.P.
One James Center, 901 East Cary Street
Richmond, Virginia 23219-4030
OPERATION AND EASEMENT AGREEMENT
THIS OPERATION AND EASEMENT AGREEMENT ("OEA") is dated as of
the ~vti day of December, 1995 by AGREE LIMITED PARTNERSHIP, a
Delaware limited partnership ("Agree").
!i1.TN~~~~TH_
WHEREAS, Agree is the owner of a certain parcel of land
described in Exhibit B attached hereto (the "Retail Parcel") and
identified as such on the site plan attached hereto as Exhibits
A. A-I and A-2 (the "Site Plan"); and
WHEREAS, a portion of the Retail Parcel consisting of that
certain parcel of land described in Exhibit C attached hereto
("Circuit City Parcel") and identified as such on the Site Plan
and other rights in and to the "Shopping Center" (as defined
below) are being leased to Circuit City Stores, Inc., a Virginia
corporation ("Circuit City"), subject to the terms of this OEA;
and
WHEREAS, a portion of the Retail Parcel consisting of that
certain parcel of land described in Exhibit D attached hereto
RI7B\7747\CIRCUIT\OPER-AGT.D13
ORB 9100 P9 1800
("Borders Parcel") and identified as such on the Site Plan and
.
other rights in the "Shopping Center" are being leased to
Borders, Inc., a Delaware corporation ("Borders"), subject to the.
terms of this OEA; and
WHEREAS, Agree is also the owner of two separate parcels of
lapd described in Exhibit E attached hereto ("Restaurant
parcels") and identified as Hops Parcel and Longhorn Parcel on
the Site Plan, which Restaurant Parcels are being leased to
Florida Retail properties, Inc., a Florida corporation ("FRP"),
subject to the terms of this OEA, and FRP will in turn sublease
Restaurant 1 ~o Hops of Boynton Beach, Ltd. (IlHops") and
Restaurant 2 to Longhorn Steaks, Inc. ("Longhorn");
WHEREAS, the Retail Parcel and the Restaurant Parcels are
contiguous and adjacent to each other as shown on the Site Plan;
and
WHEREAS, Agree intends to develop and operate the Retail
Parcel and the Restaurant Parcels in conjunction with each other
as integral parts of a retail shopping and restaurant complex
(the "Shopping Centerll) and, in order to effectuate the common
use and operation thereof, Agree desires to establish certain
covenants and agreements and to grant certain reciprocal
easements, in, to, over, under and across the Shopping Center, as
part of a general plan for the development of the Shopping
Center.
NOW THEREFORE, in consideration of the foregoing premises
and the covenants and agreements hereinafter set forth herein,
Agree declares as follows:
2
RI~a\~~~~\CIRCUIT\OPER-AGT.Dl)
ORE 9100 P9 1801
ARTICLE I
DEFINITIONS
1.1 Buildina Area. "Building Area" shall mean the limited
areas of the Shopping Center (including the Circuit City Parcel
and the Borders Parcel} within which buildings (including
ca~opies, supports, truck docks and/or receiving docks, truck
ramps and other outward extensions, pilasters and overhangs,
trash compactors, transformer pad and footings projecting into
the Common Area) are constructed.
1.2 Common Access Areas. "Common Access Areas" shall mean
that portion of the Common Areas shown as such on the Site Plan.
1.3 Common Area. "Common Area" shall mean the parking
areas, lanes, drives, entrances, truck passageways, sidewalks,
ramps, stairways, landscaped and other unpaved areas, parking lot
lighting facilities and equipment, Owner's pylon sign(s),
directional, traffic and monument sign structure(s) and shared
utility facilities located in the Shopping Center [including any
such areas and facilities contained within outparcels and
adjacent tracts but reserved to the benefit of the Shopping
Center occupants such as, for example, the easements benefitting
the Shopping Center created by that certain Cross Easement dated
October 13, 1995 between Great Western Bank and FRP and recorded
November 1, 1995 in Official Records Book 8983 at page 1283 (the
"Great Western Cross Easementll)] and intended and available for
the common use of all of the Permittees within the Shopping
Center. The "Borders Expansion Area" and the "Circuit City
Expansion Area", each identified as such on the Site Plan, are
not a part of the Common Area.
1.4 Defaultina Owner. "Defaulting Owner" shall be as
defined in Section 6.1(A).
3
RI7B\7747\CIRCUIT\OPER-AGT.01J
ORB ~100 P91803
(ii)
booklet:
distributing any circular, handbill, placard or
.
(iii) soliciting memberships, contributions or
signaturesi and
(iv) parading, picketing or demonstrating.
1.11 Person. "Person" shall mean any individual,
partnership, firm, association, corporation, trust or any other
form of business or governmental entity.
1.12 Proportionate Share. "Proportionate Share" shall mean
the percentage determined by dividing the Floor Area upon a
Parcel by the aggregate Floor Area of the Shopping Center.
1.13 Recordinq Office. "Recording Office" shall be the land
title office in the State of Florida where deeds, mortgages,
liens or other filings (including this OEA) with respect to the
Shopping Center are properly accepted for filing.
1.14 Tenant. "Tenant" shall mean any Person from time to
time entitled to the use and occupancy of any portion of a
building in the Shopping Center under any lease or sublease or
similar agreement.
1.15 Tenant's Preferred Area. "Tenant's Preferred Area"
shall be as shown on the Site Plan.
5 RI7B\7747\CIRCUIT\OPER-AGT.013
ORB 7100 P9 1804
ARTICLE II
EASEMENTS
2.1 Inqress and Eqress.
(A) During the term of this OEA, Agree hereby declares and
es~ablishes for the use of Permittees, in common with others
entitled to use the same, a perpetual non-exclusive easement for
the passage and parking of passenger, service and delivery
vehicles over and across those portions of the Common Area from
time to time used as parking and driveway areas as the same may
from time to time be constructed and maintained for such use, and
for the passage and accommodation of pedestrians over and across
those portions of the Common Area from time to time used as the
parking, driveway and sidewalk areas as the same may from time to
time be constructed and maintained for such use. The foregoing
easement rights shall be subject to the following reservations as
well as other provisions contained in this OEA:
(i) Except for situations specifically provided for
in the following subparagraphs, no fence or other barrier
which would prevent or obstruct the passage of pedestrian or
vehicular travel for the purposes herein permitted shall be
erected or permitted within or across the easement areas;
provided, however, that the-foregoing provision shall not
prohibit the installation of convenience facilities (such as
mailboxes, public telephones, benches, trash deposit
enclosures and containers and transformers), of landscaping,
berms or planters, or of limited curbing and other forms of
traffic control.
(ii) In conne~tion with any construction,
reconstruction, repair or maintenance on any Parcel, an
Owner or any Tenant of such Parcel shall have the right to
create a temporary staging and/or storage area in a portion
6
RI7B\7747\CIRCUIT\OPER-AGT.Ol3
ORB Ql00 P9 1805
of the Common Area but not located in the Common Access
Areas except to the extent shown on the Site Plan.
(iii) None of the easements granted by this OEA are
intended, nor shall any of them be construed, as a
dedication of any portion of the Shopping Center for public
use, and Owner(s) shall refrain from taking any action which
would cause such a dedication and will take whatever steps
may be necessary to avoid any such dedication, except as may
be agreed upon in writing by Owner(s) and the Major Tenants.
(iv). Owner(s) shall have the right at any time, and
from time to time, to exclude and restrain any Person who is
not a Permittee from using Common Area.
(v) Nothing herein shall preclude the designation
of up to four (4) parking spaces adjacent to the Circuit
City Parcel as "Customer Pick-Up" spaces for the exclusive
benefit of customers of Circuit City.
2.2 Utilities.
(A) Agree hereby declares and establishes non-exclusive
perpetual easements in, to, over, under, along and across those
portions of the Common Area shown as utility easements on the
Site Plan necessary for the installation, operation, flow,
passage, use, maintenance, connection, repair, relocation, and
removal of underground lines or underground systems for utilities
serving any Parcel or the Common Area improvements, including but
not limited to sanitary sewers, storm drains, cable TV, water
(fire and domestic), gas, electrical, telephone and communication
lines. Nothing herein shall prevent an Owner from conveying
utility easements across that portion of the Common Area owned in
fee by such Owner (even if not within a utility corridor) for the
benefit of Owners and Tenants of the Shopping Center. Prior to
7
RI7B\7747\CIRCUIT\OPER-AGT.Dl3
ORB Ql00 P9 1805
of the Common Area but not located in the Common Access
Areas except to the extent shown on the Site Plan.
(iii) None of the easements granted by this OEA are
intended, nor shall any of them be construed, as a
dedication of any portion of the Shopping Center for public
use, and Owner(s) shall refrain from taking any action which
would cause such a dedication and will take whatever steps
may be necessary to avoid any such dedication, except as may
be agreed upon in writing by Owner(s) and the Major Tenants.
(iv). Owner(s) shall have the right at any time, and
from time to time, to exclude and restrain any Person who is
not a Permittee from using Common Area.
(v) Nothing herein shall preclude the designation
of up to four (4) parking spaces adjacent to the Circuit
City Parcel as "Customer Pick-Up" spaces for the exclusive
benefit of customers of Circuit City.
2.2 Utilities.
(A) Agree hereby declares and establishes non-exclusive
perpetual easements in, to, over, under, along and across those
portions of the Common Area shown as utility easements on the
Site Plan necessary for the installation, operation, flow,
passage, use, maintenance, connection, repair, relocation, and
removal of underground lines or underground systems for utilities
serving any Parcel or the Common Area improvements, including but
not limited to sanitary sewers, storm drains, cable TV, water
(fire and domestic), gas, electrical, telephone and communication
lines. Nothing herein sha~l prevent an Owner from conveying
utility easements across that portion of the Common Area owned in
fee by such Owner (even if not within a utility corridor) for the
benefit of Owners and Tenants of the Shopping Center. Prior to
7
RI7B\7747\CIRCUIT\OPER-AGT.Ol3
ORB .J100 pg 1807
Parcel for business to the public and with the exception of
utility construction, alteration and repair work wholly within on
the Restaurant Parcels and then not within any Common Access
Areas, shall not take place during the time period between
October 1st and December 31st inclusive. The Owner undertaking
such work shall take all necessary measures to minimize any
disruption or inconvenience caused by such work and, except in
the' case of an emergency, shall give the other Owners and Maj or
Tenants written notice a minimum of forty-eight (48) hours prior
to commencing such work. Such work shall be accomplished in such
a manner as to minimize any damage or adverse effect which might
be caused by such work. If such work requires excavation in any
portion of the Common Access Areas, the Owner causing such work
to be done shall use all reasonable efforts to cause such
excavation to commence and be completed during hours when the
Tenants of the Shopping Center are not open for business to the
public and, in any event, shall provide suitable alternative
ingress and egress if it is not practical to keep access open
during the work. Any excavation within the Common Access Areas
shall be properly backfilled within twenty-four (24) hours if
reasonably practical. The Owner undertaking such work shall
repair at its own cost and expense any and all damage caused by
such work and shall restore the atfected portion of the Shopping
Center upon which such work is performed to a condition which is
at least equal the condition which existed prior to the beginning
of such work. In addition, the Owner undertaking such work shall
promptly pay all costs and expenses associated therewith and
shall indemnify and hold the other Owner(s) and Tenants harmless
from all liens, damages, losses or claims, including reasonable
attorney's fees, attributable to the performance of such work.
2.3 Restriction. E~cept as may otherwise be approved by
all Owners and Major Tenants, no Owner shall hereafter grant any
easement for the purpose set forth in this Article for the
benefit of any property not within the Shopping Center; provided,
9
RI7B\7747\CIRCUIT\OPER-AGT.D13
ORB ~100 P9 1806
exercising the right granted herein to install underground lines
or systems in a utility easement area located on Common Area
owned in fee by another Owner, an Owner shall first provide the
other Owners with a written statement describing the need for
such easement, shall identify the proposed location of the
utility and shall furnish a certificate of insurance showing that
it, has obtained the minimum insurance coverage required by
Section 5.4 hereof.
(B) The initial width of any utility shall be subject to
the prior writ~en approval of the Owner whose Common Area is to
be burdened thereby, which approval shall not be unreasonably
withheld or delayed. An Owner shall have the right at any time
to relocate a utility line within the permitted utility corridors
shown as a utility corridor on the Site Plan upon thirty (30)
days prior written notice, provided that such relocation:
(i) shall not interfere with or diminish the
utility services to the other Owner(s) or the Tenants;
(ii) shall be performed without cost or expense to
the other Owner(s); and
(iii) shall have been approved by the utility company
and the appropriate governmental or quasi-governmental
agencies having jurisdiction thereover.
(C) All construction, alteration and repair work to any
utility described in this Section 2.2 shall be accomplished in an
expeditious manner, in compliance with all laws, rules,
regulations, orders, permits, approvals and licenses of
governmental authorities having jurisdiction and, except in the
case of an emergency and except in case of construction occurring
before the opening of the Circuit City Parcel and the Borders
8
RI7S\7747\CIRCUIT\OPER-AGT.D13
OPrL- 9100 P9 1 809
(ii) interfere with the use, occupancy or enjoyment
of any part of the remainder of the Shopping Center by any
other Owner or the Permittees; or
(iii) cause any other Owner to be in violation of any
law, rule, regulation, order or ordinance applicable to its
real estate.
(C) Each Owner shall defend, indemnify and hold harmless
the other Owners and the Tenants from all claims, actions and
proceedings and costs incurred in connection therewith (including
reasonable attorneys' fees and costs of suit) resulting from any
accident, injury or loss or damage whatsoever occurring to any
Person or to the property of any Person arising out of or
resulting from the performance of any construction activities
performed or authorized by such indemnifying Owner.
(D) Following the opening of the Circuit City Parcel and
the Borders Parcel for business to the public, no construction
shall be permitted in the Shopping Center (other than wholly
within the Restaurant Parcels and then not within any Common
Access Areas) during the months of October, November and
December, except for repairs due to a casualty and except for
interior alterations not affecting the operations of any other
occupant of the Shopping Center and except for emergency repairs.
In the event of any construction within the Shopping Center,' the
Owner(s) shall designate a construction access route, staging and
parking areas located so as to minimize interference with
customers or the operations of other occupants of the Shopping
Center and shall require erection of safety barriers as necessary
and an opaque wall around the site of such construction of a size
necessary to screen such ~onstruction from ground level view.
Owners shall make no changes in the Common Area which affect
access, parking or visibility (including, without limitation,
changes in the location of curbcuts, drive aisles, roadways,
11
RI7B\7747\CIRCUIT\OPER-AGT.013
ORf 9-100 iJ9 1810
sidewalks or parking spaces or reduction of the parking ratio
specified in Section 3.2) without Circuit City's and Borders'
express written consent (and, in the case of changes to the
Common Area within the Restaurant Parcels, the consent of the
Owner of the Restaurant Parcels), which either may, in its sole
discretion, withhold, and Owners shall make no other changes in
the Common Area without Circuit City's and Borders' express
written consent (and, in the case of changes to the Common Area
within the Restaurant Parcels, the consent of the Owner of the
Restaurant Parcels), which neither shall unreasonably withhold.
3.2 Comm0n Area. Agree shall cause the Common Area to be
initially improved as shown on the Site Plan. Such work shall be
done in a good and workmanlike manner and in accordance with good
engineering standards and the requirements of Circuit City's
lease.
The parking ratio for the Shopping Center shall be at least
as shown on the Site Plan, but in no event shall said ratio be
less than the greater of (i) five (5) spaces (for full-sized
automobiles) per 1,000 square feet of gross leasable area or (ii)
that required by applicable zoning requirements. The 5:1,000
parking ratio required above shall' not prevent the expansion of
the Borders store by up to 16,700 square feet of additional Floor.
Area and/or the expansion of the Circuit City store and/or the
construction of other improvements by or for Circuit City by up
to 10,837 square feet of additional Floor Area if such 5:1 ratio
cannot be met as a consequence of a condemnation of the Common
Area. All such parking shall be at ground level. Owner(s)
further covenants that it(they) will not seek, nor permit any
other occupant of the Shopping Center to seek, a variance or
waiver from the minimum parking requirements applicable to the
Shopping Center under the zoning code or other applicable
ordinance establishing the ratio of parking spaces to building
area or otherwise mandating the number of parking spaces required
12
RI79\7747\CIRCUIT\OPER-AGT.D13
ORE 9100 P9 1811
for the Shopping Center and the uses contained therein. Parking
by employees of Tenants of the Retail Parcel shall be in
designated "employee parking" areas within the Retail Parcel, the
location of which shall be agreed upon by Circuit City and
Borders. Parking by employees of Tenants of the Restaurant
Parcels shall be either within the Restaurant Parcels and/or
within the portion of the Common Area on the Retail Parcel shown
as "Restaurant Employee Parking" on the Site Plan (which easement
rights shall be on a non-exclusive basis) .
3.3 Buildinq Improvement.
(A) All buildings shall be located only within the Building
Area designated on the Site Plan. Nothing herein shall prevent
an Owner from granting to its Tenant(s) easements and rights in
such Owner's portion of the Shopping Center, as appropriate (i)
for the construction and maintenance of foundations, footings,
supports and demising walls; (ii) to allow their respective
buildings to abut and connect (but not to bear structurally upon
each other); (iii) for roof projections, allowing the grantee to
tie its building into the adjoining building by flashing and
reglets; (iv) for trash disposal and compactor equipment and
transformer pads; and (v) for encroachments which reasonably
occur in the construction of the building components set forth in
clauses (i) through (iv) above. No such attachment or connection
shall be made, however, unless detailed plans therefor shall have
been timely submitted to and approved by the party to whose
building the attachment is to be made, which approval shall not
be unreasonably withheld.
(B) If a portion of any Building Area is at one point in
time paved or landscaped qnd used as if it were Common Area, such
portion may be subsequently used as Building Area provided that
all parking requirements (except as expressly otherwise provided)
and other provisions of this OEA for such Parcel are also
13
RI7B\7747\CIRCUIT\OPER-AQT.D13
ORB 9100 P9 1812
complied with. If all or a portion of a building is razed, then
until the building, or portion tnereof, is replaced, the area
shall thereafter be paved or landscaped or grassed and seeded and
maintained as though it were a part of the Common Area, but at
the sole expense of the Owner thereof.
(C) The building(s) on the Circuit City Parcel shall not
exceed twenty-eight (28) feet in height above finished grade
(exclusive of architectural ornamentation which, in the case of
the Circuit City "tower" may be up to 36 feet above finished
grade). No other building within the Retail Parcel shall exceed
twenty-eight (22) feet in height above finished grade (except
that the Borders "arch" may be up to 3S-feet above finished
grade), nor shall it be positioned so as to project beyond the
portion of the front wall of the building immediately adjacent
thereto. No outparcels, barriers, buildings, kiosks or other
structures, either temporary or permanent, shall be located
within Tenant's Preferred Area, and no building located on the
Restaurant Parcels shall exceed one story, twenty (20) feet six
(6) inches in height exclusive of architectural ornamentation
(which shall not in any event exceed twenty-four (24) feet in
height), nor shall it exceed the size necessary for such Parcel
to maintain, within its boundaries~ the parking ratio required
for its use under the applicable zoning code without use of
parking spaces located in the Common Area of the balance of the
Shopping Center. Notwithstanding the foregoing, the existing
elevation and height of the restaurant occupied by Longhorn is
hereby approved. No development shall occur within the Shopping
Center except as shown on the Site Plan.
(0) Prohibited Uses in Common Area. Each Owner covenants
that it shall not, without ~ircuit City's and Borders' express
written consent, permit the following uses or activities to occur
in the Common Area: (1) display or sale of merchandise; however,
Circuit City shall have the right to use such Common Area as is
14
RI7B\7747\CIRCUIT\OPER-AGT.01J
OR8 9100?9 1813
immediately adjacent to the Circuit City Parcel (but not
immediately abutting the Borders Parcel) and within Tenant's
Preferred Area for sidewalk sales, seasonal and promotional sales
and other sales customary to Circuit City's business operations,
and Borders has the right to locate or place tables for display
or sale of books and other items by Borders in the walkway
portion of the Common Area immediately adjacent to the front of
th~ Borders Parcel so long as the display tables, and all
merchandise located thereon, shall be maintained in a neat,
orderly, and professional manner reasonably satisfactory to the
Owner of the Borders Parcel; (2) operation of loudspeakers or
other sound electronically amplified so as to be heard in the
Common Area; or (3) imposition of a charge for parking.
3.4 Temporary Encroachments. Each Owner agrees that during
the construction of improvements comprising the Shopping Center,
certain minor and temporary encroachments on its portion of the
Common Area not located within the Common Access Areas may occur
due to the use of equipment (such as ladders, scaffolds and
barricades) in connection with construction work, and that these
temporary encroachments shall be permitted on the Common Area for
only a limited time and only to the extent necessary for the
construction involved, and in no event shall these temporary
encroachments materially interfere with the other Parcels.
Circuit City's permitted staging area (which is 20,000 square
feet in size) is shown as "Circuit City's Construction Staging
Area" on the Site Plan. Borders' permitted staging area is shown
as "Borders' Construction Staging Area" on the Site Plan. For
the same purpose and the same limited time and extent, each Owner
further agrees that the Common Area may be used for ingress and
egress of construction and construction-related vehicles and
personnel and that tempor~ry storage of construction materials
and equipment shall be permitted on the portions of the Common
Area not located within the Common Access Areas.
15
RI7B\7747\CIRCUIT\OPER-AGT.D13
ORB 9100 pg 1814
ARTICLE IV
.
MAINTENANCE AND REPAIR
4.1 Utilities.
(A) Each Owner shall repair and maintain in first-class
condition all utility facilities, lines and systems located on
its portion of the Shopping Center that serve only its Parcel(s)
unless the same are dedicated to, and accepted by, a public or
quasi-public utility or authority.
(B) Each Owner shall maintain and repair, at its sole cost,
any facilities installed on another Owner's portion of the
Shopping Center pursuant to the utility easements which have been
established pursuant to Section 2.2 and which exclusively serve
such Owner's Parcel(s), unless the same are granted or dedicated
to and accepted by a utility or a governmental agency which
agrees to maintain and replace the same. Any maintenance and
repair of non-dedicated utilities located on an Owner's portion
of the Shopping Center shall be performed in a lien-free manner
following two (2) weeks' notice to the other Owners and the Major
Tenants (except in an emergency the work may be immediately
initiated, provided notice is given as soon as reasonably
possible) and shall be done after normal business hours whenever
possible and shall otherwise be performed in such a manner as to
cause as little disturbance in the use of the Common Access Areas
and the Parcels as is practicable under the circumstances.
(C) All utility lines which serve more than one Parcel
shall be maintained as part of the Common Area pursuant to
Section 4.2
4.2 Common Area.
16
RllB\1141\CIRCUIT\OPER-AGT.D13
ORB ~100 pg 181. S
(A) Each Owner shall maintain the improved Common Area
located on its portion of the Snopping Center in first class
condition and repair in accordance with the following:
(i) maintain, repair and resurface all drive and
parking areas to keep the same in a smooth and evenly
covered condition and periodically sweep, clean and restripe
the same;
(ii) remove papers, debris, refuse, ice and snow
from the drive and parking areas and adequately drain the
drive and, parking area to the extent necessary to keep the
same in a first-class, clean and orderly condition;
(iii) maintain appropriate directional signs and
markers and replace the same as necessary;
(iv) illuminate the drive and parking areas, and
maintain and replace lighting facilities, bulbs and
ballasts;
(v) maintain all landscaped areas, including the
replacement of shrubs and other landscaping as necessary,
and maintain any automatic sprinkler system serving the
landscaped areas;
(vi)
sidewalks;
clean, sweep, . maintain and repair all
(vii) store all trash and garbage in adequate,
screened containers and provide for regular collection of
same;
17
RI7B\7747\CIRCUIT\OPER-AGT.DL3
ORB 7100 P9 1816
(viii) pay all utility bills incurred in the operation
of the Common Area and not ~verburden the available
utilities; and
(ix) maintain the pylon sign(s) or any replacement
thereof on such Owner's portion of the Shopping Center;
provided however, that the Owner of the Retail Parcel shall
maintain the pylon sign described in Section 4.4 hereof and
obtain casualty insurance with respect thereto.
(B) In addition, each Owner shall maintain and repair, at
its sole cost, ,in a clean, sightly and safe condition any
exterior shipping/receiving dock area, any truck ramp or truck
parking area and any refuse, compactor or dumpster area located
on its Parcel.
( C) In the event any of the Common Area is damaged or
destroyed by any cause other than normal wear and tear, whether
insured or uninsured, during the term of this OEA, the Owner upon
whose Parcel such Common Area is located shall with reasonable
dispatch and subject to adjustment of any insurance claims, which
claims the affected Owner agrees to promptly file and diligently
prosecute, repair or restore such 'Common Area at its sole cost
and expense with all due diligence. Notwithstanding the
foregoing, in the event such damage or destruction of the Common
Area is caused in whole or in part by the actions or inactions of
another Owner, the Owner causing such damage shall be obligated
to make such repair or restoration, failing which the Owner of
the portion of the Shopping Center upon which such damaged Common
Area is located shall have the right to proceed against such
other Owner for indemnity, contribution or damages.
18
RI1B\1147\CIRCUIT\OPER-AGT.013
ORB ill 00 P9 181 7
4.3 Buildinq Improvements.
.
(A) After completion of construction of any building
improvements on its Parcel, each Owner covenants and agrees to
maintain and keep such building improvements in good condition
and state of repair, in compliance with all governmental laws,
rules, regulations, orders, and ordinances exercising
jurisdiction thereover, and in compliance with the provisions of
this OEA. Each Owner further agrees to store all trash and
garbage in adequate containers, to locate such containers so that
they are not readily visible from the parking area, and to
arrange for regular removal of such trash or garbage, unless such
ser.vice is provided as a part of Common Area maintenance.
(B) In the event any of the building improvements are
damaged by fire or other casualty (whether insured or not), the
Owner upon whose Parcel such building improvements are located
shall immediately remove the debris resulting from such event and
provide a sightly barrier and shall either; (i) commence to and
diligently complete repair or restore the building improvements
do damaged, or (ii) commence to and diligently complete erection
of other building improvements in such location, provided all
provisions of this OEA are complied with, or (iii) demolish the
damaged portion or all of such building improvements and have
restored the area to an attractive condition, in which event the
area shall be Common Area until a replacement building is
erected.
4.4 Pylon Siqn. Agree, at its sole cost and expense, no
later than March I, 1996 sha11 construct and install upon the
Common Area at the corner of Old Boynton Road and Congress Avenue
at the location shown on t:-he Site Plan as "Pylon Sign For Bldg.
A & B", a pylon sign structure (with electrical wired box
installed) having sufficient space thereon as to that pylon for
inclusion of doublesided "face panels" identifying Circuit City's
19
RI7B\7747\CIRCUIT\OPER-AGT.D13
ORB 100 pg 1 81 8
store and Borders' store (with the Circuit City panels to be in
the top tenant position), which face panels shall be constructed
and installed at the sole cost and expense of Circuit City and
Borders. Agree shall submit to Circuit City and Borders plans
and specifications for such pylon sign (including colors, design,
dimensions, type of lighting and position of tenant panels) prior
to. construction and installation thereof for Circuit City's and
Borders' written approval, which shall not be unreasonably
withheld or delayed. The Borders sign shall be the same size as
Circuit City's sign. Notwithstanding the foregoing, each of
Circuit City and Borders shall be entitled without any Owner's
consent, but subject to governmental requirements, as aforesaid,
to replace any and all of its signs with signage consistent with
its then-current prototypical sign plans. In the event of an
assignment or subletting as a result of which Circuit City or
Borders is no longer occupying any portion of the Shopping
Center, the assignor's or sublessor's signs may be replaced by
signs identifying the appropriate assignee or subtenant, provided
that the specific design of such signage shall be subject to the
consent of the Owner of the Circuit City Parcel or the Borders
Parcel, as applicable" which consent shall not be unreasonably
withheld, conditioned or delayed. In the event of a taking of
the pylon, the Owner of the Retail Parcel shall provide a
substitute pylon subject to City approval and the requirements of
Circuit City's and Borders' leases. There are hereby reserved
for the benefit of the Owner of the Retail Parcel and its Tenants
easements burdening the Restaurant Parcel for the installation,
maintenance, repair, replacement and electrification of this
pylon sign. Notwithstanding anything in Section 5.4 to the
contrary, the Owner of the Retail Parcel shall maintain the
casualty and liability insurance required hereunder with respect
to this pylon.
20
RI7B\7747\CIRCUIT\OPER-ACT.D13
ORB 91DO?9 1 81 9
ARTICLE V
OPERATION OF THE SHOPPING CENTER
5.1 Uses.
(A) No portion of the Shopping Center shall be occupied or
used, directly or indirectly, for any of the uses set forth on
the attached Exhibit F or set forth in the attached Exhibit F-1;
provided,. however, that the Major Tenant of the Circuit City
Parcel may agree to delete or relax one or more of the
restrictions set forth on Exhibit F and the Major Tenant of the
Borders Parcel may agree to delete or relax one or more of the
restrictions set forth on Exhibit F-1, and an amendment to this
OEA modifying Exhibit F or Exhibit F-1 shall be effective as long
as it is executed by the Major Tenant of the Borders Parcel or
the Circuit City Parcel only, as applicable; provided, however,
that notice of any amendment to Exhibit F and/or Exhibit F-1
shall be given to the Owners. So long as Hops is the Tenant of
that portion of the Restaurant Parcels containing Restaurant 1,
no other portion of the Shopping Center shall be used for the
operation of a microbrewery; and so long as Longhorn is the
Tenant of that portion of the Restaurant Parcels containing
Restaurant 2, no other portion of the Shopping Center shall be
used for the operation of a so-called "steak house" (i.e. a
restaurant whose primary food offering is steaks for on-premises
consumption). The Owner of the Restaurant Parcels and the Major
Tenant of Restaurant 1 may delete or relax the microbrewery
restriction and the Owner of the Restaurant Parcels and the Major
Tenant of Restaurant 2 may delete or relax the "steak house"
restriction, in either case by an amendment to this OEA executed
by such Owner and applicable Major Tenant; however, notice of any
such amendment shall be given to the other Owners.
21
RI78\7747\CIRCUIT\OPER-AGT.D13
ORB 100 pg 1820
(B) So long as Borders or any affiliate is operating a
retail store within the Borders Parcel, no Tenant of the other
Parcels shall engage in:
(i) the sale of books and periodicals in all
current and future formats;
(ii) the sale of professionally pre-recorded and
packaged video entertainment in all current and future
formats;
(iii) the sale of professionally pre-recorded and
packaged music in all current and future formats; and
(iv) the operation of a "coffee bar" in any format,
whether as an incidental or primary use; provided, however,
that the foregoing shall not affect or limit 'any restaurant
located on the Restaurant Parcels.
(the foregoing being referred to herein as the "Borders
Exclusive"); provided, however, that the Borders Exclusive shall
not prohibit the sale of items where the subject matter is
directly related to the primary use of the premises (e.g. a
computer store"which sells books and periodicals dealing with
computer products) and not more than one hundred (100) square
feet of surface display area is devoted to the retail display of
such related items; and further provided that the Borders
Exclusive shall not prevent the sale by Circuit City of any
products which are customarily sold in a Circuit City retail
store similar to the retail store located on the Circuit City
Parcel.
(C) So long as the Circuit City Parcel is being used for
the uses set forth below, no other Tenant of the Shopping Center
shall be entitled to sell or rent (or rent to own) any of the
22
RI7B\7747\CIRCUIT\OPER-AGT.D1J
ORB '7 100 P9 1 821
"Products": (i) the sale of consumer, office and automotive elec-
tronics products (which include, but shall not be limited to,
televisions, stereos, speakers and video recorders and players) ,
computer hardware and software, entertainment software and
entertainment media (which include, but shall not be limited to,
records, game cartridges, video tapes, cassettes and compact
discs), cellular telephones, household appliances (which include,
but shall not be limited to, refrigerators, freezers, stoves,
microwave.ovens, vacuum cleaners and dishwashers) and related
goods and the sale and installation of motor vehicle audio, stereo
and telephone systems (all of such items being herein collectively
referred to as the "Products"), and (ii) renting, servicing,
installing, repairing and warehousing of the Products.
The foregoing is referred to herein as the "Circuit City
Exclusive"; provided, however, that the foregoing shall not
prevent the sale by Borders of any products which are customarily
sold in a Borders retail store similar to the retail store located
on the Borders Parcel.
(D) No Permittee shall be charged for the right to enter or
use the Common Area (except for common area maintenance charges
payable by Tenants under their leases) .
(E) Reference is hereby made to that certain Consent to
Modify Restrictive Covenants dated September 5, 1995 made by GOA
Properties and Boynton-JCP Associates, Ltd. and recorded in
Official Records Book 9064 at page 103 by the Clerk of the Circuit
Court of Palm Beach County (the IIGOA Consent"). Agree assigns to
the Circuit City Parcel two (2) of the four (4) retail
tenants or other occupants permitted by the GOA Consent and
agrees that it will limit the subletting rights of other
tenants or occupants subject to the GOA Consent so as not
to erode Circuit City's subletting rights. Thus, at all times
Circuit City shall have the right to sublet a portion of
the building on the Circuit City Parcel (as well as
23
RI7B\7747\CIRCUIT\OPER-AGT.D13
ORB 9100 P9 1822
the whole) and either occupy the balance or sublet the balance.
Agree assigns to the Borders Parcel the other two (2) of the
four(4) retail tenants or other occupants permitted by the GOA
Consent so as not to erode Borders' subletting rights.. Thus, at
all times Borders shall have the right to sublet a portion of the
building on the Borders Parcel (as well as the whole) and either
occupy the balance or sublet the balance.
5.2 Liqhtinq. After completion of the Common Area lighting
system on its portion of the Shopping Center, each Owner hereby
covenants and agrees to keep its portion of the Common Area fully
illuminated each day from dusk to at least thirty (30) minutes
after the last business operation on its Parcel(s) has closed, and
further agrees to keep any exterior building security lights on
from dusk until dawn. In addition, the Owner of the Retail Parcel
and the Owner of the Restaurant Parcels agree to keep the
"Restaurant Employee Parking II area described in Section 3.2
illuminated from dusk until at least one (1) hour after the
restaurants located on the Restaurant Parcels shall have closed.
Three of the light poles on the Retail Parcel illuminating the
Employee Parking Area are wired to the electrical service serving
the Restaurant Parcels and the cost of electricity therefor shall
be paid by the Owner of the Restaurant Parcels or its Tenants. If
longer periods of illumination are required by law, the Owners
shall comply therewith.
5.3 Signs. No freestanding sign shall be permitted within
the Shopping Center other than the existing pylon sign serving the
Restaurant Parcels and located south of the Congress Avenue
entrance and the pylon sign provided for in Section 4.4 (or a
replacement thereof in the event of condemnation of the pylon
sign) and, if permitted by the City, the monument sign contemplated
by the Consent to Modify Restrictive Covenants executed by Toys R
Us and recorded in Official Records Book 9064 at page 74 by the
Clerk of the Circuit Court of Palm Beach County, and any
24
RI7B\7741\CIRCUIT\OPER-AGT.D13
ORB \.L 00 P9 1 823
additional freestanding or pylon sign which shall be specifically
agreed upon by the Owner of the Retail Parcel and Circuit City
and Borders, which agreement shall be evidenced by a written
amendment to this OEA.
Notwithstanding anything above to the contrary, each Owner
sh~ll be permitted to place within the Common Area located on its
portion of the Shopping Center directional, Customer Pick-Up,
traffic control and "for rent" signs or information signs such as
"Handicapped Parking", the temporary display of building permits
and the temporary erection of one sign identifying each
contractor working on a construction job.
5.4 Insurance.
(A) Each Owner shall, with respect to the Common Area on
its portion of the Shopping Center and with respect to all other
areas of the Shopping Center over which such Owner has present
possessory rights but which do not constitute a part of the
Common Areas maintain or cause to be maintained in full force and
effect Commercial General Liability Insurance, including Personal
Injury Liability Insurance and Contractual Liability Insurance,
with a financially responsible insurance company or companies
licensed in the" State of Florida with a minimum Best's rating of
B+ VI. Such insurance shall provide for aggregate coverage
limits of not less than Three Million and NO/lOa Dollars
($3,000,000.00) for public liability and property damage.
Additionally, such insurance shall include the following minimum
requirements:
(i) shall provide that the policy may not be
cancelled or materially reduced in amount or coverage
without at least 30 days prior written notice by the insurer
to the other Owner(s) and Major Tenants and Hops and
Longhorn (so long as they are Tenants) and
25
RI78\1141\CIRCUIT\OPER-AGT.D1J
ORB -~'1 00 ?g 1826
cost and expense any such taxes and assessments with respect to
the Shopping Center in any manner the contesting party elects, so
long as such contest is maintained with reasonable diligence and
in good faith. Borders consents to any such contest by Circuit
City and vice versa. In order to evidence compliance with the
foregoing, any Owner ("Requesting Owner") may, from time to time
but not more than twice in any calendar year request in writing
from another Owner ("Taxpayer") furnish written evidence that all
real and personal property taxes and installments of assessments
and specLal assessments upon the Taxpayer's real estate then due
have been paid in full. Upon such request, the Taxpayer shall
furnish such evidence to the Requesting Owner.
If a Defaulting Owner shall fail to pay any real and
personal property taxes or installments of assessments or special
assessments ("Taxes") on its portion of the Shopping Center
before any penalties and statutory interest accrue, any Non-
Defaulting Owner may pay the Taxes, penalties and statutory
interest if such amounts are not paid by the Defaulting Owner
within thirty (30) days after written notice from the Non-
Defaulting Owner to the Defaulting Owner demanding the payment of
such amounts. In such event, the Defaulting Owner shall
reimburse the Non-Defaulting Owner upon demand for all Taxes,
penalties and statutory interest paid by the Non-Defaulting Owner
for the property in the Shopping Center owned by the Defaulting
Owner, plus interest at the Default Rate (as defined in Section
6.1 below). Upon payment of the Taxes by the Non-Defaulting
Owner, such Owner shall have a lien on the Defaulting Owner's
portion of the Shopping Center which shall have priority based on
the date of the recording of a notice thereof in the Recording
Office but shall in any event be inferior in priority to the
leases of the Tenants, until such time as the Defaulting Owner
pays in full to the Non-Defaulting Owner the amounts provided for
above.
28
RI7B\7747\CIRCUIT\OPER-AGT.013
ORB <.; ~ 00 P9 1824
(ii) shall include the other Owner(s) and the Major
Tenants and Hops and Longhorn (so long as they are Tenants)
as additional insureds.
To the extent required by law, each Owner and Tenant shall
maintain workers' compensation insurance covering their
respective employees in statutory limits, or maintain such
al~ernate coverages or arrangements as are legally permissible.
The Owner of the Restaurant Parcels shall cause to be kept
in full force and effect a policy of fire and extended coverage
insurance covering loss or damage to the improvements in the
amount of at least 80% (it being understood that such Owner is
self-insuring for any difference) of full replacement value of
the improvements exclusive of excavation, footings and
foundations, with a commercially reasonable deductible, for which
such Owner shall be fully responsible. No Owner shall construct,
or permit to be constructed, any improvement in the Shopping
Center, nor conduct any activity, or permit the conduct of any
activity, in the Shopping Center which will prevent Circuit City
or Borders from being able to obtain insurance coverage at
commercially reasonable rates, including, without limitation, a
fully-sprinklered fire insurance rate.
To the extent that insurance proceeds are actually received
in satisfaction of a loss which is required to be covered by
insurance or is self-insured hereunder (with the deductible under
any policy being deemed to be self-insured), Owners hereby waive
any and all rights of recovery against each other and against the
Major Tenants for any loss or damage to the improvements or the
contents contained therein, for loss of income on account of fire
or other casualty, or for injury sustained on the improvements or
the Common Areas; and each party's policies of insurance shall
contain appropriate provisions recognizing this mutual release
26
RI7B\7747\CIRCUIT\OPER-AGT.D13
ORB 100 pg 1825
and waiving all rights of subrogation by the respective insurance
carriers.
(B) The insurance described above may be carried by either
the Owner or by any Tenant of a Parcel under: (i) an individual
policy; (ii) a blanket policy or policies which includes other
liabilities, properties and locations of such Owner or Tenant
provided that the total amount of insurance available with
respect to the insured's liability or improvements shall be at
least the. equivalent of separate policies in the amounts herein
required (iii) in the case of casualty and liability insurance, a
plan of self-insurance, provided that the Owner or Tenant so
self-insuring has One Hundred Fifty Million ($150,000,000.00) or
more of net worth as evidenced by a certificate of the chief
financial officer of such entity; or (iv) a combination of any of
the foregoing insurance programs. Each Owner agrees to furnish
or cause to be furnished to any other Owner(s) or Major Tenant{s)
requesting the same, a certificate(s) of insurance evidencing
that the insurance required to be maintained by such requested
Owner (or Tenant) is in full force and effect and any Owner (or
Tenant) electing to self-insure shall so advise the other Owners
and Major Tenants in writing and shall provide with such notice a
certificate regarding net worth as'required by clause (iii).
5.5 Taxes and Assessments. Each Owner shall pay, or cause
to be paid prior to delinquency, all taxes, assessments, rates
and levies with respect to its portion of the Shopping Center,
including, without limitation, the buildings and improvements
located thereon and any personal property owned or leased by such
Owner in the Shopping Center; provided that if the taxes or
assessments or any part thereof may be paid in installments, an
Owner may pay each such installment as and when the same becomes
due and p~yable. Nothing contained in this section shall prevent
any Owner or Major Tenant (or Hops or Longhorn so long as they
are Tenants of the Restaurant Parcels) from contesting at its own
27
RI7B\7747\CIRCUIT\OPER-AGT.D13
.JRB -. 100 29 1827
5.6 Liens. In the event any mechanic's lien is filed
individually or collectively against the real estate of any Owner
as a result of services performed or materials furnished, in
connection with the construction activities on the real estate,
the Owner of the real estate upon which services were performed
or materials furnished giving rise to the lien agrees to cause
such lien to be released and discharged of record within 30 days
after receipt of written notice of the filing of the lien, either
by paying.the indebtedness which gave rise to such lien or by
posting bond or other security as shall be required by law to
obtain such release and discharge.
5.7 Miscellaneous Obliqations. In the event any costs,
assessments or other obligations are imposed by third parties
against a Parcel or the Shopping Center for use of easements
benefitting the Shopping Center (such as, for example, the Great
Western Cross-Easement referenced in Section 1.3), each Owner
shall pay such obligation against its parcel(s), or its
Proportionate Share of such obligation for the Shopping Center,
when due. In the event any Defaulting Owner shall fail to pay
any such obligation on its Parcel, or its Proportionate Share of
such obligation on the Shopping Center, before any penalties or
interest accrue., any Non-Defaulting Owner may pay such obligation
if such amounts are not paid by the Defaulting Owner within
thirty (30) days after written notice from the Non-Defaulting
Owner to the Defaulting Owner demanding the payment of such
obligation. The Non-Defaulting Owner shall have the rights and
remedies of the Non-Defaulting Owner, as set forth in Section
5.5, specifically including the right to place a lien subordinate
to the leases of the Tenants.
29
RI7B\7747\CIRCUIT\OPER-AGT.PlJ
ORB 9100 P'3 1828
ARTICLE VI
MISCELLANEOUS
6.1 Default.
(A) If any Owner fails to comply with any provision herein
("Defaulting Owner"), then any of the other Owners (individually
or collectively referred to herein as the "Non-Defaulting Owner")
may, upon. thirty (30) days prior written notice to the Defaulting
Owner (with a copy to such Owner's mortgagee if the provisions of
Section 6.3 hereof have been met), proceed to cure the default
(and shall have a license to do so) by the payment of money or
performance of some other action for the account of the
Defaulting Owner. The foregoing right to cure shall not be
exercised if within the thirty (30) day notice period: (i) the
Defaulting Owner or its mortgagee cures the default, or (ii) if
the default is curable, but cannot reasonably be cured within
that time period, the Defaulting Owner or its mortgagee begins to
cure such default within such time period and diligently pursues
such action to completion. In the event of an emergency, the
Non-Defaulting Owner shall give whatever notice to the Defaulting
Owner as is reasonable under the circumstances.
(B) Within ten (10) days of written demand (including
providing copies of invoices reflecting costs), the Defaulting
Owner shall reimburse the Non-Defaulting Owner for any sum
reasonably expended by the Non-Defaulting Owner due to cure the
default, together with interest thereon at the "Default Rate".
(C) The "Default Rate" shall be the lesser of: (i) five
percent (5~) per annum in excess of the prime rate from time to
time publicly announced by the Wall Street Journal, or (ii) the
highest rate permitted by law.
30
RI7B\7747\CIRCUIT\OPER-AGT,D1J
ORB 0'100 P9 1829
6.2 Estoppel Certificate. Each Owner agrees that upon
written request (which shall not be more frequent than three (3)
times during any calendar year) from time to time by any of the
other Owners or Major Tenants, it will issue at no charge to a
prospective mortgagee of such other Owner or to a prospective
successor Owner to such other Owner or to a Major Tenant or its
prospective assignee or subtenant or leasehold mortgagee, an
estoppel certificate stating:
(A) whether the Owner to whom the request has been
directed knows of any default by any Owner under this OEA,
and if there are known defaults, specifying the nature
thereofj
(B) whether, to the best of the requested Owner's
knowledge, this OEA is in full force and effect; and
(C) whether, to the best of the requested Owner's
knowledge, there are any sums owed by any Owner.
Such certificate shall act as a waiver of any claims by the
Owner furnishing it as against the addressee of the certificate
to the extent 9.uch claim is based upon facts contrary to those
asserted in the certificate; however, such statement shall in no
event subject the Owner furnishing it to any liability
whatsoever, notwithstanding the negligent or otherwise
inadvertent failure of such Owner to disclose correct and/or
relevant information.
6.3 Notices.
Each notice ("Notice") required or permitted to be given
under this OEA shall be in writing and shall be deemed to have
been properly given or served as of the date the same is
deposited in the United States mail, prepaid, by registered or
31
RI7B\7747\CIRCUIT\OPER-AGT.D13
ORB ..1. 00 P9 1830
certified mail, return receipt requested, or delivered to a
private express package courier prepaid and in each case sent to
the address set forth below. In the event an Owner shall
encumber its Parcel{s} by a first mortgage and Notice of such
fact has been given to the other Owner(s} and Major Tenants, then
a copy of any Notice directed to such mortgaging Owner shall also
be. sent to its first mortgagee. Any notices to Agree, FRP,
Borders, Circuit City, Hops or Longhorn shall be sent to:
If to Agree:
Agree Limited Partnership
c/o Agree Realty Corporation
31850 Northwestern Highway
Farmington Hills, Michigan 48334
with a copy to: Leon M. Schurgin, Esq.
Kramer Mellen
3000 Town Center, Suite 1700
Southfield, Michigan 48075-1277
If to Borders: Borders, Inc.
311 Maynard Street
Ann Arbor, MI 48104-2211
with a copy to: Phillip J. Bowen, Esquire
Conlin, McKenney & Philbrick
700 City Center Building
Ann Arbor, MI 48104-1994
If to- Circuit City: Circuit City Stores, Inc.
9950 Mayland Drive
Richmond, Virginia 23233
Attention: Corporate Secretary
with a copy to
Circuit City Stores, Inc.
9950 Mayland Drive
Richmond, Virginia 23233
Attention: Vice President of Real
Estate
If to FRP:
Florida Retail Properties, Inc.
1876 Monte Carlo Way
Coral Springs, Florida 33071
or for delivery by
the U.S. Postal
Service to:
P. O. Box 772530
Coral Springs, Florida 33077-2530
32
RI7B\7747\CIRCUIT\OPER-AGT.013
------- --
~ -----~ ~---- ---
with a copy to:
If to Longhorn:
with a copy to:
If to Hops:
with a copy to:
ORB 100 pg 1831
Burl F. George, Esq.
Johnson, Anselmo, Murdock, Burke &
George
790 East Broward Boulevard,
Suite 400
Ft. Lauderdale, Florida 33301
Longhorn Steaks, Inc.
8215 Roswell Road, Building 200
Atlanta, Georgia 30350
Attn: Mr. Kirk Hermansen
Vice President, Development
Ralph Williams, Jr., Esq.
Alston & Bird
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
Hops Grill & Bar
3030 No. Rocky Point Dr. West
Suite 650
Tampa, Florida 33607
Attn: Mr. Wayne T. Parkinson
Jeffrey Shannon, Esq.
Fowler, White
501 East Kennedy Boulevard
Tampa, Florida 33601
Any Owner or Major Tenant shall have the right from time to time
and at any timed upon at least ten (10) days' prior written
Notice thereof in accordance with the provisions hereof, to
change its respective address or to direct that notices be also
given to any Tenant of a Parcel (whose address shall also be
furnished); provided, however, notwithstanding anything herein
contained to the contrary, in order for the Notice of address
change to be effective it must actually be received; and further
provided such address may not be a post office box except to the
extent necessary for delivery by the U.S. Postal Service.
The refusal of an Owner or Major Tenant to accept certified
or registered mail or a private courier package delivery service
shall be deemed delivery on the date of such refusal.
33
RI7B\7747\CIRCUIT\OPER-AGT.013
ORB ~100 P9 1832
Upon receipt of a written Notice complying with the
provisions of this Section 6.3 from a mortgagee having an
interest in one of the Parcels within the Shopping Center, the
Owners agree that and after such date a copy of any Notice given
will be sent to such mortgagee. Such Notice from a mortgagee
must clearly state the Parcel{s} in which such mortgagee has an
interest.
6.4 . Bindinq Effect. The terms of this OEA {i} are made for
the direct, mutual and reciprocal benefit of each Owner and Major
Tenant, {ii} shall constitute and be enforceable as mutual
equitable servitude on each portion of the Shopping Center in
favor of the other portions, (iii) shall constitute covenants
running with the land within the Shopping Center, and (iv) shall
be binding upon any person or entity acquiring any fee, leasehold
or other interest in the Shopping Center or any part thereof.
The terms of the OEA shall inure solely to the benefit of, and
shall be binding upon, any Owner or Tenant of the Shopping Center
and any Parcel. This OEA is not intended to supersede, modify,
amend or otherwise change the provisions of any prior instrument
affecting the land burdened hereby. Any Major Tenant may enforce
this OEA and shall be subrogated to the rights of the Owners in
such enforcement.
6.5 Sinqular and Plural. Whenever required by the context
of this OEA, the singular shall include the plural, and vice
versa, and the masculine and neuter genders shall include all
genders.
6.6 Counterparts and Siqnatures Paqes. This OEA, and any
amendment thereto, may be executed in several counterparts, each
of which shall be deemed an original. The signatures to this OEA
may be executed and notarized on separate pages, and when
attached to this OEA shall constitute one complete document.
34
RI7B\7747\CIRCUIT\OPER-AGT.D13
ORB ~100 P9 1833
6.7 Neqation of Partnership. None of the terms or
provisions of this OEA shall be deemed to create a partnership
between or among the Owners or Major Tenants in their respective
businesses or otherwise, nor shall it cause them to be considered
joint venturers or members of any joint enterprise. Each Owner
shall be considered a separate owner, and no Owner shall have the
right to act as an agent for another Owner, unless expressly
authorized to do so herein or by separate written instrument
signed by. the Owner to be charged.
6.8 Not a Public Dedication. Nothing herein contained'
shall be deemed to be a gift or dedication of any portion of the
Shopping Center or of any Parcel or portion thereof to the
general public, or for any public use or purpose whatsoever.
Except as herein specifically provided, no right, privilege or
immunity of any Owner shall inure to the benefit of any third
party Person, nor shall any third party be deemed to be a
beneficiary of any of the provisions contained herein except as
otherwise expressly provided herein.
6.9 Severability. Invalidation of any of the provisions
contained in this OEA or of the application thereof to any Person
by judgment or ~ourt order, shall in no way affect any of the
other provisions hereof or the application thereof to any other
Person, and the same shall remain in full force and effect.
6.10 Amendments. Except as otherwise expressly provided
herein, this OEA may be amended by, and only by, a written
agreement signed by all of the then current Owners and Major
Tenants and shall be effective only when recorded in the
Recording Office.
6.11 Caotions and Caoitalized Terms. The captions preceding
the text of each article and section are included only for
convenience of reference. Captions shall be disregarded in the
35
RI7B\7747\CIRCUIT\OPER-AGT.01J
......e
'Jt(
'-1100 ?9 1834
construction and interpretation of the OEA. Capitalized terms
are also selected only for convenience of reference and do not
necessarily have any connection to the meaning that might
otherwise be attached to such term in a context outside of this
OEA.
6.12 Minimization of Damaqes. In all situations arising out
of this OEA, each Owner shall attempt to avoid and minimize the
damages r~sulting from the conduct of any other Owner. Each
Owner shall take all reasonable measures to effectuate the
provisions of this OEA.
6.13 OEA Shall Continue Notwithstandinq Breach. It is
expressly agreed that no breach of this OEA shall: (i) entitle
any Owner to cancel, rescind or otherwise terminate this OEAj or
(ii) defeat or render invalid the lien of any mortgage made in
good faith and for value as to any part of the Shopping Center.
However, such limitations shall not affect in any manner any
other rights or remedies which an Owner or Major Tenant may have
hereunder by reason of any such breach.
6.14 Time. Time is of the essence of this OEA.
6.15 Non-Waiver. The failure of any Owner or Major Tenant
to insist upon strict performance of any of the terms, covenants
or conditions hereof shall not be deemed a waiver of any rights
or remedies which that Owner or Major Tenant may have hereunder
or at law or equity and shall not be deemed a waiver of any
subsequent breach or default in any of such terms, covenants or
conditions.
6.16 Peroetual Easement. Those easements designated as
being perpetual or as continuing beyond the term of this OEA
shall continue indefinitely but can be extinguished only by:
(1) a written termination agreement signed by all of the Owners
36
RI7B\7747\CIRCUIT\OPER-AGT.013
ORB I l100 P9 1835
and Major Tenants; or (2) a written affidavit by an Owner, filed
in the Recording Office, stating that: (i) such Owner is an
Owner of a portion of the Shopping Center; (ii) such Owner has
given written notice to all other Owners and to all Major Tenants
that it desires to terminate the easement in question and that
such termination shall be effective automatically unless such
Owner receives written objection to such termination within sixty
(60) days; (iii) such Owner has not received any notice of
objection to such termination from any other Owner or any Major
Tenant within sixty (60) days following delivery of such notice;
and (iv) that such easement has not been used for two (2) years.
Upon the filing of such an affidavit, the easement in question
shall be deemed terminated.
6.17 Mortqaqes on Shopoinq Center. Any mortgage or similar
instrument securing financing upon the Shopping Center, or
portion thereof, after the recording of the OEA in the Recording
Office, shall be subject and subordinate to the terms and
conditions of this OEA.
ARTICLE VII
PERFORMANCE BY TENANT
7.1 General. An Owner of a portion of the Shopping Center
("Designating Owner") may (with the consent of the "Designated
Tenant"), by Notice to the other Owner(s} designate a Tenant
("Designated Tenant") of a Parcel as the party responsible for
performing the obligations of such Owner under this OEA, and
thereafter, such Designated Tenant shall have the benefit of, and
the right to enforce, all of the rights of the Designating Owner
under this Agreement, and shall perform all of the obligations
of, and be subject to the restrictions upon, the Designating
Owner under this OEA. Regardless of whether Borders or Circuit
City is a Designated Tenant, any Major Tenant may enforce this
OEA.
37
RI7B\7747\CIRCUIT\OPER-AGT.D1J
ORB . 100 P9 1836
7.2 Oualification of Tenant. A Tenant may not be
designated as a Designated Tenant pursuant to Section 7.1 hereof
unless such Tenant is leasing all of a Parcel and the
improvements located thereon from the Designating Owner.
7.3 Desiqnation of FRP. FRP is hereby designated by Agree
as the Designated Tenant of the Restaurant Parcels. If FRP
bedomes the Owner of the Restaurant Parcels, Hops and Longhorn
shall each become a Designated Tenant of the portion of the
Restaurant Parcels leased to it.
7.4 Lease Provisions. Nothing in this OEA shall prevent an
. Owner from imposing its obligations hereunder upon its Tenant,
but such imposition shall not release the Owner from its
obligations under this OEA. In the event a provision of a
Tenant's lease is more restrictive or imposes a higher duty,
standard or requirement on the Tenant or the landlord than the
provisions of this OEA, as between the landlord and the Tenant
the provisions of the lease shall control and nothing in this OEA
shall be deemed to reduce or limit any Tenant's or landlord's
obligations under its lease.
7.5 Termi'nation of Lonqhorn REOA. The undersigned agree
that that certain unrecorded Reciprocal Easement and Operation
Agreement dated December 2, 1994 between FRP and Longhorn is
terminated and of no further force and effect and that any of the
undersigned shall execute in recordable form such confirmations
of the termination as may be reasonably requested.
7.6 Consents bv Borders and Circuit City. If any consent
is required hereunder from Borders, such consent shall be
required only so long as Borders or its successor or assign is a
Tenant. If any consent is required hereunder from Circuit City,
such consent shall be required only so long as Circuit City or
its successor or assign is a Tenant.
38
RI7B\7747\CIRCUIT\OPER-AGT.013
ORB 9100 P9 1837
ARTICLE VIII
TERM
8.1 Term of this OEA. This OEA shall be effective as of
the date first above written and shall continue in full force and
effect until 11:59 p.m. on December 31, 2075; provided, however,
that the easements referred to in Article II hereof which are
specified as being "perpetual" or as "continuing beyond the term
of this OEA" shall continue in force and effect as provided
therein. Upon termination of this OEA, all rights and privileges
derived from and all duties and obligations created and imposed
by the provisions of the OEA, except as relates to the easements
mentioned above, shall terminate and have no further force or
effect; provided however, that the termination of this OEA shall
not limit or affect any remedy at law or in equity that an Owner
or Major Tenant may have against any other Owner or Major Tenant
with respect to any liability or obligation arising or to be
performed under this OEA prior to the date of such termination.
IN WITNESS WHEREOF, Agree has caused this OEA to be executed
effective as of the day and year first above written.
AGREE LIMITED PARTNERSHIP,
by its general partner:
AGREE REALTY CORPORATION
a Dclawa~e Corporation
B~~
Name: -
Its: '~/I~
.
39
RI7B\7747\CIRCUIT\OPER-AGT.N28
ORB -1100 P9 1840
STATE OF ~UJMf)A :
CITY/COUNTY OF J.J JUS&IUJU6#
The foregoing instrument was acknowledged before me this
5 -rtf. day of DE.-U..M~L , 1995, by DA4(0 (,.. M~.v
as p~p~ of HOPS OF SOUTHEAST FLORIDA, INC., a
Florida corporation, on behalf of the corporation as General
Partner on behalf of HOPS OF BOYNTON BEACH, LTD., a Florida
limited partnership. He is personally known to me.
My commission expires:
Name:
~~~ti1
Notary Public
[Notarial Seal)
tf2....~ ROBERT E. GASPERElTI
w, ~ MYCCMIISSIONICC371587
. . EXPRS: .10. 1_
.... TIIIU IIIllIry NIc IDIINdn
STATE OF W..Yf j J p.-
CITY/COUNTY OF ~ I fur"\.
The foregoing instrument was acknowledged before me this{
~ day of D t..U--- ,.......,hbT ' 1995, by /(.,'r t- fVl. HL--1f"Yih'l.J-by\
as V.I. 0(. '(/1 v~~f LONGHORN STEAKS, INC., a Georgia
corporation, 0 behalf of the corporation. He is personal..~~":'" .
known to me. ~::....,>.'. ~''''''<''
My commission expires: ;/~lS>: '" ":';:::;~:"
~ ~. ; , '. :.~~> :
O ~ '. ...'. .....~>:.- .
..~ - ""-7'0'
Notary Public '............,.~.../:. .,
f*Xary Putltio, FuIon. CounIr. GIafgIa '. .' ...." "
[Notarial Seal) _~ v' . ...___DeoembIr"~' .. -, ;.
42
RI7B\7747\CIRCUIT\OPER-AGT.N28
ORB 9100 P9 1841
EXHIBITS A, A-I AND A-2
Site Plan
43
RI7B\7747\CIRCUIT\OP&R-AGT.N28
ORB 9100 P9 1842
EXHIBIT B
Legal Description of Retail Parcel
A PORTION OF TRACTS 31, 32 AND 33 OF THE SUBDIVISION OF SECTION
19, TOWNSHIP 45 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA
ACCORDING TO THE PLAT THEREOF AS RECORDED AT PLAT BOOK 7, PAGE 19
OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE SOUTHEAST CORNER OF SAID SECTION 19i THENCE NORTH
00059'3911 WEST, ALONG THE EAST LINE OF SAID SECTION 19, 1262.20
FEET TO A LINE 40.00 FEET NORTH OF AND PARALLEL WITH THE
CENTERLINE OF OLD BOYNTON ROAD; THENCE NORTH 89046'34" WEST,
ALONG SAID PARALLEL LINE 60.01 FEET TO THE POINT OF BEGINNING;
THENCE CONTINUING NORTH 89046'34" WEST, ALONG SAID PARALLEL LINE
822.51 FEET; THENCE NORTH 44046'34" WEST, 14.45 FEET; THENCE
NORTH 00059'3911 WEST, 102.20 FEET; THENCE NORTH 16046'44" WEST,
199.61 FEET; THENCE NORTH 00059'3911 WEST, 258.27 FEET; THENCE
NORTH 43032'54" EAST', 57.02 FEET; THENCE NORTH 88005'26" EAST,
431.68 FEET; THENCE SOUTH 00059'39" EAST, 188.00 FEETi THENCE
SOUTH 66050'5911 EAST, 114.56 FEET; THENCE NORTH 88005'26" EAST,
310.50 FEET TO A LINE 60.00 FEET WEST OF AND PARALLEL WITH THE
EAST LINE OF SAID SECTION 19; THENCE SOUTH 00059'3911 EAST, ALONG
SAID PARALLEL LINE AND ALONG THE WEST RIGHT-OF-WAY LINE OF
CONGRESS AVENUE, A DISTANCE OF 398.10 FEET TO THE POINT OF
BEGINNING.
EXCEPTING THEREFROM
A PORTION OF THE SUBDIVISION OF SECTION 19 TOWNSHIP 45 SOUTH,
RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA, ACCORDING TO THE PLAT
THEREOF RECORDED IN PLAT BOOK 7, PAGE 19 OF THE PUBLIC RECORDS OF
PALM BEACH COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
COMMENCE AT THE SOUTHEAST CORNER OF SAID SECTION 19: THENCE
NORTH 00059'3911 WEST, ALONG THE EAST LINE OF SAID SECTION 19,
1262.20 FEET TO A LINE 40.00 FEET NORTH OF AND PARALLEL WITH THE
CENTERLINE OF OLD BOYNTON ROAD; THENCE NORTH 89046'34" WEST,
ALONG SAID PARALLEL LINE 60.01 FEET; THENCE NORTH 00059'3911 WEST,
ALONG A LINE 60.00 FEET WEST OF AND PARALLEL WITH THE EAST LINE
OF SAID SECTION 19, SAID LINE ALSO BEING THE WEST RIGHT-OF-WAY
LINE OF CONGRESS AVENUE, A DISTANCE OF 199.85 FEET TO THE POINT
OF BEGINNING; THENCE SOUTH 89000'21" WEST, 302.46 FEET; THENCE
NORTH 00059'3911 WEST, 193.42 FEET; THENCE NORTH 88005'26" EAST,
302.50 FEET; THENCE SOUTH 00059'3911 EAST, ALONG SAID LINE 60.00
FEET WEST OF AND PARALLEL WITH THE EAST LINE OF SECTION 19, A
DISTANCE OF 198.25 FEET TO THE POINT OF BEGINNING.
44
RI7B\7747\CIRCUIT\OPER-AGT.013
ORB -1100 P9 1843
ALSO EXCEPTING THEREFROM
A PORTION OF THE SUBDIVISION OF SECTION 19, TOWNSHIP 45 SOUTH,
RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA, ACCORDING TO THE PLAT
THEREOF RECORDED IN PLAT BOOK 7, PAGE 19 OF THE PUBLIC RECORDS OF
PALM BEACH COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
COMMENCE AT THE SOUTHEAST CORNER OF SAID SECTION 19; THENCE NORTH
00~59'39" WEST, ALONG THE EAST LINE OF SAID SECTION 19, 1262.20
FEET TO A LINE 40.00 FEET NORTH OF AND PARALLEL WITH THE
CENTERLINE OF OLD BOYNTON ROAD; THENCE NORTH 89046'34" WEST,
ALONG SAID PARALLEL LINE 60.01 FEET TO THE POINT OF BEGINNING;
THENCE CONTINUE NORTH 89046'3411 WEST, ALONG SAID PARALLEL LINE, A
DISTANCE OF 302.53 FEET; THENCE NORTH 00059'39" WEST, A DISTANCE
OF 193.42 FEET; THENCE NORTH 89000'21" EAST, A DISTANCE OF 302.46
FEET; THENCE SOUTH 00059'39" EAST, ALONG A LINE 60.00 FEET WEST
OF AND PARALLEL WITH SAID EAST LINE OF SECTION 19 AND ALONG THE
WEST RIGHT-OF-WAY LINE OF CONGRESS AVENUE, A DISTANCE OF 199.85
FEET TO THE POINT OF BEGINNING.
45
RI7B\7747\CIRCUIT\OPER-AGT.D1J
'''OB
IJJ\
1100 P9 1844
EXHIBIT C
Legal Description of circuit City Parcel
A portion of the Subdivision of Section 191 Township 45 South,
Range 43 Eastl Palm Beach County, Floridal according to the plat
thereof as recorded in Plat Book 7, Page 19 of the Public Records
of Palm Beach County 1 Florida, more particularly described as
follows:
Commencing at the southeast corner of said Section 19; thence
North 00059'39" Westl along the East boundary of said Section 19,
a distance of 1262.20 feet to a point 40.00 feet north of and
parallel with the centerline of Old Boynton Road; thence North
89046'34" West, along said parallel linel 681.36 feet; thence
North 00059/39" Westl 75.77 feet to the POINT OF BEGINNING;
thence South 89000/21" West 176.33 feet; thence North 00059'39"
West 174.92 feet; thence South 89000'21" West, 38.68 feet; thence
North 14024'30" West, 29.83 feet; thence North 73058'54"East,
47.21 feet; thence North 00059'39" West, 17.38 feet; thence North
89000'21" Eastl 176.33 feet; thence South 00059'39" East, 233.56
feet to the POINT OF BEGINNING.
46
RI7B\7747\CIRCUIT\OPER-AGT.D13
ORB -J 100 P9 1 845
EXHIBIT D
Legal Description of Borders Parcel
A portion of the Subdivision of Section 19, Township 45 South,
Range 43 East, Palm Beach County, Florida, according to the plat
thereof as recorded in Plat Book 7, Page 19 of the Public Records
of'.Palm Beach County, Florida, more particularly described as
follows:
COMMENCING at the Southeast corner of said Section 19; thence
NOoo59'39"W, along the East boundary of said Section 19, a
distance of 1262.20 feet to a point on a line 40.00 feet north of
and parallel with the centerline of Old Boynton Road; thence
N89046'34"W, along said parallel line, 681.36 feet; thence
NOoo59'39"W, 309.33 feet to the POINT OF BEGINNING; thence
S89000'21"W, 176.00 feet; thence NOoo59'39"W, 21.00 feet; thence
N79000'21"E, 31.48 feet; thenc~ N00059'39"W, 225.77 feet; thence
N89000'21"E, 145.00 feet; thence SOoo59'39"E, 252.23 feet to the
POINT OF BEGINNING.
47
RI7B\7747\CIRCUIT\OPER-AGT.013
ORB 9100 P9 1846
EXHIBIT E
Legal Description of Restaurant Parcels
A PORTION OF THE SUBDIVISION OF SECTION 19, TOWNSHIP 45 SOUTH,
RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA, ACCORDING TO THE PLAT
THEREOF RECORDED IN PLAT BOOK 7, PAGE 19 OF THE PUBLIC RECORDS OF
PALM BEACH COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
COMMENCE AT THE SOUTHEAST CORNER OF SAID SECTION 19: THENCE
NORTH 00059'39" WEST, ALONG THE EAST LINE OF SAID SECTION 19,
1262.20 FEET TO A LINE 40.00 FEET NORTH OF AND PARALLEL WITH THE
CENTERLINE OF OLD BOYNTON ROAD; THENCE NORTH 89046'34" WEST,
ALONG SAID PARALLEL LINE 60.01 FEET; THENCE NORTH 00059'39" WEST,
ALONG A LINE 60.00 FEET WEST OF AND PARALLEL WITH THE EAST LINE
OF SAID SECTION 19, SAID LINE ALSO BEING THE WEST RIGHT-OF-WAY
LINE OF CONGRESS AVENUE, A DISTANCE OF 199.85 FEET TO THE POINT
OF BEGINNING: THENCE SOUTH 89000'21" WEST, 302.46 FEET; THENCE
NORTH 00059'39" WEST, 193.42 FEET; THENCE NORTH 88005'26" EAST,
302.50 FEET; THENCE SOUTH 00059'39" EAST, ALONG SAID LINE 60.00
FEET WEST OF AND PARALLEL WITH THE EAST LINE OF SECTION 19, A
DISTANCE OF 198.25 FEET TO THE POINT OF BEGINNING.
TOGETHER WITH A PORTION OF THE SUBDIVISION OF SECTION 19,
TOWNSHIP 45 SOUTH, RANGE 43 EAST PALM BEACH COUNTY, FLORIDA,
ACCORDING TO THE PLAT THEREOF RECORDED IN PLAT BOOK 7, PAGE 19 OF
THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA. BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE SOUTHEAST CORNER OF SAID SECTION 19: THENCE
NORTH 00059'39" WEST, ALONG THE EAST LINE OF SAID SECTION 19,
1262.20 FEET TO A LINE 40.00 FEET NORTH OF AND PARALLEL WITH THE
CENTERLINE OF OLD BOYNTON ROAD; THENCE NORTH 89046'34" WEST,
ALONG SAID PARALLEL LINE 60.01 FEET TO THE POINT OF BEGINNINGi
THENCE CONTINUE NORTH 89046'34" WEST, ALONG SAID PARALLEL LINE, A
DISTANCE OF 302.53 FEETi THENCE NORTH 00059'39" WEST, A DISTANCE
OF 193.42 FEETi THENCE NORTH 89000'21" EAST, A DISTANCE OF 302.46
FEETi THENCE SOUTH 00059'39" EAST, ALONG A LINE 60.00 FEET WEST
OF AND PARALLEL WITH SAID EAST LINE OF SECTION 19 AND ALONG THE
WEST RIGHT-OF-WAY LINE OF CONGRESS AVENUE, A DISTANCE OF 199.85
FEET TO THE POINT OF BEGINNING. SAID LANDS SITUATE, LYING AND
BEING IN PALM BEACH COUNTY, FLORIDA, CONTAINING 118,708 SQUARE
FEET (2.73 ACRES), MORE OR LESS.
48
RIIB\II~7\CIRCUIT\OPER-AGT.D13
ORB -'100 P9 1847
EXHIBIT F
Prohibited Uses in Shopping Center
(A) a bar, pub, nightclub, music hall or disco in
which less than fifty percent (50%) of its space or
revenue is devoted to and derived from food service;
provided however, that the foregoing shall not apply to
the two restaurants constructed on the Restaurant
Parcels;
(B) a bowling alley;
(C) a billiard or bingo parlor;
(D) a flea market;
(E) a massage parlor;
(F) a funeral home;
(G) a facility for the sale of paraphernalia for
use with illicit drugs;
(H) a facility for the sale or display of
pornographic material (as determined by community
standards for the area in which the Shopping Center is
located); provided however, that the foregoing shall
not apply to Borders to the extent Borders may sell
such material as a part of its customary merchandising
plan for a majority of its stores;
(I) an off-track betting parlor;
(J) a carnival, amusement park or circus;
(K) a gas station, car wash or auto repair or body
shop (the parties specifically acknowledging that Tenant's
car stereo installation facility is not included in this
prohibition (K));
(L) a facility for the sale of new or used motor
vehicles, trailers or mobile homes;
(M) a facility for any use which is illegal or
dangerous, constitutes a nuisance or is inconsistent with
an integrated, community-oriented retail and commercial
shopping center;
(N) a skating rink;
49
RI7B\7747\CIRCUIT\OPER-AGT.D13
- _._-~._....._._-_._-~---'- ..--.-.. -_.~~--- ,~._------_._...--
ORB "100 P9 1848
(0) an arcade, pinball or computer game room (provided
that retail (including restaurant) facilities in the
Shoppi?g Center may operate no more than four (4) such
electronic games incidental to their primary operations) ;
(P) service-oriented offices (such as, by way of
example, medical or employment offices, travel agencies or
real estate agencies) or other nonretail uses except for
offices and storage facilities incidental to a primary
retail operation;
(Q) a banquet hall, auditorium or other place of
public assembly; provided however, that the foregoing
shall not apply to Borders to the extent Borders permits
such uses of its store as a part of its customary
operation of a majority of its stores;
(R) a training or educational facility (including,
without limitation, a beauty school, barber college,
reading room, school or other facility catering primarily
to students or trainees rather than customers); provided
however, that the foregoing shall not apply to Borders to
the extent Borders permits such uses of its store as a
part of its customary operation of a majority of its
stores;
(5) a theater of any kind;
(T) a gymnasium, sport or health club or spa; or
(U) dry cleaning establishments except those
providing an outlet for pick-up and delivery only.
In addition to the foregoing, except for Borders' "coffee bar"
and except for the Restaurant Parcels, no Owner shall operate, lease
or permit to be operated or leased any restaurant within any
building on the Retail Parcel which abuts "Tenant's Preferred Area"
(as shown on the Site Plan) or which is located within three hundred
(300) feet of the front entrance to the building to be located on
the Circuit City Parcel. In addition, no auction, fire or going-
out-of-business sale shall be conducted in the Shopping Center.
50
RI7B\7747\CIRCUIT\OPER-AGT.013
ORB 9100 P9 1849
EXHIBIT F-1
Prohibited Uses In Shopping Center
Flea market, swap shop or "outlet store" selling merchandise that
is used, damaged or discontinued, bowling alley, arcade, game
room, skating rinkl gymnasium, billiard room, massage parlor,
adult book store, adult video store, bar, tavern, pub, ballroom,
dance hall, discotheque, beauty shop, barber college, theater,
health club (other than aerobics studios and weight clinics less
than 5,000 square feet), offices (other than a full service bank
office, savings and loan association office or credit union),
place of instruction, reading room or any operation catering
primarily to students or trainees rather than to customers,
funeral parlorsl facility for the sale of paraphernalia for use
with illicit drugs I off-track betting parlor, carnival, amusement
park or circus, new or used car dealership, gas station, auto
repair shop, car wash, nightclub, auditorium, meeting hall, or
other place of public assembly. The terms "bar, tavern and pub"
shall not apply to the restaurants operated on the Restaurant
Parcels so long as they are operated as restaurants.
51
RI1S\1141\CIRCUIT\OPER-AGT.D13
ORB 9100 P9 1838
STATE OF /t1\ l."", \ ~A-~
CITY/COUNTY OF ~t(~ ~~
was acknowl ed before me this
, 1995, by \t..H
of AGREE REALTY C RPORATIO , a
corporation, on behalf of the corporation as
general partner on behalf of Agree Limited artnership, a
,Oe.),F.l:ware limited partnership. He is perso al known to me.
, ..,,;~, :~ "'''Iii:.:
"r:'~-;':;~'~:";;':"" MY::, commission expires:
I. :..;~~....... ~ '....'j ...."~" _ 11 "'\ ;~1.--"1
. ...;. -,) "','; t'f'-itH.'. ~,(:;-,';:'~~':'I.J
." -".
: ::" C. .'~ -/NohitiJ fi#~. C..::~~d C~crt.':I, ~
; ';:'. 01 \ ~ ~~ r;"...,(c:.:,> ~ 14, last
\. '~"':~~~:".~.)f..~'~'::~~~:;~~~':i( ..~, . Notary Public
. .< "J'~1>f.~*,j:-~ft' Seal]
.1 .~
~ .... ....,;.1
FRP and its Tenants, Hops of Boynton Beach, Inc. and Longhorn
Steaks, Inc. join herein and consent hereto.
FLORIDA RETAIL PROPERTIES, INC.
~r~e~~l~~.)
Its: ~
fOLrn;)~-IUI-l//-Wif- u
40
RI7B\7747\CIRCUIT\OPER-AGT.N28
ORB -,100 P9 1850
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
1.1 Building Area . . . 3
1.2 Common Access Areas 3
1.3 Common Area . 3
1.4 Defaultinq Owner 3
1.5 Floor Area . . . 4
1.6 Major Tenant 4
1.7 Non-Defaultinq Owner 4
1.8 Owner. . . . 4
1.9 parcel{s) 4
1.10 Permittee(s) . . . 4
1.11 Person . . . 5
1.12 Proportionate Share . . . 5
1.13 Recordinq Office 5
1.14 Tenant . . . . . 5
1.15 Tenant's Preferred Area 5
2.1
2.2
2.3
2.4
3.1
3.2
3.3
3.4
4.1
4.2
4.3
4.4
5.1
5.2
5.3
5.4
ARTICLE II
EASEMENTS
Inqress and Egress
Utilities.
Restriction .
Subdivision.
6
7
9
10
ARTICLE III
CONSTRUCTION
General Reauirements
Common Area . . . . .
Buildinq Improvement
Temporary Encroachments
10
12
13
15
ARTICLE IV
MAINTENANCE AND REPAIR
Utilities . . . . . .
Common Area . . . . .
Buildinq Improvements
Pylon Siqn . . .
16
16
19
19
ARTICLE V
OPERATION OF THE SHOPPING CENTER
Uses
Lightinq
Signs . .
Insurance
21
24
24
25
52
RI7B\7747\CIRCUIT\OPER-AGT.DIJ
5.5
5.6
5.7
6.1
6.2
6.3
6.4
6.5
'6.6
6.7
6.8
6.9
6.10
6.11
6.12
6.13
6.14
6.15
6.16
6.17
7.1
7.2
7.3
7.4
7.5
7.6
8.1
ORB 100 P'3 1 851
Taxes and Assessments .
Liens .
Miscellaneous Obliqations
27
29
29
ARTICLE VI
MISCELLANEOUS
Default 30
Estoppel Certificate 31
Notices . 31
Bindinq Effect 34
Singular and Plural 34
Counterparts and Siqnatures Paqes 34
Neqation of Partnership 35
Not a Public Dedication 35
Severability 35
Amendments 35
Captions and Capitalized Terms 35
Minimization of Damaqes . 36
OEA Shall Continue Notwithstandinq Breach. 36
Time 36
Non-Waiver 36
Perpetual Easement 36
Mortqaqes on Shoppinq Center 37
ARTICLE VII
PERFORMANCE BY TENANT
General .
Oualification of Tenant
Desiqnation of FRP
Lease provisions
Termination of Lonqhorn REOA
Consents by Borders and Circuit City
37
38
38
38
38
38
ARTICLE VIII
TERM
Term of this OEA
39
53
RI7B\7747\CIRCUIT\OPER-AGT.D13
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TRACKlNG LOG - SI'l'E PLAN REVIEW SUBHI'l''l'AL
. SBMP 96-001
FILE NU.:
PRUJl::C'l' '!'!'l'LE:
l.H::l::iCRU"'l'ION:
\i''iP~ :
DArl'E REC I D:
BOYNTON FESTIVE CENTER
Subdivision Master Plan
NEW SITE PLAN
8/23/96 AMOUNT:
MAJOR SITE PLAN MODIFICATION
~l,UUU.OO kECEIPT NO.: 02323
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
TWELVE (12) SETS SUBMITTED:
COLORED ELEVA'I'IONS REC I D: _____ _
Th
. ,
11
MINUTES - REGULAR CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA
MAY 17. 1994
Description: PARKING LOT VARIANCE: Request for relief from
Article X - Parking Lots, Section 5-142(h)(5) -
Distance from a right-of-way line to the inter-
section of an interior access aisle.
.
Motion
Vice Mayor Matson moved to approve the parking lot variance request for relief
from Article X, Parking lots, Section 5-142(h)(5), distance from a right-of way
line to the intersection of an interior access aisle for McMillen Development,
Inc., Great Western Bank. Commissioner Katz seconded the motion, which carried
5-0.
Boynton Festive Center
McMillen Development, Inc.
Great Western Bank
Northwest corner of Congress Avenue and Old
Boynton Road
LANDSCAPE CODE: Request for relief from Article
II - landscape Code Section 7.5-35(d) & (e) -
Interior lot line and right-of-way landscaping.
Commissioner Katz advised that he attended the Planning and Development Board
meeting. At that meeting, one of the Board members pointed out that there are
seventy-four extra parking spaces and he desired additional landscape pods be
installed. (This was discussed further under Item VIII.B.l).
2.
Project Name:
Agent:
OWner:
location:
Description:
-
In response to Commissioner Katz, Commissioner Aguila stated that if there were
ten islands as opposed to seven, the trees may not grow well because they would
be spaced too close to each other.
Motion
Commissioner Aguila moved the approval of the landscape relief from Article II,
Landscape Code, Section 7.5-35(d) and (e). Vice Mayor Matson seconded the
motion, which carried 5-0.
B. Non-Consent Agenda - Not Unanimously Approved by Planning &
oevtloJlllnt
Boynton Festive Center
McMillen Development, Inc.
Great Western Bank
Northwest corner of Congress Avenue and Old
Boynton Road
SITE PLAN: Request for site plan approval to
construct a 104,018 square foot retail center with
two (2) leased outparcels.
Tambri Heyden, Planning and Zoning Director, stated that this was approved for a
shopping center. It comprises a main building and two leased outbuildings
1. Project Name:
Agent:
OWner:
location:
Description:
,
- 11 -
...
TO:
THRU:
FROM:
SUBJ:
DATE:
~
PUBLIC WORKS DEPARTMENT
MEMORANDUM #96-220
Tambri J. Heyden, AICP
Robert Eichorst, Public Warks Director ~
Larry Quinn, Sanitation Superintendent
Master Plan - Boynton Festive Center
October 3, 1996
The Public Works Department has no problems with the above site.
arry Quinn
Sanitation Superintendent
LQ/ cr
\l9~
.'.
m
rn~@~ow~~
OCT
8 1996
CITY OF BOYNTON BEACH, FLORIDA
INTER-OFFICE MEMORANDUM
TO:
TAMBRI HEYDEN
PLANNING & ZONING
DIRECTOR
DATE:
October 7, 1996
F T G.
ZONING DEpt
SUBJECT: BOYNTON FESTIVE CENTER
SUBDIVISION MASTER PLAN - 2nd REVIEW
FROM:
SGT. MARLON HARRI~"A.$' REFERENCES:
POLICE DEP AR TMENT,T/'l'-
ENCLOSURES:
0268
I have reviewed the above plans and have no comments.
TO: Tambri Heyden.
Planning & Zoning
FROM: John A. Guidry,
Director of Utilities
Date: October 7, 1996
MEMORANDUM
Utilities # 96-319
SUBJECT: Boynton Festive Center,
Subdivision Master Plan, Second Review
o ~1 rn
.-. - 8 "r.
WI' ,--,-.,
NNING AND
ZONING DEPT.
Staff has reviewed the above referenced project and offer the following comments:
Utilities has no comment.
It is our recommendation that the plan proceed through the review process.
If you have any questions regarding this subject, please contact Skip Milor at 375-6407 or
Peter Mazzella at 375-6404.
sm/fest2
xc: Clyde "Skip" Milor
Peter Mazzella ,t..-
File
00
I .
w
RECREATION & PARK DEPARTMENT
MEMORANDUM NO. 96-472
uU II-I.
TO:
Tambri Heyden, Planning & Zoning Director
f-~~
FROM:
Kevin J. Hallahan, F orester/ Environmentalist
DATE: October 9, 1996
SUBJECT: Boynton Festive Center- Master Plan
The applicant has submitted the Lake Management plan and it will be reviewed and approved prior
to issuing the building permits. The project should continue in the normal review process.
kjh
FIRE PREVENTION MEMORANDUM NO. 96-305
TO:
Tambri Heyden, Director
Planning & Zoning Department
William D. Cavanaugh, FPO I .//1 tf\ 1/714 ~ A
Fire Department /ttK{J Ui (;~ '--
October 11, 1996
FROM:
DATE:
RE:
Boynton Festive Center
Subdivision of site
We have not objections to this request.
cc: Deputy Chief Ness
FPO II Campbell
File
ill ~@~~W~ rn
OCT I I m6
PLANNING AND
ZONING DEPT.
'0-1'-19964:45PM
FPO"1 LAKE WORTH DRA I NAGE 561 495 9694
P 1
~'1I11
00
OCT ~ 4"': m rn~
I. WhItWunh !l(
~~
PlANNING AND William G. ~
IONINGOEPT. ~~
AIlo,n..,-
Perry & Sc/lone. f' A
LAKE WORTH DRAINAGE DISTRICT
~~
October 15.
13081 MILITARY TRAIL
DELRA Y BEAC.... FLORICA 33484
Tambri 1. Heyden, AlCP
Director Planning and Zoning
City of Boynton Beach
P.O. Box 310
Boynton Beach. FL 33425-0310
Dear Ms. Heyden;
Subjeet:
Te<:hnieal Review Committee AleDda
The Lake Worth Drainage District offers the following comments regarding the item(s)
on the October 15, 1996 meeting agenda:
1. Citrus Olen, pun - No objection.
2. Shoppcs of Woolbright. POD - No objection. However, a drainage review will be
required prior to construction.
~ 3. Boynton Festive Center - No objection.
4. ITV Tower - No objection.
S. East Ridge (3rd Review) - Not in L WOO service area.
6. Woolbright Place Plat 2 - Preliminatj Review. Would like copy ot. plat prior to
conunenting.
As always, we thank you for being given [he opportLmity to comment.
Sincerely.
LAKE WORTH DRAINAGE DISTRICT
~~
Chief Inspector
SJW/mfb
c: Ronald L.Crone. P.E,. P.L.S.. Assistant Manager, L WDD
Patrick A. Martin. P.E., District Engineer. L WOD
Oeny BMllh & Bclga RaIln ~ . Bllyntln e.ct'l & WM! Palin ElMd\ 737.3ll3S . FAX l.o7) 4fi-V6i4
RECREATION & PARK MEMORANDUM #96-484
ill rn @ ~ U_ \' ~
OCT I
PLANNING AND
ONING DEPT.
TO:
Tambri Heyden, Planning & Zoning Director
John Wildner, Parks Superintendent itJ
Boynton Festive Center r1
FROM:
RE:
DATE:
October 17, 1996
The Recreation & Park Division has reviewed the plans for Boynton Festive Center. There are no
recreation related comments. The project may continue through the normal review process.
JW:ad
DEPARTMENT OF DEVELOPMENT
BUILDING DIVISION
MEMORANDUM NO. 96-432
~'; ~8U~-.m
;1:,>,,)
j
October 17, 1996
TO:
Tambri Heyden
Planning & Zoning Director
FROM:
Al Newbold
Deputy Director of Development
RE:
TRC COMMENTS
SUBDIVISION MASTER PLAN - BOYNTON FESTIVE CENTER
In review of this submittal it appears that in the process of redefining this property as proposed,
some of the existing ground signage as built may be nonconforming to our Sign Code pertaining
to allowed number of signs and/or issues of off premise signage.
,~
AIN od
AO:bg
XC: William V. Hukill, P.E.
Anthony Occhiuzzo
C:\ WPWIN60\ WPDOCS\TRC\FESTIVE.WPD
FIRE PREVENTION MEMORANDUM NO. 96-305
TO:
Tambri Heyden, Director
Planning & Zoning Department
William D. Cavanaugh, FPO I ,1// If' 111;4. ~ A
FIfe Department I'?U<{J U (;~ '---
October 11, 1996
FROM:
DATE:
RE:
Boynton Festive Center
Subdivision of site
We have not objections to this request.
cc: Deputy Chief Ness
FPO II Campbell
File
i~
I fD) rn @ rn 0 \VJ rn rnl
lJl) OCT 2 5 S95 I.E)
PLANNING AND
ZONING DEn
75 - 3076
HQV-01-1995 12:s1pm 95-353103
ORB 8983 P9 1283
.. . .....11111.11. .. III
CROSS EASEMENT AGREEMENT
TMIS CROSS EASEMENT AGREEMENT ("Agreement") is made and entered into
as of the ~ 30 day of OcltPl:"- , 1995, by and between GREAT WESTERN BANK,
a Federal Savings Bank, having an address at 9200 Oakdale Avenue, 4th Floor,
Chatsw,:,rth, Califc"nia 91311, hereinafter referred to as "First Party", and FLORIDA
RETAIL PROPEtiTIES, INC., a Florida corporation, whose address is Post Office Box
772530, Coral Springs, Florida 33077-2530, hereinafter referred to as "Second
Party" .
R E C I TAL S:
A. First Party is the owner in fee simple of that certain parcel of real property
located in Palm Beach County, Florida, hereinafter referred to as "First Parcel", which
real property is legally described as:
A portion of Tracts 31, 32 and 33 of the subdivision of
Section 19, Township 45 South, Range 43 East, Palm
Beach County, Florida, according to the Plat thereof
recorded in Plat Book 7, Page 19 of the Public Records of
Palm Beach County, Florida, being more particularly
described as follows:
Commence at the Southeast corner of said Section 19;
thence North 00059'39" West, along the East line of said
Section 19, 1262.20 feet to a line 40.00 feet North of and
parallel with the centerline of Old Boynton Road: thence
North 89046'34" West, along said parallel line 60.01 feet;
thence North 00059'39" West, along a line 60.00 feet
West of and parallel with the East line of said Section 19,
398.10 feet to the Point of Beginning; thence continue
along said parallel line North 00059'39" West, 236.53 feet;
thence South 88005'26" West, 415.05 feet; thence South
00059'39" East, 188.00 feet; thence South 66050'59" _' :r,-:.-;-'-:=-::-----
East, 114.56 feet; thence North 88005'26" East, 310.502~,)-;.~:...-,.',(.t;.~'\.
feet to the Point of Beginning. !-:Y~',,;.:!.':.(...:.: ~t':--><~~\
~~=.~; I f"i .~ :,,_;Lf)'l ~ :'
FloridaRetailProperties,~e. \ ~ :::j. ~..; _. "
V ;' '1 .
DOUGLAS A. MCMILLEN ,;:/ .1';' ','. -/-....~
President / I ' I
f$/ : 10
P.O. BolC 772530' Coral Springs' Florida 33077-2530
3051345-7000 . FAX 305/345.7003
ORB Sc,.d3 pg 1284
B. Second Party is the owner in fee simple of that certain parcel of real
property located in Palm Beach County, Florida, hereinafter referred to as "Second
Parcel", which real property is legally described as:
A portion of Tracts 31, 32 and 33 of the subdivision of
Section 19, Township 45 South, Range 43 East, Palm
Beach County, Florida, according to the Plat thereof
recorded in Plat Book 7, Page 19 of the Public Records of
Palm Beach County, Florida, being more particularly
Jescribed as follows:
Commence at the Southeast corner of said Section 19;
thence North 00059'39" West, along the East line of said
Section 19, 1262.20 feet to a line 40.00 feet North of and
parallel with the centerline of Old Boynton Road; thence
North 89046'34" West, along said parallel line 60.01 feet
to the Point of Beginning; thence continue North 89046' 34"
West along said parallel line, 822.51 feet; thence North
44046'34" West, 14.45 feet; thence North 00059'39"
West, 102.20 feet; thence North 16046'44.2" West,
199.61 feet; thence North 00059'39" West, 258.27 feet;
thence North 43032'54" East, 57.02 feet; thence North
88005'26" East, 431.68 feet; thence South 00059'39"
East, 188.00 feet; thence South 66050'59" East, 114.56
feet; thence North 88005'26" East, 310.50 feet to a line
60.00 feet West of and parallel with the East line of said
Section 19; thence South 00059'39" East, along said
parallel line 398.10 feet to the Point of Beginning.
C. The First Parcel and Second Parcel are contiguous and are reflected on
Exhibit A hereto; and
D. Certain improvements including an office building and related parking and
other faciiities are presently located on First Parcel; and
E. Second Party or its successors will erect upon Second Parcel certain
improvements and related parking and other facilities; and
F. The parties hereto desire to create certain easements as herein provided.
.
NOW, THEREFORE, in consideration ofthe mutual agreements hereir'!:co-~tai~_~Ct;~
the First Party and Second Party hereby covenant and agree as follows: . /;:'\.
. ..,./ ...
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.~~.._~::=-;;~
2.
ORB 89....3 P9 1285
I. PROHIBITION OF IMPROVEMENTS ON ACCESS AREA.
First Party shall not build or maintain, or permit to be built or maintained, any
structure on the land delineated on Exhibit A hereto as the "No Build Area" of First
Parcel. Second Party shall not build or maintain, or permit to be built or maintained,
any structure on the land delineated on Exhibit A hereto as the "No Build Area" of
Second Parcel. These restrictions shall not apply to underground utilities, signs
relating to business conducted on First Parcel or on Second Parcel or traffic or
directional signs.
The owner of First Parcel shall have the right at any time and from time to time
to relocate the No-Build Area of the First Parcel provided that there shall always be a
reasonable access for pedestrian and vehicular traffic from the Second Parcel through
the First Parcel to Congress Avenue nrl the East and to the Boynton Beach Mall
Access Road on the North.
The owner of the Second Parcel shall have the right at any time and from time
to time to relocate the No-Build Area on the Second Parcel provided that there shall
always be a reasonable access for pedestrian and vehicular traffic from the First Parcel
through the Second Parcel to the Mall Access Road to the West and to Old Boynton
Road to the South.
An owner desiring to relocate a No-Build Area must notify the other owner of
its plans for relocation in writing no later than thirty days prior to any such relocation.
Such notice shall be accompanied by a drawing of the proposed relocated No-Build
Area. Upon any such relocation, the owner making the relocation shall file an
amendment to this Agreement in the public records of Palm Beach County, Florida,
:Jhich correctly reflects the No-Build Area as relocated.
II. PARKING AND ACCESS EASEMENT TO FIRST PARTY.
The owners and tenants of the First Parcel and their business invitees, licensees
and employees, shall have the right to use, free of charge, but in common with the
owners and tenants of the Second Parcel and thE::lir business invitees, licensees, and
employees, the following:
(a) the No Build Area of the Second Parcel for the
purpose of ingress and egress between First Parcel and
Second Parcel and access for pedestrian and vehicular
traffic from the First Parcel through the Second Parcel to
the Mall Access Road to the West and to Old Boynton Road .,':~.2--.~'~~~>-..
to the South; and . '::" '/~~. .. . ~:-- ":.:,~
3.
/
ORB 89u3 Ps 1286
(b) such portion of the Second Parcel as may from time
to time be designated for customer parking by the owner or
lessee(s) of the Second Parcel. The owner or lessee(s) of
the Second Parcel may at any time and from time to time
change the parking spaces and portions of the Second
Parcel designated for customer parking so long as the total
number of parking spaces located on the Second Parcel at
all times meets the parking requirements for the
improvements located on the Second Parcel as determined
l.y the building and zoning (or similar) code of the applicable
governmental body having jurisdiction over the Second
Parcel.
The owner of the Second Parcel shali have the right to terminate the cross-
parking rights granted herein pursuant to Sections Il(b) and III(b) hereof if the owner
of the Second Parcel determines in its sole discretion that parking and/or traffic
problems exist which interfere with the use and enjoyment of the Second Parcel by
the owner and tenants of the Second Parcel and their business invitees, licensees and
employees as a result of the cross-parking rights provided herein. If the owner of the
Second Parcel makes such a determination, and the owner of the First Parcel fails to
resolve the problem within a reasonable period after written notice, the owner of the
Second Parcel may file a Declaration of Termination of Cross Parking Rights in the
Public Records of Palm Beach County, which specifies that the owner of the Second
Parcel has elected to terminate the cross-parking provisions contained in Sections Il(b)
and IIl(b) hereof. Upon recording such Declaration of Termination of Cross Parking
Rights the provisions of Sections Il(b) and IIl(b) hereof shall be void and of no further
force and effect. The ingress and egress provisions of Sections Il(a) and IIl(a) hereof
shall, however, remain in full force and effect. For purposes of this paragraph a
reasonable period shall be deemed to be thirty (30) days unless a resolution of the
problem reasonably requires a period in excess of thirty (30) days and the owner is
pursuing the resolution of the problem with due diligence.
III. PARKING AND ACCESS EASEMENT TO SECOND PARTY.
The owners and tenants of the Second Parcel and their business invitees,
licensees and employees, shall have the right to use, free of charge, but in common
with the owners and tenants of the First Parcel and their business invitees, licensees
and employees, the following:
(a) the No Build Area of the First Parcel for the purpose
of ingress and egress between the First Parcel and the
Second Parcel and access for pedestrian and vehicular"
traffic from the Second Parcel through the First Parcel to
4.
~/~ .
,
....'.
,~ .
"
ORB 89~J P9 1287
Congress Avenue on the East and to Boynton Beach Mall
Access Road on the North; and
(b) such portion of the First Parcel as may from time to
time be designated for customer parking by the owner of
the First Parcel. The owner of the First Parcel may at any
time and from time to time change the parking spaces and
portions of the First Parcel designated for customer parking
so long as the total number of parking spaces located on
tl,e First Parcel at all times meets the parking requirements
for the improvements located on the First Parcel as
determined by the building and zoning (or similar) code of
the applicable governmental body having jurisdiction over
the First Parcel.
In the event First Party determines in its discretion that the use of the parking
spaces located on the First Parcel by owners and tenants of the Second Parcel and
their business invitees, licensees and employees is causing parking or traffic problems
which interfere with the use and enjoyment of the First Parcel by the owner and
tenants of the First Parcel and their business invitees, licensees and employees, the
owner of the First Parcel shall give written notice (the "Notice") thereof to the owner
of the Second Parcel, which Notice shall designate fifty-seven (57) parking spaces
located on the First Parcel which are to be striped and appropriately designated as
reserved specifically for use by the owner and tenants of the First Parcel and their
business invitees, licensees, and employees. Within thirty (30) days after receipt of
the Notice, the owner of the Second Parcel shall at its sole cost and expense cause
the fifty-seven (57) designated parking spaces to be striped and appropriately
:3signated as reserved spaces, which shall be accomplished in a manner designated
; '/ the owner of the First Parcel.
The owner of the First Parcel shall have the right to terminate the cross-parking
rights granted herein pursuant to Sections Il(b) and III(b) hereof upon the occurrence
of either of the following:
(a) if the owner of the Second Parcel shall fail to comply
with its obligations contained herein to stripe and
appropriately designate the fifty-seven (57) parking spaces
designated in the Notice as and when required by the terms
set forth above; or
....
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'. .~
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(b) if the owner of the Second Parcel complies with ..(s'.-
obligations contained herein with respect to the fifty-seve.n
(57) parking spaces designated in the Notice, but the owner
of the First Parcel determines in its sole discretion at any
--:.. ~"-'
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---
5.
<, ,>.~'" ._~' ,:;'-''':~- (:::/
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ORB 89,-..3 pg 1288
time thereafter that parking andlor traffic problems exist
which interfere with the use and enjoyment of the First
Parcel by the Owner and tenants of the First Parcel and
their business invitees, licensees and employees even
though the fifty-seven (57) parking spaces have been
striped and designated as reserved spaces.
If either of the two circumstances set forth in (a) and (b) above occurs, the
owner of the t irst Parcel may file a Declaration of Termination of Cross Parking Rights
in the Public Records of Palm Beach County, which specifies that the owner of the
First Parcel has elected to terminate the cross-parking provisions contained in Section
Il(b) and III(b) hereof. Upon recording of such Declaration of Termination of Cross
Parking Rights the provisions of Sections lI(b) and III(b) hereof shall be void and of no
further force and effect. The ingress and egress provisions of Sections Il(a) and IIl(a)
hereof shall, however, remain in full force and effect. For purposes of this paragraph
a reasonable period shall be deemed to be thirty (30) days unless a resolution of the
problem reasonably requires a period in excess of thirty (30) days and the owner is
pursuing the resolution of the problem with due diligence.
In the event First Party gives Notice of the Termination of the Cross Parking
Rights granted to the owner of the Second Parcel prior to July 1, 2005, then the
owner of the First Parcel shall reimburse the Second Party for the cost incurred by
Second Party in constructing the original modifications to the Western Parking Area
of First Parcel as provided in Paragraph VI below in the amount of Thirty Thousand
and 00/100 ($30,000.00) Dollars. This amount shall be reduced by ten percent
(10%) on July 1, 1996 and on each anniversary thereafter (Le., the cost shall be
amortized on a straight line basis over ten years and only the unamortized portion is
subject to reimbursement). Such payment shall be due and payable within thirty days
from receipt of a statement from the owner of Second Parcel.
IV. MAINTENANCE OF EASEMENT AREAS AND WESTERN PARKING AREA.
Unless otherwise provided in this Agreement, the owners of the First Parcel and
Second Parcel shall maintain and keep in good repair the customer parking areas and
rights-of-way situated on their respective premises and shall keep such areas and
rights-of-way striped and clear and free of rubbish and obstructions of every nature,
and shall provide adequate drainage and lighting thereon. The No Build Area on both
premises shall meet at equal grades and no obstructions shall be erected or permitted
upon the No Build Area of either premises which will in any way interfere with ingress
or egress between First Parcel and Second Parcel in the No Build Area or any other
rights granted by this Agreement. Second Party shall at all times cooperate with First
Party to eliminate or minimize any interference with the business operations conducted
on the First Parcel created as a result of this Cross Easement Agreement (including
6.
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,/
ORB 89 .3 P9 1289
without limitation interference with parking or traffic caused by any new construction
hereafter contemplated for Second Parcel).
The portion of First Parcel designated as the Western Parking Area on the site
plan attached hereto as Exhibit A shall be maintained by the owner of such parcel;
provided, however, that so long as the owner(s) and tenants of the Second Parcel are
entitled to the use of the Western Parking Area, fifty percent (50%) of the cost of
filling and resurfacing potholes and the cost of re-striping this parking area will be
reimbl'rsed to su~h First Parcel owner by the Second Parcel owner(s) within twenty
(20) days a.:ter receipt of an invoice therefor accompanied by appropriate
documentation indicating the cost of the work performed.
V. DRAINAGE AND FLOWAGE EASEMENTS TO SECOND PARTY.
The owners and tenants of the Second Parcel shall have the right to use free
of charge and in common with the owners and tenants of the First Parcel the
following:
A. Easements for storm water drainage and flowage over and across the
Western Parking Area of First Parcel, which easements are shown and legally
described on Exhibit B attached hereto. Such easements shall be used for the purpose
of storm water flowage and installation, operation, maintenance and use of storm
drains and in connection with the repair or replacement of such storm water drainage
system. Second Party shall repair or replace concrete and asphalt paving and other
surface materials used on drives, parking areas and walkways using to the extent
reasonably possible the same type of material originally installed so that drives,
parking areas and walkways are at all times kept at a level, smooth and substantially
miform condition. Plans for such drainage system shall be submitted to the owner
J f First Parcel and shall be approved so long as owner of First Parcel reasonably
determines that such drainage system will not create any material problems on First
Parcel. No portion of First Parcel shall be used as a retention/detention area. The
owner of Second Parcel shall be solely responsible for all costs of operating and
maintaining the drainage system, shall perform any necessary maintenance at times
and in a manner so as not to interfere with the owner of First Parcel's use of its
property and shall repair all damage occasioned by the use or maintenance of the
drainage system in a manner so as not to unreasonably interfere with the owner of
First Parcel's use of its property or the existing parking areas and access roads.
B. Second Party shall install landscaping in, as well as irrigation in and to,
the landscape islands in the parking areas of First Parcel as shown on the plan
attached hereto as Exhibit A, so as to be reasonably acceptable to First Party. Second
Party shall irrigate and maintain (including replacement) such landscaping. First Party
shall, within ten (10) days of receipt of an invoice from Second Party, pay its share
7.
ORB 89'-..3 P9 1290
of the irrigation and landscape maintenance costs (which shall not include the cost of
the initial irrigation system or landscaping).
VI. RECONFIGURATION OF SECOND PARTY'S PARKING lOT.
Second Party and its successors and assigns may at its sole expense
reconfigure a portion of First Parcel's parking lot (Western Parking Area) to be
substantially as reflected on the plan attached hereto as Exhibit A.
VII. FlETAll USE LIMITATION.
The First Party agrees that the 20,000 square foot retail use limitation as
described in Exhibit C attached hereto shall be allocated in full to the Second Parcel;
provided, however, such allocation shall be effective only to the extent that it does
not cause the First Parcel or any improvements thereon or their existing use to be in
violation of any applicable governmental requirements. First ~arty further agrees that
Second Party and Second Party's successors and assigns may seek and obtain a
change in such 20,000 square foot retail use limitation restriction to 120,000 square
feet and First Party will execute such document as is reasonably required to reflect
First Party's consent of record. In the event Second Party or its successors or assigns
is successful in obtaining an additional 100,000 square feet for retail use', then First
Party shall be entitled to 7,500 square feet. It is the understanding and belief of the
parties hereto that the operation of a state or national bank or a federal savings
institution does not constitute a retail use.
VIII. TERM.
This Agreement shall commence on the date hereof and shall terminate seventy-
five (75) years after the date hereof; provided, however, that in the event that the
owner of the Second Parcel does not complete construction of building(s) located on
the Second Parcel containing at least 20,000 square feet of commercial space within
thirty-six (36) months of August 19, 1994, the owner of the First Parcel shall have the
absolute right at any time thereafter to terminate this Agreement by executing a
Declaration of Termination of Cross Easement Agreement and recording it in the Public
Records of Palm Beach County. Upon such recordation, this Agreement shall be void
and of no further force and effect.
IX. INSURANCE.
The owner of the First Parcel and the owner of the Second Parcel shall each
maintain liability insurance in amounts reasonable for the operations on their resQ~ct~~e
parcels covering liability arising from the ownership or operation of their respective
parcels at all times (but self-insurance shall be permitted for any owner )18ving a
tangible net worth in excess of $25,000,000.). The parties hereto agree that
'''-.
8.
ORB 89( ") P9 1291
$3,000,000.00 is a reasonable amount of liability insurance to be maintained by the
owner of each of First Parcel and Second Parcel.
X. ATTORNEY'S FEES.
In connection with any litigation, including appellate proceedings, arising out of
this Agreement, the prevailing party shall be entitled to recover reasonable attorney's
fees ar. j cost!=: fre'11 the non..,prevailing party.
XI. COVENANTS RUNNING WITH THE lAND.
The easements hereby granted, the restrictions and obligations of the parties
hereby imposed, and the agreements herein contained shall be easements, restrictions
and covenants running with the title to the First Parcel and the Second Parcel.
XII. MISCEllANEOUS.
A. This Agreement, together with the Exhibits attached hereto,
contain the entire agreement and understanding between the parties. There are no
oral understandings, terms or conditions and neither party has relied upon any
representation, express or implied, not contained in this Agreement or in the Exhibits
attached thereto. All prior understandings, terms or conditions are deemed to be
merged in this Agreement.
B. This Agreement may not be amended or modified, except by
agreement in writing, signed by the parties hereto or their respective successors in
interest. Any amendment or modification executed by the owners of First Parcel and
Second Parcel shall be effective without the necessity of joinder or consent of any
other parties.
C. If any term or provIsion of this Agreement or the application
thereof to any purpose or circumstance shall to any extent be invalid or unenforceable,
the remainder of this Agreement, or if the application of such term or provision to
persons or circumstances other than those as to which it is heid invalid or
unenforceable, shall not be affected thereby and shall remain valid and enforceable.
Each term and provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.
D. This Agreement and all of the covenants, terms, cvnditions,
provisions and undertakings contained herein, shall extend to, be binding upon and
inure to the benefit of the successors and assigns of the respective parties hereto,
including, without limitation, all subsequent owners of either parcel, to the same
9.
ORB 89 3 P<<3 1292
extent as if each successor and assigns were, in each case, named and expressed as
a party to this original Agreement.
E. This Agreement shall be construed in accordance with the internal
laws of the State of Florida.
F. As a material inducementto First Party's execution hereof, Second
Party warrants and represents that Second Party is the owner of fee simple title to
SeconJ Parcql a:ld that Second Parcel is free and clear of all mortgages, liens,
encumbrances and leases other than that certain existing ground lease between
Second Party as lessor and Longhorn Steaks, Inc., as lessee dated December 9, 1994.
IN WITNESS WHEREOF, the parties hereto have executed this Cross Easement
Agreement the day and year first above written.
Witnesses:
GREAT WESTERN BANK
By:
FLOR~,DA RETAIL iROPERTIES, INC.
By: . ~ ~~
N
Title:
LONGHORN STEAKS, INC., as Lessee of a portion of Second Parcel,
hereby consents arid agrees to the foregoing Cross Easement Agreement
and agrees to be bound by and comply with all terms and provisions
~:~
Print N e: HoH~ .4.. lkru:l Yi )(
014(/11. ~./
Print Name: Molol R . t:e-
.
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ORB 89b3 pg 1293
HOPS OF BOYNTON BEACH, LTD., as Lessee of a portion of Second
Parcel, hereby consents and agrees to the foregoing Cross Easement
Agreement and agrees to be bound by and comply with all terms and
provisions hereof:
HOPS OF BOYNTON BEACH, LTD., a
Florida Limited Partnership
By:
HOPS OF SOUTHEAST
FLORIDA, INC., a Florida
corporation, its General Partner
Print Name: .ve\: ~~scr~
Print /!;!{f2~Ujyry'
By:
~d..~
Title: c..~.o. .~.:~ec;.loeNT
\o.A~A~
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Dated:
STATE OF CALIFORNIA
COUNTY OF
The foregoing instrument was acknowledged before me this __ day of
, 1995, by ,the ,of
GREAT WESTERN BANK, a Federal Savings Bank, who is personally known to me or
who has produced as identification.
Notary Public
My Commission Expires:
STATE OF FLORIDA
COUNTY OF BROWARD :
The foregoing instrument was acknowledged before me this /f) day of
(r,jO/J.a1 , 1995, by DOUGLAS A. McMILLEN, as President of FLORIDA RETAIL
PROPERTIES, INC., a Florida corporati.on, v:'~o i~ person~lIy ~no~n to me or ~~r~:
produced as Identification. . .' \ \>__..._ _
1'., '\ '_I' .'
f3J/JJtfJ!.tL vi tiMif
Notary Public
Commission Expires:
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11.
'f BARBARA L seATS
_~~A}Pll~ COMMISSION # CC -t83071 ,
.. EXPIRES SEP 22. 1~
~ IONDID 11fIIU -
"" Off\: A1t.ANT1C BONDING CO.. INO.
ORB 8983 P9 1294
The
Oc.+:h?7
INC., a
STATE OF GEORGIA
COUNTY OF
4
foregoing instrument was aCknOWledg~ ~fore me this ~ day of
, 1995, by k;rr- rn, IlL'-f)')I-n~I\, as v', . Jv. of LONGHORN STEAKS,
corporation, who is person~lIy knoVl!n to me or who has produced
as identification.
LJ /l'l. /3a-f "0-,;.~,~;i!l(; .
Notary Public ;,,/~,'?) I &! /~~~:";~-
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Commission Expires.....:~r:;n:~''''::',::itt~.,..~,
, . , . -.. <': (~ ;{'( -'> ~;:~' ~:~:;f:~~t" t
NotwtJPUbIIc.,Fulwn.Coumy,~~,..:,-,; . ! ". 0 r~ ....
STATE OF FLORIDA _c,,;-.......,___eeo-u-.1.:,::..'."/:;:!!i~,~):~f:
COUNTY OF -.. .""::'i;i~'.,:,t;~mEnf:~:;..
\ \ The foregoing instrument was acknowledged before me this \b~ da~;"~r
~\o\Qe.n , 1995, by j)~.)to L. ~'i:OU , as Q....~.c. ~"~'t..e':t')Q....,)-rof HOPS OF
SOUTHEAST FLORIDA, INC., a Florida corporation, General Partner of HOPS OF
BOYNTON BEACH, LTD., a Florida Limited Partnership, who is personally know!} to
me or who has produced as i 'fication.
I~~~\ WAYNE T. PARKINSON
i.i~:.~ MY CCIIoIMISSION , cc 373lI2S
~OJ.' ; ~ fXJ'/HES: ..., 18. ,_
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12.
ORB 89("-) P9 1295
STATE OF California
COUNTY OF Los Angeles
)
)SS.
)
OnOctober 31, 1995before me, Luda Kap, Notary Public
personally appeared
, personally
Sharon H. Driben
known to me (er pro\led to me 011 lilt:: basis of si:ili::>ractory evidence) to be the person(s)
t
whose name(s) is/a.:e subscribed to the within instrument and acknowledged to me that
helshe/tney executed the same in .-R+s/her/tAetr authorized capacity(ies), and that by
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t.te/her/theif signature(s) on the instrument the person(s) or the entity upon behalf of
which the person(s) acted, executed the instrument.
~
WITNESS my hand and official seal.
Signature ~(K~
re: Cross Easement Agreement
(This area for official notarial seal)
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unsatlsfiictory Wile" recap/ed.
ORB 89b3 Ps 12C)7
PROPOSED
FLOWAGE EASEMENT
BOYNTON FESTIVE CENTER
DESCRIPTION
A portion of the Subdivision of Section 19, Township 4-5 South. Range 4-3
East. Palm Beach County, Florida. according to the plat thereof as recorded
in Plat Bo("k 7, Poge 19 .of the Public Records of Palm Beach County, Florida.
more , articulcrly described os follows: .
COMMENCING at the Southeast corner of said Section 19: thence NOO'S9'39"W,
along the East boundary of said Section 19. a distance of 1262.67 feet to a
point on a line 40.00 feet north of and paraUel with the centerline of Old
Boynton Road: thence N89'46'34~W. along said parallel line. SO.Ol feet to
a point on a line SO.OO feet west of and parallel with said East boundary;
thence NOO'S9'J9"W. olong said parallel line, 398.10 feet; thence
S88'OS'ZS"W, 310.S0 feet: thence N6S'SO'S9"W, 7.12 feet to the POINT OF"
BEGINNING; thence continue N66'SO'59~W, 107.44- feet; thence NOO'S9'39"W,
188.00 feet; thence N88'OS'26"E, 98.42 feet; thence SOO'S4-'12"E, 233.52
feet to the POINT OF BEGINNING.
Said lands lying in Palm Beach County, Florida.
NOTES;
1. Reproductions of this sketch are not valid unless sealed with an
embossed surveyor's seal.
2. Lands shown hereon were not abstracted by the Surveyor for
easements, ownership, or right-of-way of record.
3. The land description shown hereon was prepared by the Surveyor
4. Bearings shown hereon are assumed with the East line of Section 19
having <] bearing of NOO'S9' 39"W
5. Abbreviation Legend: It = centerline; P.O.C. = Point of
Commencement; p.o.a. = Point of Beginning; BOY. = Boundary; P.8. =
Plat Book
CERTIF1CA TE:
l HEREBY CERTIFY that the attached Sketch and Description of the hereon
desc:"ibed property is true and correct to the best of my knowledge and
belief os delineated under my direction on June 21, 1995. I FURTMER
CERTlFY that this Sketch and Description meets the Minimum Technical
Standards set forth by' the Florida Board of Professional Surveyor:l and
Mappers in Chap tel" 61 G17 -6, Florida Administrative Code, pursuant to
S~cticn 4-72.027. Florida Statut2s. I ( L [/PLL! I t
.k C~tL e~ ~
K.'; THLE::N L. HALL. P.L.S.
FLORIDA RECISTRA nON NO. 410.3
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"RE.V.>6/25/95
DA'TE;_ 6/21/95
SHE::T-r-OF 2
JOB. NO. 2035
K;\lHl.,t:t:N l." HALL. L.AND 5U~Y1Nt1. INC.
L.AN!? 5l...~B,(lNu/ C,ACO 5CRV!CC5
2.32::7 s.~. 7. SUITE 207
SOC..:.. R..:.. TON, Ft..:RIOA 334-28
( 4-07)487-24407
E<r"'ill:.l:~: ''F)' - S. 1 CF 4
ORB 8983 Ps 1298
N88'OS'ZS'"E
98.4-Z'
PROPOSED
FLOWAGE EASEMENT
BOYNTON FESTIVE CENTER
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P.O.B.
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. SUBDIVISION OF
SECTION 19, TO'NNSHIP 45 SOUlH. RANGE 43 EAST
(P.B. 7, PG. 19)
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S.E. CORNER.'
SEC.19-4-5-43<. . j
KPJriL.eeN L., HAL-L. L.AND 5UR\leYlNu. INC.
LI-Nt? 5L~;eY1NCi/ C,AC!:7 SCRVICCS,--
23257 S.R. 7, SUITE 207
eeeA RATON, FLORIDA 33423
(407)+87-24-+7
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ORB 8911 P9 1299
PROPOSED
DRAINAGE EASEMENT
BOYNTON FESTIVE CENTER
DESCRIPTION
A portion of the Subdivision of Section 19, Township 45 South, Range 43
East, Palm Beach County, Florida, according to the plot thereof os recorded
in Plat BC"'lk 7, Page 19 of the Public Records of Palm Beach County, Florida,
more ,)articularly described as follows:
A strip of land 15.00 feet wide lying 7.50 teet on each side of' the
following described centerline:
COMMENCING at the Southeast corner ot said Section 19; thence NOO.59'39"W,
along the East boundary of said Section 19, a distance of 1262067 feet to a
point on a line 40.00 teet north of and parallel with the centerline of Old
Boyn ton Rood; thence N8g.46'34"W, along said parallel line. 60001 teet to
a point on a line 60.00 feet west of and parallel with said East boundary;
thence NOo059'39-W, along said parallel line, 398.10 feet; thence
S8s00S'26-W. 310.50 feet; thence N6s050'59"W, 34.39 feet to the POINT OF
BEGINNING; thence continue N02012'08"W, 195.68 feet to the POINT OF
TERMINA nON ot said cen terline.
Said lands lying in Palm Beach County, Florida.
NOTES:
1. Reproductions of this sketch ore not valid unless sealed with on
embossed surveyor's seal.
2. Lands shown hereon were not abstracted by the Surveyor for
easements, ownership. or right-ot-way of record.
3. The land description shown hereon was prepared by the Surveyor
4. Bearings shown hereon are assumed with the East line of Section 19
having a bearing of NOooS9'39"W
5. Abbreviation Legend: ~ :: centerline; P.O.C. = Point of
Commencement; PeO.B. = Point of Beginning; BOY. = Boundary; P.B. =
Plot Book; P.O. T, = Point of Termination
CERTIFICA TE:
I HEREBY CERTIFY ttiat the attached Sketch and Description of the hereon
described property is true and correct to the best of my knowledge and
belief as delineated under my direction on June 26, 1995. I FURTHER
CERTIFY that this Sketch and Description meets the Minimum Technical
Standards set forth by the Florida Boord of Professional Surveyors and
Mappers in Chapter 61G17-6, Florida Administrative Code, pursuant to
Section 472.027. Florida Statutes. i) ", tit,. II i nl 1
_u_a1J\ ,xl,- ~~~I
KA l'HLEEN L. HALL, P.L.S.
FLORIDA REGISTRATION NO. 4103
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KAIHL..eeN 1..., HALL.. L..ANt? 5URVE:Y1Nu. INC.
L..ANt/ 5lR\/E:Y1NCt/ C.A017 5€RVla5
23257 S.R. 7, SUITE 207
BOCA RATON. FLORIDA 33428
( 407)487-2447
DATE: 6/26/95
SHEET 1 OF 2
JOB. NO. 2035
E<HIBIT liB" - Fe. 3 of 4
ORB 89- '3 P9 1300
PROPOSED
DRAINAGE EASEMENT
BOYNTON FESTIVE CENTER
~ 15' DRAINAGE
EASEMENT
NSS'SO'S9.W
34.39'
S8S'OS'2S.W 310.50'
SUBDIVISION OF
SECTION 19, TOWNSHIP 45 SOUTH, RANGE 43 EAST
(P.B. 7, PG. 19)
OLD BOYNTON ROAD
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-+
P.O.C.
S,E, CORNER
SEC.19-45-43
KAIHI...eeN 1.... HALL. L.ANt? SUR\II;Y1NG. INC.
L.,AND 5I.RVe'l'1NU/ CAOt? 5eR\lla5
23257 SR. 7, SUITE 207
BOCA RATON. FLORIDA 33428
( 407)487-2447
EXHIBIT "B" - PG. 4 of 4
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DATE: 6/26/~'"
SHEET 2.0F"."2.
JO!3, tlo.,_ 29
ORB 89\. j pg 1301.
DOROTHY H. WILKEN, CLERK PB COUNTY l FL
EXHIBIT "C"
For a period of twenty-five (25) consecutive calendar years from March
24, 1 981 , retail use of the building or buildings located on the Property
shall not exceed a total of 20.000 square feet of floor area, exclusive of
rbstaurc,ts, as recorded in o. R. Book 3494 at Page 675, Public Records
of Palm Beach County, Florida.
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