CORRESPONDENCE
G)TARGET
P.O. Box 1392
Minneapolis, MN 55440.1392
TRANSMITTAL
to: Tom McMurrain/Mark Walsh
Ocean Properties, Ltd.
1755 North Congress Avenue
Boynton Beach, FL 33436
date: April 14, 1995
project: T.644
address: Boynton Beach
We are sending you the following material: . under separate cover
. by messenger
XXX . herewith
number
of copies
description
of items
T.644 Boynton Beach, recorded Operation and Easement Agreement and plat as requested.
. our messenger
. your messenger
. mail
by: TARGET
~
Mark B. Johnson
Manager, Existing Real Estate and
Property Administration
sent:
(DHL) . other
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ORB 6529 pg 1818
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OPERATION AND EASEMENT AGREEMENT
BETWEEN
DAYTON HUDSON CORPORATION
AND
AMERICAN DEVELOPMENT CORPORATION
i'~ J
'.
Section
Article I
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
1.9
1.10
1.11
1.12
1.13
Article II
2.1
2.2
2.3
2.4
Article III
3.1
3.2
3.3
Article IV
4.1
4.2
4.3
Article V
5.1
5.2
5.3
5.4
5.5
ORB
6529 pg 1819
(
\, . ERATION AND EASEMENT AGRE~ .ENT
TABLE OF CONTENTS
PARTIES .....
. .
. . . . . . . . . . . . . . . . . . . . .
DEFINITIONS ............. .......
'Approving Party.............. ..... ..
Building Area .................. ......
Common Area .................. . . . .
Floor Area ..........
. . . . . . . . . . . . . . . .
occupant
Operator
outside Sales Area ...................
Party
Person
Permittee ...............
Restaurant .................
. . . . . . . . . . . . . . . . . . . . . . .
. . .
. . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . .
. . . . .
Tract ..............
. . . . . .
utilities
EASEMENTS ................
Ingress and Egress .......
. . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . .
. . . . . .
utilities .................
. . . . . . . . . . .
Construction, Maintenance and
Reconstruction
Restriction
. .
. . . . . . . .
. . . . . . . . . .
. . . . . . . . . . . . .
CONSTRUCTION ............
General Requirements ........
. . . . . . . . . .
. . . . . . .
Common Area .................
. . . . . . . . .
Building Improvement ..
MAINTENANCE AND REPAIR .......
Utilities
. . . . . . . . . . . .
. . . . . .
Common Area .........
. .
. . . . . . . . . .
Building Improvements and outside
Sales Area
OPERATION OF THE SHOPPING CENTER
Uses ....
Lighting
Signs
Insurance
Taxes and Assessments .....
. . . . . . . . . . . . . . . . . . . . .
. . . .
. . .
. .
. . . . . . . . . .
. . .
. . . . . . . . .
. . .
. . . . .
. . .
. . . . . . . .
~
I-1
I-1
I-1
I-1
I-1
I-2
I-2
I-3
1-3
1-4
I-4
I-4
1-5
I-5
II-1
II-1
II-2
II-5
II-7
III-1
III-1
III-3
III-7
IV-1
IV-1
IV-1
IV-11
V-1
V-1
V-4
V-7
V-9
V-15
( . 5.6
t Article VI
t", 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
6.18
6.19
Article VII
7.1
Exhibit A
Exhibit B
Exhibit C
Exhibit 0
Exhibit X
6529 pg 1820
. . . . . . . . . . . . .. V-l5-
VI-1
VI-1
VI-2
VI-3
VI-4
VI-5
VI-5
VI-6
VI-6
VI-6
VI-6
VI-7
VI-7
VI-7
VI-8
VI-8
VI-8
ORB
Liens ...................'-.
MISCELLANEOUS
. . . . . . . . . . . . . . . . . . . . . . . . . .
Defaul t ................................
Interest
Estoppel
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
certificate ...................
Notices ................................
,Approval Rights ........................
Condemnation ...........................
Binding Effect .........................
Singu~ar and Plural....................
counterparts and Signature Pages .......
Negation of Partnership ................
Not a Public Dedication ................
Excusable Delays .......................
Severability...........................
Amendments .............................
captions and Capitalized Terms .........
Mitigation of Damages ..................
OEA Shall continue Notwithstanding
~J7EaClc:fl .................................
~jl1DEl ...................................
Non Waiver .............................
TERM
Term
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
of this OEA .......................
Legal Description of Tarqet Tract
Legal Description of Developer Tracts
Submission Guidelines
Center Sign
Site Plan
VI-8
VI-8
VI-9
VII-1
VlI-1
(. t
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ORB 6529 pg 1-821
060590/BOYNTON/ARTJ-VJJ
OPBRATION AND BASEXDIT AGRBBKBHT
THIS OPERATION AND EASEMENT AGREEMENT ("OEA") is made and
entered into as of the d5 TN day of ~LY
19~, between DAYTON HUDSON CORPORATION, a Minnesota corporation
("Target") and AMERICAN DEVELOPMENT CORPORATION, a New Hampshire
corporation, ("Developer").
WITNESSETH
WHEREAS, Target is the owner of a certain tract of land (the
"Target Tract") described in Exhibit A attached hereto and
identified as "B" on Exhibit X (the "Site Plan") attached hereto:
and
WHEREAS, Developer is the owner of two tracts of land
(collectively the "Developer Tracts") described in Exhibit B
attached hereto and identified as "A" and "C" on the Site Plan: and
WHEREAS, the Target Tract
(collectively the "Shopping Center")
shown on the site Plan: and
and the Developer Tracts
are contiguous and adj acent as
WHEREAS, the signatories hereto intend to develop and operate
their respective Tracts in conjunction with each other as integral
parts of a retail shopping complex and in order to effectuate the
common use and operation thereof they desire to enter into certain
covenants and agreements as a part of a general plan, and to grant
to each other certain recipro~al easements, in, to, over, and
across their respective Tracts.
NOW, THEREFORE, in consideration of the premises, the
covenants and agreements hereinafter set forth and in furtherance
of the parties understanding, it is agreed as follows:
i<
ORB 6529 pg 1822
~TICLE I
DEFINITIONS
1.1 ApQrovina Party. "Approving Party" shall mean the Party
designated from time to time to make certain decisions and/or give
certain approvals pursuant to the terms of this OEA. There shall
be one Approving Party representing the Developer Tracts and one
Approving Party representing the Target Tract. The holder of the
Approving Party position shall have the right to assign such
position to any other Party owning a Tract within the real estate
represented by such position, but it an assignment is not made,
then such Approving Party position shall automatically be deemed
assigned to the Party acquiring the last Tract owned by the
transferring Approving Party. Developer shall be the initial
Approving Party for the Developer Tracts: Target shall be the
initial Approving Party for the Target Tract.
1.2 Buildinq Area. "Building Area" shall mean the limited
areas of the Shopping Center within which buildings (which for the
purpose of this OEA shall include any appurtenant canopies,
supports, loading docks, truck ramps and other outward extensions)
and outside Sales Areas may be constructed, placed or located.
1.3 Common Area. "Common Area" shall mean all areas within
the exterior boundaries of the Shopping Center, exclusive of (i)
buildings and (ii) any outside Sales Area.
1.4 Floor Area. "Floor Area" shall mean the actual number of
square feet of space contained on each floor within a building,
including any mezzanine or basement space used either for retail
sales, retail services or for the storage of merchandise, as
measured from the exterior faces of the exterior walls or store
front and/or the center line of any common walls: provided,
however, that the following areas shall not be included in such
calculations: outside Sales Areas, mezzanine office space used by
I-1
r
ORB 6529 pg 1823
the Occupant tor administrative purposes and which is not open or
accessible to the general public, and any space used for building
utilities or mechanical equipment. Within thirty (30) days of a
request, a Party shall certify to the requesting Party the amount
of Floor Area applicable to each building on its Tract. If any
Party causes an as-built survey to be prepared with respect to any
portion of the Shopping Center, such Party shall furnish a copy of
the survey to the other Parties for informational purposes only.
During any period of rebuilding, repairing, replacement or
reconstruction ot a building, the Floor Area of that building shall
be deemed to be the same as existed immediately prior to that
period. Upon completion of such rebuilding, repairing, replacement
or reconstruction, the Party upon whose Tract such building is
located, shall cause a new determination of Floor Area for such
building to be made in the manner described above, and such
determination shall be sent to any Party requesting the same.
1.5 OccuDant. "Occupant" shall mean any Person from time to
time entitled to the use and occupancy of any portion of a building
in the Shopping Center under an ownership right or any lease,
sublease, license, concession, or other similar agreement.
1.6 ODerator. "Operator" shall mean the Person designated
from time to time by the Approving Parties to maintain and operate
the Common Area of the Shopping Center.
1.7 Outside Sales Area. "outside Sales Area" shall mean that
certain space designated on the Site Plan which from time to time
may be used exclusively by an occupant of the adjacent building for
sales, display and/or storage purposes. During the period an
Outside Sales Area is: (i) used, such space shall be enclosed by
a fence or other security barrier, and (ii) not used, the
surrounding barrier, if any, shall be removed and the surface of
such space shall be used for Common Area purposes or for buildings.
I-2
,J ~ -.
ORB 6529 pg 1824
1.8 Party. "Party" shall mean each signatory hereto and,
after compliance with the notice requirements set forth below,
their respective successors and assigns who become owners of any
portion of the Shopping Center. Each Party shall be liable for the
performance of all covenants, obligations and undertakings herein
set forth with respect to the portion of the Shopping Center owned
by it which accrue during the period of such ownership, and such
liability shall continue with respect to any portion transferred
until the notice of transfer set forth below is given, at which
time the transferring Party's personal liability for obligations
shall terminate. A Party transferring all or any portion of its
interest in the Shopping Center shall give notice to all other
Parties and the Operator of such transfer and shall include therein
at least the fOllowing information:
(i) the name and address of the new Party: and
(ii) a copy of the legal description of the portion
of the Shopping Center transferred.
If a Tract is owned by more than one Person, the Person or Persons
holding at least 51% of the ownership interest in the Tract shall
designate one of their number to represent all owners of the Tract
and such designated Person shall be deemed the Party for such
Tract. until the notice of transfer is given, the transferring
Party shall (for the purpose of this OEA only) be the transferee's
agent.
Nothing contained herein to the contrary shall affect the
existence, priority, validity or enforceability of any lien
permitted hereunder which is placed upon the transferred portion of
the Shopping Center prior to receipt of the notice.
1-3
ORB 6529 P9 1825
J. -.
1.9 Person. "Person" shall mean any individual, partnership,
firm, association, corporation, trust, or any other form of
business or government entity.
1.10 Permittee. "Permittee" shall mean all Occupants and the
officers, directors, employees, agents, contractors, customers,
vendors, suppliers, visitors, invitees, licensees, subtenants, and
concessionaires of Occupants insofar as their activities relate to
the intended use of the Shopping Center. Among others, Persons
engaging in the following activities on the Common Area will not be
considered to be Permittees:
( i)
(ii)
or booklet:
(iii)
(iv)
(v)
use of the
Exhibiting any placard, sign, or notice:
Distributing any circular, handbill, placard,
Soliciting memberships or contributions:
Parading, picketing, or demonstrating: and
Failing to follow regulations relating to the
Shopping Center.
1.11 Restaurant. "Restaurant" shall mean any operation or
business which requires a governmental permit, license and/or
authorization to prepare and/or serve food for either on or off
site consumption.
1.12 Tract. "Tract" shall mean that portion of the Shopping
Center owned by a Party.
1.13 utility Lines. "Utility Lines" shall mean those
facilities and systems for the transmission of utility services,
including drainage and storage of surface water. "Common Utility
Lines" shall mean those facilities and systems which are installed
to provide the applicable service to at least some of the Building
Areas on all of the Developer Tract and the Target Tract or to
substantially all of the Common Area. "Separate Utility Lines"
1-4
r N.
-
ORB 6529 P<<3 1826
shall mean. those facilities and systems which are installed to
provide the applicable service to Building Areas solely on either
the Developer Tract or the Target Tract, or the Common Area located
only on one of such Tracts. For the purpose of this OEA, the
portion of a utility Line extending between a Common utility Line
and a building shall be considered a separate utility Line.
End of Article
I-5
r ~.
,
ORB 6529 pg 1827
ARTICLE II
EASEMENTS
2.1 Inaress and Earess.
During the term of this OEA each Party hereby grants and
conveys to each other Party for its use and for the use of its
permi ttees, in common with others enti tled to use the same, a
non-exclusive easement for the passage and parking of vehicles over
and across the parking and driveway areas of the grantor's Tract,
as the same may from time to time be constructed and maintained for
such use, and for the passage and accommodation of pedestrians over
and across the parking, driveways and sidewalk areas of the
grantor's Tract, as the same may from time to time be constructed
and maintained for such use. Such easement rights shall be subject
to the following reservations as well as other provisions contained
in this OEA:
(i) Each Party further reserves the right to close
off its portion of the Common Area for such reasonable period
of time as may be legally necessary, in the opinion of such
Party's counsel, to prevent the acquisition of prescriptive
rights by anyone; provided, however, that prior to closing off
any portion of the Common Area, as herein provided, such Party
shall give written notice to each other Party of its intention
to do so, and shall attempt to coordinate such closing with
each other Party so that no unreasonable interference in the
passage of pedestrians or vehicles shall occur, and
(ii) Each Party reserves the right at any time and
from time to time to exclude and restrain any Person who is
not a Permittee from using its portion of the Common Area.
2.2 utilities.
II-1
ORB 6529 pg 1828
) '.,
(A) Each Party hereby grants and conveys to each other Party
non-exclusive perpetual easements in, to, over, under, along and
across those portions of the Common Area (exclusive of any portion
located wi thin a Building Area) located on the grantor I s Tract
necessary for the installation, operation, flow, passage, use,
maintenance, connection, repair, relocation, and removal of utility
Lines serving the grantee's Tract, including but not limited to,
sanitary sewers, storm drains, water (fire and domestic), gas,
electrical, telephone and communication lines. All utility Lines
shall be underground except:
(i) with respect to ground mounted electrical
transformers at the rear of a building;
(ii) as may be necessary during periods of
construction, reconstruction, repair, or temporary service;
(iii) as may be required by governmental agencies
having jurisdiction; and
(iv) as may be required by the provider of such
service.
Prior to exercl.sl.ng the right granted herein, the grantee
shall first provide the grantor with a written statement describing
the need for such easement, shall identify the proposed location of
the Utility Line, and shall furnish a certificate of insurance
showing that its contractor has obtained the minimum insurance
coverage required by 5.4(C) hereof. Any Party installing Separate
Utility Lines pursuant to the provisions of this subparagraph shall
pay all costs and expenses with respect thereto and shall cause all
work in connection therewith (including general clean-up and proper
surface and/or subsurface restoration) to be completed as quickly
as possible and in a manner so as to minimize interference with the
use' of the Common Area. If the Parties elect to install Common
11-2
ORB 6529 P9 1829
.
; "
utility Lines, all repair, maintenance, replacement and other work
thereon shall be performed by the Operator as part of Common Area
maintenance.
(B) The initial location of any utility Line shall be subject
to the prior written approval of the Party whose Common Area is to
be burdened thereby, such approval not to be unreasonably withheld.
The easement area shall be no wider than necessary to reasonably
satisfy the requirements of a private or public utility, or five
feet (5') on each side of the centerline if the easement is granted
to a Party. Upon request, the grantee shall provide to the grantor
a copy of an as-built survey showing the location of such Utility
Line. The grantor shall have the right at any time to relocate a
Utility Line upon thirty (30) days' prior written notice, provided
that such relocation:
(i) shall not interfere with or diminish the
utility service to the grantee;
(ii) shall not reduce or unreasonably impair the
usefulness or function of such Utility Line;
(iii)
grantee;
shall be performed without cost or expense to
(iv) shall be completed using materials and design
standards which equal or exceed those originally used; and
(v) shall have been approved by the provider of
such service and the appropriate governmental or
quasi-governmental agencies having jurisdiction thereover.
Documentation of the relocated easement area, including the
furnishing of an "as-built" survey, shall be the grantor's expense
and shall be accomplished as soon as possible.
1I-3
ORB 6529 pg 1-830
(C) E'ach Party hereby grants and conveys to each Party owning
an adjacent Tract the perpetual right and easement to discharge
surface storm drainage and/or runoff from the grantee's Tract over,
upon and across the Common Area of the grantor's Tract, upon the
following conditions and terms:
(i) The Common Area grades and the surface water
drainage/retention. system for the Shopping Center shall be
constructed in strict conformance with the details approved by
the Approving Parties; and
(ii) No Party shall alter or permit to be altered the
surface of the Common Area or the drainage/retention system
constructed on its Tract if such alteration would materially
increase the flow of surface water onto an adj acent Tract
either in the aggregate or by directing the flow of surface
water to a limited area.
The surface water collection, retention and distribution facilities
shall be deemed a Common utility Line.
2.3 Construction. Maintenance and Reconstruction.
(A) In order to accommodate any footings, foundations,
columns or walls which may be constructed or reconstructed
immediately adj acent to a common boundary line and which may
overlap that common boundary line, each Party grants to each Party
owning an adjacent Tract a non-exclusive easement in, to, over,
under, and across that portion of its Tract adjacent to such common
boundary line in space not theretofore occupied by any then
existing structure for the construction, maintenance and
replacement of underground footings to a maximum lateral distance
of five feet (5') and for the construction, replacement and
11-4
ORB 6529 P13 1831
"
maintenance of foundations, columns, or walls to a maximum lateral
distance of six inches (6"). The easement shall:
(i) continue in effect for term of this OEA and
thereafter for so long as the building utilizing the
easement area exists (including a reasonable period to permit
reconstruction or replacement of such building if the same
shall be destroyed, damaged, or demolished) and
(ii) include the reasonable right of access
necessary to exercise and enj oy such grant upon terms and with
the limitations described in 3.1(E) below.
(B) Prior to utilizing any easement set forth in (A) above,
the grantee Party shall advise the grantor Party of its intention
to use the same, and shall provide plans and specifications and
proposed construction techniques for the improvements to be located
within the easement area, and shall give the grantor Party an
opportunity to commence any construction activities which it
contemplates undertaking to the end that each Party involved shall
be able to utilize subterranean construction techniques which will
permi t the placement above ground of a building on each Tract
immediately adjacent to the common boundary line. If a common
subterranean construction element is used, it is specifically
understood that the grantor and the grantee shall each assume and
pay its reasonable share of the cost and expense of the initial
construction and, so long as both Parties are benefitting
therefrom, subsequent maintenance thereof. In the event any
building utilizing a common subterranean element is destroyed and
not replaced or is removed, the common subterranean construction
element shall be left in place for the benefit of any building
utilizing the same located on the adjoining Tract.
11-5
ORB 6529 P9 1833
.
ARTICLE III
CONSTRUCTION
3.1 General Reauirements.
(A) ~ach Party agrees that all construction activities
performed by it within the Shopping Center shall be performed in
compliance with all applicable laws, rules, regulations, orders,
and ordinances of the city, county, state, and federal government,
or any department or agency thereof. Every building shall be
equipped with automatic sprinkler systems.
(B) Each Party further agrees that its construction
activities shall not:
(i) cause any unreasonable increase in the cost of
constructing improvements upon another Party's Tract;
(ii) unreasonably interfere with construction work
being performed on any other part of the Shoppinq Center;
(iii) unreasonably interfere with the use, occupancy
or enjoyment of any part of the remainder of the Shopping
Center by any other Party or its Permittees;
(iv) cause any building located on another Tract to
be in violation of any law, rule, regulation, order or
ordinance authorized by any city, county, state, federal
government, or any department or aqency thereof.
(C) Each Party agrees to defend, indemnify and hold harmless
each other Party from all claims, losses, liabilities, actions,
proceedings and costs (including reasonable attorneys' fees and
costs of suit), includinq liens, and any accident, injury or loss
or damage whatsoever occurring to any Person or to the property of
III-1
ORB 6529 pg 1.834
.
,
any Person. arising out of or resulting from any construction
activities performed or authorized by such indemnifying Party,
provided however, that the foregoing shall not be applicable to
events or circumstances caused by the negligence or willful act or
omission of such indemnified Party, its licensees, concessionaires,
agents, servants, employees, or anyone claiming by, through, or
under any of them.
(D) In connection with any construction, reconstruction,
repair or maintenance on its Tract, each Party reserves the right
to create a temporary staging and/or storage area in the Common
Area on its Tract at such location as will not unreasonably
interfere with access between such Tract and the other areas of the
Shopping Center. Prior to the commencement of any work which
requires the establishment of a staging and/or storage area on its
Tract, a Party shall give the Approving Parties at least 30 days
prior notice of the proposed location, provided, however, that if
a business is operating on the Target Tract then no other Party's
staging area shall be located within 500 feet of the front door of
the building on the Target Tract and if substantial work is to be
performed, the constructing Party shall, at the request of any
Approving Party, fence off the staging and storage area. All
storage of materials and the parking of construction vehicles,
including vehicles of workers, shall occur only on the constructing
Party's Tract, and all laborers, suppliers, contractors and others
connected with such construction activities shall use only the
access points located upon the constructing Party's Tract. Upon
completion of such work, the constructing Party shall restore the
affected Common Area to a condition equal to or better than that
existing prior to commencement of such work.
(E) Each Party hereby grants and conveys to each other Party
and to its respective contractors, materialmen and laborers a
temporary license for access and passage over and across the Common
Area of the grantor's Tract as shall be reasonably necessary for
III-2
ORB 6529 pg 1835
#
the grantee to construct and/or maintain improvements upon the
grantee's Tract; provided, however, that such license shall be in
effect only during periods when actual construction and/or
maintenance is being performed and provided further that the use of
such license shall not unreasonably interfere with the use and
operation of the Common Area by others. Prior to exercising the
rights granted herein, the grantee shall first provide the grantor
with a written statement describing the need for such license, and
shall furnish a certificate of insurance showing that its
contractor has obtained the minimum insurance coverage required by
5.4(C) hereof. Any Party availing itself of the temporary license
shall promptly pay all costs and expenses associated with such
work, shall diligently complete such work as quickly as possible,
and shall promptly clean the area and restore the affected portion
of the Common Area to a condition which is equal to or better than
the condition which existed prior to the commencement of such work.
Notwi thstanding the foregoing, in the event a dispute exists
between the contractors, laborers, suppliers and/or others
connected with construction activities, each Party shall have the
right to prohibit the contractors, laborers, suppliers and/or
others working for another Party from using the Common Area on its
Tract.
3.2 Common Area. The Parties have agreed that the Common Area
of the Shopping Center shall be initially constructed as shown on
the site Plan, provided, however, no fence or other barrier which
would prevent or unreasonably obstruct the passage of pedestrian or
vehicular travel shall be erected or permitted within or across the
Common Area, exclusive of the limited curbing and other forms of
traffic control depicted on the Site Plan. Contemporaneously with
the construction of a building upon its Tract, the constructing
Party shall cause the Common Area on its Tract to be substantially
completed no later than the day the first Occupant of such Tract
opens for business with the public. Such work shall be done in a
good and workmanlike manner and in accordance with good engineering
III-3
ORB 6529 pg 1836
standards: provided, however, the following minimum general design
standards shall be complied with:
(A) The lighting system shall be designed to produce a
minimum average maintained lighting intensity measured at grade at
all points in the Common Area of 2.00 foot candle: provided
however, that the extreme edge of the parking or drive areas may
have not less than a minimum maintained lighting intensity measured
at grade of 1.0 foot candle, and provided further that the drive
areas immediately in front of the entrance to any building shall
have not less than a minimum maintained lighting intensity measured
at grade of 5.0 foot candles. Each Party may elect to control the
lighting system located on its Tract. The type and design of the
Common Area light standards shall be approved by the Approving
Parties.
(B) The slope in the parking area shall not exceed a maximum
of four percent (4%), nor be less than a minimum of one percent
(1%).
(C) All sidewalks and" pedestrian aisles shall be concrete or
other approved materials; the automobile parking areas, drives, and
access roads shall be designed in conformity with the
recommendations of a registered soils engineer approved by the
Approving Parties which shall require the installation of a
suitable base and the surfacing with an asphaltic concrete or
concrete wearing material.
(D) utility Lines that are placed underground shall be at
depths designated by consultants.approved by the Approving Parties.
eE) The parking area on each Tract shall contain sufficient
ground level, parking spaces in order to comply with the following
minimum requirements:
III-4
'.
ORB 6529 pg 1837
--
, (i) five (5.0) parking spaces for each one thousand
(1,000) square feet of Floor Area.
(ii) if a business use contains a drive-up unit
(such as remote banking teller or food ordering/dispensing
facility), then there shall also be created space for stacking
not less than five (5) automobiles for each drive-up unit.
(iii) for each single Restaurant which has less than
five thousand (5,000) square feet of Floor Area, then five (5)
additional parking spaces for each one thousand (1,000) square
feet of Floor Area devoted to such use; provided, however,
three (3) Restaurants, each of which contains not more than
1,200 square feet of Floor Area, shall be excluded from the
application of this clause.
(iv) for each single Restaurant which has five
thousand (5,000) square feet of Floor Area or more, then ten
(10) additional parking spaces for each one thousand (1,000)
square feet of Floor Area devoted to such use.
If an Occupant operates a Restaurant incidentally to its primary
business purpose, then so long as such incidental operation
continues, the portion of the Floor Area occupied by such
Restaurant shall be excluded from the application of (iii) and (iv)
above. For the purpose of this clause, a Restaurant shall be an
"incidental operation" if it occupies less than ten percent (10%)
of the Occupant's Floor Area and does not have a separate customer
entry/exit door to the outside of the building.
In the event of a condemnation of part of a Tract or sale or
transfer in lieu thereof that reduces the number of usable parking
spaces below that which is required herein, the Party whose Tract
is so affected shall use its best efforts (including using proceeds
from the condemnation award or settlement) to restore and/or
III-5
ORB 6529 pg 1.838
substi tute . parking spaces in order to comply with the parking
requirements set forth above. If such compliance is not possible,
such Party shall not be deemed in default hereunder, but such Party
shall not be permitted to expand the amount of Floor Area located
upon its Tract. If such Floor Area is thereafter reduced, then it
may not subsequently be increased unless the parking requirement is
satisfied.
(F) No Party shall make changes to the improved Common Area
on its Tract without the approval of the Approving Parties, except
that each Party hereby reserves the right, from time to time
without obtaining the consent or approval of any other Party, to
make at its own expense any insignificant change, modification or
alteration in its portion of the Common Area, including the
installation of convenience facilities such as mailboxes, public
telephones and benches, provided that:
(i) the accessibility of such Common Area for
pedestrian and vehicular traffic (as it relates to the
remainder of the Shopping Center) is not unreasonably
restricted or hindered, and all parking stalls and rows and
vehicular traffic lanes shall remain generally as shown on the
site Plan;
(ii) there shall be maintained at all times
within such Common Area, a sufficient number of vehicular
parking spaces to meet the parking requirements set forth in
3.2(E), as well as all governmental rules, regulations, and/or
ordinances relating to parking requirements, but wi thout
reliance on parking spaces that may be available on another
Tract; provided, however, that no more than two percent (2\)
of the parking spaces depicted on the site Plan for such Tract
shall be eliminated.
1II-6
ORB 6529 pg 1839
(iii) no governmental rule, ordinance or
regulation shall be violated as a result of such action, and
such action shall not result in any other Party being in
violation of any governmental rule, ordinance or regulation.
( i v) no change shall be made in the access
points between the Common Area and the public streets;
provided, however, that additional access points may be
created with the approval of the Approving Parties, such
approval not to be unreasonably withheld.
(v) at least thirty (30) days prior to making
any such change, modification or alteration, the Party
desiring to do such work shall deliver to each other Party
copies of the plans therefor, and provided further that such
work shall not occur between October 1st and the following
January 31st.
(G) The provisions of this paragraph do not apply to any
changes, modifications or alterations of Common Area located within
Building Areas which result from or arise out of the construction
or maintenance of buildings or outside Sales Areas.
3.3 Buildina ImDrovement.
(A) While it is acknowledged and agreed that no Party shall
have an obligation to commence construction or complete
construction, once started, of any building on its Tract, the
Parties hereby agree that (i) all buildings and Outside Sales Areas
shall be located only within the Building Areas designated on the
Site Plan, and (ii) if the amount of Floor Area for any Building
Area is designated on the site Plan, such size limitation shall not
be exceeded.
III-7
ORB 6529 pg 1.840
(B) The Approving Parties have agreed upon an architecturally
compatible theme for the exterior of all buildings to be
constructed, placed or located within the Shopping Center. In
order to insure compliance with such theme, each Party shall submit
to the Approving Parties detailed plans ("Plans") as required by
Exhibit C attached hereto covering the initial construction of each
building and any additions, remodeling, reconstruction or other
al teration which changes the exterior thereof for approval prior to
the commencement of any such work. Upon the issuance of any
disapproval or recommendation for change, the submitting Party, and
the Approving Parties shall mutually consult to establish approved
Plans for the proposed work. The Approving Parties shall not
arbitrarily or unreasonably withhold approval of the Plans or
recommend changes in the Plans which otherwise conform with the
requirements hereof, nor shall they withhold approval of exterior
remodeling or exterior reconstruction which does not either
substantially enlarge an existing structure, or substantially
change an existing structure. In no event shall an Approving Party
require any other Party to utilize design standards superior to
those utilized by the Approving Party in the construction of
buildings on its Tract. Approval of Plans by the Approving Parties
shall not constitute assumption of responsibility for the accuracy,
sufficiency, or propriety thereof, nor shall such approval
constitute a representation or warranty that the Plans comply with
applicable laws. No material deviation shall be made from the
approved Plans. Notwithstanding anything contained herein, ~he
Approving Parties agree that if a "prototype Target building" is
initially constructed on the Target Tract, then the requirement for
the submission of Plans for such building is waived.
(C) Developer and Target hereby specifically consent to the
placement of buildings along the common boundary line between the
Target Tract and the Developer Tract, and each agrees to support
any request by the other for a side-yard or setback variance if the
same is required in order to accommodate such construction.
III-8
ORB 6529 pg 1841
(D) Developer acknowledges that Target proposes to construct
on the Target Tract its typical retail store which is generally
classified as an "unlimited area" building under certain applicable
building codes. (By way of explanation, but not limitation, an
"unlimited area" building is designated II-N or V-N under the
Uniform Building Code.) Target agrees that if it constructs an
"unlimited area" building, such building shall be located
immediately adj acent to the common boundary line. So long as
Target plans to construct an "unlimited area" building, or so long
as an "unlimited area" building exists on the Target Tract
(including any restoration or reconstruction thereof), Developer
agrees that each building placed or constructed on the Developer
Tract shall comply with the following requirements:
(i) no building shall be constructed within 60' of
the Building Area on the Target Tract unless such building,
hereinafter referred to as the "adjacent building," shall be
located immediately adjacent to the common boundary line and
is attached to the "unlimited area" building on the Target
Tract, when and so long as such "unlimited area" building
exists.
(ii) if an "adjacent building" exists, then no
building shall be located within sixty feet (60') of the
"adjacent building" unless such building is attached to the
"adjacent building": the "adjacent building" and all other
buildings on the Developer Tract that are attached to the
"adjacent building" and to each other are hereinafter referred
to as the "building group."
(iii) any building that is not part of the "building
group," shall be located at least sixty feet (60') distant
from the "building group."
III-9
UHti 6::>29 pg 1842
.'
,(iv) the "adjacent building" or the "building
group," as the case may be, shall comply with the building
code requirements applicable to an "unlimited area" building,
including without limitation the installation of an approved
sprinkler system for fire protection.
If Tequired by any governmental authority, each Party agrees to
join in a recordable declaration which confirms the existence of a
sixty foot (60') yard or clear area around the Target building and
~hA h11;' n; nn'a. ; f' 2nv wh;,..h :a..-a ; n,..1 nnAn w; +-h; ... I; \ :aP,,~ I;; \
ORB 6529 pg 1842
.
.
.(iv) the "adjacent building" or the "building
group," as the case may be, shall comply with the building
code requirements applicable to an "unlimited area" building,
including without limitation the installation of an approved
sprinkler system for fire protection.
If required by any governmental authority, each Party agrees to
join in a recordable declaration which confirms the existence of a
sixty foot (60') yard or clear area around the Tarqet building and
the buildings, if any, which are included within (i) and (ii)
above. In addi tion to the requirements set forth above, no
building shall be placed or constructed on the Developer Tract in
a manner which will either preclude the construction of an
"unlimited area" building on the Tarqet Tract, or cause an existing
"unlimited area" building on the Target Tract to no longer be in
conformance with applicable building code requirements.
(E) The second Party to construct a building along a common
boundary line shall do so in a manner that does not result in
damage to the improvements in place on the adjoining Tract, and
further shall undertake and assume at its sole cost the obligation
of completing and maintaining the nominal attachment (flashing and
seal) of its building to that of the existinq building on the other
Tract, it being the intent of the Parties to establish and maintain
the appearance of one continuous building complex. In performing
such attachment, the wall of one building shall not receive support
from nor apply pressure to the wall of the other building.
(F) No building or other structure (exclusive of any free
standing sign referred to in 5.3 hereof) shall exceed the followinq
height restrictions:
(i) On the Target Tract - 32 feet
(ii) On the Developer Tracts - 32 feet
III-10
ORB 6529 pg 1832
(C) Nothing herein shall be deemed to create or establish a
"common" or "party" wall to be shared by buildings constructed
along the common boundary line between the Tracts.
2.4 Restriction. No Party shall grant any easement for the
purpose set forth in this Article for the benefit of any property
not within the Shopping Center: provided, however, that the
foregoing shall not prohibit the granting or dedicating of
easements by a Party on its Tract to governmental or
quasi-governmental authorities or to public utilities.
End of Article
II-6
ORB 6529 pg 1844
ARTICLE IV
MAINTENANCE AND REPAIR
4.1 Utility Lines.
(A) Each Party shall maintain and repair, or cause to be
maintained and repaired, in a good and safe condition, all Separate
utility Lines utilized by it regardless of where located. Any
maintenance and repair of nondedicated utilities located on another
Party's Tract shall be performed only after two (2) weeks' notice
to the grantor (except in an emergency the work may be initiated
with reasonable notice) ,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
grantor's Tract as is practicable under the circumstances. Any
Party performing or causing to be performed maintenance or repair
work agrees to promptly pay all costs and expenses associated
therewith to diligently complete such work as quickly as possible
and to promptly clean the area and restore the affected portion of
the Common Area to a condi tion equal to or better than the
condition which existed prior to the commencement of such work.
(B) Common utility Lines shall be maintained and replaced as
part of the Common Area pursuant to 4.2 below.
4.2 Common Area.
(A) The minimum standard of maintenance for the improved
Common Area shall be comparable to the standard of maintenance
followed in other first class retail developments of comparable
size in the metropolitan area where the Center is located;
notwithstanding the foregoing, however, the Common Area shall be
operated and maintained in compliance with all applicable
governmental laws, rules, regulations orders and ordinances, and
the provisions of this OEA. All Common Area improvements shall be
IV-1
ORB 6529 pg 1845
repaired or. replaced with materials at least equal to the quality
of the materials being repaired or replaced so as to maintain the
architectural and aesthetic harmony and integration of the Shopping
Center as a whole. The maintenance and repair obligation shall
include but not be limited to the following:
(i) Drive and Parking Areas. Maintaining, cleaning
and replacing all .paved surfaces and curbs in a smooth and
evenly covered condition, such work shall include, without
limitation, sweeping, restriping, resealing and resurfacing.
(For the purpose of this section, an overlay of the drive and
parking areas shall be considered a maintenance item.)
(ii) Debris and Refuse. Periodic removal of all
papers, debris, filth, refuse, ice and snow, including
sweeping to the extent necessary to keep the Common Area in a
first-Class, clean and orderly condition. All sweeping shall
be at appropriate intervals during such times as shall not
interfere with the conduct of business or use of the Common
Area by persons intending to conduct business with Occupants
of the Shopping Center.
(iii) Sign and Markers. Placing, cleaning, keeping
in repair, replacing and repainting any appropriate
directional signs or markers, including any handicapped
parking signs.
(iv) Lighting. Maintaining, cleaning and replacing
Common Area lighting facilities, including lamps, ballasts and
lenses.
(v) Landscaped Areas. Maintaining all landscaped
areas, including landscaping and planters adj acent to exterior
walls of buildings, in an attractive and thriving condition,
and replacing shrubs and other landscaping as necessary ;
IV-2
ORB 6529 pg 1846
, ,
provided, however, that if any Occupant requires "special"
landscaping (i. e. beyond the standard landscaping requirements
for the remainder of the Shopping center), the cost of
installation, replacement and maintenance of such special
landscaping shall be borne solely by such Occupant and shall
not be included in Common Area Maintenance Costs.
(vi) Common utility Lines. Maintaining, cleaning,
replacing, and repairing any and all Common utility Lines.
(vii) Obstructions. Keeping the Common Area free
from any obstructions including those caused by the sale or
display of merchandise, unless such obstruction is permitted
under the provisions of this OEA.
(viii) sidewalks. Maintaining, cleaning and replacing
of all sidewalks, including those adjacent and contiguous to
buildings located within the Shopping Center. Sidewalks shall
be cleaned and swept at appropriate intervals during such time
as shall not interfere with the conduct of business or use of
the Common Area.
(ix) Supervisory Personnel. Providing of
professional supervisory personnel for the Common Area, if
reasonably required.
(x) Traffic. Supervision of traffic at entrances
and exits to the Shopping Center and within the Shopping
Center as conditions reasonably require in order to maintain
an orderly and proper traffic flow.
Notwithstanding anything to the contrary, each Party 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.
IV-3
ORB 6529 pg 1847
(B) F~om and after the date upon which the Common Area on
either the Developer Tracts or the Target Tract is substantially
completed, the Operator shall maintain the Common Area or cause it
to be maintained, in good order, and sightly and safe condition.
Operator may hire companies affiliated with it to perform the
maintenance and operation of the Common Area, but only if the rates
charged by such companies are competi ti ve with those of other
companies furnishing similar services in the metropolitan area in
or about the Shopping Center, it being agreed that this provision
shall be construed strictly against Operator. Each Party hereby
grants to Operator, its agents and employees a license to enter
upon its Tract to discharge the duties to operate, maintain and
repair the Common Area pursuant to 4.2. The Approving Parties
hereby designate Developer as the initial Operator, and Developer
accepts such appointment. The Person appointed by the Approving
Parties to act as the Operator shall serve in such capacity,
commencing with the date it is first appointed to maintain the
Common Area, unless such Person shall resign or is removed by the
Approving Parties.
Operator shall expend only such funds as are reasonably
necessary for the operation, maintenance and insurance of the
Common Area and shall promptly pay such costs ("Common Area
Maintenance Costs") when incurred. For the purpose of this OEA,
Common Area Maintenance Costs shall not include:
(i) any late charges or fees;
(ii) any charge for electricity to a Party that
separately pays the electrical costs for lighting the Common
Area on its Tract;
(iii)
resulting from
maintenance or
any costs to clean up or repair the Common Area
promotional activities or from construction,
replacement of buildings;
IV-4
ORB 6529 pg 1848
.(iv) real property taxes and assessments;
(v) Operator's profit, administrative and overhead
costs (including but not limited to: office space, equipment
and utilities; legal, accounting or administrative services;
Operator's personnel who are not permanently located at the
Shopping center); and
(vi) entertainment,
lodging of anyone.
transportation,
meals and
In lieu of Operator's profit, administrative and overhead costs,
Operator shall be permitted to charge an amount ("Administration
Fee") computed by multiplying the Common Area Maintenance Costs
(exclusive of insurance premiums, fees paid to third Persons who
perform the Common Area operation and maintenance on Operator's
behalf, and utility charges) by five percent (5'). If any of
Operator's personnel at the Shopping Center perform services,
functions or tasks in addition to Common Area duties, then the cost
of such personnel shall be equitably allocated according to time
spent performing such duties. So long as Developer owns/maintains
the retail shopping complex located across the street from the
Shopping Center and performs the duties of Operator for the
Shopping Center, any questions regarding proper allocation of
shared personnel and/or joint Common Area Maintenance contracts
shall be strictly construed against Developer.
(C) Operator shall, at least 90 days prior to the beginning
of each calendar year, submit to the Approving Parties an estimated
budget ("Budget") for the projected Common Area Maintenance Costs
and the Administration Fee for operating and maintaining the Common
Area of the Shopping Center for the ensuing calendar year. The
Budget shall identify separate cost estimates for at least the
categories specified under 4.2 (A), plus:
IV-5
ORB 6529 pg 1849
_ (i) premium for public liability insurance covering
the Common Area as required by 5.4(A) below:
(ii) rental or purchase of equipment and supplies:
(iii) depreciation or trade-in allowance applicable
to items purchased for Common Area purposes: and
(iv) Administration Fee.
If an item of maintenance or replacement is to be accomplished in
phases over a period of calendar years, such as resurfacing of the
drive and/or parking areas, then the Budget shall separately
identify the cost attributable to such year (including the area of
the Common Area affected), and shall note the anticipated cost and
timing (indicating the area of the Common Area affected) of such
phased work during succeeding calendar years. The cost of approved
"phased" work shall be paid by the Parties approving the same,
notwithstanding that when such work is performed a party may not
then be participating in the joint maintenance of the Shopping
Center.
If an Approving Party disapproves the proposed Budget, it shall
consult with the other Approving Party and the Operator to
establish a final approved Budget. If a Budget is not approved by
December 1st of any calendar year, Operator shall have the right to
terminate its maintenance obligation with respect to the Common
Area located on the Tract of the disapproving Approving Party by
written notice prior to December lOth. If the notice is given,
then Operator shall maintain and operate the balance of the
Shopping Center and such Approving Party shall maintain and operate
its Tract, commencing on the following January 1st. If the notice
is not given, then Operator shall continue to maintain and operate
the Common Area for the next calendar year.
IV-6
ORB 6529 pg 1850
, .
Operator shall use reasonable efforts to operate and maintain the
Common Area of the Shopping Center in accordance with the Budget.
Notwithstanding the foregoing, operator shall have the right to
make emergency repairs to the Common Area to prevent injury or
damage to person or property, it being understood that Operator
shall nevertheless advise each Party of such emergency condition as
soon as reasonably possible, including the corrective measures
taken and the cost the~eof. If the cost of the emergency action
exceeds $10,000.00 then Operator may submit a supplemental billing
to each Party, toqether with evidence supporting such payment, and
each Party shall pay its share thereof within thirty (30) days; if
the cost limitation set forth above is not exceeded then such costs
shall be included as part of the Common Area Maintenance Costs at
the year end.
(D) Common Area Maintenance Costs and the Administration Fee
shall be allocated as follows:
(i)
To the Developer Tracts
27.7%
(ii)
To the Target Tract
72.3%
In the event an existing Tract is divided, the Party causing such
division shall prorate the allocation attributable to the existing
Tract between the newly created Tracts, file a recorded declaration
confirming such allocation and deliver a copy of such declaration
to the Operator and each other Party. Each Party shall pay to the
Operator in equal monthly payments, in advance, its share of the
Common Area Maintenance Costs and the Administrative Fee based
either upon the amount set forth in the approved Budget, or if a
Budget is not approved, then the lesser of the amount set forth in
the unapproved Budget or the monthly payment established for the
prior year. The Operator shall reasonably estimate such costs for
the partial year during which its maintenance obligations commence
and each Party shall make its first payment in the month following
IV-7
ORB 6529 pg ~8S1
operator · s ~dertaking of such maintenance and repair of the Common
Area. Within 45 days after the end of each calendar year, Operator
shall provide each Party with a certified statement together with
supporting invoices and other materials setting forth the actual
Common Area Maintenance Costs paid by it for the operation and
maintenanrJ of such Common Area, the Administration Fee, and such
Party's share of the aggregate thereof. If the amount paid by a
Party for such calendar year shall have exceeded its share,
Operator shall refund the excess to such Party at the time such
certified statement is delivered, or if the amount paid by a Party
for such calendar year shall be less than its share, such Party
shall pay the balance of its share to operator within 30 days after
receipt of such certified statement.
within two years after receipt of any such certified statement,
each Party shall have the right to audit Operator's books and
records pertaining to the operation and maintenance of the Common
Area for the calendar year covered by such certified statement: the
Party shall notify Operator of its intent to audit at least 15 days
prior to the designated audit date. In the event that such audit
shall disclose any error in the determination of the Common Area
Maintenance Costs, the Administration Fee or in the allocation
thereof to a Tract, an appropriate adjustment shall be made
fort~with. The cost of any audit shall be assumed by the auditing
Party unless such Party shall be entitled to a refund in excess of
three percent (3'> of the amount calculated by Operator as its
share for the calendar year, in which case Operator shall pay the
cost of such audit.
(E) Operator agrees to defend, indemnify and hold each Party
harmless from and against any mechanic's, materialmen's and/or
laborer's liens, and all costs, expenses and liabilities in
connection therewith, including reasonable attorney's fees and
court costs, ar1s1ng out of the maintenance and operation by
operator of the Common Area, and in the event that any Tract shall
IV-8
ORB 6529 P9 1852
become subj~ct to any such lien, Operator shall promptly cause such
lien to be released and discharged of record, either by paying the
indebtedness which gave rise to such lien or by posting such bond
or other security as shall be required by law to obtain such
release and discharge.
(F) In the event any of the Common Area is damaged or
destroyed by any cause whatsoever, whether insured or uninsured,
during the term of this OEA, other than damage caused by ordinary
use or wear and tear, the Party upon whose Tract such Common Area
is located shall repair or restore such Common Area at its sole
cost and expense with all due diligence: provided that no Party
shall be required to expend more than $250,000 (which amount shall
be increased by $50,000 every five (5) years upon the anniversary
date of this OEA) in excess of insurance proceeds which may be
available (or which would have been available except for elections
relating to deductibles or self-insurance for which the Party shall
be responsible to contribute) for such repair or restoration.
Notwithstanding the limitation set forth in the preceding sentence,
a Party may require another Party to do such restoration work if
the requiring Party has agreed in writing to pay the costs in
excess of such sum. Except to the extent limited by 5.4 (D) hereof,
in the event such damage or destruction of Common Area is caused in
whole or in part by another Party or third Person, the Party
obligated to make such repair or restoration reserves and retains
the right to proceed against such other Party or third Person for
indemnity, contribution or damages.
(G) Target shall have the right, upon giving not less than
sixty (60) days' written notice to Operator, to take over and
assume the maintenance of the Common Area upon the Target Tract.
Following the effective date of such assumption, Target shall
perform all of the functions specified in 4.2 (A), and pay all
costs and expenses incurred in connection with the maintenance and
operation of the Common Area on its Tract, except as specified
IV-9
ORB 6529 pg 1853
,
below, and. Operator thereafter shall continue to maintain the
balance of the Common Area in accordance with the standards of 4.2
(A). Nevertheless, Operator shall continue to maintain the Common
utility Lines of the Shopping Center regardless of location, shall
continue to mainta,in the Common Area security program, if any, and
shall continue to insure the Common Area on the Target Tract under
the Operator's Common Area public liability insurance program if
Target elects to participate therein by written notice to the
Operator. Upon such assumption Target shall be released from the
obligation to contribute towards Operator's maintenance and
operation of the balance of the Common Area, except with respect to
those functions identified above for which continued participation
is mandatory or elected; Target's share of such costs shall be paid
in accordance with the allocation set forth in 4.2 (D) above.
Target shall have the right to cause the operator to resume the
operation and maintenance of its Common Area upon the satisfaction
of the following conditions:
(i) Target shall give the Operator at least 60
days' prior notice of its intention to have the Operator
reassume the operation and maintenance of its Common Area;
provided however, such date for reassumption shall always be
the first day of a calendar quarter;
(ii) Prior to the date established for Operator to
reassume the maintenance and operation thereof; Target shall,
at its sole cost and expense, cause the Common Area on its
Tract to be at least equal to the same maintenance, condition
existing on the other portions of the Common Area then being
maintained by the Operator; and
(iii) At least twenty-four (24) months have lapsed
since Target assumed the maintenance of the Target Tract.
IV-10
ORB 6529 Pl3 1854
Provided th. above conditions are satisfied, concurrently with the
designated date, operator shall resume full operation and
maintenance of the Common Area located on the Target Tract and
Target shall be responsible for its share of the costs and expenses
of Operator's performance as set forth in (D) above.
4.3 Buildina ImDrovements and outside Sales Area.
(A) After completion of construction, each Party covenants
and agrees to maintain and keep the building improvements and
outside Sales Area, if any, located on its Tract in first-class
condition and state of repair, in compliance with all governmental
laws, rules, regulations, orders, and ordinances exerc1s1ng
jurisdiction thereover, and in compliance with the provisions of
this OEA, including the architectural theme. Each Party 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.
(B) In the event any of the building improvements are damaged
by fire or other casualty (whether insured or not), the Party upon
whose Tract such building improvements are located immediately
shall remove the debris resulting from such event and provide a
sightly barrier, and within a reasonable time thereafter shall
either (i) repair or restore the building improvements so damaged
to a complete unit, such repair or restoration to be performed in
accordance with all provisions of this OEA, or (ii) erect other
building improvements in such location, such construction to be
performed in accordance with all provisions of this OEA, or (iii)
demolish the damaged portion and/or the balance of such building
improvements and restore the cleared area to either a hard surface
condition or a landscaped condition in which event the area shall
be Common Area until a replacement building is erected. Such Party
shall have the option to choose which of the foregoing alternatives
IV-11
ORB 6529 pg 1855
to perform,_ but such Party shall be obligated to perform one of
such al ternati ves. Such Party shall give notice to each other
Party within ninety (90) days from the date of such casualty of
which alternative it elects.
End of Article
IV-12
ORB 6529 pg 1856
ARTICLE V
OPERATION OF THE SHOPPING CENTER
5.1 ~.
(A) No part of the Shopping Center shall be used for other
than retail sales, offices, Restaurants or other commercial
purposes. "Business Office" shall mean an office which does not
provide services directly to consumers: "Retail Office" shall mean
an office which provides services directly to consumers, including
but not limited to financial institutions, real estate, stock
brokerages, title company and escrow offices, travel and insurance
agencies, and medical, dental and legal clinics. Not more than
fifteen percent (1St) of the total Floor Area on the Developer
Tract may be used for Retail Office and/or Business Office.
(B) No use shall be permitted in the Shopping Center which is
inconsistent with the operation of a first-class retail shopping
center. Without limiting the generality of the foregoing, the
following uses shall not be permitted:
(i) Any use which emits an obnoxious odor, noise,
or sound which can be heard or smelled outside of any building
in the Shopping Center:
(ii) Any operation primarily used as a warehouse
operation and any assembling, manufacturing, distilling,
refining, smelting, agricultural, or mining operation:
( iii)
Any "second, hand" store or "surplus" store;
(iv) Any mobile home park, trailer court, labor
camp, junkyard, or stockyard (except that this provision shall
not prohibit the temporary use of construction trailers during
periods of construction, reconstruction, or maintenance);
V-1
ORB 6529 pg 1857
(v) Any dumping, disposing, incineration, or
reduction of garbage (exclusive of garbage compactors located
near the rear of any building);
(vi) Any fire sale, bankruptcy sale (unless pursuant
to a court order) or auction house operation;
(vii) Any central laundry, dry cleaning plant, or
laundromat; provided, however, this prohibition shall not be
applicable to on-site service oriented to pickup and delivery
by the ultimate consumer, including nominal supporting
facilities, as the same may be found in retail shopping
districts in the metropolitan area where the Shopping Center
is located;
(viii) Any automobile, truck, trailer or recreational
vehicles sales, leasing, display or repair; provided, however,
this prohibition shall not be applicable to the display (but
no demonstration vehicles permitted) of new automobiles within
a building so long as the display area does not exceed 2,000
square feet of Floor Area;
(ix) Any bowling alley;
(x) Any skating rink;
(xi) Any living quarters, sleeping apartments, or
lodging rooms;
(xii) Any veterinary hospital or animal raising
facilities (except that this prohibition shall not prohibit
pet shops);
(xiii)
Any mortuary or funeral home;
V-2
ORB 6529 P9 18S8
. (xiv) Any establishment selling or exhibiting
pornographic materials;
(xv) Any bar, tavern, restaurant or other
establishment whose reasonably projected annual gross revenues from
the sale of alcoholic beverages for on-premises consumption exceeds
sixty percent (60%) of the gross revenues of such business;
(xvi)
facility;
Any health spa, fitness center or workout
(xvii)
Any theater;
(xviii) Any flea market, amusement or video arcade,
pool or billiard hall, car wash, or dance hall;
(xix) Any training or educational facility, including
but not limited to: beauty schools, barber colleges, reading
rooms, places of instruction or other operations catering
primarily to students or trainees rather than to customers;
provided however, this prohibition shall not be applicable to
on-site employee training by an Occupant incidental to the
conduct of its business at the Shopping Center.
(C) The following use and occupancy restrictions shall be
applicable to the Developer Tract:
(i) No toy store exceeding 5,000 square feet of
Floor Area shall be permitted;
(ii) No more than 10% of the Floor Area may be used
for Business Office purposes;
(iii) No more than 10% of the Floor Area may be used
for Retail Office purposes.
V-3
ORB 6529 pg 1859
(D) T~e name "Target" shall not be used to identify the
Shopping Center or any business or trade conducted on the Developer
Tract.
(E) No merchandise, equipment or services, including but not
limited to vending machines, promotional devises and similar items,
shall be displayed, offered for sale or lease, or stored within the
Common Area; provided, however, that the foregoing prohibition
shall not be applicable to (i) the storage of shopping carts on the
Target Tract; or (ii) temporary Shopping Center promotions, except
that no promotional activities will be allowed in the Common Area
without the prior written approval of the Approving Parties which
may be wi thheld in their sole and absolute discretion. In
addition, if a recycling center or equipment is required by law to
be located in the Shopping Center, the location, if not mandated by
law, shall be subject to the approval of the Approving Parties.
(F) No Permittee shall be charged for the right to use the
Common Area.
(G) Each Party shall use its best efforts to cause the
employees of the Occupants of its Tract to park their vehicles only
on such Tract.
(H) This OEA is not intended to, and does not, create or
impose any obligation on a Party to operate, continuously operate,
or cause to be operated a business or any particular business at
the Shopping Center or on any Tract.
5.2 Liahtinq.
(A) After completion of the Common Area lighting system on
its Tract, each Party hereby covenants and agrees to keep its Tract
fully illuminated each day from dusk to at least Y '':; ;': - p.m.
unless the Approving Parties agree upon a different time. Each
V-4
ORB 6529 pg 1. 860
party further agrees to keep any exterior building security lights
on from dusk until dawn. During the term of this OEA, each Party
grants an irrevocable license to each other Party for the purpose
of permitting the lighting from one Tract to incidentally shine on
the adjoining Tract.
(B) Any Party ("Constructing Party") may install, with the
consent of the affecte~ Party ("Consenting Party"), a secondary
wiring system, from the Constructing Party's Tract to the light
standards on the Consenting Party's Tract, which would permit a
portion or all of the lighting on the consenting Party's Tract to
be operated contemporaneously with the lighting on the Constructing
party's Tract. All costs and expenses associated with the
installation, maintenance, replacement, and operation of such
secondary wiring, including the cost of energy to light any
portion of the Consenting Party's Tract, shall be assumed and
promptly paid by the Constructing Party. The constructing Party
shall submit to the Consenting Party appropriate plans and
specifications for the installation of such secondary wiring
systems. The Consenting Party shall have thirty (30) days to
approve or disapprove of such submission, such approval not to be
unreasonably withheld. If the Consenting Party does not disapprove
of the submission within the 30-day period, approval shall be
deemed given; if disapproval is given, the Constructing Party shall
revise the submission to accommodate the reasonable objections of
the Consenting Party and then may resubmit such plans and
specifications to the consenting party for its approval.
5.3 Sians.
(A) No freestanding sign shall be permitted within the
Shopping Center unless constructed in areas designated on the site
Plan, and only one such sign may be located in each designated
area. The area designated "Center Sign" may be used to identify
V-5
ORB 6529 pg 1861
. .
the Shopping Center name, not more than two (2) Occupants of the
Developer Tracts and not more than one (1) Occupant of the Target
Tract. There shall be no monument type signs. The Approving
Parties shall have the right to approve the design and size of all
freestanding signs: provided, however, it is agreed that any
Occupant of more than 60,000 square feet of Floor Area shall have
the unqualified right to use in the space allocated to it on any
freestanding sign its standard prototype identification as the same
exists from time to time. The Approving Parties hereby approve the
design and size of the Center Sign as shown on Exhibit D attached
hereto and made a part hereof: the space designated on Exhibit D
for "Target" shall be utilized by the Occupant of the Target Tract.
(B) Exclusive of the "Pad" areas designated on the Site Plan,
any Occupant occupying less than twenty-five thousand (25,000)
square feet of Floor Area may not have more than one (1)
identification sign placed on the exterior of the building it
occupies: provided however, that if any such Occupant is located at
the corner of a building, then such Occupant may have an
identification sign on each side of such corner. Any Occupant
occupying at least twenty-five thousand (25,000) square feet of
Floor Area may have more than one identification sign placed on the
exterior of the building it occupies.
No exterior identification sign attached to a building shall
be:
(i) placed on canopy roofs extending above the
building roof, placed on penthouse walls, or placed so as to
project above the parapet~ canopy, or top of the wall upon
which it is mounted:
(ii) placed at any angle to the building: provided,
however, the foregoing shall not apply to any sign located
V-6
ORB 6529 pg 1873
6.2 I~terest.
Any time a Party or Operator shall not pay any sum payable
hereunder to another within five (5) days of the due date, such
delinquent Party or Operator shall pay interest on such amount from
the due date to and including the date such payment is received by
the Person entitled thereto, at the lesser of:
(i) The highest rate permitted by law to be paid on
such type of obligation by the Person obligated to make such
payment or the Person to whom such payment is due, whichever is
less; or
time to
National
(ii) 3' per annum in excess of the,prime rate from
time publicly announced by Norwest Bank, Minneapolis
Association or its successor.
6.3
EstODDel certificate.
Each Party and Operator agrees that upon written request (which
shall not be more frequent than three (3) times during any calendar
year) of any other Party or Operator, it will issue to such Person,
or its a prospective mortgagee or successor, an estoppel
certificate stating to the best of the issuer's knowledge that as
of such date:
(1) whether it knows of any default under this OEA by
the requesting Person, and if there are known defaults, specifying
the nature thereof;
(ii) whether this OEA has been assigned, modified or
amended in any way by it and if so, then stating the nature
thereof; and
(iii)
whether this OEA is in full force and effect;
VI-4
ORB 6529 pg 1.874
Such state.ent shall act as a waiver of any claim by the Person
furnishing it to the extent such claim is based upon facts contrary
to those asserted in the statement and to the extent the claim is
asserted against a bona fide encumbrancer or purchaser for value
without knowledge 'of facts to the contrary of those contained in
the statement, and who has acted in reasonable reliance upon the
statement. Notwi thstanding anything to the contrary, the issuance
of an estoppel certificate shall in no event subject the Person
furnishing it to any liability whatsoever, notwithstanding the
negligent or otherwise inadvertent failure of such Person to
disclose correct and/or relevant information, nor shall such
issuance be construed to waive any rights of the issuer to either
request an audit of the Common Area Maintenance Costs for any year
it is entitled to do so, or challenge acts committed by other
Parties for which approval by the Approving Parties was required
but not sought or obtained.
6.4 Notices.
i::. .fEE ]):x: ~
tfJ5
All notices, demands and requests (collectively the "notice")
required or permitted to be given under this OEA must be in writing
and shall be deemed to have been given as of the date such notice
is (i) delivered to the Party intended, (ii) delivered to the then
current address of the Party intended, or (iii) rejected at the
then current address of the Party intended, provided such notice
was sent prepaid. The initial addresses of the Parties shall be:
Target: Dayton Hudson corporation
Target stores-Real Estate
Attn: Property Administration!C~-2~
33 s. sixth street
Minneapolis, MN 55402
Developer:
American Development Corporation
c/o Richard H. Critchfield, P.A.
2499 Glades Road
Suite 202
Boca Raton, FL 33431
VI-5
ORB 6529 pg 1875
operator:
As from time to time designated.
Upon at least ten (10) days' prior written notice, each Person
shall have the right to change its address to any other address
within the United 'States of America.
6.5 ADDroval Riahts. Unless otherwise herein provided,
whenever a consent, or approval (the "approval") is required, such
approval shall not be unreasonably withheld or delayed. Unless
provision is made for a specific time period, each response to a
request for an approval shall be given by the Person to whom
directed within thirty (30) days of receipt. If a response is not
given within the required time period, the requested Party shall be
deemed to have given its approval. Each disapproval shall be in
writing and the reasons shall be clearly stated. If the Approving
Parties' approval is requested, unanimous approval must be given.
6.6 Condemnation. In the event any portion of the Shopping
Center shall be condemned, the award shall be paid to the Party
owning the land or the improvement taken, except that (i) if the
taking includes improvements belonging.to more than one Party, such
as Utility Lines or signs, the portion of the award allocable
thereto shall be used to relocate, replace or restore such jointly
owned improvements to a useful condition, and (ii) if the taking
includes easement rights which are intended to extend beyond the
term of this OEA, the portion of the award allocable to each such
easement right shall be paid to the respective grantee thereof. In
addition to the foregoing, if a separate claim can be filed for the
taking of any other property interest existing pursuant to this OEA
which does not reduce or diminish the amount paid to the Party
owning the land or the improvement taken, then the owner of such
other property interest shall have the right to seek an award for
the taking thereof.
VI-6
ORB 6529 pg 1.876
6.7 Bindina Effect. The terms of this OEA and all easements
granted hereunder shall constitute covenants running with the land
and shall inure to the benefit of and be binding upon the
signatories hereto and their respective successors and assigns who
become Parties hereunder. This OEA is not intended to supersede,
modify, amend, or otherwise change the provisions of any prior
instrument affecting the land burdened hereby.
6.8 Sinqular and Plural. Whenever required by the context of
this OEA, the singular shall include the plural, and vice versa,
and the masculine shall include the feminine and neuter genders,
and vice versa.
6.9 Counterparts and Siqnature Pages. This OEA may be
executed in several counterparts, each of which shall be deemed an
original. The signatures to this OEA may be executed and notarized
on separate pages, and when attached to this OEA shall constitute
one complete document.
6.10 Neaation of PartnershiD. None of the terms or provisions
of this OEA shall be deemed to create a partnerShip between or
among the Parties in their respective businesses or otherwise, nor
shall it cause them to be considered joint venturers or members of
any joint enterprise. Each Party shall be considered a separate
owner, and no Party shall have the right to act as an agent for
another Party, unless expressly authorized to do so herein or by
separate written instrument signed by the Party to be charged.
6.11 Not a Public Dedication. Nothing herein contained
shall be deemed to be a gift o~ dedication of any portion of the
Shopping Center or of any Tract or portion thereof to the general
public, or for any public use or purpose whatsoever. Except as
herein specifically provided, no right, privileges or immunities of
any Party hereto shall inure to the benefit of any third-party
VI-7
. .
ORB 6529 pg 1877
Person, no~ shall any third-party Person be deemed to be a
beneficiary of any of the provisions contained herein.
6.12 Excusable Delays. Whenever performance is required of
any Person hereunder, such Person shall use all due diligence to
perform and take all necessary measures in good faith to perform~
provided, however, that if completion of performance shall be
delayed at any time by reason of acts of God, war, civil commotion,
riots, strikes, picketing or other labor disputes, unavailability
of labor or materials, damage to work in progress by reason of fire
or other casualty, or any cause beyond the reasonable control of
such Person, then the time for performance as herein specified
shall be appropriately extended by the amount of the delay actually
so caused. The provisions of this section shall not operate to
excuse any Person from the prompt payment of any monies required by
this ORA.
6.13 Severabilitv. Invalidation of any of the prov1s10ns
contained in this OEA, or of the application thereof to any person
by judgment or court order shall in no way affect any of the other
provisions hereof or the application thereof to any other person
and the same shall remain in full force and effect.
6.14 Amendments. This OEA may be amended by, and only by, a
written agreement signed by all of the then current Parties and
shall be effective only when recorded in the county and state where
the Shopping Center is located. No consent to the amendment of
this OEA shall ever be required of any Occupant or Person other
than the Parties, nor shall any occupant or Person other than the
Parties have any right to enforce any of the provisions hereof.
6.15 caDtions and CaDitalized Terms. The captions preceding
the text of each article and section are included only for
convenience of reference. Captions shall be disregarded in the
construction and interpretation of this OEA. Capitalized terms are
VI-8
ORB 6529 pg 1878
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.
6.16 Mitiaation of Damages. In all situations arising out of
this OEA, all Parties shall attempt to avoid and mitigate the
damages resulting froll the conduct of any other Party. Each Party
hereto shall take all reasonable measures to effectuate the
provisions of this OEA.
6.17 OEA Shall Continue Notwithstandina Breach. It is
expressly agreed that no breach of this OEA shall (i) entitle any
Party to cancel, rescind or, otherwise terminate this OEA, or (ii)
defeat or render invalid the lien of any mortgage or deed of trust
made in good faith and for value as to any part of the Shopping
Center. However, such limitation shall not affect in any manner
any other rights or remedies which a Party may have hereunder by
reason of any such breach.
6 .18~. Time is of the essence of this OEA.
6.19 No Waiver. The failure of any Party to insist upon
strict performance of any of the terms, covenants or conditions
hereof shall not be deemed a waiver of any rights or remedies which
that Party may have hereunder, at law or in equity and shall not be
deemed a waiver of any subsequent breach or default in any of such
terms, covenants or conditions.
End of Article
VI-9
ORB 6529 pg 1879
ARTICLE VII
TERM
7.1 Term of this OEA. This OEA shall be effective as of the
date first above 'written and shall continue in full force and
effect until 11:59 p.m. on December 31, 20~7 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 this OEA, except as relates to the easements
mentioned above, shall terminate and have no further force or
effect; provided, however, that the termination of this OEA shall
not limit or affect any remedy at law or in equity that a Party may
have against any other Party with respect to any liability or
obligation arising or to be performed under this OEA prior to the
date of such termination.
IN WITNESS WHEREOF, the Parties have caused this OEA to be
executed effective as of the day and year first above written.
\,\\,.1':"; ", Name Richard C. Ade
"l '. .'.:\ 1.1 "
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DAYTON HUDSON CORPORATION
("Target" )
BYN~
Sr. VICe PreSIde,,'
Ti tIe T,.,r,,:_' ~I,,,,'.~
AMERICAN DEVELOPMENT CORPORATION
("Developer" )
By
JZL/le. ~
:~IAt~
Ri ard H. Critchfield
Assistant Secretary
Name "{jlli."" , ~l/'~
Ti tle Au;stont Secretory
uv {TIVes'S.'
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ORB 6529 pg 1-880
STATE OF ;i{;. it A.J.j6-kJ
,L. _ .)
COUNTY OF ~"""fn-)
On thi s :J. c(-f!:: day of <:S M, ' 19 '10, before
me, a Notary Public within and for said County, personally
appeared Jack D. Fontaine
, and
Will i am P. Hhe
, to
me personally known, being each by me duly sworn, did.say that they
Sr. Vice President
are respectively the Target Stores and Assistant Secretary
of Dayton Hudson Corporation
, and that said instrument was signed
-
in behalf of said corporation by authority of its Board of Directors
and Jack D. Fontaine
and William P. Hise
ackno\lledged said instrument to be the free act and deed of said
corpora ti on.
.~v..~~"'~"'V<!Ih~v.,,^~v~.,.
18" .JA~~ t.4~
HENNEPIN alUN1Y
.., Calla EIIlIRI l1li 11. ..
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.._._--~---------- .-~- .-..--.----
ORB 6529 pg 1881
STATE OF FLORIDA
COUNTY OF PALM BEACH
I HEREBY CERTIFY that on this day before me, an officer duly
qualified to take acknowledgments, personally appeared Richard C.
Ade and Richard H. Critchfield, as President and Assistant
Secretary, respectively, of American Development Corporation, a
New Hampshire corporation, to me known to be the persons described
in and who executed the foregoing instrument and they acknowledged
before me that they executed the same.
WITNESS my hand and official seal in the County and State
last aforesaid this 25th day of J~lY' 19 .
~/G-~n"// ~..c../
Notary ub ic
My commission expires:
Notary Public. State of Florida
~ Commission Expires Mardi 10. 'W9S
to.d04 1"'" 1...., hi.. ,.......... 'tIC.
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EXHIBIT A
Legal Description of Target Tract
PARCEL "B" of TARGET COMMERCIAL CENTER, according to the Plat
thereof, recorded in Plat Book 66, at Pages 48 and 49, of the
PUblic Records of Palm Beach County, Florida.
G,/-J /[:3 / - ~
ORB 6529 pg 1.883
EXHIBIT B
Legal Description of Developer Tract
PARCEL "A" and PARCEL "c" of TARGET COMMERCIAL CENTER,
according to the Plat thereof, recorded in Plat Book 66, at
Pages 48 and 49, of the Public Records of Palm Beach County,
Florida.
(?<-4,.6'1....,.... ~
ORB 6529 pg 1884
.
EXHIBIT C
SUBMISSION GUIDELINES
1. During the conceptual design phase, the constructing party
shall submit to the other parties the following:
A. Site Design Documents to Indicate the Following:
o parking conf+gurations and car parking count
o Typical bay width and stall dimensions
o Drive widths
o Setbacks
o CUrb cuts
o spot elevations or rough contours
o Rough landscape scope
o Lighting pole locations
o Preliminary utility strategies
B. Building Design Single Line Plans to Indicate the Followinq:
o Exterior wall configuration
o Doors and store front extent
o Canopies and overhangs
o Probable column locations at exterior and abutting our
building on interior
C. Exterior Elevation Drawings to Indicate the Following:
o Opaque wall areas with doors and store fronts
2. After approval has been qranted of conceptual design phase
submitted in accordance with the guidelines specified in 1
above, the constructing party shall submit final design phase
plans to the other parties as follows:
-1-
~.L.;.'~'~c
ORB 6529 ptJ 1885
A. site r;>esign DoCWDents Delineating Information outlined in the
Concept Phase with the FOllowing Added Detail:
o Refined grading plans
o Selected lighting fixtures and resultant lighting levels
in foot ,candles
o Landscaping showing generic planting materials and
locations
o Proposed paving section designs and location
o utility layouts including hydrants and sizes proposed
o Proposed details for curbs, site structures, manholes,
etc.
o Proposed site signage designs and locations
B. Building Design Plans Delineating Information outlined in the
Concept Phase with the FOllowing Added Detail:
o Exterior wall thicknesses
o structural columns or bearing walls at building exterior
and proposed foundation design at adjoining wall between
abutting buildings
o Where common footings are to be shared provide wall or
column load information for design of that footing
o Proposed roof plan showing slopes and location of
penthouses or other major mechanical equipment
o References of key flashing details of roof to adjoining
building
C. Exterior Elevation Drawings Delineating Information Outlined
in the concept Phase with the Following Added Detail:
o Proposed building sign standards
o Paint color chips and. samples of other materials such as
brick or concrete aggregates (glass or aluminum finishes
may be annotated on the elevations)
-2-
._._~-~------_._.,._--_..--------
.
. .
.
ORB 6529 P9 1.886
o p~oposed large scale details of key section conditions to
show exterior design intent
o Major penthouses or rooftop equipment profiles
o Features such as special masonry patterns, bands or
special .materials and textures
o Rain leaders or scuppers
o Wall sections at various exterior locations including at
the demising wall to the adjoining building with key
vertical dimensioning
3. If a building is to have a through-the-wall pedestrian access
connection to an adjoining building, then the final design
phase submission shall also include (to the owner of such
adjoining building) the following:
o Plans of the pedestrian mall circulation showing any
variations in floor elevations
o Elevations/sections of the proposed mall space showing
store front sign bulkheads and key dimensions
o Proposed ceiling design including special features such
as variations in height or skylights
o Floor material patterns
o Landscaping and mall seating areas
o Proposed interior sign guidelines
o Paint color chips and samples of other materials such as
brick or concrete aggregates (glass or aluminum finishes
may be annotated on the plans or elevations)
o Proposed large scale details of key section conditions to
show interior design intent
4. The constructing party shall provide the other parties with
a complete set of bid documents for the building and/or
improvements to be located upon its Tract.
-3-
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O~R .~ ~.-
ORB 6529 P9 1'862
under ~ sidewalk canopy if such sign is at least eight (8)
feet above the sidewalk:
(iii)
painted on the surface of any building:
(iv)
flashing, moving or audible signs:
(v) signs employing exposed raceways, exposed neon
tubes, exposed ballast boxes, or exposed transformers: or
(vi) paper or cardboard signs, temporary signs
(exclusive of contractor signs), stickers or decals: provided,
however, the foregoing shall not prohibit the placement at the
entrance of each Occupant's space a small sticker or decal,
indicating hours of business, emergency telephone numbers,
acceptance of credit cards, and other similar bits of
information.
No Occupant of less than sixty thousand (60,000) square feet of
Floor Area shall have an exterior sign which identifies leased
departments or concessionaires, or, unless used as a part of an
Occupant's trade name, identifies specific brands or products for
sale or services offered within a business establishment.
(C) Notwithstanding anything above to the contrary, each
Party shall be permitted to place within the Common Area located on
its Tract directional signs or informational signs such as
"Handicapped Parking", the temporary display of leasing information
and the temporary erection of one sign identifying each contractor
working on a construction job.
(D) Any Occupant of the "Pad" areas designated on the Site
Plan may have not more than three (3) identification signs placed
on the exterior of the building it occupies.
V-7
ORB 6529 pg 1863
5.4 Iflsurance.
(A) Operator shall maintain or cause to be maintained in full
force and effect Comprehensive General/Commercial General Liability
Insurance covering the Common Area of the Shopping Center with a
combined single limit of liability of not less than Five Million
Dollars ($5,000,000.00) for bodily injury to or personal injury or
death of any person and consequently damages arising therefrom, and
for property damage, arising out of anyone occurrence: each Party
shall be a "named insured" under such policy. It is the agreement
of the Parties that the insurance maintained by Operator shall be
primary insurance to the insurance maintained by the Parties
pursuant to (B) below.
Operator covenants to defend, protect, indemnify and hold harmless
each Party and its respective directors, officers, agents,
representatives and employees from and against all claims,
including any action or proceeding brought thereon, and all costs,
losses, expenses and liabilities (including attorneys' fees and
cost of suit) asserted or incurred in connection with or arising as
a result of the death of, or any injury, loss or damage whatsoever
to any Person, or to the property of any Person, as shall occur due
to the performance or failure to perform by Operator of its duties
or obligations under this Agreement with respect to the maintenance
and operation of the Common Area, except for claims caused by the
sole negligence or by the willful act or omission of the
indemnified Party or its directors, officers, contractors,
licensees, concessionaires, agents, representatives or employees.
If Target takes over the operation and maintenance of the Common
Area on the Target Tract, and elects not to continue to participate
in Operator's insurance program regarding the Common Area, then (a)
Target shall maintain or cause to be maintained at least the
insurance coverage required above, (b) Operator shall be released
from its obligation to carry such insurance on the Target Tract,
V-8
ORB 6529 pg 1864
and (c) Tar.get covenants to defend, indemnify and hold the other
Parties harmless in identical fashion to that required of Operator
above.
(B) Except to the extent coverage is provided by the
insurance required to be maintained under (A) above, each Party (as
to its Tract only) shall maintain or cause to be maintained in full
force and effect Comprehensive General/Commercial General Liability
Insurance with a combined single limit of liability of not less
than Five Million Dollars ($5,000,000.00) for bodily or personal
injury or death, and for property damage, arising out of anyone
occurrence; the other Parties shall be "additional insureds" under
such policy.
Each Party ("Indemnitor") covenants and agrees to defend, protect,
indemnify and hold harmless each other Party ("Indemnitee") from
and against all claims, including any action or proceedings brought
thereon, and all costs, losses, expenses and liability (including
reasonable attorney's fees and cost of suit) arising from or as a
result of the injury to or death of any Person, or damage to the
property of any Person which shall occur on the Tract owned by each
Indemnitor, except for claims caused by the negligence or willful
act or omission of such Indemnitees, its licensees,
concessionaires, agents, servants, or employees, or the agents,
servants, or employees of any licensee or concessionaire thereof.
(C) Prior to commencing any construction activities within
the Shopping Center, each Party and Operator shall obtain or
require its contractor to obtain and thereafter maintain so long as
such construction activity is occurring, at least the minimum
insurance coverages set forth below:
(i) Workers' Compensation - statutory limits
(ii) Employers' Liability - $500,000
V-g
.,
(
... .
.
ORB 6529 pg 1865
(iii) Comprehensive General/Commercial
Liability and Business Auto Liability as follows:
General
(a) Bodily Injury - $1,000,000 per occurrence
(b) Property Damaqe - $1,000,000 per occurrence
(c) Ind~pendent Contractors Liability;
coverage as set forth in (a) and (b) above;
same
(d) Products/Completed Operations Coverage
shall be kept in effect for two (2) years
completion of work;
which
after
(e) "XCU" Hazard Endorsement, if applicable;
(f) "Broad Form" Property Damage Endorsement;
(q) "Personal Injury" Endorsements;
(h) IIBlanket Contractual Llability" Endorsement.
If the construction activity involves the use of another Party's
Tract, then the owner of such Tract shall be an additional insured
and such insurance shall provide that the same shall not be
canceled without at least thirty (30) days prior written notice to
the named insureds and each additional insured. If such insurance
is canceled or expires then the constructing Party shall
immediately stop all work on or use of the other Party's Tract
until either the required insurance is reinstated or replacement
insurance obtained.
(D) Effective upon the
improvements, the constructing
carried, All-Risk Replacement
commencement of construction of
Party will carry or cause to be
Cost Property Insurance, such
V-10
ORB 6529 pg 1866
coverage e~ending to at least the perils identified in the then
current standard "All-Risk" policy.
Each Party (the "Releasing Party") hereby releases and waives for
itself and on behalf of its insurer, any other Party (the "Released
Party") from any liability for any loss or damage to all property
of such Releasing Party located upon any portion of the Shopping
Center, which loss or damage is of the type generally covered by
the insurance required to be maintained under this clause,
irrespective either of any negligence on the part of the Released
Party which may have contributed to or caused such loss, or of the
amount of such insurance required or actually carried. Each Party
agrees to use its best efforts to obtain, if needed, appropriate
endorsements to its policies of insurance with respect to the
foregoing release; provided, however, that failure to obtain such
endorsements shall not affect the release hereinabove given. Each
Party ("Indemnitor") covenants and agrees to indemnify, defend and
hold harmless each other Party ("Indemnitee") from and against all
claims asserted by or through any Permittees of the Indemnitor's
Tract for any loss or damage to the property of such Permittee
located upon the respective Indemnitor's Tract, which loss or
damage is of the type generally covered by the insurance required
to be maintained under this clause, irrespective of any negligence
on the part of the Indemnitee which may have contributed to or
caused such loss.
(E) All insurance required by 5.4 shall be procured from
companies licensed in the state where the Shopping Center is
located and shall be rated by Best's Insurance Reports not less
than A/X; the limits of such policies shall be reviewed by the
Approving Parties and adjusted at least every five (5) years. All
insurance may be provided under (i) an individual policy covering
this location, (ii) a blanket policy or policies which includes
other liabilities, properties and locations of such Party;
provided, however, that if such blanket policy or policies contain
V-11
ORB 6529 P9 186
, .
a general policy aggregate of less than $20,000,000, then such
insuring Party shall also maintain excess liability coverage
necessary to establish a total liability insurance limit of
$20,000,000, (iii) a plan of self-insurance, provided that any
Party so self-insuring notifies the other Parties of its intent to
self-insure and agrees that upon request it shall deliver to such
other Parties each calendar year a copy of its annual report that
is audited by an independent certified public accountant which
discloses that such Party has $100,000,000 or more of net current
assets, or (iv) a combination of any of the foregoing insurance
programs. To the extent any deductible is permitted or allowed as
a part of any insurance policy carried by a Party in compliance
with 5.4, such Party shall be deemed to be covering the amount
thereof under an informal plan of self-insurance: provided,
however, that in no event shall any deductible exceed $50,000.00
unless such Party complies with the requirements regarding
self-insurance pursuant to (iii) above. Each Party and Operator
agrees to furnish to any Party requesting the same, a
certificate(s) of insurance evidencing that the insurance required
to be carried by such Person is in full force and effect.
The insurance required pursuant to (A) and (B) above shall include
the following provisions:
(i) shall provide that the policy may not be
canceled or materially reduced in amount or coverage without
at least thirty (30) days prior written notice by the insurer
to each insured and to each additional insured:
(ii) shall provide for severability of interests:
(iii) shall provide that an act or omission of one of
the insureds or additional insureds which would void or
otherwise reduce coverage, shall not reduce or void the
coverage as to the other named insureds: and
V-12
ORB 6529 pg 1_869
prevent a Party permitting or causing such lien trom contesting the
validity thereot in any manner such Party chooses so long as such
contest is pursued with reasonable diligence. In the event such
contest is determined adversely (allowing tor appeal to the highest
appellate court),' such Party shall promptly pay in full the
required amount, together with any interest, penalties, costs, or
other charges necessary to release such lien.
End of Article
V-14
ORB 6529 P<<3 1870
ARTICLE VI
MISCELLANEOUS
6.1 Default.
(A) The occurrence of anyone or more of the fOllowing events
shall constitute a material default and breach of this OEA by the
non-performing Party (the "Defaulting Party"):
(i) The failure to make any payment required to be
made hereunder within ten (10) days of the due date, or
(ii) The failure to observe or perform any of the
covenants, conditions or obligations of this OEA, other than
as described in (i) above, within thirty (30) days after the
issuance of a notice by another Party (the Non-Defaulting
Party") specifying the nature of the default claimed.
(B) With respect to any default under Section (A)-(ii) above,
any Non-Defaulting Party shall have the right, but not the
obligation, to cure such default by the payment of money or the
performance of some other action for the account of and at the
expense of the Defaulting Party~ provided, however, that in the
event the default shall constitute an emergency condition, the Non-
Defaulting Party, acting in good faith, shall have the right to
cure such default upon such advance notice as is reasonably
possible under the circumstances or, if necessary, without advance
notice, so long as notice is given as soon as possible thereafter.
To effectuate any such cure, the Non-Defaulting Party shall have
the right to enter upon the Tract of the Defaulting Party (but not
into any building) to perform any necessary work or furnish any
necessary materials or services to cure the default of the
Defaulting Party. Each Party shall be responsible for the default
of its Occupants. In the event any Non-Defaulting Party shall cure
a default, the Defaulting Party shall reimburse the Non-Defaulting
VI-1
ORB 6529 P9 1_871
Party for a~l costs and expenses incurred in connection with such
curative action, plus interest as provided herein, within ten (10)
days of receipt of demand, together with reasonable documentation
supporting the expenditures made.
(C) Costs and expenses accruing and/or assessed pursuant to
Section 6.1-(B) above shall constitute a lien against the
Defaulting Party's Tract. The lien shall attach and take effect
only upon recordation of a claim of lien in the office of the
Recorder of the County of the State in which the Shopping Center is
located, by the Party making the claim. The claim of lien shall
include the following:
(i) The name of the lien claimant;
(ii) A statement concerning the basis for the claim
of lien and identifying the lien claimant as a curing Party;
(iii) An identification of the owner or reputed owner
of the Tract or interest therein against which the lien is claimed;
(iv)
lien is claimed;
A description of the Tract against which the
(v) A description of the work performed which has
given rise to the claim of lien and a statement itemizing the
amount thereof: and
(vi) A statement that the lien is claimed pursuant
to the provisions of this OEA, ~eciting the date, book and page of
recordation hereof. The notice shall be duly verified,
acknowledged and contain a certificate that a copy thereof has been
served upon the Party against whom the lien is claimed, by personal
service or by mailing pursuant to Section 6.4 below. The lien so
claimed shall attach from the date of recordation solely in the
VI-2
ORB 6529 P9 1872
amount clai~ed thereby and may be enforced in any manner allowed by
law, including without limitation, suit in the nature of a suit to
foreclose a mortgage or mechanic's lien under the applicable
provisions of the law of the state in which the Shopping Center is
located.
(D) No waiver by any Party of any default under this OEA
shall be effective or binding on such Party unless made in writing
by such Party and.no such waiver shall be implied from any omission
by a Party to take action in respect to such default. No express
written waiver of any default shall affect any other default or
cover any other period of time other than any default and/or period
of time specified in such express waiver. One or more written
waivers or any default under any provision of this OEA shall not be
deemed to be a waiver of any subsequent default in the performance
or the same provision or any other term or provision contained in
this OEA.
(E) Each Non-Defaulting Party shall have the right to
prosecute any proceedings at law or in equity against any
Defaulting Party hereto, or any other Person, violating or
attempting to violate or defaulting upon any of the provisions
contained in this OEA, and to recover damages for any such
violation or default. Such proceeding shall include the right to
restrain by injunction any violation or threatened violation by
another of any of the terms, covenants, or conditions of this OEA,
or to obtain a decree to compel performance of any such terms,
covenants, or conditions, it being agreed that the remedy at law
for a breach of any such term, covenant, or condition (except
those, if any, requiring the payment of a liquidated sum) is not
adequate. All of the remedies permitted or available to a Party
under this OEA or at law or in equity shall be cumulative and not
alternative, and invocation of any such right or remedy shall not
constitute a waiver or election of remedies with respect to any
other permitted or available right or remedy.
VI-3
S'vSJ .Le+-
"
fJJie City of
13oynton 13eacti
,/.O~.
~~..
V
100 'E. 'Boynton 'Beadr. '1JoukrJarti
P.O. 'Bo'(310
'Boynton 'Bead;', 7"foritfa 33425-0310
City 1iafl: (407) 375-(;(){)()
7"JU: (407) 375-6090
October 9, 1995
Lisa A. Tropepe, P.E.
Shalloway, Foy, Raymon and Newell, Inc
1201 Belvedere Road
West Palm Beach, Florida 33405
Re: Carrabba's Italian Grill at the Target Shopping Center
Property Location: Southwest corner of N.W. 22nd Avenue
(Gateway Boulevard and Congress Avenue
File No. NWSP 95-008
Dear Ms. Tropepe
..
The attached package will be presented to the Planning and
Development Board on October 10, 1995 and to the City Commission
October 17, 1995.
The applicant must understand that the permit plans shall be
amended to comply with the final determination of the request
and that additional comments may be generated by staff following
their review for technical compliance of permit documents that are
required to be submitted for development of the project.
For the applicant's convenience, attached is a list of documents
required for permit submittal.
An approval of the site plan by the City Commission shall be valid
for one (1) year, unless a building permit from the Building
Department is secured. If the applicant fails to secure a building
permit in that time, all previous approvals shall become null and
void.
Very tn}lj ~~u7 '
~~' ~/~r..cl/ <.": ~
,1 hael E. Haag
Panning and Zoning Administrator
MEH:dim
attachments
xc: Central File
a:P&Dpk;ltr.Car
.5ilmerials (jateway to the (juifstream
IrOO-~D- -- rn @ ~ ~ -'0 w lft r
I E-.--'-=-".~.,,-,.!
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~u OCT I 7 Ie,',; ,
I ' , I
~ PlANt,n1,lG M~D l"~J
L ZOlJJ~
A F'r...~7'N;;;r.lSHlP INC~l,)Q'N:;..s ~RO"'ese.iONAL. ACCOCIA110N~
LAW <:;FFJOES
SOOs.&: CASEY CIKUN LUBITZ MARTENS McBANE & O'CONN!:':LL
..JOSE~~'.I'" ACKER'M.l.\N ..J~
eRUCE 0. "LeXANOER. P.....
JER.L.O ~. DZ::I:". 1*.1"'_
W'I.~lAM' ~. SOrO$I:, 111~ 'P.A.
JOHN 0, BOYKIN P.".
p",m,eK .I, C.Il.St'l!, P,A,
P"',I'l1<:"A M, CHFl,~""'SE:H
"'~N .J. elKLIN, "'.1'\,
8~iAN S. .JO~oJ.. 'YN, F' .&\,
ORE<:;OM' S, KINO
.q:........RL..Iii:.G; "'. '-.....f'T"Z. P.....
fw':,C::""..I:..L TIf'. .oc.~ ~~"'..
l:DW!N C, LuNSfORO
l'lICH...Ae 1.., MAR'l'E:.Ntl, P."',
LOUIS R. Mc::eA.IE, Po"'.
"TlMO'THY 1'>. MCCAFlT>i"l'. Po...,
~~I~M M. '$1~O~I'olEl...L. \11'.....,
1:"'1.f1L 0, O.C=:CNt.JELL. J".. P.A
.J. KOI=l'Y 1;'A.Rf.I!.~WR=.T
CH1\i='L.=:S i.. I=IC'KET'r". ...iFC'.
irM~l'HV"; ROOKe
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=e,,~ L. '=R""". "'.A.
r.~ONAL.O E: t;c:.rE.$'.CENZO
MA.~C S. 0(J131N
.JASON S '.....$e:I,.KOFlN
VV. -.JAY HL''''e'T'ON, ....~.. .........
~ear.=li.A. "" .11:"~f(". ~.A.
October 17, 1995
VIA FAX 375-6090
Dan DeCarlo, Assistant Planner
City of Boynton Beach
Planning & Zoning Department
P, 0, Box 3 1 0
6Qymon Beach, F10rida 33435~031 0
Re: Carraba's lralian Grill at the Target Shopping Center
Deaf Dan:
"'HIL.L..P'" :>. OlCOH.w.:!.I...-.~ ~R {~Qci.~Q:"7;
Q> COUNSEL
Jl'Ll5; ANN ALLI$ON
-PHil L. REMSEN
OOORTk!:RIOGE 'l'OWi5:1il 1 . 19'T"'l 'LOQR
S,5 NOR"T'<j "LACLEil DR'''!:
Wi:.*T PAL.M e.~b.eH. r:"'O~l::>A ;.$~i
TELEPr'ONE (4QTi 113~~'!;lOO
'T"''-~''''''''''O::R (~(r.i V~:O.4:20S;;
MAI'L~ NO ^O'O~t~.s
PO. so:..., 4b'"2~
WEe'" ~","-4 a ii:AC"'1 , F~ 33402...cl.eZC
\Vhile looking through my ftle, I came across the: att~ch~ letter oflune 9, 1995 from Carri~ Parker, City
Manager, J believe it outlines the City approved process for approval of the Cilrt'aba's site plan,
If you have any questions, please give me a ca1\,
AJC/ag
026-3341
Attachment
cc; Amc;ric,an Dev~lopment (407J2'79-0711)
ZO/TO "d
9S:~T
S6. n lJO
NI1~I) ^3S~J '3S00a
.f, ..
..
JUN- 9-95 FRX 17:B2 be
P_B4
~i='~
Kimley-foforn
and Associates, llio.
TABLE 1
APPROVED LAND USE AND TRIP GENERATION
TARGET CENTER OUTPARCEL
Daily Trips Peak Hour
I.and u~ Intcm.:ity Tota) Pass-By Net New AM PM
Retail
Target 142,500 SF
Caralina ISt?@SE
Total 294,260 SF 13,874 5,339 8,535 189 803
Offi~e
Adjacent
to HolI-
day Inn 75.000 SF 1,129 0 1,129 1'3 150
Hotel
Holiday
Inn 166 Rooms 1,444 0 1,444 100 124
Total 16,447 5,339 11.108 442 1,077
Trip Generation
Daily:
Office
Hotel
Rerail Ln(T)==,625 Ln(X)+S.985; P.B. % = 45,l-.022.5(X)
Ln(T} = .756 Ln(X) + 3.765
T "" 8.7(X)
AM Peak Hour:
Retail Ln(T) = .589 Ln(X) +2.378
Office Ln(T) - .777 Ln(X) + 1.674
Hotel T.... 785(X) . 30.549
Retail Ln(T)::: .637 Ln(X} + 3.553
Office Ln(T) == .737 Ln(X) + 1. 831
Hotel Ln(T) = .957 LnO€) -,070
PM Peak Hour:
..J'UN- ,9-95 F'RJ: 17'~Q3 be>
, .'
." .'",
Ci='~
P_Q5
Ktmlay.Horn
and A$$ooiestes, lnc
TABLE :2
PROPOSED LAND USE AND TRIP GENERA nON
TARGET CE!'lTER OUTPARCEL
Daily Trips Peak Hour
Land Use Intensity Total Pass-By Net New AM PM
Ret3i1
Target 142,951,5 SF
Catalina 151.760 SF
Total 294,711.5 SF 13,8B8 5,343 8,545 189 804
Office
Target 3.200 SF
Adjacent
to Holi-
day Inn 70.885 S~
Total 74,085 SF 1.118 0 1,118 151 149
Hotel
Holiday
Inn 166 Rooms 1.444 0 1,444 100 124
Total 16,450 5,343 11.1 07 440 1.077
Irln Generatil;m
Daily;
Office
Hotel
Retail Ln(1')"".625 Ln(X>+S.985; P.B. % ... 45.1-.0nS(X)
Ln(1) .... .756 Ln(X) + 3.765
T - 8.7(X)
AM Peak Hour: Retail Ln(T);;; .589 Ln(X) +2.318
Office Ln(T) = .777 Ln(X) + 1.614
Hotel T;;;: .785(X) - 30.549
PM Peak Hour: Retail Ln(T)"" .637 Ln(X) + 3.553
Office LnCY)'" .737ln(X) + 1.831
Hotd Ln(T) - .957 Ln(X} -.070
iJJie City of
13oynton 13eac/i
" ::0., J,
~:,.... .~
I.'/.
-I, ...
'p~
( . . ,,'
I ;.....l{
100 'E. 'Boynton 'Bem:ft. 'Boukvanf
P.O. 'Bo~310
'Boynton 'Beadi, 1foritfa 33425-0310
City!Jfafl: (407) 375-6()()()
:Jj{X: (407) 375-6090
July 3, 1995
Mr. Dan Weisberg, Senior Engineer
Palm Beach County Traffic Division
Department of Engineering and Public Works
P.o. Box 21229
Re: Traffic Studies: Target Center Outparcel
Carababba's Italian Grill, Inc.
S.W. Corner of N.W. 22nd Ave.
and Congress Ave.
File ~ NWSP 95-008
Dear Mr. Weisberg:
The enclosed traffic impact studies, dated June 1995, prepared by
Kimley-Horn and Associates, Inc. were received by the Planning
and Zoning Department June 12, 1995 for the above-referenced
outparcel. Please review for conformance with the County's
traffic performance standard ordinance.
You may recall my conversation with you about a month ago
regarding how to overcome the traffic problem on Gateway
Boulevard as it impacts the completion of the Target Shopping
Center, specifically build out of this remaining outparcel. You
will note that the study utilizes unused trips that were
associated with a phased previous approval of 75,000 square feet
of office under the name of Catalina Club, Phase III, that was
reflected on the City's previous approval list submitted to you,
as required. I believe this approach resolves this particular
issue. If you have questions regarding this matter, please call
me at (407) 375-6260, otherwise please send me your written
comments/approval to the above address, with a copy of your
written response to Bill Hukill, Director of Development
Department, also at the same address.
7~'9il;;dhJ
Tambri J. Heyden I.
Planning and Zoning Director
cc: Bill Hukill
w/ attachment
Central File
J'tmema's gateway to tfie gulfstream
.:rUN- 9-95 FR:I
17':ca1 Ie"",
P.ca1
LAW OFl"ICES
BOOSE CASEY CIKt..IH LUBITZ MARTENS McBANE & O'COHHEI..L.
,",O:SE.PJ-; L. N:Kl:A~, JI't.
Q~I"lO;:L 0, ...~'="^HD~R. '",....
.J5:RALD 8, BLEIt. ......,
WII.I,.:I,M R. 8OOS~. II!, P."'.
.JO~iN 0, BoYKIN P."',
..",.RICK .I, GASo~y. F".A.
PATRICI.A. "l. CHRI&TlANSe;W
A.L..Ah' u, Ctt<L..IN. ....A.
MIOH,t,EL. w. .e:o"...~
!'lOll!:...... ...., CRANE. ,......
""'N"I..D ~, eRI:SCE;NIO
w.~ S. 0081101
JASON 5, ~5ELKOAN
VIA FAX 375--6090
A. PA,~N!:R:iHIP INCLUClINO PAOFI:&SIOU...~ MeOCIA"'O".
DEBAA A. .J~HI\S. ".10..
IIR:AN IS, .JO.!jI..YN. ".1>.,
ORr:OO".,. a. KII'tO
CHARas..., 1.....11nz. ...,....
EOWI... C. L.UNGFO~O
AlCHAIlD ~, MARTENS, P.A.
1.0UtS A, 1'IC8^N~. P,I>..
TIMOTHY P. MCCAI'lTIoff, P,A,
Isltl~ "". O'IWONNC::L.Ll P.A.
PHtL o. O'C.OWN€LL.. .JR'1 P....,_
oJ. KOR'!' "JllrlKHllFiST'
CHARl"ES L. PICKE'TT, ..R.
.JOHN Fl, YOYNQ. PA,
LONHI~ II, ZAl>oI01ll1~LO
PHILI.I.. D, O'coMltEI.J.. SR. (1~Nec7)
OF COUNSEl.
.JOHIl L, R~MSOl
NOA'TI-e~ICQE TOW!:~ 1 . 1ln'H f'Loo.o:l ,
515 NORTH F'L.AOl,.EI'l DAI\ft
WE9T I"ALIo4 IiE.*oCH. rt...O~IDA 3)0401
"I'1;:LtF>HONt (401) 832.5SOO
~l.tI:="'ER {407') O:!3-4~l>>
MAII..INg -"DDFlE&e
P.O. CAAWr.Fl ~4$2t
W~T PALM Il~H, ,.1. ~464e
June 9, 1995
Tambri Heyden, Planning & Zoning Director
City of Boynton Beach
P. O. Box 310
Boynton Beach, Florida 3343S~031 0
00 rn rnowrn rn
JUN 1 ') i:.J,Q5
L .'<..IV~
At PLANNING AND
ZONING DEPT.
-
Re: Target OutparceVCarrabais
!kat Tambri:
Please find enclosed a copy of the traffic equivalency report prepared by Joe Pollock of Kimley-Horn,
It, in effect, roduce$ the allowable square footllge of the 75,000 square feet of office, so that the
restaurant outpflfod may have up to 6500 square feet. We are in the process of preparing a site plan for
submittal, and if you have any comments or questions regarding the equivalency report. please let me
know as soon as possible,
A)C/ag
026.3341
Attachment
."
-,,,/
ccs: Carrie Parker, City Manager
American Development (4011279-0711)
.,""t. ...
JUN- 9-95 FRX 17:01 be
P_02
...
~llIr~
Kjmley-Horn
and AS8ooiates, Inc,
t ng!r.eerlllQ
P/ti'lf):1C
~nd
Envwnmenlal
ConSv//aTlts
.
44S1 Ernllarcadeo O'!ve
~ll PcJm 6e~~, Flqrilla
~401 .
June 6, J 995
Mr. Thomas. T. McMunain
Vice President
American Development
1100 Limon Boulevard
Suite C9
Oelray Beach, Florida 33444
Re: Target Center Oulparcel
C0l18relO8 Avenue
Boynton Beach, Florida
040075.00
Dear Mr. McMurrain:
As discussed with you and the staff of the City of Boynton Beach. we have
undertaken a traffic. equivalency dctennination for the above reference. The
determination is necessary to allocate additional square footage to the Qutparcel
adjacent to Target for a 6.500 squue foot restaurant. This letter documents
our deteOlllnation.
TIle Target Center has an approval for 142,500 square feet of retail. A total of
136,451.5 square feet of retail and 3.200 square feet of office nlezzanine in th,e
Target Store have been built to date in the Target Center. ThUE. there aro
2.848.5 $quare feet of retail which are approved and vested but unbuitt. TIle
restaurant proposed on the Target Center outparceJ is 6.SOO lquare feet which
is larger than the Ul1bullt square fOOtage. To bultd a 6.~OO square root
restaurant requires additional trips and square foorage which the owners
propose to transfer from the unbuilt office parcel adjacent to the Holiday Inn.
The unbuilt office parcel is part of 3. shopping center which has an approval in
place for 151,760 square feet of retail, 166 room hotel (including 18 suites) and
75,000 square fcot of offICe, All of the approved uses arc built except the
75,000 :square feet of office. To gain approval of lhe proposed restaurant, the
75,000 square feet of offlce would need to be reduced.
.
TEL 40i ~s 0Ell5
FAX 401 863 8175
~ .~
~UN- 9-95 FRX 17~a2 b~
\
p_a:z
~i=n
Kimley.Horn
and Associates. Inc
MI. 1'ho'1lI' T. lw4oMW1"'., J.ft. t.. .11')5,"'" ~
The magnitude of the. office reduction is a function of the trip generation of the
Cwo centers combiJlcd togethor. As long as the trip generation of tIle proposed
USes and square footages docs not exceed the [rip generation of the approved
uses and square footages. the proposed restaurant is not sl!bject to review under
the traffic perfurmance standards. Considered in this evaluation is the fact that
a 3,200 square foot mezzanine inside the existing Target store is office use
even though the square footage was approved as retail. Treating the 3,200
square foot mezzanine as office and reducing the 75.000 square feet of office to
10.885 square feet allows 3,651.5 square feet to be added to the restaurant
outparcel. The restaurant ourparcc:l would then have a total of 6,500 square
feeL The approved land uses and Intensities for [he two centers combined are
tabulated in Table 1. TIle proposed land uses and the resulting intensitks for
(he two centers rogether are tabulated in Table 2.
Tabl~s 1 and 2 also present the trip generation potential of the approved a.nd
proposed land use plans As e<an be seen in cornparing the two tables, the trip
generation of the approved and proposed plans are equal. This is true for net
new daily, AM peak hour and PM peak hour. Thus, tile proposed restaurant
dOe$ not increase: t.ie trip generation of tile two sites together and can be
approved.
If you or the City have any questions, please call.
Very truly yours,
JBP;jsl
Attachment3
Copy to:
Mr. Alan Ciklin
04007500.06069S1/T!
JUN- 9-95 FRX 15~5~ b~
P_1a2
LAW orFteE.8
BOOSE C....SEY CIKLlN LUBITZ MARTENS McBANE & O'CONNELL
.& PAAT~~~f;30 INCLUc.lNC J=lI=OI="E.~s;.lg.......~ "e8OC:^,OOHe
...OSE;PH L, ...cK~I'lMAN. cJR,
.R~e~ (.I, ALOUo./III)Ii:~, 1".,0\.
...I;:~~~ S. BEE"!. F.It..
WIj,."I."",M fit. .000e.I!:.. IU. "".A.
.I0rl'" 1:). flO\'1(11I ........
PATf'C..:.... e~E:"', p.....
PATRICIA M. CHA S"'''NSEH
"'!.Ail J. ()1~LtH. P,".
""<;.,,,\".:1., W. I::ONNOm;
AOEiE:~ \., (l~':, ...,...,
AONA\.b t;, CRESCE:NlO
MA~ S, OCDIN
JASON SO, H...SItL.t(O~
CEaRA ... Jl:NKI!;, P,....
e~..... B. ,JOSLYN, P,A,
QfCf:OORY 3. KIl<O
Pt-IlLLl1O O. O'CONNnL, SR. (1{lO7.1987l
C~A'LE.& A. l-U ISITZ, ~ ..A.
IrcW.., C:!. L.UNIiilF"QAO
Of' COI.iN!iit.L
"'OHN L. REI"\!U::H
J'iliCfIAFlO L. MA.ffTE:>l!;l, 10.....
LOUI$ A. MCeA.NE. Fl."'.
'I1iolCTHY p, MCCotJ'lTHV. P,"'.
BAlAN M, O'CONNEI.L., 5',....
"HII. O. Q'=NNI::1.,I., JR., ,......
oJ. KORY ~4R.a.tu_'"
CH.l.AL!S L, PlCK~, J~.
.JOHN R. YOUNQ, P."',
I-O"lNIii: D. IAlo/a~Il.LO
NOFiTHBRIDOIi: TOWER I ' 18T~ I"I.OOI't
515 NORTl-l F'LAOLt~ DRill!
WLST PALM 8u.e~, ~O~OA ~01
Tt.1.!.I"I-ION~ (401) l5aZ-I39QQ
T;;"o;OO"IC;~ (.0401) 833-<i2ot
""...IUNO "DDRESI
P.o. OFV.WER 02.t6~
WfO.$T ......I-M e~CH. "'I. :mo:z4e2f
June 9) 1995
XIA FAX 375-6090
Carrie Parkerl City Manager
Chy of Boynton Beach
1 fO E, Boynton Beach Boulevard
Boynton Beach, Florida 33435
Re: Target/Outparce1
Dear Carrie:
I Just wanted to take a moment to thank you again for helping to resolve the Target outparcel issue. Joe
Pollock of Kimley-Hom has prepared a traffic equivalency study; the final draft of which should be
available within the next day or so. I will. upon receipt. immediately forward it to Tambri for her review
and distribution to any other necessary reviewer. The equivalency report reduces the square footage of
the 75,000 square foot approved office. and transfers it to the already vested square footage of the
outparcel to anow up to 6500 square feet for Carraba's, As we discussed. once there is adequate
capacity on N. W. 22nd. the owners of the unbuitt office will be able to apply to the City to rec.apture
the square footage transferred to the outparcel. If that is not your understanding. please let me know.
Tom McMurrain had a conversation with Tambri and she indicated that following the City's processl a
site plan can be approved no sooner than September of 1995. Does the City have the ability to allow
for simultaneous building plan review during that period? The applicant will agree that there is no risk
to the City in revieVving the building plans during that time period, end that there is no obligation on the
City to approve the site plan as submitted, because building plans have already been submitted. In other
words, the applicant will assume all the risks, Based on the length of the review time for site plan
approval, it will save us several weeks ofbuifding plan review. lfthis is possible. please let me know;
and if there is anything you want from the applicant in writing to hold the City harmless, I will be happy
to obtain that,
JUN- 9-95 FRX 15~57 bo
p_.a~
Carrie Parker, City Manager
June 8, 199~
Page 2
Again. I appreciate all your assistance, and I am pleased the result will allow Carraba's to move ahead.
/
L
Neltlg
026-3341
cc: American Development
Tambri Heyden
%e City of
'.Boynton '.Beacli
100 'E. 1Joynton 1Juuli 1Jouk'lJara
P.O. 1Jo~310
1Joynton 1Juuli, 1'foritfa 33425-0310
City 1fa[[: (407) 375-6000
1';<<: (407) 375-6090
I~
N0'- .,
O '-"'''-~
-. .
I j : ^' .
June 9, 1995
VIA: Facsimile
Mr. Alan Ciklin
Boose Casey Ciklin Lubitz Martens
McBane & O'Connell
515 No. Flagler Drive 17th Floor
West Palm Beach, FL 33401
Dear Mr. Ciklin:
I was pleased we were able to arrive at a satisfactory solution for American Development, as we are
excited about a new restaurant in Boynton Beach of the quality and reputation of the Outback. I
apologize for having the process take so long and I hope if something comes up in the future, we
can speed things up towards a quicker resolution. We anticipate no problems with the site
plan/construction process and hope to fast track that as much as possible.
To summarize the conclusions reached at the meeting on June 1, 1995, that upon review of the
actual square footage, due to the expansion of Barnes and Noble by 1,000 square feet, the
construction of the Target Mezzanine of 3,161 square feet and the out parcel originally only being
approved for 5,740 or 360 feet short of 6,000 square feet, therefore, the square footage remaining
which was allocated to the out parcel was insufficient for the restaurant. To resolve the problem,
American Development's traffic engineer will perform an overall review of the total trips allocated to
the center including an undeveloped but approved office site adjacent to Holiday Inn Catalina to
determine that the trips used by the restaurant will not exceed the previously approved total. That
study will be presented along with a site plan for the restaurant for concurrent review and approval.
Again, we are looking forward to the grand opening of this new facility in Boynton Beach.
Sincerely,
CITY OF BOYNTON BEACH
A,
"L--
(~?-' JVV {V//
Carrie Parker
City Manager
CP:jb
c: Tambri Heyden, Director of Planning
Bill Hukill, Director of Dept. of Dev.
Tom McMurrain, American Development
Bob Walsh, American Development
S:\CMlCARRI8ACKlIN.L TR
.9lmema's gateway to th.e gulfstream
Board of County Commissioners
Ken L. Foster, Chairman
Burt Aaronson, Vice Chairman
Karen T. Marcus
Carol A, Roberts
Warren H. Newell
Mary McCarty
Maude Ford Lee
County Administrator
Robert Weisman
Department of Engineering
and Public Works
rn
rn@~~w~i~l
,11"
JUL 2 I 199~ 1 ! !J I t
, , , j ~..",/ i
PM~,~'~~gllt~~_._2_?1
July 17, 1995
Ms. Tambri Heyden, Director
Boynton Beach Planning and Zoning
100 E. Boynton Beach Boulevard
P.O. Box 310
Boynton Beach, FL 33425-0310
t..
RE: TARGET CENTER OUTPARCEL - CARABABBA'S ITALIAN GRILL
Dear Ms. Heyden:
The Palm Beach County Traffic Division has reviewed the traffic generation
statement for the proposed Target Center Outparcel. The project will add 6,500
square feet of sit-down restaurant. There are two concepts used in the analysis
in order to establish the trips needed for the restaurant.
1. The 3,200 square feet of office within Target uses a trip generation
rate for general office rather than being considered part of the retail
space. This is not an acceptable approach. All retail has an office
component, which should be considered part of the retail space.
2. The approved but unbuilt office component for the Catalina Club will be
reduced to free-up some of the trips. It is my understanding they both
projects have the same owner. This reduction is acceptable. The office
component of the Catalina Club needs to be reduced accordingly.
The trip calculation for the proposed uses are shown below. You will note that
the office is reduced from 75,000 square feet to 68,230 square feet.
Land Use
Intensity
Daily Trios
Total Pass-by Net
Target & Restaurant
Catalina
Tota 1
Office
Hote 1
'146,151.5 sq. ft.
151.760 sq. ft.
297,911.5 sq. ft.
68,230 sq. ft.
166 rooms
13,982
1,051
1.444
16,477
5,369 8,613
1,051
1.444
11 , 108
Total
"An Equal Opportunity - Affirmative Action Employer"
@ printed on recycled paper
Box 21229 West Palm Beach, Florida 33416-1229 (407) 684.4000
July 17, 1995
Ms. Tambri Heyden, Director
TARGET CENTER OUTPARCEL - CARABABBA'$ ITALIAN GRILL
page two
If you have any questions regarding this determination, please contact me at 684-
4030.
Sincerely,
OFFICE OF THE COUNTY ENGINEER
~ft~
Dan Weisberg, P.E.
Senio~ Registered Civil Enginee~
cc. Bill Hukill, Director
Boynton Beach Department of Department
Joe Pollock, Kimley-Horn
File: TPS - Mun. - Traffic Study Review
g:\user\dweisber\wp50\tps\boyn45
PLANNING AND ZONING DEPARTMENT
MEMORANDUM NO. 95-591
Agenda Memorandum for
October 17, 1995 city Commission Meeting
'l'O:
Carrie Parker
city Manager
FROM:
~'J
Tambri J. Heyden I j}>f
planning and zoning Director
DATE:
october 12, 1995
SUBJECT:
Carrabba's Italian Grill - NWSP 95-0058
at the Target Shopping Center
Please place the above-referenced request on the october 17, 1995
City Commission agenda under Development Plans.
DESCRIPTION: This is a request from Lisa A. Tropepe, P. E. ,
Shalloway, Foy, Rayman & Newell, Inc., agent for American
Development corporation for site plan approval to construct a 6,238
square foot, L22 seat, one-story restaurant on a 1.617 acre
outparcel at the northwest corner of the Target Shopping Center.
The Target Shopping Center is located at the southwest corner of
N.W. 22nd Avenue and Congress Avenue.
RECOMMENDATION: The Planning and Development Board, with a 7-0
vote, recommended approval subject to all staff comments (Public
Works Department Memorandum No. 95-171, utilities Department
Memorandum No. 95-297, Engineering Division Memorandum No. 95-364,
Building Division Memorandum No. 95-245 and 95-360, and Planning
and Zoning Department Memorandum No. 95-524).
TJH:dim
Attachment
a:CCAQ:odmem.Car
~
j~ d
~/;
/
I
PLANNING AND ZONING DEPARTMENT
MEMORANDUM NO. 95-617
FROM:
Al Newbold
Deputy Building Official
Michael E. Haa~. ~:,/~
Current Planning rdinator
Tambri J. Heyden ~~
Planning and Zoning D1rector
TO:
THRU:
DATE:
October 24, 1995
SUBJECT:
Transmittal of Development Orders
CARRABBA'S ITALIAN GRILL (TARGET CENTER)
Accompanying this memorandum you will find documents regarding
development plans that have received final determination.
1.
Project Name:
Carrabba's Italian Grill
Type of Application:
Planning and Zoning
Department File No.:
Comments:
New Site Plan
control Plans:
NWSP 95-008
5 sheets, not previously
distributed
8 sheets
MEH:TJH:arw
Attachments
Tr..tCarrabas.
a:'l"rsIICara.b8S
'I1ie 'City of
'Boynton 'Beacfi
/
,
I} '))~
...~ l:
\
\
100 'E. 'Boynton 'Beadi 'Boulevartl
P.O. 'BOi(310
'Boynton 'Bead"t., 1"Corida 33425-0310
City 9fafl: (407) 375-6000
1"fJlX: (407) 375-6fJ90
July 3, 1995
Lisa A. Tropepe, P.E.
Shalloway, Foy, Rayman & Newell, Inc.
1201 Belvedere Rd.
West Palm Beach, FL 33405
RE: Carrabba's Italian Grill File No. NWSP 95-008
New Site Plan
Acceptance - Site Plan Review Application & Submittal
Documents
Dear Ms. Tropepe:
On June 28, your submittal for Site Plan Review of the above-
referenced proj ect was reviewed for completeness. It has been
determined that the submittal is substantially complete and
accepted for further processing. A Planning and Zoning Department
staff member will be responsible for the review and coordination of
your site plan through the remainder of the Site Plan Review
process.
The next step in the review process is for the Technical Review
Committee to review the submittal for compliance with the review
standards identified in Part III, Land Development Regulations,
Chapter 4, Site Plan Review, section 8 and all applicable sections
of the Boynton Beach Code of Ordinances. The results of the review
will be available to you on July 28, 1995.
If I can be of further ass istance, please do not hesitate to
contact me at (407) 375-6260.
Very truly yours,
.A ,- I
,=- --""7~: iJ-"~./"
I ,
f~1'
Tambri "">J. Heyden
Planning and Zoning Director
TJH: jms
cc: Jamie Butler, Site Development Manager
Outback steakhouse
550 N. Reo St., Ste. 200
Tampa, FL 33609
a:18tAcptLtr,car
5ttnnU-a's (jateway to tfu (julfstream
PLANNING AND ZONING DEPARTMENT
MEMORANDUM NO. 95-502
FROM:
Robert Ikors, Public Works Director
Al Newbold, Deputy Building Official
Bill cavanaugh, Fire Prevention officer
Clyde "Skip" Milor, Utility Dept. Chief Field Insp.
Sgt. Marlon Harris, Police Department
John Wildner, Parks Superintendent
Kevin Hallahan, Forester/Environmentalist
Willlam Hu~~~~cto;~epartment of Development
Tambri J. Hey n, Pl~ning & Zonlng Director
September 14, 5
TO:
DATE:
SUBJECT:
Site Plan Review - 2nd Review
Project:
Carrabba's Italian Grill
Location:
Northwest corner of Target Shopping
Center (Southwest corner of Northwest
22 Avenue and congress Avenue)
Agent:
Lisa A. Tropepe
File No.:
NWSP 95-008
Attached is the amended site plan submittal for the above
referenced project for your final review and recommendation. We
would ask that you review this amended site plan submittal to
determine if the plans have been adjusted to satisfy comments
prevlously made by your department.
If your comments have been satisfied or if your comments can be met
at time of building permit, please advise the Planning and Zoning
Department in writing. If your comments have not been met, please
advise the planning and Zoning Department in writing.
Finally, we would ask that you include in your memorandum a
recommendation as to whether the project should be forwarded to the
planning and Development Board/Community Redevelopment Advisory for
consideration. Please return your memorandum and the amended plans
to the planning and zoning Department by 5:00 P.M. on September 22,
1995.
If you should have any questions regarding this plan, please feel
free to call Michael E. Haag at Extension 6260, who is coordinating
the review of this project.
cc: Carrie Parker, City Manager (Plans)
(Memo Only)
Floyd Jordan
Charlie Frederick
Tom Dettman
John Guidry
&:2ndRevMm.Csr
TO:
FROM:
DATE:
SUBJECT:
..
PLANNING AND ZONING DEPARTMENT
MEMORANDUM NO. 95-375
Tambri J. Heyden
Planning and Zoning Director
Michael E. Ha~~ J,T
Site and Zoning f~elopment Administrator
July 28, 1995
Site Plan
Project:
Location:
Agent:
File No.:
Review - 1st Review - New Site Plan
Carrabba's Italian Grill
southwest corner of N.W. 22nd Avenue
Boulevard) and Congress Avenue
Lisa A. Tropepe, P.E.
NWSP 95-008
(Gateway
The following is a list of 1st review comments regarding the site plan
review of the plans for the above-referenced proj ect. It should be
noted that the comments are divided into two (2) categories; the first
category is a list of comments that identify deficiencies from the
Ci ty' s Land Development Regulations (LDR) that are required to be
corrected and shown in compliance on the plans and/or documents
submitted for second (2nd) review in order for the project to continue
through the site plan review process. The second set of comment(s) are
recommendations that the Planning and Zoning Department staff believe
will enhance the proposed development. The applicant shall understand
that all documents and plans submitted for site plan and or permit
review are subj ect to additional comments. I recommend that the
applicant/agent contact me regarding questions related to the comments.
If the applicant is not intending to correct code deficiencies, they
should contact me regarding the procedures, application forms, fees and
submittal deadline dates for seeking relief from the code requirement.
I. SITE PLAN REVIEW COMMENTS:
/
2 .
3.
V
4.
5.
....
'} ~~
\~
Oft,
?
Add to the site data, found on the site plan, the parking
space computations that identify the number of required
parking spaces for the restaurant use. The computations shall
be consistent with the ratios identified in the zoning code.
[LDR, Chapter 2 - Zoning, Section 11. H. 16. d. 1.]
r/
On the site plan, dimension the width and length of the single
parking space phown in the northeast corner of the site. The
size of the space shall comply with the minimum standards
identified in city standard drawing B-90012.
Show, label and dimension on the site plan a twelve (12) foot
wide by thirty-five (35) foot long loading zone. [LDR,
Chapter 2 - Zoning, Section 11. J.]
/
On the site plan, dimension the width of all access aisles.
The aisle dimensions shall be consistent with the dimensions
identified on city standard drawing B-90013. Also provide
typical width and length dimensions for the regular and
handicapped parking spaces consistent with City standard
drawing B-90012.
The site plan depicts thirty-nine (39) interior parking
spaces. Add site data computations to the site plan
indicating the required and provided interior green space
(pervious area) to accommodate the thirty-nine (39) interior
parking spaces. Note: Twenty (20) square feet of green space
is required for each interior parking space. One tree is
required for each five hundred (500) square feet of required
green space. Amend the plans accordingly. [LOR, Chapter 7.5,
Article II - landscape Code, Section 5. G.]
~()\~ (U>
o.~~l
"'pr \'\~~
~J
on
page 2
Memorandum No. 95-375
1st review - Carrabba's Italian Grill
File No. NWSP 95-008
6.
I
7.
~
~~/
.r-
Considering the parking spaces for the entire platted project
are shared between all buildings in the proj ect, provide
separate parking space data that identifies the total number
of spaces existing for the entire project and existing on the
subject site.
Show on the site plan the location of the proposed free
standing sign. Also show the wall and site signage in
compliance with the sign code and community design plan.
[LOR, Chapter 21 - Sign Code and Chapter 9 - Community Design
Plan, Section 10. I]
8. The configuration of the building shown on the drawings titled
~ front, rear, right and left elevation view drawings do not
~. ~ match the layout and configuration of the building shown on
'L (jol ,~...the site plan and floor plan drawings. Correct the plans
~ .(r9~ '<' accordingly. It is recommended that compass directions be
... ~^"'~ used to identify the elevation view drawings of the huilding.
"'/9. ~omi t from the top edge of the building the red neon band.
~ [LOR, Chapter 9 - Community Design Plan, Section 10. F. 6.]
')
~
10.
~l)
'-J..~
'>Q t;~ ~
Identify on the elevation view drawings the location of the
color and material identified as E-4. Submit color samples of
the proposed colors. The color samples, colored elevation
view drawings and elevation view drawings shall identify the
colors by color name, color number or designation and
manufacturer I s name. All drawings shall be consistent in
showing and identifying materials and colors. [LOR, Chapter
9 - Community Oesign Plan, Section 5.]
11. Identify on the elevation view drawings the color of the
'\ decorative light fixtures. [LOR, Chapter 9 - Community Design
Plan, Section 5.]
12.
/}
13.
v
0"
~ \
.
~
NOTE:
,.
Identify on the elevation view drawings the color of the
awnings. Also identify on the elevation view drawings the
color of the geometric shapes located below the light
fixtures. Include the color of the rectangle shapes located
below the windows on the left elevation of the building.
[LOR, Chapter 9 - Community Design Plan, Section 5.]
14.
Show and specify on the site plan the specie, size, spacing
and quantity of landscape material proposed for the landscaped
areas identified on the site plan adjacent to the building.
Also, list the landscape material specifications (such as;
quality of plant material, installation procedures and
irrigation requirements) consistent with the specifications
identified in the landscape code. [LDR, Chapter 7.5, Article
II - landscape Code, Section 5. & 6.]
Change the color of the walls of the building to match the
color of the existing Target building. Also modify the design
of the exterior of the building to incorporate features from
the design of the existing Target building. Demonstrate on
the elevation view drawings that all roof top equipment is
properly screened. [LOR, Chapter 9 - Community Design Plan,
Section 11. A. C. O. E.]
Contact the building department to review drawings that
identify the colors of the existing Target building.
Page 3
Memorandum No. 95-375
1st review - Carrabba's Italian Grill
File No. NWSP 95-008
,
On the sign drawings identify the area of the pizza, pizza man
and all copy. Specify the color of the neon proposed for the
pizza and pizza man. Add to the drawing a section detail of
the 3" channel, "Bkg'd." and Italian grill signage. The
building signage shall comply with Section 10 I. of the Land
Development Regulations, Chapter 9 - Community Design Plan.
/16. Show, label and dimension on the site plan the covered entry.
~
15.
()
17. Indicate on the site plan the setback distance from the
/ leading edge of all sides of the building to the adj acent
\/ property lines. The setback dimensions shall be no less than
the setbacks required by Section 6. C. of the land development
regulations.
~18. Identify the symbol that represents curbing.
~. 19. specify on the elevation view drawings the overall height of
the building.
~. Specify on the dumpster detail drawing the color of the gates.
II. RECOMMENDATION
21. Show on the site plan and elevation view drawings the location
and height of the roof mounted equipment. It is recommended
that the elevation to the top of all walls of the building be
greater than or equal to the highest roof mounted equipment.
MEH:dim
"
" ,
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xc: Central File
s:carrabba.18t
I
PLANNING AND ZONING DEPARTMENT
MEMORANDUM NO. 95-329
TO:
Carrie Parker, City Manager
Clyde "Skip" Milor, Utilities Dept. Chief Field Insp.
Robert Eichorst, Public Works Director
John Wildner, Parks Superintendent
Bill Cavanaugh, Fire Prevention Officer
Sgt. Marlon Harris, Police Department
Al Newbold, BUilding Division
William Hukill, Director of Department of Development
Kevin H~~:rester/Environmentalist
Tambri J. ~den, Planning & Zoning Director
FROM:
DATE:
July 3, 1995
RE:
SITE PLAN REVIEW PROCEDURES
1st Review - New Site Plan
Project - Carrabba's Italian Grill
Location - Northwest corner of Target Shopping Center
(S. W. corner of N. W. 22 Ave. and Congress
Ave. )
Applicant - Jamie Butler
File No. - NWSP 95-008
Find attached for your review the plans and exhibits for the above-
referenced project. Site Plan Review approval for this project
will be granted by the City Commission. To ensure that the project
stays on line with the review time frame, I request that the plans
and exhibits be reviewed and formal written comments transmitted to
the Director of the Planning and Zoning Department no later than
5:00 P.M. on Julv 18. 1995. Do not return plans and exhibits.
Retain same for the review of the amended plans (second review).
Adhering to the following review guidelines will promote a
comprehensive review and enable the applicant to efficiently obtain
Technical Review Committee approval:
1. Use the review standards specified in Part III, Land
Development Regulations, Chapter 4, Site Plan Review, Section
8 of the code of Ordinances to review and formulate comments.
2. The documents submitted for the project were determined to be
substantially complete based on the submittal requirements
identified in Section 7 of the Site Plan Review Ordinance.
However, if the data provided to meet the submittal
requirements is insufficient to properly evaluate and process
the project based on the review standards or the documents
show code deficiencies, additional data and/or corrections
should be requested by the reviewer through the Planning and
Zoning Department.
3. Each comment shall reference the section of the code that is
incorrectly depicted on the documents.
4. Technical Review Committee member (s) shall identify in their
comments when the plans depict or when the location and
installation of their departmental required improvements may
conflict with other departmental improvements.
PLANNING AND ZONING DE
MEMORANDUM NO. 95,
VIII. DEVELOPMENT PLANS
F
cc: Dev, Plan, Util
Agenda Memorandum for
october 17, 1995 city Commission Meeting
TO:
Carrie Parker
city Manager
FROM:
---.. J
Tambri J. Heyden I ,,;,f .
planning and Zoning Director
DATE:
October 12, 1995
SUBJECT:
Carrabba1s Italian Grill - NWSP 95-0058
at the Target Shopping Center
Please place the above-referenced request on the october 17, 1995
City Commission agenda under Development Plans.
DESCRIPTION: This is a request from Lisa A. Tropepe, P. E. ,
Shalloway, Foy, Rayman & Newell, Inc., agent for American
Development corporation for site plan approval to construct a 6,238
square foot, 2 seat, one-story restaurant on a 1.617 acre
outparcel at th northwest corner of the Target Shopping Center.
The Target Shop ing Center is located at/t~e s~~~~ner of
.~:~;,)}~~~e '_ an gres~".(;vfi.4. '::-/'l'-w r - ~/ti&(O
~~~~~~ON: e Planning and Development Board, with a 7-0
vote, recommende approval subject to all staff comments (Public
Works Departmen Memorandum No. 95-171, utilities Department
Memorandum No.9 -297, Engineering Division Memorandum No. 95-364,
Building Divisio Memorandum No. 95-245 and 95-360, and Planning
and Zoning Depar ment Memorandum No. 95-524).
TJH:dim
AttachmenC
.'CCAUDd...,C.r
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~~7
PLANNING AND ZONING DEPARTMENT
MEMORANDUM #95-447
SITE PLAN REVIEW
STAFF REPORT
FOR
PLANNING AND DEVELOPMENT BOARD AND CITY COMMISSION
...,
October 10, 1995
DESCRIPTION OF PROJECT:
Project Name:
Carrabba's Italian Grill
Applicant:
Jamie Butler, owner
Agent:
Lisa A Tropepe, P.E.
Shalloway, Roy, Rayman & Newell, Inc.
Northwest corner of Target shopping Center,
Southwest corner of N.W. 22 Avenue and
Congress Avenue (See Exhibit A - location map)
Location:
File No.:
NWSP 95-008 (New Site Plan)
Land Use Plan
Designation:
General Commercial (G-C)
..."
Zoning
Designation:
Community Commercial (C-3)
Type of Use:
Italian restaurant
Number of
Units:
N/A
Square
Footage:
Site:
70,567 square feet (1.62 acres)
Building:
6,123 square feet
Surrounding Land
Uses and Zoning
District:
North
N.W. 22nd Avenue (Gateway
Boulevard) and farther north is
Mahogany Bay (apartments),
zoned PUD (Planned Unit
Development - Congress Lakes) .
""'"
South
Target Shopping Center, zoned
C-3.
East
Congress
east is
(Planned
ment)
Avenue and farther
Motorola, zoned PID
Industrial Develop-
West
Savannah
zoned PUD
Lakes)
Lakes
(part
Apartments,
of Congress
Existing Site
Characteristics:
The property (an outparcel within the Target
Shopping Center) is an improved lot with
parking and landscaping, but a vacant building
pad area. The infrastructure was constructed
with the required improvements for the Target
Commercial Plat.
""'"
Proposed
Development:
This request proposes construction of a 6,123
square feet bUilding to be used as a
/
page 2 of 2
Carrabba's Italian Grill
To: TRC Members
Re: Planning & Zoning Memo 95-329
5. When a TRC Member finds a code deficiency that is outside of
his/her review responsibility, the comment and the specific code
section may be included in their review comments with the name of
the appropriate TRC Member that is responsible for the review
specified.
6. If a TRC member finds the plans acceptable, he/she shall forward
a memo, within the time frame stated above, to the Planning and
Zoning Director stating that the plans are approved and they do
not have any comments on the plans submitted for review and
recommend the project be forwarded through the approval process.
All comments shall be typed, addressed and transmitted to the Director
of the Planning and Zoning Department for distribution to the
applicant. Please include the name and phone number of the reviewer
on this memo. Michael E. Haag will be the Planning and Zoning
Department staff member coordinating the 1st review of the project.
The Planning and Zoning Department will send the applicant a cover
letter which includes the comment(s) and directions to amend the plans
to comply with the comments and the procedures for resubmission. When
the Planning and Zoning Department receives the amended plans, they
will distribute the plans with a cover memo to all TRC Members for
review and approval.
TJH:dim
Attachment
xc: (Memo Only)
Floyd Jordan, Fire Chief
Charlie Frederick, Recreation & Parks Director
Thomas Dettman, Police Chief
John Guidry, Utilities Director
Central File
A: 1 Bt.RIIVt.r.l59
Page 2
Memorandum NWSP #95-008
Site Plan Review Staff Report
carrabba's Italian Grill
Concurrency:
restaurant (see Exhibit B - site plan) .
Traffic - The Palm Beach County Traffic
Division has reviewed the traffic generation
and impact proposed by this Target Center
outparcel (Carrabba's Italian Grill) and has
determined that there will be no net increase
in trips generated than that previously
approved for the Target Shopping Center and
the Catalina Center. Since this outparcel is
larger than was planned at the time of the
Target Shopping Center site plan approval, the
difference had to be reviewed for traffic
concurrency. There is currently a capacity
problem with Gateway Boulevard which this
shopping center directly has access to. To
avoid having to make improvements to Gageway
Boulevard, which are scheduled by the County
for next year, traffic concurrency was met by
reducing the 75,000 square feet of office use
vested as part of the Catalina Center, to
68,230 square feet.
Drainage - Insufficient drainage information
has been submitted for the Engineering
Division to certify compliance with the City's
drainage levels of service at the time of site
plan approval when it is required. The
Engineering Division is recommending that this
be postponed to time of permit review based on
the minor modifications proposed to the
existing site.
Driveway's:
The outparcel does not have direct access to a
public right-of-way, however one two-way major
driveway into the existing Target parking lot
offers access to the subject site. This
driveway is located on N.W. 22nd Avenue.
Parking
Facility:
The proposed parking facility contains the
required spaces for commercial or restaurant
use. Restaurant use of the facility would
require one parking space for every two and
~~e-half seats. With two hundred twenty two
['&22) seats planned in the restaurant, and
one hundred twenty five (125) parking spaces
provided (including five handicapped spaces),
the applicant more than meets the spaces
required. The 222 seat restaurant requires 89
parking spaces. It should be noted that there
is an agreement between the property owners of
Target and the subject site that allows cross
access and cross parking.
Landscaping:
The proposed development includes all minimum
landscaping required by code.
Building and
Site
Regulations:
The proposed development meets the require-
ments of the building and site regulations for
C-3 zoning. Total site area is 70,567 square
feet, building coverage is nine percent (9%)
and the height of the proposed one-story
building is twenty-one feet.
c2
page 3
Memorandum NWSP #95-008
Site Plan Review Staff Report
Carrabba's Italian Grill
Community
Design Plan:
...."
The proposed stucco building will match the
color of the adj acen t Target building and
includes green trim and green and tan awnings; ~/
colors that are compatible with the colors of
the neighboring structures. It should be
noted that the colors depicted on the color
elevation view drawing do not reflect the
colors of the Target building.
Signage:
signage will be on the facade of the building.
There will be one free standing sign on the
northeast corner of the parcel.
REVIEW OF DEPARTMENTAL COMMENTS:
Below is a list of those departments that have comments regarding
this request (See Exhibit "C" - staff comments):
DEPARTMENT
ATTACHED MEMORANDUM
Public Works
utilities
Fire
Police
Engineering pivision
Building Division
Parks and Recreation
Forester/Environmentalist
Planning and Zoning
...."
#95-171
#95-297
N/A
N/A
#95-364
#95-245,360
N/A
N/A
#95-524
The above comments from City departments are of a nature that may
be addressed on the building permit set of drawings.
RECOMMENDATION:
The Planning and Zoning Department recommends approval of this site
plan request, subject to reflection of staff comments and all other
applicable City of Boynton Beach Code of Ordinances on the plans
submitted for building permit.
...."
.DDC:ddc
xc: Central File
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PUBLIC WORKS DEPARTMENT
MEMORANDUM #95-171
..."
TO:
Tambri J. Heyden, Planning & Zoning Director
FROM:
Robert Eichorst, Public Works Director
SUBJ:
Site Plan Review - 2nd Review - Carrabba's Italian Grill
DATE:
September 18, 1995
The applicant must call the Public Works Department at 275-6201, prior to forming the dumpster
enclosure to ensure approach at the above site.
The project should be forwarded to the Planning & Development Board/Community
Redevelopment Advisory.
.
~--
obert Eichorst
ublic Works Dire<:-
..."
REIer
..,
""WI
"
\
q
MEMORANDUM
UTILITIES DEPT. NO. 95 - 297
TO:
Tambri Heyden, Planning Dire
FROM:
John A. Guidry, Utilities Director
DATE:
September 12, 1995
SUBJECT: Carraabba' s Italian Grill
2nd review
We offer the following comments on this project:
1) The Capacity Reservation Fee for this project, based upon a 1.5 inch
meter, is $1205.82. This fee is due within thirty (30) days of City
Commission approval. Payment of this fee can be precluded by paying the
full capital facilities charge within the thirty# day time period.(Section 26-
34(E))
2) Item no. 3 of our previous memo requested a note on the landscape plan
indicating a supply source other than city water. The notation does not appear
on this submittal.. Pleas~ add said note.(Comp. Plan policy 3C.3.4)
We have no objection to this plan proceeding to the City Commission.
Please refer any questions on this matter to Peter Mazzella or Skip Milor of this
office.
JAG/PVM
bc: Peter Mazzella
xc: Skip Milor
File
If)
W~'-'L->U'-'UW
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DEVELOPMENT DEPARTMENT
ENGINEERING DIVISION MEMORANDUM NO.
TO:
Tambri J. Heyden, Planning & zoning Director
~am HUkill, P.E., City Engineer
September 21, 1995
FROM:
DATE:
RE:
CARRABBA'S ITALIAN ORILL - 2ND SITS PLAN REVIS"
We have reviewed applicant's submittal for subject project sheets
1 of 4 thru 4 of 4 and have the following comments:
Revise documents to reflect all comments.
All plans submitted for specific permits shall meet the
City'S code requirements at time of application. These
permits include, but are not limited to the following;
site lighting, paving, drainage, curbing, landscaping,
irrigation and traffic control devices. Permits required
from agencies such as the FDOT, PBC, SFWMD and any other
permitting agency shall be included with your permit
request. #
Verify that existing exfil tration system is adequate.
Chap.6, Art.IV, Sec.5A, pg.6-7
Location of proposed curbs is not clearly defined on the
drawing. Chap.23, Art.I, Sec.5B15, pg.23-5
Photometrics must be approved for both pedestrian and
parking lot lighting before building permit can be
issued. . Chap.23, Art.II, Ala, pg.23-6
Wheel stops or curb required. Chap.23, Art.IIE, pg.23-7
Provide 27' backup area, all stalls. Chap.23, ArtII,Il,
pg.23-9
Provide handicap ramp and sidewalk locations. Chap.23,
Art. IlK, pg. 23-9 (DCA Accessibility Requirements Manual) .
We have no objection to forwarding of this project to the P&D Board
subject to our comments.
A.
B.
C.
D.
E.
F.
G.
H.
'WVH/ck
xc: Ken Hall, Engineering Aide
C:CARRADDA.1NI>
//
.."
..."
...",
.."",
BUILDING DIVISION
MEMORANDUM NO. 95-245
July 19, 1995
From:
Tambri Heyden, Planning & zoning Director
Al Newbold, Deputy Building Official
To:
Re: Carrabba's Italian Grill
New Site Plan Modification
N.W. corner of Target Shopping Center
(S.W. corner of N.W. 22 Avenue and Congress Avenue)
A review of the above 8ubject .it. by the Building Divi.ion ha.
been made per your request and we offer the following comments:
1.
Provide for site approval, a detail of the parking
light poles, showing the height, depth to meet 110 mph
wind and the type of lights.
5.
#
Provide handicap pedestrian access from the public
right-of-way to the building entrance.
Show the free-standing sign location.
Pylon sign height cannot exceed 20' maximum.
Pylon sign maximum size is 64 Sq. Ft.; plans show
171 Sq. Ft.
This site can only have the pylon sign if not part of
the other site under the same ownership.
2.
3 .
4.
6.
~~
AN:mh
cc: William V. Hukill, P.E., Department of Development Director
A:CAaIlABBA.Tac
/)
BUILDING DIVISION
MEMORANDUM NO. 95-360
r
I' 1 fJ-ry,A-'
September 27, 1995
TO:
Tambri Heyden
Planning & Zoning Director
..."
FROM:
Al Newbold
Deputy Building Official
RE:
TRC COMMENTS - SITE PLAN, 2ND REVIEW
CARRABBA. S ITALIAN GRILL
After reviewing the amended site plan, the Building Division
found that comments #1 and #5 in our memorandum 95-245 have not
been met. Comment #6 depends on the site ownership not being the
same as the center.
AN: bh
Attachment/memo 95-245
XC: William V. Hukill, P.E.
#
...",
...",
CARRABBA
..",
/3
PLANNING AND ZONING DEPARTMENT
MEMORANDUM NO. 95-524
TO: Tambri J. Heyden
planning and Zoning Director
FROM: Dan DeCarlo
Assistant Planner
DATE: October 10, 1995
SUBJECT: Site Plan Review - 2nd Review - New Site Plan
Project:
Location:
Carrabba's Italian Grill
Northwest corner of Target Shopping
Center-Southwest corner of N.W. 22nd
Avenue and Congress Avenue
Agent:
Lisa A. Tropepe
Shalloway, Foy, Rayman & Newell, Inc.
File No.:
NWSP 95-008
The following is a list of comments regarding the second review of
the above-referenced project. It should be noted that the comments
are divided into two (2) categories. The first category is a list
of comments that identify unresolved comments either from the first
review or new comments as a result of the second review. To show
compliance with these comments will not substantially alter the
configuration of the site and design of the building. The second
category is a list of recommendations I believe will enhance the
aesthetics and function of the project.
All comments and recommendations can be rectified on the plans at
time of permitting if the site plan request is approved. The
appl icant must understand that additional comments may be generated
upon review of the documents and working drawings submitted to the
Building Division for permits for the proposed project.
I. SITE PLAN REVIEW COMMENTS:
1. Incorporate a floor plan drawing with the set of plans.
The floor plan drawing shall indicate the number of seats
proposed for the restaurant.
2. Identify on the elevation view drawings the location of
the color and material identified as E-4. The color
samples, colored elevation view drawings, and elevation
view drawings shall identify the colors by color name,
color number or designation and manufacturer's name. All
drawings shall be consistent in showing and identifying
colors and materials.
3. Identify on the elevation view drawings the color of the
decorative light fixtures.
4. Identify on the elevation view drawings the color of the
awnings. Also identify on the elevation view drawings the
color of the geometric shapes located below the light
fixtures. Include the color of the rectangular shapes
located below the windows on the left elevation of the
bUilding.
5. Place a note on the elevation view drawings that
indicates all roof top equipment is screened in
compliance with the City code.
If
Page 2
Memorandum No. 95-524
2nd Review - Carrabba's Italian Grill
File No. NWSP 95-008
~
6. Since the traffic trips assigned to Carrabba's Italian
Grill come from the unbuilt office component within the
Catalina Center, the remaining square footage for the
Catalina Center will be reduced from 75,000 to 68,230
square feet.
7. It should be noted that the awnings are not back-lit.
II RECOMMENDATIONS
8. Recommend using melaleuca mulch instead of cypress mulch.
9 .
change the color of the walls (E-2 - shown on the
elevation view drawing) of the building to match the
color of the existing and adj acent Target building.
Also, change the color of the columns (E-l - shown on the
elevation view drawing) that are detailed on the building
to a tone compatible with the wall color. The applicant
has agreed to change the color of the bUilding to match
the Target building. It should be noted that the colors
depicted on the color elevation view drawing do not match
the color of the Target building.
~
NOTE:
If recommendations are approved, they shall be
incorporated into the working drawings required for
permits for the project.
DDC:bme
xc: Central File
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PLANNING AND ZONING DEPARTMENT
MEMORANDUM NO. 95-591
Agenda Memorandum for
October 17, 1995 city Commission Meeting
'1'0 :
Carrie Parker
city Manager
FROM:
~"I
Tambri J. Heyden . I j'r1-
planning and Zoning Director
DATE:
October 12, 1995
SUBJECT:
carrabba's Italian Grill - NWSP 95-0058
at the Target Shopping Center
Please place the above-referenced request on the October 17, 1995
City Commission agenda under Development Plans.
DESCRIPTION: This is a request from Lisa A. Tropepe, P. E. I
Shalloway, Foy, Rayman & Newell, Inc., agent for American
Development corporation for site plan approval to construct a 6,238
square foot, 22 seat, one-story restaurant on a 1.617 acre
outparcel at the northwest corner of the Target Shopping Center.
The Target Shopping Center is located at the southwest corner of
N.W. 22nd Avenue and Congress Avenue.
RECOMMENDATION: The Planning and Development Board, with a 7-0
vote, recommended approval subject to all staff comments (Public
Works Department Memorandum No. 95-171, utilities Department
Memorandum No. 95-297, Engineering Division Memorandum No. 95-364,
Building Division Memorandum No. 95-245 and 95-360, and Planning
and Zoning Department Memorandum No. 95-524).
TJH:dim
Attachment
.1CCAliInd....C.r
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