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OPERATING AGREEMENT '-,- 1\ ~..... ',. '.'. r.. '/. (, j '... I.'.'. (; 'J......~..-.. . 1. (li .. (J (; ''?' ~,~ .. \?}..... " to~, CITY OF BOYNTON BEACH DEPARTMENT OF PUBLIC WORKS Engineering Division Mr John Barbato, Vice-President Manager of Property Development POBox 9601 Natick, MA 01760-9601 ~..-> BECfJVED r ~ I 5 L;jQ2~ -, I ...............,..,------ ..,~ iL .""'......,---~ August 15,2002 RE Request for Reduction of Surety BJ's Wholesale Club Excavation & Fill Permit No. 01-16929 Dear Mr Barbato As you requested, enclosed please find a copy of Resolution No R02-106 This approves the reduction of Letter of Credit No 151261785 from $250,000 00 to $25,000 00 by the City of Boynton Beach Commission If you have any questions or need additional information, please feel free to contact me at 561- 742-6482 or David Kelley, Jr , P E.lP S M , City Engineer, at 561-742-6488 Sincerely, I(lu~~~~ t~ Laurinda LOgan,'R,E Senior Engineer \ LUck "'---~ xc' Jeffrey R. Livergood, P E , Director, and Public Works (via e-mail) H David Kelley, P E.lP S M , City Engineer, Public Works/Engineering (via e-mail) Quintus Greene, Director, Department of Development Nancy Byrne, Assistant Director, Department of Development Michael Rumpf, Director, Planning & Zoning Peter Mazzella, Assistant to the Director, Utilities File C:\My Documents\BJ's Wholesale Club Req, for Surety Reduction.doc America's Gateway to the Gulfstream 100 East Boynton Beach Blvd,. P,O, Box 310 Boynton Beach. Florida 33425-0310 Phone: (561) 742-6480 Fax: (561) 742-6285 DEVELOPMENT DEPARTMENT PLANNING AND ZONING MEMORANDUM NO 01-073 TO MIchael Rumpf P &Z DIrector LUSIa Galav .... ) \ PnncIpal PI FROM. DATE Apnl19,2001 SUBJECT BJ's Wholesale Club Operatmg Agreement As requested, I have revIewed the above referenced draft agreement and have the followmg comments. 1 ArtIcle 4.2 (Pg, 7) - Each platted parcel must meet the CIty'S parkmg reqUIrement for the use as developed unless a shared parkmg agreement IS antIcIpated or provIded for Under no CIrcumstances IS the parkmg reqUIrement to vary from what was shown on the Master Plan unless approved by the Planmng and Zomng DIVISIOn through the Minor ModificatIOn process. 2 ArtIcle 4 5, C ~ (Pg, 9) - Any and all project SIgnS must meet the reqUIrements of Land Development RegulatIOns Chapter 21, SIgnS, A 35- foot hIgh freestandmg SIgn IS not permItted nor IS each parcel permItted a freestandmg monument SIgn. 3 ArtIcle 5 17 (A) (Pg. 16) - the use of barbed WIre IS not permItted m thIS C-3 zomng dIstnct. 4 ExhibIts D, E, and F (Pgs. 27-29) - The graphIcs for these exhibIts were not mcluded m the draft. The final exhibIt should match the approved BJ's master plan and SIte plan, Cc Nicholas Igwe, ASSIstant CIty Attorney Galav Lusia From. Sent: To Subject: Rumpf Michael Friday April 06 2001 3 36 PM Galav Lusia BJ's Unified Control I believe it is too late to comment on this document due to closing of the property I shared my concerns with Nick Igwe who has gained comfort due to his disclaimer that it must still comply with city regulations and since the city is not a party to it. I am not as comfortable as we will have to answer to the first company that comes in to develop an outparcel thinking they can have their own sign If you have time you could place your comments in a memorandum for the file for our records I will return the document to you at minimum for placement in the file MR. 1 NAVON, KOPELMAN, O'DONNELL & LAVIN, P A \ j' j' ( ) 1\ \i I : \" \ r 1. \ \ \ Emerald Park Office Center 2699 StirlIng Road Suite 8-100 Fort Lauderdale Florida 33312 Telephone (954) 967 2788 Facsimile (954) 983 7021 E-MaIl staff@nkolaw com Joel D Kopelman Andrew T Lavin Samuel D N avon Garry W 0' Donnell Wnter's Direct E-Mail.jkopelman@nkolaw.com Gregory E Schwartz Apnl13, 2001 James Cherof, Esq., CIty Attorney CIty Attorney's Office lOa East Boynton Beach Boulevard Boynton Beach, Flonda 33425 ,"'''' ""nl I;, {!Ji; Re' BJ's Wholesale Club, Inc. ("B1's") - Operatmg AgreementlUmfied Control Document By and Between B1's Wholesale Club, Inc., BIrchwood/Boynton, LLC and SouthTrust Bank Our FIle No 608 012 Dear Mr Cherof: I am enclosmg WIth thIS letter a copy of the recorded Operatmg Agreement WhICh serves as the Umfied Control Document for the planned commercIal development where the B1's Wholesale Club WIll be located. The enclosed document IS bemg sent to you pursuant to Nicholas Igwe's letter to me dated March 14, 2001 Thank you and Mr Igwe for your kmd cooperation m tills matter JDK:maa Enclosures cc Nicholas Igwe, Esq (w/encl .) ASSIstant CIty Attorney RIchard Doran, Esq (w/o encls, VIa fax) Mr PhIl Halt (w/o encl.) , KOPELMAN, O'DONNELL & LAVIN, P,A. \ \Host\jdk\Letlers,O 1 \CheroffJames,05, wpd V4 13 01 FRI 08 44 F.~l 561 6J- - 84 L-\NDAMERICA CLTIC 'WPB I4J 005 Rpr-l 02:08pI01-140847 DFtD ... 2454 Pg 171 7 ,...................,. 3) Prepared by' RIchard C Doran Attorney at Law J One Mercer Road Natick, MA 01760 LAND AMERICA Financial Group, IDO. We.' Palm Beach Brauch 420 Columbia Drive, Suite 10S Welt PBlt:1 Beach, PL 33409 Phone' S61-640-7740 P!..x: 561-640-9731 DIOd3S;~ OPERATING AGREEMENT THIS OPERATING AGREEMENT IS made and entered mto as of the ~ day of ~\)'t \ \ , 2001, between BJ's Wholesale Club, Inc., a Delaware corporation ("B1's") havmg an address of One Mercer Road, Nahck, MA 01760, BIRCHWOODfBOYNTON, LLC ("Developer") a Florida lImited hablhty company having an address of 1001 N W 62d Street, Suite 320, Ft. Lauderdale, FL 33309 and SouthTmst Bank ("SouthTmst") existing under the laws of the State of Alabama and havmg an address 500 Office Park Dnve, Stute 300, Bmnmgham, Alabama 35223 WITNESSETH, WHEREAS, B1's IS the owner of a certain tract of land described In ExhibIt A attached hereto (the "B1's Parcel") and identified as such on Exhibit G (the "Site Plan") attached hereto, and WHEREAS, Developer IS the owner of a certam tract of land described m Exhibit B attached hereto compnsing two (2) outparcels (the '. Developer Parcels") and identIfied as such on the Site Plan, and WHEREAS, SouthTrust is the owner of a certam tract of land described in Exhibit C attached hereto compnsing the outparcel identIfied as the "Bank Parcel" on the Site Plan, and WHEREAS, the Developer Parcels and the Bank Parcel are herein collectively described as the "Outparcels", and WHEREAS, the BJ's Parcel and the Outparcels (collectively the "Shoppmg Center") are contiguous and adjacent as shown on the Site Plan, and WHEREAS, the BJ's Parcel includes the BJ's Acc,ss Way so designated on the Site Plan, and Occupants of the Outparcels WIll use the BJ's Access Way, m common with BJ's, for access, mgress and egress as shown on the Site Plan, and Boynton Beach, FL Opel'almg Agreement 04 13/01 FRI 08 4~ FAX 561 6 - ~84 LANDA~IER I C,L CLT I C/WPB ( 141006 2454 Pg 1718 WHEREAS, the Developer Parcel mcludes the Developer Access Way so designated on the Site Plan, and BJ's will use the Developer Access Way, in common with Occupants of the Outparcels, for access, Ingress and egress as shown on the Site Plan, and WHEREAS, the BI's Parcel includes the stormwater dramage and retentIOn system shown on the SIte Plan, and the Outparcels WIll use the stormwater dramage and retentIOn system, In common with BI's, and WHEREAS, the partIes hereto Intend to develop and operate the Shoppmg Center In conjunctIOn with each other and in order to effectuate the common use and operatIOn thereof they deSIre to enter into the agreements herem contained, NOW, THEREFORE, m consIderatIon of the mutual agreements herein contained, it IS agreed as follows. ARTICLE I DEFINITIONS 1 1 "Access Wavs" shall collectIVely mean the BJ's Access Way and the Developer Access Way 1.2 "Agreement" shall mean this Operating Agreement. 1,3 Floor Area, "Floor Area" shall mean the area computed by measurements of the ground floor made to and from the outSIde of exterior walls of the buIlding m question exclusive of (a) mezzanines not open to customers and occupied incidental to ground floor retaIl operation and (b) utility and equipment rooms. If the Shopping Center includes such areas, basement floor area, mezzanine floor area open to customers and upper story floor area shall be counted as one. half of the actual floor area as so measured. Dunng any penod of rebuildmg, repamng, replacement or reconstruction of a bUIlding, the Floor Area of that bUIldmg shall be deemed to be the same as eXIsted immediately pnor to that period, 1 4 Outdoor Areas, "Outdoor Areas" shall mean all areas not WIthin a building, including without limitation, parking areas, driveways, walkways, retention ponds and sImIlar storm dramage facilities, 1.5 ~ "Party" shall mean. (i) each signatory hereto, and (ii) after compliance with the notice and assumption requirements set forth below, their respective successors and assigns, BJ's, Developer and SouthTrust shall be liable for the performance and observance of all terms and conditions herein set forth WIth respect to the BJ's Parcel, the Developer Parcels, and the Bank Parcel respectively, and such habIhty shall continue with respect to any portIOn thereof transferred by such Party until the notice requirement set forth below is complied with and until the transferee owner or holder has assumed to, and agreed ,with, the other Party from time to time, to perform and observe all of the agreements and condItions on the part of the transferring Party thereafter to be performed or observed hereunder with respect to such portion thereof at which time the transfemng Party's liabihty shall termmate WIth respect to such portion thereof, BoynlDn Beach, FL Operating Agrecmenl 2 U4 13 Ul "Rl U8 45 ~AX 501 04U 5384 L\,\D:lJI1::RlCA, CLlIC, \\PH I{&J UU f OpD--.:II 2454 Pg 1719 except for any liablhty accrumg pnor to the date such notice reqUIrement is met. Any transferee shall automatIcally become liable for performance and observance of all terms and conditions hereunder which accrue subsequent to such transfer, mcludmg WIthout lImltation, those which occurred prior thereto and are then continuing to occur thereafter, and notwithstandmg the absence of the execution of such assumption agreement and, III the absence thereof, the liability of the transferor and the transferee owner or holder hereunder shall be jomt and several Any Person transferring all or any portion of Its mterest m the Shoppmg Center shall give notice to all Parties of such transfer and shall mclude therem at least the followmg mformatIon (a) the name and address of the transferee; (b) a copy of the survey showmg the locatIOn and indicating the legal description of the portion of the Shoppmg Center transferred If less than all of the transfemng party's interest is transferred, and (c) an ongmal of an agreement, m recordable form, by which the transferee assumes the oblIgatIons of the transferor under this Agreement, as aforesaid. 1 6 Person. "Person" shall mean each mdIvidual partnership, firm, aSSOCiation, corporation, trust or any other form of bus mess or governmental entity 1 7 Prolect Sign. See Section 4.5(A). 1 8 Proiect Sign Easement Area. See SectIOn 4 5(A). 1 9 Occupant. "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 any lease, sublease, license, concession agreement or other Similar agreement or as a tenant-at-will. 1 10 "Permittee" Shall mean all Occupants and the officers, directors, employees, agents, contractors, customers, vendors, suppliers, viSitors, invltees, licensees, subtenants, and concessionaues of Occupants to the extent that their activities relate to the Intended use of the Shoppmg Center 1 11 Tract. "Tract" shall mean that portion of the Shopping Center owned by a Party, initially the BJ's Parcel as to BJ's, the Developer Parcels as to Developer and the Bank Parcel as to SouthTrust. ARTICLE II EASEMENTS 2.1 Ingress and Egress~ Easements \ (a) BI's, as the owner of the BI's Access Way, hereby grants and conveys to Developer and to SouthTrust, as appurtenant to each of the Outparcels, for their respective use and for the use of their respective Permittees, a non-exclUSive, perpetual easement for the BO)'lllnn Beach. FL Operating ABRemenl 3 U~ Id Ul ~Kl U~ ~a ~~~ aUl UQU adO~ L.'"\.~'tU:1,.'lCl\1\"'t\ "-LIl\... r D ~uvu DP""- 2454 Pg 1 7201 passage of vehicles and pedestnans across the B1's Access Way, as the same may from time to tIme be constructed and mamtamed for such use, and for no other purpose Such grant speCifically excludes the nght to park vehicles on the B1's Access Way (b) Developer, as the owner of the Developer Access Way, hereby grants and conveys to BI's and to SouthTrust, as appurtenant to the B1's Parcel and the Bank Parcel, for their respective use and for the use of their respeCl1ve PermIttees, a non.exclusIve, perpetual easement for the passage of vehicles and pedestnans across the Developer Access Way, as the same may from lime to time be constructed and maintained for such use, and for no other purpose. Such grant specIfically excludes the nght to park vehicles on the Developer Access Way Developer also grants to BI's the right and easement to perform such mamtenance and repaIrs to the Developer Access Way as B1's deems necessary or appropriate, consistent WIth the terms and conditions of this Agreement. (c) The Developer, as owner ofthe Developer Parcels, SouthTrust, as owner of the Bank Parcel and BJ's, as owner of the BJ's Parcel, hereby grant and convey, each to the other, for the benefit of the Outparcels and the B1's Parcel, a non-exclusive easement and right to the use during the term ofthis Agreement ofthe parking areas from time to tIme mamtamed on the Parcel(s) of the granting owner, for purposes ofvelucular parking. Notwithstanding the foregomg easements, each owner shall maintam on its respective Parcel the parking ratio reqUired pursuant to Section 4.2 hereof. BJ's and Developer hereby acknowledge and agree that the foregoing easements for parking shall not apply or inure to the benefit of any property or Parcel other than the Outparcels and the B1's Parcel. (d) SouthTrust, as the owner of the Project Sign Easement Area, hereby grants and conveys to B1's, as appurtenant to the BI's Parcel, a non-exclusive, perpetual easement for access to and across the Project Sign Easement Area for the purpose of constructIon and mamtenance of the Project Sign, including, without limitation, the nght to perform such commercially reasonable work upon the Project Sign Easement Area as may be necessary in connection with construction and maintenance ofthe Project Sign. Dunng the term ofttus Agreement, SouthTrust shall not grant any easements over, through or across the Project Sign Easement Area to any party other than BJ's WIthout BI's pnor wntten consent. SouthTrust shall not erect any Improvements or install any landscaping in the Project Sign Easement Area wluch impairS the visibIhty ofthe Project Sign. (e) The easements granted 111 this SectIOn 2.1 and in Section 2,2 below shall be for the benefit of, but not restncted solely to, the owners of the Outparcels and the B1's Parcel, and each such owner may grant the benefit of such easement to the tenants or subtenants and other occupants of the Outparcels and the BJ's Parcel for the duratIon of such occupancy, and to the customers, employees, agents and business invitees thereof; but same is not mtended nor shall It be construed as creatmg any rights m or for the benefit of the general public nor shall it affect or benefit any real property outSide ofthe Shopping Center Such easement areas are reserved for said use for the term of this Agreement. 2.2 Stormwater SYstem. B1's, as the owner of ilie B1's Parcel, hereby grants and conveys to Developer and to SouthTrust, as appurtenant to each of the Outparcels, for their respectIve use and for the use of theIr respective Permittees, a non-exclusive right to utIlIze the Boynton Belch, FL Openlinl Agreement 4 . --------------- 04/13/01 FRI 08 46 FAX 561 64n -184 L~~DAMERICA CLTIC,WPB @009 2454 Pg 17e1 stormwater dramage and retention system to be constructed by B1's on the B1's Parcel so long as such system IS ill eXistence and operatmg. B1's reserves the nght to alter and replace such system from time to tIme without the need for consent from Developer or SouthTrust, prOVided such changes shall not matenally adversely affect the abilIty of the Outparcels to use such system, ARTICLE III MAINTENANCE AND REPAIR 3 1 Common Area Mamtenance. (A) Each Party shall mamtam, or cause to be maintained, all improvements on its Tract in good repair and 10 a safe condition and in compliance with all applicable governmental laws, ordinances, rules, regulations and orders and the provisIOns of this Agreement, including without limitation, subsection (C) hereof, and without exception for damage or destruction due to casualty or any other cause whatsoever In addition, BJ's will mamtaill the Access Ways and the stormwater dramage and retention system, subject to reimbursement as set forth ill SectIon 3 1 (E) below (B) Until any portion of the Shoppmg Center hereunder required to be constructed is imtlally Improved, It shall be graded so that surface water dramage shall not adversely affect another Tract, planted in order to reduce dust and thereafter kept mowed if necessary or otherwise mamtained, free of debris, and mamtamed m order to prevent erosion and present an attractive appearance consistent with first class shopping center practIce in the area of the Shopping Center (C) Following initial improvement of any parcel included within the Shopping Center, the mamtenance reqUIred hereunder with respect to such parcel shall include: (i) care and replacement of planting and other landscapmg (to the extent shown on the site plan) and mamtenance of an automatic spnnkler system, if any; (ii) adequate marking and stnpmg or parking areas; (iii) mamtenance of electncal equipment and facilities, mcluding electric 11ght replacement; (iv) repair and replacement of potholes and other damaged portions of the paved area so as to maintain the same in a smooth conditIon and evenly covered with appropriate materials; (v) repair, replacement, service, regulatio~, and maintenance of all common utility lines, culverts, grease traps, roaGs, driveways, sidewalks, curbs, and parking areas; BoynlOn Beach, FL 5 Operarins Asreemenl U 4 1 ~ U 1 l'lt 1 U 0 -l r' '\_\. '-J U.l U '* U ~,t.j 0" L.:\..~U~\.lJ.C.l\.l\...~--\ \...LJ. Lv 11..J ..", QP-- ~ 2454 Pg 1 722 (vi) garbage dIsposal and the removal of all papers, debns, filth, and refuse from, and sweepmg of, all portlOns of the Outdoor Areas when necessary to keep the same m a clean condItIOn (but not garbage dIsposal or trash removal of garbage or trash generated by Identifiable Occupants of the Shoppmg Center) (D) Each Party shall perform Its obligatIons under this Section m a good and workmanlike manner and in accordance WIth all apphcable laws, using new materials of the first- class quahty RepaIrs and replacements to the Outdoor Areas, includmg matenals. shall be of a like kind in nature and scope as the origmally constructed Outdoor Areas. To the extent reasonably possible, all repaIrs and mamtenance shall be scheduled to occur pnor to or after nonnal bUSIness hours of the ShoppIng Center (E) From and after the date a temporary or permanent certificate of occupancy is Issued WIth respect to an Outparcel, the party WIth respect to whose Tract such a temporary or permanent certificate of occupancy is issued shall reimburse BJ's for the Outparcel Share (defined below) ofBJ's costs and expenses Incurred In Insunng and maintaining the stormwater draInage and retention system and the Access Ways in conformity With SectIon 3 1(C) above, The owner of an Outparcel shall make such payments to BJ's not later than thirty (30) days following receipt of BJ's Invoices therefor, wluch inVOIces shall not be submItted more often than monthly The Outparcel Share shall mean a fraction, the numerator of wluch IS the acreage of any Outparcel for which a temporary or permanent certIficate of occupancy has been issued and the denommator of wluch IS the acreage of the BJ's Parcel plus the acreage of all Improved Outparcels, 3.2 Casualty In the event any building Improvements are damaged by fire or other casualty (whether insured or not), the Party upon whose Tract such bUIlding improvements are located nnmedIately shall remove the debns resulting from such event and provIde a sightly bamer surrounding the same and, Within a reasonable time thereafter, shall eIther (i) repair or restore such bUIlding Improvements so damaged, such repaIr or restoratton to be performed In accordance WIth all provIsions of this Agreement, or (Ii) erect other building improvements In such location, subject to all provisions of thIS Agreement, or (ui) demolish the damaged portion of such buildIng improvements and restore the area occupied thereby to an attractive conditlOn. Such party shall have the option to choose which of such alternatives to perform, but such Party shall be obligated to perform one of such alternatives, Such Party shall gIve notice to each other Party within a reasonable time of which alternative it elects, ARTICLE IV OPERATION OF THE SHOPPING CENTER 41 Users, , (A) The Outparcels shall not be used for the sale or display of any pornographic materials or for a mortuary or for any manufacturing or residential purposes or for Boynton Beach. FL Openrinl Apcment 6 u.. 1...> 1'1\.1 ORB 2454 Pg 1 723 a gas station or a car wash or a school or other place of public assembly, or for any entertainment purposes such as a cmema, theater, skatmg rink, bowling alley, bar (except as a use ancillary to a restaurant), discotheque, dance hall, amusement gallery, poolroom, health club, massage parlor gymnasium, sporting event or off-track betting faCIlity, or for the sale of alcohohc beverages for off.premises consumption, or for any non-retaIl use other than offices mcidental to the operation of a retaIl business (B) The BJ's Parcel may be used for any purpose permItted under applIcable law provIded that such use complies with the parking requirements heremafter set forth. (C) NeIther the BI's Parcel nor any of the Outparcels shall be used for any purpose which shall emit unreasonable amounts of nOIse, odors, smoke, fumes, dust, particles or vibrations nor shall any occupants of eIther Tract use flashing lights or search lights whIch are visible from any outdoor area. 4.2 Parkmg and Other Requirements, (A) After the mitlal construction of their respective improvements, each Party hereby agrees Its Tract shall always thereafter contain sufficient ground level, standard automobile SIze parking spaces in order to comply with the followmg mInImUm reqUlrements. (i) as to the BJ's Parcel, the lesser of: (x) five hundred fifty (550) parking spaces, or (y) four and one-half (4 YI) parking spaces for each one thousand (1000) square feet of Floor Area located on the B.J's Parcel, provided, however that if the buildmgs located on the BJ's Parcel shall exceed the Floor Area of the buildmgs on the BJ's Parcel shown on the Site Plan, Clause (x) shall not apply; and (ii) as to each of the Outparcels, five (5) parking spaces for each one thousand (1000) square feet of Floor Area located thereon, (B) If all or a portion of the Outparcels shall be used for a restaurant (except for a restaurant located within a retail use WIthout a separate exterior entrance) the parking requIrement set forth in this Section shall be deemed modified to substitute a requirement of ten (10) parking spaces for each one thousand (1000) square feet for Floor Area used as a restaurant not serving alcoholIc beverages and twelve (12) parking spaces for each one thousand (1000) square feet of Floor Area used as restaurant serving alcoholIc beverages m place of the requIrement offive (5) parking spaces for each one thousand (1000) square feet of Floor Area in each instance, and if any business use on either Tract contains a drive-up unit (such as remote banking tellers or food ordenngldispensing facility), then there shall also be created space for stacking not less than five (5) automobiles for each drive-up umt. (C) Each Outparcel shall at all times contam a sufficient number of parking spaces to comply with the requirements of this Section wittI respect to the busmess conducted thereon WIthout the need for parking spaces located outside of such Outparcel. BO)11lon Beach. FL Openl\ing Agreement 7 U~ IJ Ul ~KI U~ 4~ ~A~ aUI U4U ~4 L.'I..~U.'Bltl<lL1\ LLIIL lIru f..!6JU.L,- ORl 2454 Pg 1 724 (D) Each Party agrees that the design of the parking areas on Its Tract shall comply wIth all apphcable govenunentallaws, ordmances, roles, regulations and orders, without vanance or special permit. In the event of a condemnation, or sale or transfer in lieu thereof, that reduces the number of usable parkmg spaces below that wluch IS reqUired herem, the Party whose Tract is so affected shall use its best efforts (including usmg proceeds from the condemnation award proceeds or settlement) to comply wIth the parkmg reqUirements set forth above, If such compliance is not possible, such Party shall not be deemed m default hereunder, but shall not thereafter be penmtted to expand the amount of Floor Area located upon Its Tract; and If such Floor Area IS thereafter reduced, then it may not be subsequently increased unless the parking requirement is satisfied. (E) No Party shall alter the grade elevatIons on any porhon of ItS Tract from those establIshed by the plans and speCIfications ImtIally approved by BJ's If such alteratIon would mcrease the flow of surface water onto another Party's Tract, affect ingress and egress or otherwise adversely affect another Party's Tract. 4.3 Building Imorovements. (A) If a portion of any BUIldmg Area IS at one pomt m tune paved and used as a parking area or other non-bulldmg area, such portion may be subsequently used as Building Area prOVIded that such construction complies with all parking requIrements and other provisions of this Agreement. (B) Except as expressly otherwise provided m Section 4.3 (C) below, no building on an Outpareel shall exceed twenty-two (22) feet above grade, and no other buildmg m the Shopping Center shall exceed thirty-five (35) feet above grade. No mechamcal eqUIpment, penthouse or similar appurtenant structure located on any such building shall extend upward above the top of any buildmg more than seven (7) feet. (C) Notwlthstandmg the twenty-two (22) foot heIght lImitation contamed in SectIOn 4.3 (B) above, SouthTrust IS expressly granted the nght to constmct a buildmg on the Bank Parcel which contains a tower of approximately twenty-seven (27') feet six (6") mches in heIght, so long as such building conforms to the elevation plan attached hereto as Exhibit D 4 4 LIghtmg, Each Party shall keep the Outdoor Areas on each improved tract fully illuminated each day from dusk to at least one (1) hour after the last business operation thereon has closed, except that BJ's shall keep both the Developer Access Way and the BJ' ~ Access Way illuminated. BJ's shall keep the Access Ways illummated for longer hours than stateu m the preceding sentence at the request of any Party, provided that such party agrees to pay for the cost thereof withm ten (10) days of receipt of any mvoice from BJ's for such costs. 4.5 ~. , (A) Subject to all applicable local laws, regulations, ordinances and condItions of development orders of the City of Boynton Beach, a municipal corporation of the State of Boynton Beach. FL Operating AgRement 8 U4 1J U1 I'K1 U~ 4~ tAA abl b4U 1~4 L-I.,~lJiHIJ<.J(ICr\, CLIIC "rn lI:!:I V LJ ORI ;2 454 Pg 1 725 Flonda ("City"), B1's may erect a freestandmg Sign (the "Project Sign") on the Bank Parcel in the locatIon designated "Project Sign Easement Area" on the Site Plan and described m ExhibIt ~attached hereto The Project Sign shall generally confonn to the sign rendering attached hereto as ExhibIt F. Brs shall mamtam and insure the Project Sign consistent with normal commercial practices, BI's acknowledges that the pavmg of the Bank Parcel may extend mto the Project Sign Easement Area, and B1's agrees that such pavmg shall not be considered an encroachment, so long as such pavmg does not matenally I11terfere With the Project Sign. (B) B1's intends that the Project Sign shall contain a B1's sign panel containing 104 square feet. To the extent that applIcable local laws, regulatIOns and ordinances permit more than 104 square feet of Sign panels on the Project Sign, subject to the conditions and lImitations set forth below, (a) SouthTrust may mstall a SIgn panel on the Project Sign and (b) Developer may grant to up to two (2) tenants or occupants of the Developer Parcels the nght to install a sign panel on the Project Sign. In such event: (i) Developer shall payor cause any such tenant or occupant of a Developer Parcel to pay Brs for a share of the InstallatIOn, illumination, Insurance and mamtenance of the Project Sign, based on the relative size of the Developer Parcel panels and the other panels on the Project Sign, (ii) SouthTrust shall pay Brs for a share of the installatIon, insurance, IlluminatIOn and maIntenance of the Project Sign, based on the relatlve size of the SouthTrust panel and the other panels on the Project Sign, (ili) Such Sign panels in the aggregate shall not be larger than 50% of the size of the Bl's sign panel and shall be located below the Bl's sign panel, and (iv) All such sign panels shall be subject to the approval of B1's, which approval shall not be unreasonably WIthheld, delayed or condIhoned, and shall be in good taste and consistent WIth first class shopping center practice In the area of the Shoppmg Center Payments pursuant to Section 4 5(B)(i) or (ii) above shall be made to BJ's wIthm thirty (30) days following receipt of inVOIces therefor, which Invoices shall not be submitted more often than monthly (C) In addition. (and also subject to all applicable local laws, regulations, ordInances and conditions of development orders of the City of Boynton Beach), BJ's may erect a freestanding sign (the "BJ's Pylon Sign") on the BJ's Parcel advertiSIng the bUSIness or businesses conducted thereon. Each Outparcel may contain one (1) freestanding sign identifying the busmess conducted thereon prOVIded such SIgn shall be no higher than thirty-five (35) feet above grade and shall not interfere with the visibIlity of the free standmg signs on the BJ's Parcel In the locatIons shown on the SIte Plan. (D) Notwithstanding the foregOIng, each larty shall be permitted to place withIn the Outdoor Areas located on its Tract directional signs or informational signs such as "Handicapped Parking", the temporary display ofleasing information and the temporary erection of one sign Identifying each contractor working on a construction Job Boynton Belch, FL Operalinll AlJIftment 9 . ----- U... i..> U.l "1\1 UO 'i;:' P!\..\. JU..L u~u 10.. L..1.....,,1.I~'\.!..u...:.I.\..1.vn./ .....L~.1."-' 't!.:.I.....L~ ORB 2454 Pg 1 726 (E) No sign shall be mounted on the roof of any building in the Outparcels. No exterior signs in the Shopping Center, or any Intenor SignS visible from the extenor of any bUlldmg or other structure in the ShoppIng Center, shall have flashing hghts or moving parts All extenor signs In the Shopping Center shall be professionally made. 46 Insurance. (A) Each Party shall maIntain with respect to the Outdoor Areas on its Tract, throughout the term of this Agreement, a policy or polIcies of commercial general lIability Insurance, such polIcIes of Insurance to name each Party as an addItional Insured as theIr Interests may appear on the others' policies thereunder and to be Issued for pen ods of not less than one (1) year by responsible insurance companies authorized to do busmess m the State of Florida. Each Party shall deliver certificates of Insurance evidencmg such policies to each other Party at or before the recordmg of this Agreement and each renewal policy at least ten (10) days pnor to the expIratIon ofthe pohcy Its renews. All such insurance policies shall provIde that such polIcies shall not be canceled or matenally modified without at least twenty (20) days pnor wntten notice to each Party Such insurance shall be 10 the amount of Three MillIon Dollars ($3,000,000), single limit. In lieu of mamtaming the foregoing policy of policies, BI's may maintain a program of self insurance for the nsks covered by such policy or polICIes so long as HI's (or the corporate parent or any other affiliate ofBJ's agreeing in writing to be responsible therefor) shall have a fmanclal net worth m excess of One Hundred MillIon Dollars ($100,000,000), (B) BI's shall save Developer and each Occupant of the Developer Parcels harmless from, and defend and mdemnify Developer and such Occupants against, any and all mJury, loss or damage, and claIms for mjury, loss or damage, of whatever nature (except to the extent caused by the negligence or intentional misconduct of an 10demmfied party), to any Penmttee of the BI's Parcel as the result of an occurrence or mJury on the Access Ways including without lImItatIOn, reasonable attorney's fees. It IS a conditIOn of this save hannless and indemnification that BJ's shall receive notIce of any such claim agamst Developer promptly after Developer first has knowledge thereof (C) BI's shall save SouthTrust and each Occupant of the Bank. Parcel harmless from, and defend and mdeitmify SouthTmst and such Occupants against, any and all injury, loss or damage, and claims for illJury, loss or damage, of whatever nature (except to the extent caused by the negligence or intentional misconduct of an indemnified party), to any Permittee of the BI's Parcel as the result of an occurrence or injury on the Access Ways Including WIthout limitation, reasonable attorney's fees. It is a condition ofttus save harmless and indemnification that BJ's shall receIve notice of any such claim against SouthTrust promptly after SouthTrust first has knowledge thereof. (D) Developer shall save BI's and each Occupant of the BJ's Parcel harmless from, and defend and mdemnify BI's and such Occupants 'flgainst, any and all injury, loss or damage, and claims for mjury, loss or damage, of whatever nature (except to the extent caused by BJ's negligence or mtentlOnal mIsconduct), to any Permittee of the Outparcels (if the Outparcels are owned by separate PartIes at the time of such injury, loss or damage, such Boynlcn Beaeh. FL Operaling Agreement 10 U-\ IJ U[ 1"1<[ 111l ..,U I".U. ;,Ill Il'lll \O'l L-\_"U-\.'Jc'r<.ll..._-\ LLll L tt.- D ~V.J..v OF 12454 Pg 1 727 reference shall mean only the Outparcel owned by such Party) as a result of an occurrence or injury on the Access Ways, includmg wIthout lImitatIon, reasonable attorney's fees, It IS a condition of thIS save harmless and indemmficatIon that Developer shall receIve notice of any such claIm agamst B1's promptly after B1's first has knowledge thereof. (E) SouthTrust shall save BI's and each Occupant of the B1's Parcel harmless from, and defend and Indemmfy B1's and such Occupants agamst, any and all Injury, loss or damage, and claims for injury, loss or damage, of whatever nature (except to the extent caused by B1's negligence or intentional mIsconduct), to any PermIttee of the Bank Parcel as a result of an occurrence or mJury on the Access Ways, mcludIng WIthout lImItation, reasonable attorney's fees. It IS a condItIon of this save harmless and IndemnIfication that SouthTrust shall receive notice of any such claIm agaInst BJ's promptly after B1's first has knowledge thereof. 4 7 Zomng: NUlsance, (A) NeIther Party shall seek, nor allow any other Occupant of its Tract to seek, a variance or waiver from the mmlmum number of parkmg spaces requIred for Its Tract and Its Occupants from time to time under the zomng and other laws and regulations in effect as of the date hereof. Provided, however, the foregomg shall not prevent a Party from seeking such a variance or waiver if, after giving effect to such variance or waiver, the number of parking spaces on such Party's Tract contInues to meet or exceed the number ofparkmg spaces required under thIS Agreement. (B) Neither Party shall perform, and each Party shall use its reasonable efforts not to suffer or permit any Occupant of its Tract to perform, any acts or carry on any practices WhICh would damage the other Party's Tract or be a nUlsance or menace to the other Party or wluch would mterfere With the nghts of quiet enjoyment granted to the other Party or to occupants of the other Party's Tract. ARTICLE V MISCELLANEOUS 5 1 Default. (A) If any Party fails to comply with any prOVISIon herein ("Defaulting Party"), then any other Party (''Non-Defaulting Party"), at ItS option, and with thIrty (30) days pnor notIce may proceed to cure the default (and shall have a lIcense to do so) by the payment of money or other action for the account of the Defaulting Party The foregoing right to cure shall not be exercised if, within such thirty (30)-day notice penod, (i) the DefaultIng Party cures the default, or (ii) If curable, the default cannot be reasonably be cured withIn that tIme period but the Defaulting Party begIns to cure such default withm such time period and dilIgently pursues such action to completion. The thirty (30)-day notIce period shall not be reqUIred if, USIng reasonable Judgment, the Non-Defaulting Party deems that ~n emergency exists which requires immediate remedial action. In the event of such an emergency, the Non-Defaulting Party shall give whatever notice to the Defaultmg Party IS reasonable under the Circumstances, BoynlOn Beach, FL Operating Agreement 11 U -t 1.. ~J U 1.. I I\. 1 U \J '" 1.. ."-_\. oJ lJ 1.. U"'t V oJ U"'t ORB 2454 Pg 1 728 (B) With10 ten (10) days after wntten demand therefor (including provld1Og copies of 1OVOIces reflect10g costs), the Defaultmg Party shall reimburse the Non.Oefaulting Party for any sum reasonably expended by the Non-Default1Og Party due to such default or 10 correcting the same, together with interest thereon at the Interest Rate (herem after defined) (C) All remedies 10 this SectiOn are cumulative and shall be 10 addition to any and all other remedies to which any Party may be entitled in law or in equIty and shall mclude, without limitation, the nght to restra10 by mJunctIon any violation or threatened vIOlatIon by any Party of any of the terms, covenants or conditions of this Agreement, and by decree to compel performance of any such terms, covenants, or conditIons, it being agreed that the remedy at law for any breach of any term, covenant or condition (except those, If any, requmng the payment of a liquidated sum IS not adequate. (D) In the event of any lItigation between the Parties to this Agreement or the City Involvmg the enforcement of any nghts under thiS Agreement, the prevailing Party in any such lItIgation shall receive from the other Party all costs and reasonable attorney's fees incurred by such Party In connection with such htigation, 5.2 Interest. Whenever in thiS Agreement It IS provided that any Party IS to pay to any other Party a sum of money with interest, the amount of interest to be paid shall be calculated upon the sum advanced or due from the tIme advanced or due until the time paid at the lesser of- (A) The highest rate permitted by law to be paid on such type of oblIgation by the Party obligated to make such payment; or (B) Three percent (3%) per year In excess of the so-called base or pnme rate from tIme to tIme publicly wmounced by Fleet Bank, N,A" Boston, Massachusetts or its successor (the "Interest Rate'') 5 3 Notices. All notices, demands, statements, consents, approvals and requests and any submIttal of plans and/or request for approval ("Notice") required or permitted to be given under thIS Agreement must be In wnting and gIven, delivered or served, either by prepaid express mall carrier with receipt, or by prepaid registered or certified mail, return receIpt requested, or by prepaid pnvate couner such as Federal Express, Emery or other recognized national courier service which delivers only upon signed receipt of the addressee, and shall be deemed given only when received unless a contrary intent is expressed herein except that in the vent the addressee or such agent of the addressee shall refuse to receIve any Notice given as above provided or there shall be no person available at the time of delivery thereof to receive such Notice, the time of the giving of such Notice shall be the tIme of such refusal or the time of such delivery, as the case may be. The addresses of the signatories to tlus Agreement are set forth below In the event a Party shall encumber its Tract by a mortgage and Notice of such fact has been received by the other Party from the mortgaging Party issuing such Notice, d~mand, statement, or request, then a copy of any Notice of amotmts due or Notice of default directed to such mortgagmg Party shall also be sent to its mortgagee. BoyntDn BelCh. FL Operatinl ^groerncnl 12 u-t tJ lit .&\.1 UO o.Ji.. I'fL\. ..JU..L U-t ~~U""* ORB.: 1 2454 Pg 1 729 If to aI's B1's Wbolesale Club, Inc. One Mercer Road Natick, Massachusetts 01760 AttentIon, VIce Presldent, Real Estate with a copy sImultaneously to B1's Wholesale Club, Inc. One Mercer Road NatIck, Massachusetts 01760 Attention. Real Estate Counsel If to Developer BIRCHWOODIBOYNTON, LLC Executive Offices 1001 N W 62d Street, Suite 320 Ft. Lauderdale, FL 33309 Attentlon. James H. Nobll with a copy sImultaneously to William L. Epstem, Esq c/o Gimelstob Enterprises, me, 2300 N W Corporate Blvd" sUite 222 Boca Raton, FL 33431 If to SouthTrust: 500 Office Park Drive, SUlte 300 Birmmgham, Alabama 35221 Attention. Michael R. Riley, Senior Vice PresIdent with a copy sImultaneously to Robert E, Ziegler, Esq Rogers, Moms & Ziegler 1401 East Broward Boulevard, Suite 300 Ft. Lauderdale, FL 33301 A copy of any Notice of default of this Agreement shall also be sent to the City at the followmg address. City Of Boynton Beach AttentIon, City Attorney 100 East Boynton Beach Boulevard Boynton Beach, FL 33342 , Boynton Beach, FL Operating Agn:ement 13 U~ IJ Ul tKl U~ ~L tAA aUl U~U -~~~ L'"\~"'UA.;.'lt:.l\l\...:i,/ \...-LIt\... nrn ~U.LO ORB 2454 Pg 1730 Any Party and the City shall have the nght, from time to time, and at any time, upon at least ten (10) days prior Notice thereof in accordance with the provisions hereof, to change ItS respective address and/or addressee and to specify another address and/or addressee wIthm the Umted State of America, provided, however, notwithstandmg anythmg herem contaIned to the contrary, m order for such Notice of change to be effective, It must actually be receIved, and further provided such address may not be only a post office box. 5 4 Condemnation, In the event of a condemnation or a sale m heu thereof, concernmg a portion or all of the Shopping Center, the award or purchase pnce paid for such takmg shall be paId to the Party ownmg such land so taken, beIng the intent of any other Party who might have an easement or other property mterest or nght under thIS Agreement in the land so taken, to release and/or waive such property interest or right with respect to such award or purchase price; provided, however, such other Party shall have the right to seek an award or compensation for the loss of its easement right to the extent such award or compensatIOn paId or allocated for such loss does not reduce or diminish the amount paId to the Party owrnng such land, Notwithstanding the above, this SectIon IS not Intended to alter any other agreement which may eXist between the owner of the land so taken and any lessee of such owner 5 5 Bmdmg Effect. The terms of this Agreement and all easements granted by this Agreement shall constitute covenants running wIth, and be appurtenant to and run with, the land affected. All tenns and easements shall enure to the benefit of and be bmdmg upon the signatones hereto and theIr respective successors and assIgns to the extent they have an interest in the benefited or burdened land, but except as provided m Section 1 5 hereof, any such successor or assIgn shall not become a Party, but shall nevertheless be bound by the terms of tlus Agreement. This Agreement is not intended to supersede, modify, amend or othelWlse change the proviSions of any prior mstrument affecting the land burdened hereby 5 6 Singular and Plural. Whenever required by the context of thiS Agreement, smgular shall mclude the plural, and vice versa, and the masculine shall include the feminine and neuter genders, and VIce versa. 5 7 Not a Public Dedication. Nothing herem contained shall be deemed to be a gIft or dedication of any portion of the Shoppmg Center or of any Tract or portion thereof to the general publ1c or for any public use or purpose whatsoever Except as herem specifically prOVided, and except for the rights granted the City in this Agreement, no right, privileges or lInmunities of any Party hereto shall enure to the benefit of any thud-party Person, nor shall any third-party Person be deemed to be a beneficiary of any of the proVIsions contamed herem. 5 8 Severability InvalIdation of any of the proviSIons contained in this Agreement, or of the application thereof to any person, by judgment or court order shall III 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. 5.9 Amendments. ThIS Agreement may be am~nded by, and only by, a written agreement which shall be deemed effective only when recorded in the public records of Palm Beach County, Florida and executed and acknowledged by the PartIes. No consent to the BO)'lllOn Beach, FL Operating A~.menl 14 04 13/01 FRI 08 53 FAX 561 640 ~84 L~~DAMERICA CLTIC WPB DRI 141019 2454 Pg 1731 amendment of this Agreement shall ever be requIred of any Occupant, Permittee or Person or any person other than the PartIes, nor shall any Occupant, Permittee or Person other than the Parties have any right to enforce any of the provisions hereof 5 10 Captions and CapItalized Terms. The captions precedmg the text of each Article and Section are included only for convemence of reference. Captions shall be disregarded in the constructIon and InterpretatIon of the Agreement. Capitalized terms are also selected only for convemence of reference and do not necessanly have any connection to the meaning that mIght otherwise be attached to such term In a context outsIde of this Agreement. 5 11 Agreement Shall Continue Notwithstanding Breach. It IS expressly agreed that no breach of this Agreement shall entItle any Party to cancel, rescInd or, otherwise termInate this Agreement. However, such limItation shall not affect In any manner any other nghts or remedies which such Party may have hereunder by reason of any such breach. 5 12 Non-WaIver The failure of either Party to insist upon stnct performance of any of the terms, covenants or conditIOns hereof shall not be deemed a waiver of any nghts or remedIes which that Party may have hereunder or at law or equity and shall not be deemed a waiver of any subsequent breach or default in any of such terms, covenants or conditions, 5 13 No Third Party Rights Except for City, the only Persons who may enforce the terms and conditions of thIS Agreement are the Parties and the City CommiSSIOn of the City 5 14 Cost and Expense. Whenever In thiS Agreement prOVISIon IS made for the domg of any act by any Person it IS understood and agreed that such act shall be done by such Person at itS own cost and expense, unless a contrary mtent IS expressed, 5 15 Estoppel CertIficates. Within twenty (20) days after request by any prospective mortgagee, or prospective purchaser of any Tract, under a SIgned agreement, the owner of each other Tract shall execute and deliver, Without charge, to the requestmg Party a wntten statement stating: (i) that this Agreement is unmodified and, If such be the case, IS in full force and effect, or if there have been modifications, that this Agreement is in full force and effect as modified (statIng the modifications); (ii) that, to the knowledge of such Party, the requestmg Party is not In default in the performance of its obligations under this Agreement, or if there are existIng defaults, speclfymg the same; and (hi) such other mformatIon as may be reasonably required by such prospective mortgagee or prospective purchaser 5 16 Unified Control Document. It is the mtent of the Parties to tbis Agreement that this Agreement shall constitute the "Unified Control Document" required by the City pursuant to Ordinance 01-04 of the City ThIS Agreement IS binding upon- the Parties hereto and theIr successors and assigns. In the event of a default under thIS Agreement as contemplated by Section 5 1, the City shall have standing to seek enforcement of the maintenance requirements set forth in this Agreement, \ 5 17 Soecial Covenants Subject to all applicable codes and regulations of the City of Boynton Beach, Flonda, the PartIes agree as follows Boynton Beach, FL Operating Agreement 15 04 13 01 FRI 08 54 FAX 561 640 ~184 _L~~DAMER1CA CLTICWPB ORB 14J020 ~454 Pg 1 732 (A) B1's shall mstall and maintam a landscape buffer of not less than twenty. five (25') feet in width along the common boundary of the Property and the Stonehaven PUD (Le. the entire western bOWldary of the B1' s Parcel and the westerly 320 feet of the southern boundary of the B1's Parcel) The buffer must at all hmes include (i) a four (4') foot hIgh berm, (it) SIX (6') foot high masonry wall located in the center of the buffer; (ili) landscapmg which consIst of a mInImum of two (2) rows of shade trees, twelve (12') to fourteen (14') feet m heIght at tIme of plantmg located on thIrty (30') foot centers, one row shall be placed on each SIde of the wall, tree location shall be staggered to provide the effect of fifteen (15') on center separatIon and (iv) constructIOn of wall and berm shall occur SImultaneously with sIte preparation and prior to the commencement of construction of any bUlldmgs, Bl's shall mamtaIn the wall berm and landscaping on both SIdes of the wall. (B) Each Party shall mamtain in effect a contract to provide continuous rodent and pest control wIth respect to its Parcel. (C) All exterior lighting in the Shoppmg Center shall be of low mtensity (but in no event less than required to meet applicable requirements of the City of Boynton Beach, Florida) and shall be shielded and drrected away from surrounding properties and nghts-of-way (D) The architectural treatment ofthe rear of buildings m the Shoppmg Center shall be architecturally compatible with the front of such buildings. (E) Screening and nOise mitIgation shall be proVIded for all exterior mechanical equipment in the Shoppmg Center, including screening of rooftop equipment, (F) The foregoing proviSIons in thIS SectIon 5 17 may not be modIfied or amended in any respect Without the prior written consent of Stonehaven Homeowners' Association, me" a Flonda corporation not for profit, WhiCh entity shall have the right to enforce these restrictions by mjunctIon. 5 18 Comoliance with Aoplicable Codes. Laws and Regulations, Anythmg in this Agreement to the contrary notwithstanding, the BJ's Parcel, the Developer Parcels and the Bank Parcel shall at the time of their development, as applicable, comply WIth the Boynton Beach Code of Ordinances and all other codes, laws and regulatIOns of governmental authorities having junsdlction, provided however, the proVIsIons of this Agreement if more stnngent or restrictIve shall control. ARTICLE VI TERM 6.1 Term. This Agreement shall be effective as of the date first above written and shall continue in full force and effect until December 31, 2099; provided, however, that the easements and agreements contained In SectIon 2.1 hereof,shall be perpetual and survive the termination of this Agreement. Upon termination of tlus Agreement, all rights and priVIleges derived from, and all duties and obligations created and imposed by, the provIsIons of this Agreement, except as contained or to be contamed within the Sections referred to above, shall Boynlon Beach, FL OpeRlinl Agreement 16 U~ 1d U1 tK1 ua aa t~~ 001 OQU ~~OQ L--\.1'U,\,,:11r..1\1\...:1. l..-Ll.1\...- "CD ~V"".L ORP 2454 Pg 1733 termmate and have no further force or effect; provided, however, that the termmation of thIS Agreement shall not limIt or affect any remedy at law or m eqUity of any Party against any other Party with respect to any liabIlity or oblIgation ansing or to be performed under thIS Agreement prior to the date of such terrmnatIon. IN WITNESS WHEREOF, the PartIes have caused this Agreement to be executed effective as of the day and year first above wntten. SIGNATURES ON SUCCEEDING PAGES. , Boynton Beach. FL Operating ^I""emenl 17 v"t 1..... U1. J ~... .....~~......~...... ...~.. '""...... ..... DRB - 2454 Pg 1 734 ;/ L / 1 _____ . :" I'..f,/ f / ~ ~-~.J~ IJ.J, ...,,,,,,'t (.~) n'),J DEVELOPER BIRCHWOOD/BOYNTPN, LLC By' ~L~ Name: Robert Lev~ TItle: Authorized Signatory WllNESSES By '87' t{) J1/~ Name: 1 es H. Nobil Title. Authorized Signatory STATE OF FLORIDA ) ) ss. COUNTY OF PALM BEACH ) The foregomg instrument was acknowledged before me this lOlh day of April, 2001 by Robert Levy, as authorized signatory ofBIRCHWOODIBOYNTON, LLC, a Florida lImIted lIability company, on behalf of said limited liability company He is personally known to me. NOTARIAL SEAL IN WITNESS WHEREOF, I hereunto set my hand and official seal. >>-~ 0--- Notary Public My cOImmssion expires COUNTY OF PALM BrACH ) ) 5S. ) MARILYN ALTMAN i MY COMMISSION' CC n3606 : EXPIRES: January 3, 2~ '. t.M'." Bonded ThrIJ Notal'/ NlIIc Undtrwllllll STATE OF FLORIDA The foregoing instrnment was acknowledged before me this 10m day of April, 2001 by James H. Nobil. as authorized signatory ofBIRCHWOODIBOYNTON, LLC, a Florida limited liability company, on behalf of said limited liability company He is personally known to me. IN WITNESS WHEREOF, I hereunto set my hanU officIal seat. NOTARIAL j/k.~ SEAL Notary Public My commission expires: , Boynton Beach, fL Operatinll Agreement 18 Il/\ L.J \J 1 I' l~ I UO "tJ .. 'L\. JUJ.. u...~ '~<O..JO't L.t\.lIl.1J.'"\....!U..:.l\..1'-""J '-'LJ. .1 \...-1 .. "t::J'V........ ORB 2454 Pg 1735 WITNESSES AS TO BOTH. ~M'e ~ 1A. '" -\+\o'\e."us B1'S B1'S WHOLESALE CLUB, INC ~~e (li~l' Title '.IIOQ Prelldent and TreS9l1rAR' JWAA-L / ~ttty- /J1 /I J!.j r ~-.<_ ~ T7'~ ~ By Name. Title: ~J,- ~~ AInk D. Fol\Y8fd E)\;c~tlv~ VIce President COMMONWEALTH OF MASSACHUSETTS COUNTY OF \\\,<1&\ '<...s.e..'f. ) ) ss, ) The foregoing instrument was ack.nowledg~d before rpe this ~ day olE J1pr \ \ 2001 by Arthurl:SIHc,Jr. ' as VlosPreslaentanu lIeasu 91 of B1's Wholesale Club,' Inc., a Delaware corporation, on behalf of the corporatIon. He/She is personally known to me or produced as Identification, '~',~~~l/{1\J"W;JTNESS WHEREOF, I hereunto set my hand and official seal. .0 . ~ ~~ J,,;""'~~'7 C" (i)~ frot~AL, ('." Q.A.,\., \)JL C '4'- ~ .t'E~ Notary Public . .~ .~-:.: . 1 4,. ~~ LAlRE E. RIlEY, IbIy NlIc .. ~~~"\, ''', My commIssion expires: MyCorr.,WJI1&pi8sDec8mber8,2006 ''''..-..") ......... .! -, COMMONWEALTH OF MASSACHUSETIS ) ) S5, COUNTY OF m,d~\e~CG'i- ) The foregoing mstmment was acknowledged before me this \04L day of 2001 by Frank D. Forward , as executive Vice PfeSiden\ Wholesale Club, 'Inc., a Delaware corporation, on behalf of the corporation. personally known to me or produced as identification. t, \~.1.1.11 /I '" I ,.'" :1' IN WITNESS WHEREOF, I hereunto set my hand and official seal. . ,," . , .. . ~ ~, r .:...~ ..)" i~-) '-'1 ~J.I I" '-.D .l- INOT AIUAi; '~t d\ QJJ-/'-^-L- E { , I ::j' SEAL >' '~ Notary Public ,I ,; ":~ ~.~ ....." Apr. l of BJ's He/She IS ~} " ~^"- ~'\ ..... ~' My commission expIreSi LAlRE E. RILEY, Notary Public My Co.r..M,n &pies December 8.2008 Boynton Belich, Fl. Operntinll Agreement 19 U4 JJ Ul rKJ uo au r~~ au! UQU \Oq L:\l'iV:1.~Ur..~~v."1./ \...Ll.l\.. 11CO ~UL."'t ORB 2:454 Pg 1"736 WITNESSES ~~~~ ~~ STATE OF Ff crudlL- COUNTY OF Jxolc M SOUTHTRUST SOUTHTRUST BANK BY.~ Name: Title: ~.~~/~ ) ) 55. ) , Jhe f~re oin . ~strument was ac_knowledged be(ore me t~ 11- day of ~ ,2001 by~\ " as~. \1\( e \~dp,,~ of South Trust Bank, existing under the laws oft e tate of Alabama, on behalf ofSouthTrust Bank. He/She is personally known to me or produced L ';)ftI ~ \X \ 'tf!b I s identification. NOTARIAL SEAL IN WITNESS WHEREOF, I hereunto set my hand and official seal. 1~ft. {!jtdULU/ Notary Public My commission expires. ,,~V'r~~~ FRIEDA IllACKWEl.l f.fW':1 MYCOMMISSION.CC914147 '<<, . 'l EXPIRES: Ftbruary 28 2004 '" ..w.~~ hnWd Thftl Nola" ,1M: Undn","" , g,'" U .:t: L..) U L I' 1\ 1 u 0 OJ 0 r ~\4\. J U L U:of: u OJ oJ 0 :.t L_-\.~U~\..'Jr:.I\.J.'-:1. '-'LJ. 11... Hf D ~U~o.J ORB" 2454 Pg 1737 EXHIBIT A Legal DescnptlOn ofBJ's Parcel TRACT A ofBl'S WHOLESALE CLUB accordmg to the plat thereof recorded In Plat Book '10, Page 5+ of the public records of Palm Beach County, Flonda. , BoynlOn Beach, FL Openrin8 Agreement 21 lJ ~ .l"} U L .' K 1 U 0 Jr."\....\. J U L U .... lJ OJ ..) 0 .. L...\.l'l:U.'"\il1I'.t\.lI....-!1., \....Ll.l\.... I D lI!:J ,U OI~'- 1. 2454 Pg 1738 EXHmIT B Legal Descriphon of Developer Parcel TRACT "B" Out Parcel and TRACT "e" Out Parcel ofBJ'S WHOLESALE CLUB accordmg to the plat thereof recorded in Plat Book q 0 , Page i1 of the public records of Palm Beach County, Florida, , Boynton Beach, FL OperarinJ Agreement 22 u~ L~ U~ l"n1 ua ~l rl\A ~UL U~v ~~u~ L..:-\1'vn~'.1L1""l.'-'n.l vL..L..Lv ~V'"' ORJl-.12454 Pg 173'9 EXHffiIT C Legal DescnptlOn of Bank Parcel TRACT "D" Out Parcel ofBl'S WHOLESALE CLUB accordmg to the plat thereof recorded m Plat Book ~ () , Page li of the public records of Palm Beach County, Florida, , Boynlon Beach, FL Openting Agn:emetll 23 EXHIBIT D SouthTrust BuIlding Elevation Plan Boynton Belch, FL Operarinl AIf"IIIe111 24 OP' 1. 2454 Pg 1740 , uu~ .L_~ v.l ,,_vt:f .,Ja UL.1.V' bl~ V4 ,~~..."".L-o"'''' ~~ -~'J. u 1... ..... Z <, .c.. PC} -...\.. 1 of 45 Page u,u ............... L1UfSrt liL.1. OR~ '\ \ ~ I ~ ~ it ,~ ~~ n , r-t- 1) 6-"< \'\' II) > \ L4 "2- ------ u 'I 1 J U.l f' f( 1 V 0 OJ 0 r ~L\. OJ 0 1 0 .:f: U oJ J 0 "t "... _. ---___ 0ii0II C. _ "'__ 4. Y c:.~ -... 1 LJ'I..ll[;.t... ~ 1....:\.1 Ut1.ittCl\..l\...."\. \.-LIl\... J D ~V..JU ORB 12454 Pg -',42 EXHIBIT 0 Page 2 of 2 " G) ,..., cl2- 1-- V~ IJ Vi 1'~1 UO JO r~~ JUL U~U JJO~ BO)..IOR Be.~h. FL Openling Agreement L.:L'IU.\....:.~ll:I\lv.'1. '-Lii\.. 'lCD ORB 1 EXHillIT E Project SIgn Easement Area , 25 +54 Pg 1743 tI!:J U..JJ. .L'" U I 1'\. J V oJ;J I. .:L oJ'-'.L V ~ u U3/lll7UT 14 4:0 fAA 5lH allZ 9tl1l9 J..~_1: V _~.L\.... l..L-<.,- ORB 12454 p~ 1744 "I!:I Vu",", '4!!I",u.. EXHIBlT E Page 1 of 2 ~~_,~" J,l, Tue".', I'.L,S, r eOllNl21\'" ''''"V''''I l,f"lmI.tGtISIMIYf!YI' eOHsJplIlGTIOtI LA Your , V :(l i ':. . . , . ~'r . ~ ./, . ~~ t-!1 t;: lY ~r , ~~ t:;.: :-,. t~ .$~: . ~:~ 'j !'; ~~~ . )" ii., ~t I;> i'" ' k';" ,~. !~;I j;, "I f. :-';. ( ). I~' ~~5 it;" ~" :~~ "i. -f t ='l' ,:,;. '1 , t.!.., ;..::~~ j. ,( h. 2;9 S,E. 23t'd STREET., PO. BOX 7eu BOYNTON BEACH. Fl.O~"P^,39~35 am'f4TON BEACH' Phone (68') 731.6'548 · Falf.(561) 734-7.54t1,,: SJ'8 WHOLESALE. CLUB SIGN EASBMBN'J! TRACT '''D'' 1 OUT PARCEL A P;A.RCEI. O,F' !.AND LYINca IN SEC'frON 30, TOWNSHIP 4,5, SOU:rH, RANGE 43 EAST',. ,ANPALSO BEING ~ P()RTION OF LOTS. C,.D, E, BLOCK 41 LO,]'S C"D,~, BLOCT{ 5; LOTS A,B,C.,D,E, BLOCK 28~ LOTS A,.B,C,D.,E, :8, LOC!(' 29, Al'tD rHlll PlATTED' '1\OAO RIGHT 'OF. WAY, LYING ADJACENT TO SAiD f,OTS, AS REccm.UEIJ ti)y pJ\LM BEACH' r~s COMPANY, E'tA'l', ~o 8,} IN PLA'l' BOQl< 5, PAGE: 13, OF THE ~UBLIC RECORDS OF PALM BEACHCOUN'l'Y, F1.0l\1l>A, ailING MORE PARTlcqLARLX DESC~!~tD AS FOLLOWS COMMENCING'AT' THE NORTl~T CORNER OF THE P~T STONEHAVEN, PLA~ ~G. 1, J\S.. ~ECORDED IN PIA1' BOOK 46, PAGES 1 THRU ? oS' TEE, E>>UBLIC RECoR[j$ Q-lf PALM BEACH- COUNTY n"ORIDA THENCE WI:TH A ,Sl'ARtNG OF .'30HTli 77 06:. 55" EAST, A DISTANCE OF 5,0 25 FEE~: TH!:NCE WITH A j3.~AR'tNO Q.F: NOR'E1f a 9 39' 11" EAST, ALONG" A LINE L Y'ING 9 . 5 FEET SOUT-H OF ANt> PARALLEL 10 THE SOUTH RIGH'r 'OF WAY ,LINE .OJ~ BOYNTON BEJAGH 'S'tND, AND, .ALONG 'lH~ NORTH 117m! oF. 00'1' PARCEL w~ &.. C"!f ;... DISq;rANCIb: OF 273..98 FEET TO A POINT; THENCE WlTH A lJEARI'NG bit" NORTH. 00 ~O! '4s;r tofEST, A DisTAACE OF 1 a. 50 n:ET 'fa A l'O'INT QN'rHE SOUTH :R1GHT OF WAY LINE OF BOYNTON BEACH BLVD; THENCE WITH .A':BlCAAING OF Nq~TH' 8~ 39' 11 ,,' EAST. ALONG THt SOUTH LINE OF BOYNTON Blt~CU' BLVD, (SA,ID LI~ LYIN~ 53.0Q E'2ET SOUTH OF THE CENTERLI,NEJ, A DtSTANc:rE OF ~~~',,:4,7' 'fEltl' TO THE NOJ:\7JHaAs'E CORNER OF OUT P}\RCElJ ~rD" i THENCE WI:IH A ..B!A1UNG ,OF SOUTH 00 20. 49" EASTr ALoNt:; THE EAST LnJE ot!" (JUT. PUt'EL, '.0."'; A OrST.AN'CE OF. 15 00 FEET., TO THE P01NT. OF S:i:G!NNl;NG; THENCE '~ONT.INUE SOUTH' 00 20' 49" BAST, ALONG THE EAST LINE OF' rAAt.'t' ifD"" A PIST,ANC;E OF 30 00 FEE'f TO A POINT; THENCE WITH A' B]i:.A~-ING OF SOUTH 89 39" 11" NEST, A DISTANcE OF, 25 00 FEET; T.HENq:W'ITH A BEARIN(j' OT NORTH 00 20' 49" WES;r, A DI.3TANCE OF 30 .O:ll 1!'!E~T'} '1'0 A PQIWT, lS 00 FEET SOU'1'H OF THE NoR'l'E LIME Oi' .P~CEL "0", 1 THENCE WITH A BEARING ,OF NORTH '89i J.~P' 1" EA.SIf, At;.ORG,t. .A tINE LYING ~5.. 60 rEST SOUTH Oil" AND PARAThLEL to rat!: NonT.J1 t.tNl:' qlF ~'RAC'J' "I)"" A DISTANCE OF 25.00 FEET' 'MORE OR 'IiS8S" THE POINT OF' BE'G.tNN'!NO" . SOSJEC'l' TO EASEMENTS AND RIGHTS OF WAYS OF RECORLJ , : :.... '" " :~ I JI .~ ~"": ~x 'r,'\ol~ :E- \ ,,1 :2-- 03/28/01 WED 12 40 [TI/Rt NO 700S] "", t" .~. f~. r' t'!-, [. t:~ . .'f :r, :i" r.. I ~, ~. i ' I I ' Ii t' ,', ~.~ . ..... , \. :r~, ' h ~:. i~r{ I"" ~it '" ri ( ;- k' ;l, , ,-, it~ t \,- , ~1. ;)" ~~ p} i l~' ~~ : ,,:1. '.' \'. . t.~ ... ;.c \ it: . i~' lr.'; . '"' v"t ~v ~~ ""''10. VU V,J .. ._.. .........~ """"IrV ....V'-.l""lr: .; -~ ~- --- -~- .y~. ......4.....A-'4...uA....L....o.....4-........ ...................._ ~ , r. --- ORB 1. 2454 Pg EXHIBIT E -.- Page 2 of 745 , ,. i.' rl' !f. .... z.c', . ' I - -- ---.... ---- ~. 'III, Jf' . I ftAlllJl PI(. *K 1/. r.f. Jllfl.1 J' HAIL .IICJ1J1ft .,,'.1..) \. 'OIIIJ l'lt .., L IN' !l/iullll tin . l' .Ii I ' ~ Ail PSlllA""11' AinnrllC[ 1I011UMRHT . t ~ ffP'IlJll !--I. RIU, ' "I~ I .~ ;;: U,or 100W l7'I,'J! ~... ,.lfI II. <'/i I ~.~ . ~/" 1IIr.1", ~ J.lIY" r - -r' , ,1Oll'llfJtlH.,U'. IP,IU..I ~... IIIl I II "'~4t .. . 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VI o .. ,"' ;V o'~ ,,-- _ \:>I}o - ~ _- If ' ---.- ,,'" :::1- - -::' "'0" - 5'.....::'c ;'.2-1 .. · -., \J ~ .. .. _ U'\r\ ".t"-c I .a... " "'1"10 -' ,,; i' ,G' · ~. ::'. " "e: -. .J-J .... !lJ' ^ . 9- ~ ~ f ^ ~ ==t ;0 CD n' (II OffiUl · IL_-- Q l.-r I II roo ~ I II ~ - JOB NO. 047224002 SITE PLAN C'f..HIi3/T ~- BJ'a WHOLESALE CLUB STORE NUMBER 129 BOYNTON BEACH PALM BEACH COUNTY. FLOAOA z p o ~ . . ~ ~ .: - , " ~~->>,;~~..,..;~' " ., I " , q~~...'(~""~ '1+,,~ ~ ~ rFr_ 120CTOO G-4 it ~Lr . ~~'P!';' PALM BEACH COUNTY SrAiE OF FLDRIOA .l:mY'~ .!\ I heleby certH)' 1l1at the lorer,ping :s a ~. ,~ .J.rue copy 01 the record i'1 my office. <..- \c::.i ...c:::,.., "<'~,: " This ,_ Day of .~-:2,Q-; , \.. _' 2.00~ DOROTHY Ii, WILKEN ~ Clerk Circuit CauR BY__._"_.~~_S?..,,..~ ~C, CITY OF BOYNTON BEACH TO MEMORANDUM Qumtus Greene, DIrector of Development; Mike Rumpf, &'ector ofPlanmng and Zomng; Don Johnson, BUIlding OffiCIal, Tim Large, Building Code Ad1mmstrator; Dave Kelley, Engineenng DIVI V FROM. Nicholas I. Igwe, AssIstant CIty Attorney; RE BJ Wholesale Club's Operatmg Agreement DATE February 28,2001 I am hand dehvenng to each of you today (before lunch), BJ Wholesale Club's Operatmg Agreement, whIch will guIde development as regards the Issues of access, mamtenance, storm water retentIon, parlang, slgnage and other construction related issues Wltlnn the PCD The Operating Agreement constItutes the "unIfied control document" reqUIred by Ordmance number 01-04 Closmg on the property IS set for sometime next week. Please reVIew sectIOns that relate to your department or dIVIsion and provide me WIth your comments not later than Monday, March 5, 2001 S:calDeptslIgwe BJ memo NA VON, KOPELMAN, O'DONNELL & LAVIN, P A Joel D Kopelman Andrew T Lavin Samuel D N avon Garry W 0' Donnell FE8 2001 '% ~r~. ... .; IU ~O\'\ r . " ' \.l:~ -...~ ~-;,L \.. l::, . Writer's Direct E-Mail.jkopelman@nkolaw.com Emerald Park Office Center 2699 StITling Road Suite B-1 00 Fort Lauderdale, Florida 33312 Telephone (954) 967-2788 Facsimile (954) 983-7021 E-Mail staff@nkolaw com ATTORNEYS AT LAW Gregory E Schwartz VIA FEDERAL EXPRESS AIRBILL NO 821579098419 James Cherof, Esq GOSlas & Goren 3099 E. CommercIal Blvd. SUIte 200 Fort Lauderdale, FL 33308-4311 February 19, 2001 VIA FEDERAL EXPRESS AIRBILL NO 8215 7909 8420 Nicholas Ewge, Esq CIty Attorney's Office 100 E. Boynton Beach Boulevard Boynton Beach, FL 33425 Re: BJ's Wholesale Club, Inc, ("BJ's") - Operatmg Agreement/Umfied Control Document Our File No 608012 Gentlemen. I am enclosmg a revIsed redlme of the "Operatmg Agreement" WIth respect to the PCD wlthm WhICh BJ's wIll be acqumng a parcel ofland. The Operatmg Agreement has been revIsed to mclude comments I receIved from Mr Egwe. I would apprecIate If you would reVIew the Operatmg Agreement, and If It IS acceptable, please provIde me, and the appropnate people m the buildmg and/or zomng department, WIth a letter advlsmg that the document IS acceptable as the "Umfied Control Document" for the PCD pursuant to the ordmances of Boynton Beach, Flonda. As I adVIsed, the Operatmg Agreement wIll be recorded m the PublIc Records of Palm Beach County, Flonda, as part of the acqUIsItIon of the property by BJ's. Thank: you for your kmd cooperatIon. Should you have any questIons concernmg the enclosed document, please do not heSItate to contact me. Very truly yours, \ NA~ON, KOPELMAN, O'DONNELL & LAVIN, P,A. '~ ' JDK/sms Enclosures cc RIchard Doran, Esq (w/o ent..vIa fax) Mr PhIl Halt (w/o enc. VIa fax) Mr Mark Hebert (w/o enc VIa fax) Mr Peter Hopley (w/o enc VIa fax) Mr Roscoe Biby (w/o enc. VIa fax) Mr Chns Ralph (w/o enc VIa fax) \\Hosl\jdk\Lelters,O 1 \CherofT.J arnes.04. wpd Be;. 111,"1 B~lI€h, I'l, Prepared by: RIchard C. Doran Attorney at Law One Mercer Road NatIck. MA 01760 OPERATING AGREEMENT THIS OPERATING AGREEMENT IS made and entered mto as of the day of , ~2001. between BJ's Wholesale Club, Inc., a Delaware corporatIon ("BJ's") aHd B\lf~~G b G E":g .. I ..~ n . ,." e . e oper having an address of One Mercer Road. NatIck. Y1A 01760. BIRCHWOOD/BOYNTON. LLC ("Developer") a Flonda hmlted habIhtv companv havmg an address of 1001 N.W, 62d Street. SUIte 320. Ft. Lauderdale. FL 33309 and SouthTrust Bank ( 'SouthTrust") a havmg an address of WITNESSETH. WHEREAS, BJ's IS the owner of a certam tract of land described m ExhibIt A attached hereto (the "BJ's Parcel") and IdentIfied as such on ExhibIt C (the "SIte Plan") attached hereto, and WHEREAS, Developer IS the owner of a certam tract of land described m ExhibIt B attached hereto compnsmg three (3)two (2) outparcels (the 'QutDa-reels 'Y' Developer Parcels") and IdentIfied as such on the SIte Plan, and WHEREAS. SouthTrust IS the owner of a certam tract of land described 111 ExhibIt C attached hereto compnsmg the outDarcelIdent1fled as the "Bank Parcel"" on the Site Plan. and WHEREAS. the Developer Parcels and the Bank Parcel are herem collectIvelv described as the "Outparcels , and WHEREAS, the BJ's Parcel and the Outparcels (collectively the "Shoppmg Center") are contIguous and adjacent as shown on the SIte Plan, and WHEREAS, the BJ's Parcel mcludes the BJ's Access Way cross hatchedso deSIgnated on the Site Plan. and Occupants of the Outparcels WIll use the BJ s on the SIte Plan, and the Outpareels wIll use the Access Way, m common WIth BJ's, for access, mgress and egress as shown on the SIte Plan, and BOVlltl'n Beach, FL Ooeratilll! Al<reemclIt WHEREAS, the Developer Parcel mcludes the Developer Access Way so desIgnated on the SIte Plan, and BJ's wilt use the Developer Access Wav, m common wIth Occupants of the Outoarcels, for access. mgress and e~ress as shown on the Site Plan. and WHEREAS, the Brs Parcel mcludes the stormwater dramage and retentIOn system shown on the Site Plan. and the Outparcels will use the stormwater dramage and retentIOn system, III common with BJ's, and WHEREAS, the partIes hereto mtend to develop and operate the Shoppmg Center In conjunctIOn wIth each other and In order to effectuate the common use and operatIOn thereof they deSIre to enter Into the agreements herem contaIned. NOW, THEREFORE, m consIderation of the mutual agreements hereIn contamed, It IS agreed as follows. ARTICLE I DEFINITIONS 1.1 "Access \Vavs shall collectIvely mean the BJ's Access Wav and the Developer Access Wav . H 1,2 Floor Area. "Floor Area" shall mean the area computed by measurements of the ground floor made to and from the outsIde of extenor walls of the buildmg In question exclUSIve of (a) mezzamnes not open to customers and occupied InCIdental to ground floor retaIl operatIOn and (b) utIhty and eqmpment rooms. If the Shoppmg Center mcludes such areas, basement floor area, mezzamne floor area open to customers and upper story floor area shall be counted as one- half of the actual floor area as so measured. Dunng any penod of rebuildIng, repamng, replacement or reconstruction of a buildIng, the Floor Area of that buddIng shall be deemed to be the same as eXIsted ImmedIately pnor to that penod. +d 1.3 Outdoor Areas. "Outdoor Areas" shall mean all areas not wltbtn a bmldmg, IncludIng WIthOut ImntatIon, parkmg areas, dnveways, walkways, retention ponds and SImIlar storm dramage facihtIes. -l-:J.1.4 ~ "Party" shall mean. (i) each SIgnatory hereto, and (ii) after comphance WIth the notice and assumption reqUIrements set forth below, theIr respective successors and asSIgnS. BJ's andBJ's, Developer and SouthTmst shall be hable for the performance and observance of all terms and condItIons herem set forth With respect to the BJ's Parcel and the Outparcels.ParceL the Developer Parcels. and the Bank Parcel respectively, and such hablhty shall contmue WIth respect to annortlOn thereof transferred by such Party until the notIce reqUIrement set forth below IS comphed WIth and until the transferee owner or holder has assumed to, and agreed WIth, the other Party from tIme to tune, to perform and observe all of the agreements and condItions on the part of the transfemng Party thereafter to be performed or observed hereunder WIth respect to such portIOn thereof at wluch time the transfemng Party's habIhty shall termmate WIth respect to such portIon thereof, except for any habIhtY accrumg B0\111"" Bca~h FL Olleralill~ :\2reemem 2 .... pnor to the date such notice requIrement IS met. Any transferee shall automatIcally become lIable for performance and observance of all terms and condItIOns hereunder winch accrue subsequent to such transfer, mcludmg wIthout lImItation, those winch occurred pnor thereto and are then contmumg to occur thereafter, and notwlthstandmg the absence of the execution of such assumptIon agreement and, m the absence thereof, the lIabIlIty of the transferor and the transferee owner or holder hereunder shall be Jomt and several. Any Person transfemng all or any portIon of Its mterest m the Shoppmg Center shall give notice to all PartIes of such transfer and shall mclude therem at least the followmg InformatIon. (a) the name and address of the transferee; (b) a copy of the survey showmg the locatIon and mdlcatmg the legal descnptIon of the portIon of the Shoppmg Center transferred If less than all of the transfemng party's mterest IS transferred, and (c) an ongInal of an agreement, m recordable form, by winch the transferee assumes the oblIgatIOns of the transferor under tins Agreement, as aforesaId. +:41.5 Person. "Perso:r( shall mean each mdlvldual partnerslnp, firm, asSOCIatIOn, I corporatIon, trust or any other form of bus mess or governmental entIty 1.6 ProJect SIgn. See SectIon 4.5(A.). 1.7 Prolect SIgn Easement Area. See SectIOn 4.5(A), 1.51.8 Occupant. "Occupant" shall mean any Person from time to tune entitled to the use and occupancy of any portIon of a buildmg m the Shoppmg Center under any lease, sublease, license, concession agreement or other SImIlar agreement or as a tenant-at-wIll. +:.e.L.2. "PermIttee" Shall mean all Occupants and the officers, dIrectors, employees, agents, contractors, customers, vendors, supplIers, VISItors, mVltees, lIcensees, subtenants, and conceSSIOmures of Occupants to the extent that theIr actIVIties relate to the mtended use of the Shoppmg Center H 1.10 Tract. "Tract" shall mean that portIon of the Shoppmg Center owned by a Party, imtIally the BJ's Parcel as to BJ's and the Outpa:rccls as to Developer.BJ's, the Developer Parcels as to Developer and the Bank. Parcel as to SouthTrust. ARTICLE II EASEMENTS 2.1 Ingress and Egress; Easements BOVlIllln Beaoh, FL Ooeratillll A=ement 3 ~ (a) B1's, as the owner of the BJ's Access Way, hereby grants and conveys to Developer and to SouthTrust, as appurtenant to each of the Outparcels, for ttsthetr respectIve use and for the use of ttsthelr respectIve PermIttees, a non-exclUSIve, perpetual easement for the passage of velucles and pedestnans across the BJ's Access Way, as the same may from time to time be constructed and mamtamed for such use, and for no other purpose. Such grant specIfically excludes the nght to park velucles on the B1's Access Way (b) Developer. as the 0\\11er of the Developer Access Wav. herebv grants and convevs to 81's and to SouthTrust. as appurtenant to the B1's Parcel and the Bank Parcel. for their respective use and for the use of theIr respectIve PermIttees. a non-exclUSive. perpetual easement for the passage of vehIcles and pedestnans across the Developer Access Way. as the same mav from time to time be constructed and mamtamed for such use. and for no other purpose. Such grant speCIfically excludes the nght to park vehicles on the Developer Access Way. Developer also grants to BJ's the nght and easement to perform such mamtenance and repaIrs to the Developer Access Way as B1's deems necessarY or approprIate. conSIstent With the terms and conditions of tlus Agreement. t&)w The Developer, as owner of the OatparcelsDeveloper Parcels. SouthTrust. as owner of the Bank Parcel and B1's, as owner of the BJ's Parcel, hereby grant and convey, each to the other, for the benefit of the Outparcels and the BJ's Parcel, a non-exclusIve easement and right to the use dunng the term oftlus Agreement ofthe parkmg areas from tIme to tIme mamtamed on the Parcel(s) of the grantmg owner, for purposes ofvelucular parkmg. Notwithstandmg the foregomg easements, each owner shall mamtam on ItS respectIve Parcel the parkmg ratIo reqUlred pursuant to SectIon 4.2 hereof. BJ's and Developer hereby acknowledge and agree that the foregomg easements for parkIng shall not apply or mure to the benefit of any property or Parcel other than the Outparcels and the BJ's Parcel. (d) SouthTrust. as the owner of the Prolect Sign Easement Area. hereby grants and convevs to B1' s. as appurtenant to the B1' s Parcel. a non-exclusIVe. perpetual easement for access to and across the Prolect Sign Easement Area for the purpose of constructIOn and mamtenance of the Project Sum. mcludmg. Without hmltatlOn. the nght to perform such commerCially reasonable work upon the Project Sum Easement Area as mav be necessarY 111 connection With constmctIOn and mamtenance of the ProJect Sum. Dunng the term of thIS Agreement. SouthTmst shall not grant any easements over. through or across the ProJect Sl~ Easement Area to anv party other than 81's Without BJ's pnor wntten consent. SouthTrust shall not erect anv Improvements or mstall any landscap111g III the ProJect Sum Easement Area which Impairs the vlsiblhtv of the Prolect Sign. fe1w The easements granted m thIS SectIon 2.1 and m SectIon 2.2 below shall be for the benefit of, but not restncted solely to, the owners of the Outparcels and the BJ's Parcel, and each such owner may grant the benefit of such easement to the tenants or subtenants and other occupants of the Outparcels and the BJ's Parcel for the duratIon of such occupancy, and to the customers, employees, agents and busmess mVltees thereof; but same IS not mtended nor shall It be construed as creatmg any nghts m or for the benefit of the general publIc nor shall It affect-or benefit any real property outSIde of the Shoppmg Center Such easement areas are reserved for saId use for the term of thIS Agreement. 80\111"11 Beach FL ()oeratill~ Al<rcement 4 ~ [2.2 8tonn''\'utcr Svstem. To be addcd.]2.2 Stonnwater System. 8.T s, as the owner of the 81's Parcel. hereby srrants and conveys to Developer and to SouthTrust. as appurtenant to each of the OutParcels. for their respectIve use and for the use of theIr respectIve PermIttees. a non-excluSIve nght to utIlize the stormwater dramage and retentIOn svstem to be constructed by BJ's on the 81's Parcel so long as such system IS 111 eXistence and operatIng, B1's reserves the nght to alter and replace such system from tIme to tIme wIthout the need for consent from Developer or SouthTrust. provIded such changes shall not matenallv adversely affect the abilIty orthe Outparcels to use such system. ARTICLE III MAINTENANCE AND REPAIR 3 1 Common Area MaIntenance. (A) Each Party shall mamtaIn, or cause to be mamtamed, all Improvements on ItS Tract m good repaIr and m a safe condItIon and m complIance WIth all applIcable governmental laws, ordInances, rules, regulatIons and orders and the provISIons of tlns Agreement, includIng WIthOUt lImItatIon, subsectIOn (C) hereof, and WIthout exceptIon for damage or destructIon due to casualty or any other cause whatsoever In addItIon, BJ's. wIll mamtam the Access Ways and the stormwater draInage and retentIOn system, subject to reImbursement as set forth m SectIon 3 1 (E) below (B) Until any portIon of the Shoppmg Center hereunder reqUIred to be constructed IS ImtIally Improved, It shall be graded so that surface water draInage shall not adversely affect another Tract, planted m order to reduce dust and thereafter kept mowed If necessary or otherwIse maIntamed, free emf debns, and maIntamed m order to prevent erOSIOn and present an attractIve appearance conSIstent WIth first class shoppmg center practIce m the area of the ShoppIng Center (C) Followmg ImtIalImprovement of any parcel mcluded WIthIn the Shoppmg Center, the mamtenance reqUIred hereunder WIth respect to such parcel shall mclude (i) care and replacement of plantmg and other landscapmg (to the extent shown on the SIte plan) and mamtenance of an automatIc spnnkler system, If any; (ii) adequate markIng and stnpmg or parkmg areas, (in) maIntenance of electncal eqUIpment and faCIlitIes, mcludmg electnc lIght replacement; - (iv) repaIr and replacement of potholes and other damaged portIOns of the paved area so as to mamtam the same m a smooth condItIon and evenly covered WIth appropnate matenals, BO'1UM Bcacb. FL OocrJlil1l! Al!recm..'1ll 5 (v) repaIr, replacement, servIce, regulatIOn, and mamtenance of all common utIlIty hnes, culverts, grease traps, roads, dnveways, sIdewalks, curbs, and parkmg areas; (vi) garbage dIsposal and the removal of all papers, debns, filth, and refuse from, and sweepmg of, all portIons of the Outdoor Areas when necessary to keep the same m a clean conditIon (but not garbage dIsposal or trash removal of garbage or trash generated by IdentIfiable Occupants of the Shoppmg Center) (D) Each Party shall perform ItS oblIgatIOns under tlus SectIon m a good and workmanlike manner and m accordance wIth all applIcable laws, usmg new matenals of the first- class qualIty RepaIrs and replacements to the Outdoor Areas, mcludmg matenals, shall be of a like kmd m nature and scope as the ongmally constructed Outdoor Areas. To the extent reasonably possible, all repaIrs and maIntenance shall be scheduled to occur pnor to or after normal busmess hours of the Shopping Center (E) From and after the date a temporary or permanent certIficate of occupancy IS Issued wIth respect to an O\ltparcel, Developerthe Partv WIth resoect to whose Tract such a temporarY or oermanent certIficate of occupancy IS Issued shall reunburse BJ's for the Outparcel Share (defined below) of BJ's costs and expenses illcurred ill msunng and maIntaImng the stormwater dramage and retentIOn system and the Access Way'J. ill conformIty wIth SectIon 3 I(C) above. DeveloperThe owner of an Outoarcel shall make such payments to BJ's not later than tlurty (30) days followmgDe','eloper's receIpt ofBJ's mVOIces therefor, wluch mVOIces shall not be submItted more often than monthly The Outparcel Share shall mean a fractIon, the numerator of wluch IS the acreage of any Outparcel for wluch a temporary or permanent certIficate of occupancy has been Issued and the denommator of wluch IS the acreage of the BJ's Parcel plus the acreage of all Improved Outparcels. 3.2 Casualty In the event any bUIldmg Improvements are damaged by fire or other casualty (whether msured or not), the Party upon whose Tract such buildIng Improvements are located immedIately shall remove the debns resultmg from such event and proVIde a SIghtly barner surrounding the same and, wItlun a reasonable tune thereafter, shall eIther (i) repaIr or restore such bUIldmg Improvements so damaged, such repaIr or restoratIon to be performed m accordance WIth all prOVISIons of tlus Agreement, or (ii) erect other bUIldmg Improvements m such locatIon, subject to all proVISIons of tlus Agreement, or (iIi) demolIsh the damaged portIon of such bUIldmg Improvements and restore the area occupIed thereby to an attractIve condItIon. Such Party shall have the optIon efto choose wluch of such alternatIves to perform, but such Party shall be oblIgated to perform one of such alternatives. Such Party shall gIve notIce to each other Party wIthm a reasonable tIme ofwluch alternatIve It elects, ARTICLE IV BO\1l1on Bca~h, FL ()neratill11 Alm:emcm 6 OPERATION OF THE SHOPPING CENTER 4 1 Users. (A) The Outparcels shall not be used for the sale or wsplay of any pornograpluc matenals or for a mortuary or for any manufactunng or resIdentIal purposes or for a gas statIon or a car wash or a school or other place erof publIc assembly, or for any entertamment purposes such as a cmema, theater, skatmg Ft5li;nnk. bowlmg alley, bar (except as a use ancillary to a restaurant), dIscotheque, dance flathhall. amusement gallery, poolroom, health club, massage parlor, gymnasIUm, sportmg event or off-track bettmg facIlIty, or for the sale erof alcoholIc beverages for off-premIses consumptIon, or for any non-retail use other than offices mCIdental to the operatIon of a retaIl busmess. (B) The BJ's Parcel may be used for any purpose permItted under applIcable law prOVIded that such use complIes WIth the parkIng reqUIrements heremafter set forth. (C) NeIther the BJ's Parcel nor any of the Outparcels shall be used for any purpose wluch shall emIt unreasonable amounts of nOise, odors, smoke, fumes, dust, partIcles or vibratIons nor shall any occup~ts of eIther Tract use flashmg lIghts or search lIghts wluch are visible from any outdoor area. 4.2 ParkIng and etflef()ther ReOUIrements. (A) After the ImtIal constructIon of theIr respectIve Improvements, each Party hereby agrees Its Tract shall always thereafter contam suffiCIent ground level, standard automobIle SIze parkIng spaces m order to comply WIth the followmg mImmum reqUIrements. (i) as to the BJ's Parcel, the lesser of: (x) five hundred fifty (550) parkIng spaces, or (y) four and one-half (4 ~) parkIng spaces for each one thousand (1000) square feet of Floor Area located on the BJ's Parcel, prOVIded, however that If the buildmgs located on the BJ's Parcel shall exceed the Floor Area of the bUIldmgs on the BJ's Parcel shown on the SIte Plan, Clause (x) shall not apply; and (ii) as to each of the Outparcels, five (5) parkmg spaces for each one thousand (1000) square feet of Floor Area located thereon. (B) If all or a portIon of the Outparcels shall be used for a restaurant (except for a restaurant located wIthm a retail use WIthout a separate extenor entrance) the parkIng reqUIrement set forth m thIS SectIon shall be deemed modIfied to SubstItute a reqUIrement of ten (10) parkIng spaces for each one thousand (1000) square feet for Floor Area used as a restaurant not serving alcoholIc beverages and- twelve (12) parkmg spaces for each one thousand (1000) square feet of Floor Area used as restaurant servmg alcoholIc beverages m place of the reqUIrement of five (5) parkIng spaces for each one thousand (1000) square feet of Floor Area m each mstance, and If any bus mess use on eIther Tract contams a dnve-up urnt (such as remote banlang tellers or food ordenngldIspensmg faCIlIty), then there shall also be created. space for stackIng not less than five (5) automobIles for each dnve-up umt. 130\ 11[.'11 13c:wh FL Ooeralinl! '\ureemenl 7 (C) Each Outparcel shall at all tImes contam a suffiCIent number of parkIng spaces to comply WIth the reqUIrements of tlus SectIon WIth respect to the busmess conducted thereon WIthout the need for parkIng spaces located outsIde of such Outparcel. (D) Each Party agrees that the deSIgn of the parkIng areas on Its Tract shall comply WIth all applIcable govemmentallaws, ordmances, rules, regulations and orders shall be complIed \\"lth, WIthout vanance or specIal permIt. In the event of a condemnatIOn, or sale or transfer m lIeu thereof, that reduces the number of usable parkIng spaces below that wluch IS reqUIred herem, the Party whose Tract IS so affected shall use ItS best efforts (including usmg proceeds from the condemnation award proceeds or settlement) to comply WIth the parkmg reqUIrements set forth above. If such complIance IS not possible, such Party shall not be deemed m default hereunder, but shall not thereafter be permItted to expand the amount of Floor Area located upon ItS Tract; and If such Floor Area IS thereafter reduced, then It may not be subsequently mcreased unless the parkmg requIrement IS satisfied. (E) No Party shall alter the grade elevations on any portIon of ItS Tract from those establIshed by the plans and speCIficatIOns lDltIally approved by BI's If such alteration would mcrease the flow of s\ll"face water l:Iftteonto another Party's Tract, affect mgress and egress eflOr otherwIse adversely affect another Party's Tract. 4.3 Buildmg Improvements. (A) If a portion of any Building Area IS at one pomt m time paved and used as a parkIng area or other non-buildmg area, such portIon may be subsequently used as Buildmg Area provIded that such constructIOn complIes WIth all parkIng reqUIrements and other provisIons oftlus Agreement. (B) NeExcept as expressly otherwIse proVIded m SectIOn 4.3 (C) below. no buildmg on an Outparcel shall exceed twenty-two (22) feet above grade, and no other building m the Shoppmg Center shall exceed tlurty-five (35) feet above grade. No mechanIcal eqUIpment, penthouse or SImIlar appurtenant structure located on any such bUIldmg shall extend upward above the top of any buIldmg more than seven (7) feet. (C) NotwIthstandmg the twenty-two (22) foot heIght 11lmtatIOn contamed m SectIOn 4.3 (B) above. SouthTrust IS expressly granted the nght to constmct a bmldmg on the Bank Parcel whIch contams a tower of approxImately twenty-seven (27') feet SIX (6") mches m heIght. so long as such bUlldmg conforms to the elevatIon plan attached hereto as ExhibIt D, 4 4 LIghtmg. DC'leloperEach Party shall keep the Outdoor Areas on each Improved OutparcelTract fully Illummated each day from dusk to at least one (1) hour after the last busmess operatIOn thereon hasclosed, Followmg llnpro'lement ofth6 BJ's Parcel, BJ's shall keep the Outdoor Area on the HI s Parcel fully Illummated each day from dusk to at least ene (1) hour after the last busmess operation on the HI's Parcel has closed.closed. except that BJ s shall keep both the Developer Access Way and the BJ's Access Wav Illummated. BJ's shall keep the Access W ay~ BO,"Ul'n BC:I('h 1'1, O[)cratin~ A2reel11<'11t 8 illummated for longer hours than stated m the precedmg sentence at the request of any Party, provided that such Party agrees to pay for the cost thereofwIthm ten (10) days of receIpt of any mVOIce from BJ's for such costs. 4.5 Signs. (A) Subject to all apphcable local laws, regulatlons and ordmaRees,regulatlons. ordmances and condItIOns of development orders of the CIty of Bovnton Beach. a mlIDIcmal corporatIon of the State of Flonda ("CItV"). BJ's may erect a freestandmg Sign (the "Prolect SIgn") on the Bank Parcel m the locatIon deSIgnated "Prolect SII?TI Easement Area on the SIte Plan and described m ExhibIt E attached hereto. The Prolect SIgn shall generally conform to the Sl gn rendenng attached hereto as ExhIbIt F. (B) BI's mtends that the Prolect Sign shall contu111 a Brs SIgn panel contammg 104 SQuare feet. To the extent that apphcable local laws. regulatIons and ordmances pemllt more than 104 SQuare feet ofsl!m panels on the Prolect SIgn. sublect to the condItIOns and lImItatIons set forth below. (a) SouthTrust mav mstall a SIgn panel on the Prolect SIgn and (b) Developer may grant to UP to two (2) tenants or occupants of the Developer Parcels the nght to mstall a SIgn panel on the Prolect SIgn. In such event: (i) Developer shall pavor cause anv such tenant or occupant of a Developer Parcel to pay B1's for a share of the 111stallutlOn. illllmmation and mamtenance of the Prolect Sign. based on the relatIve size of the Developer Parcel panels and the other panels on the Prolect SIgn. (Ii) SouthTmst shall pay B1's for a share of the mstallatIon. illtmllnatlOn and mamtenance of the Prolect Sum. based on the relatIve SIze of the SouthTmst panel and the other panels on the Prolect Sum. (hi) Such SIgn panels m the aggregate shall not be larger than 50% of the SIze of the B1's sum panel and shall be located below the BJ's Sllm panel. and (lY) All such SIgn panels shall be sublect to the approval of B1's. whIch approval shall not be unreasonablv WIthheld. delayed or condItIoned. and shall be 111 good taste and consistent WIth first class shoPP111g center practice m the area of the ShoPP111g Center, Payments pursuant to Section 4.5(8)(i) or (ll) above shall be made to BI's wIthm thlrtv (30) days follow111g rece1Pt of 111VOlces therefor. which mV01ces shall not be submItted more often than monthlv. (C) In addItIon. (and also sublect to al1 applIcable local laws. regulatIOns. ordmances and condItIons of development orders of the Cltv of Bovnton Beach). BI's may erect a freestandmg SIgn (the "BJ's Pylon SIgn") on the B1's Parcel advertIsmg the bus.mess or busmesses conducted thereon. Each Outparcel may contam one (1) freestandmg SIgn Id~ng the busmess conducted thereon proVIded such SIgn shall be no hIgher than tlurty-five~.:!)eet B0'111l'll Beach FL OIleralinl! ,\oreement 9 above grade and shall not Interfere WIth the vIsibIhty of the free stanchng SIgnS on the B1's Parcel In the locations shown on the SIte Plan. (B) BJ's mtends that the B1'sPylon SIgn shall contam a BJ's SIgn panel contamm; 104 square feet. To the extent that appheable locallmvs, reg1:11atlons and ordmances perrIllt more than 101 square feet of SIgn panels on the 81's Pylon SIgn. Developer may grant to up to three (3) tenants or occupants of the Outparcels the n;ht to Install a SIgn panel on the B1's Pylon Sign, subject to the followmg: (i)De\'eloper shall payor cause any such tenant or occupant of an Outparcel to pay BJ's for a share of the mstallatlOR, IUUfmnatlOn and mamtenance of the BJ's Pylon, based on the relatlYe SIze ofthe panels on 81's Pylon Sign. (ii)Such SIgB. panels m the aggregate shall not be larger than 50% of the size of the B1' s SI~ panel and shall ba loeated balO\y: the B1's SIgn panel, and (lli)All such SIgn panels shall be lB good taste and eonsIstent \VIth first class shoppmg center practIce In the area of the Shoppmg Center, Payments pursuant to SectIon 4.5(C)(i) above shall be made to BJ's wIthm thirty (30) days follo\vmg Develop~r's receIpt of mVOlces therefor, wt-Heh inVOices shall not be sabmltted more often than monthly, tG1illl NotwIthstanding the foregomg,fij each Party shall be permItted to place wltlnn the Outdoor Areas located on Its Tract chrectlonal SIgnS or mformatlonal SIgnS such as "HandIcapped Parkmg", the temporary dIsplay of leasmg mformatIon and the temporary erection of one SIgn IdentIfymg each contractor workIng on a construction Job (D) No(E) No SIgn shall be mounted on the roof of any buildmg m the Outoareels, No extenor SIgnS m the Shoppmg Center, or any mtenor SIgnS VIsible from the extenor of any buildmg or other structure m the Shoppmg Center, shall have flaslnng hghts or movmg parts. All extenor signs m the Shoppmg Center shall be professlOnally made. 4 6 Insurance. (A) Each Party shall mamtam with respect to the Outdoor Areas on ItS Tract, throughout the term of thIS Agreement, a pohcy &for pohcles of commerCIal general habihty msurance, such pohcles of msurance to name each Party as an addItional msured as theIr mterests may appear on the others' pohcles thereunder and to be Issued for penods of not less than one (1) year by responsible msurance compames authonzed to do busmess m the State of Flonda. Each Party shall dehver certIficates of msurance eVldencmg such pohcles to each other Party at or before the recordmg oftlns Agreement and each renewal pohcy at least ten (10) days pnor to the expIration of the pohcy ItS renews. All such msurance pohcIes shall prOVIde that such pohcles shall not be canceled or matenally modIfied WIthout at least twenty (20) days pnor wntten notIce to each Party Such 'insurance shall be m the amount of Three Milhon Dollars ($3,000,000), smgle hmlt. In heu of mamtalmng the foregomg pohcy of pohcIes, B1's may momtormamtam a program of self msurance for the nsks covered by such pohcy or pohcIes so long as B1's (or the corporate parent or any other affihate of B1's agreemg m wntmg to. be responsible therefor) shall have a finanCial net worth m excess of One Hundred Milhon Dollars ($100,000,000) BO\1Ut'" Ilca~h FL ()DCrali,,~ A2n:eme11l 10 --~-- (B) BJ's shall save Developer and each Occupant of the Ol:ltparcelsDevelopcr Parcels harmless from, and defend and mdemmfy Developer and such Occupants agamst, any and all mJury, loss or damage, and claIms for mJury, loss or damage, of whatever nature (except to the extent caused by the neghgence or intentIOnal nature,nllsconduct of an mdemmfied party). to any PermIttee of the BJ's Parcel as the result of an occurrence or mJury on the Access Way~ mcludmg WIthout hmltatIon, reasonabl)Teasonable attorney's fees. It IS a condItIon of thIs save harmless and mdemmfication that BJ's shall receIve notIce of any such claIm agamst Developer promptly after Developer first has knowledge thereof. (C) BJ's shall save SouthTrust and each Occupant of the Bank Parcel harmless from. and defend and mdemmfy SouthTrust and such Occupants aQ:amst. any and all In]Ury. loss or danmge. and claIms for In1Urv. loss or damaQ:e. of whatever nature (except to the extent caused bv the neghgence or mtentIonal mIsconduct of an Indemmfied partv). to any PermIttee of the BJ's Parcel as the result of an occurrence or InjUry on the Access Ways IncludIng WIthout hmltatlon. reasonable attorney's fees. It IS a COndItIOn of thIs save harmless and IndemmficatIOn that B1's shall receIVe notIce of any such claIn} agaInst SouthTmst promptlv after SouthTrust first has knowledge thereof. (C)(D) Developer shall save BJ's and each Occupant of the BJ's Parcel harmless from, and defend and mdemmfy BJ's and such Occupants agamst, any and all Injury, loss or damage, and claIms for Injury, loss or damage, of whatever nature (except to the extent caused by BJ's neghgence or mtentlonal mIsconduct), to any PermIttee of the Outparcels (if the Outparcels are owned by separate PartIes at the tIme of such Injury, loss efor damage, such reference shall mean only the Outparcel owned by such Party) as a result of an occurrence or mJury on the Access Way~ Includmg without limItatIon, reasonable attorney's fees. It IS a condItIon of thIs save harmless and Indemmficatlon that Developer shall receIve notIce of any such claIm agamst BJ's promptly after BJ's first has knowledge thereof. (E) SouthTmst shall save Brs and each Occupant of the Ers Parcel harmless from. and defend and Indemmfy B1's and such Occupants aQ:aInst. any and all Inlury. loss or damaQ:e. and claIms for InJUry. loss or damage. of whatever nature (except to the extent caused by BJ's neQ:hgence or IntentIonal mIsconduct). to anv Pemllttee of the Bank Parcel as a result of an occurrence or inJUry on the Access Ways. mc1udIng WIthout hmItatIOn. reasonable attornev's fees. It IS a condItIon of thiS save harmless and mdemmficatIOn that South Trust shall receIVe notIce of any such claIm agaInst E1's promptlv after BJ's first has knowledge thereof. 4 7 ZonInQ:: NUIsance. (A) NeIther Party shall seek, nor allow any other Occupant of ItS Tract to seek, a Variance or waIver from the mmlmum number of parkIng spaces reqUIred for ItS Tract and It~ Occupants from tIme to tIme under the zonmg and other laws and regulatIons m effect as of the date hereo f. hereof. ProVIded. however. the foregOing shall not prevent a Partv from seekmg such a Variance or WaIver If. after glYmg effect to such vanance or WaIver. the number ofparkmg spaces ,on such Party's Tract contmues to meet or exceed the number of parkmQ: spaces reqUired under thIS Agreement. RO\1ltol1 Bearl!...!], Oneratil1~ A!!!'Cement 11 (B) NeIther Party shall perform, and each Party shall use Its reasonable efforts not to suffer or permIt any Occupant of Its Tract to perform, any acts or carry on any practIces whIch would damage the other Party's Tract or be a nUIsance or menace to the other Party or whIch would mterfere WIth the nghts of qUIet enJoyment granted to the other Party or to occupants of the other Party's Tract. ARTICLE V MISCELLANEOUS 5 1 Default. (A) If any Party faIls to comply WIth any prOVIsIon herem ("Defaultmg Party"), then any other Party ("Non-Defaultmg Party''), at Its optIon, and WIth thIrty (30) days pnor notIce may proceed to cure the default (and shall have a lIcense to do so) by the payment of money or other actIon for the account of the Defaulting Party The foregomg nght to cure shall not be exerCIsed If, Wlthm such thIrty (30)-day notice penod, (i) the Defaultmg Party cures the default, or (ii) If curable, the default cannot be reasonably be cured Wlthm that tIme penod but the Defaultmg Party begms to cure such default wIthm such tIme penod and dilIgently pursues such actIon to completion. The thIrty (30)-day notIce penod shall not be reqUIred If, usmg reasonable Judgment, the Non-Defaultmg Party deems that an emergency eXIsts whIch requITes unmedIate remedIal actIon. In the event of such an emergency, the Non-Defaultmg Party shall gIve whatever notIce to the Defaultmg Party IS reasonable under the CIrcumstances. (B) WithIn ten (10) days after wntten demand therefor (includmg provldmg copIes of mVOIces reflectmg costs), the Defaultmg Party shall reImburse the Non-Defaultmg Party for any sum reasonably expended by the Non-Defaultmg Party due to such default or m correctmg the same, together WIth mterest thereon at the Interest Rate (heremafter defmed) (C) All remedIes m thIS SectIon are cumulatIve and shall be m addItIon to any and all other remedIes to whIch any Party may be entItled m law or m eqUIty and shall mclude, WIthout lImItatIon, the nght to restram by mJunctIon any VIolatIon or threatened VIolatIon by any Party of any of the terms, covenants or condItIons of thIs Agreement, and by decree to compel performance of any such terms, covenants, or condItIons, It bemg agreed that the remedy at law for any breach of any term, covenant or conditIon (except those, If any, requmng the payment of a lIqUIdated sum IS not adequate. (D) In the event of any lItIgatIon between the PartIes to thIS Agreement or the City mvolvmg the enforcement of any nghts under thIs Agreement, the prevailmg Party m any such lItIgatIon shall receIve from the other Party all costs and reasonable attorney's fees mcurred by such Party m connectIOn WIth such lItIgation. 5.2 Interest. Whenever m thIs Agreement It IS prOVIded that any Party IS to pay to any other Party a sum of money WIth mterest, the amount of interest to be paId shall be ca,lculated upon the sum advanced or due from the tIme advanced or due untIl the tIme paId at the lesser of: B0'11tl'll Beach FL ()neratill~ A~n:ement 12 (A) The hIghest rate permItted by law to be paId on such type of oblIgatIOn by the Party oblIgated to make such payment; or (B) Three percent (3%) per year m excess of the so-called base or pnme rate from tIme to tIme publIcly announced by BankBoston,Fleet Bank. N.A., Boston, Massachusetts or Its successor (the "Interest Rate"). 5.3 NotIces. All notIces, demands, statements, consents, approvals and requests and any submIttal of plans and/or request for approval ("NotIce") reqUIred or permItted to be gIven under thIs Agreement must be m wntIng and gIven, delIvered or served, eIther by prepaId express mail carner WIth receIpt, or by prepaId regIstered or certIfied mail, return receIpt requested, or by prepaId pnvate couner such as Federal Express, Emery or other recogruzed natIonal couner servIce which delivers only upon SIgned receIpt of the addressee, and shall be deemed gIven only when receIved unless a contrary mtent IS expressed herem except that m the vent the addressee or such agent of the addressee shall refuse to receIve any NotIce gIven as above provIded or there shall be no person aVaIlable at the time of delivery thereof to receIve such NotIce, the tlffie of the gIvmg of such NotIce shall be the tlffie of such refusal or the tIme of such delIvery, as the case may be. The addresses of the sIgnatones to thIs Agreement are set forth below In the event a Party shall encumber Its Tract by a mortgage and NotIce of such fact has been receIved by the other Party from the mortgagIng Party Issumg such NotIce, demand, statement, or request, then a copy of any NotIce of amounts due or NotIce of default dIrected to such mortgagIng Party shall also be sent to ItS mortgagee. If to BJ's. BJ's Wholesale Club, Inc. One Mercer Road NatIck, Massachusetts 01760 AttentIon. Vice PresIdent, Real Estate WIth a copy SImultaneously to BJ's Wholesale Club, Inc. One Mercer Road NatIck, Massachusetts 01760 AttentIOn. Real Estate Counsel If to Developer: B\VING. L.C.Tfto Developer: BIRCHWOOD/BOYNTON. LLC ExecutIve Offices 1001 N W 62d Street, SUIte 320 Ft. Lauderdale, FL 33309 AttentIOn. James H. Nobll WIth a copy SImultaneously to 80\"ll\11 Beach. FL Oneratill~ "!!!'Cement 13 ~-------------- WillIam L. Epstem, Esq c/o Glmelstob Enterpnses, Inc. 2300 N W Corporate Blvd., SUIte 222 Boca Raton, fL 33431 If to SouthTrust: WIth a coP V sImultaneouslv to. A COpy of any NotIce of default of thIS Aereement shall also be sent to the CIty at the followmg address. City Of Bovnton Beach AttentIon. CIty Attornev 100 East Bovnton Beach Boulevard Bovnton Beach. FL 33342 Any Party and the CIty shall have the nght, from time to time, and at any time, upon at least ten (10) days pnor Notice thereof 111 accordance WIth the prOVISIOns hereof, to change ItS respectIve address and/or addressee and to speCIfy another address and/or addressee Wlthm the Umted State of Amenca, prOVIded, however, notwIthstandIng anythmg herem contaIned to the contrary, m order for such NotIce of change to be effectIve, It must actually be receIved, and further proVIded such address may not be only a post office box. 5 4 CondemnatIon. In the event of a condemnatIon or a sale 111 beu thereof, concerning a portIon or all of the Shoppmg Center, the award or purchase pnce paId for such takIng shall be paId to the Party ownmg such land so taken, bemg the intent of any other Party who mIght have an easement or other property mterest or nght under thIs Agreement m the land so taken, to release and/or waIve such property mterest or nght WIth respect to such award or purchase pnce; prOVIded, however, such other Party shall have the nght to seek an award or compensation for the loss of its easement nght to the extent such award or compensatIOn paid or allocated for such loss does not reduce or dimImsh the amount paId to the Party owmng such land. Notwlthstandmg the above, thIS SectIon IS not mtended to alter any other agreement whIch may eXIst between the owner of the land so taken and any lessee of such owner 5.5 Bmdmg Effect. The terms of thIs Agreement and all easements granted by thIs Agreement shall constitute covenants runnmg Wlth, and be appurtenant to and run WIth, the land affected. All terms and easements shall enure to the benefit of and be bmdmg upon the SIgnatories hereto and theIr respectIve successors and asSIgnS to the extent they have an mterest 00\1l[<'1I Beach FL Oneratilll! "I!n:emem 14 m the benefited or burdened land, but except as provIded m SectIon ~hereof, any such successor or asSIgn shall not become a Party. but shall nevertheless be bound by the terms of thiS Agreement. ThIs Agreement IS not mtended to supersede, modIfy, amend or otherwIse change the provIsIons of any pnor mstrument affectmg the land burdened hereby 5 6 SmQ:Ular and Plural. Whenever reqUIred by the context of thIs Agreement, sIngular shall Include the plural, and VIce versa, and the masculIne shall mclude the femlmne and neuter genders, and VIce versa. 57 Not a PublIc DedIcatIon. Nothmg herem contaIned shall be deemed to be a gIft or dedIcatIon of any portIon of the Shoppmg Center or of any Tract or portIon thereof to the general publIc or for any publIc use or purpose whatsoever Except as herem speCIfically prOVIded, and except for the nehts granted the CltV In thIs Agreement. no nght, pnvileges or ImmumtIes of any Party hereto shall enure to the benefit of any thIrd-party Person, nor shall any thIrd-party Person be deemed to be a benefiCIary of any of the prOVISIons contaIned herem. 5 8 SeverabilIty InvalI<latIon of any of the prOVISIons contaIned m thIs Agreement, or of the applIcatIon thereof to any person, by Judgment or court order shallm no way affect any of the other prOVISIons hereof or the applIcatIon thereof to any other person and the same shall remam m full force and effect. 5.9 Amendments. This Agreement may be amended by, and only by, a wntten agreement whIch shall be deemed effective only when recorded m the publIc records of Palm Beach County, Flonda and executed and acknowledged by the PartIes. No consent to the amendment of this Agreement shall ever be reqUIred of any Occupant, PermIttee or Person or any person other than the PartIes, nor shall any Occupant, PermIttee or Person other than the PartIes have any nght to enforce any of the proVISIons hereof. 5 10 CaptIons and CaPItalIzed Terms. The captIons precedmg the text of each ArtIcle and SectIon are mcluded only for convemence of reference. CaptIons shall be dIsregarded m the constructIon and mterpretatIon of the Agreement. CapItalIzed terms are also selected only for convemence of reference and do not neceSSarily have any connectIOn to the meanIng that mIght otherwIse be attached to such term m a context outSIde OfthIS Agreement. 5 11 Agreement Shall ContInue NotWIthstandmQ: Breach. It IS expressly agreed that no breach of thIs Agreement shall entItle any Party to cancel, rescmd or, otherwIse termmate thIS Agreement. However, such lImItatIon shall not affect m any manner any other nghts or remedIes whIch such Party may have hereunder by reason of any such breach. 5 12 Non-WaIver The faIlure of eIther Party to mSlst upon stnct performance of any of the terms, covenants or condItIons hereof shall not be deemed a waIver of any nghts or remedIes whIch that Party may have hereunder or at law or eqUIty and shall not be deemed a WaIver of any subsequent breach or default m any of such terms, covenants or condItIOns. 5 13 No ThIrd Party RIghts. TheRlwts . Except for CltV. the only Persons who may enforce the terms and condItIons of thIS Agreement are the PartIes and the City CommISSIon of the CltV BO"lton Beach FL ()neralill~ A!!n:emem 15 5 14 Cost and Expense. Whenever m thIs Agreement provIsIon IS made for the domg of any act by any Person It IS understood and agreed that such act shall be done by such Person at ItS own cost and expense, unless a contrary mtent IS expressed. 5 15 Estoppel CertIficates. Withm twenty (20) days after request by any prospectIve mortgagee, or prospectIve purchaser of any Tract, under a sIgned agreement, the owner of each other Tract shall execute and delIver, WIthout charge, to the requestmg Party a wntten statement statmg: (i) that thIs Agreement IS unmodIfied and, If such be the case, IS m full force and effect, or If there haye been modIfications, that thIs Agreement IS m full force and effect as modIfied (statmg the modIficatIons), (ii) that, to the knowledge of such Party, the requestmg Party IS not m default m the performance of ItS oblIgatIons under this Agreement, or If there are eXlstmg defaults, speclfymg the same; and (hi) such other mformatlon as may be reasonably reqUIred by such prospectIve mortgagee or prospectIve purchaser 5.16 Umfied Control Document. It IS the mtent of the PartIes to thIS Aereement that thIS Agreement shall constItute the "Umfied Control Document" reqUIred bv the CIty pursuant to Ordmance 01-04 of the CIty. TIus Agreement IS bmdme upon the PartIes hereto and therr successors and asSignS. In the event of a default under tIus Aereement as contemplated by SectIOn 5.1, the City shall have standIne to seek enforcement of the mamtenance reqUIrements set forth 111 thIS Aereement. 5.17 SpeCIal Covenants Sublect to all applIcable codes and reeulatlOns of the Cay of Bovnton Beach, Flonda. the Parties agree as follows. (A) B1's shall mstall and mamtaIn a landscape buffer of not less than twenty-five (25') feet m WIdth alone the common boundary of the PropertY and the Stonehaven PUD (i.e. the entIre western boundary ofthe BJ's Parcel and the westerly 320 feet of the southern boundary of the BJ's Parcel). The buffer must at all tImes mclude (i) a four (4') foot hIgh berm. (ii) SIX (6 ) foot high masonry wall located In the center of the buffer; (ui) barb WIre bamer on top of the wall unless not permItted by the City of Bovnton Beach. F10nda. (IV) landscapmg whIch conSIst ofa mlmmum of two (2) rows of shade trees. twelve (12') to fourteen (14') feet m heIght at tIme of plantIng located on thIrty (30') foot centers. one row shall be placed on each SIde of the wan, tree locatIOn shan be staggered to proVIde the effect of fifteen (15') on center separation. (v) constmctIon of wall and berm shall occur sImultaneouslv WIth SIte preparatIon and pnor to the commencement of constructIon of anv buildmgs. B1's shall maInta111 the wall berm and landscapIng on both SIdes of the wall. (B) Each Partv shall mamtaIn 111 effect a contract to prOVide contInUOUS rodent and J pest control With respect to ItS Parcel. (C) An extenor hehtIne 111 the Shoppme Center shall be oflow 111tensItv (but 111 no event less than reqUIred to meet applIcable reqUIrements of the CIty ofBovnton Beach. Flonda) and shall be shIelded and directed away from surroundIng propertIes and nghts-of-wav. (D) The archItectural treatment of the rear ofbuildmes In the ShoppIne Center shall s; be archltecturallv compatible WIth the front of such bUlldmgs. BO"ItOI1 Beadl FL ()neralill~ :\!!!'Ceme11t 16 .. ~- --~ JV' ~<bJ ~ ()~ '77 IIX" ~J I ~(/\, \/ (E) Screemng and nOIse mitigatIon shall be provIded for all extenor mechamcal eqUipment m the Shoppmg Center. mcludIne screemng of rooftop eqUipment. '7 (F) The foref?:omg provIsIons m thiS SectIOn 5.17 may not be modIfied or amended In any respect wIthout the pnor wrItten consent of Stone haven Homeowners' AssocIatIOn. Inc.. a Honda corporatIon not for profit. whIch entIty shall have the nght to enforce these restnctlons bv 1111Ul1ctlon. ARTICLE VI TERM 6.1 Term. ThIs Agreement shall be effectIve as of the date first above wntten and shall contmue 111 full- force and effect untIl December 31, 2099, provIded, however, that the easements and agreements contamed m SectIon 2.1 hereof shall be perpetual and survIve the terminatIon of thIs Agreement. Upon termmation of thIs Agreement, all nghts and pnvileges denved from, and all duties and obl1gatlOns created and unposed by, the proVIsIons of thIs Agreement, except as contaIned or to be contamed WlthIn the SectIons referred to above, shall termmate and have no further force or effect; proVIded, however, that the termmatlon of thIs Agreement shall not 11ffi1t or affect any remedy at law or m eqUIty of any Party agaInst any other Party with respect to any lIabilIty or oblIgation arIsmg or to be performed under thIs Agreement pnor to the date of such termmatlon. IN WITNESS WHEREOF, the PartIes have caused thIs Agreement to be executed effectIve as of the day and year first above written. DEVELOPER WITNESSES. B'N1NG, L.c. DEVELOPER BIRCH\VOOD/BOYNTON. LLC By' Name: Title: BJ'S Title: WITNESSES AS TO BOTH. B1'S BJ'S WHOLESALE CLUB, INC By' Name: Title. BO\1.IOI1 Beach F L ODCratin~ A!!l'CCmem 17 ~-~-- ---- BO'"tlln Beach FL ()DCralill~ Asm:emc1I1 By' Name: Title: "" "- 18 WITNESSES. SOUTHTRUST SOUTHTRUST BANK N.A.. Bv: Name. Title: .. - BO~11l011 Beach FL Oneratin~ !\!!l'CCmellt 19 COMMONWEALTH OF MASSACffilSETTS ) ) SS. COUNTY OF ) On thiS eay of , 19_, befere me,The foreeomg mstn1111ent was acknowledged before me thIs day of 2001 by the 1:H'laerslg:FI:ed effieer, persenally appeared who ackBewledged hlmself:'herse1f to be the as of BJ's Wholesale Club, Inc., bemg a corporation, and tha-t helshe, as sHeha Delaware corporatIOn. on behalf of the corporatIon. He/She IS personallv known to me or produced , eeIRg authonzed so to de, eK€cuted the foregomg IBstrument for the pl:l.l"pases therem eontamed by slgnmg the nam.e of the carporatloB by hlfl1seWherself as as IdentIficatIOn. IN WITNESS WHEREOF, I hereunto set my hand and offiCIal seal. NOTARIAL SEAL Notary PublIc My corrumsslon expIres. COMMONWEALTH OF MASSACffilSETTS ) ) ss. COUNTY OF ) On thIS _ day of , 19_, befere me,The foregomg mstrument was acknowledged before me thIS day of 2001 bv the lHlderSlgBed effieer, persanally appeared who aekRo',vledged rnmseU7herself to be the as of BJ's Wholesale Club, Inc., bemg a corporatIOn. and that he/she, as sHcna Delaware corporatIOn. on behalf of the corporatIon. He/She IS personally known to me or produced , beIng authonzed so to do, e;(ecl:1ted the foregomg 1l1:stmment for the purposes therelR contamed by SIgmng the name of the earporatloB by hlmsel:t:'herself as as IdentIfication. - t. IN WITNESS WHEREOF, I hereunto set my hand and offiCIal seal. NOTARIAL SEAL Notary Public B0'111011 Beach. FL ODCratill~ A2n:emetlt 20 .. ---~~~ t. 80\1110" BeaclL Fl. Oocrarinll '\2n:emel1t 21 My COmmISSIOn expIres: ST,^..TE OF ) ) sa. COUNTY OF STATE OF ) ) SS. ) COUNTY OF OR this _ day of , 19_, mstrument was acknowled~ed before me thIS day of the l:lBdersigned offieer. personally , who aelmo~::ledged himself/herself to be the bemg a corporatIon, of SouthTrust Bank. N.A.. a He/She IS personally known to me or produced , bemg B:l:lthonzcd so to do, executed the foregomg pl:lrposes thereiR contamed by slgnmg the name of the corporatIon by .IdentIficatIon. before me, The foregomg 2001 by appeared of and thatas . on behalf of the corporatIon. as he/she, as slieh. mstrl:FfRent for the lHmselIDlerself as IN WITNESS WHEREOF, I hereunto set my hand and offiCIal seal. NOTARIAL SEAL Notary PublIc My commiSSIon expIres' STATE OF FLORIDA ) ~ ) COUNTY OF J - The foreeomg mstrument was acknowledged before me thIS 2001 by as BIRCHWOODIBOYNTON, LLC, a Flonda lImIted habIhty company. He/She IS oersonal1v known to me or produced dav of of on behalf of the as IdentIfication. B0\1I11m Beach FL Oneralill~ A!!!'Cemetll 22 IN WITNESS WHEREOF. I hereunto set my hand and officIal seal. NOTARIAL SEAL Notary PublIc Mv commISSIon eXPIres. L BO"llon Beach FL Oneratnlll A2n:ement 23 EXHIBIT A Legal Descnption ofBJ's Parcel TRACT A ofB1'S WHOLESALE CLUB accordme to the plat thereof recorded m Plat Book . Page of the publIc records of Palm Beach County. Flonda. # ;,. RovlIlon Be:1clL FL Oneratinl! AI!n:emelll 24 EXHIBIT B Legal Descnptlon of OatpareelsDeveloper Parcel TRACT "B" Out Parcel and TRACT "C" Out Parcel ofBJ'S WHOLESALE CLUB according to the plat thereof recorded m Plat Book , Paee ofthe publIc records of Palm Beach County. Flonda. BO"IIOII Beach FL Oneratin~ A2reemcllt -!. 25 EXHIBIT C Legal Descnptlon of Bank Parcel TRACT "D" Out Parcel ofBJ'S WHOLESALE CLUB accordmg to the plat therebfrecorded m Plat Book , Page ofthe publIc records of Palm Beach County, Flonda. - , - BOVlltOI1 Beach FL Oneratinil A2.reement 26 EXHIBIT D SHeSouthTrust Building ElevatIon Plan - '- BOVlllon BeaclL FL Onerariml: Al!:I'CetnClll 27 EXHffiIT E PrOlect SlQ:11 Easement Area ~ - BO,,1l011 BeaclL FL Oncratin.. I\sm:emelll 28 Boynton BeaclL FL Oneratilll! A2n:ement EXHIBIT F Pro1ect SIQ:ll ~ '- 29 ~T~ - CITY OF BOYNTON BEACH MEMORANDUM TO Mike Rumpf, DIrector ofPlannmg and FROM. Nicholas 1. Igwe, AssIstant City Atto ey RE P and Z's comments on BJ Wholesale Club's Operating Agreement DATE April 27, 2001 I have your April 19, 2001, P and Z memo, # 01-073 to me on the above referenced matter If you recall, I hand delivered my memo of February 28,2001, to VariOUS departments, mcludmg P and Z and because of trme constraInts, requested that responses and comments on the proposed Operating Agreement whIch constitutes the unified control document withm the PCD be returned to me by Monday March 5, 2001 If you recall, a few weeks ago you mquIred whether It was too late to provide comments to my memo and I responded m the affirmatIve. It is obVIOUS that your memo of April 5, 2001, came m late as closing on the property occurred the week of March 5, 2001, and the Operating Agreement has since been recorded. In any event, followmg receipt of comments from Don Johnson, I requested that sectIon 5 18 be added to the Agreement. SectIOn 5 18 reads as follows: "ComplIance Wlth ApplIcable Codes. Laws and Regulations. Anything in thIs Agreement to the contrary notwithstandmg, the BJ's parcel, the Developer Parcels and the Bank Parcel shall at the trme of therr development, as applIcable, comply Wlth the Boynton Beach Code of Ordinances and all other codes, laws, and regulatIons of governmental authorities having jurisdiction, provided however, the prOVISIOns of this Agreement if more strIngent or restrictive shall control." In my VIew, all development actiVitIes WlthIn the PCD shall meet City Code and other applIcable laws and regulatIons. I have attached my memo of February 28,2001 for your review Please contact me, If you need clarification on this matter CC. James Cherof, CIty Attorney LusIa Galav, PnncIpal Planner s:calDeptsIIgwe BJ memo .1 r:J ~_(." rr; n 1''7 ~ @ : ' 'I , .. I I 1"\ ; ; APR 3 0 2001 0r rC\![[OPMENT ----'-'--" CITY OF BOYNTON BEACH MEMORANDUM TO: Qumtus Greene, Director of Development; Mike Rumpf, Director of Planning and Zonmg; Don Johnson, Building Official, Tim Large, Building Code Admmistrator; Dave Kelley, Engmeering DiVl FROM: Nicholas 1. Igwe, Assistant City AttomeYJ RE: BJ Wholesale Club's Operatmg Agreement DATE: February 28,2001 I am hand delivering to each of you today (before lunch), BJ Wholesale Club's Operating Agreement, which will guide development as regards the issues of access, maintenance, storm water retention, parking, signage and other construction related issues within the PCD The Operating Agreement constitutes the "unified control document" required by Ordinance number 01-04 Closing on the property IS set for sometime next week. Please review sections that relate to your department or division and provide me with your comments not later than Monday, March 5, 2001 S:calDeptsllgwe BJ memo " . DEVELOPMENT DEPARTMENT PLANNING AND ZONING MEMORANDUM NO. 01-073 TO' Michael Rumpf P&Z DIrector FROM. Lusla Galav Prmclpal PI DATE. Apnl19,2001 SUBJECT BJ's Wholesale Club Operating Agreement As requested, I have revIewed the above referenced draft agreement and have the followmg comments. 1 ArtIcle 4.2 (Pg. 7) - Each platted parcel must meet the City's parkmg reqUIrement for the use as developed unless a shared parkmg agreement is antICIpated or prOVIded for Under no CIrcumstances IS the parking requrrement to vary from what was shown on the Master Plan unless approved by the Planning and Zoning DIvision through the Minor ModIfication process. 2. ArtIcle 4.5, C fuw (Pg. 9) - Any and all proJect SIgns must meet the requirements of Land Development RegulatIons Chapter 21, Signs. A 35- foot high freestandmg SIgn IS not permItted nor IS each parcel permitted a freestanding monument SIgn. 3 ArtIcle 5 17 (A) (Pg. 16) - the use of barbed wrre IS not permItted m thIs C-3 zomng dIStnCt. 4 ExhibIts D, E, and F (Pgs. 27-29) - The graphics for these exhibIts were not mcluded 111 the draft. The final exhibIt should match the approved BJ's master plan and SIte plan. Cc. Nicholas Igwe, Assistant City Attorney Galav Lusia From' Sent: To Subject: Rumpf Michael Wednesday January 31 2001 352 PM Galav Lusia RE. Meeting w/ Jose Arenal Ok, let's just be sure to provide a paper link showing approval of the minor modification in the master plan file Thanks, MR. ---Original Message---- From: Galav Lusia Sent: Wednesday January 31 2001 3:33 PM To: Rumpf Michael Subject: RE. Meeting wI Jose Arenal Mike The site plan for BJ's was the master plan for the entire site as well as the specific plan for approval for the BJ's building and the Southtrust Bank building The driveway entrance modification affects the two future outparcels which have not received site plan approval only approval for max. square footage and parking I would recommend that we handle this as a minor modification as it does not affect the areas with approved site plans. When these two out parcels come in for approval the modified driveway location will be included in one or both plans Would you agree? Please advise. Lusia ---Original Message---- From: Rumpf, Michael Sent: Tuesday January 30 2001 4:06 PM To: Galav Lusia Subject: RE. Meeting wI Jose Arenal It appears to be a similar case, the magnitude of the changes appear similar (Boynton Commerce Center vs BJ's) Treat them similarly Was the master plan also used as the site plan or are there two different documents I don't recall MR --Original Message--- From: Galav Lusia Sent: Tuesday January 30, 2001 1 40 PM To: Rumpf, Michael Subject: RE. Meeting wI Jose Arenal Mike That seems like a logical approach to me As always the specific site plan would indicate what was actually built on site as well as the minor mod plans/file I was just going to email you regarding how to handle the BJ's driveway relocation minor mod Should I just continue to process as a minor mod? Please advise Lusia --Original Message--- From: Rumpf, Michael Sent: Tuesday January 30, 2001 1 :33 PM To: Galav Lusia Subject: Meeting wI Jose Arenal Lusia, I went ahead and met with Mr Arenal in your absence on Monday I am the one who needed to get caught up anyway You know, I thought of another angle to take regarding the master plan What about if it is considered the maximum approval and any changes to the site plan must fall within the limits of the 1