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HomeMy WebLinkAboutCT 97-09; La Costa Lucky Sav-On Shopping Center; Tentative Map (CT) (9)GRANT TUCKER PROPERTIES September 21,1999 -, STEVEN P. GRANT LARRY TUCKER Adrienne Landers City of Carlsbad 2075 Las Palmas Drive Carlsbad, CA 92009-1576 Re: Planning Commission Number 4311, Case Number Planning Condition 23 Dear Dee: Enclosed please find a revised version of the Declaration of Restrictions and Grant of Easements for La Costa Plaza between American Stores Properties, Inc. and Grant Tucker Properties pursuant to Planning Condition 23. We have revised Article V as you requested. Additionally, although it does not affect any of the conditions required by the City, we have added a Paragraph (d) at Page 21, and relabeled old Paragraph (d) to Paragraph (e). Other than that, there have been no changes. As I mentioned to you in a telephone conversation a while ago, the engineering department had no comments on the Declaration. Accordingly, we would appreciate it if you would issue a written approval of the Declaration. We will then to proceed to have the Declaration recorded so that we can meet the conditions necessary in order for us to pull our permits. Once again, I appreciate how promptly you reviewed and commented upon the Declaration. Very truly yours, Grant Tucker Properties Larry Tucker LT/trb Enclosure xc: Jeff Dierck, Albertson's Robin Edwards, Esq. One Upper Newport Plaza, P.O. Box 7974, Newport Beach, CA 92658 (949) 852-5800 (949) 752 0885 Fax RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Sonnenschein Nath & Rosenthal 685 Market Street San Francisco, CA 94105 Attention: Robin M. Edwards DECLARATION OF RESTRICTIONS AND GRANT OF EASEMENTS LA COSTA PLAZA between AMERICAN STORES PROPERTIES, INC. and GRANT TUCKER PROPERTIES DATE: STORE NO: LOCATION: , 1999 121-283 NEC El Camino Real/La Costa Avenue Carlsbad, California 92009 STORE NO. 121-283 Defined Term Page Agreement 1 Architectural Theme 7 ASPI Parcels 1 Bankruptcy Court 32 Building Area 3 CAM 11 CAM Budget 11 CAM Expenses 11 City 1 Communications Equipment 10 Construction Type 7 Effective Rate 29 floor area 6 GTP Parcels 1 Indemnifying Party 23 Defined Term Page Indemnified Party(ies) 23 LCWD Property 4 Manager 11 Maximum Building Area 6 Mezzanine 6 Parcel Map 5 prevailing party 32 Pro Rata Share 11 Restrictions 2 Seasonal Outdoor Sales Area 11 Service Facility 5 Shopping Center 1 Site Plan 1 Reconciliation Share 12 STORE NO. 121-283 4175999W8 DECLARATION OF RESTRICTIONS AND GRANT OF EASEMENTS THIS DECLARATION OF RESTRICTIONS AND GRANT OF EASEMENTS (this "Agreement") is made as of the day of , 1999 by and between AMERICAN STORES PROPERTIES, INC., a Delaware corporation ("ASPI") and GRANT TUCKER PROPERTIES, a California limited liability company ("GTP"). ASPI and GTP are sometimes hereinafter collectively referred to as the "Parties" or individually, a "Party", or collectively as "Owners" or individually, an "Owner." RECITALS WHEREAS, this Agreement concerns that certain real property located at the northeast corner of El Camino Real and La Costa Avenue, City of Carlsbad (the "City"), County of San Diego, State of California, as shown on the Site Plan attached hereto as Exhibit A (the "Site Plan"), which real property is hereinafter referred to as the "Shopping Center" and the legal description of which is contained on Exhibit B attached hereto; and WHEREAS, ASPI is, or will be at the time of the recordation of this Agreement, the Owner of those portions of the Shopping Center designated as Parcels 1 and 2 on the Site Plan and may be the Owner of Parcels 3 and 6 and as more particularly described on Exhibit C (collectively to the extent owned by ASPI, the "ASPI Parcels"); and WHEREAS, GTP is, or will be at the time of the recordation of this Agreement, the Owner of that portion of the Shopping Center designated as Parcels 4, 5 and 7 on the Site Plan and may be the Owner of Parcels 3 and 6 and as more particularly described on Exhibit D (collectively to the extent owned by GTP, the "GTP Parcels"); and STORE NO. 121-283 4175999W8 09/03/99 WHEREAS, the Parties want each of their Parcels to be developed together for the mutual benefit of the Parties and of each and all of the Parcels, and accordingly do hereby establish a general plan for their improvement, protection, development, maintenance and use as a commercial shopping center and for such purposes the Parties do hereby establish easements, covenants, restrictions, liens and charges (collectively, the "Restrictions"), as are hereinafter set forth, subject to which all of the Shopping Center shall be improved, held, exchanged, leased, sold and/or conveyed; WHEREAS, each of the Restrictions (i) is subject to easements and other matters of record, (ii) is imposed upon each Parcel in the Shopping Center as a mutual equitable servitude in favor of the other Parcels, (iii) shall create reciprocal rights and obligations between and among each of the Owners; and (iv) shall create a privity of contract and estate between and among the Owners and their heirs, successors and assigns; WHEREAS, each of the Restrictions are intended to and shall run with the land, and each Parcel is affected and burdened by the covenants of its Owner for the benefit of the other Parcels in the Shopping Center and the Owners intend that the Restrictions shall also be imposed pursuant to California Civil Code Section 1468; WHEREAS, the Owners intend that the successive owners of all or any portion of any Parcel are bound hereby for the benefit of the other Parcels in the Shopping Center and any portion thereof and the Owners thereof. NOW, THEREFORE, in consideration of the foregoing, and the covenants and agreements set forth herein, the Parties agree as follows: STORE NO. 121-283 09/03/99 I. PRELIMINARY 1. Incorporation. The above Recitals are incorporated herein and made a part hereof. 2. Definitions. a. Building Area. The Building Area in the Shopping Center is the portion thereof upon which buildings may be constructed. The Building Area for Parcels 1 and 3-7 are shown as buildings on the Site Plan. The Building Area for Parcel 2 is shown on the Site Plan as outlined and identified by the phrase "Building Envelope" on the Site Plan. b. Common Area. The Common Area is all real property within the Shopping Center except the Building Area; provided, those portions of the Building Area upon which buildings are not constructed shall be deemed to be Common Area until such time as construction of buildings thereon commences; provided further, however, at the election of the Owner of Parcel 5, an area not exceeding eight hundred (800) square feet on the west side of Parcel 5 as shown on the Site Plan may from time to time become a Service Facility within the exclusive control of the Owner of Parcel 5 (the "Parcel 5 Outdoor Eating Area"), which said Owner can return such area to Common Area at any time by written notice to the Owners. c. Hazardous Materials. Hazardous Materials means any substance or material which is defined as or included in the definition of "hazardous substances", "hazardous wastes", "hazardous materials", "extremely hazardous waste", "acutely STORE NO. 121-283 3 '99W-8 09/03/99 hazardous waste", "restricted hazardous waste", "toxic substances" or "known to cause cancer or reproductive toxicity" (or words of similar import), petroleum products (including crude oil or any fraction thereof) or any other chemical, substance or material which is prohibited, limited or regulated under any federal, state or local law, ordinance, regulation, order, permit, license, decree, common law or treaty now or hereafter in force regulating, relating to or imposing liability or standards concerning materials or substances known or suspected to be toxic or hazardous to health or safety, the environment or natural resources. d. ASPI Affiliate. An ASPI Affiliate means any entity which controls, is controlled by or is under common control with American Stores Company, a Delaware corporation, or any successor thereto by merger, consolidation or acquisition of its assets. e. LCWD. Leucadia County Water District and its successors in interest in real property contiguous with the Shopping Center commonly known as 1960 La Costa Avenue, Carlsbad, California 92009 (the "LCWD Property"). f. Owner of the ASPI Parcel. The Owner of the ASPI Parcel means ASPI and its respective assigns, grantees and successors in interest having fee record title to all or any portion of Parcel 1. In the event any ASPI Affiliate does not have record fee title to the ASPI Parcel, but is occupying all or a portion of such ASPI Parcel pursuant to a lease which among other things obligates an ASPI Affiliate to perform the duties of ASPI hereunder, (i) all notices required to be given to, and all consents and approvals which are required to be obtained from, the Owner of the ASPI Parcel must also be given or obtained from as the case may be, the ASPI Affiliate; (ii) such ASPI Affiliate may independently of the Owner of the ASPI Parcel enforce the terms of this Agreement in STORE NO. 121-283 4 4175999W-8 the case of a default or violation hereunder and seek any remedy available hereunder arising from such default or violation (including, but not limited to, the right to cure such default and the remedies available to an Owner hereunder arising by virtue of such cure if such cure was made by such ASPI Affiliate); and (iii) this Agreement may not be amended or terminated, nor any provision hereunder for the benefit of the Owner of the ASPI Parcel or an ASPI Affiliate waived, without the prior written consent of such ASPI Affiliate. g. Owner. Owner means ASPI, GTP and any other person or entity having fee record title to any Parcel in the Shopping Center and their respective assigns, grantees, and successors in interest. h. Parcel. The Shopping Center is subdivided into multiple parcels as shown on Tentative Parcel Map (the "Parcel Map"). Where referred to herein by number, such designation shall correspond to the parcel designations on the Parcel Map. i. "Service Facility". Service Facility means loading docks, trash compactors, bottle storage areas, exterior coolers, electrical and refrigeration facilities, driveup or drive through facilities, fueling islands, outdoor eating areas and other similar service facilities dedicated to the exclusive use of the occupant of the Parcel upon which such Service Facility is located. j. Utilities. Utilities shall include without limitation, gas, electricity, storm and sanitary sewer, domestic water, fire sprinkler water, irrigation water, telephone services and cable (for TV and other communication services). STORE NO. 121-283 4175999W-8 II. BUILDING AREA 1. Building Area. Except as otherwise permitted by this Agreement, no building or other structure shall be constructed upon any Parcel in the Shopping Center other than within the Building Area on each Parcel. Notwithstanding the foregoing, canopies and roof overhangs (including supporting columns or pillars), normal foundations, trash enclosures, and loading and delivery docks, covered areas attached to such docks, required emergency exits (including stairs, landings, footings and foundations associated therewith), and doors for ingress and egress may project from any building or structure up to a distance of twenty-five (25) feet over or outside of the Building Area on any Parcel; provided, any such projection or extension must comply with all applicable laws, rules, ordinances and regulations of every governmental body having jurisdiction over the Shopping Center; and provided further, no such extension or projection shall be allowed if it (i) reduces the number of parking spaces or materially alters the parking configuration or vehicular and pedestrian circulation, and/or access in and through the entire Shopping Center as shown on the Site Plan, or (ii) interferes with or prevents the location, placement or construction of a building or structure in the Building Area on any Parcel, or (iii) encroaches on, over or under any portion of Parcel 1 or any drive lane. Except as otherwise indicated on the Site Plan, the exterior walls of adjacent buildings constructed in the Shopping Center shall abut (i.e., touch), except such exterior walls may have a gap of no more than four (4) inches. Such gap, if any, shall be properly flashed so that the building exteriors appear to be continuous and without any break. No portion of any building owned by ASPI or located on the ASPI Parcels may be used as a common wall. 2. Maximum Building Area. The total square footage of floor area of all buildings and other structures within the Building Area on any Parcel in the Shopping Center may not STORE NO. 121-283 6 4175999W-8 exceed the maximum amount designated for each such Parcel on the Site Plan; provided that the Building Area on either of Parcels 5 or 6 may increase from that shown on the Site Plan so long as the aggregate Building Area on Parcels 5 and 6 does not exceed thirteen thousand two hundred (13,200) square feet. Such maximum building area for each Parcel is hereinafter referred to as "Maximum Building Area". For purposes hereof, "floor area" shall be defined as the area within the exterior surfaces of the exterior walls of any building or structure, excluding any "Mezzanine" (i.e., any floor area above the ground floor that does not extend over the entire ground floor area of the building and which is used in connection with the primary commercial use of such building, but is not used for sales area or generally open to the public), outdoor seating areas, trash enclosures, loading docks, covered areas attached to loading docks, doors for ingress and egress, canopies and roof overhangs (including supporting columns or pillars) and required emergency exits (including stairs, landings, footings and foundations associated therewith). The Maximum Building Area for any Parcel is only a limitation on building size and imposes no obligation whatsoever on the Owner of such Parcel to place, erect or construct a building or structure thereon having the Maximum Building Area. 3. Design and Construction of Buildings. All buildings constructed in the Shopping Center shall be designed so that the exterior elevation of each building will be architecturally and aesthetically compatible with the others, including the height, color, materials, design and architectural theme (including signs located thereon), but in no event shall any building exceed one (1) story plus Mezzanine nor a height of thirty-three feet (33) feet (collectively, the "Architectural Theme"); provided that the building on Parcel 1 may be forty (40) feet in height. Notwithstanding, buildings may be the height contemplated by the original conceptual development plans for the Shopping Center approved by the City. In the event any buildings are STORE NO. 121-283 7 4175999W-8 09/03/99 constructed within the Shopping Center which are not part of the originally approved development of the Shopping Center, prior to the commencement of such construction, plans and samples showing the Architectural Theme of such building or buildings shall be submitted to the Owner of the ASPI Parcel for its approval, which approval shall not be unreasonably withheld or delayed. All building construction must be diligently prosecuted to completion, shall be performed in a workmanlike manner and in accordance with the requirements of all governmental authorities having jurisdiction over such work and shall be performed in a manner that does not interfere with the operations of a business on Parcel 1. The Parties acknowledge that the Owner of the ASPI Parcel may construct buildings on Parcel 1 using Type V-N, II-N or III-N (nonrated) construction as defined in the 1988 edition of the Uniform Building Code or its local equivalent (the "Construction Type") or some other construction technique requiring sprinklering of other buildings in the Shopping Center. All other buildings constructed in the Shopping Center shall be constructed to comply with all governmental requirements (including sprinklering and setback requirements) which arise by reason of such use of the Construction Type or any other construction technique used in the buildings on Parcel 1. If an Owner or its tenant commences construction of a building within the Shopping Center, but such construction ceases prior to the completion of the building for a period in excess of one hundred twenty (120) days, and the Owner of the ASPI Parcel in its reasonable discretion determines that such unfinished building creates an unsafe or unsightly condition detrimental to the Shopping Center, the Owner of the ASPI Parcel may construct a barricade around such building. Upon any such work by the Owner of the ASPI Parcel, the Owner upon whose Parcel the building is located shall reimburse the Owner of the ASPI Parcel upon demand for monies so expended. STORE NO. 121-283 8 09/03/99 III. COMMON AREA 1. Common Area Use. The Common Area shall be used for vehicular access, circulation and parking, pedestrian traffic and the use of customers, invitees, licensees, agents and employees of the Owners and business occupants of the buildings constructed in the Building Area on the Parcels in the Shopping Center, and for the servicing and supplying of such businesses. In addition, the Common Area may be used (i) on a temporary basis, as a staging area in connection with the construction and repair of any buildings or Common Area in the Shopping Center so long as such use does not occupy more area than is reasonably required nor unreasonably restrict access to and from or the conduct of business within the buildings in the Shopping Center or access to and from the adjacent streets; (ii) in connection with the construction and maintenance of utility lines so long as such activity is undertaken in strict compliance with the requirements of Section IV.2 hereof; and (iii) for any other use required by any governmental authority having jurisdiction thereof. No building, barricade or structure may be placed, erected or constructed within the Common Area on any Parcel except loading and delivery docks and covered areas attached to such docks, trash enclosures, pylon and other free-standing signs (to the extent not herein prohibited) and directional signs, bumper guards or curbs, paving, landscaping and landscape planters, lighting standards, driveways, sidewalks, walkways, parking stalls, columns or pillars supporting roof overhangs, and any other improvements as may be required under applicable laws, rules, ordinances and regulations of any governmental body having jurisdiction over the Shopping Center. 2. Parking. The number of parking spaces maintained on each Parcel and the configuration thereof shall be as shown on the Site Plan. There shall be no charge or other STORE NO. 121-283 9 4175999W-8 09/03/99 validation for parking in the Common Area without the prior written consent of the Owner of the ASPI Parcel, except as required by law. 3. Employee Parking. Specific areas within the Common Area of the Shopping Center to be used for motor vehicle parking purposes by employees of occupants of the Shopping Center may be designated from time to time by written consent of the Owners of seventy-five percent (75%) of the land area in the Shopping Center, which must include the consent of the Owner of the ASPI Parcel. Initially, Parcel 7 shall be the employee parking area. In the event employee parking areas are designated as provided herein, employees of any Owner, tenant or other occupant of any building in the Shopping Center shall use only those portions of the Common Area designated for such employee motor vehicle parking purposes. The authority herein granted shall be exercised in such manner as not to discriminate against any Owner or commercial establishment in the Shopping Center. Until such employee parking areas are designated, employees of the occupant of Parcel 1 shall not park in any portion of the Common Area other than on Parcel 1, employees of the occupant of Parcel 2 shall not park in any portion of the Common Area other than on Parcel 2 and employees of occupants of the GTP Parcels shall not park in any portion of the Common Area other than on the GTP Parcels. 4. General. The Owner of each Parcel may use and cause to be used the Common Area on its Parcel exclusively for the uses specified herein and in such manner as will not unreasonably interfere with the primary purpose of the Common Area, which is to provide for parking and access for the Owners, customers, invitees, employees, agents and licensees of the businesses located within the buildings in the Shopping Center and for the servicing and supplying of such businesses. There shall be no sale or display of merchandise of any kind in any portion of the Common Area nor on any sidewalks adjacent to any buildings without the STORE NO. 121-283 10 4175999W-8 09/03/99 prior written consent of the Owner of the ASPI Parcel. Notwithstanding the foregoing, the Owner of the ASPI Parcel or the occupant thereof may establish and operate (i) on the portion of the Common Area designated "Recycling Center" on the Site Plan a recycling center for the collection of items intended for recycling, such as (but not limited to) newspapers, bottles and aluminum cans, provided such Owner shall maintain such center in good condition, appearance and repair, (ii) in the portion of the Common Area designated "Seasonal Outdoor Sales Area" on the Site Plan, a Christmas tree sales area during the period commencing December 1st and continuing through December 24th of each year, a Spring garden and/or nursery sales area during any periods between February and September of each year and/or a pumpkin sales area during any periods within the month of October of each year. The Owner of the ASPI Parcel or the occupant thereof may use reasonable portions of the sidewalk abutting the building on Parcel 1 at any time for the installation of public telephones, storage of shopping carts, and display and sale of merchandise. The portions of the Common Area used for a Recycling Center or as a Seasonal Outdoor Sales Area shall be maintained solely by the Owner of the ASPI Parcel at its sole expense during the times such areas are used for such purposes. In addition, the Owner of the ASPI Parcel or the occupant thereof may install and operate Communications Equipment in reasonable locations on or about Parcel 1, including upon the roof, wall mounts or poles and supports appurtenant to any building upon Parcel 1. "Communications Equipment" includes without limitation, satellite and microwave dishes, antennas, and laser heads, together with associated equipment and cable. 5. Maintenance and Repair. The Owner of the ASPI Parcel (the "Manager") shall keep or cause all of the facilities located in the Common Area (other than Service Facilities) to be first class in appearance, kept in good repair, clean, safe, functional, presentable, with STORE NO. 121-283 11 09/03/99 landscaped areas vegetated as contemplated by the landscape plan for the shopping center approved by the City, well irrigated and in a neat condition, and adequately lighted. The parking and drive areas shall be maintained in a level, smooth condition with adequate hard surfacing and proper directional signs and striping. Common Area maintenance hereunder is called "CAM". (a) CAM Budget. At least thirty (30) days prior to the opening for business of the building on Parcel 1, and thereafter at least thirty (30) days prior to the commencement of each calendar year, the Manager shall prepare and furnish to each other Owner a budget setting forth its estimate for CAM expenses for the forthcoming calendar year or portion thereof remaining after such opening for business (the "CAM Budget"). If ASPI or an ASPI Affiliate is not the Manager, the CAM Budget shall be subject to the prior written approval of the owner of Parcel 5, which approval shall not be unreasonably withheld or delayed. Any disapproval shall state with specificity the reason for any such disapproval. The CAM Budget shall be based upon bids for all major items of CAM and shall be performed in the most cost efficient manner reasonably possible. No person, firm or entity shall be hired in which the Manager has any direct or indirect financial interest or otherwise represents a conflict of interest. (b) Payment of CAM Expenses. Each Owner shall pay to the Manager on or before the first day of each calendar month its "Pro Rata Share" (defined later) of all CAM Expenses (defined later) as set forth in this Section based on the CAM Budget. The pro rata share of the Owner of Parcel 2 shall be 8.53% of the CAM Expenses, subject to the provisions of Section III.5(d) below. Each other Owner's "Pro Rata Share" shall be based on a fraction, the numerator of which is the square footage of the Building Area on such Owner's Parcel as shown on the Site Plan and the denominator of which is the square footage of the Building Area of the entire Shopping Center as shown on the Site Plan other than Parcel 2, multiplied by 91.47%. STORE NO. 121-283 12 4175999W-8 09/03/99 The cost of illuminating the Lucky Sav-On Monument signs shall be borne 50% by the Parcel 1 Owner, and the remaining 50% by the users thereof. "CAM Expenses" shall mean all sums expended by the Manager in payment for all work reasonably necessary for the first class operation, maintenance, replacement and repair of all facilities (other than Service Facilities) located in the Common Area, including without limitation the following: resurfacing, restriping, cleaning and sweeping the parking areas; trash removal; maintenance, repair and replacement of curbs, gutters, medians, bumpers, Shopping Center monument sign structures (but not individual users' sign scripts), if any, planting and landscaping, irrigation, and lighting and other utilities; retaining and decorative walls, operation, maintenance and repair of any common fire protection systems, storm drainage systems and any other common utility systems; slope repairs; personnel to implement such services including, if reasonably determined to be necessary by the Owner of Parcel 1 and the majority of the other Parcel Owners, the cost of security guards, police and fire protection services; costs of common utility services; public liability insurance for the Common Areas; real property taxes and assessments on Parcel 7; costs to repair damage or destruction on Parcel 7; and an amount equal to ten percent (10%) of the foregoing expenses for each calendar year for the Manager's administration and supervision of the Common Area, except said 10% shall not apply to single capital expenditures in excess of $25,000, and the fee to the manager for procuring common area liability insurance for the Common Area, and for paying real property taxes and assessments on Parcel 7 shall be 5%. Trash disposal or other services or items for the sole benefit of a particular occupant shall not be included in CAM Expenses. Within ninety (90) days after the end of each calendar year, the Manager shall deliver to each Owner a written itemized statement of actual CAM Expenses for such period (the "CAM Reconciliation") and any amounts due from such Owner for its Pro Rata Share of such CAM STORE NO. 121-283 13 4175999YV-8 Expenses and/or any amounts due from the Manager to such Owner (the "Reconciliation Share"). Any Reconciliation Share due from such Owner to the Manager shall be paid within thirty (30) days after delivery to such Owner of such itemized statement. Any Reconciliation Share due from the Manager to an Owner shall be applied to the next monthly payment or payments for CAM Expenses or, at the election of the Manager, paid to such Owner within thirty (30) days after delivery of the CAM Reconciliation. Each Owner may conduct a one-time examination or audit of the accounts and original bills for CAM at any reasonable time within one (1) year after the receipt of the CAM Reconciliation for the calendar year in question, which shall be at its cost, unless such examination or audit reveals a discrepancy in excess of five percent (5%) of such Owner's Pro Rata Share of CAM, in which event the Manager shall pay the cost. (c) Exclusion from Manager's Obligations. The Manager shall not be responsible for the repair or maintenance of the Service Facilities or obtaining public liability insurance therefor, which shall be the sole responsibility of the Owner on whose parcel such Service Facilities are located. In no event shall the Manager have any obligation whatsoever with respect to the cleanup of any Hazardous Materials in the Common Area; the diligent obligation for such cleanup shall be the sole responsibility of an Owner causing a Release (defined later) of Hazardous Materials or on whose Parcel Hazardous Materials may be present, as provided in Section VTT.2. (d) Exclusion of Parcel 2. Further notwithstanding the foregoing, the Owner of Parcel 2 shall be obligated, at its sole cost and expense, to maintain, repair, replace, operate and provide public liability insurance for the facilities in the Common Area located on Parcel 2 in strict accordance with the standards applicable to the Manager set forth in this Section and, except as STORE NO. 121-283 14 09/03/99 provided in the following sentence, the Manager shall have no obligation to maintain, repair, replace, operate or provide public liability insurance for the Common Area located on Parcel 2 or pay any portion of the cost or expense thereof; provided that the Owner of Parcel 2 shall have the right to satisfy such insurance obligation by means of self-insurance to the extent of all or part of the required insurance, but only so long as (i) such Owner shall have a net worth of at least One Hundred Million Dollars ($100,000,000); (ii) such Owner shall, upon request, provide an audited financial statement, prepared in accordance with generally accepted accounting principles, showing the required net worth; and (iii) such self-nsurance provides for loss reserves which are actuarially derived in accordance with accepted standards of the insurance industry and accrued (i.e., charged against earnings) or otherwise funded. Without limiting the generality of the foregoing, the owner of Parcel 2 shall comply, at such Owner's sole expense, with all National Pollutant Discharge Elimination System requirements imposed by the regulatory agency or agencies having jurisdiction. The Manager shall nevertheless cause the entire Common Area, including the Common Area on Parcel 2 (but excluding the fuel islands), to be adequately lighted and shall maintain the planting and landscaping on Parcel 2, and the Owner of Parcel 2 shall pay to the Manager its Pro Rata Share of CAM Expenses relating to the lighting of the Common Area and the maintenance of Common Area planting and landscaping only, which payments shall be estimated, paid and reconciled in the manner set forth in this Section III.5. Except with respect to lighting and planting and landscaping, in determining each Owner's Pro Rata Share, the numerator shall be the Building Area in such Owner's Parcel and the denominator shall be the Building Area in the entire Shopping Center, other than Parcel 2. The Owner of Parcel 2 shall not be obligated to pay any other CAM Expenses with respect to any other Parcel. Except STORE NO. 121-283 15 09/03/99 as expressly provided otherwise in this Section III.5(d). Parcel 2 shall be subject to all of the terms and conditions of this Agreement. (e) The Manager shall provide Common Area lighting at all times and at reasonable levels of intensity. In the event that one or more occupants of the Parcel(s) remain(s) open for business after 11:00 p.m. (hereinafter the "after hours occupants"), the Manager shall reasonably allocate to the Owner(s) of the Parcel(s) on which such after-hours occupant(s) are located, as part of CAM expenses, the cost of illuminating the portion of the Common Areas required by such occupants to be illuminated after 11:00 p.m. In making such allocation the Manager shall consider the number of after-hours occupants per Parcel, the duration of the lighting required by each after-hours occupant on each Parcel, and the square feet of Building Area occupied by each such occupant. The Owner of such Parcel occupied by an after-hours occupant shall pay to the Manager the amount of such cost so allocated to such Owner's Parcel. If the Manager is a priority user of after-hours lighting, the Manager shall provide the other Owners with the computation of the after hours lighting billings on a quarterly basis. The Owners of Parcel 1 and Parcel 2 shall each install separate metering for after hours lighting if such Owners operate a 24 hour supermarket or a 24 hour service station operation, and such Owners shall pay such after hours lighting charges directly. (f) As part of the operation of the Common Area, the Manager shall obtain and » maintain general public liability insurance covering the Manager in the discharge of its obligations as Manager hereunder and naming as additional insureds all fee owners of the Parcels or portions thereof and LCWD, its successors and assigns in the LCWD Property. Such insurance shall be written with an insurer licensed to do business in the State of California. The limits of liability of all such insurance shall be $5,000,000 combined single limit. Such STORE NO. 121-283 16 insurance may be in the form of blanket liability coverage. The Manager shall have the right to charge each Owner as part of CAM the premium for the liability insurance maintained pursuant to this provision, but LCWD shall not be charged for such coverage. IV. EASEMENTS 1. Ingress. Egress and Parking. Each Owner, with respect to its Parcel, hereby grants to each other Owner as grantee, for the benefit of each other Owner, and for the use of the Owners and their respective tenants, employees, agents, customers and invitees of such tenants, and for the benefit of the Parcels owned by such grantee and as a burden on the grantor's Parcel, a non-exclusive easement appurtenant to each grantee's Parcel for the purpose of ingress and egress by vehicular and pedestrian traffic and for vehicular parking upon, over, across and through the Common Area within the grantor's Parcel. At the expiration of the Agreement, the ingress and egress easements described in Exhibit E attached hereto shall become perpetual (the "Perpetual Easements"). The foregoing shall not create any rights in any parties other than the Owners. 2. Utility and Other Underground Lines or Facilities. Each Owner, as grantor with respect to its Parcel, hereby grants to each other Owner as grantee, for the benefit of each other Owner and its Parcel, non-exclusive easements appurtenant to the Parcel owned by the grantee, under, through and across the Common Area of the Parcel owned by the grantor for the installation, maintenance, repair and replacement of water drainage systems or structures, water mains, storm drains, sewers, water sprinkler system lines, telephone, cable, communication or electrical conduits or systems, gas mains and other facilities for Utilities necessary for the orderly development and operation of the Common Area and each building in the Shopping Center; provided, the rights granted pursuant to such easements shall at all times be exercised in STORE NO. 121-283 17 4175999W-8 09/03/99 such manner as to cause the least interference with the normal operation of the Shopping Center; and provided further, except in an emergency, the right of any Owner to enter upon the Parcel of another Owner for the exercise of any right pursuant to such easements shall be conditioned upon obtaining the prior written consent of such other Owner, which consent shall not unreasonably be withheld. All such systems, structures, mains, sewers, conduits, lines and other facilities for Utilities shall be installed and maintained below the surface or ground level of such easements. In the event an Owner deems it necessary to cause the installation of a storm drain, electric, cable or communication line, sewer or other Utility line or facility across the Common Area of any other Parcel subsequent to the initial paving and improving thereof, the Owner thereof agrees not to unreasonably withhold the granting of any necessary additional easements; provided, in no event will such installation be permitted if it would unreasonably interfere with the normal operation of any business of the Shopping Center; and provided further, the Owner making or causing such installation shall, at its expense, completely restore all Common Area improvements and surfaces disrupted as a result of such installation. In the event it should be necessary to grant any of the foregoing easements and rights to local utility companies as a condition of their providing or continuing service, such rights shall be granted so long as the Owners required to execute such instruments deem the terms and conditions of such a grant to be acceptable. Any Utilities or underground facilities easements located in the Perpetual Easements shall also become perpetual. 3. Building Encroachments. Each Owner, with respect to its Parcel, hereby grants to each other Owner for the benefit of its Parcel, an easement for any portion of any building or structures on any Parcel which may encroach onto or over an adjoining Parcel; provided, the easement for footings, piers, piles, grade beams, canopies, eaves, roof overhangs and building STORE NO. 121-283 18 09/03/99 encroachments granted herein shall not exceed two (2) feet; and provided further, the encroachment easement shall not extend to encroachments which are intentional or which materially and adversely affect the location, orientation, design or construction of buildings to be constructed on the Building Area of the Parcel upon which the encroachment has taken place, unless first approved in writing by the Owner of the affected Parcel. The easement granted herein shall last so long as the building of which such encroachment is a part is standing, and in the event this Agreement expires first, the easement shall survive such expiration. 4. Emergency Exits. Each Owner, with respect to its Parcel, hereby grants to each other Owner, for the benefit of each other Owner and its respective Parcel: (i) an easement for any portion of any stairs and landings (including any footings and foundations related thereto) constructed in connection with building emergency exits required by any governmental entity, which may encroach onto or over an adjoining Parcel not then occupied by a building; and (ii) an easement for emergency egress from such emergency building exits; provided, the easement for stairs, landings, foundations and footings granted herein shall not exceed six (6) feet. V. USE RESTRICTIONS 1. Business. The types of uses permitted in the Shopping Center shall be of a retail and/or commercial nature found in first class Shopping Centers of a similar size in the metropolitan marketing area in which the Shopping Center is located. Without the prior written consent of the Owner of the ASPI Parcel, which consent may be granted or denied in its sole, subjective discretion, no Parcel (nor any part thereof) in the Shopping Center other than Parcel 1 (and any other Parcel occupied by an ASPI Affiliate) shall be (i) used or occupied as a retail supermarket, drug store or combination thereof, nor (ii) used for the sale of any of the following: (1) fresh or frozen fish or meat; (2) liquor or other alcoholic beverages in package (i.e., off STORE NO. 121-283 19 4175999W-8 09/03/99 premises) form, including but not limited to, beer, wine and ale; (3) fresh produce; (4) baked goods; (5) floral items; (6) any combination of food items sufficient to be commonly known as a convenience food store; (7) take-out meal replacement items (i.e., as sold by Boston Market type operators as opposed to traditional restaurants or fast food outlets); (8) items requiring dispensation by or through a pharmacy or requiring dispensation by or through a registered or licensed pharmacist; (9) photo processing services, except as an incidental part of a business; (10) greeting cards, except as an incidental part of a business; and (11) health and beauty aids, except as an incidental part of a business such as a beauty or manicure salon; provided that the foregoing shall not prohibit the operation in the Shopping Center of the following: (a) restaurants on Parcels 3, 4, 5, 6 and/or 7 (i.e., restaurants shall be deemed to be facilities serving prepared food for on-site consumption and seating not less than twenty- five (25) persons and which may sell food for take-out on an incidental basis), provided that no restaurant may exceed four thousand five hundred (4,500) square feet in size, only one restaurant may exceed three thousand (3,000) square feet in size and no restaurant on Parcel 3 may exceed two thousand four hundred (2,400) square feet in size; (b) businesses selling food at a counter for consumption either on-site or off- site, such as a Subway sandwich shop, bagel store, donut store, ice cream, yogurt or smoothie store, Starbucks or similar coffee store, or similar facility, provided that no such business may exceed two thousand four hundred (2,400) square feet in size; (c) a convenience store not in excess of two thousand seven hundred ninety- six (2,796) square feet in size with sales area not in excess of two thousand two hundred fifty (2,250) square fee operated in connection with a service station on Parcel 2; provided the items sold by such convenience store do not include (i) dairy products in containers larger than half STORE NO. 121-283 20 09/03/99 gallon, (ii) fresh meat, fish, poultry or vegetables, (iii) fresh fruit except in individual containers sold in vending machines, (iv) fresh bread, (v) canned vegetables, fruits, soups or sauces, (vi) frozen foods except frozen food snack items, or (vii) floral items; or (d) one (1) educational facility containing not more than one thousand two hundred (1,200) square feet of floor area and twenty (20) work stations (such as or similar to those operated by Score Learning Corporation) may be located on Parcel 6. (e) Notwithstanding the foregoing, the uses set forth in clauses (a) and (b) above shall not occupy in the aggregate more than eleven thousand (11,000) square feet on Parcels 3, 4, 5, 6 and 7. In addition, none of the following uses shall be conducted in any part of the Shopping Center at any time without the prior written consent of the Owner of the ASPI Parcel and, with respect to paragraphs (i), (ii) (iii) and (vi) through (xi) below, the Owners of Parcel 3, Parcel 4 and Parcel 5, which consent may be granted or denied in their respective sole, subjective discretion: (i) Offices (except as incidental to a permitted retail or commercial business) occupying in excess of an aggregate of eleven thousand (11,000) square feet, provided that no office may exceed four thousand eight hundred (4,800) square feet in size and only one office may exceed three thousand (3,000) square feet in size. For purposes of this clause (i), service offices such as a real estate office, travel agency, optometrist or insurance office shall be considered offices. The meeting or conduct of so called "real estate caravans" shall not be permitted in or from the Shopping Center, (ii) Funeral homes. STORE NO. 121-283 21 4175999W-8 (iii) Any production, manufacturing, industrial, or storage use of any kind or nature, except for storage and/or production of products incidental to the retail sale thereof from the Shopping Center. (iv) Entertainment or recreational facilities. As used herein, "entertainment or recreational facilities" includes, but is not limited to, a bowling alley, skating rink, electronic or mechanical games arcade (except as an incidental use to a retail or commercial business, in which case such use shall be restricted to less than five percent (5%) of the floor area occupied by such business), theater, billiard room or pool hall, health spa or studio or fitness center in excess of two thousand (2,000) square feet in size, massage parlor (except as incidental to a health spa or studio or fitness center), discotheque, dance hall, banquet hall, night club, bar or tavern (except as part of a permitted restaurant), "head shop", pornographic or "adult" store (provided that the sale of adult materials in a book or video store shall not be prohibited if it is an incidental use with no sign, advertisement or display visible from the outside), racquetball courts or gymnasium or other place of public amusement. (v) Training or educational facilities. As used herein, "training or educational facilities" includes, but is not limited to, a beauty school, child care facility, barber college, library, reading room, church, school, place of instruction, or any other operation catering primarily to students or trainees rather than to customers. (vi) Car washes, gasoline or service stations, except for one service station on Parcel 2, or the displaying, repairing, renting, leasing or sale of any motor vehicle, boat or trailer. With respect to any service station on Parcel 2, (A) the operator shall be a major oil company such as Chevron, Shell, Arco, Unocal or Texaco; (B) such operator shall at STORE NO. 121-283 22 all times comply with all federal and state laws and regulations concerning the operation of a gasoline or service station, including but not limited to, laws and regulations dealing with underground storage tanks; (C) such operator shall indemnify the other Owners from any claim arising from operation of the gasoline or service station; (D) such operator shall maintain environmental liability insurance and first party pollution insurance with a combined single limit of not less than Five Million Dollars ($5,000,000) for total claims for any one occurrence, naming the other Owners as additional insureds; (E) such operator shall be financially responsible for any and all costs which may be incurred by the other Owners with respect to the presence, use, generation, storage or Release of Hazardous Materials as a result of the operation of such gasoline or service station; and (F) such operator shall not perform any automotive repairs at the Shopping Center. (vii) Dry cleaner with on-premises cleaning, unless the consent of the Owner of the ASPI Parcel to such use shall have been obtained, which consent will be granted only if such Owner is in good faith satisfied in its sole discretion that such use does not involve an unacceptable risk of the release of Hazardous Materials. (viii) Any use which creates a nuisance or materially increases noise or the emission of dust, odor, smoke, gases, or materially increases fire, explosion or radioactive hazards in the Shopping Center. (ix) Second-hand or thrift stores, or flea markets, except second hand stores dealing in high quality designer clothing. (x) Any use involving Hazardous Materials, except as may be lawful and customary in first class neighborhood shopping centers in the metropolitan area where the Shopping Center is located. STORE NO. 121-283 23 2. Parcel 2 Change of Use. No financial institution or office use shall be permitted on Parcel 2. Further, no restaurant use shall be permitted on Parcel 2 unless the City and the Parcel 1 Owner agree in writing that the restaurant uses which are allowed on Parcel 2 do not reduce the 11,000 square feet of restaurant uses which would otherwise be allowed on Parcels 3, 4, 5, 6 and 7 pursuant to City limitations or the provisions of VI.(d) above. No other use shall be permitted on Parcel 2 unless the number of parking spaces on Parcel 2 alone is sufficient to support such use pursuant to the requirements of applicable governmental authorities without utilizing parking on any portion of the Shopping Center other than Parcel 2. It is the intent of this Restriction on Parcel 2 that if Parcel 2 is redeveloped for uses other than a service station and the square footage of the building on Parcel 2 increases, that an appropriate number of parking spaces are also created on Parcel 2. 3. Common Area Uses. No persons other than customers, employees, agents and contractors of the occupants of the Shopping Center and those with rights under easements recorded prior to the date of recordation hereof shall be permitted to park in the Common Area, unless all Owners give prior written approval thereto. In the event the Owner of the ASPI Parcel determines that the Common Area is being used for purposes inconsistent with this Agreement, the Owner of the ASPI Parcel shall have the right to construct a barricade around all or any portion of the perimeter of the Shopping Center to prevent such use; provided, such barricade shall not impede circulation within the Shopping Center nor prohibit access to abutting streets at such times as the Shopping Center is open for business. 4. Burden of Common Facilities. Among other things, it is the intent of these use restrictions that the parking and other common facilities should not be burdened by either large scale or protracted use by persons other than customers of occupants of the Shopping Center. STORE NO. 121-283 24 Nothing contained herein shall be construed to prohibit the Owner of the ASPI Parcel or any occupant thereof from storing, using and/or selling any item on or from Parcel 1, or engaging in any lawful activity on Parcel 1, which such party(ies) customarily stores, uses, sells or engages in at more than one of their other San Diego County locations. The restrictions contained in this Section shall be a servitude upon the entire Shopping Center and shall be binding upon any person acquiring any interest in any part of the Shopping Center. 5. Houses of Worship: Exercise/Fitness Center. Notwithstanding the provisions of Article V(l)(iv) and (v) to the contrary, no portion of the Shopping Center may be used for an exercise/fitness center or for a house of worship type land use without an amendment to the City approved Site Development Plan (SDP#97-07) as adopted by Planning Commission Resolution 4313 on June 17, 1998. 6. No Implied Covenant. Nothing contained herein shall be construed to require any Owner or any occupant to open or operate any form of business in the Shopping Center for any period of time or at all. Each Owner shall have the right to maintain such signs on the interior of buildings located on its Parcel as it desires, whether or not such signs are visible from the exterior, except window type advertising signs shall be prohibited unless approved in writing by the City. As permitted by applicable governmental regulations, and in accordance with the sign program adopted for the center by the owners of Parcel 1 and Parcel 5, each Owner shall have the right to erect, maintain and replace signs on the exterior of the buildings located on its Parcel; provided such signs shall be constructed so as to lie flat against such exterior facia facing outward and shall not protrude more than two (2) feet from the surface thereof, and provided further, in no STORE NO. 121-283 25 event shall signs be located on the roofs (excluding canopies so long as no sign is erected on a canopy which sign will extend above the height of the building roof) of any buildings in the Shopping Center without the prior written consent of the Owner of the ASPI Parcel. Subject to obtaining approvals from governmental authorities having jurisdiction, free standing monument signs may be constructed in the locations in the Common Area shown on the Site Plan as "Proposed ARCO Monument Sign" and as "Proposed Lucky Sav-On Monument Signs". The ARCO Monument Sign shall be connected into the electrical meter of the Owner of Parcel 2. The sign script areas below the Lucky Sav-On sign script on the Lucky Sav-On Monument Signs shall be reserved unto the Owners of Parcels 3, 4, 5, 6 and 7 as they may agree. The Lucky Sav-On Monument Sign structures shall each have separate electrical meters. Each Owner, with respect to its Parcel, as grantor, hereby grants to each other Owner as grantee, easements under, through and across the Common Area of the Shopping Center for the purpose of installing and/or maintaining utility lines to service such free standing monument signs. Except as expressly permitted herein, there shall be no signs in the Shopping Center without the prior written approval of all Owners. VII. INDEMNIFICATION AND INSURANCE 1. Indemnification. The Manager shall indemnify and hold the Owners free and harmless from all costs, claims, liabilities, damages and expenses including attorney's fees and legal costs due to the negligence or wilful misconduct of the Manager in the operation of the Common Area. Each Owner ("Indemnifying Party") hereby indemnifies, holds harmless and agrees to defend the other Owners ("Indemnified Party(ies)") from and against all claims, damages, expenses (including, without limitation, reasonable attorneys' fees and reasonable investigative and discovery costs), liabilities and judgments on account of injury to persons, loss STORE NO. 121-283 26 of life, or damage to property occurring in the Shopping Center, caused by the active or passive negligence or willful misconduct of the Indemnifying Party, its agents, servants or employees; provided, the Indemnifying Party does not indemnify the Indemnified Party against any injury, loss of life, or damage which is caused by the active or passive negligence or willful misconduct of the Indemnified Party, the other Owners in the Shopping Center, its or their agents, servants or employees. The Parties' obligations with respect to indemnification hereunder shall remain effective, notwithstanding the expiration or termination of this Agreement, as to claims arising or accruing prior to the expiration or termination of this Agreement. 2. Hazardous Materials Indemnification. Each Owner hereby releases, indemnifies, holds harmless and agrees to defend the other Owners from and against any and all claims, damages, expenses (including, without limitation, attorneys' fees and reasonable investigative and discovery costs), liabilities and judgments on account of or in connection with: (i) the violation of any Environmental Law (defined later) by such Owner, the occupants of such Owner's Parcel(s) or their agents or employees; and (ii) the use, generation, storage or Release (defined later) of Hazardous Materials in, on, under or above such Owner's Parcel(s), except as hereinafter set forth in this Section VII(2) and except to the extent the Hazardous Materials are present or Released as a result of the acts of the persons or entity seeking indemnification or its agents, employees or contractors or as a result of migration. Without limiting the foregoing, this indemnification shall include any and all costs incurred in connection with any investigations of the Shopping Center or any cleanup, removal, repair, remediation, detoxification or restoration and the preparation of any closure or other plans required by any governmental authority. In the event of the presence of Hazardous Materials in violation of any Environmental Laws or a Release of Hazardous Materials in, on, under or above an Owner's Parcel(s) (whether or not STORE NO. 121-283 27 originating from property outside the Shopping Center), such Owner shall promptly conduct a site assessment, take any immediate action required for containment of the Release, and prepare and implement a plan for the cleanup of the Release. Notwithstanding the above, the Owners acknowledge that prior to the date hereof, a service station operated by Atlantic Richfield Company ("ARCO") on portions of Parcels 4 and 5 caused contamination of Parcels 4 and 5 due to a leaking underground storage tank. No Owner other than ARCO shall be responsible for the evaluation, monitoring, study or clean up or remediation of such pre-existing contamination. "Environmental Law" means any federal, state or local law, ordinance, regulation, order, permit, license, decree, common law or treaty now or hereafter in force regulating, relating to or imposing liability or standards concerning materials or substances known or suspected to be toxic or hazardous to health or safety, the environment or natural resources. "Release" or "Released" means any actual or threatened spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, or dumping on or from the Shopping Center or adjacent property, or disposing of Hazardous Materials into the environment. The indemnifications and obligations under this Section VII.2 shall survive the expiration or termination of this Agreement. 3. Liability Insurance Coverage and Limits. The Manager with respect to the Common Area, and each Owner with respect to its buildings and Service Facilities agrees to maintain, and/or cause to be maintained, at no cost to the other Owners, liability insurance insuring its interests against claims for personal injury, bodily injury, death and property damage occurring on, in or about the Shopping Center, with a "Combined Single Limit" (covering personal injury liability, bodily injury liability and property damage liability) of not less than Five Million Dollars ($5,000,000) for total claims for any one occurrence; provided that any STORE NO. 121-283 28 Owner shall have the right to satisfy such insurance obligation by means of self-insurance to the extent of all or part of the required insurance, but only so long as (i) such Owner.shall have a net worth of at least One Hundred Million Dollars ($100,000,000); (ii) such Owner shall, upon request, provide an audited financial statement, prepared in accordance with generally accepted accounting principles, showing the required net worth; and (iii) such self-insurance provides for loss reserves which are actuarially derived in accordance with accepted standards of the insurance industry and accrued (i.e., charged against earnings) or otherwise funded. The insurance limits in this Section shall be subject to increase from time to time by such amounts as the Owners may reasonably agree is necessary or desirable, as may be evidenced by the practice of similarly situated properties. 4. Contractor's Insurance. During the period of any construction in the Shopping Center by or at the request of any Owner, such Owner agrees to obtain or require its contractor(s) to obtain, and thereafter maintain so long as such construction activity is occurring, at least the following minimum insurance coverage: (a) Workers' compensation - statutory limits; (b) Employer's liability - One Hundred Thousand Dollars ($100,000); and (c) Comprehensive General and Commercial Automobile Liability as follows: (i) "Combined Single Limit" (covering personal injury liability, bodily injury liability, and property damage liability) of not less than Five Million Dollars ($5,000,000) for total claims for any one occurrence; (ii) Independent Contractor's Liability or Owner's Protective Liability with the same coverage as in (i) above; (iii) Products/Completed Operations Coverage which shall be kept in effect for two (2) years after completion of work; (iv) "XCU" Hazard Endorsement, if applicable; (v) "Broad Form" Property STORE NO. 121-283 29 4175999W-8 09/03/99 Damage Endorsements; (vi) "Personal Injury" Endorsements; and (vii) "Blanket Contractual Liability" Endorsement. 5. Waiver of Certain Rights. With respect to any loss or damage that may occur to the Shopping Center (or any improvements thereon) or the respective property of the Owners therein, arising from any peril customarily insured under a fire and extended coverage insurance policy, regardless of the cause or origin, excluding willful acts but including negligence of the Owners, their agents, servants or employees, the Owner suffering such loss hereby releases the other Owners from all claims with respect to such loss, and the Owners each agree that their respective insurance companies shall have no right of subrogation against the other Owners on account of any such loss, and each Owner shall procure from its respective insurers under all policies of fire and extended coverage insurance a waiver of all rights of subrogation against the other Owners which the insurers might otherwise have under such policies. 6. Policy Requirements. Insurance coverage required by this Agreement may contain the following elements, so long as the required coverage is not diminished, the required limits are not reduced, and the elements thereof are otherwise commercially reasonable: an Owner's insurance program may include blanket, layered, umbrella, conventional and/or manuscript forms of policies, as well as retention levels and loss reserves which are charged against earnings or otherwise funded, and commercially reasonable deductibles. Upon request, each Owner shall cause certificates of insurance reasonably evidencing compliance with the requirements of this Article to be delivered to the other Owners. The insurance policies and certificates required by this Section VII shall require the insurance company to furnish all Owners thirty (30) days' prior written notice of any cancellation or lapse, or the effective date of any reduction in the amounts or scope of coverage. STORE NO. 121-283 30 4175999W-8 7. Performance of Indemnity Agreements. All policies of liability insurance shall insure the performance by the Owner insured thereunder of the indemnity agreements contained herein. Each Owner shall promptly notify the other Owners of any asserted claim with respect to which such Owner is or may be indemnified against hereunder and shall deliver to such other Owners copies of process and pleadings. VIII. DAMAGE OR DESTRUCTION In the event any building in the Shopping Center is damaged or destroyed by fire or other casualty or any other cause whatsoever, the Owner of the Parcel upon which such building is located shall, in its discretion, either tear down or rebuild the damaged building. However, if an Owner determines to tear down a damaged building, that Owner shall either promptly rebuild a new building on the same location or leave and maintain the Parcel of land on which the building was located in a smooth, level condition, free and clear of all refuse and weeds and sealed against dust by paving, lawn or other ground cover reasonably acceptable to the Owner of the ASPI Parcel. In the event the Common Area of the Shopping Center or any portion thereof shall be damaged or destroyed by fire or other casualty or any other cause whatsoever, the Owner of the Common Area so damaged or destroyed shall forthwith proceed with due diligence to restore such Common Area to a condition to permit vehicular parking (in the manner required by this Agreement) and free and safe vehicular and pedestrian access and circulation in the Shopping Center and to and from all streets adjacent thereto. IX. EMINENT DOMAIN 1. Owner's Right to Award. Nothing herein shall be construed to give any Owner any interest in any award or payment made to any other Owner in connection with any exercise of eminent domain or transfer in lieu thereof affecting any other Owner's Parcel or giving the STORE NO. 121-283 31 4175999YV-8 09/03/99 public or any government any rights in the Parcels. In the event of any exercise of eminent domain or transfer in lieu thereof of any part of the Common Area located within the Shopping Center, the award attributable to the land and improvements of such portion of the Common Area shall be payable only to the Owner in fee thereof and no claim thereon shall be made by the Owners of any other portion of the Common Area. 2. Collateral Claims. All other Owners or persons having an interest in the Common Area so condemned may file collateral claims with the condemning authority for their losses which are separate and apart from the value of the land area and improvements taken. 3. Tenant's Claim. Nothing in this Section shall prevent a tenant from making a claim against an Owner pursuant to the provisions of any lease between the tenant and Owner for all or a portion of any such award or payment. 4. Restoration of Common Area. The Owner of the fee of each portion of the Common Area so condemned shall promptly repair and restore the remaining portion of the Common Area so owned as near as practicable to the condition of the Common Area immediately prior to such condemnation or transfer to the extent that the proceeds of such award are sufficient to pay the cost of such restoration and repair and without contribution from any other Party. 5. Restoration of Building Area. In the event any building or a portion thereof located in the Shopping Center is condemned, the remaining portion of the building shall be demolished or restored by the Owner of the Parcel on which it is located and such Owner shall remove all debris resulting therefrom. Such election shall be made within ninety (90) days from the date of taking. In the event the remaining building improvements are removed, thereafter the Owner shall either promptly rebuild a new building on the same location or leave and maintain STORE NO. 121-283 32 09/03/99 the Parcel of land on which the building was located in a smooth, level condition, free and clear of all refuse and weeds and sealed against dust by paving, lawn or other ground cover acceptable to the Owner of the ASPI Parcel. X. TAXES Each Owner shall pay or cause to be paid directly to the tax collector when due, the real property taxes and other special taxes and assessments assessed against the property owned by such Owner, including the portion of the Common Area owned by such Owner, except the real property taxes and assessments on Parcel 7 shall be paid before delinquency by the Manager as a Common Area expense. In the event any Owner fails at any time to pay or cause to be paid before delinquency its taxes or assessments on any portion of any Parcel(s) in which such Owner has a fee interest, and which may become a lien on any of the Common Area, then any other Owner may pay such taxes and/or assessment together with interest, penalties, and costs, and in any such event the Owner obligated to pay such taxes and/or assessment shall promptly reimburse such other Owner for all such taxes and/or assessments, interest, penalties, and other charges and until such reimbursement has been made, the amount thereof shall constitute a lien and charge on the Parcel(s) of the defaulting Owner. Nothing contained herein, however, shall prevent an Owner from paying its taxes under protest or challenging the validity or amount of an assessment so long as such Owner takes steps to prevent the delinquent taxes from becoming a lien on its Parcel or the occurrence of a tax sale of such Parcel. XI. DEFAULT 1. Right to Cure. Should any Owner fail to timely perform any of its obligations hereunder and thereafter fail to perform such obligation within twenty (20) days after its receipt STORE NO. 121-283 33 4175999 W-8 of any other Owner's written demand therefor, the Owner giving such notice shall, in addition to any other remedy provided at law or in this Agreement, have the right (but not the obligation) to perform such obligation on behalf of the defaulting Owner and the defaulting Owner shall reimburse the curing Owner for the cost of performing such obligation within ten (10) days after receipt of billing therefor and proof of payment thereof. In the event the defaulting Owner does not reimburse the curing Owner within such ten (10) days, the curing Owner shall have (i) the right to exercise any and all rights which such curing Owner might have at law to collect the same, and (ii) a lien on the Parcel (s) owned by the defaulting Owner to the extent of the amount paid by the curing Owner but not reimbursed by the defaulting Owner, which amount shall bear interest at a rate equal to the then published Discount Rate of the Federal Reserve Bank of San Francisco, California plus four percent (4%) per annum, or the highest legal rate of interest, whichever is less (the "Effective Rate"), from the date of billing until paid. Such lien may be filed for record by the curing Owner as a claim against the defaulting Owner, in the form required by law, in the office wherein mortgages are recorded, which lien shall contain at least the following information: (a) The name of the lien claimant; (b) The name of the defaulting Owner; (c) A description of the work performed on behalf of such Owner and a statement itemizing the cost thereof; and (d) A description of the property being liened. The lien so claimed shall attach from the date of recordation in the amount claimed by the Owner curing the default and it may be enforced and foreclosed in any manner allowed by law, including, but not limited to, suits to foreclose a mechanic's lien, trust deed or mortgage under STORE NO. 121-283 34 4175999W-8 09/03/99 applicable law. Such lien, when so recorded against the real property described in such lien, shall be prior and superior to any right, title, interest, lien or claim which may be or is acquired or attached to such real property after the time of recording the claim of lien. The provisions of this Section XT(1) shall not apply to the Owner of the ASPI Parcel in its capacity as the Manager. 2. Injunctive Relief. In the event of any violation or threatened violation of any provision of this Agreement, any Owner (and any ASPI Affiliate) shall have the right, in addition to any other remedies herein or by law provided, to enjoin such violation or threatened violation. Notwithstanding the foregoing, tenants in the Shopping Center, other than an applicable ASPI Affiliate, shall not have the right of injunction but shall rather be limited to their rights granted by law and by their respective leases. 3. Breach Shall Not Permit Termination. No breach of this Agreement shall terminate this Agreement or entitle any Owner to cancel, rescind or otherwise terminate this Agreement, but such limitation shall not affect in any manner any other rights or remedies which such Owner may have hereunder by reason of any breach of this Agreement. 4. No Limitation of Remedies. The various rights and remedies herein contained and reserved to the Owners, except as otherwise provided in this Agreement, shall not be considered as exclusive of any other right or remedy, but shall be construed as cumulative and shall be in addition to every other remedy now or hereafter existing at law, in equity or by statute. No delay or omission of the right to exercise any power or remedy shall impair any such right, power or remedy or be construed as a waiver of any default or nonperformance or as acquiescence therein. STORE NO. 121-283 35 4175999W-8 XII. NOTICES All notices, requests, demands, and other communications hereunder shall be in writing and shall be given by (i) established express delivery service which maintains delivery records, (ii) hand delivery, or (iii) certified or registered mail, postage prepaid, return receipt requested, to the Owners at the following addresses, or at such other address as the Owners may designate by written notice in the above manner: GTP: With a copy to: ASPI: With a copy to: street address: GRANT TUCKER PROPERTIES One Upper Newport Plaza Newport Beach, California 92660-2630 Attention: Larry Tucker Fax No.: (949)752-0885 Mailing Address: P.O. Box 7974 Newport Beach, California 92658 Attention: Larry Tucker Steven P. Grant 65 Emerald Bay Laguna Beach, CA 92651 AMERICAN STORES PROPERTIES, INC. 6565 Rnott Avenue Buena Park, California 90620 Attn: Real Estate Department Fax No.: (714)739-7409 AMERICAN STORES PROPERTIES, INC. P.O. Box 27447 Salt Lake City, Utah 84127-0447 Attn: Legal Department 299 South Main Mai [Drop 1800 North Salt Lake City, Utah 84111 Attn: Legal Department STORE NO. 121-283 36 09/03/99 Communications may also be given by fax, provided the communication is concurrently given by one of the above methods. Notices are effective upon receipt, or upon attempted delivery if delivery is refused or if delivery is impossible because of failure to provide a reasonable means for accomplishing delivery. XIII. ATTORNEYS' FEES In the event legal proceedings are brought or commenced to enforce any of the terms of this Agreement against any Owner or other person with an interest in the Shopping Center, the prevailing party in such action shall have the right to recover reasonable attorneys' fees and costs from the other party, to be fixed by the court in the same action. "Legal proceedings" includes appeals from a lower court judgment as well as proceedings in the Federal Bankruptcy Court ("Bankruptcy Court"), whether or not they are adversary proceedings or contested matters. The "prevailing party" (i) as used in the context of proceedings in the Bankruptcy Court means the prevailing party in an adversary proceeding or contested matter, or any other actions taken by the non-bankruptcy party which are reasonably necessary to protect its rights under this Agreement, and (ii) as used in the context of proceedings in any court other than the Bankruptcy Court means the party that prevails in obtaining a remedy or relief which most nearly reflects the remedy or relief which the party sought; so that, for example, the prevailing party may be an Owner which is ordered to pay $100 where the obligation to pay $80 was undisputed and the claiming party alleged that it was entitled to $1,000. XIV. DURATION Except as otherwise provided herein, this Agreement shall remain in full force and effect for a term of sixty-five (65) years from the date hereof. Notwithstanding the foregoing, the term of this Agreement shall be extended for successive ten (lO)-year periods unless terminated by STORE NO. 121-283 37 4I75999W-8 09/03/99 ASPI by written notice to the other Owners served upon each of them at least six (6) months prior to the expiration of the then current term, and the concurrent recordation in the Official Records of the County Recorder of San Diego County of a notice terminating the term of this Agreement. Upon written request, all other Owners shall sign and acknowledge such notice. Notwithstanding the above, the termination of this Agreement shall not terminate the easements which become perpetual under Article IV above. XV. MODIFICATION All negotiations and oral agreements acceptable to the Owners have been incorporated herein. Except as otherwise provided herein, this Agreement may not be modified in any respect whatsoever or rescinded, in whole or in part, except by a writing executed by the Owners of ninety percent (90%) of the land area in the Shopping Center (which must include the Owner of the ASPI Parcel, so long as it has any interest in the Shopping Center) and duly recorded. No amendment shall add any burdens to the Parcel of an Owner without such Owner's prior written consent, unless all of the Parcels of each of the Owners is affected in the same manner. XVI. GENERAL PROVISIONS 1. Not a Public Dedication. No thing herein contained shall be deemed to be a gift or dedication of any portion of the Shopping Center to the general public or for any public purposes whatsoever, it being the intention of the Owners that this Agreement shall be strictly limited to and for the purposes herein expressed. 2. Severability. If any tenn or provision of this Agreement or the application of it to any person or circumstance shall to any extent be invalid and unenforceable, the remainder of this Agreement 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 term STORE NO. 121-283 38 and provision of this Agreement shall be valid and shall be enforced to the extent permitted by law. 3. Pronouns. When required by context, the singular shall include the plural, and the neuter gender shall include a person, corporation, firm, association, or other business arrangement. 4. Captions. The captions in this Agreement are for convenience only and do not constitute a part of the provisions hereof. 5. Not a Partnership. The provisions of this Agreement are not intended to create, nor shall they be in any way interpreted to create, a joint venture, a partnership, or any other similar relationship between the Owners. 6. Governing Law. This Agreement shall be construed and enforced in accordance with, and governed by, the law of the State of California. 7. No Presumption. This Agreement shall be interpreted and construed only by the contents hereof and there shall be no presumption or standard of construction in favor of or against any Owner. 8. Inurement. This Agreement and the easements, covenants, benefits and obligations created hereby shall inure to the benefit and be binding upon each Owner and its successors and assigns; provided, if any Owner conveys all of its interest in any Parcel owned by it, such Owner shall thereupon be released and discharged from any and all further obligations under this Agreement as fee owner of the property conveyed by it if the buyer assumes in writing all of such obligations; and provided further, no such sale shall release such Owner from any liabilities, actual or contingent, existing as of the time of such conveyance. STORE NO. 121-283 39 4175999W-8 9. Estoppel Certificate. Each Owner agrees that upon request by any other Owner, it will issue to a prospective lender of such other Owner or to a prospective purchaser of such other Owner's interest, an estoppel certificate stating: (a) whether the Owner to whom the request has been directed knows of any default by the requesting Owner under this Agreement, and if there are known defaults, specifying the nature thereof; (b) whether this Agreement has been assigned, modified or amended in any way (and if it has, then stating the nature thereof); and (c) that to the Owner's knowledge this Agreement as of that date is in full force and effect. Such statement shall act as a waiver of any claim by the Owner furnishing it to the extent such claim is based upon facts contrary to those asserted in the statement and to the extent the claim is asserted against a bona fide encumbrancer or purchaser for value without knowledge of facts to the contrary of those contained in the statement, and who has acted in reasonable reliance upon the statement; however, such statement shall in no event subject the Owner furnishing it to any liability whatsoever, notwithstanding the negligent or otherwise inadvertent failure of such Owner to disclose correct and/or relevant information. 10. Rights of City. This Agreement has been approved by the Planning Director of the City. (a) The City shall have the right, but not the obligation, to enforce the covenants and agreements in favor of, the City or in which the City has an interest (the "City Interests"). The provisions of any City Interests, or of Article III.5, Article IV or Article STORE NO. 121-283 40 XVI.10(b), or the definition of "Common Area" shall not be amended without the prior written consent of the City. (b) No structure, fence, wall, tree, shrub, sign, or other object over thirty (30) inches above the street level may be placed or permitted to encroach within the area identified as a sight distance corridor in accordance with City Standard Public Street-Design Criteria, Section 8.B.3. The Manager shall maintain this condition as to Common Areas. 11. Authority. Each of the individuals who have executed this Agreement represents and warrants that he or she is duly authorized to execute this Agreement on behalf of GTP or ASPI, as the case may be; that all corporate, partnership, trust or other action necessary for such Party to execute and perform the terms of this Agreement have been duly taken by such Party; and that no other signature and/or authorization is necessary for such Party to enter into and perform the terms of this Agreement. 12. Exhibits. The Exhibits attached hereto are incorporated herein by this reference. THE SUBMISSION OF THIS AGREEMENT FOR EXAMINATION OR ITS NEGOTIATION OR THE NEGOTIATION OF THE TRANSACTION DESCRIBED HEREIN DOES NOT CONSTITUTE AN OFFER, AND THE EXECUTION OF THIS AGREEMENT BY GTP DOES NOT CONSTITUTE A BINDING CONTRACT UNTIL SUCH TIME AS THIS AGREEMENT HAS BEEN APPROVED BY THE GOVERNING REAL ESTATE COMMITTEE OF ASPI, EXECUTED BY AUTHORIZED OFFICERS OF ASPI AND DELIVERED TO GTP. STORE NO. 121-283 41 09/03/99 IN WITNESS WHEREOF, this Agreement has been executed as of the date first above written. AMERICAN STORES PROPERTIES, INC., a Delaware corporation ATTEST: By. President Approved: Secretary Approved to Form: Sonnenschein Nath & Rosenthal Bv Robin M. Edwards "ASPI" GRANT TUCKER PROPERTIES, a California limited liability company By Steven P. Grant, Co-Managing Member By. Larry Tucker, Co-Managing Member "GTP" [Signatures must be acknowledged.] STORE NO. 121-283 42 Exhibit A Site Plan D Show Parcels 1 through 7 Parcel Lines. D Show maximum square footage of all buildings. D Show Building Area. D Show Building Envelope for Parcel 2. D Show number of parking stalls on each Parcel and configuration thereof. D Show Recycling Center and Seasonal Outdoor Sales Area. D Show "Proposed Lucky Sav-On Monument Signs" and "Proposed ARCO Monument Sign." D Show Perpetual Easement Areas. D Show Parcel 5 Outdoor Fating Area. STORE NO. 121-283 4175999W8 09/03/99 Exhibit B Legal Description of the Shopping Center. STORE NO. 121-283 4175999W8 09/03/99 Exhibit C Legal Description of the ASPI Parcels. STORE NO. 121-283 4\75999\V8 Exhibit D Legal Description of the GTP Parcels. STORE NO. 121-283 4I75999W8 Exhibit E Permanent Easements STORE NO. 121-283 Table of Contents I. PRELIMINARY 3 1. Incorporation 3 2. Defmitions.3 II. BUILDING AREA 6 1. Building Area 6 2. Maximum Building Area 6 3. Design and Construction of Buildings 7 III. COMMON AREA 9 1. Common Area Use 9 2. Parking 10 3. Employee Parking 10 4. General 10 5. Maintenance and Repair 11 IV. EASEMENTS 16 1. Ingress, Egress and Parking 16 2. Utility and Other Underground Lines or Facilities 17 3. Building Encroachments 18 4. Emergency Exits 19 V. USE RESTRICTIONS 19 1. Business 19 2. Parcel 2 Change of Use 23 3. Common Area Uses 24 4. Burden of Common Facilities 24 5. Houses of Worship; Exercise/Fitness Center 24 6. No Implied Covenant 25 VI. SIGNS 25 VII.INDEMNIFICATION AND INSURANCE 26 1. Indemnification 26 2. Hazardous Materials Indemnification 26 3. Liability Insurance Coverage and Limits 28 4. Contractor's Insurance: 28 5. Waiver of Certain Rights 29 6. Policy Requirements 29 7. Performance of Indemnity Agreements 30 VIII. DAMAGE OR DESTRUCTION 30 IX. EMINENT DOMAIN 31 1. Owner's Right to Award 31 2. Collateral Claims 31 3. Tenant's Claim 31 4. Restoration of Common Area 31 5. Restoration of Building Area 32 X. TAXES 32 STORE NO. 121-283 4175999W8 09/03/99 XI. DEFAULT 33 1. Right to Cure 33 2. Injunctive Relief. 34 3. Breach Shall Not Permit Termination 34 4. No Limitation of Remedies 35 XII.NOTICES 35 XIII. ATTORNEYS'FEES 36 XIV. DURATION .' 37 XV. MODIFICATION 37 XVI. GENERAL PROVISIONS 38 1. Not a Public Dedication 38 2. Severability 38 3. Pronouns 38 4. Captions 38 5. Not a Partnership 38 6. Governing Law 38 7. No Presumption 39 8. Inurement 39 9. Estoppel Certificate 39 10. Rights of City 40 12. Exhibits 40