Exhibit 10.209
POST CLOSING AND INDEMNITY AGREEMENT
THIS POST CLOSING AND INDEMNITY AGREEMENT (this "Agreement") is made and
entered into as of the ___day of June, 2004, by and between INLAND WESTERN
FULLERTON METROCENTER, L.L.C., a Delaware limited partnership ("Purchaser"), and
ANATON ASSOCIATES, a California limited partnership ("Seller"), in connection
with the acquisition by Purchaser of that certain property commonly known as
Fullerton Metrocenter Shopping Center, Fullerton, California (the "Property").
WHEREAS, Purchaser is acquiring the Property from Seller (the
"Transaction").
WHEREAS, in order to proceed with and consummate such acquisition and as a
condition to closing the Transaction, Purchaser requires that Seller agree to
the obligations set forth below, which are to be performed after such closing.
NOW, THEREFORE, for good and valuable consideration including the mutual
promises contained herein, the parties hereto agree as follows:
1. TARGETESTOPPEL WORK. Pursuant to an Estoppel Certificate dated June
22, 2004, a copy of which is attched hereto, issued by Target Corporation
("Target") in connection with that certain Declaration and Agreement
Establishing Covenants, Conditions, Restrictions and Grants of Easements
("ECR"), Target has alleged a default as described in two (2) default notices
each dated April 5, 2004 from Target Corporation to Seller, copies of which are
attached hereto. Pursuant to a letter dated June 29, 2004 from Xxxxxx Xxxxxx to
Xxxx Xxxxxxx, Seller has agreed to (i) promptly relocate the trash compactor at
Seller's sole cost and expense, and (ii) supply certain documents to Target
requested by Target, i.e., an updated rent roll and a management contract.
Seller hereby indemnifies Purchaser from any cost, loss or expense resulting
from Seller's failure to comply with the foregoing and Seller hereby agrees that
notwithstanding Purchaser's assumption of all leases and contracts encumbering
the Property, that Seller retains all liability for all common area maintenance
reconciliations resulting from audits of any tenant of Target under the ECR
accruing for any year prior to 2004.
2. GROUND LEASE ESTOPPELS. Sellers hereby agree to execute and cause the
Xxxxxx to execute Ground Lease Estoppels and Agreements in forms reasonably
acceptable to counsel for Bear Xxxxxxx Commercial Mortgage, Inc.
3. MISCELLANEOUS. This Agreement shall be interpreted and enforced in
accordance with the internal laws of the State of California. The invalidity or
unenforceability of any provision of this Agreement shall not affect, modify or
impair the validity and enforceability of all other provisions of this
Agreement. This Agreement shall be binding on and shall inure to the benefit of
the parties hereto and their representatives, heirs, legatees, successors, and
assigns; provided, however, that Seller shall have no right whatsoever to assign
its interest under this Agreement and any such attempted assignment shall
automatically be null and void and of no force
1
and effect, and shall be deemed a breach by Seller of its obligations hereunder.
No failure or delay by Purchaser in exercising any right, power or privilege
under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any right, power or privilege hereunder. No change, amendment or
modification of this Agreement shall be binding or enforceable unless in writing
and executed by the party to be bound thereby. The covenants, agreements and
indemnification provisions contained in this Agreement shall be enforceable
notwithstanding the closing of the Transaction. In the event of litigation with
respect to any portions of this Agreement, the prevailing party will be entitled
to collect all reasonable legal fees incurred in connection with such litigation
from the non-prevailing party. Purchaser shall have all remedies available at
law and in equity on account of a default by Seller under this Agreement. Time
is of the essence of this Agreement and the terms hereof. This Agreement may be
signed in counterparts.
IN WITNESS WHEREOF, the parties have executed this Post Closing and
Indemnity Agreement effective as of the first date written above.
SELLER:
ANALON ASSOCIATES, a California limited partnership
By:
------------------------------
Its:
------------------------------
PURCHASER:
INLAND WESTERN FULLERTON METROCENTER,
L.L.C., a Delaware limited liability company
By: INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., its
Sole Member
By: /s/ [ILLEGIBLE]
-----------------
Name:
----------------
Its: agent
2
XXXXXX XXXXXX, INC.
A PROFESSIONAL CORPORATION
ATTORNEY AT LAW
000 XXXXX "X" XXXXXX, XXXXX 000
XXXXXX, XXXXXXXXXX 00000-0000
(000) 000-0000
FAX (000) 000-0000
Xxxx Xxxxxxx, Xx. Counsel June 29, 2004
INLAND REAL ESTATE
ACQUISITIONS, INC.
0000 Xxxxxxxxxxx Xxxx via fax to
Xxx Xxxxx, XX 00000 630/218-4900
Re: Purchase of Fullerton Metrocenter,
Fullerton, CA.
------------------------------
Dear Xxxx:
Regarding the Target estoppel relating to the CC&R's, I am providing background
information to assist in deciding how to handle the so-called "defaults" claimed
by Target.
THE TARGET LETTER OF APRIL 5, 2004
1. Target contends it is entitled to an updated rent roll. Seller
disagrees that any provision of the CC&R's requires a disclosure of this kind to
Target. However, Target is entitled to square footages which Seller contends has
already been provided. However, Seller will provide the square footages again,
if necessary.
2. Target has requested an "explanation and break down" of the Pro Rata
Share calculations. Target has been sent the 2003 CAM reconciliation which
provides this information. Unless Target has specific questions, Seller does not
understand what additional information is needed.
3. Target cites 12.2.4 of the CC&R's to support its request for an
"Operator Agreement". There is nothing in that section or elsewhere that
provides for an Operator Agreement and none exists. There is a management
contract with Xxxxxxxx Real Estate Management but Seller finds nothing in the
CC&R's that requires that be provided. However, because Target is entitled to
see the agreement that justifies the property management fee, Seller is willing
to provide that document.
Further, please note that when Target assumed the Wards lease in bankruptcy, a
"Fourth Amendment to Lease [and Second Amendment to Sublease]" dated as of
December 21, 2001, was signed by the parties (the "Fourth Amendment"). In
Section 9 of the Fourth Amendment, Target agreed that it would continue to honor
the CC&R's in the same manner that Wards had done including use of CAM Pools and
other issues. Seller has continued to xxxx Target in the same manner that Wards
was billed for CAM expenses.
Xxxx Xxxxxxx, Xx. Counsel
INLAND REAL ESTATE
ACQUISITIONS, INC.
June 29, 2004
Page Two
In general, Target dislikes paying CAM expenses but it agreed to do so in the
Fourth Amendment. Also, Target complains that CAM expenses are "too high" yet
the issue is not how much is being spent (which is competitive with other
similarly situated shopping centers) but the fact that Target has a pro rata
share of approximately 47% which Target AGREED TO as the successor to Wards'
position.
Target has a mezzanine of approximately 37,311 square feet (inherited from
Wards) which Target does not use, at Target's election, but which is included in
Target's pro rata share. Finally, Target added a garden area to its retail
building which is approximately 10,293 square feet which is also included in its
pro rata share.
Thus, Target has ground floor area of 154,739 square feet and mezzanine area of
37,311 square feet for a total area of 192,050 square feet. Seller believes this
is the gravamen of Target's compliant and does not amount to a "default".
THE TRASH COMPACTOR ISSUE
I am attaching two (2) letters dated June 18, 2004, which summarizes the
background and proposal for resolving this issue. This issue arose only recently
due to the tenant build-out for PetsMart. Complete resolution of the issue
cannot be accomplished prior to close of escrow. However, the cost of the
relocation of the trash compactor will be paid by Seller and Target will incur
no expense in rectifying the situation.
Please advise regarding the foregoing.
Best regards,
/s/ Xxxxxx Xxxxxx
XXXXXX XXXXXX
TD-o
xc: client, HBJ, CAJ
[XXXXXXXX REAL ESTATE MANAGEMENT, INC. LOGO]
June 18, 2004
Xxxx X. XxXxx
Vice President of Operations
0000 X. Xxxx Xxx Xxxxxx
Xxxxxxx, XX 00000-0000 Via Facsimile 714/238-3306
Re: Target Store #1418
000 X. Xxxxxxxxxxxx
Xxxxxxxxx, XX 00000
Dear Xxxx,
This letter will serve to confirm the situation regarding the trash compactor at
the captioned location, so that the Property Development department at Target
Corporation has a clear understanding of the current status. Your confirmation
of the following facts is valuable to the parties.
1. When the new truck well for PetsMart was installed at Fullerton
Metrocenter, the previously clear 225 foot access to the Target trash
compactor was partially blocked. An angled access is now required in order
to make the connection between the compactor bin and the receiver body in
the roll-off truck at the captioned location.
2. During our meetings and discussions, we have jointly developed a
modification plan which MG Disposal believer will resolve the
alignment/access problem. MG Disposal agreed that relocating the compactor
one truck well to the west will completely solve this situation.
3. The proposal submitted by the installing contractor, C. Stonebarn, Inc.,
includes improvements to the compactor which all parties believe will
improve the cleanliness of the area. Specifically, the bottom edge of the
receiver connection will be extended to make a better fit given the angle
of the truck well bed. This will reduces the amount of trash left in the
truck well when the bin is removed.
At this time, final approval of the proposed plan is pending from Target
Corporation. The modifications will be made, at the expense of Anaton
Associates, immediately upon receipt of this approval.
Xxxx X. XxXxx
June 18, 2004
Page 2
Please sign and return one copy of this letter as confirmation that in the
interim. MG Disposal is willing to continue working with Target #1418 on their
compactor trash removal needs.
If you have any questions, please do not hesitate to contact me.
Very truly,
XXXXXXXX REAL ESTATE MANAGEMENT, INC.
/s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx, CSM. CPM(R)
President
ABW51g
June 18, 2004
The undersigned confirms the above details. During the process of modifying the
Target #1418 truckwell, MG Disposal is willing to continue working with Target
#1418 on their compactor trash removal needs.
MG Disposal, Inc.
By: /s/ Xxxx X. XxXxx 6/18/04
---------------------------------
Xxxx X. XxXxx
Vice President of Operations
[XXXXXXXX REAL ESTATE MANAGEMENT, INC. LOGO]
June 18, 2004
Xxxxxxx Xxxx
Target Corporation
0000 Xxxxxxxx Xxxx
XXX 00-X
Xxxxxxxxxxx, XX 00000
Re: Target #1418
Fullerton, CA
Trash Compactor Relocation - Request for Authorization
Dear Xxxxxxx,
As discussed, we have worked with MG Disposal (compactor disposal company),
Philadelphia Tramrail (compactor manufacturer), X. Xxxxxxxx Inc. (compactor
installer) and the Target #1418 staff, to develop a plan to resolve the trash
compactor alignment/access situation at the captioned location. The relocation
of the compactor to the truck well bay immediately to the west of its current
location appears to be the most workable solution. I have enclosed a rough
sketch to clarify the intent.
The loading area has four truck bays in addition to the compactor bay, which was
adapted from an original fifth truck bay. The bay currently used for the
compactor can be closed off with cinder block (to match existing) which will
increase interior storage, or it can be returned to its original use, at
Target's choice.
All costs for this resolution, including compactor relocation, fire sprinkler
relocation, alarm system modification and the modification of the fifth bay will
be borne by Anaton Associates. Enclosed is a copy of a letter signed by MG
Disposal which acknowledges that this solution will resolve their access
difficulties and that they have and will continue to haul the compactor from
this location. They have welded a new tab to the container which resolved their
concerns of earlier this spring.
All of the local parties are anxious to move forward with this work. Please send
written approval for Anaton to proceed by whatever method is authorized by
Target Corporation in such instances. Work will begin immediately upon receipt
of same. We appreciate your assistance in this matter.
Very truly,
XXXXXXXX REAL ESTATE MANAGEMENT, INC.
Xxxxxx X. Xxxxxxxx, CSM, CPM(R)
President
ABW51g
Enclosures
cc: X. Xxxxx w/enclosure
Xxxxxxxx Real Estate Management, Inc. - 000 Xxxx Xxxxx Xxxxxx, Xxxxx 000 - Xxxxx
Xxxx, XX 00000
714/000-0000 - Fax: 714/000-0000 - E-mail: xxx.xxxx.xxx
[TARGET CORPORATION LOGO]
(000) 000-0000
(000) 000-0000 (fax)
Email: Xxx.Xxxxxx@Xxxxxx.xxx
DHL (Telephone: 000-000-0000)
June 22, 2004
Anaton Associates
c/o Xxxxxx Xxxxxx, Inc.
000 Xxxxx "X" Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000-0000
Attn: Xxx Xxxxxx
RE: T-1418 FULLERTON, CA
ESTOPPEL CERTIFICATES (SUBLEASE & DECLARATION)
Dear Xx. Xxxxxx,
Enclosed please find two (2) multiple originals of each of the above referenced
documents, which have been executed by Xxxxx X. Xxxxxx, Vice President of Target
Corporation.
These estoppel certificates are strictly limited in scope to those matters
required by the terms of the corresponding documents and as advised by counsel.
If you have further questions concerning this matter, please contact me at the
telephone number provided above.
Sincerely,
/s/ Xxx Xxxxxx
Xxx Xxxxxx
Real Estate Dept.
Target Corporation
Enclosure
CC: Xxx Xxxx (w/o enclosures via E-mail)
Xxxx Xxxxxxxxx (w/o enclosures via E-mail)
Target - Xxxxxxxx Xxxxx'x - Mervyn's - target_direct
Target Financial Services - Target Brands - AMC - DCI
Property Development, 0000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000
ESTOPPEL CERTIFICATE
June 22, 2004
Anaton Associates
c/o Xxxxxx Xxxxxx, Inc.
000 Xxxxx "X" Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000-0000
Inland Real Estate Acquisitions, Inc.
Its Successors and Assigns
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Re: Estoppel Certificate
T-1418 Fullerton, CA
Ladies and Gentlemen:
Reference is made to that certain Sublease dated September 12, 1986 by and
between Target Corporation, a Minnesota corporation, successor in interest to
Xxxxxxxxxx Xxxx & Co., Incorporated, an Illinois corporation ("Sub-Landlord")
and Anaton Associates, a California limited partnership ("Sub-Tenant"), as
amended by that certain First Amendment to Sublease dated April 9, 1987, as
amended by that certain Fourth Amendment to Lease and Second Amendment to
Sublease dated December 21, 2001, and as memorialized by that certain Memorandum
of Sublease dated September 12, 1986, and recorded on May 15, 1987 as Document
87-274838, as amended by that certain incorrectly titled First (should read
"Second") Amendment to Memorandum of Sublease dated December 21, 2001, and
recorded on February 11, 2002 as Document 20020120386 in Official Records of
Orange County, California (the "Sublease").
As of the date hereof, the undersigned, as a party to the Sublease, does
hereby certify as follows:
1. The undersigned does not know of any default under the Sublease.
However Sub-Landlord does not waive or release its right to audit
Common Area Xxxxxxxx/statements as reserved in the Sublease or any
other documents that Sub-Landlord and Sub-Tenant may be a party to.
2. There has been no assignment, modification or amendment of the
Sublease, except as noted above and the following:
a. Supplemental Agreement Pertaining to Sublease and Memorandum of
Sublease by and between Sub-Landlord and Sub-Tenant dated
November 17, 1987, and recorded on February 24, 1988 as Document
88-080160 in Official Records Orange County, California.
3. There has been no percentage rent paid or sales reports provided by
Sub-Tenant to Sub-Landlord from fiscal year 2002 to present.
4. To the knowledge of the undersigned, the Sublease is in full force and
effect.
5. Please be advised that Sub-Landlord and Sub-Tenant are parties to that
certain Declaration and Agreement Establishing Covenants, Conditions,
Restrictions and Grants
of Easements dated September 12, 1986 by and between Xxxxxx X. Xxxxxx,
Xxxx X. Xxxxxx and Xxxxx X. Xxxxxx (collectively "Trustees"),
Fullerheim Partners, LTD., a California limited partnership
("Fullerheim"), Anaton Associates, a California limited partnership
("Anaton") and Target Corporation, a Minnesota corporation ("Target"),
successor in interest to Xxxxxxxxxx Xxxx & Co., Incorporated, an
Illinois corporation ("Xxxx") and recorded on May 15, 1987 as Document
No. 87-274841, as amended by that certain First Amendment to
Declaration and Agreement Establishing Covenants, Conditions,
Restrictions and Grants of Easement dated April 9 1987, and recorded
on November 17, 1987 as Document No. 87-646471, as amended by that
certain Second Amendment to Declaration and Agreement Establishing
Covenants, Conditions, Restriction and Grants of Easement dated
December 21, 2001, and recorded on February 11, 2002 as Document
20020120384 in Official Records, County of Orange, California (the
"Declaration").
The statements contained herein are not affirmative representations, warranties,
covenants or waivers, and the undersigned shall not be liable on account of any
information herein contained notwithstanding the failure of the undersigned, for
any reason, to disclose correct and/or relevant information, however the
undersigned shall be estopped from asserting any claim or defense against you to
the extent (a) such claim or defense is based upon facts now known to the
undersigned which are contrary to the statements contained herein, (b) you have
acted in reasonable reliance upon such statements without knowledge of facts to
the contrary, and (c) you are a bona fide purchaser or encumbrancer for value of
real property which is subject to the Sublease. Notwithstanding anything
contained in this Estoppel Certificate to the contrary, nothing contained herein
shall be construed as a waiver by the undersigned of (and the undersigned hereby
expressly reserves): (a) any audit and/or adjustment rights in the Sublease
which have not expired as of the date of this Certificate, and/or (b) any rights
to challenge acts committed by Sub-Tenant for which approval by the undersigned
was required but was not sought or obtained.
TARGET CORPORATION
By: /s/ Xxxxx Xxxxxx Dated: 6-22-04
------------------------- --------------------
Xxxxx Xxxxxx
Vice President
cc: Xxxxx Xxxxxxx, Director - Real Estate
Xxxxxx Xxxx, Manager - Property Administration
Xxx Xxxx, Manager - Property Administration
ESTOPPEL CERTIFICATE
June 22, 2004
Anaton Associates
c/o Xxxxxx Xxxxxx, Inc.
000 Xxxxx "X" Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000-0000
Inland Real Estate Acquisitions, Inc.
Its Successors and Assigns
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Re: Estoppel Certificate
T-1418 Fullerton, CA
Ladies and Gentlemen:
Reference is made to that certain Declaration and Agreement Establishing
Covenants, Conditions, Restrictions and Grants of Easements dated September 12,
1986 by and between Xxxxxx X. Xxxxxx, Xxxx X. Xxxxxx and Xxxxx X. Xxxxxx
(collectively "Trustees"), Fullerheim Partners, LTD., a California limited
partnership ("Fullerheim"), Anaton Associates, a California limited partnership
("Anaton") and Target Corporation, a Minnesota corporation ("Target"), successor
in interest to Xxxxxxxxxx Xxxx & Co., Incorporated, an Illinois corporation
("Xxxx") and recorded on May 15, 1987 as Document No. 87-274841, as amended by
that certain First Amendment to Declaration and Agreement Establishing
Covenants, Conditions, Restrictions and Grants of Easement dated April 9 1987
and recorded on November 17, 1987 as Document No. 87-646471, as amended by that
certain Second Amendment to Declaration and Agreement Establishing Covenants,
Conditions, Restriction and Grants of Easement dated December 21, 2001, and
recorded on February 11, 2002 as Document 20020120384 in Official Records,
County of Orange, California (the "Declaration").
As of the date hereof, the undersigned, as a party to the Declaration, does
hereby certify as follows:
1. The undersinged does not know of any default under the Declaration by
Anaton except as follows, and Target does not waive or release its
right to audit Common Area Xxxxxxxx/statements as reserved in the
Declaration or any other documents that Target and Anaton may be a
party to:
a. Default Notice dated April 5, 2004 regarding assessment of the
2004 Common Area Maintenance Budget (attached hereto);
b. Default Notice dated April 5, 2004 regarding a building expansion
constructed by or permitted to be constructed by Anaton. The
building expansion is a direct violation of the terms and
conditions of the Declaration. As a result of the building
expansion, Target continues to suffer damage to its trash
compactor. To date Anaton has not presented a viable solution to
this violation. Target holds Anaton responsible for any and all
damages suffered by Target as a result of the violation. In the
event that Anaton or Target resolves the violation, all costs
associated with the remedy shall be deemed the responsibility of
Anaton (attached hereto).
2. There has been no assignment, modification or amendment of the
Declaration, except as noted above.
3. To the knowledge of the undersigned, the Declaration is in full force
and effect.
4. Please be advised that Target and Anaton are parties to that certain
Sublease dated September 12, 1986 by and between Target Corporation, a
Minnesota corporation, successor in interest to Xxxxxxxxxx Xxxx & Co.,
Incorporated, an Illinois corporation ("Sub-Landlord") and Anaton
Associates, a California limited partnership ("Sub-Tenant"), as
amended by that certain First Amendment to Sublease dated April 9,
1987, as amended by that certain Fourth Amendment to Lease and Second
Amendment to Sublease dated December 21, 2001, and as memorialized by
that certain Memorandum of Sublease dated September 12, 1986, and
recorded on May 15, 1987 as Document 87-274838, as amended by that
certain First Amendment to Memorandum of Sublease dated April 9,
1987, and recorded on November 17, 1987 as Document 87-646472, as
amended by that certain First (should read "Second") Amendment to
Memorandum of Sublease dated December 21, 2001, and recorded on
February 11, 2002 as Document 20020120386 in Official Records of
Orange County, California (the "Sublease").
The statements contained herein are not affirmative representations, warranties,
covenants or waivers, and the undersigned shall not be liable on account of any
information herein contained notwithstanding the failure of the undersigned, for
any reason, to disclose correct and/or relevant information, however the
undersigned shall be estopped from asserting any claim or defense against you to
the extent (a) such claim or defense is based upon facts now known to the
undersigned which are contrary to the statements contained herein, (b) you have
acted in reasonable reliance upon such statements without knowledge of facts to
the contrary, and (c) you are a bona fide purchaser or encumbrancer for value of
real property which is subject to the Declaration. Notwithstanding anything
contained in this Estoppel Certificate to the contrary, nothing contained herein
shall be construed as a waiver by the undersigned of (and the undersigned
hereby expressly reserves): (a) any audit and/or adjustment rights in the
Declaration which have not expired as of the date of this Certificate, and/or
(b) any rights to challenge acts committed by Anaton for which approval by the
undersigned was required but was not sought or obtained.
TARGET CORPORATION
By: /s/ Xxxxx Xxxxxx Dated: 6-22-04
-------------------- ----------------------
Xxxxx Xxxxxx
Vice President
cc: Xxxxx Xxxxxxx, Director - Real Estate
Xxxxxx Xxxx, Manager - Property Administration
Xxx Xxxx, Manager - Property Administration
TARGET CORPORATION Xxxxxx De Paepe
PROPERTY MANAGEMENT Target Corporation
TPN - 0710
0000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
T(612)761-1435
F(612)761-6550
April 5, 2004
VIA CERTIFIED MAIL - RETURN RECEIPT REQUESTED
Anton Associates Ltd.
X/x Xxxxxxxx Xxxx Xxxxxx Xxxxxxxxxx, Xxx.
000 X. Xxxxx Xx.
Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
RE: DECLARATION AND AGREEMENT ESTABLISHING COVENANTS, CONDITIONS,
RESTRICTIONS AND GRANTS OF EASEMENT (CC&R'S) DATED SEPTEMBER 12, 1988
Dear Xxxxxx:
Target Corporation has completed a review of the CC&R's, and finds that it is
missing information necessary to perform an accurate assessment of the '04
Common Area Maintenance budget. Please provide us with the following:
- An updated Rent Roll, including square footages,
- An explanation and break down of the Pro Rata Share calculations,
- As required under Section 12.2.4 of the CC&R a copy of the Operator
Agreement, including but not limited to, the Management Contract for
Xxxxxxxx Real Estate Management, Inc..
Target Corporation would also like to reiterate that it is very concerned about
the expenses associated with Common Area Maintenance at this location. The
expenses associated with comparable centers in Orange County are much lower on a
per square foot basis. Target Corporation is investigating its options as listed
under Section 12.2.7 of the CC&R, and would appreciate any information available
to better understand the expenses associated with this location.
Thank you for your attention to these matters.
Sincerely,
Xxxxxx De Paepe
Sr. Property Management Specialist
cc: Xxx Xxxx, Property Administrator, Target Corporation
Xxxx Wast, Property Management Accountant, Target Corporation
[TARGET CORPORATION LOGO]
Direct Dial: 612/000-0000
Fax: 612/000-0000
E-mail: xxx.xxxx@xxxxxx.xxx
April 5, 2004
Anaton Associates Ltd.
c/o Williams Real Estate Management, Inc.
000 X. Xxxxx Xx.
Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
RE: T1418 - 000 X XXXXXXXXXXXX XXX, XXXXXXXXX, XXXXXXXXXX - DECLARATION AND
AGREEMENT ESTABLISHING COVENANTS, CONDITIONS, RESTRICTIONS AND GRANTS OF
EASEMENTS, BETWEEN XXXXXX X. XXXXXX, XXXX X. XXXXXX AND XXXXX X. XXXXXX AS
TRUSTEES UNDER THE WILL OF XXXX X. XXXXXX, DECEASED, FULLERHEIM PARTNERS,
LTD., ANATON ASSOCIATES AND TARGET CORPORATION, SUCCESSOR IN INTEREST TO
XXXXXXXXXX XXXX & CO. INCORPORATED, DATED SEPTEMBER 12, 1986
("DECLARATION")
Dear Xxxxxx:
It has come to our attention that a building located on Parcel 2 was recently
expanded ("Building Expansion"). The Target Corporation Building Services
Department has notified us that the Building Expansion interferes with the
Target Store operation and its ability to utilize its trash compactor. There
have been times when the trash hauler has refused to pick up our trash, forcing
Target to acquire and incur the cost for an open top trash container. Currently
our trash hauler reports that it is impossible for the driver to get to Target's
compactor in a straight direction. Therefore, the driver pulls and returns the
container from an angled position, causing excessive wear on parts of the
container. The hauler believes that as a result, the equipment will need to be
repaired soon. Attached is a photo which demonstrates the difficulties our trash
hauler has in attempting to make a straight connection.
The construction of the Building Expansion is a violation of the terms and
conditions of the Declaration. Section 4.1.1 of the Declaration, defines
Building Area as those areas depicted and identified on the Site Plan as being
areas upon which buildings or portions thereof may be located. Section 4.1.2
provides that no building or similar structure may be constructed or maintained
within the Center unless it is located within a Building Area. Additionally,
Section 6.4 of the Declaration states
Target - Xxxxxxxx Xxxxx'x - Mervyn's - target_direct
Target Financial Services - Target Brands - AMC - DCT
Property Development, 0000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000
that "No structure, building, fence, hedge, wall, sign or other obstruction
shall be placed within the Common Areas of the Center, or except with the prior
written consent of the then current Owners". The Parcel 2 Building Expansion is
outside of a Building Area and is located in the Common Areas. Target did not
receive a request for an Amendment to the Declaration to permit the construction
of the Building Expansion.
Target considers the trash hauling difficulties and damage to the trash
compactor the result if the Building Expansion and requires that Anton
Associates, Ltd. correct the problem, and reimburse Target Corporation for any
expenses incurred to date. We have analyzed the situation and determined three
remedies to the situation:
1. Anton Associates, Ltd. can assume responsibility for the repair and
replacement of the trash compactor so long as the premises are owned
and operated by Target Corporation, its successors and assigns. This
will require a written agreement.
2. Anton Associates, Ltd. can pay the cost to relocate the trash
compactor. This may not be possible with the current configuration of
the Target dock area in that Target cannot afford to use one of its
truck bays for the compactor.
3. Anton Associates, Ltd. can remove the building expansion, and return
the Target dock area to its previous clearances.
Please review the situation and respond with your proposed solution. If a
response has not been received by April 23rd, this matter will be referred to
our Legal Department.
Sincerely,
/s/ Xxxxxxxx X. Xxxx
Xxxxxxxx X. Xxxx
Property Administrator
cc: Xxxxxx XxXxxxx, Building Services
Xxxxx Xxxxxxxxxx, Building Services
Trad Xxxxx, Building Services
T1418.STL
Xxxxx Marquls, Director - Real Estate
