HomeMy WebLinkAboutDeed APPLICANT 8/14/2020Fidelity National Title
Company of Oregon
800 Willamette Street, Ste 500, Eugene, OR 97401
PRELIMINARY REPORT
TITLE OFFICER: ORDER NO.: 60222002850
CUSTOMER NO.: 45142009095
TO: Fidelity National Title Company Of Oregon
900 SW 5th Avenue
Portland, OR 97204
OWNER/SELLER: McKay Commercial Properties, LLC
BUYERIBORROWER: Ambrosia QSR Oregon, LLC
PROPERTY ADDRESS: 1899 and 1914 Olympic Street, 1611, 1665, 1667, 1671 and 167518th Street,
Springfield, OR 97477
EFFECTIVE DATE: March 31, 2020,08:00 AM
1. THE POLICY AND ENDORSEMENTS TO BE ISSUED AND THE RELATED CHARGES ARE:
AMOUNT PREMIUM
ALTA Owner's Policy 2006 $ 1,278,583.00 $ 1,889.00
owners standard (shon Term Rate)
Government Lien Search $ 5.00
2. THE ESTATE OR INTEREST IN THE LAND HEREINAFTER DESCRIBED OR REFERRED TO COVERED
BY THIS REPORT IS:
A Fee
3. TITLE TO SAID ESTATE OR INTEREST AT THE DATE HEREOF IS VESTED IN:
McKay Commercial Properties, LLC, an Oregon limited liability company
4. THE LAND REFERRED TO IN THIS REPORT IS SITUATED IN THE CITY OF SPRINGFIELD, COUNTY OF
LANE, STATE OF OREGON, AND IS DESCRIBED AS FOLLOWS:
SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF
Federman Steifman LLP Z2032620 MBI
McKay Commercial Properties, LLC/Ambrosia QSR Oregon, LLC
1611 18th Street
Springfield, OR 97477 Lane County
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Order No.: 60222002850
EXHIBIT "A"
Legal Description
Parcel 3, PARTITION PLAT NO. 95-P0778, fled December 28, 1995, in Lane County, Oregon.
EXCEPTING THEREFROM that portion conveyed to WinCo Foods, Inc., &a Waremart, Inc., an Idaho corporation
by Property Line Adjustment Deed recorded May 2, 2002 as recording no.: 2002-034940, Lane County Records,
more particularly described as follow:
Beginning at the most Northeasterly comer of said Parcel 3, said point being on the Southerly right-of-way line of
the "O" Street Flood Channel; thence leaving said Southerly right of way line, along the Southeasterly line of said
Parcel 3 South 37°02'5T' W est 141.77 feet; thence South 52°57'03" East 20.00 feet; thence South 37°02'57" West
283.92 feet; thence leaving said Southeasterly line of said Parcel 3 North 52'56'28" West 272.80 feet to said
Southerly right-of-way line of said "O" Street Flood Channel; thence along said Southerly right-of-way line North
63'43'53" East 354.03 feet to the beginning of a tangent curve; thence along the arc of a 294.63 foot radius curve
concave Southerly, through a central angle of 28°13'11" (the long chord bears North 77°50'28" East 143.60 feet)
an arc distance of 145.07 feet to the Point of Beginning.
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AS OF THE DATE OF THIS REPORT, ITEMS TO BE CONSIDERED AND EXCEPTIONS TO COVERAGE IN
ADDITION TO THE PRINTED EXCEPTIONS AND EXCLUSIONS IN THE POLICY FORM WOULD BE AS
FOLLOWS:
GENERAL EXCEPTIONS:
1. Taxes or assessments which are not shown as existing liens by the records of any taxing authority that
levies taxes or assessments on real property or by the Public Records; proceedings by a public agency
which may result in taxes or assessments, or notices of such proceedings, whether or not shown by the
records of such agency or by the Public Records.
2. Any facts, rights, interests or claims, which are not shown by the Public Records but which could be
ascertained by an inspection of the Land or by making inquiry of persons in possession thereof.
3. Easements, or claims of easement, which are not shown by the Public Records; reservations or
exceptions in patents or in Acts authorizing the issuance thereof; water rights, claims or title to water.
4. Any encroachment (of existing improvements located on the Land onto adjoining land or of existing
improvements located on adjoining land onto the subject Land), encumbrance, violation, variation or
adverse circumstance affecting the Tide that would be disclosed by an accurate and complete land survey
of the subject Land.
5. Any lien or right to a lien for services, labor, material, equipment rental or workers compensation
heretofore or hereafter furnished, imposed by law and not shown by the Public Records.
SPECIFIC ITEMS AND EXCEPTIONS:
6. Unpaid Personal Property Taxes with partial payment are as follows:
Fiscal Year:
2019-2020
Original Amount:
$1,213.92
Unpaid Balance:
$404.64, plus interest, if any
Levy Code:
01900
Account NO.:
5357833
Map No.:
17-03-25-31-07701
Assessed to Burger King Store 1652
Prior to close of escrow, please contact the Tax Collector's Office to confirm all amounts owing, including
current fiscal year taxes, supplemental taxes, escaped assessments and any delinquencies.
City Liens, if any, in favor of the City of Springfield. None found as of April 2, 2020.
Limited access to and from the Land as set forth in Warranty Deed shown below, which provides that
there shall be no right of easement or right of access to, from or across the State Highway other than as
expressly provided for in said Deed:
Grantor: Harry C. Christner and Hilda M. Christner
Grantee: the State of Oregon, by and through its State Highway Commission
Recording Date: October 19, 1966
Recording No.: 64160
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15. An unrecorded lease(s) with certain terms, covenants, conditions and provisions set forth therein as
disclosed by the document
Entitled:
Assignment and Assumption of Leases
Lessor:
McKay Investment Company, LLC, an Oregon limited liability company
Lessee:
not disclosed
Recording Date:
August 24, 2007
Recording No:
2007-059779
Assignment of the Lessor's interest under said lease,
Assignor: McKay Investment Company, LLC, an Oregon limited liability company
Assignee: McKay Commercial Properties, LLC, an Oregon limited liability company
Recording Date: August 24, 2007
Recording No: 2007-059779
16. An unrecorded lease with certain terms, covenants, conditions and provisions set forth therein as
disclosed by the document
Entitled:
Memorandum of Lease
Lessor:
McKay Commercial Properties, LLC
Lessee:
Mt. Hood Restaurants, Inc., an Oregon corporation
Recording Date:
March 7, 2013
Recording No:
2013-012800
Assignment of the Lessee's interest under said lease,
Assignor: Mt. Hood Restaurants, Inc., an Oregon corporation
Assignee: GBMO, LLC, a Delaware limited liability company
Recording Date: March 7, 2013
Recording No: 2013-012801
17. A deed of trust to secure an indebtedness in the amount shown below,
Amount:
$2,500,000.00
Dated:
July 15, 2019
Trustor/Grantor:
McKay Commercial Properties, LLC, an Oregon limited liability company
Trustee:
Cascade Title Company
Beneficiary:
Summit Bank
Loan No.:
610520
Recording Date:
July 17, 2019
Recording No:
2019-029772
Includes additional property
The above deed of trust contains an error in the legal description, namely said deed of trust describes
more property than the Trustor/Grantor owned and if said deed of trust is not to be paid off through the
proposed transaction, then said deed of trust should be re-recorded to correct the legal description
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Any irregularities, reservations, easements or other matters in the proceedings occasioning the
abandonment or vacation of the streettroad shown below:
Name:
18th Street
Recording Date:
October 23, 1974
Recording No:
7445612
Affects:
as delineated on said Partition Plat
10. Easement(s) for the purpose(s) shown below and rights incidental thereto, as granted in a document:
Granted to:
The City of Springfield, a municipal corporation, in Lane County, Oregon
Purpose:
as mentioned in said easement
Recording Date:
January 30, 1987
Recording No:
8705217
Affects:
as delineated on said Partition Plat
11. Terms, provisions and conditions, including, but not limited to, maintenance provisions, as contained in
Cross -Easement Agreement
Recording Date:
March 10, 1995
Recording No.:
9513917
Amendment(suModifcation(s) of said cross -easement agreement
Recording Date:
May 3, 2002
Recording No:
2002-034941
Amendment(syModifcation(s) of said cross -easement agreement
Recording Date:
September 13, 2019
Recording No:
2019-040053
12. Notes and Restrictions, but omitting restrictions, if any, based upon race, color, religion, sex, sexual
orientation, familial status, marital status, disability, handicap, national origin, ancestry, Or source of
income, as set forth in applicable state or federal laws, except to the extent that said restriction is
permitted by applicable law, as shown on that certain plat
Name of Plat: Partition Plat No. 95-P0078
13. Easement(s) for the purpose(s) shown below and rights incidental thereto as delineated or as offered for
dedication, on the map of said tract/plat;
Purpose: public utility and storm drainage
Affects: as delineated on said Partition Plat
14. That certain Warranty Deed conveying the herein described property from McKay Investment Company,
LLC, an Oregon limited liability company, as Grantor to McKay Commercial Properties, LLC, an Oregon
limited liability company, as Grantee, recorded August 24, 2007 as recording no.: 2007-059778, Lane
County Records, contains an error in the legal description, namely said Warranty Dead described more
property than the Grantor owned and should be re-recorded to correct the legal description.
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The Deed of Trust set forth above is purported to be a "Credit Line" Deed of Trust. It is a requirement that
the Trustor/Grantor of said Deed of Trust provide written authorization to close said credit line account to
the Lender when the Deed of Trust is being paid off through the Company or other Seftlement/Escrow
Agent or provide a satisfactory subordination of this Deed of Trust to the proposed Deed of Trust to be
recorded at closing.
18. Existing additional leases and tenancies, if any, and any! nterests that may appear upon examination of
suchleases.
19. Right, title and interest of Burger King Store 1652, as disclosed by the Lane County tax roll record.
Account: 5357833
20. Right, title and interest of Jaspers Deli & Gourmet, as disclosed by the Lane County tax roll record.
Account: 5438914
21. Right, title and interest of Tax Solutions, Inc., as disclosed by the Lane Countylax roll record.
Amount: 5526247
22. Right, title and interest of Papa Murphy's Pizza, as disclosed by the Lane County tax roll record.
Amount: 5545184
23. Right, title and interest of Ultra Nails, as disclosed by the Lane County tax roll record.
Amount: 5704363
24. Right, title and interest of Lees Mongolian Grill, Inc., as disclosed by the Lane County tax roll record.
Amount: 5705053
25. The present ownership of the leasehold created by said lease and other matters affecting the interest of
the lessee are not shown herein.
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26. The Company will require the following documents for review prior to the issuance of any title insurance
predicated upon a conveyance or encumbrance from the entity named below.
Limited Liability Company: McKay Commercial Properties, LLC
a. A copy of its operating agreement, if any, and any and all amendments, supplements and/or
modifications thereto, certified by the appropdate manager or member.
b. If a domestic Limited Liability Company, a copy of its Articles of Organization and all amendment
thereto with the appropriate fling stamps.
c. If the Limited Liability Company is member -managed a full and complete current list of members
certified by the appropriate manager or member.
d. A current dated certificate of good standing from the proper governmental authority of the state in
which the entity was created
e. If less than all members, or managers, as appropriate, will be executing the closing documents,
furnish evidence of the authority of those signing.
The Company reserves the right to add additional items or make further requirements after review of the
requested documentation.
27. The Company will require the following documents for review prior to the issuance of any title insurance
predicated upon a conveyance or encumbrance from the entity named below.
Limited Liability Company: GBM, LLC - manager of McKay Commercial Properties, LLC
a. A copy of its operating agreement, if any, and any and all amendments, supplements and/or
modifications thereto, certified by the appropdate manager or member.
b. If a domestic Limited Liability Company, a copy of its Articles of Organization and all amendment
thereto with the appropriate fling stamps.
c. If the Limited Liability Company is member -managed a full and complete current list of members
certified by the appropriate manager or member.
d. A current dated certificate of good standing from the proper governmental authority of the state in
which the entity was created
e. If less than all members, or managers, as appropriate, will be executing the closing documents,
furnish evidence of the authority of those signing.
The Company reserves the right to add additional items or make further requirements after review of the
requested documentation.
28. The Proposed Policy Amount(s) must be increased to the full value of the estate or interest being insured,
and any additional premium must be paid at that time. An Owner's policy should reflect the purchase price
or full value of the Land. A Loan Policy should reflect the loan amount or value of the property as
collateral. Proposed Policy Amount(s) will be revised and premiums charged consistent therewith when
the final amounts are approved.
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Order No.: 60222002850
ADDITIONAL
A. Note: Property taxes for the fiscal year shown below are paid in full.
Fiscal Year:
2019-2020
Amount:
$68,747.36
Levy Code:
01900
Account No.:
202471
Map No.:
17-03-25-31-07701
Prior to close of escrow, please contact the Tax Collectors Office to confirm all amounts owing, including
current fiscal year taxes, supplemental taxes, escaped assessments and any delinquencies.
B. Note: Personal Property taxes for the fiscal year shown below are paid in full.
Fiscal Year:
2019-2020
Amount:
$198.19
Levy Code:
01900
Account No.:
5438914
Map No.:
17-03-25-31-07701
Assessed to Jaspers Deli & Gourmet
Prior to close of escrow, please contact the Tax Collectors Office to confirm all amounts owing, including
current fiscal year taxes, supplemental taxes, escaped assessments and any delinquencies.
C. Note: Personal Property taxes for the fiscal year shown below is:
Fiscal Year: 2019-2020
Levy Code: 01900
Account No.: 5526247
Map No.: 17-03-25-31-07701
Assessed to Tax Solutions, Inc.
The above tax account appears to not have been assessed any tax amounts.
Prior to close of escrow, please contact the Tax Collectors Office to confirm all amounts owing, including
current fiscal year taxes, supplemental taxes, escaped assessments and any delinquencies.
D. Note: Personal Property taxes for the fiscal year shown below are paid in full.
Fiscal Year:
2019-2020
Amount:
$503.05
Levy Code:
01900
Account No.:
5545184
Map No.:
17-03-25-31-07701
Assessed to Papa Murphy's Pizza
Prior to close of escrow, please contact the Tax Collectors Office to confirm all amounts owing, including
current fiscal year taxes, supplemental taxes, escaped assessments and any delinquencies.
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E. Note: Personal Property taxes for the fiscal year shown below are:
Fiscal Year: 2019-2020
Levy Code: 01900
Account No.: 5704363
Map No.: 17-03-25-31-07701
Assessed to Ultra Nails
The above tax account appears to not have been assessed any tax amounts.
Prior to close of escrow, please contact the Tax Collector's Office to confirm all amounts owing, including
current fiscal year taxes, supplemental taxes, escaped assessments and any delinquencies.
Note: Personal Properly taxes for the fiscal year shown below are paid in full
Fiscal Year:
2019-2020
Amount:
$377.81
Levy Code:
01900
Account No.:
5705053
Map No.:
17-03-25-31-07701
Assessed to Lees Mongolian Grill, Inc.
Prior to close of escrow, please contact the Tax Collector's Office to confirm all amounts owing, including
current fiscal year taxes, supplemental taxes, escaped assessments and any delinquencies.
G. Notice: Please be aware that due to the conflict between federal and state laws concerning the cultivation,
distribution, manufacture or sale of marijuana, the Company is not able to close or insure any transaction
involving Land that is associated with these activities.
H. In addition to the standard policy exceptions, the exceptions enumerated above shall appear on the final
2006 ALTA Policy unless removed prior to issuance.
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The Company will require the following documents for review prior to the issuance of any title insurance
predicated upon a conveyance or encumbrance from the entity named below.
Limited Liability Company: Ambrosia QSR Oregon, LLC
a. A copy of its operating agreement, if any, and any and all amendments, supplements and/or
modifications thereto, certified by the appropriate manager or member.
b. If a domestic Limited Liability Company, a copy of its Articles of Organization and all amendment
thereto with the appropriate fling stamps.
c. If the Limited Liability Company is member -managed a full and complete current list of members
certified by the appropriate manager or member.
d. A current dated certificate of good standing from the proper governmental authority of the state in
which the entity was created
e. If less than all members, or managers, as appropriate, will be executing the closing documents,
furnish evidence of the authority of those signing.
The Company reserves the right to add additional items or make further requirements after review of the
requested documentation.
J. Note: There are no matters against the party(ies) shown below which would appear as exceptions to
coverage in a title insurance product:
Parties: Ambrosia QSR Oregon, LLC
K. Note: There are NO conveyances affecting said Land recorded within 24 months of the date of this report.
L. Note: No utility search has been made or will be made for water, sewer or storm drainage charges unless
the City/Service District claims them as liens (i.e. foreclosable) and refects them on its lien docket as of
the dale of closing. Buyers should check with the appropriate city bureau or water service district and
obtain a billing cutoff. Such charges must be adjusted outside of escrow.
M. Note: Effective January 1, 2008, Oregon law (ORS 314.258) mandates withholding of Oregon income
taxes from sellers who do not continue to be Oregon residents or qualify for an exemption. Please contact
your Escrow Closer for further information.
N. THE FOLLOWING NOTICE IS REQUIRED BY STATE LAW: YOU WILL BE REVIEWING, APPROVING
AND SIGNING IMPORTANT DOCUMENTS AT CLOSING. LEGAL CONSEQUENCES FOLLOW FROM
THE SELECTION AND USE OF THESE DOCUMENTS. YOU MAY CONSULT AN ATTORNEY ABOUT
THESE DOCUMENTS. YOU SHOULD CONSULT AN ATTORNEY IF YOU HAVE QUESTIONS OR
CONCERNS ABOUT THE TRANSACTION OR ABOUT THE DOCUMENTS. IF YOU WISH TO REVIEW
TRANSACTION DOCUMENTS THAT YOU HAVE NOT SEEN, PLEASE CONTACT THE ESCROW
AGENT.
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Omer No.: 60222002850
O. Recording Charge (Per Document) is the following:
County First Page Each Additional Page
Lane
Note: When possible the company will record electronically. An additional charge of $5.00 applies to each
document that is recorded electronically.
Note: Please send any documents for recording to the following address:
Portland Title Group
Attn: Recorder
1433 SW 6th Ave.
Portland, OR. 97201
P. Note: This map/pi ai is being furnished as an aid in locating the herein described Land in relation to
adjoining streets, natural boundaries and other land. Except to the extent a policy of title insurance is
expressly modified by endorsement, if any, the Company does not insure dimensions, distances Or
acreage shown thereon.
Q. NOTE: IMPORTANT INFORMATION REGARDING PROPERTY TAX PAYMENTS:
Fiscal Year: July 1st through June 30th
Taxes become a lien on real property, but are not yet payable: July let
Taxes become certified and payable (approximately on this dale): October 15th
First one third payment of taxes is due: November 15th
Second one third payment of taxes is due: February 15th
Final payment of taxes is due: May 15th
Discounts: If two thirds are paid by November 15th, a 2% discount will apply. If the full amount of
the taxes are paid by November 15th, a 3% discount will apply.
Interest: Interest accrues as of the 15th of each month based on any amount that is unpaid by the
due date. No interest is charged if the minimum amount is paid according to the above mentioned
payment schedule.
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EXHIBIT ONE
2006 AMERICAN LAND TITLE ASSOCIATION LOAN POLICY (06.1746)
EXCLUSIONS FROM COVERAGE
The Mlaxir, matters are normally ewlutletl ham the coverage of this p liry and Ida
Connote, well rut pay lass or damage, coat, attorneysteen or expenses teat ansa by
mown M
1. (a) My taw, backhands or goaemmeMal regulation (including but not limited to
building and wring) restricting, regulating, prohibiting or relating e
(i) Ne MCu,a . use,or...Man of the Land;
(II) the Meredr, dlmenaloru or Iwatlan Many Improvement erected on IM lam;
(iii), the aWdihmon of land: or
(iv)umMnMOM prosdlon;
r tela effect of any violation M rinse lees, ordinances an govammental
regulations. This Exdakn f (a) does not modify or limb Mite revenge provided
under Covered Risk 5.
(b) Am govemmeMel polka power. This Exclusion 1(b) don nM modify or limit tin
mverzge c dNdetl under Cowered Risk 6.
2. Rights M enj domain. This Excused does not modify or junk Mar covers,
provided under Conrad Risk 7 or 8.
3. Danish, lien, emumbanms, adverm claims, or MM1ar rtaXers
(a) created, suffered, assumed or agreed to by the Insured Claimant
ad ret known a the Compare, not rererded in the Public Records at Das M Pol
but known to foe Insured Claimant and not disclosed in vrtXing to the Company by
trip Insured Claimant prior to the data Me Insured Claimant became an Insured
under this Policy;
(c) resulgrre in m loss undamaga to the Insured Claimant;
(it) attaching or created su am,dent to Data of Polity Move sur, this don nM modify
or limit the wverege promised! under Comad Risk 11. 13. or 14); or
(e) making in lees or damage TM would ret base been sustired X the Insured
Claimant had paid valuefor Me Insured Mortgage.
4. UMnMrcrabllity ofthe lien ofthe Insured Morlgaae because M the inability or (allure
M an Insured to comply with the applicable doing -business lam of lite Mat where
the Land is shame.
5. Retail or unmwassubility in whole u in part of the lien M Na Insured Mortgage Mat
arises out of the transaction evidenced by the Insured Mortgage and Is based upon
usury or any consumer credit pmteGion or huh-in-IeMing law.
B. My claim, by reason M gip operation M Inderal banluupty, state imolveruy or
similar cambes' right laws, that the "Punched seating Me lien M the Insured
bbrtgage, is
(a) a fraudulent conveyance or fraudulent treater, or
(b) a preferential treater for em reason not mind in the Covered Risk 13(b) ofthis
Policy.
7. My lien an the Title for real eMat Was or a eeammt imposed by gavemmartl
summer, and created vattcbing between Data of Policy ant the date MrecoNing M
the Insured Well In foe Public Records. This Eulusion trees not noddy or limit
the coverage provided under Caused Rink 11(b).
The above policy ban may be Issued W short either StMard Condi or Extended Cove ige. In addition so gip above
Endusionsfrwn Coverege, the Pascal from Coverage In a Standard Coverage pollmwill also include the fdlawirg EsceMioa ham Commge.
SCHEDULE B -GENERAL EXCEPTIONS FROM COVERAGE
This policy does not inure amundloss or damage (and the Compel not pay cods, atameys' fees oremenw5)w1dc1h Had by reawn of.
1. Tama or aseeament which are rot shown as adebng liana by Me records M an, 4. Any encroachment, enmmbranos, Nolwnin, nication, s scheme chaumdarce
Wing euMonry that levies tam an assessment on real property or by the Public affecting the Tge Met would be discksed by an Well and complete and survey of
Records, proceedings by a public agency which may result In bases or asseswrent, the Land The tare 'a waMmeW souda a rmchmeMa M "Min,
or notices of such proceedings, whether or of shown by Me records of such agency Improvements loaned an the taM ora adjoining and, and encr mal meMs or a this
or by the Public Records. Land aeusting impdvemerm lowktl an adjurm,j land,
2. Marks rights, IMereat or dalms which are at shown "a Public Records but MAM 5. My Ilan kr Brans, labor an mod hoe m or Mreaher furnished an
could be ascenainec by an inspection of the Land of by making inquiry of Presse in cohtri udioa cue to the State M Oregon tar unemployment compensation or worker's
Possession thereof. omPon9albn, imposed by law antl not duwn by Me Public Records.
3 Easement, or daima M easement, awn shown by the Public Records; amemtlaa or
ercepiars in patent or In Ards eNMraing the ascents thereof, water rights. claims
or title to water.
2006 AMERICAN LAND TITLE ASSOCIATION OWNER'S POLICY (0647-06)
EXCLUSIONS FROM COVERAGE
The fact rg madam am expressly excluded M1pm the coverage M this paid, and trip
Company will mf pay loin or damage, swat, aXomeys' We or expenses Mal ansa by
nesse M;
1. (e) My law, ordinenw or gwemmentl raguldion ducluding but net limited to
building and ming) dancing, regulating, pum biting or relating to
(i) the occupancy, use, or enjpymed M M, tend;
(it) the chances, dimensions or Inration Many improvement erected on M, IoM;
(III) the sundered M land; or
(is) ewiddernectual pM¢Mion:
or Me eHed of any Nolation M new laws, ordinances or govamm l
Mutations. This Fxduskn 1(a) deals nM mail an hand trip coverage prodded
under Covered Risk 5.
(b) Any govemmenml police and. This ExtWon t(b) deep nM redly an limit Ire
verage poAded under Covered Risk 6.
2. Rights M eminent tlpain. This E dusion ticea o1 madly or III Me damage
prei under ComrM al Tor e.
3. Defaces. here, emumbrauas, edveraedaima, M ethanollem
(a) created, surround, amamed or agreed to mode Insured Claimant
(b) not known to the Company, at recorded in the Public Records at Data M Pdicy.
bed Mmwnto IM1e lured Claimant and ret i isdomd In writing tome Company dr,
tare Insured Claimant prior he Me dark the Insured Claim" became an laure]
under this polio;
(c) meul5ng in no Ina ofdamage to the Insured Claimant;
(it) attaching or created subsequent to Date M Policy (however this don not modify
or limit the revenge pmvitlad under Cmrered Risk 9 and 10); or
(a) maukng In los or damage that would of have been sustained K the Insured
Claimant had pais vawefortho nue.
My claim, by on M the .,.firm M fedeal [peripheral an. impotency or
similaetllkn' ra nght laws, that Me thermal «eating Me lien M fla Insured
Mortgage, is
(a) a fraudulent omeyana or haul thander, or
(b) a presrential transfer for any reawn not stated in the Comred Risk 9 of this
Policy.
My lien an the Title for real estate taxes or aasesamant Imposed by governmental
auunny and created enrapturing between Data of Policy ant the tles of recording M
the dead or other mMn O M transfer In Me Public Records Mat seat Title as
shown in screaukA
The etOve Policyfoml my be when m afford either 3eMand coverage or ExkMed Coinage. In addition m the above
FYmdaa fon Cove2ge, the Exreplms from Coremge Ina StMaa Coverage pollmwtll aim IMUM Ile Mining Emulations from Condemn.
SCHEDULE B -GENERAL EXCEPTIONS FROM COVERAGE
This policy does not insure against loss or damage (and the Compel M pay cads, maedi lues orecei which arse by raawn of.
1. Tama or assessment which are of dpwn as edding (lens by Me records of any 4. My encroachment, encumbrance, vlolagon, warned, or assume clrcumdands
Wing autheriry that levies ares or assessment on and property or by Me Public affecting the Title Met would be disclosed by an accuree ant complete land survey M
Records; proceedings by a public agency which may result In tams or asset arremks the Land The term encreachmencr includes ancrociduchments M existing
or return of such proceedings, whether or cwt shown by Me mcoas of such agency Improvements located an the tent pro adjoining hand, and entrenchments Pont the
or by the Public Records. Land aedsting improvements locates on adjoining land,
2 cards ,rights,iMereatordaimawbiMamwtsMwnby Me Public RecordabM"ich 5. My lien he services, loam or material berdofore or MreaMec famished, or be
cauls be asosndned by an iapxton ofthe Land or m making Indian, ofpemoa in conGbmNana sue b the Stde M Oregonfar memfyoyment condensation orsoMeYa
Possession thereofcomparmon, imposed by law and not Won mode Public Records.
3. Easements, or deme of easement, of shown by the Public Reordg reservations or
exceptipa in paints or In Ads sNndrting the lmusersto thereof, water rights, claims
or title to ward,.
Preliminary Report (Exhi One) Pdnsd: 04.02.20 @ 01:17 PM
OR -FT -FEU ]4160.4710 PS -1-2P60222002650
I RE SAFEM Inquire before you wire!
WIRE FRAUD ALERT
This Notice is not intended to provide legal or professional advice.
If you have any questions, please consult with a lawyer.
All parties to a real estate transaction are targets for wire fraud and many have lost hundreds of thousands of dollars
because they simply relied on the wire instructions received via email, without further verification. If funds are to be wired
in conjunction with this real estate transaction, we strongly recommend verbal verification of wire instructions
through a known, trusted phone number prior to sending funds.
In addition, the following non-exclusive self-protection strategies are recommended to minimize exposure to possible wire
fraud.
NEVER RELY on emails purporting to change wire instructions. Parties to a transaction rarely change wire
instructions in the course of a transaction.
• ALWAYS VERIFY wire instructions, specifically the ABA routing number and account number, by calling the party who
sent the instructions to you. DO NOT use the phone number provided in the email containing the instructions, use
phone numbers you have called before or can otherwise verify. Obtain the number of relevant parties to the
transaction as soon as an escrow account is opened. DO NOT send an email to verify as the email address may
be incorrect or the email may be intercepted by the fraudster.
• USE COMPLEX EMAIL PASSWORDS that employ a combination of mixed case, numbers, and symbols. Make your
passwords greater than eight (8) characters. Also, change your password often and do NOT reuse the same
password for other online accounts.
• USE MULTI -FACTOR AUTHENTICATION for email accounts. Your email provider or IT staff may have specific
instructions on how to implement this feature.
For more information on wire -fraud scams or to report an incident, please refer to the following links:
Federal Bureau of Investigation:
htl0://wwwftll.O0V
Internet Crime Complaint Center.
htln://www.ic3.aov
Wire new NeR
OrbinM Effective Date: Y11=17
CumMVersion Date: 5111=17 502220028 R-WIRE0016 (DSI Rev. 12/07117)
Ma CFw fty Natma[Fina=ar,[nc. arm wOMaM nnnghtsresanreC
FIDELITY NATIONAL FINANCIAL
PRIVACY NOTICE
Effective January 1, 2020
Fidelity National Financial, Inc. and its majority-owned subsidiary companies (collectively, "FNF," "our," or "We")
respect and are committed to protecting your privacy. This Privacy Notice explains how we collect, use, and
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FNF may collect the following categories of Personal Information:
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Pinery Statement Printed: 00.02.20 Q 01:11 PM by W
SSCORPD0911.dm/Updat :01.01.20 P., 15 MR 0222002M
Web Beacons. We use web beacons to determine when and how many times a page has been viewed. This
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Do Not Track. Currently our FNF Websites do not respond to "Do Not Track" features enabled through your
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We maintain physical, electronic, and procedural safeguards to protect your Personal Information.
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Whether you submit Personal Information or Browsing Information to FNF is entirely up to you. If you decide not
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Pn ,Statement PnnW 00.02.20@01:11PMbyW
SSCMPD0911.dm I Updat :01.01.20 Pc 16 Ma 60222002660
For California Residents: We will not share your Personal Information or Browsing Information with nonaffiliated
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For Nevada Residents: You may be placed on our internal Do Not Call List by calling (888) 934-3354 or by
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Certain FNF companies provide services to mortgage loan servicers, including hosting websites that collect
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Your Consent To This Privacy Notice; Notice Chanaes; Use of Comments or Feedback
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the information in accordance with this Privacy Notice. We may change this Privacy Notice at any time. The
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following any change of the Privacy Notice, that signifies your assent to and acceptance of the changes to the
Privacy Notice. We may use comments or feedback that you submit to us in any manner without notice or
compensation to you.
P., Statement Printed: 00.02.20 Q 01:17 PM by W
SSCMP00911.dm l Updated 01 01.20 Pape 17 MR 0222002M
AFEM
Fidelity National Title
Company of Oregon
PRELIMINARY REPORT
In response to the application for a policy of title insurance referenced herein Fidelity National Title Company of
Oregon hereby reports that it is prepared to issue, or cause to be issued, as of the specified date, a policy or
policies of title insurance describing the land and the estate or interest hereinafter set forth, insuring against loss
which may be sustained by reason of any defect, lien or encumbrance not shown or referred to as an exception
herein or not excluded from coverage pursuant to the printed Schedules, Conditions and Stipulations or Conditions
of said policy forms.
The printed Exceptions and Exclusions from the coverage of said policy or policies are set forth in Exhibit One.
Copies of the policy forms should be read. They are available from the office which issued this report.
This report (and any supplements or amendments hereto) is issued solely for the purpose of facilitating the
issuance of a policy of title insurance and no liability is assumed hereby.
The policy(s) of title insurance to be issued hereunder will be policy(s) of Fidelity National Title Insurance
Company, alan Florida corporation.
Please read the exceptions shown or referred to herein and the Exceptions and Exclusions set forth in
Exhibit One of this report carefully. The Exceptions and Exclusions are meant to provide you with notice
of matters which are not covered under the terms of the title insurance policy and should be carefully
considered.
It is important to note that this preliminary report is not a written representation as to the condition of title
and may not list all liens, defects and encumbrances affecting title to the land.
This preliminary report is for the exclusive use of the parties to the contemplated transaction, and the Company
does not have any liability to any third parties nor any liability until the full premium is paid and a policy is issued.
Until all necessary documents are placed of record, the Company reserves the right to amend or supplement this
preliminary report.
Countersigned
PMimi., Repoa PnM :01.02.20@01:1]PM
ORf-FEUG-01520A71025-SPS-1-20a0222002550
Accessing and Correcting Information: Contact Us
If you have questions, would like to correct your Personal Information, or want to opt -out of information sharing for
affiliate marketing, send your requests to privacy@fnf.com, by phone to (888) 934-3354, or by mail to:
Fidelity National Financial, Inc.
601 Riverside Avenue,
Jacksonville, Florida 32204
Attn: Chief Privacy Officer
Pri 'Statement Printed: 00.02.20001:11PMbyW
SSCORP00911.dm l Updated 01 01.20 Pape 18 Ma 0222002W
Lydia C. Miller
Wce President I Operations
Fidelity National Title
Phone. 541-683-5422
Ceti 549-554-2173
lydra rfjJ1en2j9wfcom
From: Lydia Miller - Fidelity National Title via smartview
Lydia.Miller inf.com
541-683-5722
This transaction involves:
Opened Date:
Monday, March 30 202010:27 AM PT
Project Name:
Customer Ref
Property
161118th Street, Springfield OR 97477
Buyer
Ambrosia QSR Oregon, LLC
Seller:
McKay Commercial Properties, LLC
E crnal Order Number:
SoftPrn- 68222002850
4 Attachments
0 EAS AMD 2002-03... PF 0 EAS AMD 2019-04... ,
TITLE REPORT EXCEPTIONS
(EASEMENTS)
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EAS 9513917.pdf
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0 EAS AMD 2002-03... PF 0 EAS AMD 2019-04... ,
TITLE REPORT EXCEPTIONS
(EASEMENTS)
After Recording Return To:
Chad Lamer
WinCo Foods, LLC
650 N. Armstrong Place
Boise, ID 83704
Lane County Clerk 2019-040053
Lane County Deeds & Records
09/13/2019 09:09:11 AM
RPR -AMEN Cnt=l Stn=9 CASHIER 06 7pages
S35 00 sl 1 00 sl0 00 S61 00 $117.00
Space Above This Line For Recording Purposes
SECOND AMENDMENT TO CROSS -EASEMENT AGREEMENT
This Second Amendment to Cross -Easements Agreement ("Agreement") dated for
reference purposes as of this 'day of�''��apz2 2019, is entered into by and
between MCKAY COMMERCIAL PROPERTIES, LLC, an Oregonlimited liability
company ("McKay") and WINCO FOODS, LLC, a Delaware limited liability company,
successor -in -interest to WINCO FOODS, INC., an Idaho corporation ("WinCo'')
(collectively, the "Owners").
RECITALS
A. Owners entered into that certain Cross -Easement Agreement on February 17,
1995, recorded as Instrument No. 9513917 in the records of Lane County, Oregon, as amended
by that certain First Amendment to Cross -Easement Agreement dated April 30, 2002, recorded
as Instrument No. 2002-034941 in the records of Lane County, Oregon (collectively, the
"CEN'). Defined terms not otherwise defined in this Agreement have the meanings set for in
the CEA.
B. McKay Commercial Properties, LLC is the successor -in -interest to McKay
Investment Company, LLC, an Oregon limited liability company, which was the successor -
in -interest to McKay Investment Company, an Oregon general partnership
C. Section 11.2 of the CEA provides that the CEA may be amended by a written,
recorded agreement executed by all of the Parties and. mortgagees, and other holders of
recorded interests affected thereby, as of the date of such document, of the Entire Parcel.
D. Mckay and WinCo desire to modify the CEA as set forth herein.
SECOND AMENDMENT TO CROSS -EASEMENT AGREEMENT - 1
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which. are hereby acknowledged, McKay and WinCo agree as follows:
L Capitalized Terms. Except as otherwise defined in this Amendment, all capitalized
terms used in this Amendment shall have the meanings given such terms in the CEA.
2. Amendment of Exhibit 3. Exhibit 3 of the CEA is hereby deleted in its entirety
and replaced with anew Exhibit 3, attached to this Amendment
3. Amendment to Section 1.7. Section 1.7 is hereby deleted in its entirety and ,
replaces with the following:
"1.7 . Building Area. The term `Building Area" shall mean the portions of the Entire
Parcel designated on the Site Plan as a Building Area. Vertical improvements, including a flag
pole and the BOA Kiosk located on the WinCo Site, and structures on the WinCo Site and the
McKay Site totaling not more than 120 square feet on each such site which do not impede traffic
flow, signs, concrete curbs, traffic islands and landscaping, may be located only as shown on the
Site Plan. Building canopies and other architectural treatments, signs, loading docks, ramps and
staging and storage areas may be located immediately adjacent to a Building Area as shown on
the Site Plan. The location of future reclamation areas are not shown on the: Site Plan and the
installation and maintenance of any such areas shall be governed by the terms of Section 2.2
hereof"
4. Amendment to Section 19.1. Section 19.1 is hereby deleted in its entirety and
replaced with the following:
"19.1. All notices under this Agreement shall be in writing and delivered either in
person, by overnight delivery service so long as delivery is only made by obtaining a signed
receipt, or by certified mail, return receipt requested, postage prepaid, and addressed as follows
(unless notice of a change of address is given pursuant hereto):
IF TO McKAY: McKay Commercial Properties, LLC
76 Centennial Loop, Suite D
Eugene, OR 97401-5562
WITH A COPY TO: Watkinson Laird Rubenstein PC
Attn: Jane Yates
P.O. Box 10567
Eugene, OR 97401
SECOND AMENDMENT TO CROSS -EASEMENT AGREEMENT - 2
TO WINCO: WinCo Foods, LLC
Attn: Greg Goins, Vice President of Real Estate
650 N. Armstrong Place
Boise, Idaho 83704
Telephone: (208) 377-0474
E-mail: greg.goins@wincofoods.com
WITH A COPY (AT THE SAME ADDRESS) TO:
Chad Lamer, Real Estate Attorney
E-mail: chad.lamer@wincofoods.com
AND: Lori Gilbertson, Property Supervisor
E-mail: PropertyMgmt@wincofoods.com
5. No Other Modifications. The parties acknowledge that the DEC remains in full
force and effect and has not been amended or modified, except as set forth herein.
6. Counterparts, This Amendment may be executed in counterparts, each of
which shall constitute an original and all of which shall constitute one fully -executed
document.
[Signatures on following pages]
SECOND AMENDMENT TO CROSS -EASEMENT AGREEMENT - 3
IN WITNESS WHEREOF, McKay has caused this Amendment to be executed effective as of
the day and year first above written.
McKAY COMMERCIAL PROPERTIES, LLC
an Oregon limited liability company
STATE OF OREGON
COUNTY OF L-LLfl'e/
This instrument was acknowledged before me on �vvr he'il 4�fR(date) by
P,eme rD �(name(s) of person(s)) as
(type of authority, e.g., officer, trustee,
etc) of (I��li 1q e/YSt1o.Q ILLI U (name of party on behalf of whom
instrument was e uted).
C%�. �—.
OTARYPUB IC OFFICIAL STAMP
�(/ KAREN JOAN KING
P[intName
: L V_O�-n `. ;' NOTARY PUBLIC -OREGON
MyCommission
EXplres:Sl(J� / �] COMMISSIONN0.999149
MY COMMISSION EXRIRES JULV 28, 2023
SECOND AMENDMENT TO CROSS -EASEMENT AGREEMENT - 4
h
�L�
G r
STATE OF OREGON
COUNTY OF L-LLfl'e/
This instrument was acknowledged before me on �vvr he'il 4�fR(date) by
P,eme rD �(name(s) of person(s)) as
(type of authority, e.g., officer, trustee,
etc) of (I��li 1q e/YSt1o.Q ILLI U (name of party on behalf of whom
instrument was e uted).
C%�. �—.
OTARYPUB IC OFFICIAL STAMP
�(/ KAREN JOAN KING
P[intName
: L V_O�-n `. ;' NOTARY PUBLIC -OREGON
MyCommission
EXplres:Sl(J� / �] COMMISSIONN0.999149
MY COMMISSION EXRIRES JULV 28, 2023
SECOND AMENDMENT TO CROSS -EASEMENT AGREEMENT - 4
IN WITNESS WHEREOF. WinCo has caused this Amendment to be executed effective as of
the day and year first above written.
WINCO FOODS, LLC,
a Delaware limite i bility414
corn an _
By: "
C COO
STATE OF IDAHO )
: ss.
COUNTY OF ADA )
On this�$\day of , 20[9, before me, the undersigned
notary public for said state, personally appeared L Arfr;er known to me to
be the C n O of WinCo Foods, LLC, a Delaware limited liability company,
the person whose name is subscribed to the foregoing instrument, and acknowledged to me that
he executed the same on behalf of said limited liability company.
IN WITNESS WHEREOF, l have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
Kendra Smith
NOTARY PUBLIC in and for the State
of Idaho, residing at Boise
My commission expires September 28, 2023
SECOND AMENDMENT TO CROSS -EASEMENT AGREEMENT - 5
EXHI&IT 3
(See Attached)
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17 30 25 31 07701/202471 (portion)
AFTER RECORDING MAIL TO:
Bradley J. Wiskirchon, Esq.
HOLLAND & HART LLP
101 South Capitol Boulevard, Suite 1400
Boise, Idaho 83702
Division of Chief Deputy Clerk 2X24 1A Lane County Deeds and Records 3
IIIIIIIIIIIIIIIIIIIIIIIIIIII IFIII IIIIIEIII 111 $56.00
00290812200200349410070079
05/03/2002 03;59;41 PM
RPR -AMEN Cntra Stnc6 CASHIER 08
935.00 $10.00 611.00
FIRST AMENDMENT TO CROSS -EASEMENT AGREEMENT
THIS FIRST AMENDMENT TO CROSS -EASEMENT AGREEMENT (the
"First Amendment") is made effective as of the 30`s day of April, 2002, by and
between McKAY INVESTMENT COMPANY, LLC, an Oregon limited liability
company, successor in interest to McKay Investment Company, an Oregon general
partnership ("McKay"), and WINCO FOODS, INC., an Idaho corporation formerly
known as Waremart, Inc. ("WinCo"). McKay and WinCo are referred to herein
collectively as the "Owners."
RECITALS
A. Owners entered into that certain Cross -Easement Agreement .(the
"Agreement") dated February 17, 1995, recorded as Instrument No. 9513917,
records of Lane County, Oregon, for the purposes of setting forth easements
governing, among other things, reciprocal access, pedestrian access, vehicular
access, parking and traffic. Defined terms not otherwise defined in this First
Amendment have the meanings set forth in the Agreement.
B. WinCo has purchased from McKay a certain portion of Parcel 3 of the
McKay Site and has obtained all necessary approvals for a lot line adjustment for the
purpose of appending said portion of Parcel 3 to Parcel 2.
C. WinCo intends to develop the newly -acquired portion of former Parcel
3, which development necessitates amendments to the Exhibits attached to and
Definitions set forth in the Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the recitals above, and other good
and valuable consideration, the receipt and adequacy of which being hereby
acknowledged, the Owners agree to amend the Agreement as follows.
After Recording Return To
Western Pioneer Title Co,
PO Box 10146
Eugene, OR 97440
lFiled
for Record at
/
the Request of:
WmCo Foods, Inc.
650 North Armstrong Place
Boise, Idaho 83704-0825
AFTER RECORDING MAIL TO:
Bradley J. Wiskirchon, Esq.
HOLLAND & HART LLP
101 South Capitol Boulevard, Suite 1400
Boise, Idaho 83702
Division of Chief Deputy Clerk 2X24 1A Lane County Deeds and Records 3
IIIIIIIIIIIIIIIIIIIIIIIIIIII IFIII IIIIIEIII 111 $56.00
00290812200200349410070079
05/03/2002 03;59;41 PM
RPR -AMEN Cntra Stnc6 CASHIER 08
935.00 $10.00 611.00
FIRST AMENDMENT TO CROSS -EASEMENT AGREEMENT
THIS FIRST AMENDMENT TO CROSS -EASEMENT AGREEMENT (the
"First Amendment") is made effective as of the 30`s day of April, 2002, by and
between McKAY INVESTMENT COMPANY, LLC, an Oregon limited liability
company, successor in interest to McKay Investment Company, an Oregon general
partnership ("McKay"), and WINCO FOODS, INC., an Idaho corporation formerly
known as Waremart, Inc. ("WinCo"). McKay and WinCo are referred to herein
collectively as the "Owners."
RECITALS
A. Owners entered into that certain Cross -Easement Agreement .(the
"Agreement") dated February 17, 1995, recorded as Instrument No. 9513917,
records of Lane County, Oregon, for the purposes of setting forth easements
governing, among other things, reciprocal access, pedestrian access, vehicular
access, parking and traffic. Defined terms not otherwise defined in this First
Amendment have the meanings set forth in the Agreement.
B. WinCo has purchased from McKay a certain portion of Parcel 3 of the
McKay Site and has obtained all necessary approvals for a lot line adjustment for the
purpose of appending said portion of Parcel 3 to Parcel 2.
C. WinCo intends to develop the newly -acquired portion of former Parcel
3, which development necessitates amendments to the Exhibits attached to and
Definitions set forth in the Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the recitals above, and other good
and valuable consideration, the receipt and adequacy of which being hereby
acknowledged, the Owners agree to amend the Agreement as follows.
After Recording Return To
Western Pioneer Title Co,
PO Box 10146
Eugene, OR 97440
I. Amendment of References to Waremart Site. All references in the
Agreement to the "Waremart Site" shall be amended to be the "WinCo Site."
2. Amendment of Exhibit L That portion of Exhibit I to the Agreement
applicable to Parcel 3 is hereby amended and replaced with Exhibit 1(a) attached
hereto. The Parcels described on amended Exhibit 1 and Exhibit 1(a) shall be
collectively referred to as the "McKay Site."
3. Amendment of Exhibit 2. Exhibit 2 to the Agreement is hereby
amended and replaced with Exhibit 2 attached hereto.
4. Amendment of Exhibit 3_ Exhibit 3 to the Agreement is hereby
amended by Exhibit 3(a) attached hereto to redefine the area designated "New
Retail" thereon.
5. Building Area for New Retail Area. Notwithstanding any provision
in the Agreement (including Exhibit 3) to the contrary, the permitted "Building
Area" shown on Exhibit 3 as "New Retail" shall be increased from 11,200 square
feet to 16,750 square feet, which will not include any area which is outside the "New
Retail" building area footprint as designated on attached Exhibit 3(a).
6. Acknowledgment Regarding Cover Restriction. The parties
acknowledge that the "building ground cover restriction' for Pad 2 in Section 6.5 of
the Agreement is 8,000 sq.ft.
7. Counterparts. This First Amendment may be executed in
counterparts, each of which shall be deemed to be an original, but all such
counterparts together shall constitute one and the same Agreement.
8. Survival of all Other Provisions. Except as expressly set forth in this
First Amendment, all other terms and conditions of the Agreement shall remain in
full force and effect. In the event of any inconsistency between this First
Amendment and the Agreement, this First Amendment shall control.
IN WITNESS WHEREOF, the Owners have executed this First Amendment
effective as of the day and year first above written.
[signatures and notary acknowledgments follow]
FIRST AMENDMENT TO CROSS -EASEMENT AGREEMENT - 2
WINCO FOODS, INC. (f/k/a Waremart, Inc.)
STATE
ByIts
C
STATE OF IDAHO)
) ss:
County of Ada )
On this _14 day of 2002, before me, a Notary Public in and
for the State of Idaho, personally a eared Gw '� o�
known or proved to me to be the 0, Fu of
WINCO FOODS, INC. (f/k/a Waremart, Inc.), an Idaho corporation, the person
whose name is subscribed to the foregoing instrument, and acknowledged to me that
he executed the same on behalf of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
o. Q�
Residing at: oL�
My Commission Expires. /- A22 -;T
FIRST AMENDMENT TO CROSS -EASEMENT AGREEMENT - 3
McKAY INVESTMENT COMPANY, LLC
Its: O�2n-a�cu tiG `7�+�r��
STATE OF /7a )
� � � ss:
/
County of ^µ/1t._ )
On this 2.fol day of 2002, before me, a Notary Public in and
for said State, personally appeared M ��q�i X -'p r7 -k/ known
or proved to me to be the Tof McKAY INVESTMENT
COMPANY, LLC, the person whose name is subscribed to the foregoing instrument,
and acknowledged to me that he executed the same on behalf of said limited liability
company.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certifica 3r t above written.
OFFICOLL6
B►TXYYEIKIN Notary Public
NOTgq'/pOGLIC.OflEGON Y
COhtM15&pN NO 354444 Residing at:
4tl000kOs31pd WNFBN'NL4,209
My Commission Expires.
2930758 2.&o
FIRST AMENDMENT TO CROSS -EASEMENT AGREEMENT - 4
EXHIBIT I(a)
LANE COUNTY, OREGON
SEC. 25, T17S, R3W, W. M.
JOB NO. WNC2197
LEGAL DESCRIPTION:
A TRACT OF LAND LOCATED IN THE SOUTHEAST QUARTER OF SECTION 25, TOWNSHIP
17 SOUTH, RANGE 3 WEST, WILLAMETTE MERIDIAN, CITY OF SPRINGFIELD, LANE
COUNTY, OREGON, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
PARCEL 3 OF PARTITION PLAT NUMBER 95-PO778, LANE COUNTY PLAT RECORDS, LANE
COUNTY, OREGON.
EXCEPTING THE FOLLOWING DESCRIBED TRACT:
BEGINNING AT THE MOST NORTHEASTERLY CORNER OF SAID PARCEL 3, SAID POINT
BEING ON THE SOUTHERLY RIGHT-OF-WAY LINE OF THE'Q' STREET FLOOD CHANNEL;
THENCE LEAVING SAID SOUTHERLY RIGHT-OF-WAY LINE, ALONG THE SOUTHEASTERLY
LINE OF SAID PARCEL 3 SOUTH 37°02'57" WEST, 141.17 FEET; THENCE SOUTH 52°57'03"
EAST, 20.00 FEET; THENCE SOUTH 37°02'57" WEST, 283.92 FEET; THENCE LEAVING SAID
SOUTHEASTERLY LINE OF SAID PARCEL 3 NORTH 52°56'28" WEST, 272.80 FEET TO SAID
SOUTHERLY RIGHT-OF-WAY LINE OF SAID'Q' STREET FLOOD CHANNEL; THENCE ALONG
SAID SOUTHERLY RIGHT-OF-WAY LINE NORTH 63'43'53" EAST, 354.03 FEET TO THE
BEGINNING OF A TANGENT CURVE; THENCE ALONG THE ARC OF A 294.53' RADIUS
CURVE CONCAVE SOUTHERLY, THROUGH A CENTRAL ANGLE OF 28.13'11" (THE LONG
CHORD BEARS NORTH 7750'28" EAST, 143.60 FEET) AN ARC DISTANCE OF 145.07 FEET TO
THE POINT OF BEGINNING.
CONTAINS 163,456 SQUARE FEET.
THE BASIS OF BEARINGS FOR THIS LEGAL DESCRIPTION IS PER PARTITION PLAT NUMBER
95-PO778, LANE COUNTY PLAT RECORDS.
REGISTERED
PROFESSIONAL
LAND SURVEYOR
OREGON
NW. 18, 19811
MICHAEL D. FRANK
63854
RENEWAL' IZIY, lo S'
EXHIBIT 2
LANE COUNTY, OREGON
SEC. 25, T17S, R3W, W. M.
.108 NO WNC2197
LEGAL DESCRIPTION
A TRACT OF LAND LOCATED IN THE SOUTHEAST QUARTER OF SECTION 25, TOWNSHIP
17 SOUTH, RANGE 3 WEST, WILLAMETTE MERIDIAN, CITY OF SPRINGFIELD, LANE
COUNTY, OREGON, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
PARCEL 2 OF PARTITION PLAT NUMBER 95-PO778, LANE COUNTY PLAT RECORDS, LANE
COUNTY, OREGON.
TOGETHER WITH THE FOLLOWING DESCRIBED TRACT
BEGINNING AT THE MOST NORTHERLY CORNER OF SAID PARCEL 2, SAID POINT BEING
ON THE SOUTHERLY RIGHT-OF-WAY LINE OF THE'Q' STREET FLOOD CHANNEL; THENCE
LEAVING SAID SOUTHERLY RIGHT-OF-WAY LINE, ALONG THE NORTHWESTERLY LINE OF
SAID PARCEL 2 SOUTH 37°02'57" WEST, 141.17 FEET; THENCE SOUTH 52°57'03" EAST,
20.00 FEET; THENCE SOUTH 37"02'57" WEST, 283.92 FEET; THENCE LEAVING SAID
NORTHWESTERLY LINE OF SAID PARCEL 2 NORTH 52"56'28" WEST, 272.80 FEET TO SAID
SOUTHERLY RIGHT-OF-WAY LINE OF SAID'Q' STREET FLOOD CHANNEL; THENCE. ALONG
SAID SOUTHERLY RIGHT-OF-WAY LINE NORTH 63°43'53' EAST, 354.03 FEET TO THE
BEGINNING OF ATANGENT CURVE, THENCE ALONG THE ARC OF A 294.53' RADIUS
CURVE CONCAVE SOUTHERLY, THROUGH A CENTRAL ANGLE OF 28`13'11" (THE LONG
CHORD BEARS NORTH 77"50'28" EAST, 143.60 FEET) AN ARC DISTANCE OF 145.07 FEET TO
THE POINT OF BEGINNING.
CONTAINS 278,407 SQUARE FEET.
THE BASIS OF BEARINGS FOR THIS LEGAL DESCRIPTION IS PER PARTITION PLAT NUMBER
95-PO778, LANE COUNTY PLAT RECORDS.
REGISTERED
PROFESSIONAL
LAND SURVEYOR
0BEGON
NOV. /6
,1on
MICHAEL D. FRANK
63854
RENEWAL' 1Z -1.i t /O
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9513917
CROSS -EASEMENT AGREEMENT MPS 0 95gGdFEC 165.00
'ttCa �p ?�1IAr.10 95Np9FFdN0 10.00
=x y THIS CROSS -EASEMENT AGREEMENT ("Agreement) is made this _L day of �
( February, 1995, byand between McKAY INVESTMENT COMPANY, an Oregon general III
partnership, ("McKay"), and WAREMART, INC., an Idaho corporation, (' Waremart").
�y5
RECITALS 2111 Ai '0'95fl089GT FOND 20.0
N
4 A. McKay is the owner of r certain parcel of real estate located in the Cityt� Springfield Lane County, Oregon, described on Exhibit 1 appended hereto (the "McKay Site");
); 66Ft
,and`
x B Warerrwt is the owner of a cerram parcel of real estate located in the City of
3 Springfield, Ione County, Oregon, described on Exhibit 2 appended bereto (the Waremart
She"); and
55 C McKay and Waremart desire to develop and utilize the McKey Site and the Wareruan
m a Site (hereinafter sometimes referred to separately as a "Site' and collectively referred to as the
"Entire Parcel") as an integrated and unified shopping center; and
i ,
x . D. McKay and Waterman desire to provide reciprocal casements for pedestrian and
velucular ingress, egress, parking: passage and traffic and for utilities in, over, upon, across and a
' r
through the Common Areas ana such other areas as are hereuufter provided as though the Entire
Parcel were developed and utilized as a single integrated shopping center.
NOW,THEREFORE, in consideration of One Dollar ($1.00), themumalcovetantsand
r agreements herein contained, and other good and valuable consideration; the receipt; value and
sufficiency of which is hereby acknowledged, the parties hereby covenant and agree as follows
q tr ARTICLE I
DEFINITIONS
LI Occunnnr The term"Oonipant". shall mean and include each of the parties
hereto, their respective hers, successors and assigns (including mortgagees) and any person who
shall be from time to time enddodto the use and occupancy. of space located within die Entire 1
iv=,( Parcel under my lease, sublease, license or concession agreement, or other instrument or
urangement under which such rights are acquired.
1
1.2 Common Are=is..The term "Common Areas" shall mean and Include all Pam
of die Endre Parcel which are from time to time devoted primarily to parking, approaches, exits,
Y"I CROSS -EASEMENT AGREEMENT - f
lel �.
t}
,qq t s
i u R
x
l
9513917 '
at..., sidewalks, exterior landscaping,incidencal and interior roadways; service roads. and
other similar'. arras as shown on the Site Plan
1.3 ..Permittees. The term Permittees shall mean and refer to all Occupants and all
customers,employees;: licensees and other business invitees of Occupants. Among others,
persons engaging in the following are not Permittees, except to the extent such activity is
protected under the United States Constitution or the State Constitution as a free. speech activity:'.
(a) Exhibiting any placard, sign or notice;
(b) Distributing: any circular, handbill, placard; or booklet;
(c) Soliciting memberships or contributions to orfor any organization or entity
other than an owner or tenant of the Entire Parcel;
(d) Parading, picketing or derrmastratng; and
'(e) Fading to follow regulations miming to the use of the Entire Parcel
1.4 Site Pian,. The term 'Site Plan". shall mean and refer to the site plan of the Entire
' Parrel attached hereto as Exhibit 3.
1.5 BenefittedSite. .'no mrm"BeacfittedSim' shall mean and refer to those portions
of the Entire Parcel which arc benefitted by the easements and. rights hereinafter set forth and
constitute the dominant estate.
't
L6 Burdened Sit el The term "Burdened Site" shall an and refer to those portions
of the Entire Pareetwhich are burdened bythe easements and rights hereinafter set forth and
constitute the servient estate.
1.7 B ildns, Area. The Leon `Building Area" shall mean the portions of the Entire
Parcel designated on the Site Plan as a Building Area. Vertical improvements, including a flag
. pole and a video cassette collection box located on the Waremart Site, and structures on the
Warrantor Site and the McKay Site tomling not more than 120 square feet on each such site
which do not impede traffic Bow,signs, concrete curbs, traffic islands and landscaping, may be
located only asshown on the Site Plan. Building canopies and other architectural neutrons,
signs, loading docks, ramps and staging and storage areas may be located immedia ely adjacent.
to a Building Area as shown on the Site Plan. The location of future reclamation areas are not
shown on the site Plan and the installation and maintenance of any such areas shall be governed
by the terms of Section 2.2 hereof.
1.8 All present and Nture federal, state orlocal laws,
ordinances, rales, regulations,decisions and other requirementsof governmental authorities
relating to the environment or to any Hottentots Material; includingthe following federal laws:
CROSS -EASEMENT AGREEMENT -2
-- Mf;
p, .:
M
9513927
# The Comprehensive Environmental Response and Clean -Up Liability ,
Amendment aul Reauthorization Act of 1980,. the Resource Conservation an
Hazardous Materials Transportation Act, the Clean Water Act, the Clean
Substances Control Act; the Safe Drinking Water Act, and regulations adopu
promulgatedpursuant thereto.
1.9 Hazardous Material. "Hazardous Material." shall mean mate
defined as "hazardous substances," "hazardous> materials;'..'hazardo
substances, including asbestos, polychlorinated biphenyls, petroleum (orp
hydrocarbonicsubstances and constiments ofanyof the foregoing, or other:
under any Environmental Laws. or any regulations promulgated themunde
substance ormateriall which because oftoxici y,corrosivity, reactivity, igniml
' try, magnification or concentration within biologic chains, presents a den
biologic processes when discharged into the environment.-
. 1.10 Retail Area:: The term 'Remrl Area shall mean and refer tc
Entire: Parcel designated on the Sim Plan as the :"Retail Area.." The Remd
all ingress and egress drive lanes to and from the Entire Panel and extenim
1.11 Pad Area The term "Pad Area" shall mean and refer to.
Entire Panel designated on the Site Plan as the "Pad Ana."
1.12 Flaar Area. The term Floor Area means the entire area aft
from the esterior line of the exterior walls and from the centerline ofan)
interior walls'- without' deduction for .columns, walls or other structum
components and shall include; s Iles and service areas; warehouse and storage
.!lice areas and employee facilities. - "Floor Area" does not include truck t
delivery areas or trash compactor facilities located outside the building.
ARTICLE 11
EASEMENTS
2.1 Grant of Easements.. McKay and Waremart hereby each go
to each individual,: partnership,: joint venture; corporation, trust, unincorp
governmental agency or other business entity now or hereafter holding an ov
fee in any part of the Entire Panel (which persons are herein sometimes si
"Owner" and collectively celled the "Owners°).the following easements for
mid their respective Permittees, without payment of any fee .r charge,..er
agreed in writing between the Owners:
`2.1.1 Pedestrian Easements. Nonexclusive easements i
pedestrian traffic between each Sim and (i) each other Sim which is comigue
public streets and alleys now or hereafter abutting or located on any portion of
CROSS -EASEMENT AGREEMENT -3
3
CROSS -EASEMENT AGREEMENT -4
9513917..
1
(iii) the parking areas now and hereafter located on the Entire Parcel;: and (iv) over, upon,
;
across and thropgh the Common Areas; limited, however, to those portions of each Sim which
( ,
are improved by the Owner thereof from time to time for pedestrian traffic and made available
by such Owner for general use by the Permittees hi conformity with this Agreement and the Site
Plan
2.1 .2 Vehicular Easements. Nonexclusiveeasements for the purpose of
i^
vehicular traffic over, upon, across and between each Sim and the public smors and alleys now
and hereafter abutting or located on any: portion of. the Entire Parcel; limited however, to those
portions of the Entire Parcel which areimproved by the Owner thereof from time to time for
vehicular accessways inconformity with this Agreement and the Site Plan.
2.1.3 Ea'stinp, Encroachment The McKay Site consists of Patrol 1: and 3 as
'depicted on the Site Plan. Each Owner acknowledges that a portion of the building presently
located on Parcel l and a portion of its canopy extends into and over the Warem et Site (the
"Existing Encroachments'). During the term of this Agreement, Wammart grants McKay a
nonexclusive easement. for Hie Existing Encroachments and their maintenance, provided,
however, the easement granted in this subsection shall automatically terminate at such time as
the Existing Encroachments are either removed or destroyed, and McKay shall not thereafter
have any further. rights of encroachment under this subsection.
2.1.4 Utiles Easement s..Nonexclusive casements in; across, under, over and
f
through those portions of the Common Area (exclusive of any portion located within a Building
Area) necessary for the insta lation, use, testing, connection to, operation; maintenance, repair,
- replacement and removal of: water lines and systems; telephone lines antl systems; gas lines and'
systems; sanitary sewer lines Ong systems; electrical lines and systems; storm sewers, drainage
lines and systems; and other t(tility lines or systems hereafter developed to serve one or more
of the Sims; provided, however, that all pipes, wires, lines, conduit; mains, sewers,. systems
and related equipment (hereafter called 'Utility Facilities") will be installed underground or
otherwise enclosed and will oe Justalled, operated and maintained in a manner which will not
r `
unreasonably interfere with the use of the Entire Parcel or improvement on which such Utility
•'
Facilities am heated. The Owner of any Burdened Site affected by any of such utility easements
q,?
will have the right, at any time, and from time to time. to relocate any Utility Facilities then
S.^i
located on Hie Burdened Site on the conditions that. (i) otherthan in an emergency situation,
such right of relocation will be exercisable only after tarty (30) days priorwritten notice of the
s `-
intention to relocate has been given to all Owners using the Utility Facilities to be relocated; (fi)
other than in an emergency situation, such right of relocation of any Utility Facilities located in
the from of a building will not be exercised between October 1 and December 27 of any year
(iii) such relocation will not unreasonably interrupt any utility service to the improvement then
located on the Benefitted Sim(s); (iv) such relocation will not reduce or unreasonably impair the
usefulness or function of the Utility Facilities to be relocated; (v) all cost ofsuch relocation will
be borne by the Owner relocating the Utility Facilities; and (vi) the Owner relocating the Utility
Facilities will, following the relocation, repair and restore the Burdened Site to its condition
immediately preceding the relocation promptly. Prior to utilizing the easement and exemising
CROSS -EASEMENT AGREEMENT -4
is
95Y39Y7 i:,
the rights granted herein, the Owner shall fust provide the other Owners with a written statement
describing the reed for such easement and shall identify the proposed location of the utility line.
Any, Owner installing utilities pursuant to the provisions of this subparagraph shall pay all costs F -
.i s andcrpenses with respect: thereto and shall cause all work in connection therewith (including..
general cleat up and proper surface and/or subsurface restoration). to be. completed as quickly -'
as possible and in a counter so as to minimize interference with the use of the Common Area...',,
The Owner of a Site benefiting: from a utility easement across another Site sball indemnify and k
hold harmless the Burdened Site Owner from and against all demands, damage, claims, loss, .
" liability, or expense in connection withthe use, installation, mmntenance and removal of such `
utility line, The fnfnal location and width of any utility shall besubject to. the prior written K
approval of the Owner of the Burdened Site, such approval not to be unreasonably withheld.
y The easement mea shall beno larger than wbatever is necessary to reasonably satisfy the utility
company as to a public utility or five feet (5') on each side of the centerline as to a private line.
Upon request,the grantee shall provide to the grantor a copy of an as -built survey showing the
3 :S location of such utility.
2.1.5. Arness Easement. Nonexclusive easements in accordance with the access
points and driving lanes shownon the Site Plan between each Site and the: public streets and'.
" ways abutting or crossing any portion of the Entire Parcel for the purpose of providing ingress, `
egress and access to the easements hereby created and to the Common Areas. + a
2.1.6 Constrvc[ion Easements, Nonexclusive eaumen[s for the purpose of
.constructing, renovating,. repairing or remodelingthe improvements on the Entire Parcel,
including grading, balancing and compaction of soils and other sitework materials, monsrroc
3 . tion,: storage of supplies and materials, installation,. replacement, modification, eine and Y }
-d a maintenance, provided such use of a Burdened Site is reasonably necessary, will be diligently [ "t `
i prosecuted in accordance with sound commotion practices and will not unreasonably interfere a.
0 7 with the use of the Burdened Ite or the improvements thereon. All wmtructlon alteration or b�
repair work, undertaken by any Owner upon any Site pursuant to any easement granted herein, r
or. permitted by any other provision of. this Agreement, shall be accomplished in the most F,
y ; .expeditious, diligent and speedy manner possible. The person or entity undertaking such work
Sa shall take all necessary measures to minimize any. disruption or inconvenience caused by such
work to the other Owners or Occupants of the affected pardons of the Enure Parcel, and shall 1
'i make adequate provisions for the safety and convenience of all Owners and Occupants of the "
Entire Parcel. Such work shall be accomplished by the person or entity untlermking it in such
manner as to. minimize any damage or adverse effect which might be caused by such work to '<
the Owners and Occupants, the affected Site or the Entire Parcel, and cause as little disruption
of and interference with use of the Common Area and other Building Areas as possible. Dust;
.1�. noise and other effects of such work shall be controlled by the person or entity undertaking the
work, using the best accepted methods custommily utilized in order to control such deleterious
effects associated with contraction projects In a populated or developed area. The person or
S entity undertaking such work shall repair, at Its Own Cost and expense, anyand all damage t� ,
ceased by such work and shall restore the affected portion of the. Site upon which such work is a ""
All , I performed to a condition equal to or better than the condition existing prior to beginning such
s�.
AI CROSS -EASEMENT AGREEMENT -5
s.
,o'
t�'`
ssa3sav _
t,
work. In addition, the person or amity undertakingsuch workshall pay all costs and expenses
>k
associated Nerpwith and shall indemnifydefend and. hold the Owners harmless fromall
damages, losses or claims attributable to the performance of such work. All such work shall
`
be undertaken only after giving the Owners thirty (30) days' prior written notice of the work to
p
be undertaken, the scope, nature and extent of the work, the duration of the work, and the area
{
i.
in which the work is to be performed. Such notice shall include any plans or specifications for
M'
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the work which is in be accomplished on the affected Site.
(j[
2.1.7 Parking Easements. Nonexclusive easements in and to the puling meas
t.kl
for access to and usefor vehicular puking purposes. Such parking easements stall consist of
'
` {
at least 3.3 puking: spaces for each 1,000 square feet of Net Building, Floor Area in the
anduse the Wmemart Site.: "Net Building Floor Area" is gross
aggregate on the McKay)llpenthouse
sa
building mea less l(i)alPpehihouse anti meraanine meas;(ii)outside sales arms, (iii)loading
-"
'docks, and (iv) upper. levels ofmultideck areas used exclusively for office space and storage.
f /
The parties agree to designate employee parking places on thein respective Site with the standard
letter "E". of each size and color as to be readily observable in daylight hours to users of the
y3
puking mass. The employee puking areas shall be designated for each Site on the Site Plan.
-
The Owner of each Site shall require the employees of all occupants of each Site to park only
in theemployee parking spaces marked with the. "E".. on its Site The easements for parking
` ;N
x`
a'.
spaces and access shall be provided in accordance with the Site Plan.
4 .,
2.1.8 Liehtine Facilities Easement. Nonexclusive easements for access to and
3 j
. use by. the Owners and Occupants of each. Sire to the public light poles located adjacent to: tAe
rya
s
-.perimeters. of each Sim for installation, repair, replacement,. maintenance and removal of elan;
� t`
[steal wires, conduit,: lighting fixtures and related apparm s to share the use. of such poles for
r3
elighting
the Common Area on each Site.
..l
2.1.9 Se1P-Help Easements. Nonex<lusive�righs of entry and easements over,
"a
across and under each Site for ail purposes reasonably necessary to enable any other Owner of
�%
t'=.11
a site to perform any of the provisions of this Agreement which a defaulting Owner has failed
° •%
to perform:
%A
r5
' 2. 1. Sign Easements. Non-exclusive easements coder, through and across the
Common Area of each Site for the installation, operation, maintenance, repair and replacement
?`t
of such free-smnding pylon sign(s) as are shown on the Site Plan attached heretoor as may
"`
erected by agreement of the Owners, including all appurtenant utility lines and facilities. :
r
s p!
Except where otherwise specifically stated herein to the contrary, the Owner of the Benefitted
`^
Site shall bear proportionately all toss related to the installation, maintenance, operation.'. repair
r;
and replacement of any pylon sign and appurtenant facilities on which. its sign fascia appears and;
,
shall repair to the original specifications any damage to. the Common Area resulting from such
'
use in the same ratio that is sign fascia on the pylon bears to all sign fascia on the pylon. It
is agreed that the pylon sign shown an the Site Plan and located at the northwest corner of the
Entire Parcel shill be shared by die parties as follows: The Owner of the Warelmon Site shall-
i ; J
be entitled to use die top and bottom panels of the signand the Owner of the McKay Site shall
T
CROSS-EASEMENT AGREEMENT - 6
tisk:-
w r'V
"
i
t
9513917
be entitled to use the two middle'. panels of thesignshown on Exhibit annexed hereto
"Further, if it allowed by the applicable governmental agency; the Owner of the Waremart Site
,. :shall be entitled to have a reactor board on its bottom portion of the. sign, and the Owner of the
Waremart Site may, at its election,: name the'shofpmg center and have the shopping center's
name displayed on the sign. All costs of construction, maintenances repair andreplacement of
this sign shall be: paid as follows: 50% by the of the Waremart Site and '50%:by the
' Owner of the McKay Site. The: parties agree to usereasonable effor ai to cause the utilities
j servicing the: sign to: be separately metered are that the Owner of the Waremart Site and the
Owner of the: McKay Siad each pays, for their own utilities. Inthe 'event the sign cannot be
I. separately metered; the Owner of the Waremart Site and the Owner of the McKay Site shall each
payfor the utilities used by them based upon an engineer'sestimate of each party's pcmenmge
..use of the total utilities for the sign. In the event there is an additional pylon sign on Olympic
Sweet, the Owner of die Waremart Site shall be entitled to use the entire sign, and shall pay all
costs of construction and operation of this sign.
The parties agree that a billboard(s) may be erected and maintained only at the location(s)
shown on the Site Plan. The Owner of the Site where the billboard(s) is located shall not allow
the billboard(s) to be used to advertise or promote any business or operation which competes
with Waremart;: and shall use its best efforts to obtain periodic advertisements for, or promotions
of the Entire Parcel and the businesses located Hereon.
2.1.11 Surface Water Draimut . Non-exclusive easements for the flow of a
reasonable volume bf surface water to the nearest drainage catch basins or waterways; provided,
however, that (i) the easement for surface water drainage shall be consistent with an overall
'.ounce, water drainage plan for the Entire Parcel; and (ii) following the construction of Common
Areas and buildings on a Bendripcd Site no Owner of the Benefitted Site shall alter the Flow of
surfacewater onto a Bambmeq Site in .:manner that would materially increase me volume, or
materially decrease the purity or quality, of surface. water Bowing onto the Burdened Sim.
2.1.12 Easement for Attachment. An easement to attach in an architecturally
approved manner all buildings that are contiguous to each other on the Site Plan.
2.2 .Unimpeded Access.' The Owners agree that no barricade or other divider will be
constructed between the Sites and the Owners will do nothing to prohibit or discourage the free
and uninterrupted flow of vehicular or pedestrian traffic throughout the Entire Parcel in me areas
designated for such purpose on the Site Plan; provided that each Owner will have the. right to
temporarily erect barriers to avoid the possibility of dedicating such atlas for public use or
creating prescriptive rights therein; provided that no barricade shall impar access rights therein
to anot er Owner's Site. Nothing contained herein shall prohibit the Owner or Occupant of any
Site from maintaining an outdoor sales area in He Common Area on its Site as designated on
the Site Plan in compliance with Section 6.8 hereof, -
Nothing contained herein shall prohibit Waremart from installing and maintaining on the
Waremart Site a flag pole, a video cassette collection box and such other structures totaling not
CROSS -BASEMENT AGREEMENT - 7
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.more than 120 square feet which do not impede traffic flow in the parking area, or. McKay from
installing and maintaining on the McKay Site kiosks needed not more than 120 square feet
which do not impede traffic flow in the parking area;; all such structures shall only be located
in the area designated for the same on the Site Plan. It is also agreed that McKay and Wammart
shall, if required by: governmental authority; have the right to install and maintain in the parking
area or adjacent to a building on the respective Sites a reclamation area to reclaim recyclable
produces and materials. Any such: reclamation mea shall not be any larger than the size
inundated by a governmental agency.,. Unless otherwise required by: a governmental agency, the
: party installing the reclamation mea shag ase its reasonable effortsan keep -all -recyclable
material within ancenclosmm orenclosures. and shall, at aH times, keep and maintain the
reclamation area in a neaq clean and safe condition. Nothing contained herein shall prohibit a
party from installing a speed bump or other traffic devices in theparking area on its Site, so
longus they do net unreasonablyimpede traffic flow:':
ARTICLE HI 2
NATLME OF EASEMENTSAND RIGHTS GRANTED
3.1 Easement¢ Ariumtenant Each and all of the easements and rights granted or
created herein an appurtenances; to the affected portions of the Entire Parcel and name, of the
easements and rights may be transferred, assigned or encumbered except as an appurtenance to
each portions For: the purposes of such casements and rights; the particular areas of. the Entire
Parcel which an benefitted by each easements shall constitutethe dominant estate. and the
...particular meas of. the Entire Parcel. which are burdened by such casements and rights. shall
`constitute the servient estate.
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3.2 Naturend Effect of Easements Each and all of the easements, coveusms
restrictions and provisions contained in Nis Agreement
(a) Are made for the direct, mumal and reciprocal benefit of the Occupants and '
Permittees of the respective Sites;
(b) Create mutual equitable servitudes upon each pared in favor of the other
Sited
(c) Constitute covenants running with the land; and
(d) Shall bind every person or entity having any fee, leasehold or other. interest
in any portion of the Entire Pureed at any time or from time to time to the extent tint such
portion is affected or bound by. the easement, covenant, restriction; or provision in question, or
to the extent that such eosement;covenant, restriction or provision is to be performed on such
portion
CROSS -EASEMENT. AGREEMENT -8
9513917
3 3 Transfer of TStle. The acceptance of any transfer or conveyance of fee tile,
whether such number or conveyance is voluntary. or: involuntary, from any party. hereto or its
respective heirs; representatives, successors or assigns of a0 or any part of its interest in the Site
!'. shall be deemed to:
(a) Require the prospective grantee to agree not muse, occupy or allow any
lessee or occupant of such Site rouse or occupy the She in my manner which would constitute
a violation or breach of any of the easements: and covenants contained herein; and
(b)Require the prospective grantee to assume and agree to perform each and all
of the obligations of the conveying partyunder this Agreement with respect to any such Site
which will be conveyed to each grantee, in each case by a written instrument executed,
acknowledged and recorded in the Office of the Register of Deeds. of Lue County, Oregon.
Notice of each such conveyance and agreement shall be served by the conveying Party upon each
party or entity then owning fee tide to anypart of the Entire Parcel within ren (10) days after
such conveyance. The notice shall be accompanied by a copy of the conveyance and agreement
Upon men assumption by the new grantee and the service of proper notice, the conveying party
shall thereupon be released from any future obligation under this Agreement with respect to the
parcel-soconveyed to the prospective grantee in compliance with this document but shall not
be relieved from past obligations. " The parties: hereto agree to execute and deliver any and all
documents or assurances necessary: or desirable to evidence such releasefor the purpose of
recording or otherwise. Whence gmnlee is a mortgagee, no personal liability or responsibility
shall be deemed lobe saturated by such mortgagee until and unless such mortgagee actually takes
possession of a Site in connection with a mortgage foreclosure action, including a deed in lieu
of foreclosure
( ARTICLE IV
MAINTENANCE OF COMMON AREAS
4.1 Common Area Mainlining Each Owner shall maintain the Common Areas
located at, its Site in a fast class and in accordance with all applicable laws Such maintenance
shall include, but shall not be limited to:
(a) Maintenance, repair and replacement of the surface and subsurface of parking
lot and driveways shouted on the Common Area to maintain it level, smooth and evenly covered
with the type of materials originally constricted thereon or such substitutes as will In all respects
be equal to such materials In quality, appearance and durability;
(b) Maintenance and care of all grass, shrubs and landscaping, including, but not
limited W. the fertilizing, watering, mowing. and tuning thereof and maintaining,. repairing
and replacing (when necessary) automatic sprinkler. systems and water lines;
9513917:
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(c) Removal from the Common Areas and parking area of papers, debris, ice
snow, refuse apd other hazards to persons using the said areas, and washing or thoroughly
sweeping paved arras as required;
-`(d) Maintenance of such appropriate Parking Area entrance, exit and directional
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signs,. markers and lights as will be reasonably required from Time to time; and
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(e) Such painting and repainting as may be required to maintain the Parking Area
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and equipment installed thereon in high quality condition The Owners shall coordinate my
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parking lot resurfacing or suiping so that the parking lot retams its appearance as an integrated
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common parking lot,
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'. (t) Maintenance, repair and replacement of the Common Area lighting facilities,
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walls, storm drums, sewer lines and other utility lines and facilities and all other pardons of the
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Common Area in an attractive, serviceable and found ovalcondition; -
'(g) After completion of construction, each party covenants and agrees to maintain
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and keep the building improvements, the outside sales area(s) and my allowed flag pole, video
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cassette collection box, reclamation area, if any, and other improvements located on its Site in
a fust -class good, clean conthuon and state of repair, in compliance with all governmental laws
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rules regulations orders and ordinances exercising jurisdiction thereover, and is compliance
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with iM provisions of this Agreement Each party further agrees to stone all trash and garbage
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in adequate containers, to locate such containers so that they are not readily visible from the
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front of the parking area, and to arrange for regular removal of such trash or garbage.
7 j
The Owners of each Site shall attempt in. good faith to coordinate any resurfacing or
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resmping of the parking lot 4.the Common Area to attempt to maintain its appearance as an
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integrated parking area for: the entire development. -
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The Owners of each Site shall perform, or cause to be performed, the Common Area
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maintenance for their Site, and shall each pay the cases and expenses for the same, provided,
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however, the Owner of the Waremout Site shall perform, or cause to be performed: (m) the
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maintenance of the grass, shrubs and landscaping in the Retail Arca; and (ii) sweeping of and
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removing debris; ice, show and refuse From the parking lots located in the Retail Area and all
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costs for the same stick be shared equally by the Owners of the McKay. Site and the Waremart
She. The Owner of the Wareman Site and the Owners of the McKay Site shall equally share
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the cost of any future municipal assessments made upon any portion of the Entire Parcel to pay
''. 41
for improvements to the streets, sewer, sidewalks and similar structures abutting or providing
service to theEntirc parcel..
4.2. Failure to Proneriv Maintal i... In the event any party shall fail to properly
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maintain that portion of the Common Ana which is located on its Site or otherwise defaults in
the performance of such Parties' obligations under Articles IV, VIII, IX or X (such party being
herein referred to as the "Defaulting Party"), any other parry (hereinafter referred to as a'e
. CROSS -EASEMENT AGREEMP,NT - 10
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9533917'
Nondefaulting Parry) may send written notice. of such failure to the Defaulting Party. Such
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notice shall contain an itemized statement of the specific deficiencies (hereinafter release to as
. theDeficiencies) in the Defaulting Party's performance of the obligations to be performed by
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�. it. Except for emergency situations, the Defaulting Party shall have ter (10) days after receipt
of the said notice in which to correct the Deficiencies or in which to commence to correct the
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' Deficiencies if the Deficiencies of be corrected within the said ten (10) day period, and
thereafter, to proceed drhgeally to complete the correction of the Deficiencies. A "emergency
situation' is a situation which lines= access to a Site or threatens immediate substantial toss
ordamage. to property or any, personal injury or death'. to persons. In the event that the
Defaulting. Patty shall unseasonably fail or refuse to timely correct or to begin tocorrect the
Deficiencies; as the case my be, the Nondefaulting Party may, at its option, correct the De-
fimencies. In' he event the Nondefoulting Party shall exercise this option and shall correct the
Deficiencies, the Defaulting Patty shall, promptly upon receipt from the Nonimmulting Party of
an itemized Invoice for the costs incurred by. the Novdemulting Party in correcting the
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Deficiencies, pay all costs to the Nondemulting Party plus interest thereon m United States
-
National Bank of Oregon's prime rate of interest, or its substitute rote, plus two percent (2%)
per annum until paid. -
4.3 Maintenance of Casement Areas. Except m the extern that such etas might be
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operated and maintained by public authorities or utilities, the Owner of each Burdened Site will
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operate and maimain or cause to be operated and maintained all of the sizes of the Burdened Site
which are subject to the pedestrian and vehicular easements created by Sections 2.1.1 and 2.1.2
of this Agreement in sound structural and operating condition at the sole expense of the Owner
ofthe Burdened Site.. To the extent there are costs of operation and maintenance assocmled with
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the easement provided by Section 2.13, theysball be bome by die Owners of the benefited Site,
The Ownerof each Burdened Site, pursuant to Section 2.1.4, will operate and maintain all
,-
Utility Facilities located wittyn the boundaries of such Burdened Site in sound structural and
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operating condition (except to the talent that such operation and maintenance is performed by
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-. public authorities or utilities) and any expenses occasioned thereby will be be. by the Owners
of all Steels) in the ratio that the Net Building Floor Area of the improvements located on each
;. Sim boom to the tool Net Building Floor Area of theimprovements located on NI Sites,
provided, however, that each Owner will pay all costs associated with the operation and
maintenance of Utility Facilities and the consumption of utility serviees which relate solely to
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the impeavemevt; locmW on a single Sim and no other Owner; will have my: liability with
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respect therein. Nocosts of operation and maintenance are associatedwiththe easements
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' provided by Section 2.1.5.. The costs of upcmfion and maintenance of the easements provided
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by.. Section 2.1.6 shall be borne by the Owner of the Benefitted Site(s)
The costs of operation and maintenance of the easements provided by Section 2.1.7 shall
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be borne by the Owner of the Burdened. Silvis) (the Parking Site).
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The cost of operation and maintenance of the casements provided by Section 2.1.8 shall
be home by the Owners of the Benefitted Shots).
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951398!
The cost of the operation and maintenance of the easements provided by Section 2.1.9 f�
shall be liome by the Oweer(s) of the Benefitted Sites) unless a default of, the owner of the [,
Burdened Site(s) caused the use of the easement {{
The Cost of operation and maintenance of the easement provided by Section 2 1.10 shall
be paid as provided in that Section. The cost of operation and maintenance of the easements tt _
provided by Sections 2. 1.11 and 2.1.12 shall be home by the Owner(s) of the Benefitted Simla). p
4.4 Taxes The Owners of each Size shall pay or cause to be paid all real estate taxes ,
and special assessments which are levied against that portion of the Common Area on its Site
prior to delinquency of such taxes or special assessments..
4.5 Mechanic's e's or Construction Lien. If, because of any act or omission (or alleged " M'
act or omission) of soy Owner; any mechanic's or eomtmction lien shall be filed with respect I}F
to any portion of the Entire Parcel (whether or not such lien is valid orenforceable as such);
such Owner shall cause the same to be discharged of record, or bonded, with respect m such
portion of the Entire Parcel not owned by, such Owner, within thirty (30); days after the filing
thereof; and Owner shall indemnify and save harmless all Owners, allground it =denying
lessorsand mortgagees with respect to any portion of the Entire Panel against and from all
costa,liabilities, suits, penalties, claims and demands, including reasonable attorneys' fees Sgt
resulting therefrom. If such Owner fails to comply withthe foregoing, any other Owner shall
have the option of discharging or bonding any such lien, and if such option is exercised, the u•.
Owner whose act or omission (or alleged act or omission). gave rise to the lien shall reimburse c v
the Owner(s) who discharged orbonded, such lien forall costs, cxpenses; and other sums of
money (including reasonable atmmeys' fees) in connection therewith promptly upon demand and
such Owner shall have all rights with respect to die amounts owned to it available at law or in
equity, 1
ARTICLE V
c
ENFORCEMENT - INNNQUYP RELIEF
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5.1 Remedies./In the event any party hereto or any Permittee or Occupant of my ?y
part of the Entire Parcel violates any of the terms, restrictions or covenants required to beper- f y
formed by any such person orentity, or violates any restriction or condition set forth' herein - binding an on such person or entity, then airy of the parties or their respective successors or
assigns, as the case may be, shall have, in addition to the right to collect damages, the right to
enjoin such violation or threatened violation in a count of Competent jurisdiction.
5.2 Notice. Except in emergency situationsa party will not be in default under this
Agreement unless such parry shall have been served with a written notice specifying the default
and shall fall to cure such default within ten (10) business days. after receipt of such notice; or
shall fail to commence to cure the default within such period of time if the default cannot be
CROSS-EASEMENT AGREEMENT - 12
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CROSS -EASEMENT AGREEMENT -13
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cored within the said ten (10) day period; and thereafter, to proceed diligently to complete the
curing bf the default.
5.3 Breach Does Not Affect Aereeme tt. It is expressly agreed that no breach of this
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Agreement shall entitle any party to cancel, rescind or otherwise terminate: this Agreement, but
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tills limitation shall not affect, In any manner, any other rights or remedies which the parties
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may have by reason of any breach of this Agreement
ARTICLE VI.
RESTRICTIONS ON DEVELOPMENT AND USS:
6.1 Site Plan. It is agreed that, except as otherwise approved in writing by both of
the parties, the Entire Parcel shall be developed and utilized consistentlywith the Site Plan
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attached hereto as Exhibit 3. No Owner shall construct or permit to be constructed on such.
Owner's Site any buildings or structures of any kind except in the areas designated therefor on
the Sim Plan, without the prior written approval of the other party. Nothing contained herein
shall prohibit on the Waremart Site, a flag pole, avideo cassette collection bon and other struc-
tures totaling not mom than 120 square feet which do not impede traffic flow in the puking.
.area, or McKay from installing and maintaining on the McKay Site kiosks totaling no more than
120 square feet which do not impede traffic flow in the parking area. AR such structures shall"
only be constructed in the areas designated for the same on the Site Plan. McKay and Waterman
shall, subject m the terms of Section 2.2, have the right to install and maintain a reclamation
steals) on their: Shea Neither party shall make changes to the Common Areas on its Site
(including, without limitation), changes to the parking spaces,: driveways and motways in the
Common Areas, the entrances'nad exits of the Common Areas, the lighting system servicing the
+•„
Common Areas and the traffic,�ffllow patmrn of the Common Areas from the layout thereof shown
upon the Site Plan withoubt(amvproval of the other. party.. If any highway median :strip.
cross-overnow existing near the Entire Parcelshallbe relocated, or if the installationof a
highway median striphereafter shall include a cross-over near. the Entire Parcel, then the
Owners shall make such relocation of the entrances, exits and driveways of the Entire Prmel and
such changes in the traffic, flow pattern of the Entire Parcel as shall be reasonably necessary to
conform the same to the new median strip cross-over.
6.2 Entire Parcel Use Restrictions. The fallowing use restrictions shall apply to the
Entire Parcel:
- (a) Until such time as Wareman comuucts and operates a supermarket on the
Waremart Site, and thereafter, for so long as the Wammar Site is being used or has during the
immediately preceding twelve (12) months been so used for the operation of supermarket, no
portion of the Entire Parcel, other than the Waremout Site, shall be used as a supermarket (which
is hereby defined to mean any store, bakery, or delicatessen, engaged in the sale of food
products for off -premises preparation and consumption). This restriction shall not be deemed
to prevent or prohibit the sale of such food products by a business occupying: not more than
CROSS -EASEMENT AGREEMENT -13
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9513917 r
xtv) Any adult book or adult video store, bingo parlor or for the repaving, E:
renting, leasing or selling of or displaying for the purpose affronting, leasing or selling ofboafs, t
motor vehicles or trailers..
(g) No portion of the Entire Parcel shall be wed as a car wash, gambling )
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establishment, off-track betting facility or an entertainment or recreational facility. For the
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purposes of this Agreement, the phrase entertainment or recreational facility" shall mean any
theater, bowling Imes skating rink,gym, dance hall, billiard or pool ball, massage parlor or
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similar facility, provided, however, nothing contained in this Section 6.2(g) shall prohibit or
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prevent legalized gambling, legalized off track betting, dancing, billiards or pool on thePad r
Areas so long as such uses are incidental to a permitted use - r
6.3 Additional Use Restrictions on the Retail Area. In addition to the use ,44(
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restrictions sat forth in Section 6.2 above:
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(a) No portion of the Retail Area shall be used as a car wash, but, tavern
cocktail lounge, game parlor,video arcade (except that up to ten (10) electronic games shall be
allowed if iacidentalto a Fumbled use), health spa or studio,veterinary hospital or a valving
or educational facility without the prior written cement of the Owners of the McKay Site and
the Waremart Site, which coastal my be withheld in either of the party's sole discretion. For
purposes of this Agreement, the phrase "Mining or educational facility".. shall include, without
c.
limitation, a beauty school, barber college, reading room, place of ins ra tion or any: other
.;.:
operation catering primarily to students or trainees as opposed to customers. The prohibition
against a training or educational facility shall not apply to the current sublease to;KPdSp ms of
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that portion of We McKay Site, whose address is 2030 Olympic Street, Springfield, Oregon,
97477 (the "KidSpons Location!): provided, upon the termination of such sublease or Kidspons
vacating the KidSpons Locatign, the prohibition shall thereafter apply. Provided,' however, if
`
McKay notifies the Owner of the Waremart Site in writing that it has a bona fide offer to lease
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the KidSpons Latudon as a uahung or educational facility, and the Owner of the Waremart Site ppp
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does not, within fourteen (14).days after receiving thenotice, agree to lease the KidSports
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Location on the sane terms and conditions as that of the bona fide offer, Nen, in that event, [
McKay may, within sixty (60) days thereafter, lease the KidSports Location as a naming or
educational facility. so long as any such lease is on the same terms and conditions as was set
forth in the notice provided to the Owner of the Waremart Site. Any notice provided hereunder
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shall set forth the we identity of the proposed lessee and the terms and conditions. of the
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proposed leave. In the event the Owner of the Waremart Site exemises its right of fist refusal
provided for in this Section 6,3(a), it may use the KidSpons location for storage purposes or
. any other purpose which data not violate the terms of this Agreement. -
(b) No portion of the Retail Arca shall be used as a restaurant having more
than 2,000 square feet of Floor Area. Any area used by a business which is not a restaurant for
incidental on -premises consumption of food or drink shall not be restricted by, or counted
against, the foregoing square footage restriction for restaurants.
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CROSS-EASEMENT AGREEMENT - 16
ii
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bat is objectionable due to intermittence, beat, frequency,
otim of dust dirt r flv ash- movided however: this
iv) Any fire, explosion or other damaging or dangerous b=
storage, display or sale of explosives or fireworks,. except on a temporary has
sembly, manufacturedistillation, refuting, smelting, agricalmre or
)bile home or nailer court labor camp, junkyard, stock yard or animal
Votwif umarding the foregoing;pet shops shall be permitted:wid" the
rilliag) for andbr removal of subsurface snbsmnce&
dumping or garbage or refuse, other thaain enclosed, covered
mh purpose.
or nary.
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on-site supporting facilities.
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xi) Any automobile body and fender repair work.
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all) Any flea market, swap meet or military surplus stare.
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xiu) Any industrial purposes.
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CROSS- EASEMENT AGREEMENT - 15
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9513917
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2,500 square feet of Floor Area Until: such time as.Warmoart constructs and operate, a
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supermarket on,Waremmr's Site and thereafter, for so long as the Waremart Site is being used
for the operation of a supermarket or has been so used within die preceding twelve (12) months,
this restriction may bewaivedsolely by. Waremad in writing by an instrument recorded in the
Office of: the Register of: Deeds for Lane County, Oregon. The twelve (12) month period
referred to in this Section6.2(a) shall not include any period during which the particular use
lapses due to damage, destruchon,:condemnahon, or remodeling of the budding on the Waremart
Site, so long as Waremartdiligently. proceeds with such repair and restoration of such budding
reasonably calculated to permit resumption of such use
(b) No. portion of the Entire Parcel, other. than the McKay Site, shall be used:
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for: r .the saleor: room of animals; or ti the operation full service travel'agency.
grooming the Pan
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This restriction may be waived solely by. the Owner of the McKay Sita in writing by an
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mstmment recorded in the office of the Register of Deeds for lane County,. Oregon
(e) In the event the Owner of the McKay Site or the Owner of the Waremart
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Site grants in writing (the "Restrictive Covenant) a lessee (the Benefited Lessee) of riot less
than 20,000 square feet of Floor Area (the '."Leased Premises"), the exclusive right to operate
a particular type of business (the "Exclusive Use') on its Site, 'then, in thatevent, so long as:.
(i): the Beuefited'Lesxe has the Exclusive Use and is using the Leased Premises for. the
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-'Exclusive Use; and (id the Owner of the other Site has consented in writing to the Restrictive
Covenant, which cement shall not be unaccountably hold or delayed, no portion of the Entire
Parcel, other than the Leased. Premises;shall be used for the Exclusive Use. Provided,
e however,. the Exclusive Use shall notterminate if it lapses due to damage, destruction or
remodeling of the leased Premises; so long as the repair and restoration of the Leased Premises
is being diligently.pursued sb,as to permitthe resumption of the Exclusive Use within s
reasonable period of time. Prgvided, further; the use restriction set forth in this Section 6.2(c):
(i) shall not be greater than that provided in the Restrictive. Covenant: (ii) shall not prohibit or=
prevent the Waremart Site from being leased, occupied or used as a supermarket or for the sale
ofmerchandise then customarily sold by Waremart, Cub. Foods Store or other'. nnlionally
recognized supermarkets; and (iii) shall not prohibit or prevent the incidental sale of products
covered by the Exclusive Use.
,
(d) No. portion of the. Entire Panel shall be usetl for medical, dental or
business offices having more than 2,500 square feet of Floor Area
Fi 3;
(e) There shall be no "drive-through". structures located on the Entire Parcel
without the prior written consent of the Owners of the McKay and Waremart Site, which
a..;
approval shall not be unreasonably withheld or delayed. It is agreed that die only basis for
,W1
withholding approval shall be that the stacking lane(s) or point(s) of ingress and egress requested
would unreasonably impede ingress or egress to the other party's Site or unreasonably constrict
or congest the Bow ofvehicular traffic to the other parry's Site. Any failure to respond to a'
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request for approval of a drive-through area within fifteen (15) days shall be deemed a consent
to the proposal. Wammart emvsents to the drive-through structure presently located on Pad 2.
CROS&EASEMENT AGREEMENT - 10
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e-7
Building Height
Budding Ground
Pad Rwolcti n
iCover Restriction
1 Single Story with up to
12,000 sq. fl.
20% of roof area permitted
(when redeveloped)
to have a. cupola
2 Single Story with up to
8,000 sq. ft.
20% of roof area permitted':
to have a cupola
3 Single Siwry with up to
4,800 sq, R.
20% of roof area permitted.
to have a.cupola
6.6 Access Modification No curbcums or public
highway access palms shown on the
Site Plan shall be altered, :modified, vacated or discontinued in any manner whatsoever without
` the written approval of McKay and Wareman.
6.7 11re R ti 4 t it :: The building to be constructed on the Wattmeter Site
shown on the Site Plan will be Type 'three -: Nonrated HI -N Construction as .defined in the
Uniform Building Code of the State of Oregon. Each Owner agrees not to construct, nor cause
'nor permit to be constructed on such Owner's Sim any building, improvement or stmemre which
will impair In my maturerme sprinkler frc insurance rating of the building to be constructed
on any other Site and that Any building, improvement or structre,constructed on an adjacent Sim '
<:will be constmoted and maintained in such: manner as to not require any: stmctuml or
non-stroctuml modifications to the building on any other Site, including any structural or ncn-
swctuml modifications to the building on the Wareman Site from Type Three - Nonrated IE -N
CROSS -EASEMENT AGREEMENT - 17
W1
/
s ��
9513917
"�
;.
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Coostrechon requirements. All contiguous buildings constructed on the Entire Parcel shall have
ao automatic sprinkler system constructed in accordance with NFPA Standard 13 for a minimum
protection level based on ordinary hazard, group 2 occupancy (or a like successor smiidard).
The walls at or adjoining the Property line of each site shall be constructed as separate walls
adjoining a property line, and shall conform to all requirements of the applicable building codes,
including, but not limited to, the requirements of (i) fire: resistive construction, (if) prohibition
h
on openings, and (iii). parapet walls.. All portions of a building shall beclassified as the. same
typeof constructionand shall be constructed only: of materials allowed for the type of
II
construction specified.
6.8 Common Area Promotions.: McKay and Waremart may designate an outdoor sales
` n'
arca of up to five percent (5%) of its Net Building Floor Area in its Common Area and may use
or permit its Occupaot(s). to use the same fromtime to time, up in 120 days per calendar year,
for die promotions and saleof seasonal. merchandise: or special :sale ;.promotions, .provided,
however, seasonalplant sales maybe: held in the outdoor sales area. from April s. through
July3l. The location of the outdoor sales area on each Site shall be designated on the Site Plan
The Owner of any. Site: may use or permit its Occupant(s). to use the sidewalks omits Site for
V "'
salesand promotions and movable issues may beiocated an that sidewalk, such allowed use of
. the sidewalks: shall not subject to the 120 day limitation set forth in this Section 6.8
6.9 Site Linhtirm The parties shall cause the Common Area lights in the Retail Area
?!.
and the Common: Area: lights in the: Pad. Area to be separately metered. The Owner of the
Wammart Site shall pay for all utility charges and maintenance for lighting the Retail Area and
(�u:
the Owner of the McKay Sim shall pay for all utility charges and maintenance for lighting the
f
Pad Area. The Owners of the Waremart Site and the McKay Site each agree that they will,
cause the parking lot and roadways on the Road Site and the Pad Area to be fully illuminated
:.
as set forth below: !
Rates (each year) Hours of P. kLot i h!ne
January 1 -October 31 One-half hour before sunset until 10:00 o'clock p.m.
.November 1.1aecember 31 One-half hour before sunset until midnight
Between the hours when the parking lot is not required to be fully illuminated and sunrise
r\
on the next day, the parking lot shall be illuminated at not less than 25% of full illumination for
security purposes
Notwithstandinganything to the contrary in Ws Agreement, the Owner of any Sim may
+ i
request the Owner of any other Site to extend the boors of full illumination of a portion of the
parking lot and/or contacts located on such other Site:: So long as the Owner(s) who makes the
':
request agrees to be solely responsible for any additional utility charges and rnaintemnce
e
incurred for the extended boors of full illumination, for thecosts of any: additional. changed
wiring and/or metering necessary for any illumination of the parking lot and/tar. entrances or
CROSS -EASEMENT AGREEMENT - 18.
/
s ��
9513917 �
portion of the puking lot and/or entrancesrequested, the request shall be granted. The {�
additional utility charges shall be promptly paid upon invoice therefor.
6.10 Severability. If any term or provision of Us Article or the application of it to any
Person or circumstance shall to any extent be invalid and unenforceable, the remainder of this
Article or the application of such term or provision to Persons or circumstances, other than those
as to which it is invalid or unenforceable, shall not be affected thereby, and each such term and �.
provision of this Article shall be valid and shall be enforced to the full extent pertained by law. -
ARTICLE VD r
MUTUAL INDEMNIFICATION y-
7.1 Indemnificahou. Each Owner, with respect to its portion of the Entire parcel,
shall comply with all applicable laws, rules, regulations and requirements of all public authorities
with respect to the performance of its respective obligations under this Agreement and shall
indemnify, defend and hold each other Ownerhamdess from and against any and all claims, k '
demands losses, damages liabilities and expenses and all suits, actions and judgmen s (inclu-
ding but not limited m costs and reasonable ati nneys' fees) arising out of or in anyway related
.to the failure by such Owner to maintain its portion of the Entire Parcel in a safe and proper p
'condition. Each Owner shall give each other Owner prompt and'. timely notice of any clam ¢¢RR
made or suit or action commenced which, in any way, could result in indemnification hereunder.t
ARTICLE Vhil
ail
IN¢i1RANCEAND SUBROGATION
8.1 C ... nite, Liabilits, Irssug, . Each Owner shallobtain and maintain or cause 5.
its Occupants) to obtain and maintain all risk insurancecovering all of the buildings and
improvements now or hereafter located on its Site, in an amount not less than ninety percent
(90%) of the full replacement cost thereof. Any Owner may self -insure its obligations buemder
so Jong as its net worth exceeds Fifty Million Dollars ($50,000,000.00), but such self-insurance
shall not relieve any Owner of its obligations to the other Owners. Each Owner shall also obtain (� ,
and maintainor cause its Occupant(s) to obtain and maintain comprehensive public liability a'
insurance covering injuries to persons and property on, in or about its Site with a single limit n ,,
of riot less than Five Million Dollars ($5,ODO,000.00) with a deductible not in excess of One
Hundred Thousand Dollars (5100,000.00). ,Each liability policy required hereunder shall name '
the other Owners as additional insureds under said policies. The Owners agree to periodically `
consult with each other with a view toward maintaining the levels of public liability insurance Lt"
covemge and deductibles inline with contemporary levels of coverage in shopping center of
Similar character, size and location. All such policies. of insurance shall be issued by solvent xx
and responsible insurance companies authorized to do business in the State of Oregon, such r `,_
insurance companies shall be rated by Best's Insurance Reports at not less than A and all such
policies shall contain a waiver of the right of subrogation. Each Owner shall furnish or cause ,
CROSS -EASEMENT AGREEMENT - 19 `}
f
4
9513917
is
_
in be famished to each other Owner with Certificates of Insurance reflecting this coverage upon'
request. ,:In addition, whenever (i) any Joss, cost, damage for expense resulting, directly or
mduectly, from fire, explosion or any other casualty, accident or occurrence is incurred by any
ia,
Owner, and (ii) such Owner is covered in whole 'or in part by insurance with respect in such
loss, cost,damage or expense, Nen such Owner hereby releases each other'Owner from any
- icf
Lability it may have on account of loss, cost, damage or expense. If any Owner sustains a
'
F 3
casualty loss N the building and/or Common Area on its Site within twenty five: (25) years from
a;
i
the date of the recording of Nis Agreement in the Office of the Register of Deeds for Lane
} _
County, Oregon, that owner agrees to promptly repair and restore its building and the Common
Area on its Site to at least its condition immediately preceding the loss If any Owner sustains
as `
aw,
a casualty Ions to a building and/or Common Area on its Site after that date, that Owner may
i,
elect either to repair and restore its budding on the site or. raze the remaining portion of the
'
1
budding, remove the debris, and cover thesrea from which the building was removed with
landscaping, asphalt or some other dastcap material.,
A{
Additionally, in the event an Owner ("Non Restoring Owner) elects not to restore and
thereafter maintain its building and the portions of the Common Areas located within IN site
wj
after the expiation of such twenty-five (25) year period, then any Owner may, at its sole'!
s ,
expense, restore and thereafter maintain those portions of the Common Areas located within the
Sit
Non -Restoring Owner's Site. Each Owner hereby grants to the other Owners easement rights
WC,
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over such Owner's Site in order to perforin such restoration and maintenance of such Common
, ,
Areas.
'#
ARTICLE IX
'..y'.
CONDEMNATION
9.1 Condemnation Awnrds If all or any part of the Enure Parcel is condemned or
+='y
man by any duly communist red authority for a public' or quasi -public use, then that portion of the
}aj
resulting award attributable to the value of: any land within the Common Areas so taken shall
be payable orgy to the owner thereof and no claim thereto shall be made by the other owner,
4
provided,. however, that all other owners may file collateral claims with the condemning..
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authority,, over and above Ne value of the land within the Common Areas so taken, to the extent
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of any damage suffered by the Sites of such other owners resulting from the severance of the.:
appurtenant Common Areas so condemned or taken. The owner of the Common Areas $o-
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condemned or taken' shall promptly repair and restore the remaining portion of the Common=
Areas owned by such owner as near as practicable to the condition of same immediately prior
5=i
to such condemnation ortaking and without contribution from any other owner. Nothingr
U3'..
contained herein shalt require any owner to construct other it= a ground -level parking lot
1114
e 1.ill
CROSS -EASEMENT AGREP.MENT - 20
IS
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9513917 : I;
ARTICLE X
ENVIRONMENTAL MATTERS
10:1 Duties of Use Except as provided in Section 10.3, neither the Owners nor any '
Occupants) shall release; generate, use, store, dump, transport, handle or dispose of any
Hazardous Material within the Entire Parcel or otherwise permit the presence of any Hazardous .
Material on under, or about the Entire Parcel or transport any Hazardous Material to or fromr
the. Entire Parcel. Any such use, handling or storage pent ted under Section: 10.03 sbell be Is
accordancewith all Environmental laws and all other applicable laws, ordinances; Eales and
regulationsnow orhereafter promulgated by any governmental authorityhaving jurisdiction
thereof.. Neither the Owners nor any Occupont(s) shall install operate or maintain any above,
below or at grade tank, sump; pit, pond, lagoon or other storage or treatment vessel or device
on or about the Entire Parcel. unless plans therefor have been submitted to and approved by. the
Owners pursuant he Section 10.2 hereof;
Each Owner with respect to Its. Site shall immediately notify the other Owners by,:
providing a copy of the fallowing with respect to such Owner's Site: (i) any notice of violation
orpotential or alleged violation of any laws, ordinances or regulations which the Owner shall
have received from -any governmental agency concerning the use, storage, release sullen
disposal: of Hazardous Materials;(it) my and all inquiry,investigation; enforcement, cleanup;`
removal or. other governmental or regulatory acdow instituted or duemened relating to such
Site(s); (iii) all claims made orthreatened. by any third patty relating to any Hazardous
Materials; and (iv) any release of Hazardous Materials on or about the Entire Parcel which such
Owner (mows of or reasonably believes may have occurred.
t
10.2 ;Specula Subsrnnces. Neither any Owner nor any Occupants) nor any Permittee
shall introduce, or permit .any other Person m introduce, say friable asbestos, radioactive
material; was formaldehyde: to. insulation ardevices containing polychlorinated biphenyls
(PCll into anyportion of the Entire Parcel ;a ?
10.3 Permitted Use, torave, Handling d Disposal of Hygirdoors M t 1
Notwithstanding anything contained in Section 10.1 to the contrary, any Owner or any other
Occupant(s) or Peroduce may use products containing Hazardous Materials end equipment fueled
byor containing Hazardous Materials in, on or about such Owner's Site or the site occupied by +'
such Occupant or Permittee or the Common Area to the extent such products and/or equipment -
am incident to the normal operations of vehicles. Examples of such products and equipment
include, but are not limited to, gasoline and petroleum products used to fuel and/or lubricateM' i+
vehicles. In addition, notwithstanding anything contained in Section 10.1 to the contrary, the
Owners or Occuptau(s) may merchandise products, such as pants,oils, solvents, sealers, -
adhesives and finishes, fertilizers, insecticides and rodent poisons and the like, which may
contain Hazardous Materials, so long as such produces one frequently merchandised in general
merchandise department. stores and supermarkets.
CROSS -EASEMENT AGREEMENT - 21 n `
(ii) the Owner or Occupaat provides the other Owners with such security as may be reasonablyti
�?
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required by the Owners to help secure such Owner's or Occupant's performance of its
,
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obligations; under Seclwa 10.4, and (iii) such Owner or "Occupant satisfies any other
mquuemeotu any other Owner may reasonably impose with respect to the Owner's or an
�r {
Occupant's use of the subject Hazardous Materials 7
9 r
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10.4. Cleanup of Hazardous Materials. In the event Hazardoos Materials aze released
{
within the Entire Parcel in violation of any Environmental Law and such release occurred as a
'- ',
direct or indirect result of an Owner's or Occupant's use, handling, storage, or murp ortation
vt±Ys
of sock Hazardous Material, as between the Owners, such Owner or Occupant engaged in such
{ .
activity shall be solely responsible and shall be liable for the prompt cleanup and remediation.
of my resulting contamination and all claims, costs, expenses (including reasonable attorney and
"
consultant fees) and damages, including consequential damages suffered by the: other Owners
and Occupants.
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ARTICLE XI
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Sy1RiATION AND TERMINATTONUt
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11.1 Duration. 'Phe easemen6, covenants, restrictionsio_ns and other provisions of this
Agreement shall be of peryetuel duration.
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11.2. Amendment This Agreement, or any easement, etunud d, restriction or
undertaking contained herein, may be terminated, extended or amended as to each of the
n5
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po ions of the Entire: Pared only by the recording of the appropriate document in the Office of
the Register of Deeds of Lure County, Oregon; which document must be executed by all of the
ea; .
Parties and mortgagees; and other holders of recorded interests affected thereby, as of the date
°
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of such document, of the Entire Parcel.
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ARTICLE XII
NOT A PUBLIC DEDICATION
{ 1,
12x1 Nothing contained N this Agreement shall, or shall be deemed to, constitute a gift
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or dedication of any portion of the Enfire Parcel to the general public or for the benefit of the
�4
CROSS -EASEMENT AGREEMENT - 22
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ter of Deeds of Lane County,': Oregon
ARTICLE XIV
ARTICLE XV
WAIVER 9
CSFVERAgILITY
permitted by law.
-�
AgTICLE XVII
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APPLICABLE LAW
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17.1 This Agreement shall be conswed and enforced In accordance
with the laws of the
aI
Stale of Oregon.
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CROSS -EASEMENT AGREEMENT -23
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Real Esute
9513917
With a Copy to-
t'
Holland & Hart
ATTN: Iarry.E.'Prince `
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P. O. Box 2527.: _ t
..Sorsa, ID83701:
Fax No.: 208-343-8869 l '
Any notice given pursuant to this Agreement shall be deemed effective the day it is
..personally delivered or transmitted by facsimile, the day after it is delivered to the overnight 1
delivery service, or three business days atter the date it is deposited in the United States marl
system. `
.ARTICLE XX
All
MISCELLANEOUS
A 20.1 Relationship. Naming contained N this Agreement and no act of any Owners)
`-) shall be deemed or construed to create the relationship of principal and agent, partnership, joint
a * venture or anyassociation between Owners, nor shall anything contained in this Agreement or
..any act of any Owner be intended nor construed to rentler any parry liable for the debts or 2
o obligations of any other Owner.
201 Unavoidable Delays. The time within which a patty shall be required to perform
any not under this Agreement, other than the payment of money, shall be extended by a period
".`^
a of Hine equal to the number'oj days during which performance of such act is unavoidably
delayed by strikes, lockouu; aftsgf Gad, governmental restrictions, failure or inability to secure
materials or labor by reason of shortages or priority or smiltur regulation ororder of any
; t governmental or regulatory body, enemy action, civil disturbance, fire, unavoidable casualties,
. j
: y injunction or order of my court having Jurisdiction over s patty without regmd to me basis for is
"'d such injunction. or order or; my other cause beyond the reasonable control ofsuch party F
excluding, however, the inability or failure of any party to obtain any financing which may be 4
necessary to carry out its obligations Notwithstanding the foregoing, unkes within thirty (30)
days after the event giving rise to such claim shell have occurred, the parry which would be x
entitled in such extension shall give notice to the amen party(ies) of (i) its dorm to an extension, 1
yand hi) the mason for such claim, there shall be excluded from the computation the number of a
b:1 days by which the time for performance of the net in question shall be extended, the number of
{ r, days which have elapsed between the occurrence of such events and the actual giving of nonce
n
20.3 E514 1 C 'fl M d C II Each Owner shall, from time -to -time,
sr upon not less man twenty (20) days written.ninke from any. other Owner, execute and deliver
to such other Owner a certificate (in recordable form) stating that this Agreement is unmodified ,
> t and in full force and effect or, if modified, that this Agreement is in full force and effect as 06
'd+ modified and stating the modifications and whether or not, to the best of the knowledge of the t
R
-1 CROSS -BASEMENT AGREEMENT -.25
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z@ = the perfcommoz of any obligations either the Prime Lessee or the Prime Lessor shall have under
=.I.s this Agreement and the Prime. Lessor shall be relieved of my obligation for the performance of
' } or Lability for the restrictions set forth herein relating to either McKay or Wm man or its
respective Site -
20.5 Legal Action If either Parry breaches any provision sof this Agreement, then the
other Patty may indinte legal action against the defaulting Party for specific performance,
injunction, declaratory relief, damages, or any; other remedy provided by law or equity. In
of addition to the recovery of any such sum or sums expended on behalf of the defaulting Party,
,j the prevailing Party shall be entitled to recover from the losing Party such amount as the court
q..-= may adjudge to be reasonable attorneys' feesfor the services tendered to the prevailing Patty
in any such action -.
*r`'f 20.6 Third Parties. The rights privileges, or immunities conferred hereunder are for
i the benefit of the Parties and. not for any third perry.
20.7 Thae of Rasping . . Time is of the cascnce with respect to the performance of each
of the covenants and.. agreements contained in this Declaration
't= IN WITNESS WHEREOF, the panics hereto have executed this Cross -Easement
H
Agreement az of the drip and year ❑csc above writer.
MCICAY INVESTMENT COMPANY,
tFk an Oregon general partnership
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si
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I. Dou Ids cKay
Gerat Partner
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CROSS -EASEMENT AGREEMENT - 26
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Wdtmn D. Long
PresideWilliam
STATE OF OREGON, l )`
)Ss.
County of
known or proved m me m be a partner Ot me y Iry VCJrMC1V rJ LVwirHly i, am u,cgua
genand partnership, and aclmowledged to me that be executed the foregoing instrument on behalf
'j
as a general partner of McKay Investment Company. ,
'.
IN WITNESS WHEREOF, I have hereunto set my hand and arfaed my official seal the
g
day and year in this certificate fust above widen
i q
ppOpp( �I�LppE��pp
PUBLIC OmNNN
Nom[y, Public
Residing atge`'
gSyIGN Nb a15W1
NYNNLAflv
YY IaYY6t519Y UAN5 NNF 121619
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CROSS -EASEMENT AGREEMENT - 27
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IN WITNESS. WHEREOF. I have hereunto set my hand and affixed my official seal die
day: and year in this certificate foss above written.
=010164Lseal. Notry PubllnppMLO -OK IN Roiling at tlz'- 0. 0169dtes MfI;tom COmnt Expires b. i� YG
STATE OF OREGON, )..
)ss.
County of S )
1
On this 9°r' day 9f fir:.. e , 1995 before me,✓
cxccume memregomg imnuo crn m a.,� y .......... . ......•.. -.. _._.-. r-----_
of McRay Investment Company.
' IN WffNESS WHEREOF, Ihave hereunto set my hand and
affixed my official seal the
day and year in this cettlficam first above written/'
or 10 SFdL
Notary Pdblic
ppilpauqqa Mm
NOTAPY nOBLIC-aPEGON
Residing at
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CROSS -EASEMENT AGREEMENT -28
S
"'_ feet to°the (place ofVbeginning, �inSpringfield, `,:Lane County,
Oregon. said parcel contains 108,757 square feet, more or less.
(Metes and Bounds Description for Parcel 3)
a Bfinnan at a
e point that is North 58006'33 West 500.42 feet and
South 6°46'20.' West 356.78 feet from the Braes Cap marking the
rl Northeast Corner of the A.M. Steven's Donation Land Claim No. 69,
in Township17 South, singe 3 West of the Willamette Meridian;
`run thence along the arc of a 294.53 foot radius curve to :the
=Rg right, the long chord of which bears North Ba°50':8' East 1143.60
feet; thence'South'37°02'57 West 141.27 fast;`thance South
52°57'03' Eaet 20.00ifeet; thence.South 37102115V West 493.45
fit .feet; thence. South 89057.' East 62.90, feed thence South 0603,'
is .West 170.24 feet; thence North 89057' West 317.14 feet; thence
-North 44057': West 14.14 feet; thence North 0-03' East 145.71
ii feet; thence. along the arc of a 190.00 foot radius curve to the
.,i. -left, the long. chord of which bears North 23015155' West 150.88
feet; thence<North 0°17115" West 10.59 feet; thence North
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10009128" West 74.61 feet; thence North 61°00': West 9.25 feet;
thence North 43°31.469 East 105.57 feet; thence long the arc of
M a181.47 'foot radius curve to theleft, the long chord of which
bear. North 85°11'26' East 132.78 feet; thence North 63°43'53
East 402.22 feet to the place of beginning, in Springfield, Lane
y County, Oregon. said parcel contains 229,914 square feet, more
or less.
f+ry
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EXISTING
SUPPORTS
DOUBLE
FACE PYLON,
SIGN
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ALTERNATE-
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WAREMART
-SPRINGFIELD,
FOODS
OREGON
IMAGE NATIONAL INC. 1/30/95
WM1399
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E A S E IT g-1, T fi$iU521'7 ' 7
THIS x1IDENTURE MADE and entered into this 15rhay of Tanury 19 87 by
19B5 NOATNRGS'! ENVEETOAS.
d belre - u California limiiad ParLnexship
hereinafter referred to as the Crantors, and THE CITY OF SPRINGFIELD, a municipal corporation,
in Lane County, Oregon, hereinafter referred to as the Grantee.
'41THESSETH: Inc sideration of the acceptance by Grantee and the use of holding of said
easement for present or future public use by Grantee, Grantors, hereby grant, bargain, sell
End convey unto the Grantee, a perpesual lolompent /o.ro feet in ai dth, together with the
right to g0 upon said easement area hereinafter described for purpose of constructing, re -
cc instructing,
-c0nstructing, maintaining and using a_aaaaag�atorm degrade facility which may
hereafter be installed an the following described property, to -wit:
A 10.0 foot wide strip of land lying 5.0 feet on each side of the following described
line:
All at a paint on the centerline of 10th Street, said point being North 090 57'
"est 935.4 feet and North 900 OB' East 1461.0 feet from the Southeast corner of the
A.M. Powers Donation Land Claim No. 699, Township 17 South, Range 3 West, Willamette
Meridian, and running thence North OO 03' Poll 53.17 feet; thence South 890 57' East
30.0 feet to theEasterly marginof 18th Street; thence along the arc of a 190.0 fact
radius wive left (Chu chord 0f which bears North 120 42' 55" West 83.97 feet) a
distance of 84.67 feet to the true Paint of Beginning: thence North 080 00' East 245
feet to the South right -de -way line of the 'W Street finodway channel and there ter-
minating. 205SA001 01/30/87 PEC 4.00
sac 0014s
TO HAVE AND TO HOLD the above easement to the said Grantee, its successors and assigns
forever.
IN RiON P.ETO, tM1 raptors d0 coy g and n of to the of Springfield, a
ceps tr 'ion eas
an of feet in w h ,O and a upping the
de and the fu length a he foremen 'anea an escn perpetual c9t for the
Pa a of gi a a dur athe cons fru ion of toren nage Poplin and/or
son it
ewer I In theare petual a Ad t I
1VE ANO TO w LD sat ns frac n eCreatio unto the said City o ri a_ d and to its
and ass. s, dun the co Creation the starm���MM//or sani n ew Upon the
construct f the s m drain facil try an d/omea nary X1.101QI its ac s Cance r use,
the construct ement reid np.. shal i�be�o \.
IN WITNESS WHEREOF, the Grantors above named have hereunto set their hands and seals this
150h day of C.—ory 19 87
1985 NOATIII�ln[SS INVEBT00.5, n Calil oxnia iimited pail—rahlp
nv. Ce6 ,UTegq�ict. (SEAL) (SEAL)
By: Ni/tMp$l�el S!t Ox'axL
S
E147fave Vice President (SEAL) (SEAL)
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STATE le a ,,trarf�p ss. Personally appeared d d above named and
acknowledged the foregoing instrumtnt to he (� voluntary act and d/eed. Before me:
Bated 0)bdlt 16' A.D., 19
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