The URL can be used to link to this page

Home My WebLink About; ; 78-346427; EasementORIGINAL· !977 TABLE OF CONTEtlTS FOR 6-PARTY ?S-34642'7 m.t:IP1:lo\Di"'11~,-- ll!COllO£O REOU£ST OF' JJJlE INSURANCE AND mlSr Aue 15 12 26 ,,. '1S AMENDED AND RESTATED CONSTRUCTION, OPERATIO!l AND RECIPROCAL EASEHEIIT AGREEMENT (PLAZA CAHINO REAL) ;,, ...... ,.i::;uADS <;t.11 'll[C·; :CIJNTY,CAUf. ,I.\R. : I ;. • £1.DOM lll!.iltlD£1 ·~:)oc.J RECITALS ARTICLE 1 1.1 l.2 l.3 1.11 1.5 1.6 1.7 1.8 1.9 1.10 1.11 .a.12 1.13 1.111 1.15 1.16 1.17 1.18 1.19 1/13/i8 . _,.,. '"'"" 1.21 1.22 1.23 1.2lll ·1.25 1.26 1.21 J.28 1.29 1.30 1.31 1.32 1.33 1.3" 1.35 1.36 1.37 1.38 1.39 1.1110 1.IJ1 1.1112 1. IJ,3 1. "" 1.115 1.116 1.•n 1.118 1.119 1.50· l.51 1.;2 DEflU!TIOffS Accounting Period Agreement for Phase 11 Public Parking Adjacent Parking Bu:ilding(s) Building Height Carter Store Opening Date Center Parking City Conino.i Area Co111mon Area Maintenance Cost Comnon Area Maintenance Cost Allocable Share Co111111on Building Co1lponent Court. Developer Buildings Federated Store Opening Date Floor Area I111provenentz Lease Kajors ........... 11110,A .& Hall Maintenance Cost Hall Stores Mortgagee and Mortgage New Public Parkint Lot Operating Agreement lion-Hall building Sites Hon-Hall Buildings Occupa:1t Parking Area Parking Authorit.y Parkiris Rat.io Part.y Penney Hain Store Building Penney TBA &uildint Perineter Side•,alks Pernil5:Jible Building Area Per11Jitteez Person Pha~e I Lane: Phase 1 Hall Phase 1 Hall Stores Pha:Je ! Public Parkin& Pha:se 1 Public Parking Land Phase 1 REA Phase 1-A Public Parking Land Phase l•B Public Parking Land PhaH 11 Devctloper Const.ruct.1on Pbaoe 11 Land Phase 11 Hall Phase 11 Hall Store:'} Phase 11 Parkin, Phase 11 Public Parking Pha:Je 11 Public Parking Land -1- PAGE t:O. 1-11 4 4 4 II 11A 11A 5 5 5 5 5 5 6 6 6 6 6 7 8 8 e 8 8 8 9 9 9 9 9 9 9 10 13 13 13 13 13 14 lit n n n 111 u n 15 lS lS 15 15 15 15 15 . · .. ~.,, .,, .,, -n -> r- "' m n 0 ,a C "' .. "' > z C -m (il 0 n 0 C z .... -< .... ::c > :;Ill r-m -< .,, . .. .... 0 0 ~ .... - 1.53 l.SJJ 1.55 1.56 1.57 1.58 1.5; 1.60 1.61 l.b2 1.63 l.6JJ 1.65 1.66 1.67 1.68 1.69 1.70 1. 71 l.72 1.73 1.711 ARTJCLE 2 2.1 2.2 2.3 ARTICLE 3 ".> • ., ... 3.2 3.3 3.JJ 3.5 3.6 3.7 3.s 3.9 UTJCLt l'; ll.1 ll.2 HTJCL.£ S s.1 s.2 5.3 AATJCLE 6 6.1 6.2 6.3 7113178 .!.978 Phase 11-0 Public Parking Land Planned Floor Area Planned Phase II Opening Date Planned Carter Opening Date Planned Federated Opening Date Project Architect Project Iwpro.ement Requirements Proximity Area Public Parking Public Parking Documen~s Public ~arking Lar.d Public Pa,kin& O~eratir.& Abre~~cnt Retail Facility Scars St.ore Opening Date ShoJ,ping Cent.er Shopping Cent.er Site Slope l~greement. Slope Area Store Termlnat.ion Date Tract Truck Facil it.ies PHASE I AND PHASE 11 PUliLlC PARKrnG Phase l P~blic Parkin& Documents Phase ll Pu~l lic Parking. [>ocumer.ts Phase I-A and Phase l-B Public Parking Land; Authority-Carter Parcel LOCATIOH, SJZE, HEIGHT AUD USE OF ~UILDlttGS re~~!~~!~, L~!:~!~i !~c~ Planned Floor Ar~a tUni1t,tuJQ floor Area and Jtaidmum Height. of Hay St.ore Hiniaur. floor Area and Maxim.UC\ Heir.ht. or Penney St.ore; D'.ax1nu111 Hei&ht of b1provements on Penney T&A S1t.e Hin! ,ur. Fl cc:-Arca :.r.;% Maxill!ur:i !!e ib!l.t. c !' Sears St.ore Hininun floor Area and Kaximu~ Height or Federated St.ore Hininu~ Floor Area and Haxi•v~ Height. or Cart.er St.ore Hinhnm Floor Area of Ma.ll St.ores; ProximH) Areas; ffaxlnum Height. of Hall and of Mall Stores; Haxh,um flei&ht. of Hon-Hall Buildings Uses COJ:STJlUCTIOI: 11:Y r:u Alm Ptrmn Approva.l or Eitlst.ln& Hay ConstrucUon Approval or Exi.st.lng Penney Cons.t.ruet.1on COIISTIUCTIOH DY SEARS. fl:OERATED AIJI> CARTER Plona for Sears, Fedorat.ed ~nd Cart.er St.ore~ Con.st.ruct .. lon or Sc.>aro, Federated and Cort.er Stores Opentnt Dates for Sears, Fedr~ated and Cart.er COUSTRUCT JQN BY DEVEL.OPU Approval of £d5Ung l)eveloll'ctr ·1 .. provcnnent.s ~~velor~r•s Obll&ation tr., r.1>nst.r11ct Project l•provenent Requirements ond Workln, Drawing.5 and Speclficot.ions PAGE NO. 15 16 16 16 16 16 16 16 16 n 17 17 17 17 17 17 17 18 16 18 18 18 18 18 20 21 22 2~ 23 24 25 27 27 28 29 31 32 32 32 33 33 33 3S 31 37 '31 38 6.11 6.5 6.6 6.7 ARTICLE 7 7.1 1.2 7,·3 7." 7,5 ARTICLE 8 8.1 8.2 8.3 ARTICLE 9 S,l 9.2 9,3 9. l! 9,5 9,6 9,7 o A .,. ~ 9.9 9.10 •9.11 .i\RTICLE 10 10.l 10.2 10.3 10.l! 10,5 10.6 10.7 10.6 10,9 10.10 ARTICLE 11 7/13178 ll.l 11.2 11.3 11,4 11.5 11.6 11.7 11.8 11.9 !979 Governmental Approvals Completion of Phase II Developer Construction Take Over of Phase II Developer Construction Opening of Phase II Mall Stores COMMON AREA MAINTENANCE COST ALLOCABLE SHARES Common Area Maintenance Cost Accounting Period . Common Area Maintenanc.:: Cost Allocable Shares Payment of Allocable Share Separate Books and Records; Right to Audit; Segregated Bank Account MALL MAINTENANCE COST CONTRIBUTIONS Mall Maintenance Cost Contributions of Majors Toward Mall Maintenance Cost Separate Books and Records; Segregated Bank Account CONSTRUCTION STAhVARDS When Construction Commences on a Store Diligently Proceed With Construction Workmanlike Construction; First-Class Materials; Compliance With Laws No Interference With Operati~n of Center Coordinate Constr~ction Safety Measures; Indemnification Construction Barricades Cert!ficatio~! ~e: Ccnstructicn Re~iew of Plans, Drawings or Specifications Within Thirty (30) Days Construction to be Separate "Works of Imprc.vement" Common Area Construction Plans GRANT OF EASEMENTS Easements for Parking and Passage Easements for Utilities Further Utility Easements Easement Grants to Public Utilities Easements for Footing, Etc. Easement for Support of Mall Duratio11 of Easements No Dedication Relocation of Utilities Correction of Site Descriptions HAINTEl4ANCE, OPERATION ANO MANAGEMENT OF COHMCN AREA AND SLOPE AREA Operation and Maintenance of Parking Area Maintenance Standards Operation and Maintenance of Developer Improvements; Parking Ratio Perimeter Sidewalks Maintenance and Repair of Utili~ics. Penney Conduit System No Charge for Parking Employee Parking Obstruction of Common Area -111- PAGE NO. 110 110 llO 41 41 41 .lf3 llll "5 "7 J/9 49 119 119 50 50 50 50 51 51 51 52 c;, ~.- 53 511 54 55 55 55 56 57 57A 58 59 59 59 60 61 61 62 62 63 63 64 611 65 65 ' ARTICLE 12 12.1 12.2 12.3 12.4 12.5 12.6 ARTICLE 13 13.1 13.2 TAKE-OVER OF HAINTENANCE, HANAGEHENT AND OPERATION OF COMMON AREA AND SLOPE AREA Applicability of Certain Sections Right of Take-Over By Arbitration High~ of Take-Over Without Arbitration Designation of Person to Take Over Obligations Appointment of Successor Right of Each Major to Take Over Its Adjacent Parking MAINTENANCE AND RESTORATION OF IMPROVEMENTS Maintenance by Developer Right to Raze, Remove, Relocate, Alter, remodel or Add to Developer Improvements PACE A'tJ, 66 66 66 67 68 69 69 71 71 71 JJ.J 13.4 13.5 Restoration of Oeveloper Improvements Construction Requirements -Developer Haintenande, Repair, Reconstructivn and Replacement by May 12 13.6 13.7 13.8 13.9 13.10 13.11 13.12 13,13 ·13.111 13.15 13.16 ARTICLE 14 111.l 14. 2 111.3 14.11 111. 5 ARTICLE 15 15.l 15.2 15.3 ~- Right to Raze, Remove, R.elocate, Alter, Remodel or Add to May Store Maintenance, Repair, Reconstruction and Replacement by Penney; Termination of Penney 73 74 74 Obligations Under Certain Circumstances 75 Right to Raze, Relocate, Alter, Remodel or Add to Penney Store 76 Maintenance, Repair and Reconstruction and fteplacem~nt by Sears 77 Right to Raze, Relocate, Alter, Remodel or Add to Se~rs Store 77 Maintenance, R~pair, Reconstruction and Revl&a~w~nt ~y Fed~r~L~d 78 Right to Raze, Relocate, Alter, Remodel or Add to Federated Store 79 Maintenance, Repair, Reconstruction and Replacement by Carter 79 Right to Raze, Relocate, Alter, Remodel or Add to Carter Store 80 Termination of Obligations 80 Common Building Components 61 FIRE IND PUBLIC LIABILITY INSURANCE Developer Insurance Requirements Majors• Insurance Requirements Self-Insur·ance Mutual Re.!ease; Waiver of St.•brogation Insurance Prov1sions in Grant Deeds and Public Parking Operating Agreement ZND£Mll1FICATION Indemnit1ca&1on by Developer Indemnification by Majors Indemnification for Common Area and Slope Area " S:;; > ' "!!!!: ... >• a'"'l'--l!r'-a:a 81' 81' 87 89 90 90 91 91 91 91 ~ ~~~ ~"!!$::,,,._~~~ ........ '-:::,.-;:,.... ~~'''' '-~ '<::...'-:.~~,~~ ......... ,~'""""'~'~' 16.2 Expiration of Right ~o License t.l',UC\..i. 11 7/13178 17 .1 17 .2 CC\1iP\..U.\\C?. 'lll"t\\ \..t.'1l~, \\U\..i.~ t..\\l) \\'i.uU\.t."ti.t>\\~ Compliance with Laws Right to Cont~st Laws -iv- I ... • . l ' r n ... .,, • ARTICLE 12 12.1 12.2 12.3 12.4 12.5 12.6 ARTICLE 13 13.1 13.2 13.3 13.4 13.5 13.6 13.7 13.8 13.9 13.10 13.11 13.12 13.13 13.14 13.15 13.16 ARTICLE 14 14.1 14.2 14.3 14.4 14.5 ARTICLE 15 15.l 15.2 15.3 15.4 ARTICLE 16 16.1 16.2 ARTICLE 17 17.1 17.2 7/13/78 PAGE NO. TAKE-OVER OF MAINTENANCE, MANAGEMENT AND OPERATION OF COMMON AREA AND SLOPE AREA 66 Applicability of Certain Sections 66 Right of Take-Over By Arbitration 66 Right of Take-Over Without. Arbitration 67 Designation of Person to Take Over Obligations 68 Appointment of Successor 69 Right of Each Major to Take Over Its Adjacent Parking 69 MAINTENANCE AND RESTORATION OF IMPROVEMENTS 71 Maintenance by Developer 71 Right to Raze, Remove, Relocate, Alter, Remodel or Add to Developer Improvements 71 Restoration of Developer Improvements 72 Construction Requirements -Developer 73 Mainten&~ce, Repair, Reconstruction and Replacement by May 74 Right to Raze, Remove, Relocate, Alter, Remodel or Add to May Store 74 Maintenance, Repair, Reconstruction and Replacement by Penney; Termination of Penney Obligations Under Certain Circumstances 75 Right to Raze, Relocate, Alter, R~model or Add to Penney Store 76 Maintenance, Repair and Reconstruction and Replacement by Sears 77 Right to Raze, Relocate, Alter, Remodel or Add to Sears Store 77 Maintenance, Repair, Reconstruction and Replacement by Fcder~ted 78 Right to Raze, Relocate, Alter, Remodel or Add to Federated Store 79 Maintenance, Repair, Reconstruction and Replacement by Carter 79 Right to Raze, Relocate, Alter, Remodel or Add to Carter Store 80 Termination of Obligations 80 Common Building Components 81 FIRE AND PUBLIC LIABILITY INSURANCE 84 Developer Insurance Requirements 84 Majors' Insurance Requirements 87 Self-Insurance 89 Mutual Release; Waiver of Subrogation 90 Insurance Provisions in Grant Deeds .and Public Parking Operating Agreement 90 INDEMNIFICATION 91 Indemnification by Developer 91 Indemnification by Majors 91 Indemnification for Common Area and Slope Area 91 Exclusions from Indemnification 92 TEMPORARY LICENSE 93 License to Construct Improvements 93 Expiration of Right to License 94 COMPLIANCE WITH LAWS, RULES AND REGULATIONS 94 Compliance with Laws 94 Right to Contest Laws 94 -iv- ARTICLE 18 18.l 18.2 18,3 18.4 18.5 18,6 18,7 18,8 18,9 18.10 ARTICLE 19 19.1 19.i ARTICLE 20 ARTICLE 21 21.1 21.2 21.3 21.4 ARTICLE 22 ARTICLE ARTICLE 22.1 22.2 22.3 22,4 23 23,l 23.2 23.3 24 24.l 24.2 24.3 24, II ARTICLE 25 25,l 25,2 25,3 25.11 25.5 25.6 25,7 ARTICLE 26 26.l 7/13178 !981 PAGE tH OPERATING COVENAtlTS 95 May Operating Covenant with Developer 95 Penney Operating Coven'lnt with Developer ·9s Sears Operating Covenant With Developer 102 Federated Operating Covenant with Developer 105 Carter Operating Covenant With Developur 111 Assignability of Operating Covenants of the Majors 114 Hanner of Operation of Majors' Stores 114 Subordination of Operating Covenants of Majors 115 Use of Major's Tracts After Operating Covenants End 115 Developer Operating Covenant 116 ADDITIONAL DEVELOPER rovENANTS 118 Provisions to be Included in Leases of Develope, Tract 116 Withdrawing Land from Developer Tract 118 FORCE M~JEURE 118 ARBITRATION 119 Right to Arbitration Selection of Arbitrators Arbitration is Condition Precedent to Judicial.Proceedings Costs and Expenses of Arbitration tJOT!CES 119 119 120 121 121 Notices to Parties 121 llotices to Mortgagees 123 Additional Notices to Mortgagees and Right to Cure 123 Notices to City 123A SIGt:s 124 Developer Covenants 124 Signs of Majors 125 Penney Sign on Developer Tract 125 ~ 125 Payment of Taxes Taxes Hay Be Paid In Installments Payment of Another Party's Taxes Contesting Taxes CONDEMNATION Condemnation of Tracts and/or Improvements Conde~nation or Parking Area Taking of Permissible Building Area Use of Condemnation Award Division of Condemnation Award Award to be Placed in Segregated Bank Account Arbitration to Resolve Disputes COV£HANTS RUN ~ITH THE LAND Covenants or Each Party -v- 125 126 126 126 · 121 127 127 129 130 131 131 132 133 133 ARTICLE 27 27 .1 21.2 27.3 27.4 27.5 27 .6 21.1 21°.8 27,9 27.10 27.11 27.12 27,13 27.14 27.15 27.16 27. 17 27 .18 ARTICLE ;>A Exhibit Desisnation Exhibit a Part l Part 2 Part 3 . Exhibit B Part l Part l.l Part 2 Part 2.1 Part 2.2 Part 3 Part 3,1 Part 4 Part 5 Part 6 Part 7 Part 8 Part 8.1 Exhibit C 7/13178 MISCELLANEOUS Waiver of Default Self-Help No Principal-Ag~r.t Relationship Consents and Aporovals Agreement Binding vn Successors and As: Release of Parties Severabil i ty Captions California Law Governs Amendment of Agreement Sale-Leaseback; Lease-Leaseback Exhibits Incorporated by Reference Local.ive Adverbs Obligations Cease on Termination Date No Mechanics' Lich~ Breach Shall Not Per,n · ·, Termination or· Mortgage Use of Words "Include" and "Including•· Carter Contingencie~ REACQUISITION OF THE PUBLIC PARKING LIST OF EXHIBITS Description Legal Description of Shopping Center Site Legal Description of Phase I Land Legal Description of Phase II Land Legal Description of Portion of Develo~ Tract Owned by Developer Alone Legal Description of Portion of Develoyer Tract Owned by Developer and May Legal Description of Phase I Public Parking Land Legal Description of Phase I-A Public Parking Land L~gal Description of Phase 1-B Public Parking Land Legal Description of Phase II Public Parking Land Legal Description of Phase II-0 Public Parking Land Legal Description of May Tract Legal Description of Penney Tract Legal Description of Sears Tract Legal Description or Federated Tract Legal Description of Carter Tract Legal Description of Authority-Carter_ Tract Shopping Center Site Plan -vi- Exhibit Designation Exhibit D Part 1 Part 2 Part 3 Exhibit E Exhibit F Exhibit G Part l Part 2 Part 3 Part II Part 5 Exhibit H Exhibit I Exhibit J Part 2 Part 1 Exhibit K Exhibit L !.983 i ., Description Project Improvement Requirements List of Plans and Specifications for Developer Improvement in the Phase I Land Performance Criteria for Climate Control System for the Hall Maintenance and Management Standards for Common Area Maintenance and Management Standards for Buildings in the Shopping Center Legal Description of May Adjacent Parking Legal Description of Penney Adjacent Parking Legal Description of Sears Adjacent Parking Legal Description of Federated Adjacent Parking · Legal Description of Carter Adjacent Parking Sign Standards for Developer Buildings Detail for Penney Identification Sign in Public Parking Plan Showing Adjacent Parking of the Majors Plan Showing Adjacent Parking of the Majors, if Exhibit L replaces Exhibit C Legal De.Jcription of Slope Area Site Plan Modification for Four Depart- ment Store Layout At.t.achmont.s -Agreement of Fee Owner of May Tract -Agreement of Fee Owner of Penney Tract -Agreement of Fee Owner of Sears Tract -Agreement of Fee Owner of C&rtcr Tract -Agreement of Fee Owners of Non-Mall Building Site I 7/21178 -vu- Initial Reference Section 1.56 Section 6.3 Section 11. 3(B) Section 11. 3(A) <:r .• ion 13.1 Section 12,6(8) Section 12.6(8) Section 12.6(8) Section 12.6(8) Section 12. 6(9) Section 23. l(A) Sectku 23.1(8) Section 12.6(8) Section 12.6(8) Section 1.67 Section 27, 18 ,,. ,. -r. -)I ... ~ ff r C ,c C: C, ... C, ) 2 C -" (i C r C C :2 --... :l ) , r " - C r ( ( • .. .. ... ' I ' C • " ' I • ' !98~ 6-PARTY AMENDED AND RESTATED CONSTRUCTION, OPERATION AND RECIPROCAL EASEMENT AGREEMENT THIS AGREEMENT is made as of ~~ T / S-, 1978 by PLAZA CAMINO REAL, a California limited partnership ("Developer11 ), THE MAY DEPARTMENT STORES COMPANY, a·New York corporation ("May"), J.C. PENNEY COMPANY, INC., a Delaware corporation {"Penney"), SEARS, ROEBUCK AND CO., a New York corporation ("Sears"), FEDERATED DEPARTMENT STORES, INC., a Delaware corporation ("Federated"), and CARTER HAWLEY HALE STORES, INC., a California <lorporation ( "Csrt.t.,·•'} R E C 1 T A L S A. This Agreement deals with certain real property in the County of San Diego, State of Californja, herein referred to as the Shopping Center Site. 8. The entire Shopping Center Site is in the City of Carlsbad, California, except for the Phase II-0 Public Parking Land, as hereinafter defined, which is located in the City of·Oceanside, California. C, The Shopping Center Site is comprised of six (6) Tracts, as follow:.: Ci) The "Developer Tract" is described in Exhibit B, Parts land 1,1 and, in addition to th~ land described in Exhibit B, Parts land 1.1, shall be deemed to include the Public Parking Land. Developer is the owner of the Developer Tract, except for the Phase I Public Parking Land, the Phase I-A Public Parking Land and the portion of the Developer Tract described in Exhibit B, Part 1.1, the latter portion being owned in common·by Devel- oper and Hay. The Phase I Public Parking Land and the Phase I-A Public Parking Land are owned by the Parking Authority or the City or Carlsbad C "Parking Authority"). It is contemplated, as provided in the Public Parking Documents, as hereinafter defined, ~hat the Phase 11 Public Parking Land will also be owned by Parking Authority and that the Phase 11-0 Public Parking Land will be owned by the Parking Authority or a·parking authority or other entity formed by the City of Oceanside or by the City of 2/21/78 -1- rf -n -l> ... ,a m n 0 ,a C CII .. "' . l> z C -m (i) 0 n 0 C z -t . -< .. :c l> ,., r-m -< ,, • DI ... 0 0 ~ ... ,., '" n, 0 .. C ffl .. 1985 Oceanside itself. It ls also contemplated, as hereinafter set forth, that the Phase I-B Public Parking Land will be owned by the Parking Authority. (ii) Hay, pursuant to a lease dated Septe~ber 1, 1972, is the lessee of the •Kay Tract•, described in Exhibit B, Part q. Hay Properties, Inc., a Delaw~re corporation, is the owner and lessor of the Hay Tract. (iii) Penney, pursuant to a lease dated March 1, 1972, is the lessee of the •Penney Tract•, described in Exhibit B, Part ~. New Marjoram Associates, a New York partnership, is the owner and lessor of the Penney Tract. (JY) Sears, pursuant to a lease dat~d a~ of April 1, 1976, is the lessee of the •sears Tract•, described fn Exhibit B, Part 6. Plaza Canino Real, a California limited partnP.rsl\ip, ts the 01111er and lessor of the Sears Tract. Cv) fed~ratP.d is the owner of the •federated Tract". describP.d 1n Exhibit B, Part 7. (vi) Carter, pursuant to a lea~e of even date herewith, i~ the lessee of the •carter Tract•, described in Exhibit B, Part 6 iscept for tne portion or the Carter Tract described in Exhibit B, P:~t 8.l. which ~ortion i• at the present ti~e o~ne~ bi the Parking Authority. The portion or the Carter Tract now ONned by the Parking Authority Js hereinafter referred to as the •Authority-Carter Paree)•. lt ts contenplated. as hereinaft~r sc-t rorth, t.hat the Carter Tract, includine. U';e Authority-Carter Parcel, vJlJ be owned by Carter. D. SaAd Tracts, including the Publlc Parking Land, are located as sho1m on £:chtb1t C, 5?te-t1tt. 3. £. Pursuant to a Construct.ton, Operation and Rectprocal Ea~l!'- nent Agreenent dated July 28, 1969 and recordqd on July 28, 1969 as Oocua,e,nt no. 13~913, aa ... e,.ded by a first AMend111ent th.-.reto, . dated as or S,tptP.11ber 2o'II, 1971 and recorded SIJ'pt.e111ber 21, 1971 as Oo~uaent ~~. 2201~7. and a Second A•endnent thereto, dated as or October 6, 1976, and recorded October 26, 1976, .~ Docum~nt No. 35o'll986, all or said r,tcordings being in tho Office or the County 6/2217lS -2-llect t.ol D•f' ,, ,, -n -> ,.. "' m n 0 "' 0 en ... en > z 0 -m G) 0 n 0 C z ... -< " % > "' ,.. "' -< ,, • a, ,.. 0 0 ~ ... !986 Recorder of San Diego County, California (herein such Construc- tion, Operation and Reciprocal Easement Agreeme~t and the First and Second Amendments thereto are collectivel;i:· called the "Phase I REA•), Developer, Hay and Penney have previously construct~d and currently operate or cause to be operated certain retail facilities and other i~prove~ents on the Phase I Land as a regional shopping center. F. The Parties hereto desire to provide for the expansion o( said resionol $hopping center to includ.;: I.he Phase II Lan.:! an.:! to provice for the construc~ton and operation of improvement~ ehereon and on the Phase I-A Public Parking Land and the Phase I-S Public Parking Land as follows: (1) Developer. desires to construct and operate or cause to be operated the Phase ll Kall Stores and Common Area on a porU~n of t.hc Developer rraf't. on the Phase I I Land all as hercinaft.er defined, and t.o i~p:-ove and operat~ the Phase I~A Pub Uc Pork in& Land and t.he Phase 1-0 Pub He Parki nc Land. (ii) Sears desires to constru~t and operate or cause to be operat.ed t.he Scars St.ore, as. hcr-e,naft.er defined, on the Sears Tract. to be op:e:-at.el.t t.tl.e federat.ed St.ere, as hereinafter defined, "" t.be Federated Tract. be opcrat.ed I.he Carter Store, as herelnart.er aeril'led, o,n the Carter Tract. C. In o,rdcr to ~ake integrated use of their Tl'"acts l.n t~e ShcJ,ping Center, Devel;;;Jicr, Kay, Penney, Scar$, fe<lcn·ated ana Carter eacb desire to grant to each of the other Parties certatn easements, in, t.o, over, under and acro$5 their respective 1racts anc to enter into certain ot.hcr covenant~ and azrecMents hereinafter mor~ ~pcc1r1- eally ~~t ,,,,rth. H. Developer, Hay and Penney desire by thi~ Agr~ement to ~mend and restate in its entirety th~ Phase l REA er(crtive a! nf the dote hereof ,and Veve loper, Hay, Penney, Serars, Federated and Carter de5lre 213178 -3-Reclt.nl F-11 "II .., -n -> r- ,0 "' n 0 ,0 CJ "' .. "' . > z CJ -m (i) 0 ('\ 0 C z ... -< .. % >, ,0 t ,-I "' i -< r I -,W I • CP ,- 0 0 ~ ... ,:, "' n 0 ,0 0 "' ,0 - 1987 to enter into this Agreement. Nothing herein shall be de, supersede or abrogate any or the easements and covenants, with the land affecting the Phase I Public Parking Land c, in the Phase I REA, which easements and covenants shall c1 effect, in addition to the easements and'covenants contair provided that to the extent of any inconsistency between ments and covenants contained herein and said easements ar contained in the Phase I REA, the easements and covenants herein shall govern among the Par tie''. t" this Agreement ar successors. Developer, May and Penney h1::,·eby subordinatt their rights, privileges, easements and interest under the REA to this Agreement solely for the benefit of the PartiE for the benefit of any other Person, including any governn entity. IN CONSIDERATIOtl of the respective covenants, conditi agree,aents h~rein contained, Developer, May, Penney_. Sears and Carter hereby respectively agree as follows:. ARTICLE I DEFitlITIONS As used in this .:greement, the terms defined hereinaft 1n this Article l s~all have the followins respective meani, 1,1 Accounting Period As defined in Section 7.2. 1,2 Agreefflent for Phase II Public Parking As defined in Section 2.2. 1.3 Adjacent Parking The term ,"Adjacent Parking" shall refer to the respecti portions of the Parking Area designated a~ the Adjacent Park of each Major in Section 12.6(8). 1,3A Authority-Carter Parcel The term ."Authority-Carter Parcel" shall refer to the 1 or the Carter Tract described in Exhibit B, Part 8.1, locat, shown on Exhibit c. 713178 _,,_ l. to enter into this Agreement. Nothing herein shall be deemed to supersede or abrogate any of the easements and covenants running with the land affecting the Phase I Public Parking Land contained in the Phase I REA, which easements and c9venants shall continue in effect, in addition to the easements and covenants contained herein, provided tha~ to the extent of any inconsistency between the ease- ments and covenants contained herein and said easements and covenants contained in the Phase I REA, the easements and covenants contained herein shall govern among the Parties to this Agreement and their successors. Developer, May and Penney hereby subordinate all of their rights, privileges, easements and interest under the Phase I REA to this Agreement solely for the benefit of the Parties and not for the benefit of any other Person, including any governmental entity. IN CONSIDERATION of the respective covenants, conditions and agreements herein contained, Developer, May, Penney, Sears, Federated and Carter hereby respectively agree as follows:. ARTICLE I DEFINITIONS As used in this Agreement, the terms defined hereinafter in this Article 1 shall have the following respective meanings: 1.1 Accounting Period As defined in Section 7.2. 1.2 Agreement for Phase II Public Parking As defined in Section 2.2. 1.3 Adjacent Parking The term ,"Adjacent Parking" shall refer to the respective portions of the Parking Area designated as the Adjacent Parking or each Major in Section 12.6(B). 1.3A Authority-Carter Parcel The term ."Authority-Carter Parcel" shall refer to the portion of the Carter Tract described in Exhibit B, Part 8.1, located as shown on Exhibit C. 7/3/78 -4-1.1-1. 3A !988 1.4 Building The term "Building" shall refer to any building on the Shopping Center Site tor use and occupancy by an Occupant. 1.5 Building Height The term "Building Height" shall refer to the height of any Building·, structure, or installation ~n the Shopping Center Site or any portion or portions thereof (exclusive of any roof aerials} • . . • • • • I • • I {TEXT CONTINUES ON NEXT PAGE) 6/22/78 . ·~ ~ -t -) r ~ n r C ~ C u ~ u , 2 C .. n ' C r C C 2 -.t ~ ~ % > :;Ill ,.. ffl ~ .,, • ~ ,.. 0 0 ~ ~ !989 measured to the highest of any of the following components, to wit: the roof of any penthouse (including screen or ~all enclosure), cooling tower, the roof coping, or the parapet wall. 1.6 Carter Store Openin? Oate The terll'i "Carter Store Opening Date" sha!l refer to the date that the Carter Store shall, in fact, first open for business to the &cncr~l ~ublic. 1.7 Center Par~ing The ter~ "Center Parking" shall refer to and include any area (exclusive of any area owned by a governmental entity, bu c 'Y so long as it is owned by a governmental entity) used for Parki~6 Area fro~ ti~e to tiRe o~ the Shoppin& Center Site. l.8 City The ter~ "City" shall refer to the City of Carlsba~, California. 1.9 Coir.ll'ion Area The teri:r. "Coc.w.on Area" shall refer to and include all portions of the Shoppi ns. Center Site which ai-e from time to time in.proved il!"ld available f">r the general non-exclusive use. convenience and oe!'l,.:?fU. of the Partie~ a~d their respective Per~iLtees, exceptin&, however, fro,, Lhe !oregoin& definition: (A) Tho~e po,rtions o( the Shop~in& Center Site which a~e fi-~m Any p~rLion o( Lhe Shoppin& Center Site so occupted shall, upon dedk.-ition, be deer:.ed deleted froin the Shopping Center Site. (U) Truck FacjJitiez. The Cor:.rr,ori Are~ ;;hall .lncluuc.>, Ci) the P'ubUc Parldn6 , { U) the CeJ11t(:"r Parki !!'.I&, H any, < ii D the J-tall, (t v) the Per lmete~ Side~alks, !v) rest roo~s and stairways CadJun~tive to Co~ff.on .A~ca}, . (,ri) su~h portlon:::. of thtt Shoppln& Ce:nt.er SU.et as m.ay be u:.ed as C',o,ti,11,<>n M' "" ir.aiirltvnanc(:" of fli ces and c4u:l pn:.ent SJ1'1d::. and, ( d .l) all utility lines and syste~s Nhlch D~vetopcr ts rcqulred to ma1n~11n, ~ana&c, and o~crate ~ursuant to Sectl~n ll.~. 1.10 Co~n Area Haint.c.>nanl!e Con 213178 -s-l .6-1.11 .. . I 1990 The t.er• "Comrr.on Area Haintenance Cost Allocable Share" shall refer t.o each Party's share of Common Area Maintenance Cost det.er- mined in accordance with Section 7.3. 1.12 Common Building Component As defined in _Section 1).16(E). 1.13 Court l"ne ter= "Court" shall refer to those certain areas within the Hall, on each level thereof, abutting the St.ore of each Major as shown on and so designated on Exhibit C. 1.14 Developer Buildings The t.erm •Developer Buildings" shall refer t.o and include the Phase 1 and Phase 11 Mall St.ore:. and ~he Hon-Mall Buil<Hngs. 1.15 federated Store Opening Date The tern "federat.ed Stor'e Opening Date" shall refer to Ute date that the Federated Store shall, in fact, first open for b~siness to the general publir.. 1.16 floor Area (A) The ter~ "floor Area• shall refer to and include the total nUll',ber of :s.quare feet. of floor space of all floors contained 111 thin a Building( s) located on t.b<C> Sh<..ppi ng Center Site, whe the?' or not such Buildin&(s) shall then be occupied and shall i~clude floor $pace c,f u;,,:s.e1H.-nt fl-:>or (s) and balcony ar:d rr.c:tzankl'\e floor<~.). nea$urcd fror. the exterior facade of tne e~tcrior vall:s. (except party and inter for walls 3$ to which the cent.er thereof, i n:.teac or the exterior faces thereof, shall be used); and snall als~ refer to and include the total nuuber of square re~~ of floor ~pare of all floors or ground coveraee, as the case nay be, c~ntalned vtthln any outslde area or st.ructure~ used ,or the sale or ~erchandise or oth~rw1se e•clu5lvely appropriated for use by an Occupant except as provlded ln (11), (viii) and (ix) of the second succeeding sentence below. lne nllftbG'r or square feett of Floor Arc,a shall not be-reoucerd by flcQ.r space occupied by walls, colU111ns, eleva1.orr., dUIJ'.bwD.)ter:., st.~Lrs, escalators, conveyor$ or by olhet' \nUr'ior con&tt'uctio,n and equipment. 111\.hln $UCh OuUdin.t($). Hotwithst.an.dtn& t.hcr (oregoin&, Floor Aro ahcsll not. incluch: (loor spac~: 0) used Hl"'lu&heJ., to bous.c m.echun- 2/3178 1.12-1.16 " .,, "II -n -> r- ~ m n 0 ,., 0 "' ... CII > z 0 -m G) 0 n 0 C z .... -< ... :c > ,., r-m -< .,, • ,., m n 0 JD 0 m !991 ical, electrical, HVAC, telephone and other such building systems equipment, including trash rooms and trash compacting and baling rooas whether physically s~parated or otherwise required by building codes; Cii) occupied by Truck Facilities: (iii) occuped br the u~-r~r levels of multi-decked storage areas; (iv) of emergency ~xit corridcrs of stairs between fire resistant ~alls required b)' building codes and not contained within any area exclusively appropriated for use by a single Occupant; (v) of any utility vaults of the respective Stores; (vi) of teleco~~unication rooms; (vii) of co~puter rou~s; (viii) occupied by Penney's existing patio shops or outdoor sale areas connected to such patio shops so long as they are not heated or air-conditioned; (ix) occupied by the glass-enclosed ve:t.ibule to the Federated St.ores~ long as said area ~snot used for the sale or display of mr.erchandise, provided said vestibule e::iclusion shall not exceed three thousand (J,000) squal"e feet; and/or ( x} occupied b:, Coat'!.on Area. CB) The floor Arca on t.hc Phase! Land as or. the date or execut.icn of ~bis A&ree~e,t. is as (ol~o~s: Developer Tract, 276,501 square feel, Y~y lract., 1~8,1~9 square feet, Penney Tract, 154,093 square reel. U()On the completion of any cons.truction on its Tract, each Party shall certify to the other Parties the number or square feet or i::::~tiall:, r :;.ut.sequ{:nlly cori:r.t.ruct.icd Floor Area on s..icn Tract. lf there is any di:.agree1u:mt. about. any cert.tf'ication of square feet of Floor Area, the gat.ter shall be resolved b1 arbitra- tion ln accord~nce w1t.h Article 21. (C) llot.wU.h$tandJn,g anyt.hlng contained in t,1h Age-eeinent., during t.he p.irrlod of any dana&e, de:s.t.ructlon, razing, ret>uJ.lgin&, repairing, or r<tplt,,:.,,4ent. of any Bi.ailding in t.he Sho,J>ping Cent<H', the Floor•~~~ of ihe Oulldlng $boll be deeaed to be the $ame a:i. the Floor Area <,f i.n,. !luildlng Jmo11u!-1Uat.crly before z.uch per !<>d, and upon the c°"~letion or Lh~ ra~1ng, rebuilding, repalrJnt or replnccmcnt of such euUcUng, i.be Party shall again cau:,.cr it:: arct>'. ,.e=t t<; cut.lfy t.o lhe-ot.her Part.ies t.he rlUll'iber or :.quorcr f'cte·t of Fl<0or Area on ~uch Trar-t. 213178 -1-l.16-1.17 - . I "·~ .. .., -,, ,, -n -> r- ;:111:9 ffl n 0 ::ii' 0 c,, ... c,, > z C -m G) 0 ,., 0 C z ... -< ... :c >t ;:111:9 ,... m -< ,, • GI r- 0 0 ~ ... ,., "' n 0 "' C, 'ffl !.992 other installations or structures, including the Common Area and the Truck Facilities on each Tract. 1.18 Lease The term "Lease" shall refer to any lease, deed or other instru- ment or arrangement whereunder a Person has acquired rights with respect to the use and occupancy of a certain portion of, or floor Area on, the Developer Tract. 1.19 Majors Except as any of said Parties shall be expressly excluded when the term is used herein, "Majors" means May, Penney, Sears, federated and Carter, or the successor of any Major, if such successor becomes thereby a Party as that term is defined herein. 1.20 Mall The term "Mall" shall refer to the enclosed, roofed, air-condi- tioned and ventilated mall and all components thereof and decorative elements therein located as shown on Exhibit C and shall consist of the Phase I Mall and the Phase II Mall. 1.21 Mall Maintenan~e Cost As defined in Section 8,1, 1,22 Hall Stores The term "Mall Stores" shall refer to t.b~ .&,Jld.incs ebv(;(;J113 t.f)e ~"l:....,._....._ ~,..-:.-..T1lt't.ell 0·1 tbe teveiope,· Tract, lc.cated as shown on Exhibit. c, and shall consist of the Phase I Mall Stores and the Phase II Mall Stores. 1,23 Mortgagee and Mortg~ge The term "Mortgagee" shall refer to a mortgagee under any first mortgage and a trustee and beneficiary under any first deed of trust, and to the extent applicable, shall include a fee owner or any Tract which is the subject of a lease to any Party as lessee in a qualifying sale and leaseback or othar qualifying lease transaction covered by Section 27.11, including the leases referred in Section 27.11(8). The term "Horteage" shall refer to any first mortsage, first deed of trust, and to the ext~nt applicable, a qualifyins sale and leaseback or other qualifying lease trans-action covered by Section 27,11, includinc the lease trans~ctions referred to in Section 27.ll(B). Except as expressly otherwise provided in tnis 2/3178 -8-1.18-1.23 . "Tl "Tl -n -> r- "' m n 0 "' C "' ... "' . > z C -m (i) 0 n 0 C ~- -4 -< ... :c > "' r-m -< "Tl • DI r- 0 0 ~ .. ,0 ffl n 0 ,0 0 '" ,0 !993 Agreement, the term •Mortgagee• shall not include any or the fore- going Persons when in posses$1on of the Tract of any Party. 1.24 New Public Parking Lot Operating Agreement As defined in Section 11.l(B). 1.25 Non-Hall Building Sites i'he term •Non-Hall Building Sites• shall refer to the areas so de~ignated located as shown on Exhibit C. 1.26 Non-Hall Buildings The tern "Hon-Hall Buildings• shall refer to the free-standing Buildings and structures within the Hen-Kall Building Sites. 1.27 Occupant The term •Occupant• shall refer to any Person from time to tille e1atit.led to the use and occupancy of floor i\!'"ea on the Shoppin11, Cent.er Site, and shall also include each Majo!'" and the .. espective licensees, concessionai!'"es, tenants and subtenants or each Major. 1.28 Parking A .. ea auto•obile parking f!'"Olill til•e to Um,e on the Shopplnc Cent.e~ Site, and s~all consist of the Public Parkin& and any Cente~ ra~kln& and shall include t.he following cooponent.s as a)a,y be lccate 1 therc.>on: roads, d!"ives, walkway:,;, sidewalks a,1d cu'."'b:; ( excl u:.1 ve of Pc'." ime1.e!'" Sidewalks) 1 t?"affic lanes, tr-attic ai:!;les, ent.!"'ance:s. f!"om. and edt.s to public !"Oads, vchicula!" pa!"king spaces, spaces bet.ween vehicula~ pa!"'king spaces (including land.scape·d a!"ea.s and .i!"l"'i&at.ion $yiu,e,u the!"'efor), light.ing standa!"dS, t.!"affic di!"ectional sign~. t.he concrete bo• culve!"t. and the SU!"facc pa!"king deck (ove-the flood control channd) wblcfl •ay be-located on Uut Public Pa,.klns. Land. 1.29 P•rkJng Autho!"lty The tern •Pa!"klng Autborlt.y• shall rete!" tot.he Pa!"klng Authority or the City or Ca!"lsbad. 1,30 Parking lat.to 1be ter• •Parking Ratio• shall rer~~ to the ratio 4et. ro,-t.h Jn SoctJon 11. 3(0 >. 8/3178 -9- , . ..... .,, • :"°'"'lo "Tl "Tl -n -> r- ,a m n 0 ,a 0 "' ... "' . > z C -m Q 0 n 0 C: z .... -< ::z: > ,a r-'" -< "Tl • GI ,.. 0 0 3 ... !99~ 1.31 Party The term "Party" shall refer to Develnper, May, Penney, Sears, Federated or Carter or any successor Persnn of any Party acquiring an interest in or to such Party• s Tract, provided such a:,uccess1,r shall not be a Party if: (1) The interest transferred is by way of Mortgage and th~ transferring Party retains the entire possessory interest in the Tract or port.inn thereof so transferred; or (2) The ~ransfer is fnllowed immediately by a leaseback of the same Tract or portion thereof by the transferring Party or an affiliate therenf (a sale and leaseback), in which event or.ly the lessee in possession shall have the status of Party, $0 long as the lease in question has not expire~ or been terminated; nr (3) The transfer is by way of a lease othtr than as prnvided in (2) above; or (II) The successor-acquires by such transfer: • (a) l1ess than all of a Party• s Tract; or (b) An undivided in~erest, such as thaL of joint tenant, or tenant in common, nf such Party's interest in its Tract, nr such as that of a beneficial owner with others of such Party's interest in its Tract. In the circumstances descrjbed in this subparagraph (q), the Persons holding all of the interest in such Tract are to be jointly considered a single Party. In order that other Parties shall nnt be required, with respect to said Tract, to obtain the action or agreement of, or to proceed against, more than 01Je ·Person in carry- ing out or enforcing the terms, cnvenants, provisions and cnnditions of this Agreement, then in the circumstances descrfbed in subpara- graph (q)(a) above, the Persons hnlding the interest of the Party in and to not less than seventy percent (70S) of said Tract in question, and 1n the circumstances described in subparagraph (q)(b) abnve, the Persons hnldine nnt less than seventy percent (701) in tnterest in such Party, or the holders nf undivided interests totaling nnt less than seventy percent (70j) nf the entire estate in and tn aaid 1/20/78 -10- .. (g ·-n -l> r- ,a m n 0 ,0 0 CII ... CII > z 0 -m G> 0 n 0 C z .... -< ... :c > ,0 r-m -< '"" • DI r- 0 0 3 ... ,a m n 0 :PD C ffl :,cJ !995 Tract in qucstinn, shall desienate n~e nf their number as such Party's Aeent to act on behalf of ~11 such Persons. If any Tract is owned by Persons owninc an undivided inter est th<.f',.?in under any form of joint or common ownership, then in the determination of such seventy percent (70l) in interest. each such owner of such undivid~d interest shall be deemed to rcpr(;scnt. .. i!C:"'centa~c i. interest in the whnle nf such Tract equal to his fractional interest in such Tract. Any interest owned by any Person who i~ a minor or is likcuisc suffer in& under any lecal disability shall ;_. J' <1regc1rded in the making of such desi&nalion unless there is at. such ti.me a duly 3ppoint.ed &uardian nr other le&al represe,1tative f1..lly empnwered t.o act. on behalf of ~uch Pcr~~n. Jn the absence of such written de~isnatinn, the acts oft.he Party whose interest is sn divided nr held in undivided interests (whet.her or not he retains any int.ercst. in t.he Tract. in quest.inr,} sh.all be bindin& upon all Persons having an in}ere~t. in said Tract. in q!1estinn, ur.t.il such t.~,r.e as i.rilt.en notice of such design;it.f,in Js given and recorde-d ir. the Office or the Cnunt.y Recorder or t.he Count.y and Stale In which said Tract is located. and a cnpy thereof ls nerved upon c~ch nf t.hc other Parties in accnrdancc with the provision~ or Artic1 c 22, exc~pt. t.hat $UCh nnticc shall be rurnishP.d by re&ist.ered nr cert.lfied ~all, return receipt. requested; provided, bouevcr, in the fnllnu.tnr.:. tnst.anc·C?s all of t.he nthel" Parties act.trig jointly• nr in t.he failure of such Joint. act.inn an, other P;..rt.y, ot. any t..ine &ay nake such d~stgnat.tnn of the Part.y•s Agent: 1/20/78 (i) Jr at. any t.ine aft.er any designot.lon of a tart.y•s Agent. h acenrdance with t.he prnvh,ion:. of t.bh aubparograph (~) 1 t.her• :s,hall for nny re-oson bo no dul Y do.st&nat4!'d Party'$ A&cnl. nf whn$e a,pp,0Jnt111cmt. ol l other Part.lo:. have been not.i(iod 0$ heroin provided; M (Ii) Jr• Party'$ Acent ho$ ~~t been an dcatenntcd •nd .such writ.ton not.ice nf do~lcnntinn ha$ not boon given thJrty (30) day:s orte-r eny nt.~or Part.y $hall 1.31 !.996 become aware ~r any chanee in the ownership nf any pnrtinn ~C the Shnpping Center Site; ~r (iii) tr the designation of such Party's At~qt earlier than the expiration of such thirty (30) day perin~ shall be reasonably necessary tn enable any other Party to comply with any of its obli&atinns under this Agreement or tn take any other action which may be necessary to carry out the purposes or this Agreement. The exercise nf any pnwers and ri&~ts or a Party under~~-. Agree.sent by such Party's AGCnt shall be bindin& upon all Persons having an int.ere:.t in a .. , Tract. owned by such I-arty., Such P.:>"ty•s Agent shall, so lon& as such designation re~ains in effect, be a Party hcr,under and the rc,-,ainin& Persons ownin& the Parcel in quest.i~n shall be deemed no~ to be Parties. The other Pdrties shall hove th<: right to deal vil.h and rely upon I.he acts nr omis~inns or such Party's Agent ii:i the perft1:-llliancc of this A&l"ecm<:nt.; but such " de5i&nation shall nt>t, hm,~v~,.., .. el 1 eve .?ny Per :;on from the obli&.:it.1 nr,.:; Any Person desienated a Party's A&ent pu1"$Uant to the prov1sfros ot thi.$ subv~ragrapb (II), shall be the a&ent of the principals, upnn whon service or any process, wr1t, sum.=ons, order or other mandate nf any nature, of any court in any action, suit or proceedin& arisin& out of thi3 Acrecment, or any d~~and for arbitrotlnn may be made, and service upon $UCh Party's Agent shall constitute due and proper .service of any such •atto· upns, the principal. Until a successnr Party's Acent bas been appointed and not.lee of such appointment has been ghcn pur~~.ant t.o t.he provisions ,:,f .. h.l.s subparagraph (ij), t.he previou.:5 designat.lon of a Porty•s Agent shall refto!.n lrrevocat>fe. Upon any transfer, whJch transfer would ercate a new Porty pur6uant 1.4' the I.eras berctnf, t.hctn t.hc pc,wers, r1ght.s and int.crest. herctha conferred ilpnn such new Part.y wlt.h rctspcct tt1 t.hct Troct. so conteyctd, sholl be deemed assienctd, t.ransrcrr~d or conveyed to such t.rons(erco and tho oblieat.!ons herein conferred upon such 1/20178 -12-1.31 - • • • t -l r ' " ( ( , t " .... " ) -~ C -n (i C r C C 2 - :I , ,. I'" " ... ~ • GI I'" C C 3 ... ,. " r C ,. C " ,. !997 new Party shall be deemed assumed by such transferree with respect to the Tract so acquired. As used in this Section 1.31, the term "transfer" means a sale, gift, bequest, devise, as~lgnment, conveyance, reversion of title, corporate succession of any kind and any other means of transferring an interest in real property from one or. more Persons to another Person or Persons. For the purposes of this Section 1.31, a Person shall be deemed to own an interest in the Developer Tract only to the extent it owns an interest in the Developer Tract exclusive of the f !bl' ... Parking Land and in no event shall any governmental entity be a ~arty. 1.32 Penney Mai~ Store Building The term "Penney Main Store Building" shall refer to the Build- J ;'lg(s) constructed on the portion of the Penney Tract desienated "Penney Main Store Building" on ~xhibit C. 1,33 Penney TBA Buildine The term "Penney TBA Building" shall refer to the 8uilding(s), • improve111ents, and installations constructed on tt.:: portion nf the fe111,cJ Tn:ct. cc:;i.;nat.cc '·i·enncy Ti.la Site" on £xiiioit C. l,Jq Perimeter Sidewalks The term "Perimeter Sidewalks" shall refer to and include the sidewalks, from the building race to and including the curb, (and any landscaping within such area) adjoining the perimeters of the Buildinss of each Party, and shall include col~ectively all or the Perimeter Sidewalks on the Tracts or all Parties, as the cor.text may require. 1.35 Permissible Building Area As d~fined in Section J.l. 1,36 Permittees The term "Permittees" shall rerer to and include Developer and all Occupants and all of their respective officers, directors, e-ployees, cnents, contractors, customers, visitors, licensees, invitees, tenants, subtenants and concessionaires, and the respec- tive officers, directors, employees, agents, contractors, customers, visitors, licensees and invitees of ~uch tenants, subtenants and concessionaires. 1/20/76 -13-1. 32-1. 36 !.998 1,37 Person The term "Person" shall refer to and include individua: also partnerships, firms, associations and corporations, or other form of busir.ess or juridical eni&ty. 1,38 Phase 1 ·Land The term "Phase 1 Land" shall refer to the _portion of t. Shopping Center Site described in Exhibit A, Part 2 located , on Exhibit C (and includes the Phase I-A Public Parking Land the Phase I-B Public Parking Land.) 1.39 Phase l Mall The term "Phase I Mall" shall refer to the portion of ti:, Mall on the Phase I Land located as shown on Exhibit C and th1 designated "Pha~e I Mall". ,, 1.no Phase I Mall S~ores The term "Phase I Mall Stores" shall refer to the portior the Mall Stores on the Pha~e I Land located as shown on Exhibi and thereon designated "Phase I Mall Stores". 1.u1 Phase I Publi~ Parkin~ The terrn "Phase I Public Parking" shall refer. to that por the Parking Area on the Phase I Public Parkins Land, on the Ph I-A Public Parking Land upon the completion of the imp~ovement as re,erred to in this Agreement, and on the Phase I-B Public Land upon the completion of the improvement and conveyance the the Parking Authority, as referred to in this Agreement, 1.42 Phase I Public Parking Land The term "Phase I Public Parking Land" shall refer to the portion of the Shopping Center Site described in Exhibit D, Pai 2, located as shown on Exhibit c. 1,43 Phase I REA As defined in Recital£. 1.44 Phase I-A Public Parking Land The term "Phase 1-A PubLc Parking Land" shal-1 refer to ti portion of the Shoppi~a ;enter Site described in Exhibit B, Pai 2,1 located as shown on Exhibit C. 213178 l.37· 1~37 Person The term "Person" shall refer to and include individuals and also partnerships, firms, associations and corporations, or any other form of business or juridical entity. 1.38 Phase I Land The term "Phase I Land" shall refer to the portion of the Shopping Center Site described in Exhibit A, Part 2 located as shown • ~n Exhibit C (and includes the Phase I-A Public Parking Land and the Phase I-B Public Parking Land.) 1.39 Phase I Mall The term "Phase I Mall" shall refer to the portion of the Mall on the Phas~ I Land located as shown on Exhibit C and thereon designated "Phase I Mall". 1.40 Phase I Mall Stores The term "Phase I Mall Stores" shall refer to the portion of the Mall Stores on the Phase I Land located as shown on Exhibit C and thereon designated "Phase I Mall Stores". 1.41 Phase I Publ:c Parking The term "Phase I Public Parking" shall refer to that portion of the Parking Area on the Phase I Public Parking Land, on the Phase I-A Public Parking Land upon the completion of the improvement thereof, as referred to in this Agreement, and on the Phase 1-B Public Parking Land upon the completion of the improvement ~~d conveyance thereof to the Parking Authority, as referred to in this Agreement. 1.42 Phase I Public Parking Land The term "Phase I Public Parking Land" shall refer to the portion of the Shopping Center Site described in Exhibit B, Part 2, located as shown on Exhibit C. 1.43 Phase I REA As defined in Recital E. 1.44 Phase I-A Public Parking Land The term "Phase I-A Public Parking Land" shall refer to the portion of the Shopping Center Site described in Exhibit B, Part .2.1 located as shown on Exhibit C. 2/3/78 -14-1.37-1.44 !_999 1.45 Phase I-B Public Parking Land The term "Phase I-B Public Parking Land" shall portion of the Shopping Center Site described in Exh 2,2, located as shown on Exhibit C. 1.46 Phase II Developer Construction As defined in Section 6.2. 1,47 Phase II Land The term "Phase II Land" shall refer to the por, Shopping Center Site described L1 Exhibit A, Part 3 : shown on Exhibit c. 1.48 Phase II Mall The term "Phase II Mall" shall refer to the port Mall on the Phase II L&nd located as shown on Exhibit designated "Phase II Mall". 1,49 Phase II Mall Stores The term "Phase II Mall Stores11 shall refer to tl the Mall Stores on the Phase II Land located as shown and therein designated "Ptase II Mall Stores11 • 1.50 Phase II Parking The term "Phase II Parking" shall refer to the po Parkin& Area on the Phase II Land. 1.51 Phase II Public Parking The ter,a •Phase II Public Parking" shall ref<:r to of the Parking Area on the Phase II Public Parking Lan< Phase II-0 Public Parking Land upon the respective comi the improvement and conveyance thereof to a governmenta as referred to in this Agreement. 1.52 Phase II Public Parking Land The term "Phase II Public Parking Land" shall refei portion of the Shopping Center Site described in Exhibit located as shown on Exhibit c. 1,53 Phase 11-0 Public Parking Land The term "Phase II-0 Public Parking Land" shall ref, portion of the Shopping Center Site described in Exhibit 3,l, located as shown on Exh1b1t c. 7/.1/7,9 -.Jff-,J, 1.45 Phase I-B Public Parking Land The term "Phase I-B Public Parking Land" shall refer to the portion of the Shopping Center Site described in Exhibit B, Part 2.2, located as shown on Exhibit C. 1.46 Phase II ·oeveloper Construction As defined in Section 6.2. 1.47 Phase II Land The term "Phase II Land" shall refer to the portion of the Shopping Center Site described in Exhibit A, Part 3 located as shown on Exhibit C. 1.48 Phase II Mall The term "Phase II Mall" shall refer to the portion of the Mall on the Phase II Land located as shown on Exhibit C and thereon design£ted "Phase II Mall". 1.49 Phase II Mall Stores The term "Phase II Mall Stores" shall refer to the portion of the Mall Stores on the Phase II Land located as shown on Exhibit.C and therein designated "Phase II Mall Stores". 1.50 Phase II Parking The term "Phase II Parking" shall refer to the portion of the Parking Area on the Phase II Land. 1.51 Phase II Public Parking The term "Phase II Public Parking" shall refer to that portion of the Parking Area on the Phase II Public Parking Land and on the Phase II-0 Public Parking Land upon the respective completion of the improvement and conveyance thereof to a governmental entity, as referred to in this Agreement. 1.52 Phase II Public Parking Land The term "Phase II Public Parking Land" shall refer to the portion of the Shopping Center Site described in Exhibit B, Part 3, located as shown on Exhibit C. 1.53 Phase II-0 Public Parking Land The term "Phase II-0 Public Parking Land" shall refer to· the portion of the Shopping Center Site described in Exhibit B, Part 3.1, located as shown on Exhibit C. 7/3/78 -15-1.45-1.53 2000 l.Sq Planned Floor Area The term "Planned Floor Arean shall refer to the Floor Area which each Party has designated in Section J.2(A), which amount of Floor Area has been utilized in this Agreement for purposes of dete mining each Party's Common Area Maintenance Cost Allocable Share, a for determ!n1ng the extent of the Parking Area required for the Shopping Center. 1.55 Planned Phase II Opening Date As defined in Section 5,2(8), 1.56 Planned Carter Opening Date As defined in Section 5.2(D). 1.57 Intent-ionally Omitted 1.58 Project Arc~itect The term "Project Architeut" shall refer to Ronald T. Aday, Inc., Architects, of Pasadena, California, or such other architect or architects designated by Devel?per, from tim~ to time, and approv by the Majors as hereinafter set forth. If, (1) there shall exist a vacancy jn thP. po~ition ~r Project ArchftP.ct, or (if) OP.VP.loper shall desire to discharge the Person occupying such position (provid however, no such discharge shall occur until a successor Project Archit~ct shall have been engaged, as hereinafter provided), then in either event, Developer shall promptly select a successor Project Architect, subject to the approval of the Majors. 1,59 Project Improvement Requirements ~ ~, .... ({~")"$>>._..._ ~:,i,_;,;,:,-2>:,>5>,!>.z>:;>.-.>,p..v.>?~ .... ~.r.r» ,.r.;;././ /.d"h/ /,::, .u, ~~/~-" 4/'./'4<fi?~""'*'4Y..V ~,,,a, /~R"/ AP~ .4!v.A' ~ ~A'~ ~/#'.Ae""~ /.,4',A,'~ ~./YAP// ~~./,7 4 ~// -4 .Ldf# .,.....,,.p,r/1/.t',.e ~ ..... ,t!',9 The term "Proximity Area" shall rerer to the respective portions of the Mall Stores des1gnated as the Proximity Area of each Major in Section 3.8(8). 1.61 Public Parking The term "Public Parking" shall refer collectively to the Phase I Public Parking and thP. Phase II Public Parkfng. 5/10/';'8 -16- - 1.54 Planned Floor Area The term "Planned Floor Area" shall refer to the Floor Area which each Party has designated in Section 3.2(A), which amount of Floor Area has been utilized in this Agreement for purposes of deter- mining each Party's Common Area Maintenance Cost Allocable Share, and for determining the extent of the Parking Area required for the Shopping Center. 1.55 Planned Phase II Opening Date As defined in Section 5.2(B). 1.56 Planned Carter Opening Date As defined in Section 5.2(D). 1,57 Intentionally Omitted 1.58 Project ArcLJitect The term "Project Architect" shall refer to Ronald 1'. Aday, Inc., Architects, of Pasadena, California, or su0h other architect or architects designated by Developer, from time to time, and approved by the Majors as hereinafter set forth. If, (i) there shall exist a vacancy in the position of Project Architect, or (ii) Developer shall desire to discharge the Person occupying such position (provided, however, no such discharge shall occur until a successor Project Architeot shall have been engaged, as hereinafter provided), then in either event, Developer shall promptly select a successor Project Architect, subject to the approval of the Majors. 1.59 Project Improvement Requirements The term "Project Improvement Requirements" shall refer to the specification of requirements with respect to the Phase II Developer Construction, attached hereto as Exhibit D, Part 1. 1.60 Proximity Area The term "Proximity Area" shall refer to the respective portions of the Mall Stores designated as the Proximity Area of each Major in Section 3.8(B). 1.61 Public Parking Th~ term "Public Parking" shall refer collectively to the Phase I Public Parking and the Phase II Public Parking. 5/10/78 -16-1.54-1.61 ~UU.l 1.62 Public Parking Documents The term "Public Parking Documents• means all instruments re- specting the Phase I Public Parking referred to in Section 2.1, the Agreement for the P~ase II Public Parking and all other instruments that are executed and delivered pursuant to the Agreement for the Phase II Public Parking. 1.63 Public Parking Land The tern "Public Parking Land" shall refer to the portion of the Shopping Center Site described in Exhibit B, Parts 2, 2.1, 2.2, 3 and 3.1. 1.6-Public Parking Operati~g Agreement As defined in Section 11.l(D). 1.65 Retail Facility The tern •Retail facility• refers to Buildings used ror the sale of goods, wares, merchandise and services to the general public, containing not less that or.e hundred thous~nd (100,000) s1uare feet of Floor Area. 1.66 ~ears Store Opening Date The tern •sears Store Opening Date• shall refer to the date that the Sears Store shall, in fact, first open for business to the gene!"al ;:ut?ic. 1.67 Shopping Center The te!"n •shopping Center• shall refer to the land and iM- provetments on the entt~e Sbopplng Center Site. 1.68 Shopping Center Site The,ter• •s,,oppine Center Site• shall refer" to the land described in £,chibit A, Pa,.t 1 located as show on Exh.lbit c. 1.69 Slope Agrcte•ent Thi" tel"• •stove Agreeeent• &hall ,-efe!"' to that certain agree- ~ent, dated Ap!"il ZO, 1966, ocong Developer, Hay and the owners ot the Slope Area recorded on April 21, 1966 in the orr1ce or the County . Recorder of San biego County as DoCU111ctnt No. 66916, a~ a~ended by those certain agreenents, dated Jul1 28, 1969, and August lS, 1978 re- s~etively, aMone Dfty,~lopP.r, Hay, PennPy nn,t th~ owners or \he Slor,. 8/111178 -17- "Tl "Tl -n -> r- ::0 m n 0 ,a t:1 "' ... "' > z C -m Ci) 0 n 0 C z -f -< :c I >. ::0 r-mi -( r '"" I • GI r- 0 0 ~ ... 2002 Area, recorded in the Office of the County Recorder of San Di July 28, 1969 as Document No. 135915 and/J~~-/~as Docu No. tf-..Jt/&*11, respectively, 1.70 Slope ArP.a The term "Slope Area" shall refer to the land described Exhibit K. 1. 71 Store The term "Store" shall refer to the Buildings on each of Tracts and shall include as to Penney the Penney TBA Building, except where specifically otherwise provia~ 1.72 Termination Date Subject to the provisions of Section e7,14 hereof, the te "Termination Dat.;" shall refer to the date of termination oft Agreemf.:nt, which shall be June 30, 2068, or the first date on 1 none of the Majors shall be operating a Retail Facility on the Shopping Center Site, W?ic~ever _date shall first occur; provid1 however, no temporary interruption in the operation of a Retail 20 hereof, or (2) due to repair, alteration, expansion, reconst tion ~total or partial), relocation, or replacement of such ret facility, or (3) for any other reason for a period not ~xceedin one (J) month, shall be deemed to constitute a cessation in ope: tion of a Retail Facility on the Tract in question. 1,73 Tract The term "Tract" shall refer to either the Developer Tract, Hay Tract, the Penney Tra~t, the Sears Tract, the Federated Trac the Carter Tract or any two or more of them, as the context may appropriately require. 1,74 Truck Facilities The ter• "Truck Facilities" shall refer to the loading and parking facilities, docks and ramps provided ror trucks on each Tract. A.RTICJ.£ 2 PHASE I AND PHASE II PUBLIC PARKING 2,1 Phase I Public Parking Documents The Phase l Public Parking is at the present time used as Area, recorded in the Office of the County Recorder of San Diego on July 28, 1969 as Document No. 135915 and as Document No. , respectively. 1.70 Slope Area The term ''Slope Area" shall refer to the land described in Exhibit K. 1.71 Store The term ''Store" shall refer to the Buildings on each of the Tracts and shall include as to Penney the Penney TBA Building, except where specifically otherwise provided. 1.72 Termination Jate Subject to the provisions of Section 27.14 hereof, the term "Termination Date" shall refer to the date of termination of this Agreement, which shall be June 3G, 2068, or the first date on which none of the Majors shall be operating a Retail Facility on the Shopping Center Site, whichever date shall first occur; provided, however, no temporary interruption in the operation of a Retail Facility on any Tract: (1) for a cause or event ~ct forth in Article 20 hereof, or (2) due to repair, alteration, expansion, reconstruc- tion (total or partial), relocation, or replacement of such retail facility, or (3) for any other reason for a period not exceeding one (1) month, shall be deemed to constitute a cessation in opera- tion of a Retail Facility on the Tract in question. 1.73 Tract The term "Tract" shall refer to either the Developer Tract, the May Tract, the Penney Tract, the Sears Tract, the Federated Tract or the Carter Tract or any two or more of them, as the context may appropriately require. 1.74 Truck Facilities The term "Truck Facilities" shall refer to the loading and parking facilities, docks and ramps provided for trucks on each Tract. ARTICLE 2 PHASE I AND PHASE II PUBLIC PARKING 2.1 Phase I Public Parking Documents The Phase I Public Parking is at the present time used as 7/13/78 -18-1.70-2.l 2003 a public parking lot pursuant to the Parking Law ~f 1949 and is used by Developer, Ma)· and Penney and their Permi ttees as a public parking lot pursuant to the following instruments: (A) Resolution No. 5 adopted by the Parking Authority on August 21, 1969 authorizing the issuance of revenue bonds to pur- chase the Phase I Public Parking. (B) Gra~t Deed dated October 21, 1969, recorded the same day in the records of the San Diego County Recorder as Docurnert No. 193480, whereby Developer conveyed Phase I Public Parking L~. 1 to Parking Authority anr' Grant Deed datedC\USjCJst:;3 1978 recorded on the same date as this Agreement in the records of the San Diego County Recorder whereby Developer conveyed the Phase I-A Public Pa~king Land to the Parking Authority. (C) Lease Agreement dated August 21, 1969, and effective as of October 21, 1969,_as amended by an Amendment thereto dated A u61J$T" 3, 1978, whereby the Parking Authority, as lessor, leased the Phase! Publio Parking to th~ City, as lesse~. (D) Public Parking Lot Operating Agreement dated November 24, 1969, as amended by an Amendment thereto dated Au6usr 3' 1978, aMong Developer, the Parking Au~hority and the City, whereby the City and Parking Authority employed Developer to manage and operate the Phase I Public Parking. (£) Amendment to Deed Covenant~, Conditions, Restrictions and Reservations; Subordination Agreement; and Grant of Parking Ease- ments among Developer, the Parking Authority, the City, May, Penney, Sears, Federated, Carter, Hay Properties, Inc. and New Marjoram hSOC:.1.ates, dated -Av&,usr 3, 1978 recorded On t~e Same date 'BS ~hi~ Agreement in the records of the San Diego County Recorder, whereby among other things, the provisions of the Grant Deed dated October 21, 1969 were amended. Developer shall not agree to any modiflcatior. of the foregoing instruments for the Phase I Public Parking unless it first obtains the written approval of all of the Majors. 7/21/78 -19-2,1 It -n -> .... ;a m n 0 ,a 0 Cit .. Cit > z CJ -m Ci) 0 n 0 C z ... -< .. :J: > ;a .... m -< ,, • DI .... 0 0 ~ .. ;a m n 0 ,a C, "' ,a 200.~ 2,2 Phase II Public Parking Documents {A) Developer at the·present time is the owner of the Phase II Public Parking Land on which Phase II Public Parking will be construc- ted. Developer has entered into an agreement dated November 5, 1975, with the City and the Parking Authority which agreement was amended by a First Supplement thereto dated February 3, 1976, d Second Supplement thereto dated May 11, 1976, a Third Supplement thereto dated November 16, 1976, and a Fourth Supplement thereto dated August 3, 1978, The aforementioned agreement, as amended, is herein referred to as "Agreement for the Phase II Public Parking". The Agreement fo~ the Phase II Public Parking provides for the Developer to construct Parking Area on the Phase II Public Parking Land, and to convey the Phase II Public Parking Land to the Parking Authority upon completicn of the construction of said improvem~nts pursuant to a form of grant deed, (which shall be subject to the approval of each Major), containing a deed rest?"ic~ion limiting its use to a municipal parking lot operated without charge to the public unless ~uch cha!"ge to the publi'c is !"equired by another gove!"nmental entity other than the Parking Autho!"ity or the City, o!" any agency or instrumentality thereof, as a part of a pa!"king management program, transport;.·tion control plan, or ether government. regulation of parking and such charge cannot be legally absorbed by the Pa!"king Authority or its successors and assigns. Said deed restriction ahall be a condition subsequent, the failu!"e of performance or which will entitle Developer to terminate the Parking Authority•s inte!"est and to reenter the Phase II Public Parking Land. The City has agreed simultaneously with the conveyance to lease the Phase II Public Parking Land and the improvements thereon from the Parking Authot·ity at a rental sufficient tc service the debt evidenced by revenue bonds to be issued by the Parking Authority, and City is obligated to enter into an agreement with Developer to operate and manage the Parking Area on the Phase II Public Parking Land. In the event Developer shall fail to commence and thereafter diligently to perform the const!"uction of the Phase II Public Pa!"king as provided 811111?8 -20-2.2 .,, .,, -n -> ,- ::,a m n 0 ::,a C "' ... "' . > z C -m Ci) 0 .n 0 C z ... -< :c > ::,a ,-m -< .,, • GI r- 0 0 ~ ... 2005 for herein, then the Majors, or any one or more thereof, shall have the right to take over such construction, as provided in Section 6.6. A copy of the Agreement for the Phase II Public Parking has been delivered by Developer to each of the Majors and each hereby approves the same. Developer shall not agree to any modification or termination o; the Agreement for the Phase II' Public Parking unless it first secures the prior written approval of each Major. CB) It is contemplated that Developer may enter into a further agreement for the construction of additional Fhase II Public Parking on the Phase 11-0 Public Parking Land, The tern~ a~i conditions of any such further agreement shall be subject to the h~proval of the Majors, insofar as they relate to the use and operation of the Parking Area on the Phase 11-0 Public Parking Land, the nature of the improvements to be constructed thereon, the plans and specifica- tions therefor, the timing of construction thereof, the provisions of any conveyance of the Phase 11-0 Public Parking Land, and any provisions which would impose any lie~ or charge on any portion of the Shopping Center Site or affect the operation or cost of operation (including taxes and assessments) of any Common Area pursuant to this Agreement or affect the operation or cost of operation (including taxes and assessments) of any Hajo~•s Tract, provided such approval shall not be required for any terms and conditions which are the same as those regarding the Phase II Public Parking Land. As hereinafter used in this Agreement, the term "Agreement for the Phase II Public Parking" and the term "Public Parking Documents" shall include any such further agreement, provided it has been so approved to the extent such approval is required. z.3 Phase I-A and Phase 1-B Public Parking Land; Authority- Carter Parcel (A) Developer represents that: (1) The Phase I-A Public Parking Land waa acquired by the Parking Authority from Developer in exchange for a portion of the Federated Tract, which was tormerl:: part of the Phase I Public Parking Land; 7113178 -21-2.3 2006 (2) The Phase l-A Public Parking Land is subject the legal agreements with respect to the Phase I Publi embodied in the instruments ref~rred to in Section 2.1 (3) The portion of the Federated Tract which was part of the Phase I Public Parkine Land has been relea the instruments referred to in Section 2.1. (B} At the presenL time, the Authority-Carter Parcel by the Parking Authority and is subj&~~ to the Phase I Publ documents referred to in Section 2 .1. Am<· 6 the arrangeme., Lemplated by Section 27,18 in connection with the obl!gatio • I I • • • I • I {TEXT CONTIIWEO OF HEXT PAGE} 7113178 -21A- (2) The Phase I-A Public Parking Land is subject to all the legal agreements with respect to the Phase I Public Parking embodied in the instruments referred to in Section 2.1; (3) The portion of the Federated Tract which was formerly part of the Phase I Public Par~ing Land has been released from the instruments referred to in Section 2.1. (B) At the present time, the Authority-Carter Parcel is owned by the Parking Authority and is subject to the Phase I Public Parking documents referred to ·in Section 2.1. Among the arrangements con- templated by Section 27.18 in connection with the obligations of * * * * * * * * * * ' * {TEXT CONTINUED OF NEXT PAGE} 7/13/78 -21A-2.3 2007 Developer and Carter referred to therein is the acquisition by Devel- oper of the Authority-Carter Parcel from the Parking Authority in exchange for the Phase I-B Public Parking Land and the rElease of the Authority-Carter Parcel from the Phase I Public Parking doc- uments referrid to in Section 2.1. · Upon such acquisition, the Authority-Carter Parcel will be conveyed to Carter or leased to Carter, subject to later conveyance upon conclusion of the arrangements contemplated by Section 27.18. Until such time as such pa~ce1 has been conveyed or leased to Carter, the Authority-Carter Parcel snall be part of the Phase I P.ublic Parking and the Developer Tract. Upon conveyance or lease of such parcel to Carter, the Authority-Carter Parcel shall be a part of the Carter Tract for all purposes under this Agreement. (C) Developer shall cause the Phase I-A and Phase I-B Public Parking Land to be improved in ac~ordance with Article 6. ARTICLE 3 LOCATION, SI?E, HEIGHT AND USE OF ~UTtDINGS 3.1 Permissible Building Area As used herein, the term "Permissible Building Area" shall refer to the area or areas on each Party's Tract designated as such on Exhibit C. Ho Buildings shall be constructed on any Tract except within the Permissible Building Area on such Tract. After the initial construction of the Improvements on a Party's Tract, any portion of the Per~issible Building Area on a Party's Tract not used for Buildings or other iniprovements for the exclusive use of such Party or its Permittees, shall be improved as Common Al'e.i by the Party whose Tract is involved and shall remain Common Area until such time as such Party constructs Buildings or other improvements for the exclusive use of such Party or its Permit- tees on such are.·a. Said Common Area shall be landscaped or im- proved as Parking Area, as determined by such Party, so as to be compatible with adjacent landscaping or parking area. 7113178 -22- .., .., -n -l> ,- "' m n 0 "' 0 "' ... "' l> z 0 -m Ci) 0 n 0 C: z .... -< ... :c l> ;a r-m -< .., • a, ,- 0 0 ~ ... "' m n 0 "' 0 ffl "' 2008 J.2 Planned Floor Area (A) The Planned Floor Area on the Tract of each of tl,e Parties and the Shopping Center Site as a whole is as follows: Developer Tract Phase I Mall Stores Building on Non-Mall Bldg. ~ite I Buildings on Non-Mall Bldg. Sites G and H Total for Portion of Developer Tract on the Phase I Land Phase II Mall Stores Total for Portion of Developer Tract on the Phase II ! "Ind Total for Developer Tract May Tract Penney Tract Penney Main Store Building Improvement~ on Penney TRA Sit.~ Total for Penney Tract Sears Tract FPderated Tract Carter Tract Shopping Center Site 2Q2,551 s.f. lQ,QOO s.f. 19,950 s.f. 21·. 501 s.f. 140,000 s.f. lQ0,000 s.f. 416,501 1118, 159 1114, 427 s.f. 12,500 ~ "' ....... 156,927 1118,958 140,900 152,000 1,163,4115 (B) Uotwithstar,ding the foregoing, nothing herein is intended s.f. s.r. s.f. s.f. s.f. s.f. s.f. to put a mRximum limit on the Floor Area on any Party's Tract, In the event that any Party constructs more than one percent (lS) in excess of its Planned Floor Area on its Tract, all such construction shall comply with the following conditions: (1) At least ninety (90) days before beginning construction of such excess Floor Area, such Party shall submit to the other Parties one (1) set of preliminary plans and specifications therefor, Each set of plans will show the location of the building shell of the excess Floor Area (which shall be within the Permissible Building Area of such Party), principal exterior 5/10178 -23-3.2 .. • 2009 dimensions, and the exterior design concept, and will contain a description of materials and landscaping. The Building Height of the excess Floor Area shall not exceed the maximum Building Height perrnitted for the Store of such Party. Such plans shall be submitted to the other Parties for approval as to compatibility with design and decor of the Hal!, (2) Such Party shall provide, at its sole cost and expense,an additional area for automobile parking, either by adding land to its Tract in a location contiguous to the Shor~ing Center Site approved by the Parties, or by construction of a park1r: Jtructure on its Tract in a location approved by the Parties. Such additional area tor automobile parking shall contain sufficient automobile parking spaces so that there shall be the same Parking Ratio for the excess Floor Area as is provided for in Sectio~ 11.J(D) for the Shopping Center Site. Such additional area for automobile parking shall be available for the general non-exclusive use, convenience and benefit or the Parties hereto, and their Permitees, Such Party shall grant to the other Parties the same easernents for parking and passage in, to and over such additional area for automobile parking as are set forth,in Section 10.1. Such additional area for automobile parking shall be designed and constructed in accordance with improvement plans approved by all Parties in like manner as provided in Article 6 hereof for the con&~ruction of the Phase II Parking Area. Such Party shall maintain such additior.al area for automobile parking at its sole cost and expense. Such additional area for automobile parking shall, upon completion, become a part of the Common Area, and it shall be maintained and managed by such Party to the same standards as set forth in Article II. In no event, however, shall any costs ~r operation, maintenance, and reconstruction of such additional are& for automobile parking, including the real estate taxes and assessments and insurance premiums, be included in Common Area Maintenance Cost, as that term is used in this"Agreement. 3.3 Minimum Floor Area and Maximum Height of May Store (A) Hay covenants that until the expiration or earlier 113118 -24-3,2-3,3(A) - 2010 termination of the covenants of May set forth in Section 18.1 the May Store shall contain in the aggregate not less than one hundred thousand (lOOtOOO) square feet of Floor Area (provided, however, May covenants with Developer that for all purposes under this Agreement, including the provisions of Sections 13.6 and 16.1, until f~bruary 9, 1989, said minimum Floor Area·shall be one hun~:·ec! forty thousand (140,000) square feet,provided fur~her, nothwithstand- ing the foregoing, if as a result of fire or other casualty the Floor Area of the May Store is reduced to less than 1110,000 square feet, May shall not be required to restore or rec.·~s· uct the May Store to the extent of more than 100,000 square feet of floor Area), subject, ho~ever, to the following: Cl) A temporary reduction of all or part or a permanent reduction of part of the Floor Area thereof, as the applicable case may be, by reason of any cause or event stated in Article 20. (2) A temporary reduction of all or part of the Floor Area thereof durins the process of razing, restoring, relocation, or removal and ~ebuilding {as may be required) as provided in .sections 13.5 and 13.6. (3) A temporary reduction of all or part of the Floor Area thereof during the course of alteration or remodeling or repairing. Notwithstanding the foregoir.g, the covenants of May contained in this Section 3.J(A) shall not be enforceable in favor of Penney, Sears, federated or Carter, after the expiration or earlier termina- tion of the respective covenants of Penney, Sears, Federated and Cart~r contained in Sections 3.q(A), 3.5(A), 3.6CA), and 3.7(A). (8) Hay covenants that the May Store shall not exceed a Building ·Height of seventy-five (75) feet measured from the finished floor elevation of the lower level Hall adjoining the May Store. 3.11 Mini111um Floor Area and Maximum Height of Penney Store; Maximum Heiqht of Improvements on Penney TBA Site (Ai Penney covenants that until the expiration or earlier 2/3/78 -2s-3.3(8)-3,ll(A) ... ... -ti -,. r- :,a m n 0 ,a 0 "' ... "' > z C -m Ci) 0 n 0 C z -t -< ... ::c > ;a r-m -< ,, . ... ;a m n 0 ;a 0 ffl ;a 2011 terminatinn of the covenants of Penney set forth in Section 18.2, the Penney Main Store Buildins shall cnntain in the aggregate not less than one hundred thousand (100,000) square feet of Floor Area (provided, however, Penney covenants with Devel("per thi.:1:. for all purposes under this Agrecme:it, includi~& the provisions of Sections 13.8 and 18.~, until April 7, 1990, said minimum Floor Area shall be one hundred forty thousand (140,000) square feet, provided further, notwithstanding the foregoing, if as a result of fire or other casualty the Floor Area of the Penney Main Store Building is reduced to less than 1.110, 000 square feet, Penney shall no~ I• required to restore or reconstruct the Penney Main Store Duildin& to the extent of more than 100,000 square feet of Floor Are~) subject, however, to the following: (1) A temporary reduction of all nr part or a permanent reduction of part of the Floor Area thereof, as the applicable case may be, by r_eason of any cause or event stated in Article " 20. (2) A ~c~pcr,ry reductinn of all cw ,-;f the flt,C.i'" Area thereof during the process of razing, restoring, reloca- tion, or removal and rebuilding {as may be required) as prn- ~ided in Sections 13.7 and 13.8. (3) A temporary reouction of all or part of the Floor Area thereof during the course of alter~tion or remodeling or rep;oiring. tlotwithstanding the foregoing, the covenant:; of Penney contained in this Section 3.~(A) shall not be enforceable in favor of Hay, Sears, Federated or Carter, after the expiration or earlier termina- tion of the respective covenants of May, Scars, Federated and Carter cot1t...-ined in Sections 3.3(A), 3.5(A), 3.6(A) and 3.7(A). (B) Penney convcnants that the Penney Hain Store Building shall not exceed a Buildina Height of seventy-five (75) feet measured from the finished flnnr elevation nf the lower level nf the Hall adjoinina the Penney SLore. (C) Penney covenants that the Duildings, improvements and in- 12/9177 -26-3.11(11)-(C) , '"Tl '"Tl -n -> ~ ;a m n 0 :;a C CII ... CII • J> z C -ffl (i) 0 n 0 C z -t -< ... ::i:: J> ;a r-m -< '"Tl • DI ~ 0 0 := ... ,a m n 0 ,a 0 m "' 2012 stallations on the Penney TDJ\ Site shall have a maximum hci&ht nf twenty-one (21) feet abnve the finished flonr elevation of the existing Duildine on said site. 3,5 Minimum Floor Area anJ Maximum Heir,ht of Sears Store CA) Scars covenants t~at com~cncing on the Scars Store Opening Date and continuously thereafter unti_l the expiration or earlier termination of the covenants of Scars set forth in Section 18.3, the Sears Store shall contain in the aggregate not less than one hundred thousand (100,000) square feet of Floor Area, subject, however, to the following: (1) A temporary reduction of all or part or a permanent reduction of part of the Floor Area thereof, as t~e applicable case may be, by reason of any cause or event stated in Article 20. (2) A temporary reduction of all or part of the Floor Area thereof during the process or razing, restoring, relocation, or removal and rebuilding (as. may be reJuired) as provided in (3) ~ temporary reduction of all or part of the Floor Area thereof during the course of alteration or remodeling or ;·epairing, Notwithstanding the foregoing, the covenants of Sears contained in this Section 3,5(A) shall not be enforceable in favor of May, Penney, Federated or Carter1 after the expiration or earlier termina- tion nr the respective covenants of Hay, Penney,Federated and Carter contained in Sections 3.3CA), 3.q(A), 3.6(A)and 3.7(A), (B) Searf covenants that the Scars Store shall not exceed a Buildin& Height nf seventy-five (75) feet measured from the finished floor elevation of the lower level of the Mall adjn1ning the Sears Store. 3.6 Minimum Flnor Arca and Maximum ffc1r,ht nf Federated Stnre CA) Federated cnvenants that cnmrnenctng nn the Federated Store Opcnine Date and cnntinunusly thc!'ctifter until the expiratinn nr earlier terMinatinn nf the cnvcnants nr Federated set forth in Sectinn 1219117 -21-3. 5-3. 6 ,I . I • • • l ' ' r t ( _. t "' ... -n " C r. 0 C z ... -c ... ::c > ::a r-m -< 'Tl • GI r- 0 0 ~ ... "' rn n 0 "' C '" ,a 2013 18.'l, the federated Store shall contain in the acgregatc nnt less th.in one hundred thousand (100,000) square feet of Flnnr Area subject, hnwever, to the followina: (1) A temporary reduct.inn nf all or part 01· a permanent reduction of ~art of the Floor Area therof, as the applicable case may be, by reason of any cause or event stated in Ar.,icle 20. (2) A tempnrary reduction nf all or part of the Floor Area thereof during the process of razing, restoring, relnc~tl or removal and rebuildinc (as may be required) as provided in Sections 13.11 and 13.12. (3) A ternporary reduction of all or part of the Floor Area thereof during the couse of alteration or remodeling or r.:pairin&, Notwithstanding the foregoina, the covenants of Federated contained in this Sect~on 3,6(A) shall not be enforceable in favor .. of Hay, Penney, Sears or Carter, after the expirgtion or earlier Carter contained in Sections 3,3(A), 3,q(A), 3,S(A) and 3,7(A), (B) federated covenants that the Federated Store shall not exceed a Duildina Height of seventy-five (75) feet mea~ured from the finished floor elevation of the lower level of the Mall adjnininc the Federated Store. 3.7 Minimum Floor Area and Maximum Height of Carter Store (A) Carter covenants thot commencing on t~e·carter Store Opening Date and continuously thereafter until the expiration or earlier t1:1rminat.:nn of the covenants or Ca1·ter set forth in Section 18.51 the ,~rtcr Store shall contain in the assrecatc not less than one hundred thousand (1001 000) square feet of floor Arca subject, however, to the following: (1) A te111pora1•y reduction of all or part or a permanent reduction of part of the floor Arca thereof, a-s the applicable case may be, by reason nf any cause or event stated in Article 20. 12/9177 -28· 3.6(D)•3,7(A) ·• I I ii ,.. . ;,~---~ .,, .,, -n -J> ,- ;g m n 0 "' C CII ... CII . J> z C -m Ci) 0 n 0 C z .... -< ... :c J> ;g ,-m -< .,, • 0:, ,- 0 0 ~ ... ;g m n 0 ,., C m "' - 201~ (2) A temporary reduction of all or part of the Floor Area thereof during the process of razing, restoring, relocation, or removal a~d rebuilding (as may be required) af. provided in Sections 13.13 and 13.14. (3) A temporary reduction of all or part of the Floor Area thereof during the course of alteration or remodeling or repairing. Notwithstanding the foregoing, the covenants of Carter contained in this Section 3.7(A) shall not be enforceable in favor of 'ay, Penney, Sears or Federated, after the expiration or earlier termina- tion of the respective covenants of May, Penney, Sears and Federat~d contained in Sections 3.3(A), J.4(A), 3.5CA) and 3,6(A). (B) Carter covenants that the Carter Store shall not exceed a Building Height of seventy-five (75) feet measured from the finished floor elevation of the lower level of the Mall adjoining the Carter Store. 3,8 Minimum Floor Area of Mall Stores; Proximity Areas; Maximum Height of Hall and of Mall Stores; Maximum Height of ::on-Mall Buil~in~~ (A) Subject to any temporary reduction or permanent reduction thereof, as the applicable case may be, by reason of any cause or event stated in Article 20 hereof, which, however, shall not be deemed to augment the rights or reduce the obligatio~s of Developer as otherwise provided !n the applicable provisions of this Agreement, and subject to Subsecti~ns CB) and (C) of this Section 3,8, Developer covenants that commen,ing on the date hP.reof and continuously there- after until Terroinati~n Date: {l) So long as at least (4) Majors are operating Retail Facilities on their Tracts, the Phase I Mall Stores shall contain in the aggregate not less than two hundred ten thousand (210,000) square feet of FloQr Arca and (after the completi~n of the Phas~ :1 Developer ConstructiQn) the Phase II Mall Stores shall contain in the aggregate nQt less than one hundred twenty thQusand (120,000) square feet of Floor Area. (2) So lone as at least thr,e (3) Majors arc operating 2/3178 -29-3,7(0)-3.B(A) "Tl .,, -n -J> r- ;g m n 0 jilO C "' .. "' )> z 0 -m G) 0 n 0 C z .... -< .. :c )> ,a r-m -< "Tl • DI r- 0 0 ~ .. 2015 Retail Facilities on their Tracts, the Mall Stores shall contain in the aggregate not less than two hundred seventy thousand (270,000) square feet of Floor Area. (3) So long as at least two (2) Majors are operatlng Retail Facilities on their Tracts, the Mall Stores shall contain in the aggregate not less than two hundred ten thousand (210,000) square feet of Floor Area. (4) So long as any Major is operating a Retail Facility on its Tract, the Mall Stores shall contain in the aggregate ~ot less than one hundred twenty-five thousand (125,000) squa: feet of Floor area. (5) Notwithstanding the foregoing, Developer covenants and agrees with ranney that so long as Penney is obligated to operate a Retail Facility on its Tract pursuant to Section 18.2 and with May that so long as May is obligated to operate a Retail Facility on its Tract pursuant to Section 18.1, the Mall Stores shall contain not less than two hundred ten thousand (210,000) square feet of Floor Area. CB) The minimum Floor Areas set forth in the preceding Sub- section (A) shall be reasonably distributed within the Proximity Areas,.as hereinafter defined, of the Majors then operating or having agreed in writing pursuant to Section 13.3(8) to operate Retail Facilities on their Tracts. If such Proximity Areas contain less than the minimum Floor Area required, the balance of such minimum Floor Area shall be adjacent to such Proximity Areas. The term "Proximity Area", with respect to each Major, shall refer to the Hall Stores within the following Buildings as shown on Exhibit C: ~.., 'T\-...~,...,.__..., ~""Bb-. ""o.h~"'ti"'l.""'tl"'b~ "\.. ' ~. "t. -.,,-,'b "r Penney Proximity Area: Buildings c, D, E and f' Sears Proximity Area: 8:, ild i ng.s J, K and L federated Proximity Arca: Buildincs £, f'' J and K Carter Proximity Area Buildincs J, Kand L (C) For the purposes or Subsections (A) and CB> or this Section 213178 -30-3.8(8)-(C) ,.., .., -n -> r- ;a m n 0 ;o 0 c,, ... c,, > z 0 -ffl (i) 0 n 0 C z _. . -< ... :c > ;a r-m -< .., • .. r- 0 0 ~ ... ,0 m n 0 ,0 0 m ,., 2016 3.8, no temporary interruption in the operation of a Retail Facility on the Tract of any Major Cl) for a cause or event ~et forth in Article 20, or (2) due to repair, alteration, expansion, reconstruc- tion (total or partial), relocation, or replacement of such Retail Facility, or (3) for any reason for a period of one (l) month, shall be deemed to constitute a cessation in operation. or a Retail facility on such Tract. (D) Developer covenants that the height of the Mall Stores and Mall shall not exceed thirty-nine (39) feet mea~ured from the finished floor elevation of the lower levt: or the Mall, provided that (1) the Court of each Major and appurtenant equipment may attain a height of not to exceed fifty (50J Feet measured rrom the finished floor ~1evation of the lower level of the Mall, (ii) the entran~e archways to th~ Mall may attain a height of not to exceed fo.rty-seven (117) feet measured from the finished floor elevation of the lower level of the _Mal', and (iii) the equipment appurtenant to the operation of the Mall may attain a height of not to exceed six (6) feet ~bcvc the rccflin~. CE) Developer covenants that the Buildings, improvements and 1nsta!lations on tlon-Mall Building Sites shall have the following maximum heights above the finished r1oor elevation of t~e existing Buildings thereon: Non-Mall Building Site G Non-Mall Building Site H Non-Mall Building Site I 45 feet 45 feet 2S feet The height limitations regarding Non-Mall Building Sites G and H shall Le applicable only after the expiration {after the current terms and any extension or renewal terms pursuant to options contained therein) or earlier termination of the Leases now applicable to such areas, 3,9 Uses No use or operation will be made, condvcted or permitted on ~ :::;,,,--~~....::?"~#~Ai' ~ .t:?,r/ ,:;,/ ,.,/"A'~l'?'r ~/~tf ~lie operation or a two-level regional shopping center nontaininn an 2/21/78 -31-3,8-3,9 3.8, no temporary interruption in the operation of a Retail Facility on the Tract of any Major (1) for a cause or event set forth in Article 20, or (2) due to repair, alteration, expansion, reconstruc- tion (total or partial), relocation, or replacement of such Retail Facility, or (3) for any reason for a period of one (1) month, shall be deemed to constitute a cessation in operation. of a Retail Facility on such Tract. (D) Developer covenants that the height of the Mall Stores and Mall shall not exceed thirty-nine (39) feet measured from the finished floor elevation of the lower level of the Mall, provided that (i) the Court of each Major and appurtenan: equipment may attain a height of not to exceed fifty (50) feet measured from the finished floor elevation of the lower level of the Mall, (ii) the entran~e archways to the Mall may attain a height of not to exceed forty-seven (47) feet measured from the finished floor elevation of the lower level of the Mall, and (iii) the equipment appurtenant to the operation of the Mall may attain a height of not to exceed six (6) feet above the roofline. (E) Developer covenants that the Buildings, improv~ments and installations on Non-Mall Building Sites shall have the following maximum heights above the finished floor elevation.of the existing Buildings thereon: Non-Mall Building Site G Non-Mall Building Site H Non-Mall Building Site I 45 feet 45 feet 25 feet The height limitations regarding Non-Mall Building Sites G and H shall be applicable only after the expiration (after the current terms and any extension or renewal terms pursuant to options contained therein) or earlier termination of the Leases now applicable to such areas. 3.9 Uses No use or operation will be made, conducted or permitted on or with respect to all or any part of the Shopping £enter Site, which use or operation is obnoxious to or out of harmony with the operation of a two-level regional shopping center containing an 2/21/78 -31-3.8-3.9 2017 ~/..,zr,a,~~~....,,-4 .Ai'~4!Y'~~~~~/ /7/ .Af?'/ _,A?.,?/~ d/' .,,.:r,u-;,A, ...... ,~., ...... ~ (2) Any noi~e or snund that is objectionable due tn inte1·mittence, beat, frequency, shrillness, or loudness. (3) Any obnoxious odor. (4) Any dust, dirt or fly ash in excessive quantities. (5) Any unusual fire, explosion or other dama&in6 or dangerous hazard. (6) Any warehouse (but any ~re for the storage nf goods intended to be sold at any retail establishment in th• Shoppinc Cente1· or for storage of supplies or promotional materials used in the operation rf the Shnpping Center and the Buildin&S therein shall not be deemed to be a warehouse), assem~ly, manufacture, d5stillation, refining1 smeltin6 , agriculture or mininc operations. (7) Any mobile home or t1·a1ler cour:.t, labor camp, junk yard, stock yard, or animal raisins (other than pet shop). (8) J',ny drilling for and/or removal of subsurfr.ice sub- stances. (9) Any dumping, disposal or incineration of garbage or refu1>e. (10) Any automobile body and fender repair work. ARTICLE ll COHSTRUCTIOU BY MAY AND PENHEY q.1 Approval of Existing May Construction Yi! b ?1!1111 .--~~~~ --~~.......6 ..... ~~A!li ,~ .:;;;..y~~~~ ~ ,-4 .2 Approval of Exist.1111_~ Peur,<i:y Construction All construction of the Penney Improvements cnmpleted prior to the date hcrenf Js hereby approved and accepted by the Parties. 12/9/77 -32- 0 0 ~ ... ,al m n 0 ,., a ffl ~ enclosed air-conditioned mall, includinG the following: (1) Any public or private nuisance. (2) Any noise or sound that is objectionable due to intermittence, beat, frequency, shrillness, or loudness~ (3) Any obnoxious odor. (4) Any dust, dirt or fly ash in excessive quantities. (5) Any unusual fire, explosion or other damaging or dangerous hazard. (6) Any warehouse (but any area for the storage of goods intended to be sold at any retail establishment.in the Shopping Center or for storage of supplies or promotional materials used in the operation of the Shnpping Center and the Buildings therein shall not be deemed to be a warehouse), assembly, manufacture, distillation, refining, smelting, agriculture or mining operations. (7) Any mobile home or trailer couY..,t, l_abor camp, junk yard, stock yard, or animal raising (other than pet shop). (8) Any drilling for and/or removal of subsurface sub- stances. (9) Any dumping, disposal or incineration of garbage or refuse. (10) Any automnbile body and fender repair work. ARTICLE 4 CONSTRUCTION BY MAY AND PENNEY 4.1 Approval of Existing May Construction All construction of the May Improvements completed prior to the date hereof is hereby approved and accepted by the Parties. 4.2 Approval of Existing Penney Construction All construction of the Penney Improvements completed prior to the date hereof is hereby approved and accepted by the Parties. 12/9/77 -32- 2018 ARTICLE 5 CONSTRUCTION BY SEARS, FEDERATED AND CARTER 5.1 Plans for Sears, FederatP.d and CJr.ter Stores Within a reasonable period of time before beginning construc- tion of its Store, Sears, Federate~ and Carter will each submit to each other, to the other Parties and to the Project Architect ~ne set of proposed plans therefor as respects exterior design, includ- ing principal exterior dimensions, color and material of their respective Stores. The Project Architect, tht ~:,rs and Developer shall each, within thirty (30) days after the receipt of each s~t of plans and specifications notify the submit~ing Party of any exterior design re~~ures, color or material which 1t believes are not compatible with the design concept of the Shopping Center. In the event of any such notice concerning any such proposed plans and specifications, the Major ~hose plans and specifications are involved shall cause its architect thereafter to work in good faith with the Project Architect, the Majors and Developer so that the buildings to be erected and constructed will be in harmony with the general architectural concept of the Shopping Center. The question of architectural compatibility shall not, however, be subject to arbitration under ~~ticle 21. 5,2 Construction of Sears, Federated and Carter Stores (A) Sears, Federated and Carter shall each commence construc- tion of its Store in sufficient time to enable it to open its Store for business to the s~neral public not later than the Planned Phase 11 Opening Date in the case of Sears and Federated, and the Planned Carter Opening Date in the case of Carter, as such terms are defined, respectively in Subsections (B) and (D) of this Section 5,2, All construction carried on by Sears, Federated and Carter, respec- tively, shall be at its sole cost and expense. Such construction shall include all work on the s,~rs, Federated ~nd Carter Tracts, respectively, except for the grading and compaction thereof to be ..... 5110178 -33- .. 2019 performed by Developer pursuant to the Project Improvement Require- JJJents attached hereto as Exhibit D, Part 1, and any ut1i1t1es work ~/ ~ ..,,,,, ,,..,,..,--~~ ~--""'"' ~ ...4if,,,,-~~--.,.AIIP"~/ ,,4? ~--_,-47_,,,,,,;,; / ~ ~"" .,.?'~4"'/ ~/ ............. ,&!,"'/ ~/~.._..-...9"_.4,; .J,!Y~ /'~fir' ..-,;,,,,,,--,P ,~..,...~ ~ '7T pursuant to the Project Improvement Requirements shall be at Devel- oper's cost and expense. Sears, federated, and Carter shall each comply with the Project Improvement Requirements insofar as they apply to the construction to be performed by each of them. (8) The term "Planned Phase II Opening Date" shall refer to October 1, 1979. (C) The Parties ackno~ledge that it is possible that federated may nol open its store for business to the general public before Spring of 1980 and in su~h event, federated shall be deemed to have met its opening obligation under this Agreement. • • • • • • • • . . • {TEXT CONTINUES ON NEXT PAGE} 6/12178 -34-5,2(8)-(C) -(1 -> ,... 70 m n ,~ 10 C "' ... "' . > z C -m ti) 0 n 0 C: Z' .... -< ... :c i •' :! I m -< "Tl • .. .... 0 0 ~ ... 70 ffl n 0 70 0 ffl ,., performed by Developer pursuant to the Project Improvement Require- ments attached hereto as Exhibit D, Part 1, and any utilities work that may be performed thereon by Developer pursuant to Paragraph 7 of the Project Improyement Requirements. Such grading and compaction and any such utilities work performed by Developer on said Tracts pursuant to the Project Improvement Reyuirements shall be at Devel- oper's cost and expense. Sears, Federated, and Carter shall each comply with the Project Improvement Requirements insofar as they apply to the construction to be performed by each of them. (B) The term "Planned Phase II Opening Date" shall refer to October 1, 1979. (C) The Parties acknowledge that it is po~sible that Federated may not open its store for business to the general public before Spring of 1980 and in such event, Federated shall be deemed to have met its opening obligation under this Agreement. * * * * * * * * * {TEXT CONTINUES ON NEXT PAGE} 6/12/78 -34-5.2(B)-(C) 2020 (D) The term "Planned Carter Opening Date" shall refer to October 1, 1979, provided the Planned Carter Opening Date shall be subject to extension in accordance with the provisions of Section 27.18. 5.3 Opening Dates for Sears, Federated and Carter Sears shall open the Sears Store for business to the general public on or before the Planned Phase II Opening Date. Subject to Section 5, 2(C), Federated shall open the Federated Store ·"'>r · usiness to the general public on or before the Planned Phase II Date. Carter shall open the Carter Store for business to the general public on or before the Planned Carter Opening Date. Nothwithstanding the fore- going: (A) Neither Sears, Federated nor Carter shall open its re- sp!ctive Store for business to the general public mor·e than thirty (30) days prior to the Planned Phase II Opening Date (as to Sears and Federated) and the Planned Carter Opening Date (as to Carter) unless the Parking Area required to maintain the Parking Ratio in respect of its Floor Area shall have been completed prior to such opening. • • • • • • • • • • • {TEXT CONTINUES ON NEXT PAGE) 6/20/78 -35- , . . .,, .,, -n -> r- ,a m n 0 ;a C Cit .. Cit • > z C -ffl (i) 0 n 0 C z ... -< ... :c I >· ~I m -< ~ • CD r- 0 0 ~ ... 2021 CB) Sears and Federated shall each, respectively, have the right, in its sole and absolute discretion, to defer the required date of opening of its Store until the time of completion or (1) the Phase 11 Parking (excluding the portion thereof to be constructed on the Phase 11-0 Public Parking Landl, (11) the improvement of the Phase 1-A Public Parking Land and the Phase I-B Public Parking Land, and (iii) the Phase II Hall, all in accordance with the provisions of Articles 2 and 6. Carter shall have the right, in its sole and absolute discretion, to defer the required date of openin~ 1 •ts Store until completion of the aforesaid improvements and, in addition, until the time o( completion of the portion of the Phase Ii Public Parking to be constructed oh th~ Phase II-0 Public Parking Land, all in accordance with the provisions of Articles 2 and 6. The comple- tion time of the aforesaid improvements is defined as the time when the Project Architect, as to the Phase II Mall, and Shuirman-Rogoway & Associates, Civil Engineers, as to the remainder.of such improve- ments, shall have issued their respective Certificates of Substantial Completion and all governmental authorities having jurisdiction shall have issued whatev~r permits may be required for occupancy and use of the improvements required to be completed. {C) Sears, FeJerated and Carter shall each have the right, in its sole and absolute di~cretion, to eleot to defer the required date of opening of its Store until Occupants of at least fifty-five (55S) percent of the Planned Floor Area of the Phase II Hall Stores reasonably distributed within the Phase II Hall Stores shall be open or ready to open tor business to the general public on or before its Store Opening Date, (D) Neither Sears, Federated nor c~rter shall be obligated to initially open its Store for business between October 1st or any year (except that with respect to the calendar year 1979 said date shall be November 1st, in lieu of October l;t) and the next succeeding 5/10178 -36-5.3(B)-(D) ~.-. '.,, .,, -n -> ... ,a ffl n 0 ,a 0 en ... en > z 0 -ffl (i) 0 n 0 C z .... -< ... :c > ,a ... m -< ,, • a. ,... 0 0 ~ ... \ 2022 January 31st or during the thirty (30) day period prior to Easter Sunday or the pe;·iod from May l to August l, of any year, ARTICLE 6 CONSTRUCTION BY DEVELOPER 6.1 Approval of Existing Developer Improvements All consruction of the Phase I M.:.11 Stores and Non-Mall Buildings completed before the date hereof is hereby approved and accepted by the Parties. Developer represents that al1 Common Area completed before the date hereof on the portion of the Dev, _t,; ~r Tract on the Phase I Land is constructed in accordance with the plans and specifications for the Developer Improvements on the Phase I Land listed in Exhibit O, Part 2. Changes in the Developer Improvements on the Phase I Land shall be subject to the approval of the Parties, in &ccordance with the provisions of Article 13, 6.2 Developer's Obligation to Construct Developer covenants and agrees to construct, at its own cost and expense, Ci) the Phase 11 Hall Stores, (ii) the Phase II Mall, (111) the Perimeter Sidewalks for the Phase II Mall Stores, (iv) the Parking Area on the Phase I-A Public Parking Land and the P·hase 1-B Public Parkihg Land, (v) the Parking Area on the Phase II Public Parking Land and the Phase 11-0 Public Parking Land, (vi} any other Common Area o~ the portion of Developer Tract on the Phase II Land, as shown on Exhibit c, and (vii) any changes in the Developer Improvements on the Phase I Land to be made by reason of any of the for~going (herein collectively called the "Phase II Developer Construction"), as here- inafter -provided in this Article 6, in compliance with t.he following requirements and all applicable provisions of this Agreement. (A) The Phase II Mall shall be located as shown on Exhibit C hereof. (8) The quality of Ci) the construction; (ii) the construction components, (111) the decorative elements (including landscaping and irrigation systems for the landscaping) and (iv) the furnishings, and the general architectural character and general design (including 5/10178 -37- .,.. "Tl -n -)> ~ ,., m n 0 ,., C u, ... u, . )> z C -m (i) 0 n 0 C z ... -< ... :c > ,., ~ m -< "Tl • DI ~ 0 0 ~ ... 2023 landscaping and decorative elements), the materials selection, the decor and the treatment values, approaches and standards of the Phase II Kall shall be comparable to the qualities, values, approaches and standards (as of the date hereof) of the Phase I Hall. (C) The Phase II Mall Stores .shali be located as shown on Exhibit C hereof and shall contain not less than fifty thousan~ (50,000) square feet of Floor Area on the lower level of the Hall and not less than fifty thousand (50,000) square fe~t of Floor Area on the upper level of the Mall, and shall contain in th~ ·~0 regate not less than one hundred twenty thousand (120 1000) square feet of Floor Area. (D) The Phase II Parking shall be located as shown on Exhibit c. The Parking Area on the Phase I-A Public Parking Land, the Phase I-B Public ParkinG Land, and the Phase II Parking shall be designed to integrate compatibly with each other and with the Phase I Public Parking. (E) No changes to the Phase I Public Parking or the Phase II Public Parking as ~hown on Exhibit C shall be made without the written consent of all of the Parties. 6.3 Project Improvement Requirements and Working Drawings and Specifications (A) Attached hereto as Exhibit D, Part 11 is a specification of requirements for construction on the Phase II Land (the "Project Improvement Requirements"), which have been approved by all Parties. Developer shall comply with the Project Improvement Requirements as they relate to the Phase II Dev~loper Construction. In the prepara- tion of all plans and specifications for the Phase II Developer Construction, the Project l1aprove11ent Requirements shall be followed as minimums, unless governmental specifications for such work establish higher minimum standards. Developer shall cause the Project Architect to prepare and submit to each of the Majors one (1) complete sepia set of (i) schematic drawings and outline specifications, (ii) preliminary working drawings and specifications, (iii) final working drawings and speci- fications for the Phase II Developer Construction and any changes 7/13/78 -38-6.3 .·~ 'Tl 'Tl -n -)> r- :,a m n 0 "' 0 en ... en . > z 0 -m Gl 0 n 0 C: z ... -< ... :I: > :,a r-m -< ,, . GI ,.. 0 0 ~ ... 202~ in the Developer Improvements on the Phase 1 Land required by reason of the Phase 11 Developer Construction; provided, however, as respects the Phase II Mall Stores, said drawings and specifica- tions need cover on~y the building shell of the Phase II Hall Stores. Said drawings and specifications shall be subject to the approval of each Major. Developer intends that to the extent pra~tical and feasible the Phase II Mall and the Phase II Mall Stores shall conform in appearance to the Phase I Mall and the Phase I Mall Stores. Without limiting the generality of the foregoing, the drawings and specfications of the Phase II Mall shall be subject to the approval of Sears, Federated and Carter with respect to the attach- ment of the Phase II Mall to their respective Stores. (B) Notwithstanding anything contained in Subsection (A) of this Section 6.3, Sears, Federated and Carter shall each, respectively, have the right of approval (which approval may be granted or with- held in the sole and absolute judgment of each such Major, respectively) of the design of its respective Court, including column locations, decor, layout, decorative elements, floor elevations, floor to ceiling heigh~s, lighting, wiring and the furnishings of such portions of the Phase II Mall. tlotwithstanding the right of each such Major to approve or disapprove, in its sole and absolute judgment, as herein- above provided, no disapproval may be predicated on a requirement of any such Major which would materially alter the previously approved (as provided in this Section 6.3) general design concept or plans and specifications of the Phase II Mall. If the cost of construct- ing the Court in accordance with the requirements of any such Major .,:tiall exceed the 'lost of construt.! ting said Court in at.!cordance with plans and specifications therefor previously approved by su~h Hajor, said excess shall be paid by such Major. (C) Disputes under this Section 6,3 shall be subjet.!t to arbitration in accordance with Article 21, exce~t that the disap- proval by a Major of the design of its Court shall not be subject to arbitration. 2/21/78 •39-6.3(0)-(C) ·-n -n -n -l> .... ,a m n 0 ,a C, CII ... "' l> z 0 -m (i) 0 n 0 C z ... -< ... :J: l> ,a .... m -< -n • ,a m n 0 ~ 0 ffl ,a 2025 6.4 Governmental Approvals Developer shall obtain all necessary governmental approvals, authorizations, permits and certificates of occupancy necessary to permit the construction and operation on the Develop~, Tract of improvements for the sale of goods, wares and merchandise, the use of the Parking Area pursuant to this Agreement, the performance of the Phase ~I Developer Construction, and any change~ in the Developer Improvements on the Phase I Land in connection therewith, and any other construction to be performed by Developer under the Project Improvement Requirements or elsewhere in this Agre,· u+- 6.S Completion of Phase II Developer Construction Developer shall complete the Phase II Developer Const1~ction, as shown on tl,e drawin@"J and spr....:ifications approved in accordance with Section 6,3, on or before the Planned Phase II Opening Date, provided that the Phase II Parking and the improvements of the Phase I-A Public Parking Land and the Phas~ I-B Public Parking Land shall be completed.not less than thirty (30) days prior to the Pldnned Phase II Op~ning Date and the improvement of the Phase 11-0 Public Parking Land shall be completed by (and need not be completed until) thirty (30} days prior to the Planned Carter Opening Date. 6,6 Take Over or Phase II Developer c~~struction If the Developer shall fail to perform any of the Phase II Developer Construction as provided for herein, then in suoh event, if such fc1ilure continues for sixty (60) days after notice in writing of such failure by one of the Majors, any Major or any two or More Majors jointly shall have the right to undertake, prosecute a~d complete such performance under any and all outstanding contracts tJ( the Developer with thP. Project Architect, contra'ctors and others for su~h work either in the namP. and on behalf of the Developer (in which case it or they, as the case may be, is hereby irrevocably appointed as attorney-i11-fact for such purpose) er in its or their own name, as the case may be, or if such contracts are no longer enforceable, to enter into new contracts for such work, after competitive biddine, with the lowP.~t htd~P.r~. In the event that one or more Majors shall perform any 5/25178 -110-6.11-6.6 ·-n -n -n -J> ,- ;a m n 0 ;a 0 "' ... "' J> z C -m (i) 0 n 0 C z -t -< ... :c J> ;a r-m -< .,, • GI r- 0 0 ~ ... 2026 work provided for in this Sectinn 6.6, the cnst of such wnrk shall be due and payable by Dcvclnpcr upnn demand the1·efor in writing. 6.7 Opening of Phase II Mall Stnres Developer agrees that it will use its ~est efforts to have the Phase II Mall Stores open for business on nr before the Planned Phase II Opening Date, subject to Sears or Federated or Carter being open or 1·ead,; to open for business in its Store on nr before said date. ARTICLE 7 COMMOII AREA MAltlTEtlAHCE COST ALLOCADLE SHAiir,. 7.1 Co~mon Area ~aintenan~e Cnst (A) The term "Common Area Maintenance Cost" means the tntal of all moneys actually paid by Developer during a respective Accounting Period (as that term is hereinafter defined) fnr reasnn- able costs and expenses directly related to and incurred in the maintenance, operation! and management, pursuant to the requirements l, of this Agreement, of (i) the Common Area (excluding the Mall), and (jj) thc-S1np:-f:rf?:i (p:.:rsurrnl ln, ii, acc·r:rc;:ncc :·itt1, .. na as re- quired by the Slope Agreement), including maintenance and construz- tion work required to preserve and maintain the utility of the Parking Arca; policing, security protect.inn and traffic direction; cleaning; removal of rubbish, dirt and debris; landscape maintenance; maintenance and r~pa~r of lightin& facilities and storm drainaac systems; maintenance and repair or utility systems constructed as part of the Developer construct.inn on the Phase I Land and utility systems. constructed as part of the Phase II Developer Construct.inn; real estate and improvement taxes and assessments on the Parking Area, if any; anu public liability and property d~mage insurance car1·ied in respect of the Common Arca Cexcludinc the Mall); plus an amount for supervision and management equal tn five percent C5i) of the total nf all costs included in Cnmmnn Arca Maintenance Cnst, excluding real estate and imprnvement taxes and assessments and any tax, fee, charge, assessment nr other i111pnsitinn imposed by any gnvel'nmcntal entity nn the busincH,S nr practice nf npet•atin& pn1·king facilities (fnr the pur1:nses nf the fnrccninc, Develnpcr•s nbliaa- 1/20178 .iu-6,7-7,lCA) -n -n -n -> r- ,a m n 0 ,a C "' ... "' > z C -m Ci) 0 n 0 C: z .... ~ ... -n • cg r- 0 0 ~ ... 2027 tion to operate the Public Parkin& and to bear in full the cost thereof pursuant to the Public Parking Operating Agreement shal! not be deemed to be a governmental imposition); provid~d, however, Common Area Maintenance. Cost shall not inclurJe the costs and expenses of and the charges for any of the following items: (i) depreciation, except for depreciation of maintenance equipment at straight-line rates over reasonable periods of time; (ii) interest, carrying charges, debt service or late payment charges; and (iii) items or cost properly chargeable to capital account. Any capital expend'ture in excess of $20,000 in any one year for items whose depreciation .l~ be included in Common Area Maintenance Cost shall be subject to the approval of the Parties. (B) Refunds and reimbursements of costs and expen~es which · have been theretofore included in Common Area Maintenance Cost shall be deducted from Common Area MaintenaMe Cost upon receipt by Devel- oper, provided the foregoing shall not apply to payments by or for any Party to this Agreement or payments by or for .any other Occupant of Floor Area on the Shop9ing Center Site. . (C) No Party shall agree to the imposition of any tax or assessment on the Parking Area without the written approval of all the other Parties, which approval may be withheld in the sole and absolute dis~retio'. of each Party. (I>) Common Area Maintenance Cost shall not include any costs or expenses included within Mall Maintenance Cost. CE) Prior to the date all of the Planned Floor Area on all Tracts on the Phase II Land is includable in the computation of Common Area Maintenance Cost pursuant to Section 7.3(8), the costs and expenses (determined in accordance with Section 7,1) for the Phase II Parking shall be included in Common Area Maintenance Cost only to the extent that the Phase II Parking is l'equired to meet the Parking Ratio requirement:. of Section ll.3(D), provided that Con1mor: Area Maintenance Cost shall in all events include such costs and expenses for all Phase II Parking within the City of Carlsbad from and after the date that all of the Planned fleor Area on the Sears TrMt, the Feder3tcd Tr:ict. _ _::ai:id the porti,:,n of the Developer Tract. on 12/9/78 7,l(B)-(E) - . "" "" -r -)I I"" ,i: " r C ,i: C u ... u , :2 C -n ' C r C C ~ --... J J " r ,, -., • C: r ( ( • .. • ... ' ' f • • -' I • • 2028 the Phase II Lond bccnmes includablc in the cnmputatinn nf Cnmmnn Area Maintenance Cnst Allocable Shares pursuant tn Sectinn 7,3(0), Develnper shall not be required to npen for use by Pcrmittees nr the public any Phase II Parking whose costs and expenses (deter- mined in accordance with Section 7 ,l) are ext'luded from Common Area Maintenance Cost pursuant to the provisinns of this Subsection CE). Prior to the inclusinn of the costs and expenses for any such area in Com,nnn Area Maintenance Cost, said area shall be maintained in sightly condition by Developer at Developer's expense. 1.2 Accountinc Period The term "Accounting Period" shall refer to any period of twelve Cl2) calendar months commencing on Janua,·y 1 and endina on and including the next following December 31, The first ~ccr.unting Per'.od for Sears, Federated and Carter shall commence as to each on the earlier of the folle~in6 : (a) its Store Opening D~tc, o~ (b) the date it is required to open its Store for business to the general public pu1·suant to Sectior. 5. 3, The (irst Accounting Period for Scars, Federated, ar:d Carter, respectively, shall end ,,n and iuclude i.l,~ next t,'.'>llc.o,iir,g OE:cei,iber 31. The la.::;t Accoun t.ir:.; P~r· i"t! for all Parties shall end on and include the Termination Date. Any items.of Common Area Maintenance Cost relating to a period of time a pa,·t of kid.ch is ir,.:luded witl1i11 a first. Accounting Fet ind ,,r any Party or said last Accounting Period and a part of which occurs before the commencem-:rnt of said first Accounting Period or after the expiration of said last Accounting Period, respectively, shall be prorated on the basis of the actual nurnber of days in the part o: such period of time included within said first Accounting Period or said la~t Accff~nting Period, as the case may be. z~3 Common Arca Maintenance Cost Allocable Shares (A) The term "Common Area Maintenance Cost Allocable Share" shall refer to the proportionate share of Cn~mon Area Maintenance Cost chargeable to each Party for each Accnuntinr, Po1·ind, as deter- mined in this Section. Subject to Subsection (B) hf this Section 7.31 each Party's Cnmmon Arca Maintenance Cost Allocable Share shall be cn1111,uted r,w each Accounting reriod by ~ul tiplyina tho Cnmronn 12/9177 7.2•7.3(A) ·-n -n -n -J> r- ,a m n 0 :,rJ C "' .. "' . J> z C -m G) 0 n 0 C z -t -< .. :c J> ,a r-m -< '"Tl • DI r- 0 0 ~ .. 2029 Area Maintenance Cost for such Accounting Period by a fraction, the numerator of which shall be the Planned Floor Are~ for such Party's Tract, and the denominator of which shall be the Planned Floor Area for the entire Shopping Center Site. The Common Area Maintenance Cost Allocable Shares of Sears, Federatea and Carter shall commence to QCC~UG as to each respecti,ely, on the first day of their r~sp~c- tive first Accounting Periods. (B) Notwithstanding the foregoins, for the purpose of computing each Party's Common Area Maintenance Cost Allocable Share: (1) The Planned Floor Area on the Sears Tract shall uot be included in t~e computation of such Allocable Shares until the earlier of the following: (a) The Sears Store Opening Date; or (b) The date it is required to open its Store for business to the general public, pursuant to Section 5.3. (ii) The Planned Floor Area on the Federated Tract ~hall not be included in thP computation of such Allocable Shares until the earlier of the following: (a) The Federated Store Opening Date, or (b) The date it is required to open its Store fop business to the general public, pursuant to Section 5.3. (iii) The Planned Floor Area on the Carter Tract shall not be included in the computation of sucn Allocable Shares until the earlier of the following: (a) The Carter Store Opening Date, or (b) The date it is required to open its Store for business to the general public, pursuant to Section 5.3. (iv) The Planned Floor Area on the portion of the Developer Tract on the Phase II Land shall not be included in the computa- tion of such Allocable Shares until the earlier of the following: (a) The date that any portion o( the Phase II Mall Stores first opens for business to the general public, or (b) The date Developer ls required to complete 6/2178 7.3(B) . .,. ,, n -J> ,- ~ m n C ;JO C en ... en . J> z C -m (i) 0 n 0 C z .... -< ... ::c > ,a ,-m -< ,, I i I / 2030 construction of the Phase II Mall Stores pursuant t• Section 6.5, (C) Common Area Maintenance Cost Allocable Shares for ti calendar year during which the costs and expenses for any por1 the Phase II Parking first become includable in Common Area M, c"st pt•rs•Jant to Subsection CE) of r.ection 7 .1 ·and for any ca: year for which there is a changP. in formula for computing Comr Maintenance Cost Allocable Shares pursuant to Subsection CB) c Section 7,3, shall be determinea J 7,q Payment of Allocable Shares daily basis. Each Major shall pay to Developer its Common Are~ Mainten Cost iilocable Share in accordance with the following provisio (A) Within ten (10) days after the end of each calendar in the Accounting Period, each Major shall pay to Developer an ~mount herein referred to as "Advance Payment" or "Advance Pay as the context may require. Subject to Subsection (B) of this Section 7.ij, the Advance Payments for each Accounting Period s an amount equal to the product of (1) one-twelfth (1/12) and ( each Major• s Common Area 1-\aintenance Cost. Allocabie Share for immediately preceding Accounting Period; provided, however, t.t Advance Payment(s} shall be equitably adjusted between the De· and such Major for any period(s) or interval(s) that Develope fail to perform its obligations,in whole or part, provided fc Article 11 (whether or not such failure shall constitute a df .//d'.reuPt7tv·,J, PntJ' /p t"oe erent" t"oe /73.r~./es on any oeqasfon slta1 ...,...~~......--:;. --~~iii~~~~~~~ ,.;:Jr/ h/J"",.... A"'#~"' A? U4"' .e?U4"'/ ~//n.r Al',;!?/' /"4"'/4'/" U4"' O"~p/.e-1?' ,_,//~/ to arbftratfoq and determfnatfon thereby as provfded fn Artfcle 21. (B) The Advance Payments of Sears, Federated and Carter, for their respective first Accounting Periods under this Agreement, shall be an amount each month equal ;o the average of the Advance Payments or May and Penney, as certified by Developer, tor the calendar year in which the respective first Accounting Periods of Sears, 612178 -45-7.3(C)-7.4(A) • • -... ' " ( C ;Ill C n ,.: construction of the Phase II Mall Stores pursuant to Section 6.5. (C) Common Area Maintenance Cost Allocable Shares for the calendar year duri~g which the costs and, expenses for any portion of the Phase II Parking first become ineluctable in Common Area Maintenance Cost pursuant to Subsection (E) of s~ction 7.1 and for any calendar year for which there is a change in formula for computing Common Area Maintenance Cost Allocable Shares pursuant to Subsection (B) of this Section 7.3, shall be determined on a daily basis. 7.4 Payment of Allocable Shares Each Major shall pay to Developer its Common Area Maintenance Cost Allocable Share in accordance with the following provisions: (A) Within ten (10) days after the end of each calendar month in the Accounting Period, each Major shall pay to Developer an amount herein referred to as "Advance Payment'' ·or "Advance Payments", as the context may require. Subject to Subsection (B) of this Section 7.4, the Advance Payments for each.Accounting Period shall be an amount equal to the product of (i) one-twelfth (1/12) and (ii) each Major's Common Area Maintenance Cost Allocable Share for the immeaiately preceding Accounting Period; provided, however, the Advance Payment(s) shall be equitably adjusted between the Develope- and such Major for any period(s) or interval(s) that Developer shall fail to perform its obligations,in whole or part, provided for in Article 11 (whether or not such failure shall constitute a default(s) hereunder), and in the event the Parties on any occasion shall fail to agree upon an equitable adjustment, then any Party upon fifteen (15) days' notice to the other Parties may refer the disputed matter to arbitration and determination thereby as provided in Article 21. (B) The Advance Payments of Sears, Federated and Carter, for their respective first Accounting Periods under this Agreement, shall be an amount each month equal to the average of the Advance . Payments of May and Penney, as certified by Developer, for ~he calendar year in which the respective first Accounting Periods of Sears, 6/2/78 -45-7.3(C)-7.4(A) 2031 Federated and Carter shall commence. If the commencement of any of said first Accounting Periods occurs on a day othe~ than ~he first day of a calendar month, the Advance Payment for such month shall be prorated in the ratio that the number of days in such month from and including the first day of such first Accounting Period to and including the last day of the month bears to the total number of days in the month. If the first Accounting Period of Sears, Federated or Carter contains less than twelve ( 12) full calendar months, then fo, • . : purposes of determining the Advance Payments for the second Accountins Period of such Major, t~e Common Area Maintenance Co~t Alloca~le Share for the first Accounting Period shall be multiplied by a fraction, the numerdtor of which shall be twelve (12) and the denominator of which shall be the number of months and fractional portion of ~onths in its respective first Accountins Period. CC) Within one hundred twenty (120) days after the end of each Accounting Period, and with respPct to such Accounting Period, Developer shall submit to each Major a written st,tement i~ duplicRte, itemized in reasonable detail and certified as correct by an indepen- dent certified public accountant selected by Developer and approved by each Major specifying: the Common Area Maintenance Cost, the Common Area Maintenance Cost Allocable Share of such Major and the total of the Advance Payments made by such Major; said written statement shall also contain a determination of whether, upon the basis of the aforesaid specifications, ·;he total of the Advance Payments exceeded or was less than the Common Area Maintenance Cost Allocable Share, Developer shall include, as part of the transmittal of the aforesaid certift~d statement, a separate, duly endorsed dup~icate statement ~ .• woicing each Major in the amount of the deficiency (the amount of which deficiency shall be paid to Developer within thirty (30) days after receipt of such statements unless a Major shall give Developer written notice within said thirty (30) days that it disputes the 6/2178 7,lf(B)-(C) :-n -n -n -J> ,.. ;a m n 0 ;io C "' .. UI • J> z C -m Ci) 0 n 0 C z ... -< .. :c J> ;a ,.. m -< -n • GI ,.. 0 0 ~ .. ,a m n 0 liJ 2032 inclusion in its Common Area Maintenance Cost Allocable Share of any item of cost or expense, or the amount thereof, in which event it may withhold payment of the disputed item or a,nount pending resolu- tion of such dispute) or crediting each Major with the amount of the excess against the next succeeding Advance Payment(s), as the case may be applicable. 7,5 Separate Books and Records; Right to Audit; Segregated Bank Account Developer shall maintain separate and compleL. ~' ,ks and records accurately covering all items of Common Area Maintenance Cost incurr~d by Developer during each Accounting Period and shail keep the same for the next five (5) y~ars .after the end of each such Accounting Period. Each Major or its duly authorized agent or agents shall have the right, exercisable upon five (5) days• written notice to , Developer, to inspect and audit s~ch books and records at Developer's principal place of business, at any and all reasonable time or times during such business hours as may be designated in any such notice, for and during the next five (5) years after the end of such respective Accounting Period. At the present time, Developer's principal place of business is Los Angeles, California. If Developer moves its principal place of business from Los Angeles, California, it shall give three (3) months' advance notice to the Majors before moving such books and records. In the event tnat any such audit shall disclose any error in the determination of a Common Area Maintenance Cost Allocable Share, appropriate adjustment shall promptly be made between each Major and Developer to correct such P.rror. In addition to the aforesaid adjustmP.nt, in the event it is determined as a result of such audit that the Common Area Maintenance Cost Allocable Share of the Major. in whose behalf the audit was conducted. was overstated by three percent (3S) or more, Developer shall pay to such Major the fees and expenses of any independent certi~led publiq accountant engaged to perform such audit. If, subsequent to any Accounting Period. Developer 612/18 '• • • t • l r ' r t ( ' C \ ~ C • r C ( t ( C -~ • • -l ' r r • • • C I C C . • 2033 shall either r~ceive any refund or rebate or other credit payment, or be charged and make payment for any item, to be applied ar.ainst, or added to, as the case may be, any Common Area Maintenance .:ost incurred by Developer during such Accounting Period, Developer shall promptly make written report to each Major of such refund, rebate or other credit payment or charge and pa}ment. Such refund, rebate or other credit payment or charge and payment shall be deducted from or added to Common Area Maintenance Cost, as the case may be, in t~e year in which received or paid. As soon as practicable after Termina- tion Date, a final settlereent shall be made between Developer and each Major so as to adjust tHe Allocable Share(s) for any or all of such Acc?unting Periods as may be required by rAason of the paymP.nt or accrual, after Termination Date, of any Common Area Maint~nance Cost for any or all of such Accounting Periods, or by reason of the receipt, after Termination Date, of any refunds, rebates or other credits or charges to be applied against or addP.d to, as the case may be, any Common Area Maintenance Co5t incurred during any or all such Accounting Periods. From and after the time The l1ay Stores Shopp1r,g Centers, Inc., a Missouri corporation, and/or any other wholly-owned subsidiary of The Hay Department Stores Company, or any corporate successor thereto shall not be the sole general partner of Plaza Camino Real or any successor partnership (while such partnership is Developer hereundr.r) and from and after the time such partnership is no longer Developer hereunder, all payments made by the Majors in respect of all Common Area Maintenance Cost Allocable Shares shall be held by Developer in e segregated bank account designated as a trust account for the purpose of the pcyment of items of Common Area Haint-r .. ·,ance Cost included within such Allocable Shares; and all payment~ m~de to Developer by any and all Occupants of the DP.velopP.r Tract in respect of its or their pro rata shares of Common Area Maintenance Cost shall similarly be held in trust by Developer for the purpose of payment of items of Common Area Maintenance Cost. 6/2178 -118- .,, .,, -n -> r- "' m n 0 "' C CII .. CII • > z C -m G> 0 n 0 C z -f -< .. :c > "' r-m -< .,, • CD r- 0 0 ~ .. "' m n 0 ,., D '" ,a 203~ ARTICLE 8 MALL MAINTENANCE COST CONTRIOUTIONS 8.1 Mall Maintenance Cnst The term "Mall Maintenar~e Cost" shall refer to the tnt.:il of all moneys actually paid out by Develop~r durin3 an AccnuntinB Period for reasonable costs and expenses directly related to and incurred in the performance of maintenance, operation and manacement of the M.:11, pursuant to the requirements of Article ll, including, without limiting the generality of the foregoing: maintenance and cn.:-.t .ction wnrk required to preserve and maintain th~ utility of the M~ll; re3sonoblc supervision and m~nasement; policing and security protectinn; cleaning; removal cf rubbish, dirt ar.~· debris; landscape maintenance; maintenance of li&htint facilities and drain~ge systems, real est~te ~nd improve- mcnt taxes and asse~s:r.ents on the Mall; public liability and property dam~ge insurance carried in respect thereto (the policy limits of such insurance to be in compliance with the rc~uircpients of A:-ticlc l~ hercnr); and malnL~nan~~ Rn~ np~rR~inn nf th~ heatin3, v~nlilaL- ing and air-conditionino systems for the Mall. Notwithstanding the foregoing, Mall Maintenance Cnst as respects the computation or dctermi "lat ion of a Major's contribution to Mall Maintenance Cr.st shall not include ttJ costs and expenses of and the charses fnr any of the following ite111s: ( i) deprec iatinn, and (ii) interest, carl'ying charges, debt service or late pay111ent charges. 8.2 Contributinns of Majors Toward Mall Maintenance Cnst The contribution of each Majot towards Mall Maintenance Cost shall be determined and paid in accordance with separate aaree- mcnts between Developer and each Major. 8,3 Separate nooks and Records; Segrenated Oank Account Devclr..pcr shall maintuin sepal'&Le and complet.e lmoks and records accurately covcrina all items of Hall Maintenance Cost. From and after the time The Hay Sto1·cs Shnpping c~nters, ·Inc., a Missouri corporatinn, and/or any other wholly-owned subsidiary of The Hay Department Stores Company, i,r any cnl'plll'Dte successor thereto, shnll nnt be the snle gcweral parinel' of Plazct Cdminr, lh:al ,,r any succcssnr 12/9177 -'19-8,1-0,3 .,, .,, -n -J> r- ,u m n 0 ,a C, u, ... u, > z C, -m (i) 0 n 0 C z -f -< ... ::c J> ,a r-m -< "Tl al r- 0 0 ~ ... ,a '" n li_ 2035 partnership (while such partnership is Developer hereunder), ~nd from and after the time such partnership is no lo~ger Developer hereunder, all payments made by the Majors in respect of all cootri- butions toward Mall Maintenance Cost shall be held by Developer in a segregated bank account designated as a trust account for the purpose of the payment of items of Mall Maintenance Cost included within such contributions; and all payments made to Developer by any and all Occupants of the Developer Tract in respect of its or their contribution toward Mall Maintenance Cost shal~ si~ilarly be held in trust by Developer for the purpose of payment of it.~11,s of Hall Jlaintenance Cost. ARTICLE 9 CONSTRUCTION STANDARDS All construction herein to be performed by any Part) (whether required or permitteo pursuant to tne applica~le pro~isions ot tnis Agreement), shall be su_bject to and in accordance with all of the following respective requirements and standards to the maximum extent to L•h" ch c::11""' requir~~:!-er:ts and standar'=1s are ap.,:l ·.c~ble to ~u~h construction: 9.1 When Construction Commences on a Store Construction shall be deemed to have commenced when excavation for the foundations shall have begun (or if no excavation is to be performed for foundations, when construction of foundations commences) on the Tract by a contractor acting under a contract providing for the construction thereor. 9.2 Diligently Proceed With Construction Upon commencement of construction, each Party shall diligently proceed with .!\uch construction to completion. 9.3 Workmanlike Construction; first-Class Materials, Com- pliance With Laws The respective construction of Developer and each Major shall be in a good and workmanlike manner u~ins first-class materials and in accordance with (1) all applicable laws, ordinances, rules, and regulations of any governmental agency having jurisdiction, (ii) the applicable Precise Plan approved by the City pursuant to the 7/13178 -so-9.1-9.3 2036 Agreement for Phase II Public Parking and (iii) the orders. rules and requirements of the local fire insurance rating organization. having Jurisdiction or other qualified inspection firm or any other body now or hereafter constituted exercising similar f11nctions. Whenever, pursuant to the provisions of this Agreement, ~ny Party is required to submit the plans, drawings or specifications for any construction to the other Parties for approval, the construction shall conform to the plans, drawings or specifications approved by such other Parties. 9.~ No Interference With Operation of Center Each Party shall perform its constructions~ as: (A) not to cause any unnecessary increase in the cost of any construction by any other Party; (6) not to unreasonably interfere with construc- tion bei.ng performed by any other Part.y; (C) not to unreasonably in~erfere with or disturb the use, occupancy, or enjoyment or the S~oppinc Center Site or any parts thereof by any Permittees as contemplated by this Agreement; (D) to minimize, insofar as practic- able and consistent with ordinary con~tructi~n oractlces, the extent and duration of disturbance to Permittees. 9.5 Coordinate Construction Each Party as respects its construction shall use a:l reason- able efforts to cause its architects and contractors to cooperate ~~ .P'A?/~;/,,:' .b'J -""""""/J.6"".P"-"""/...M?.? ;'/,U £,:?p' J/.-::"';//~./~ .-::"'R4"'//";...-/p/~ and construction or the other Parties to the extent reasonabLr practicable in order to achieve the objectives set forth in the preceding Section 9.4. 9.6 ·safety Measures; Indemnification Each Party shall: (A) at all times take each and all safety measu1•e3 reasonably required to protect any other Party and its . Permittees and any other Occupants of the Shopping Center Site and their Permittees and the property of each from injury or damage caused by or resulting from the per forrnance of such Party I s con- struction; CB) Notwithstanding anythin& to the contrary contained in Article l5t defend. indemnify and hold harmless the other Parties trom and against all claims. costs. expense .. (in~luding reasonable attorney~' fees and court costs)-:-S0d liabilities arising from or 7/13/78 -51-9.4-9,6 , .,, "Tl -n -> ,.. ::a ffl n 0 ,., 0 "' ... "' . > z 0 -ffl G') 0 n 0 C z .... -r', / ,. ./ :r ./, >' :a I s, "Tl • Agreement for Phase II Public Parking and (iii) the orders, rules and requirements of the local fire insurance rating organization having jurisdiction or other qualified inspection firm or any other body now or hereafter constituted exercising similar functions. Whenever, pursuant to the provisions of this Agreement, any Party is required to submit the plans, drawings or specifications for any construction to the other Parties for approval, the construction shall conform to the plans, drawings or specifications approved by such other Parties. 9.4 No Interference With Operation of Center Each Party shall perform its construction so as: (A) not to cause any unnecessary increase in the cost of any construction by any other Party; (B) not to unreasonably interfere with construc- tion being performed by any other _Party; (C) not to unreasonably interfere with or disturb the use, occupancy, or enjoyment of the Shopping Center Site or any parts thereof by any Permittees as contemplated by this Agreement; (D) to minimize, insofar as practic- able and consistent with ordinary construction prBctices, the extent and duration of disturbance to Permittees. 9.5 Coordinate Construction Each Party as respects its construction shall use all reason- able efforts to cause its architects and contractors to cooperate and coordinate its construction with the architects, contractors, and construction of the other Parties to the extent reasonably practicable in order to achieve the objectives set forth in the preceding Section 9.4. 9.6 Safety Measures; Indemnification Each Party shall: (A) at all times take each and all safety measures reasonably required to protect any other Party and its Permittees and any other Occupants of the Shopping Center Site and their Permittees and the property of each from injury or damage caused by or resulting from the performance of such Party's con- struction; (B) Notwithstanding anything to the ~ontrary contained in Article 15, defend, indemnify and hold harmless the other Parties from and against all claims, costs, expenses (including reasonable attorney~' fees and court costs), and liabilities arising from or 7/13/78 -51-9.4-9.6 in respect tn the death nf or accident, injury, loss, or damaee whatsoever caused to any natural person (including the indemniteels employees) or to the property of any Person as sh~ll occur by virtue of said construction (except as such claims, costs, expenses, and liabilities shall arise from the negligence er fault of the Party seeking indemnification, its respective agents, employees, or con- tractors); (C~ defend, indemnify and hold the other Parlies harmless from and against (i) mechanics', roaterialmen's, and laborers• liens in connection with and arising from said construction, and (ii) and all other costz, expenses (including reasonable attrrncys' fees and court <:osts), and liabilities in connection wit.Ii o,· , Ising from such construction; (D) promptly pay the other Parties in th~ amount of any damage to their Improvements caused by or resultin~ from the performan..:e of construction carrie<i on by such Party or its agents, employees, contractors, or any subcontractors of such contractors. 9.7 Constructinn Barricades If any Building construction wnrk performdd on a P;irty• s Tra<'t could reasonably te dee1,;ecl to constitute a hazardous conditinn f()t" Pe1·mittces of any other Party whl'>se Store shall be l'>pen for business to the eeneral public, the Party nn whnsc Tract the work is be int, perforw~d shall erect or cause tn be erected adequate and properly appearinc solid constructi()n barricades, pai~ted a cnlnr apprnvcd bJ the Project Archi~ect (th~ erection or maintenance of which shall not unreasonably interfere with the operation of then existing Stores or the Hall or access, ingress, or egress f9r Perrnittces) at least eieht (8) feet in height, and substantially enclosina the Building construction work and a rnall enclosure at the joinder of the Hall and the front of the Store where such construction is bei~g performed. Such barricade or barricades shall be continunusly maintained until the said constructi~n shall pave been subst~ntially completed C to the extent reasnnably necessary to remove the hazardous conditinn as aforesaid). The rorceoing requirements reaardina the appearance, height, and painting of barricades shall alsn apply with respect tn all Duildina cnnstruction facing east nn the Phase II Land lncatcd within twr; hundred (200) feet nf the Phase I Stnrc:i \i1th0 \!t 12/CJ/7'/ -52-9,7 '"ft '"ft -n -J> r- ,0 m n 0 ,0 C Cit ... Cit > z C -m G) 0 n 0 C z .... -< ... :c > ,0 r-m -< • UI ,.. 0 0 ~ ... 2038 regard to whether said construction constitutes a hazard. Upon the removal or the present westerly wall or the Phase I Mall, Developer shall erect an adequate and proper appearing, solid mall enclosure painted a color approved by the Project Architect between the Phase I Hall and the construction on the Phas& II Land and shall maintain such enclosure until the Phase II Mall is connected to the Phase I Hall and the air-conditioning system in the Phase II Mall is opera- tional. 9.8 Certifications Re: Construction Developer, upon the demand of any other Party ("Requesting Party"), made at any time after completion of any construction in the Parking Area, shall, wi~h reasonable diligence, submit and -furnish to the Requestirig Party evidence ( in form satifactory to the Requesting Party in the exercise of a reasonable discretion) that: (A) the construction in the Parking Area has been done and completed in full compliance with all applicable laws, orainances, rules and regulations; provided, however, a certificate of occupancy (or the having jurisdiction thereof shall be deemed satisfactory evidence of compliance with the requirements of this Subsection CA); (B) the said Parking Area construction work has been done and completed in full compliance with final working drawings and specifications approved by the Majors; CC) all costs, expens,s, liabilities and liens (except any lien(s) imposed in connection with financing the construction of improvements) arising out of or 1n connection with said Parking Area construction work have been fully paid and dis- charged. If any such lien shall be filed arising out of such work, Developer shall, without cost or expense to any other Party forth- wit~, oouse the same either to be discharged of record, or contested and bonded, in which event any judgment or other process issued in such contest shall be paid and discharged before execution thereof. 9.9 Review of Plans, Drawings or Specifications Within Thirty (30) Days Whenever in this Agreement it is provided that any Party shall sub111i t to any other hrty or hr ties ror tl1P.ir ai:,proval pl an:: or 5/10178 -53-9.8-9-9 ·-n -n -n -> r- "' m n 0 ~ C, UI UI • > z C -m Ci) 0 n 0 C z ... -< ... i J: ; ~J ,-. ffl -< "ft • a, r- 0 0 3 ... 1219171 2039 drawlnus nr specifications. then in the event any Party shall nnt. within thirty (30) days after receipt nf such plans or drawincs or . specifications, notify the submittine Party of its disapprnval and the particulars thereof, then the said plans or said drawincs or said specifications1 as the case may be, shall b~ deemed to be approved by such Party. 9 .10 Cnnstructit)n ti) be Separal.e "Works o{' Impt·nvemcr,t" For all purposes applicable to the provisions nf Division Third, Part~. Title 15 (Sections 3082 et seq.} of the Civil Code of the State of California, the constructinn of (i) the Phnsc II Hall Stores; Cii) the Common Areas on the Phase l.1 ;n~, toeether with the Parking Area on the Phase I-A Public Parking Land and the Phase I-6 P<.1t,1ie: Parkil!g La.-,d; uno ( iii} tt.e cor . .;t;·uctinn ,:,f i111- provements '>n the Tract of each Party inteerated therewith, shall each be deemed to be sep:.rate and distinct works of impt·oveu;ent as defined in Civil Code Section 3106. 9.11 Common Area tonstructio~ Platts ~ Before any Party comm~nces c~nstructinn of any Cnmm~n Area on its Tract, it shall submit fnr the approval of each of the other Parties schematic, preliminary, and final working drawines and specifications for such Common Area. Subject to the applicable requirements of any governmental agency having jurisdiction over the Shopping Center, each parking space on the Shopping Center Site, regardless of angles of parking, shall have a width on the Phase II Land of nine feet (9') on center, except for employee parking, which may be eight f~et, six inches (8'6"} on center, and on the Phase I Land shall have a width of eight feet, six inches (8 16 11 ) on center, measured in all cases at right angles to the side line of the parking &pace. Parking lane or bays (which include two (2) rows or parking spaces and incidcn\.:il driveway) shall have the follllwinc minbuum and preferred widths at the angle of the parkine desienated below: ~~ u· _:a?'"' ~,, ,Pl?~ MINIMUM #J' _Aij?/ ~/ pj/ -54- PREFERRED ..5;1 ....:1f?'/ _£fr'/ $/ 9.10-9.11 drawin~s or spccificatinns, then in the event any Party shall not, within thirty (30) days after receipt nf such plans or drawings nr specifications, notify the submitting Party of its disapprnval and the particulars thereof, then the said plans or said drawings or said specifications~ as the case may be, shall be deemed to be approved by such Party. 9 .10 Cnnstt·uction tn be Separate "Works nf Improvement" For all purposes applicable to the provisions of Division Third, Part 4s Title 15 (Sections 3082 et seq.) of the Civil Code of the State of California, the construction of (i) the Phase II Mall Stores; (ii) the Common Areas on the Phase II Land, together with the Parking Area on the Phase I-A Public Parking Land and the Phase I-B PubLic Parking Land; an<l (iii) the co~struction of im- provements on the Tract of each Party integrated therewith, shall each be deemed to be separate and distinct works of improvement as defined in Civil Code Section 3106. 9.11 Common Area Construction Plans b Before any Party commences construction of any Common Area on its Tract, it shall submit for the approval of each of the other Parties schematic, preliminary, and final working drawings and specifications for such Common Area. Subject to the applicable requirements of any governmental agency having jurisdiction over the Shopping Center, each parking space on the Shopping Center Site, regardless of angles of parking, shall have a width on the Phase II Land of nine feet (9') on center, except for employee parking, which may be eight feet, six inches (8'6") on center, and on the Phase I Land shall have a width of eight feet, six inches (8 1 6 11 ) on center, measured in all cases at right angles to the side line of the parking space. Parking lane or bays (which include two (2) rows of parking spaces and incidental driveway) shall have the following minimum and preferred widths at the angle of the parking designated below: 12/9/77 DEGREES lt5"' 52"' 60"' 90' MINIMUM lt 8' 50' 54' 63' .PREFERRED 52' 52' 55' 65' 9.10-9.11 20~0 ARTICLE 10 GRANT OF EASEMENTS 10,1 Easements for Parking and Passage Each Party respectively hereby grants to the other ~arties f~r their respective use, for the use of Occupants, and for the use of Permittees, all in common with each other, mutual and reciprocal non-exclusive easements in, to and over the Common Area located on the Tract of each such grantor. The easements described in the preceding sentence shail be for ingress to and egress from the Shopping Center Site and all portions thereof, for the passage aao parking of vehicles and for the passage and accommodation of pedes- trians on such respective parts of such Common Area of each as are set aside, maintained and authorized for such use pursuant to this Agreement. Each Party, to the extent of any int~rest it may have in the Shopping Center Site, grants to each of the other Parties, perpetual non-ex~lusiv~ easements (appurtenant to the Tract of each grantee) for the purpose of ingress and egress by any pedestrians, autoMobiles, trucks and any other vehicles to and from the Tract of each Party, or any portion thereof, by traversing the Public Parking Land in any direction to or from any point on the common boundary line of the Public Parking Land and each PartY.'S Tract, or any po,·tion thereof, includinP, easements for access to Lots 8 and 21 of Carlsbad Tract 76-18 (as more particularly described in Exhibit B, Parts 2 and 3) and from there to public streets, to wit: £1 Camino Real and Marron Road; provided said easements to the extent that they arc in said Lots 8 a11d 21 shall terrnin,1te automatically upon the dedication and acceptance of said lots as a public street; provided further, said easeroents shall not be exercised so as to interfere w1th the use of the Public Parking Land for public parking lot purposes as set forth in the Grant Deeds to the Parking Authority ot the Phase I, Phase I-A, Phase I-Band Phase II Public Parking Land and shall be exerciaed consistent with the configuration of the Parking Area on the Public Parking Land, 10.2 Easements for Utilities Developer hereby grants to each Major non-exclusive easements 7113/18 -55-10.1-10.2 . .,, .,, -n -> r-,., m n 0 ,., C "' ... "' . )> z C -m Ci) 0 n 0 C z ... i -< ... :c J> "' .... m -< "Tl • GI ... 0 0 s ... 20~1 in, to, over, under and across all portions of the Parking Area from any point on the Tract of the grantee Major ·and extending to any point in the boundary of the Parking Area for the construction, laying, installation, operation, maintenance, repair, relocation, modification, alteration or removal of the following to service the grantee 1-iajor•s Tract: sanitary sewer sysLcms, storm '.ir~ir1age systems for the drainage and removal of storm, surface, sub-surface, under-floor and roof run-off waters, fire protection installations and water lines, domestic water and gas mains, electrical oowPr lines and power systems, telephone and cable television lines and other utility lines. All installations, lines, mains, trunks and ~ipes installed pursuant to the grant of easements herein shall be underground, except with respect to those facilities which are normally above ground in connection with undergr~und utility systems. 10.3 Further Utility Easements Developer hereby g·rants to each Major: (A) an eaf.cment for the connection, installation, laying, operation, maintenance, repair, relocation, modification, alteration and removal of laterals, lines, mains, pipes, conduits, service connections and extensions to storm drainage systems, sanitary sewer systems, water, power, sas and telephone tr~nks, mains, culverts, lines, pipes, conduits, and systems now or hereafter located on the Developer Tract, for service of the Improvements on the Tract or A7/P/; J'//P J1//,,1' pP.r;/p// P/' ,,PP/';/p//J ;.o.t"/'.t"P/" #//P ~.Y.t"./Pp.t"/" ,J"/'#//;J ;p Penne,Y an easement for the ct>nnection,, .Jnsta.l.lat.ion,, la,Y.inc,, operation,, • 10.lnt'enance,, repa.tr,, re..locat.lon, P1od.lf.icut.lon,, a.lterat.lon and re///0Y11.l or a conduit system underground between the Penney Hain Store Buildina and the Building on the Penney TBA Site of four utility conduits for electr:~ service, telephone service, a sound system and a s~nurity ~yQtem and of such other systems as may be required by Penney (pro- GI r- vided, however, each Major shall pay the ordinary and reasonable cost, not to exceed the actual cost thereof, of the gas, water and power used by it for its Improvements and any charges or fees im- posed by any public body or utU.ity company wit.h respect to the 7113178 -56-10.3 .. 0 0 3 ... '.,, .,, -n -> ,- "' m n 0 ,a 0 "' ... "' J> z C -m G) 0 n 0 C z -4 -< .. 20~2 easement grant under this Section 10.3 for connection to and tapping from the utility mains, provided that in performing the Phase II Developer Construction, Developer shall pay subh charges or expenses for connection and tapping necessary to bring to approximately five (5) feet from t~e Sears, Federated and Carter Building walls the utility services specified in subparagraphs Ci) through (vii), inclusive, of Paragraph 7CB) of the Project Improvement Requirements); (B) the right of flow and passage from and through the stcrr., sanitary sewer, water, power, gas and telephone systems, trucks, mains, pipes, cul.verts, lines, and conduit located on the Developer Tract to and through the laterals, lines, mains. pipes, conduit systems, service connections, and extensions thereto constructed for utility service of its Tract and any portion or portions thereof (as provided in the preceding Subsection A); and in furtherance of such grant, DevP.loper' covenants that no Person, C unless. r·equired under the rules and regulations of the governmental authority having authority with respect thereto), shall utilize such storm, sanitary sewer, water, power, gas or telephone system, trucks, mains, cul- verts, pipes, conduit, or lines for utility service of or to any land other than tht Shopping Center Site. 10.q Easement Grants to Public Utilities Uothing contained in the preceding Sections 10.2 or 10.3 shall be deemed to prohibit or limit: (A) the grant by any Major of easements to any public body or utility company for the construction, installation, operation, maintenance, repair• relocation, modi f_ica- tion or alteration of sanitary sewers, storn drainage systems, fire protection installations, cable television gas, water power or tcl~~bonc lines, mcins, trunks; and (B) the transfer and assienment ~y any Kajor to any public body or utility company of the utility easements, in whole or part, granted to it under Section 10.2 and Section 10.3, as applicable, provided such grant or transfer and assignment under Subsections (A) or (B) of thts Section 10,q is tor the purpose ~r providin, such service! to the Shopping Center 7/13/'18 -57-10,q I '.,, .,, -n -> ,... ,0 m n 0 ,0 C en .. en . > z C -m Ci) 0 n 0 C z .... ; -<·; .. I i J: > ;ilD ,... m -< .,, • D9 ,... 0 0 s ... ,a rn n 0 ,a CJ rn 20~3 or an Occupant ot the Shopping Center and does not reduce or impair the present or future use by or benefit of the facilities to any Party. 10.5 Easements for footing, Etc. (A) Developer hereby grants to each Major non-exclusive ease- men ts in, to, over, under and aero:;:; t.hc Develcpcr Tract fer t:.e construction, reconstruction, erection and maintenance on, over, across and under the Developer Tract of such footings, supports, canopies, roof and building overhangs, awnings, siGh1n·, lighting and other similar appurtenances as may hereafter be designated by any Major and approved as to location by Developer. Developer, May and Penney each hereby grant to. each other easements in each granto~'s ·respective Tr3ct for any encroachments in existence on the date hereof of the Buildings or other improvements constructed on the grantee's Tract on to the Tract of the grantor. (B) Developer hereby grdnts to Penney a non-exclusive easement • • • • • I * • • • I { TEXT COHTIHUED Oil HEXT PAGE} 7/13/78 -57A- '""ft .,, -n -> ,.. ,., m n 0 "' C, M ... CII • > z C -m Ci) 0 n 0 C z ... -< ... i :c '! ,., :! I m -< .,.. . 10,S in, to and over the area hereafter described and shown and desig- nated as Access Easement on Exhibit C for ingress to and egress from the Penney Main Store Building and the Public Parking for the passage and accommodation of pedestrians, ana ior the opening over said land of a doof now or hereafter to De located on the southerly side of the first floor of the Penney Main Store Building; said easemen·t to be limited to the space oetween two horizontal planes, the lowest of which is even level with the finished top of the floor slab of Penney's Hain Store Building and the highest being no less than twelve (12) feet above said top of floor slw The land subject to the foregoing easement is described as follows: Beginning at the Westerly extremity of that certain course in the southerly line of land described in deed to PENNEY of the Penney Tract Cre1.0rded on July 28, 1969, ~s Document No. 135 912 in the Office of the County Recorder of San Diego County, California), having a course East and distance 366.115 feet; thence frol!I said point of beginning the foll•n~ing courses and distances; East 61.94 feet; thence South 6.00 feet; thence West 67.94 feet; thence North 95,94 feet; thence East 6.00 feet; thence Sout::. 89,94 feet t.o the point of beginning. The fore{;oing shall extend from Base Elevaticn 28.00 feet to elevation 40.00 feet baseJ on a brass cap monument located on the center line of Vista Highway at station 88 + 00 and having an elevation 13,41 feet. 10.6 Easement for Support of Hall Each ~ajor (the "grantor") hereby grants to Developer an ease- ment· fer the support of the roof of that portion of tllf• Mall C 1) located as lf tne date hereof within its Tract, or (ii) to be hereafter located within its Tract. In this latter instance, the grant is subject to the grantor's prior right to performance of its construction without obstruction by reason of the exercise of said easement; provided, however, the location of any columns or other supports for that portion of the roof of the Mall to be located within the grantor's Tract and the extent of the load- bearing stress of the roof of the Mall adjoining the Mall facade of the grantor's Buildine, shall be subject to the approval of grantor, which approval may be granted or withheld in the sole and absolute Judgment of granter. There shall be no seismic lo~ding imposed by any Mall structu!"e on any Major's Building by reason of 2/3/'{8 -56-10,6 such attachment. The Buildings of the Majors shall likewise not .impose a seismic load on the Mall by reason of such attachment. 10.7 Duration of Easements (A) Subject to the provisions of the followinu Subsection (D), th~ easements granted pursuant to Section 10.l and Section 10.6 (except for the easements granted pur'luant to th'e l .. :;t ;;,:ntence of Section 10.1) shall expire on Termination Date. The e6sements granted pursuant to Section 10.2 and Section 10.3 and the last sentence of Section 10.l shall be perpetual. Each 01 t'. easements granted pursuant to this Article 10 shall survive the total or parti;l dcstruc- tion of Ci) the subject m2tter of the easc~cnt, and (ii) the servient ;J!'//RIR//~ P/ ./## .t"iJ.dl" ..... .#////A"',.;:. ('A'/, the easements for access, ingress, egress and pedestrian movement granted pursuant to Section 10.l on and across portions of the Hall and/or other Common Arca necessary for reasonable access to the entrances of tne Store of e~ch Major and the easement grcntcd Penney ;~r~~Lnt Lv 3~cLion lv.~l~) for access to the southerly door of the Penney Store and the easements granted pursuant to Section 10.5(A) for footin.Bs, supports, canopies, roof and buildinc overhanss, <\\mings, signine, lighting and simila~ appurtenances to the Stores of ~ach Major anci for the encroachments of Buildings and other improvemen .. .; among the May, Penney, and Developer lracts shall all continue beyond Termination Date and exist until no building, structure or installation shall any longer be l~cated on the eranLee's Tract, subject to the provisions of Article 20. 10.8 Mo Oedication Nothing contained in this Article 10, including the grant of any or all of the easements as herein provided, shall be deemed to constitute a dedication of any Tract or Tracts or any portion or portions ther,iof for public use. 10.9 Relocation of Utilities At any time, Developer, at its own cost and expense, shall have the ri~ht, after thirty (30) days• noti~e t~ each Major with -- 213178 -59-10.7-10.6 ~,. ~ z C, -m G') 0 n 0 C: z .... -< ' .. ::c J> ;a ,-m -< -n u, ,- 0 0 ~ .. ;a m n 0 ,a a m ,a such attachment. The Buildings of the Majors shall likewise not impose a seismic load on the Mall by reason of such attachment. 10.7 Duration of Easements (A) Subject to the provisions of the following Subsection (B), the easements granted pursuant to Section 10.1 and Section 10.6 (except for the easements granted pursuant to the last sentence of Section 10.1) shall expire on Termination Date. The easements granted pursuant to Section 10.2 and Section 10.3 and the last sentence of Section 10.l shall be perpetual. Each of the easements granted pursuant to this Article 10 shall survive the total or partial destruc- tion of (i) the subject ·matter of the easement, and (ii) the servient tenement of the easement grant. (B) Notwithstanding the provisions of the preceding Subsection (A), the easements for access, ingress, egress and pedestrian movement granted pursuant to Section 10.l on and across portions of the Mall and/or other Common Area necessary for reasonable access to the entrances of the Store of each Major and the easement granted Penney pursuant to Section 10.5~D) for access to the southerly door of the Penney Store and the easements granted pursuant to Section 10.5(A) for footings, supports, canopies, roof and building overhangs, awnings, signin 6 , lighting and similar appurtenances to the Stores of each Major and for the encroachments of Buildings and other improvements among the May, Penney, and Developer Tracts sl;all all continue beyond Termination Date and exist until no building, structure or installation shall any longer be located on the grantee's Tract, subject to the provisions of Article 20. 10.8 No Dedication Nothing contained in this Article 10, including the grant of any or all of the easements as herein provided, shall be deemed to constitute a dedication of any Tract or Tracts or any portion or portions thereof for public use. 10.9 Relocation of Utilities At any time, Developer, at its own cost and expense, shall have the right, after thirty (30) days' notice to each Major with 2/3/78 -59-10.7-10.8 20~6 respect thereto, to relocate on the Developer Tract any utility pipes, lines, conduits and related equipment then located thereon and installed pursuant to Section 10.2 and/or Section 10.3 and/or Section 10.ij, provided that such relocation shall not interrupt or diminish the utility service to any Major's Tract or reduce or unreasonably impair the usefulness o~ function of such ~tilit!~s or increase the cost of maintenance thereof. 10.10 Correction of Site Descriptions It is recognized that by reason of construction errors, t· Buildinns of the Parties may not be precisely constructed within their respective Tracts as descrihed in Exhibit A. As soon as reas~nauly possible after completion of the construction of any Building on any portion of its Tract which is contiguous to the Tract of another Party, each Party shall cause a certified A.L.T.A. survey to be made of such portion of its Tract showing all improvements thereon and the Tract ~oundaries. ~he cost of such survey shall be paid by each Party for its own Tract, unless more than one shall have joined in ob~a1n1ng a sincle survey, in which event the cost thereof shall be divided bct~een such Parties in such manner as they shall have agreed upon. In the event such survey shall disclose that any Building of a Party h&s not been precisely constructed wi•hin its respective Tract, then prompt.!:, upon the request of the encroachin(I Party, the Party upon whose TnicL such Building encroaches shall grant an e.asement over the part ?fits Tract so affected to exist so long as such Building of grantee remains and, upon recordation of su~h easement in the Cffice of the County Recorder of San DieBO County, the descriptions of the Tracts of such Parties .as set forth in this A&reement shall be ,deemed thereby corrected. ln the alternative, such Parties, if they so &gree, may correct such descriptionr. by an appropriate cxchun$C of .>ARJ>_,r.4M9d¥~~~ t IJ~~~~~..--~ _.Al!F~~~ ~.:?..?'.t"J"/de"'d" J,;fp././ Pt? tTdt?/1/t?tT k re.lfen, or e.rcvse any Party t" this AgreeMcnt from exercising all due dilicence to construct its Buildings and other improvements within its respective Tract as described on Exhibit a and as shown on F.xhibit C. 213178 -60-10.10 . .,, .,, -n -> ..... ,0 m n 0 ,0 C, UI ... UI )> z C -m G) 0 n 0 C z .... -< ... respect thereto, to relocate on the Developer Tract any utility pipes, lines, conduits and related equipment then located thereon and installed pursuant to Section 10.2 and/or Section 10.3 and/or Section 10.4, provided that such relocation shall not interrupt or diminish the utility service to any Major's Tract or reduce or unreasonably impair the usefulness or function of such utilities or increase the cost of maintenance thereof. 10.10 Correction of Site Descriptions It is recognized that by reason of construction errors, the Buildings of the Parties may not be precisely constructed within their respective Tracts as described in Exhibit A. A0 soon as reasonably possible after completion of the construction of any Building on any portion of its Tract which is contiguous to the Tract of another Party, each Party shall cause a certified A.L.T.A. survey to be made of such portion of its Tract showing all improvements thereon and the Tract boundaries. The cost of such survey shall be paid by each Party for its own Tract> unless more than one shall have joined ·in obtaining a single survey, in whici1 event the cost thereof shall be divided between such Parties in such manner as they shall have agreed upon. In the event such survey shall disclose that any Building of a Party has not been precisely constructed within its respective Tract, then promptly upon the request of the encroaching Party, the Party upon whose Tract suer Building encroaches shall grant an easement over the part of its Tract so affected to exist so long as such Building of grantee remains and, upon recordation of such easement in the Office of the County Recorder of San Diego County, the descriptions of the Tracts of such Parties .as set forth in this Agreement shall be deemed thereby corrected. In the alternative, such Parties, if they so agree, may correct such descriptions by an appropriate exchange of land realigning the boundaries of their Tract~. Nothing herein contained shall be deemed to relieve or excuse .any Party to this Agreement from exercising all due diligence to consfruct its Buildings and other improvements within its respective Tract as described on Exhibit Band as shown on Exhibit C. 2/3/78 -60-10.10 ARTICLE 11 MAINTENANCE, OPERATION, AND MANAGEMENT OF COMMON AREA AND SLOPE AREA 11.1 Operation and Maintenar.ce of Parking Area CA) The management, operation, an~ maintenance or the Phase I Public Parking is carried on by Developer under the Public Parking Lot Operating Agreement dated November 24, 1969, as amended, referred to in Section 2.l(D), Developer shall not amend or terminate such agreement without first securing the approval of the Majors. (B) Attached as an exhibit to the Fourth Supplement to the Agreement for the Phase II Public Parl:ing refarred to in Sectior. 2.2 is the form for an agreement entitled "The Plaza Camino Real Public .Parking Lot Operating Agreement". Said agreement is herein referred to as the "Uew Public Parking L~t Operating Agreement". Developer shall enter into the New Public Parking Lot Operating Agreement with the City and Parking A~thority upon conveyance by Developer of the Phase II Public Parking Land to the Parking Auth~rity. Said New supersede the Public Parking Lot Operating Agreement dated lioveinber 24, 1969, as a111ended. (~) Developer shall keep, manage, operate and maintain (i) the Phase I Public Parking during the term of the Public Parking Lot Operating Agreement, dated Hovember 21J, 1969, as amended, until superseded by the Uew Public Parking Lot Operating Agreement, (ii) the Phase I and Phase II Public Parking during the term of the New Public Parking Lot Operating Agreement; and (iii) the Center Parking (which in the event title to the Public Parking or any portion thereof reverts too~ revests in Developer or any Major shall thereafter include the Public ~arking, or said portion thereof, as the ~ase may be), in good order, condition and repair. (0) As used herein, unless the context requires otherwise, the term "Public Parking O;,erating Agreement" shall refer to the aforemen- tioned agreements bet~een Developer and the City or the Parkins Authority, or both, fot• the management, operation and maintenance of the Phase I Public Parking and the Phase II P~blic Parking, as described in Subsections (A) an (D) of this Seetion 11,1, 7113178 -61-11, 1 ---------~------------------- ,, ,, -n -> r- ;g m n 0 ~ C "' ... "' . > z C -m (i) 0 n 0 C z .... -< ... :c > ~ r-m -< .,, • GI r- 0 0 ~ ... 20~8 11.2 Maintenance Standards In the performance of such management, operation and maintenance or the Public Parking and the Center Parking, Developer shall comply with the rules and regulations with respect thereto, as set for~h in Exhibit£ and, during such time as it is in effect, the Public Parking O~erating Agreement. During ~uch tirues as the Public Parking Documents are in effect and Developer does not own and is not managing, operating and maintaining the Public Parking pursuant to the Public Parking Operating Agreement, Developer's obligations respecting the Public Parking shall be deemed to have been pb, ~ ~ed if Develope!" has exe:•cised all of its rights and performed all of its obligations under the Public Parking Documents. 11.3 Ope!"ation and Maintenance of Developer Improvements; Pa!"king Ratio Developer covenants to: (A)' Keep, manage,. operate and maintai~ the Mall and all imp!"ovements, facilities and equipment located the!"eon and the!'ein and used in connection t!te"ewi th in Rood O"Oe", cond i ti.,:>n and !"epalr, which maintenance, 111anage1,1ent and operation shall b_e in confo!"mity with the !'Ules and regulations set forth in Exhibit E. CB) Provide air-conditioning and ventilation fo!' lhe Mall at such times and in sucn manner as shall be !"equi!'ed to maintain the temperatu!'e the!'eof th!'oughout the Mall at a reasonable comfo!'t level in execut.ion and maintenance of the pe!'for-mance criteria set fo!'th in Exhibit D, Part 3. (C) Maintain and ope!'ate Ci} the Common Area on all Tracts and (ii) the Slope Area (subject to the provisions of the Slope A~reemcnt), in good order, condition and repair in compliance with the applicable provisions of Section 11.1 and Exhibit£, provided that Vevelope!''S obligations in regard to Perimeter Sidewalks on the Tracts ot the Majors shall be limited to those set forth in Section 11.q(o). (D) Maintain at all times on the Shopping Cen~er Site, Parkin& Areas sufficient to provid~ at least q.76 Par~ing spaces per l,000 square feet of Planned Floor Area of all Buildings on the Shoppin~ Center Site; provided, however, the forc~oing shall not be applicable 8/1178 -62-11.2-11.)(A)-(D) .,, .,, -n -)> ,.. ,a m n 0 ,a C en ... en . )> z C -m (i) 0 n 0 C z· -t -< ... :c I ,. I 'IO ,-m I -< ,, • CD ,- 0 0 ~ ... 'IO m n 0 ,a Cl m ,., 20~9 to the Planned Floor Area on the Phase II Land until, as to each increment thereof described in Section 7.3(B), thlrty (30) days prior to the date such increment first becomes inclu~able in the computation of Common Area Maintenance Cost Allocable Shares pursuant to Section 7.3(8), CE) Obl.ain tlae approval of tile Par·ties before <:ou::.e11l.i11g l.o any change in the Public Parking as Operator under the Public Parking Operating Agreement. 11.4 Perimeter Sidewalks (A) Subject to Subsection CB) of this Section 11,4, each Party covenants, at its own cost and expense, to maintain the Perimeter Sidewalks on its Tract in &owd order, condition and repair in compli- ance with the applicable provisions uf Exhibit E. CB) Developer. shall be responsible for cle~ning, removal of rubbish, dirt and debris from, and landscape maintenance (excluding reseeding and replanting} for the Perimeter Sidewalks on all Tracts, and the costs and expenses therefor on all Tracts shall be included in Common Area Maintenance Cost. 11,5 Haintenance and Repair of Utilities CA) Veveloper covenants (i} to maintain as originally constructed and located, and (ii) (except as such maint~nance, management and operation is performed by public bodies or utility companies) to maintain, manage and operate in good order, condition and repair, the storm and sanitary sewer, water, power, gas and telephone systems, trunks, mains, pipes, conduit, culver~s and lines constructed as part of the Developer construction on ~he Phase I Land and as part of the Phase II Veveloper Construction, including utility laterals up to five (~) feet from the Buildings of all Parties (including tho Developer Duildine$), but excludine utility hterah within five (5) feet of the Buildings. All costs incurred by Developer pursuant to the foregoing provisions of this Section 11.5 shall be in-:luded !n Common Area Maintenance Cost. (B) Each Party shall be responsible !or the maintenance, management, op~rptfon ~nd repair or the ~tflity l~terals within five 7113178 -63-11. ,1-11. 5 I • .,,, .,,, -n -> ,... ;o m n 0 '10 0 u, ... .... u, . l> z C -m (i) 0 n 0 C z ... -< ... :c' ! l> I '101 ,... . ffll -< I ..... . u, ,... 0 0 ~ ... ;o m n 0 -'II C, m '10 2050 (5) feet of the Duilding(s) on its Tract. Any such maintenance or repair by a Major. and any work by a Major in exercise of the easements granted in Sections 10.2 and 10.3 shall be ~erformed only after • • • • • • • • {TEXT CONTINUED 0~ NEXT PAGE} -7/13178 -63A-11.5 -n -n -n -> r- ;a m n 0 ;a C ell ... "' > z C -m (i) 0 n 0 C z ... -< .. u, r-0 0 ~ .. ·!051 two (2) weeks' notice to Developer and the other Majors of the intention to do such work, except in case of emergency, and any such work shall be done at the sole cost and expense of the Major per- forming the sarne, as expeditiously as possible, and in su;.h manner as to cause as little disturbance to the use of any other Party's Tract as may·be practicable under the circurnstan~es. Any injury or damage caused to any other Party's Tract in performance of such work shall be promptly repaired or replaced by the Major performing the same in a good and workmanlike manner. (C) The provisions of this Section 11,5 are not app11~· _P to the conduit system between the Penney Main S~ore Building and the Building on the Penney TBA Site. 11.6 PenPey Conduit System D~veloper as part of the Developer c~nstru~tion on the Phase I Land has installed a conduit system between the Penney Main Store Building and the Penney TBA Bu~lding and th~ cost of such installation has been reimbursed to Developer by Penney. Subject to the provisions of Article 12 hereof, Developer shall be rP.spon$ible for the maintenance and repair of said conduit system. The cost of suc.h maintenance and repair shall be reimbursed by Penney to Developer from time to tir,1e within thirty (30) days after Developer bills Penney th,?refor. 11.7 Ho Charge for Parking As respects the Parking Area, no charge shall be collected from or time limit imposed upon any Occupant or the Perra it tees of any Occupant for parking unless the Parties otherwise jointly agree in writing. As respects the Parking Area on the Phase I and Phase I-A Public Parking Land and, upon the conveyance thereof to the Parking Authority, the Parking Area on the Phase I-8 and Phase II Public Park1~i Land, said Parking Area shall be operated without charge to the public unless such charge to the public is required by another governmental entity other than the Parking Authority or the City, or any agency or instrumentality thereof, as a rar~ of: parking management program, transportation control plan, or other governmant regulation of parking and such charge cannot be le&ally absorbed by the ParkinR Authority or its succer.sors and cssigns. 7113178 -64-11.6-11,7 .,, ,, -n -> ,- ~ '" n 0 ~ C en ... en . > z C -'" Ci) 0 n 0 C: z ~ -< ... % > ,., ,- '" -< 91'1 . ai, ,.. 0 0 ~ ... ~ m n 0 ~ a m ,., 2052 11.8 Employee Parking Each Party with respect to its agents and employees and, as the case may be applicable, the agents and employees of its respective Occupants (herein collectively referred to as "Employees"), shall use its best efforts: CA) To require its respective ~nployees to use for automobile parking only those portions of the Parking Area most remote Cat least 300 feet distant) from Buildings. (B) To enforce compliance by its Employees with the parking requirements set forth in the preceding Subsection CA), including, but not by way of limitation, the obtaining of license numbers of the automobiles used by its respective Employees and the use of such information in making periodic investigations at reasonable intervals of the Err.ployees' comr.liance with such parking require- ments. 11.9 Obstruction of Common Area (A) Each Party covenants not to place, keep, ~ermit or maintain any fence, barricade, structure, building, mPrnhnnrli~P nr nth~r obstruction of any kind on any Common Area or any portion or portions thereof without the prior consent of the other Parties (which consent shall ~e granted or withheld in the sole and absolute discretion of each Party), except to the extent that the same shall be reasonably required in connection with: Cl) The exercise of ~r.~ easements granted pursuant to Sections 10.2 and 10.3. (2) The construction, reconstruction, expansion, repair, modifi- cation, alteration or replacement of the Improvements of any Party or any part or parts thereof (to the extent the same may be permitted in accord~nce with the applicable provisions of this Agreement). (3) Any Joint promotional activity for all the Stores in the Shopping Center approved by the Parties, (q) The exercise or the temporary license as granted to the Parties hereto respectively pursuant to the provisions of Article 16. (5) The construction, reconstruction, reiocation, repair, maintenance or replacement of utility transmissi~n P.r.d distribution 7/3178 -65-11.a-11.9 ! .,, .,, -n -> r- ,a ffl n 0 ,a 0 "' ... "' > z 0 -m Ci) 0 n o· C z .... -< ... :c > "' r-m -< "'II • .,. r- 0 0 ~ ... "' '" n 0 "' a '" "' 113178 2053 facilities and equipment, as may be reasonably required by utility companies or public bodies, subject, however, to all the applicable provisions of this Agreement. The Parties acknowledge that upon the conveyance of the Phase II Public Parking Land to the Parking Authority, the use of any of the Public rar:..ing wi thir. the City of Carlsbad for the purposes set forth in Section 7 of the New Public Parking Lot Operating Agreement will be subject to the provisions .')r said Sectivn 7. CD) Developer shall not give its permissiod. _:suant to tne New Public Parking Lot Operating Agreement for or othgrwise permit any "special events" (as that term is used in the New Public Parking Lot Operating Agreement) in the Public Parking without the approval of all the Parties. • • • • • ·• • • • {TEXf COJITIIIUED OIi I/EXT PAGE} /'.:: 0 C: z .' ..., ,' -<' .. : . :c I > I ,a r-m I -< "'l'I • GI r-0 0 ~ .. ,a m n 0 ,a C -65A-11,8 m ,a 205~ ARTICLE 12 TAKE-OVER OF MAINTENANCE, MANAGEMENT, AND OPERATION OF COMMON AREA AND SLOPE AREA 12.l Applicability of Certain Sections Section 12.2 ~hall be applicable only so long as The May Stores Shopping Centers, Inc., a Missouri corporation, or any corporate successor thereto which may, as a result of reorganization, merger, consolidation, or sale of stock or assets, succeed to such corporation's business, is the sole general partner of Plaza Camino Real or any successor partnership and such partnership is Developer hereunder. Section 12.3 shall be applicable only from the earlier~ (') the time The May Stcres Shapping Centers, Inc., or an~ corporate successor thereto which may, as a result of reorganization, merge,·, consolidate, or sale of stock or assets, ~vcceed to such corporation's business, shall no~ b~ the sole general partner of Plaza Camino Real or any successor partnership (while such partnership is Developer hereunder) or ( U) the time such par_tnershi p is no longer Developer hereunder. 12.2 Right of Take-Over By Arbitration time to time be dissatisfied with the performance by Developer of its ~bligations to maintain, manage and operate the Common Area or the Slope Area, as provided in Article 11, (including dissatis- faction with the c,st of such performance as it relates to any Common Area other than the MaJl), then such Major shall have the continuing right whether before or after Developer may have reassumed said maintenance, management and operation pursuant to the provisions or Subsection CB) of this Section 12.2, !f such Major so decides (but said right shall not be deemed to diminish nor the cxer~ise thereof be deemed to waive any of any Major's rights resulting from any breach in the performance of Developer's obligations provided for in Article 11) to serve notice upon Developer specifying therein the particulars of such Major's dissatisfaction and demand that within thirty (30) days after receipt by Developer of s~id n~ttce, Developer cure the unsatisfa-ztory performance in the r,articulars specified. If, on or after the thirtieth (30th) day ft·om receipt of said notice, such Major shall still be dissatisfied ~1th said performance by 2/21/78 -66-12.1-12. Z -n -n -n -J> .- "' m n 0 "' CJ "' ... "' > z C -m Q 0 n 0 C z .... -< ... ·:C > ,a r-m -< ,, • GI .- 0 0 ~ ... 2055 Developer, then such Major shall have the right to submit to arbi- tration, as provided in Article 21, the question of whethe1· or not Developer is satisfactorily performing said obligation:... The findinss of and decision in said arbitration proceedings 3hall b~ binding and conclusive upon the Parties thereto. In the event the findings and the decision in the ~aid arbitration proceedinBS shall be that D~veluper is not satisfactorily performing its aforesaid obligations, then a Person shall be designated pursuant to Section 12.ij to take over such obligations from Developer. (B) At any time or from time to time after a Person shall huv~ been designated to take over Developer's aforesaid obligations to maintain, manag~ and operate, as set forth in Subsection (A) of this Section 12,2, Develop.er shall have the rir.ht to submit to a~bitration the questior whether or not under all the circumstances it is reasonable for Developer to reassi.:me said maintenance, management, and operati,,n; provided, however, that all expenses of arbitration (including the expenses of the Majori) with respect to such arbitration initiated by Developer shall be asscs~cd to Developer and shall not be a part of Common Area Maintenance Cost. 12,3 RiRht of Teke-Over Without Arbitration Subject to Section 12,1, if any three (3) Majors at any time are dissatisfied I ith the perfor1r,ance by Developer of its oblie,ations to maintain, manaee and operate the Common Area, or the Slope Area, as provided in Article ll, (including dissatisfaction with the cost of such performance as it relates to any Common Area other than the Mall), then such Majors shall ha\e the right, if su,h Majors so decide (but said right shall not be deemed to diminish nor the exercise thereof be deemed to w~ive any of any Major's rights resulting from any breach in .. he performance of 1'eveloper I s obligations provided for in Artidc 11) to jointly ~f:>·ve r,ol.lue upon Developer specifying therein the particulars or the dissatisfaction of such Majors and demand that within thirty (30) days after receipt ~Y DeveJnpcr ~r said notice, Developer cure tht1 unsatisfactory performance in the particul.;rs specified. If, on or after the thirtieth (30th) day from receipt of ::aid notice, :ouch MaJvrs shall st-111 1,u Jlssatisfiea wt th perfor- mance by l>cvelopcr, then sur.h Majors shal.i. have tho right by joint 213176 -67--12, 2-12, 3 , .. :-\it : .,, .,, -n -> ,- ,a m n 0 ~ C "' ... "' . l> z C -m G) 0 n 0 C z ... -< ... ::c > "' ,... '" -< .,, • ) 2056 notice to Developer to discharge Developer from its obligatinns tn. maintain, manage and operate such Common Area and.Slope Area, as provided in Article 11, such discharge to become effective sixty (60) days after the receipt by Developer of such discharge. Such discnarge shall also have the effect of discharging Doveloper from its obligations to maintain and repair the Penney conduit systems as provided in Section 11.6. All Parties shall be bound by such notice ot discharge. In the event of any such discharge, a Person shall be designated pursuant ~o Section 12.~ to take over th< afr~esaid cbliga- tions from Developer. Said take over may include or ex~iude the Mall at the opti•>n of the Hajors discharging Develope1·. Such electi'ln shall be set forth in the notice of discharge. 12.~ Designation of Person to Take Over Obligations In the event of a discharge or Developer as provideG in Section 12.3, then during.the aforementioned sixty (60) day period between the 'notice of discharge.and the effective date of the discharge, • or in the event the find!ngs and decisilln in arbitratilln p:-oceedings performing its aforesaid obligations, then within the sixty (60) d~y period subsequent tll such decision, a Person qualified for such management shall be designat~d by the affirmative vote of a majority ot the Parties (expressed by joint notice to the remaining Parties) to take over from Develo~er the maintenance, management and operation of the Common Area and the Slope Area and in addition, the maintenance and repair of the ¥enney conduit system referred t~ in Sectilln 11.6, to the ~ull extent Developer is responsible therefor, as provided in Article 11 and Sections 14.l and 15.J (except said Person shall n~t be responsible for the management, operation and maintenance ot the Hall 4 if the Majors discharging Developer pursuant to Section 12,3 so elect, as set forth in Section 12.3). Developer shall assign its rights under tho Public Parkins Operating Agreem~nt to such Persl'ln and such Person shall assume in writing Develnper•s resp,,nsibilities . . thereunder. Such Persl'ln shall similarly assign such r lghts to any auccesst>r and such success,,r .11hall ah11larly assume such 11blieat1,,ns, 12/9/'11 -68- ·l ' I \. t i .L' .,, '"'II -· n. -> ,.. 711 ffl n 0 711 CJ "' ... "' > z CJ -ffl G) 0 n 0 ! C I z I ... I ·-< ' ... ·:c ,.. 711 ,.. ffl -( ~ • .. ,.. O· 0 3 ... 711 ffl n .o • t C) 2057 . In performing such maintenance, management. repair and operation such Person shall comply with the provisions or Article 11 and Sections 14.1 and 15.3 with respect thereto, and each Party shall promptly and duly pay to said Person (so long as said Person is performing said obligations of Developer) it~ respective. Common Area Maintenance Cost Allocable Share, and if said Person· is responsible for performing Developer's obligations with respect to the Hall, its contribution toward Hall Maintenance Cost, in accordance with the provisions of Article 7 and Article 8 hereof and Penney shal 1 prompt'.. y and duly pay to said Person the reimbursement provided for in Sect.ion L . .,. Any amounts payable t~ Developer by any Occupant as such Occupant's allocable share of Common Area Maintenance Cost and, if said Person . taking over Developer's obligations is responsible for such obligations with respect to the Hall, any amounts payable to DevP.loper by any Occupant as such Occupant's contribution toward Mall Maintenance Cost, shall be deemed assigne" to said Person taking over said obligations, together with the right to enforce payment and coJ.iect the same, as said Person is perfor~ing said obligations. It is agreed that ar;y such designation to take over such maintenance, management and operation, and su~h maintenance and repair shall not relieve Developer or release it from its obligations to keep, perform and observe any and all other terms, conditions, agreements, covenants, and provisions set forth in this Agreement to be by Developer kept, performed and observed. 12.5 Appointmen~ of Successor In the event of the resignation, incapacity, dissolution or death of a ~erson designated to perform and then in control of· th~ ~aintenance, management and operation of such Common Area and Slope Area, and the maintenance and repair of the Penney conduit system, as provided in the preceding Section 12.4, then a majority of the Parties shal! have the right to appoint a successor Person by joint notice to the rer11aining Parties. Such sucoessor Person .shall assume in writing the Developer's responsibilities under the Public Parking Operating Agreement. 12.6 RiRht ot Each HaJo~ to Take C~er Its Adjacent Parking (A) In the event any Major is dissatisfied with the performance 113178 -69-l2.ll-12,6(A) ,., ffl n 0 JD C, "' ... "' . ,.. :-z C, -m G) 0 n 0. c: zt -t I ·-< ... :c > JG r-m -< "'II • • ,- 0 0 ~ ... ,., ffl .n 'O ,. ._,,, ·a· .iii 2058 by Developer or any Person appointed pursuant to Sections 12,3 or 12.4 of its obligations under Section 11.1 respecting the Parking Area, such Major may, upon at least ninety (90) dars' noti~~ to all the other Parties, take over such obligations under Section 11.l respecting the Parking Area designated in Subsection CB) of this Section 12.6 as its Adjacent Parking. In such event, for ~o long as such take over shall be in effect, such Major shall be responsible for fulfilling all of Developer's obligations under this Agreement with respect to such Jl.djaccnt Parking, including the obligation t... .,·ry insurance and provide indemnification with respect thereto under Sections 14.l and l~.~. Such Major, on not less th2~ six (6) months' notice to all Parties, shall have t~e right to require Developer or the ~erson appointed pursuant to Sections !2.4 or 12.5 to reassume such obligations respecting its Adjacent Parking effective on the first day ~f the next following Accounting Period. Automatically, and without the necessity of any further action by Developer, the Major exercisi~g said right, or a Person designated by ~uch i-ic,jor, shali oecome, cy v 1rtue of said exercise, a subcontractor of Developer under the Public Parking Operating Agreement as to such Major's Adjacent Parking. Such Major or the Person designated by such ~ajor ihall fulfill all of Developer's obliRations under this Agreement and the Public Parkinc Operating Agreement with respect to said Adjacent Parking without any expense or charge to Developer or the other Parties. Such Major shall indemnify Developer and the other Parties against any liability or expense C~ncluding attorneys' fees) resulting from failure of such Major or the Person designated by such Major to fulfill said obligations under this Agreement or the Public Parking Operating Agreement. The Major exercising' its rights under this Section 12.6 shall be responsible for the full cost of manauing, operating and maintaining its Adjacent Parking. So long as such take over shall be in effect, in determining the Com~on Arez Msintcnancc Cost Allocable Shares of the Parties and Advance Payments (as said term is used in Section 7,q) with respect thereLo, the Planned Floor Area of the Major exercising the right of take over under this Section 213178 -70-12.6 'tM . 9ft 9ft -n -> ,.. ,a m n 0 ~ 0 "' .. "' . > z C -m G) 0 n 0 C z ... -< .. :c I > \ ,a ,.. m -< 9ft • Ill ,.. 0 0 3 ... 2059 12.6, shall be excluded from any computations under Section 7.3{A) for all Parties to the extent the computations relate to Common Area Maintenance Cost for the Parking Area. (B) The May, Penney, Sears, Federated and Carter Adjacent Parking are described, respectively, in Exhibit G, Parts 1, 2, 3, 4, and 5 and ~re located as shown on Exhibit J, Part 2. If pursuant to Section 27.18(B), Exhibit L replaces Exhibit C the May, Penney, Sears and Federated Adjacent Parking shall be located as shown on Exhibit J, Part l. (C) A Major's right to take over its Adjacent Parking under this Section 12.6 shall not be subject to arbitratiou. ARTICLE 13 MKINTEHAHCE AND RESTORATION OF IMPROVEMEUTS ·13.1 Maintenance by Developer Developer covenants that (subject to the provisions of this Article 13), it will keep ~nd maintain, or cause to be kept and --' ..... -: ......... , -~-.L••ut.11 ... ll"'U J ~it.hout provided in Article 7 and Article 8), the Developer lmprovemen~s, includi9g the Parking Area, in good order, condition and repair, and that it will, as respects the Developer Buildings, comply with the standards of maintenance, management, operation and control set forth in Exhibit f, 13.2 Right to Raze, Remove, Relocate, Alter, Remodel or Add to Developer Improvements (A) Subject to the provisions or Sections 3.1, 3.2, 3.8, 13.4, and 18.10,· Developer shall have the right at any time and from time to time to raze, remove, relocate, alter, remodel or add to the Developer Improvements, other than the Improvements des~ribed in Subsection (8) or this Section 13.2. (B) Developer covenants that it will not raze, relocate or remove the following: (1) The Hall Stores necessary to fulfill the requirements ot Subsections (A) and (B) of Section 3.8. 7121178 -71-13,1-13. 2 ; .,. .,. -n -l> .- ,a m n 0 ,a t:J u, ... u, l> z C -m Ci) 0 n 0 C z .... -< ... :::c > ,a ~ m -< .,. • "' ~ 0 0 ~ ... ,a m n 0 ,a a ffl ,a · ... 2060 (2) The portions of the Hall (i) abutting the Mall Stores specified in subparagraph Cl) above; (ii) abutting and between • I • I • • • • {TEXT CONTINUED ON NEXT PAGE} {..., ..., -n -> ,- ,a m n 0 ,a 0 "' ... "' l> I z 0 -rn G> 0 n 0 C z ... -< ; ... I % i > I ,a ,.. I ffl -< ,, • CP ,.. 0 0 ~ ... ,a '" n 7/13178 -71A-0 13,2 ="' C, "' ,., ... 2061 the Stores of the Majors then operating Retail Facilities on their Tractsi and (iii) constituting any sid~ malls connecting the portions of the Hall referred to in subdivisions C 1) an.d ( ii) with any outside entrance to the Parking Area. (3) The Parking Area. (C) Developer may, without the approval of the Majors, alter or remodel the interiors and store fronts of the Mall Stores at any time and from time to time. 13,3 Restoration of Developer Improvements CA) Subject to the provisions of the following Subsections (D) and (C), if at any time any or all of the Developer Improvem~nts and the Parking Area should be damaged or destroyed by fire or other cause or casualty, Developer shall, whether or not such damage or destruction be covered by insurance, promptly commence tte rPpair, reconstruction or replacement thereof and diligently prosecute the same to completion. (B) Notwithstanding the provisions of the preceding Subsection {A), { (' -. ' at any ti!'!~ ?.ft:~!' t:.h'" '""P;r::ot.inn nr P::1r}:er termination of the operating covenants of all the Majors set forth in Article 18, the Mall Stores shall be damaged or destroyed by fire or other cause or casualty, and the cost of repair, reconstruction or replace- ment to fulfill the requirements of Subsections (A) and CB) of Section 3,8 shall exceed Five Hundred Thousand Dollars ($500,000) (as certified to by Developer and approved by each Major), then Developer shall not be required to perform such repair, reconstruction or replacement, unless: ()) In the case where such damaee or destruction would be t'Overed by insurance of the kind Developer ,was required· to maintain pursuant to Article 1q, or was covered by insurance Developer in fact did maintain, within forty-five (45) days after such damage or destruction, at least two Majors shall agree in writing with Developer to operate Retail Facilities on their Tracts for a period or five (5) years from and after the date of occurrence of such damage or destruction, (2) In the case where such damag~ or destruction would 6/2176 -12-l3,3(A)-(B) i f.,. .,. -n -> ,.. "' m n 0 "' C en ' en . >· z C -m Ci) 0 n 0 C: Z· -4 -< ... :c > "' ,.. m -< .,. • • ,.. 0 0 ~ ... 2062 not be covered by insurance of the kind Developer was required to maintain pursuant to Article 1q, and Developer did not in feet cover the same by insurance, within forty-five (q5) days a~ter such damage or destruction at least two Majors shall agree in writing with Developer to operate Retail Facilities on their Tracts for a period of fifteen (15) years from and after the date of occurrence of such damage or destruction. CC) Notwithstanding anything to the contrary contained herein, Developer shall not be obligated to reconstruct more thin the Devel- oper Improvements described in Subsection ( B) of Section ...... '. and any vtiJJties line~ and systems constructed by Developer as part of the ,Pere.loper Cons~rvc~}on on 'l.n~ ">'»:.,":>-e ".l ~'"l>~'I:. ~ ~, '?~~(. q.<. ~<te. e«~e JI DeveJoper Construct1on • .IJ. # Cons&ruc&..fon ,,fJ!?qv./rP-#/encs -.tJP.Pe.h:,p~r All construction work done by Developer under the preceding provisions of this Article 13 shall: (A) as re$pects the Mall Stores, conform in architecture, design and construction quality with the Mi'l J Stor1:>$ or thP. re~pP.ctivE' oart.s t.h1:>rPof ac; orlAina) 1 y con$tl"Ut?ted; as respects the Mall. conform in architecture, engineE>ring, design, utility and construction quality with the Mall as originally construe- ted; as respects the Parking Ar-:!a,and other Common Area conform in engineering, design, utility and construction quality with the plans and specifications for -the original construction of the Parking Area and other Common Area; as respects the Non-Mall Buildings, be compat- ible in exterior design, color and material with the remainder of the Shopping Center; (B) as rP.spe~ts the Hall and Mall Stores, be done in accordance with preliminary and final working drawings and specifica- tJons therefor approved by the Majors; (C} as resp~cts the Non-Mall '~:•ildings, be done in accordance with drawings and spec1Cicat1ons therefor approved by the Majors as to the compatibility of such C -m Cil 0 n 0 C z ... -< .. :c > "' ,-m -< .,, • "' ,- 0 h#-.#;../../ .#//./../.-7'./#,.s ./P .f!'J~e-r.lPr de6.1,tj'n,, coJo.r and material Ki th the remainder of' the Sl1opp1ng Center; (DJ be donP. in acoor:tanne w.it/J ehe requirements and standards set forth in Article 9, to the maximu,n applicable extent; (E} as respects the Mall Stores, be in compliance 0 's'. .. "' m n 0 "' C, m 6/2178 -73-"' I J -n -n -n -> ,- "' m n 0 ,., 0 IA ... 2063 with the requirements of Section 3.8; and (F) subject ti) Developer's . riehts to raze, relocate, remove, alter or remodel the Developer Improvements in accordance with Sectil)n 13.2, m:iintain the relative and part.icul ar loca't.1.<m~ c:)t '"...\,~ \'\a.l '. ~\.()\'e~, '(.\\e \o\a.ll a.nd t\,e P<\rkin· .-_ji$ Subjcc-t to the provisil')ns of this Article 13, May CfJVl'nants and agrees: (A) to keep and maintain, at its own cast and expcn~e, the May lmprovemen1.s and all po1·tit>ns therc.,r in g<lod l)rder, condit.i'\n, and repair and that it will as respects its Buildings c,:,ri.;•l• .,ith the standards of maintenance, management, operatil')n and control set forth in Exhibit F; and (B) if at any time prior t11 the exoiration or earlier te,mination of the c~~enants l)f May contained in Section 18.1, the May Improvements sh<luld be damaged t>r destroyed by fire or other cause or casualty, to commence with reasnnablc diligence the repair, reconstruction, or replacement thereof and diligently l> prosecute the same to Cl)~pletinn. Uotwithstanding the foregning, shall nol L,e enfurceable in fav"r of Penney, Sears, feder.ited and Carter~ respectively, after the expiralil)n or earlier termin~til)n of the respective covenants and agreements of Penney, Sears, Federated and Carter contained in Sectinns 13.7(A)(2), 13.9(B), 13.ll(B) and 13.lJ(Jj). 13.6 Rieht to Raze, Remnve, Relocate, Alter, Remodel l)r Add t<1 Hey St-!>re Subject to the prr.-vf:;i,,ns of Scct.f',,ns j • .l, j.,? and j.j(b'/, JI/of shall have the right at any time and from time to time to raze, remove, relocate, alter, remodel, or add to, the whl)le or any part of ~~c May Store; provided, however, that in the event, at any time prior to the expiration l)r earlier termination nf the cnvcnants l)f Hay contained in Section 18.1, the effect nf any such razing, removal, relneatil)n, alteration or rcinodeline shall be that ,he May Stl)rc - 1/20/78 -74-13.!;-l3.6 ~--n -> ,- ,a m n 0 ,a C, en ... en > z 0 -m (i) 0 n 0 C z· -t -< ... '( :c ; ~· ~; m -< '"Tl • DI r- 0 0 ~ ... - i: with the requirements of Section 3.8; and (F) subject to Developer's rights to raze, relocate, remove, alter or remodel the Developer Improve1nents in accordance with Section 13.2, maintain the relative and particular locations of the Mall Stores, the Mall and the Parking Area as the same are respectively located in Exhibit C. 13.5 M2'nten2nce, Repair, Recnnstructinn and Replacement by May Subject to the provisions of this Article 13, May covenants and agrees: (A) to keep and maintain, at its own cost and expense, the May Improvements and all portions thereof in good order, condition, and repair and that it will as respects its Buildings comply with the standards of maintenance, management, operation and control set forth in Exhibit F; and (B) if at any time prior to the expiration or earlier termination of the covenants of May contained in Section 18.1, the May Improvements should-be damaged or destroyed by fire or other cause or C3Sualty, to commence with reasonable diligence the repair, reconstruction, or. replacement thereof and diligently ~ prosecute the same to completion. Notwithstanding the foregoing, the covenant and agreement of May contained in tli1~ Section 13.5(8) shall not be enforceable in favor of Penney, Sears, Federated and Carter, respectively, after the expiration or earlier termination of the respective covenants and agreements of Penney, Sears, Federated and Carter contained in Sections 13.7(A)(2), 13.9(8), 13.ll(B) and 13.13(8). 13.6 Right to Raze, Remove, Relocate, Alter, Remodel or Add to May Store Subject to the provisions of Sections 3.1, 3.2 2nd 3.3(8), May shall have the right at any time and from time to time to raze, remove, relocate, alter, remodel, or add to, the whole or any part of the May Store; provided, however, that in the event, at any time prior to the expiration or earlier termination of the covenants of May contained in Section 18.1, the effect of any such razing, removal, relocation, alteration or remodeling shall be that the May Store 1/20/78 -74-13.5-13.6 shall contDin less than the minimum Floor Area provided for in Section 3.3 ,then May shall commence and complete with reasonable diligence, such construction as shall be necessary to cause the May Store, upon completion of said construction, to contain at least said minimum Floor Area. Notwithstanding the foregoing, the obliga- tions of May ~ontained in this Section 13.6 to commence and complete the construction referred to in this Section 13.6 shall not be enforceable in favor of Sears, Federated and Carter, respectively, after the expiration or earlier termination of the respective obligations of Sears, Federated and Carter contained in Sections 13.10, 13.12 and 13.14 to commence and complete the construction referred to therein. 13.7 Maintenance, Repair, Reconstruction and Replacement by Penney; Termination of Penney Obligations Under Certain Circumstances - (A) Subject to the provisions of this Article 13, Penney covenants and agrees: (1) to keep and maintaiC, at its own cost and expense, the Penney Improvements and all portions thereof in good order, condition, and repair and that it will as respects its Buildings comply with the standards of maintenance, management, operation and control set forth in Exhibit F; and (2) if at any time . prior to the expiration or earlier termination of the covenants of Penney contained in Section 18.2, the Penney Improvements (excluding the Improvements on the Penney TBA Site) should be damaged or destroyed by fire or other cause or casualty, to commence with reasonable diligence the repair, reconstruction, or replacement thereof and diligently prosecute the same to completion. Notwith- standing the foregoing, the covenant and agreement of Penney con- tained in this Section 13.7(B) shall not be enforceable in favor of May, Sears, Federated and Carter, respectively, after the exµiratinn or earlier termination of the respective covenants and agreements of May, Sears, Federated and Carter contained in Sections 13.5(8), 13.9(B), 13.ll(B) and 13.13(8). 1/20/78 -75-13.7 .. 2065 (B) A~ythinc herein to the contrary n~twithstanding, it is understood and agreed that if such damage or destruction occurs after July 28, 1994 and if the Penney Improvements (exclvdinc th~ Improve- ments on the Penney TBA Site) should be damaged or destroyed by fire or other cause to such an extent that the cost of repair, reconstruction or reston,tJ.on would exceed fifty percent (50$) of t.he amount ff". Wl)Uld have cost to replace all nf the Penney Improvements (excluding the Improvements on :-.11e Penney TBA Site) in their entirety at the time such damase or dcstructil)n took place, then P~nncy shall hn.~ t· ~ right to terminate any obligations to repair, reconstruct or reStQre and maintain its Buildings that it may have ta the other Parties contained in thi~ Agreement, and, in the event Penney so elects to terminate such obligations, it (i) shall gjve the other Parties notice of its election sa, to do within sixty (GO) days after such dr.,mal!,e or destructio~ occurs, and {ii) shall repair, reconstruct or restore the Penney Improvement~ only to the extent that it shall, in its sole and ~ absolut~ discretion, decide upon, but if such rep&ir, recon3truction or re:;to:-ction i:; not. so ,.mdcrl..akcn, Penney shall n1ze t.!·,c a._.:,,ag,;;c Improvements and shall improve the areas ~s Common Areas. In tho event that Penney gives notice of iuch election, any obligations of the other Parties to repair, reconstruct or restore their respective Buildings contained in this Agreement that may exist in favor of Penney shall automatically terminate on the da~e Penney's aforesaid obligations terminate. 13,8 Right to Raze, Relocate, Alter, Remodel" or Add to Penney Store Subject to the provisions of Sections 3.1, 3.2 and 3.4(B) and (C), Penney shall have the right at any time and from time to time to raze, remove, relocate, alter, remodel, or add to the whole or any part of the Penney Store; provided, however, that in the event, at any time prio,r to the expiratir,n or earlier termination of the covenants of Penney contained in Sccti'?n i~.2', t~c. effect of any such ra:z.in~, removal, relocati.,n, alterati'>n or reml>dclina shall be_ that the Penney Hain Store Building shall c'>nt.ain less than the minimum Flnor Area 12/9/77 -76-13.'f(l\)-13,8 ,, ,, -n -> ,- ,a m n 0 ;Q C Cit ~ Cit • > z C -m G) 0 .n 0 C Z' .... -< ~ ::c > ;a r-m -< .,, . m ,- 0 0 ~ ~ ,a "' n 0 ;,o 0 '" ,cJ 2066 provided for in Sectit>n 3.11, then Penney shall commence and complct.(] with reast>nable dilicence, such construction as shall be necessary tn cause the Penney Main Store Duildine, upnn completion of said c9nstruc- tian, t,, contain at least said minimum floor Area. Notwitllstandinc the ft>rccoinc, the obli&ations of Penney contained in this Secti0n 13.8 to cnmme~cc and ~nmplcte the con~tructinn referred tn in this Section 13.8 shall not be enforceable in favor of Sears, federated and Carter, respectively, after the expiration or earlier termination 0f the respective obligations of Sears, Federated and Carter c0ntaincd in Sections 13.10, l].12 and 13.1q to comm~nce and complete the construc- tion referred to therein. 13,9 Maintenance, Repair, Reconstruction and ReplaceMcnt by Sear$ Subject to the provi~ions of this Article 13, Sears covenant~ and a:rees: (A) to ~eep and maintain, at its own cost und expPnse, the Sears Improvements and all portions there0r in good ~rder, condition, and repair and that it will as rcsp~cts its Duildincs comply ;.;ith the sta:idr-rd::. of rr.aintcnnnec, manaecmer,t, 11perc1ti,,n and control set forth in Exhibit F; and (B) if at any time pril'lr to the expiration or earlier termination of the covenants of Sears Cl'lntained in Section 18.3, the Sears Improvements should be damaged or destroyed by fire or other cause l)r casualty, to corr.m.:.,1ce with reasl'lnaule diligence the repair, reconstruction, or replacement thereof and dilieently prosecute the same to completil'ln, Notwithstanding the forecoing, the covenant and agreement of Sears contained in this Section 13.9 shall not be enforceable in favor of May, Penney, Federated and Carter, respectively, after the expiration or earlier termination t>f Lhe respective covenants and agreements of May,_ Penney, Federated and Carter contained in Sections 13,5(0), 13.7CA)(2), 13.11 (U) and 13,13(B). 13,10 Ri~ht to Raze, Relncate, Alter, Remodel or Add to Scars Store Subject to the provisions of Sections 3,1, 3.2 and 3.5 (D) and (C), Scars shall have the r1ght at any time and from time to time to 12/9177 -7'1-13,8-13,ll '.,, .,, -n -> r- ,a rn n 0 ,a 0 V, ... "' . > z C -m G) 0 n 0 C Z' ... I -< ... :c > ,a r-m -< -n • u, ,... 0 0 ~ ... 2067 raze, remove, relocate, alter,rcmodcl, or add to the whole or any pnrt of the Scars Store; provided, however, that in the event, at any time prior to the expiration or earlier termination or the covenants of Sears contained in Section 18,3, the effect of any such razins, removal, relocation, alteration or remodeling shall be that the Sears Store sh~ll contain less than the min!,um Floo~ Area proviced f~r ir. Section 3,5, then Sears shall commence and complete with reasonable diligence, such construction as shall be necessary to cause the Sears Store, upon completion or said construction, to contain at leas: s< 1 minimum Floor Area. Notwithstanding the foregoing, the obligations of Sears contained in this Section 13.10 to commence and complete the construction referred to in this Section 13,10 shall not be enforceable in favor of May, Penney, Federated and Carter, respectively, after the expiration or earlier termination of the respective obligati~ns of May, Penney, Federated and Carter contained in S.ections 13,6, 13,8, 13,12 and 13.l~'to commence and complete the construction referred ~ to therein. 13,ll Maintenance, Repair, Reconstruction and Replacement by Federated Subject to the provisions of this Article 13, Federated covenants and agrees: (A) to keep and maintain, at its own expen~~. the Feder- ated l~provements and all ~rtions thereof in 300d order, condition, and repair and that it will as respects its Buildings comply with the standards of maintenance, management, operation and control set forth in Exhibit F; and (B) if at any time prior to the expiration or earlier termination of the covenants of Federated contained in Section 18.4, the Federated Improvements should be damaged or de- stroyed by fire or other cause or casualty, to commence with reason- able diligence the repair, reconstruction, or replacement ther~of and diligently prnsecute the same to completion, Notwithstanding the foregoing, the covenant and agreement of Federated contained in this Section 13 .11 CB) .shall r:iot be·-=enfo_r.ceable in r,vor of r.uy, Penney, Sears and Carter, respectively, after the expiration nr 1/20/78 -78-13,lO(C)-13,11 . .,, .,, -n -J> .- ~ m n 0 ~ C "' ~ "' . J> z C -m Q 0 n 0 C z ... -< :c J> ;o ,-m -< .,, . IP ,- 0 0 ~ ,a "' n 0 ,a a "' ,a 2068 earlier tcrmin~tion of the respective covenants and a;rccmcnts of May, Penney, Sears and Carter contained in Sectl.,ns 13. 5(0), 13. 7(!\) (2), 13.9(0) and 13.13(B), 13.12 Right to "aze, ~elocate, Alter, Remodel or Add to Ft'!der.iit.~d Store Subject to the provisions of Sections 3.1 1 3,2 and 3.6(8), federated shall have the right at any time and fMm time to time tll raze, remove, relocate, alter, remodel, or add to the whllle Qr .:;ny part of the Federated Store; provided, ho1-1evcr, that in the event, ,t any time prior to the expiration or earlier termination qf the cqvenanL- of Federated contained in Section 18.~, the cffert of any such razing, removal, relocati~n, alteration or remodeling shall be that the Federated Store shall contain less than the min,.mum Floor Area 1,rovidcrt for in Scctil)n 3. 6, then Federated shall <'t)ntrnc>nce nr,d cnrr,pi r,tc uith reasonable diligcnc~, such construction as shall be necessary tn cause the Federated St~re, upon completion of said constructi.,n, to contain at least said minimum Floor Area. Not~ith;tanding the fc,rep,oinit. the ob:lir,ati.,ns cf FedercJtE:d c,;r,tc1in1:ed in this Sectir,n 13.12 to commence ~nd c.,mplete the cr,nstru~tion referrc,d ti:i in this Section 13.12 shall not be enf•)rceablc in favor of 1',.iy, Penney, Scars and Carter, r~spectivcly, after the expiration or earlt~~ termin~til)n of the respective c,;,lieations of May, Penne:.:,,, Scars and Carter ~ontained in Sections 13.6, 13,8, 13,10 and 13.1~ to commence and complete the construction referred to therein. 13.13 Maintenance, Repair, heconstruction and Replacement by Carter Subject to the provisions Qf this Article 13, Carter covenants and 1:1ere:,es: (/1) t'> kee:p and mainta1r., at its owr, expense, the Cnrte1· Improvements and all portions thereof in good order, condition, and repair .... d that it will as respects its BuUdines Cllmply with the standards of maintenance, manaeement, operation and control set forth in Exhibit F; and (D) if at any time prior to the expiratfo~ or earlier termination of the eQvenants of Carter contained in ~ectil)n 18,5, the Carter Improvements should be du111aeed or destroyed by fire 12/917'/ -79-13,1;?-13,13 - : 9ft 9ft -n -> r- ,a m n 0 ,a C "' ... "' . > z C -ffl (i) 0 n 0 C z . ... -< ... ::c I > l ,a r-m t -< 9ft • al r- 0 0 ~ ... ,a ffl n 0 ,a C m ,a 2069 or other cause or casualty, to commence with reasonuble diliucnce the repair, reconstruction, or replacement thereof and dili&cntly prosecute the same to completion. llotwithstanding tht> f-,re&"inc,. the covenant and agreement of Carter contained in this Section l].13{0) shall not be enforceable in favor of May, Penney, Sea,s and Federated, respectively, after the expiration or earlier termination nf thn respective covenants and agreements of May, Penney, Scars and Federated contained in Sections 13.5(8), 13.1(A)(2), 13.9(B) and 13,ll(D). 13.l~ Right to faze, Relocate, Alter, Remodel or Add to ~~~---C_a_r_ter Store~~~~~ Subject to the provisions of Sections 3,1, 3,2 and 3.7(U), Carter shall have the r.ght at any time and fr.,m Lime to time to raze, remove, relocate, alter, remodel, or add to the wh,.,le or any part of the Carter S~ore; provided, h-,wever, that in the event, at any time prior 'Lo the expiration or earlier termi11at.ion of the covenants of Carter contained in Section 18.5,~the effect of any such rc~in&, removal, relocntton, alteration o~ rem,dclinc ~hnll be that the Carter Store shall contain less th&n the minimum Flnnr Area required by Section 3.7, then Carter shall cn~mence and complete with reasonable dilieence, such construction as shall be necessary to cause the Carter Store, upon Cf)t:lpleti()n <.." said c,,nstructi,:,n, t'l contain at least said minimum flo.,r Area. Hotwithatanding the f..,rcgoJnc, the obligatio_ns of Carter c-,ntained in this Secti'ln 13.111 to c"mmcncc and c,:,rnpletc the construct.i,:,n referred to in this Section 13,111 shall not t,e cnforc'.?able in favor of Hay, Penney, Scars and Federated, respectively, after the expirati.,n or earlier termination of the respective obligations of Hay, Penney, Sear~ and Fcde~~t~d contained in Sections 13.6, 13.8, 13.10 and 13.12 to oommence and cnmplete the C'lnstrucLion r-c:ferr1aid to therein. 13,15 Terminatinn of Oblinations lt is expressly provided, however, that if any of the follnwinc is damaged t>r destroyed: the H;iy st,,re, the Fenney r1u in Stnre 12/CJ/'r/ -80-13.13-13,1!'.i ,.,, ,, -n -> ,- ;o m n 0 "' C CII ... CII . > z 0 -m (i) 0 n 0 C z -t -< ... :C I ;, m -< "Tl • IP ,- 0 0 ~ .. ; .. 2070 Buildins; the Sears Store, the federated Store, the Carter Store or the Mall Stores, and the Party whose Building is damaged nr destroyed for any rea:;on whatsnever, fails t., commence such repai1 or re:.;.t "\ration work necessary to provide the minimum Floor Area specified f~r such Party in Article 3 with reasonable diligence afte_r the d.:1te when such dar:i.1i;c or des=,ruction occurred or foils therc.:ifl.c:r t,"\ prr,ce:E:d c; .. lit:.cnL:i.}' to compl~tc such repair, restoratil'ln or rebuilding, the nthcr Pa~Lie5, in addition to such other rights and remedies as may be accr,rded Lhem by law, or in this Agreement, shall each have the rieht and optil'l,,. respectively, to terminate Ci) any obligatil'lns to restl'lre, operate, repair and maintain contained in this Agreement that they may h~vc ti) the Party so failing, and (ii) any restriction on their right tr, use their Buildings contained in the Agreement that exist in favr,r 'lf the Party so failing, by giving the P~rty so fail~ng (with copies to the other Parties) written n'ltice of such electir,n so to dn at any time prior to the completion·or such repairs l)r rcb~ilding, provided such ., restoration work shall n'>t then be actively undenrny, «nd upr,n suc-h notice beinc given said o~ligatir,ns and rc~trictions, as the case may be, shall automatically terminate and end. 13,16 C".Jrr.mlln Building Cllmp'>nents U) f"or the p1•rpr,ses of thi~ Se<:ti'ln 13,16, each Part!• ~hall be deemed to be the owner of all improvements on its Tract, (B) Each Party owning any improvement in the Shopping Center which conLains a Common Building Component (as hereinafter defined in Section 13,16(E)) if such Comm•Jn Building Component is utilized by another improveroent in \.he Shopping Center owned in whole or in part by another Party (a:i owner of a benefited improvement): (l) Shall maintain, at its own cost and'expense, such Common Building Comp'>ncnt therein in such state of repair that it shall continue tt> have the capncity to be so used in commt>n with the benefited impr~vcment in question (subjc~t t~ the provisions of item (1) of Subsecti'>n (C) of this Section 13.16. 1219177 -81-13,l!i-1:i.16 . .., .., -n -> ,- ;a m n 0 ;a C "' ... "' . > z C -m Q 0 n 0 C z -I ~ ... :I: > ;a ,- ftl ~ .., • CD ,- 0 0 3 .. I I ' l i I . 1 I ! . ( l · ... -' 2071 (2) Shall not cause t>r permit_ t<> occur any damaeo, l11ss o_r inJ ur y to the t>wn er of the benefited improvement nr' 1 ts ·t·enants by or as a result nr any act or negligence· on its part with.respect to the Coramon DuUdinG C~Mponent in questi<>n or any other portion of the improvement owned by it which contained the Common Building Component in question (subject to the provisions of the last sentence of Subsection (D) of this Section 13,16. (C) Each Party owning any benefited improvement which utilizes any Common ·euilding C<?mponent contained in an improvement which is not owned in whole or i.n part by it: (1) Shall not· place upon the Common Building Comi)onen .. in question any burden which at the time or placement there<>f is in excess ~f the capacity of the Common Building Component therefor or will prevent the use or the improvement contained i~ the Common Building Component in question for its intended purposes; and • (2) Shall not cause or permit to occur any damage, loss or i11ju1 )' 1.0 "ht: i11ip1•ovem ... rit wi'aic:h c-:.ntains th" Cou,:li·':in !luildin& Component ir. questit>n by or as a result or any act or negligence ou its part wih respect to the benefited improvement (subject to the provisions or the last sentence of Subsection (D) of thi~ Section 13.16. CD) llothing in :;ubsections (B) or (C) or this Section 13,16 shall be deemed to preclude any Party owning either an improvement containing a Com,.oon Building Component or a benefited i111provement, as the case may be, from doing or causing to be done any work (whether of repair, alteration, restoration or otherwise) with respect to any such improvement (notwithstanding that during the course or performing such work a condition otherwise prohibited by the provisions ot this Section 13.16 may result) if: (1) During the course of performance of such we>rk the Party by whom or on whose beh~lf such ;nrk is being dt>ne shall, at its own cost and expense, pr~vide such temporary facilities as •01. be necessary: 12/9177 . -82-l3.l6(C)•CD) 0 ! . ,:,.i-:,·.:··.·· .. , 2072 ( a) To per form tho func tinn per formed by t.hc CllP1mnn Building Cl'llllp"'nent in question, if such Wl'lrk is pcrfl'lrmcd with respect t.o t.he impr.,vemcn t cnn ta in in& the Cornml'ln Building Component in question, or (b) . To increase the capacity of, or supplement, the Common Building Component in questilln tn the e::tcnt necessary so that the benefited improvement shall nnt, during the course of performance of such w,rk, either place on such Common Building Component a burden in excess of the capacity therenf for such purp~,.:-· -,r otherwise prevent the use or the improvement containing the Co..i:r.'ln Buildinc Component in question for its i~tended purposes, . if such work i .... perr"rir.e:d 111th respect to the beneri t.ed improvement in questi,,11; and (2) At U:c conclusil)n of such w>d'. UH.re is Ct:,rr,plianc!! with the provisions of item (1) of whichever Subsections CB) or (C) of this Z(:cl.i"n 13.16 is approprio_:;e to the impr·wcm£-1:t with resp~~t ti) which the work in questinn WAS dn~e. Uotwithstanding the provisi..,ns of item (2) of whichever of Subsections (B) l)r (C) of this Section 13.16 is appr,,priatc, the owner of the improvement with respect to which the work in quest.il)n is being performeo shall not be liable to ~.e owner of the oLher improvement affected by such work for any inconvenience, annnyance, disturbance or loss of business to the owner of the improvement affected by the performance of such Wl)rk (or bis occupant) arising out or and during the pcrforinanci:: of such work (unless 'lccasi'>ncd by the ne&lleencc of the owner of the impr..,vemcnt with respect to which the work in quest1')0 was being performed or its aeent.s), but tbe owner of the improvement with respect t'> which such work is beinn performed shall make all reas.,nal)le efforts to keep any such i11co11- venience, annoyance, disturbance or loss of business to the minimum reasonably required by the wr,rk in que:;ti'>n. (£) A:; used herein I the term "Cnmmr,n Ouildin6 Component." shall mean any sinele improvement, includine, but nnt necessarily 111111\..c:d t•>, the: I-I.ill :.1.,·ucLu,.c, which i~ lo\:uL1:J Jll.lf'Lially nn nne Tract and partially nn annthcr 'tract within thc··i;1tnr,ping Center. 1?/9177 -83- • ... C. J • ' C • r C ( ( ( C -111111 --.. -• l ' r r - C r C C • .. • ... • -' ' C , • I • • 2073 ARTICLE 111 FIRE MH> l'UBLIC LIABILITY JJISUllMICE 14.l Dcvelnper Insurance llcquircmcnts Developer cove~ants and agrees that: , (A) It will, at all times prior to TerminaLion Date, keep or cc1use· to be keµt the l.leveloper _Irr.p;·,;ve111cnts, ir.cludine, th~ l'.irkiai; Arca, insured acai:1st at le,,st the follo\iine, perils: los:; or dama~e by fire, lightninc, windstorm, cyclone, tornado, hail, explnsfnn, riot, riot attending a strike, civil cnmmntion, malic. •~ mischief, vandalis111, aircraft, vehicle, smoke, sprinl{ler leakar,c and any flLhcr causes or events frow time to time included as covereu risks und~r standard insu~an~e indvstry practices within thP classific~tJnn of "Fire and Extended Covcrac.e" in an amount not less than eichty pcrce~L (80i} t:>f the OCtual tull replaCe1!11;>nt cost thereof (eXC]udinC fnundatinn, footing ond excav~tifln costs). (B) It will at all times prior to Terminjtion Date mai~tai~ or c .. usc t'l be 1:air:taincd in force ::nd effect c0mprc!icnsive pul>l.!.c liability insurance (including autflm">bile liability ond prflpurty domaB~ coverage and conLrnctual linbility coverage insuring the indemriification r,bligati">ns set forth in Sccti,.,n 15.1) havinG a coi:.!:iir,e:c= =,inglc .1.ic:it cf ut least T~::'l Milli~n O'Jllars ($2,00C,OOC.OO' per occurrence covering the Developer Improvements and the Devell)per Tract and operotions conducted thereon or crnan.:tin& Lhererrorn, together with the Slope Area and bll Common Area; provided, however, in the event of a take over of Developer's ,.,bligations for maintenance, managcm·ont and operation of any area pursunnt to any of the provisi">nS of Article 12, the Persnn taking over such obligations shall also l>c responsible for providing such insurance t1ith respect to the area S'> taken ,:,vf!r, includine any sw:ih ar"'a on the Developer Tract, a•1d, so long ~s Developer is relieved or such oblicati">ns pursuant to Article 12, Dc:vclopcr sholl n,, l,,nccr be rcsponsble fr,r-provldinc such insurance with rcspcc~ ~~ ony ar~a so taken over, 12/9/77 111,l ''Tl ..,, -n -> ... "' m n 0 ::,0 C c.,, ... c.,, > z C -m (i) 0 n 0 C: z .... -< ... ::i: > ::a ... m -< ~ • DI ... 0 0 ~ ... 207~ (C) The insurance required pursuant to Subsectinns (A) and (13) of this Section 111.1 shall: (1) Be effected under a valid and enforceable policy or policies or contract or contracts issued by an insurQr or insurers of recognized responsibility and qualified to du bubirt~ss in the Stat..e of Californi.i; (2) Contain an agreement by the insurer or insurt'.!rs thereof to give at least thirty (30) days' prior written notice to each Major in the event of: fn) any chan~e in the scope tlr atr.ount of coverage provided by su .. · ... 1surancc; (b) cancellation of such insurance; (3) With r~~pect to the insurance required under Sub- sectitln CD) of this Section 111.1, name each Major as an addi- tional named insure~. Developer shall have the right to comply wjth and satisfy its obligati'lns under this Suhsecti•">n (C) by means.;. of self-insurance to the extent of all or any part or the first Fifty Thousand Dollars l~':>0,000) of insurance requi.rcd hercunder Sil l"n~ as Developer is Plaza Camino Real and The 1-\ay St'lrcs Shopping Centers, Inc. is a neneral partner thereof. (D) It uill ~Tn!sh each Maj~r with a certific~te or ~ertifi- ~;/..,.J /P.//4 ,,p,:, .c-'##'e?/J,:;w.t:".-?/ ,::,/ //~./..r.,-/~&"#/ /4..,.,..-..,-.4'/ .e;-./#'e#&"./~ ;// ..M"'_.$"P/J".#&".<!" ?'?.P'.<!"/,41",t,> /##ff J"4' /e".#e"AV,:7./J /4&"/o'-'!?.././1 /.<!"p"P.//e"/ /<? R .... /1/d./'ncp/qeo' Pf ,tlere./oper pvrsuonc C-!7 cn/s .s'eec/on ../4'. ..?, on or ue/'ore the date i:>n which any such insurance (or any renewal or renewals thereof) shall bcci:>me effective, provided with respect t'l any insurance carried under a plan of self-insurance pursuant to Sec- tion l~.3. it shall furnish a certificate respecti~g such self- in~uronco. :r/ Gr '" I -< I -n • OJ r- 0 0 ~ (E) (1) The insurance required under Subsection (A) of thjs Section 111, 1 shall be for the benefit tlf Developer I each Major and the holder of any Ht)rtcane on the Developer "tract, (and tM City ... 12/9/77 -65-111,l(C)-(E) (C) The insurance required pursuant to Subsections (A) and (B) of this Section 14.1 shall: (1) Be effected under a valid and enforceable policy or policies or contract or contracts issued by an insur~r or insurers of recognized responsibility and qualified to do business in the State of California; (2) Contain an agreement by the insurer or insurers thereof to give at least thi~ty (30) days' prior written notice to each Major in the event of: (a) any change in the scope or amount of coverage provided by such insurance; (b) cancellation of such insurance; (3) With re~pect to the insurance required under Sub- section (B) of this Section 14.1, name each Major as an addi- tional named insured. De~eloper shall have the right to comply with and satisfy its obligations under this Subsection (C) by mean~ of self-insurance V to the extent of all or any part of the first Fifty Thousand Dollars ($50,000) of insurance required hereunder so long as Developer is Plaza Camino Real and The May Stores Shopping Centers, Inc. is a general partner thereof. (D) It will f·Tnish each Majer with a certificate or ce:rtifi- cates (with an endorsement of premium payment thereon) evidencing all insurance coverage (and any renewals thereof) required to be maintained by Developer pursuant to this Section 14.1, on or before the date on which any such insurance (or any renewal or renewals thereof) shall become effective, provided with respect to any insurance carried under a plan of self-insurance pursuant to Sec- tion 14.3, it shall furnish a certificate respecting such self- insurance. (E) . (1) The insurance required under Sµbsection (A) of this Section 14.1 shall be for the benefit of Developer, each Major and the holder of any Mortgage on the Developer Tract, "(and the City 12/9/77 -85-14.l(C)-(E) 2075 and Parkinc AuLh'>rity, as respects the Public Parking), as their respective interests may appear, and shall provide that all prncccda of such insurance ( in the event the total amount of such proceeds shall exceed Fifty Thousand Dollars ($50,000)) shall be held and disbursed as a tru:;t fund for the purrnse t)f paying tr.e c,,st t,:, Developer of the repair, reconstrueti,,n or replacement of the Devel- oper Improvements and the Parking Area, as provided for in Article 13 hereof. Shculd any amount of insurance proceeds remain after such repair, reconstruction or replacement {c:s provided f,:,r in Article 13 hereof) shall have been completed and fully p · : .. f'lr, free <'.If any liens or claims, such rPmainder shall belong to r.nd shall be pal d ti) Developer, subject, however, to the 1· iclits '>f the said hlllder of :. Mortgage. From and after Plaza Camin,, ~e~l is nl) lon5er the D~qelnpcr or The Hay St.ores Sh,Jppinr. Centers, Inc. is no longer a general partner thcre.,r, whichever first occurs, if the proceeds 'l( any claim exceed Fifty Thllusand Dollars ($50,000. Qj), said pr,:icel•d::; shall be u~id Lo sucL bDnk or trust compuny quulirtcd und~r Lhr laws of the State of Californi3 as Developer shall des:gnatc for the custody and di&pll&itinn of said funds as herein provided, except that it is expressly underst.,od and acreed that a M.,rtcagcc .,r the Devcl.,per Tract ~ay be a trustee for the purposes llf this Scctilln 1"4.l(E)(2). Payment of the proceeds shall be made by said trustee to Devel- oper, or its contractor or contractors, in the discreti.,n of the trustee, as follows: (l) At the end of each month, llr from time to time, as may be agreed upon, against Developer's architect's certiF1catc, an amount which shall be that proportion or tho tntal amount held in trust which ninety percent (90S) or the payments to be moda ta the c~ntract~rs or .rr,otcrJolmcn for wnrk done, material supplied and services rendered durine; each month or other period bears t,, the total contract price. 12/9/77 -66-· 1'1,l.0:) •. ) 2076. (2) At the completi~n or the wnrk, the balance or such proceeds required to complete the payment or 'Such work shall. be paid to Developer, or its contractor or contractors as the trustee deems appropriate, provided _that at the time ot such payment (a) there are no liens against the property by reason of sue~ work, and with respect to the time of payment of any balance remaining to be paid at the completion or the work the period.within which a lien may be filed has expired, or proof has been submitted that all costs of w.•rk t.heretofore incurred have been paid, and (b) Developer's archit •. • .. shall certirf t'1at a.!l required work is completed and proper s;1d or a quality and class or the orig.inal work required by this Agreement and in accordance with. the approved plans and specifications. (F) The insurance required under Sub~ection (A) and/or Sub- section CB) of this Section l~.l may be obtained throuah blanket policies or contracts w~ich may cover other properties or liabilities, b provided that as respects the insurance referred ~o in Section · policies or contracts with respect to the Developer. Imprt . .-vemenes and the P~rking Area amounts at least Equal to the amount of insurance requir~d with respect to the Developer Improvements and the Parking Area as if the same were so insured under separate policies or contracts of insuranc~. 14.2 Hajors• Insurance Requirements Each Major covenants and agrees that: (A) It will at all times prior to the expiration or earlier termination ot i~s operating covenants under Article 18 keep or cause to be kept insured its Improvements against: loss or damage by fire, lightnin&, windstorm, cyclone, tornado, hail, explosion, vandalism, riot, riot attending a strike, civil commotio~, aircraft, vehicle, s•oke, sprinkler leakage, and any other cause or events from time to time included as covered risks under .:standard fosu,..ance industry · 12/9/11 -87-111.1( F)-1'1, 2( A) ••-•••" • ·•·-•·-.,·,•·.~r -···-·-' c· trftri\tffji~('· ' j l ~ 2077 pract-ices within the classifica;ti<>n <>f "Fire and Extended Coveraee" in an amount not less than eighty percent (80j) of the actu.il replacement cost thereof (excludinn foundati(ln, footing· and excava- tion costs). CB) It will at all times prior to .Termination Date maintain in force anc:I eff,.ct compre-hensi ve pubiic liab t 11 ty insurance (including automobile liability and property damage coverage and contractual liability coverage insuring the indemnification obligations set forth in Secti<>n 15.2), having a combined single limit of at least Two Million Dollars ($2,000,000.00) per occurrenc~, r,vering its l111provements and its Tract and operations conducted t11ereon or emanating therefrom, provid~d such insurance need not cover its Perimeter Sidewalks or any other Common Area on its Tract required to be covered by the insurance to be provided pursuant to Section 1q.1(B); provided further, however, as respecta those portiono of its Tract and its Improyements oc~upied by assignees, tenants, • subtenants, or concessionaires, insurance obtained'by such Person q.e..«: C<l.l!CU...~~ ~~ '!;,'IA.~ g~.,~-,,'!:,. ~$ ~l!' 1>')>::i.>;;~.)p.z> ~P.P.>R...W 74'" .?; D'../..r J#PJPd.t'/-?H /'o'/ Jp1././ .oe d't>e/u't?c/ /'dd ./on,tr PP so 1,0.J'n~pfneo' or pt?r/"orueo',) ./ ,_ pro -,nto satfsfactJon of the respective covenants or such Hajor provlded ror 1n thls Subsection {B). The 1nsurance required under this Subsection (B} shall name Developer and the other Majors as additional named insureds. (C) The insurance required to be maintained pursuant to the provisions ot Subsection~ (A) and (B) or this Section 1q.2 shall: (1) De effected under a valid and enforceable policy or policies or contract or contracts issued by insurers or recog- nized respons1b1l1ty~ provided, however, that nothing contained 1n thls Subparaaraph (l) shall be deemed to proh1b1t the obta1n1ns or blanket pr,licies or contracts or 1nsurance which may cover any other property or propert1es, real or personal, or any Perisons, 1n add1t1~n to the property covered pursuant to ·i ,0 ·"' n 0 / • ·-I C, 12/9111 -BB-1'1.2(IJ)-(C) "' I _11111111 __ _ • ' • l ' ' ' t C ' I ' ... ' l • 4 • ' C < practices within the classificati0n of "Fire and Extended Coveraee" in an amount not less than eighty percent (80%) of the actual replacement cost thereof (excluding foundation, footing and excava- tion costs). (B) It will at all times prior to Termination Date maintain in force and effnct comprehensive public liability insurance (including automobile liability and property damage coverage and contractual liability coverage insuring the indemnification obligations set forth in S~ction 15.2), having a combiried single limit of at least Two Million Dollars ($2,000,000.00) per occurrence, covering its Improvements and its Tr~ct and operations conducted thereon or emanating therefrom, provided such insurance need not cover its ·Perimeter Sidewalks or any other Common Area on its Tract required to be covered by the insurance to be provided pursuant to Section 14.l(B); provided further, however, as respects those portions of its Tract and its Improvements occupied by assignees, tenants, ~ subtenants, or concessionaires, insurance obtained by such Person in compiiunce ~;ith the requircm"'nts of this Subsection (B) c.1nd performance by such Persons of the oblig2tion provided for in this Subsection (B) shall be deemed (so long as so maintained or performed) pro tanto satisfaction of the respective covenants of such Major provided for in this Subsection (B). The insurance required under this Subsection (B) shall name Developer and ~he other Majors as additicna1 named insureds. (C) The insurance required to be maintained pursuant to the provisions of Subsections (A) and (B) of this Section 14.2 shall: (1) Be effected under a valid and enforceable policy or policies or contract or contracts issued by insurers of recog- nized responsibility; provided, however, that nothing contained in this Subparagraph (1) shall be deemed to prohibit the obtaining of blanket policies or contracts of insurance which may cover any other property or properties, real or personal, of any Persons, in addition to the property covered pursuant to 12/9/77 -88-111.2(13)-(C) 2078 Subsection A of this Section 14.2, or any other liabilities or risks or perils of any Persons, in ad1ition t~ the liabilities or risks or perils covered pursuant to Subsections (A) and (D) of this Section 14.2. (2) Contain an agreement by such insurer or insur~r~ to give at least thirty (30) days• prior written notice to Devel- oper and the other Majors in the event of: (a) any change in the &cope or amount of coverage provided by su"h · surance; (b) cancellation of such insurance coverage. (D) Each Major covenants it will furnish Develooer and ~he other M&jors on receipt of a written request therefor with a certi- 'ficate or certificates evidencins insurance coverage of the liability required to be maintained by it pursuant to Subsections (A) and (B) of this Section 14.2, such certificate or certificates to be fur- nished within forty-five (45) days after the date on which such request is made, provid~d with respect to any insurance carried under a plan of self-insurance pursuant to Section 14.3, it shall furnish a certificate respecting such self-insurance. 14.3 Self-Insurance CA) Notwithst~ndine anything to the contrary that may be contained in Section 14.1, so lonB as Developer is Plaza Camino Real and 'fhe May Stores Sho;,ping Centers, Inc. 1 s a general partner thereof, the insurance required under Section 14.1, or any part or portion thereof, may be carried un~er any plan or plans of self- insurance at any time and from time to time furnished and maintained by the parent conipany of said general partner, provided such parent company, accordine to its latest published annual report containing certified financial statements has net current assets and a net worth of at least Forty 1-lillion Dollars ($40,000,000.00). (B) Notwithstanding anything to the contrary that may be contained in Section 14.Z, the insurance raquired under Section 14.2 or any part or portion thereof, may be ca1·ried. under any plan or 713178 -89-11,. 2( lJ )-111. 3( I,) .,, .,, -n -)> ,... ::a m n 0 ::a C en ... en > z 0 -m (i) 0 n 0 C z ... -< ... :I: l> ,a ,... m -< "'Tl • a, ,... 0 0 ~ ... ,0 m n 0 ,a " m ,0 2079 plans of self-insurance at any time and from time to time maintained by each Major, provided such Major, according to its latest published annual report containing certified financ.ial stal-il.nents, has uct current assets and a net worth of at least Forty Million Dollars ($40,000,000.00). 14.-Mutual Release; Waiver of ~ubroeation Each Party hereby releases for itself, and to the extent lc~ally possible for it to do so, on behalf of its insurer, each of the ot.her Parties from any liability for any loss or damttge t1.1 i.l property of each located upon the Shopping Center Site occasioned to such pro- perty, which loss or damage arises from an)· cause or event enumerated in Section 14.l(A) and Sc.tion 14,2(A), irrespe~tive of any negligence on the part of such Parties which may have cuntributetl to or caused such loss or damage. ~ach Party covenants that it will obtain for the benefit of each other Party a weiver of any right of subrogation which the insurer of such Party may acquire acainst any other Party or ParLios by virt~e 01 the payment of any such loss covered by ~uch insurance. In the event any Party is by law, statute or governmental regulations unable to obtain a waiver of the right of subrogation for the benefit of each other Party, then, during any period of tirt1'l when such waiver is unobtainable, said Party shall, not have been deemed to release any subrogated claim of its insurance carrier against the other Parties, and during the same period of time each other Party shall be deemed not t~ have released the other Party who has been unable to obtain such waiver from any claims it or its insurance carriers may assert which otherwise would have been re- leased pursuant to this Section 14.4. 111.5 Insurance Provisions in Grant Deeds and Public Perkinc Operatins Agreement Nothing in this Article 14 shall be deemed to affect the insurance provisions in the Grant Deeds to the Parkin~ Authority or the Phase I, Phase 1-A, Phase I-D and Phase II Public Parking Land or in the Public Parking Operating Agreement. 713178 -90-14,11(8)-111,5 '.,, .,, -n -> ,- ,a m n 0 ,a C "' ... "' J> z C -m G) 0 n 0 C z ... -< ... :c > ,a r-m -< .,, • 2080 ARTICLE 15 INDEMNIFICATION 15.l Indemnification by Devel<"lper Developer, except as provided itt Section 9.6, covenants and agrees during the period from the date of this Agreement tn and includinc the Termination Date to defend, indemnify and hold harmless each Major from and against any and all claims, costs, expenses (including reasonable attorneys' fees and court costs) and liabilities arising from or in respect of the death of or Dny lcc'1enl, injury, loss or damage whatsoever caused to any naturnl Person or to the property of .:.iny P.erson, as shall occur, in, on or about the De\'el<>pcr Tr act or the Developer Improvement:; ( includ in& the Public Pal'i<inc rr,,m the tim~, and so lone as, Developer has the maintenance and operation responsil:>ility with resr,ect thcretn, as hercinbcf...,re provided), cxce::t for any Comm"n Area on its Tract for which any nther Person mu:;t provide imlemnificatin11 pursuant to Secti,,n l;;'-.3, . Each 1-lajor (the "Indemnitor"), except a.~ provided in Sectinn 9.6, covenants and agrees durin& the period from the date nf this Agreement to and including the Terminatinn Date ta defend, indemnify and hnld cJafms, costs, erpenses ("fneJvo'./nc reasc,na~Je attorne.rs" /'ees and court costs) and liabilities arising from or in respect of the denth or or accident, injury, loss or damage whatsoever caused to any natural Person or t-> the property of any Parsrin as shall occur in nr about ttie lndernnit-:>r 's Tract or Improvements {includin£: its Jldjaccnt Parking fr.:;,.; the time and so long as, 1 t has taken o\•er the main tcnance and operation responsibility vith respect thereto, as provided in Section 12.6), except for any Common Arco on its Tract ror whi~h any other Person must provide Jndcmni/'Jcotion pursvont to Section l~.3. 15,3 Indemnif"icatfrin fnr Cnmmnn Aren and ·s1np::!__!:!:_O:.f!. Except as prnvidOd in Section 9,6, Developer, frnm the time and so lone as it is rcspnnsiblc for the 1naintc11.irice, 111anuecmcnt and opcrat:1.nn nr the Cn111111nn Arca and Sl.npe A•·ea pursuont t.n Article 11, 121917'/ -91-15.1-1~.3 ~ m n 0 ,a C m ~ .,, "'Tl -n -l> ~ "' m n 0 "' C, CII ... CII l> z C -m G) 0 n 0 C z -J; -<' ... . j % I ;; '" l -< I ARTICLE 15 INDEMNIFICATION 15.1 Indemnification by Developer Developer, except as provided in Section 9.6, covenants and agrees during the period from the date of this Agreement to and including the Termination Date to defend, indemnify and hold harmless each Major from and against any and all claims, costs, expenses (including reasonable attorneys' fees and court costs) and liabilities arising from or in respect of the death of or any accident, injury, loss or damage whatsoever caused to any natural Person or to the property of any Person, as shall occur, in, on or about the Developer Tract or the Developer Improvements (including the Public Parking from the timA, and so long as, Developer has the maintenance and operation responsibility with respect thereto, as hereinbefore provided), except for any Common Area on its Tract for which any other Person must provide indemnification pursuant to Section l~\3. 15.2 Indemnificatinn by Majors Each Major (the "Indemnitor11 ), except as provided in Section 9.6, covenants and agrees during the period from the date of this Agreement to and .including the Termination Date to defend, indemnify and hold Developer and the other Majors harmless from and against any and all claims, costs, expenses (including reasonable attorneys' fees and court costs) and liabilities arising from or in respect of the death of or accident, injury, loss or damage whatsoever caused to any natural Person or to the property of any Person as shall occur in or about the Indemnitor's Tract or Improvements (including its Adjacent Parking from the time and so long as, it has taken over the maintenance and operation responsibility with respect thereto, as provided in Section 12.6), except for any Common Area on its Tract for which any other Person must provide indemnification pursuant to Section 15.3. 15.3 Indemnification for Common Area and Slope Area Except as provid~d in Section 9.6, Developer, from the time and so long as it is responsible for the maintenance, manaeement and operation of the Common Area and Slope Area pursuant to Article 11, 12/9/77 -91-15.1-15.3 2081 covenants and agrees to defend, indemnify nnd hold harmless each of the other Parties from and against Ci) any and all claims, costs, expenses (including reasonable attorneys' fees and Lourt cosLs) and liabilities arising from or in respect of the death of or any accident, injury, loss or damage whatsoever caused to any natural Pers11n or to the prnperty nf any Person, as shRll nccur, in on or about LhP Common Area and Slope Area, and ( ii) any mechanics', 1nat<.'rialmen' s .. nd/nr laborers' liens, and all costs, eitpenses and liabilities in c"nnectinn therewith, including reasonable attorneys' fees and L co::.ts, arising out of the maintenance, 111anagement, and operation performed in respect to the Commo11 Area and Slope Arca (1~hcthc,· perfi:>rmcd prior to or after the execution of this A&reemcnt), and that in the event that any Tract shall become subject to any such lien, it shall at tile request llf the o~mcr of such Tract pri:>mptly c.iuse such I ien to be released and discharced of rec,rd, either by paying the indebtedness which cave rise to such lien, or postinn such br,nd r,r l, other secu.rftf,,.:; ;;.:; ::;/J.t)././ /Je re9ufred /J_y ltJv t-1 abt,;·111 svch , .. el,~use mant1ccm,.>nt and "Pcratfon ob.Jfgatf,,ns for ;my area pursvont t,, any -:>/" the pr-:n i si".lns of Jlr ticl e 12, the Per son taking over such ribl!gat ions shall also proviue such indemnification with respect to the area so taken llVer, including any such area on the Develripcr Tract, and including providing such indemnificatirin in favor of Developer as an indcmnifi~d Party, and Sil long as Developer is relieved of such oblications pursuant tll Article 12, Developer shall no loncer be resp?nsible for providinc such indemnification with respect to ar.y area so taken over. 15.11 Exclusions from Indcmnificatirin A Party shall not be entitled to indcmnificatilln under any of the provisillns of this Article 15 for damace caused by its snlc nc&lieenee or by reason of tlccurrences arisinc from its acts which arc e~cluded fram standard Coliforni~ public liability and prnperty damaee insurance pt>lieies as the same exht from time to t.1111~. - 12/9/77 -92-l!j, II ... :c > ,a r-m 1 -< ""' • DI r- 0 0 ~ ... ,a m n 0 ,a a m ,a -n -n -n -> r- ;a ffl n 0 ,a C "' ... "' > z C -m Ci) a ARTICLE 16 TEMPORARY LICENSE 16.1 License to Construct Improvements During the periods of the construction of the Improvements of any Party, such Party (the 11 Licensee11 )· may require a temporary license to use portions of the Tract of one of the other Parties (the "Licensor11 ), other than areas upon which buildings, improvements, or installations (constituting a part or parts or the whole of a retail facility or retail facilities of each Party or the Mall) are located, for the purpose of performing such construction, or the maintenance, repair, exoansion, razing, reconstruction or replacernent respectively required of or permitted to the Parties pursuant to this Agreement, which such license shall be granted by the Licensor pursuant to the provisions of this Article 16. In the event that the Licensee shall so require such temporary license, then not less than twenty (20) days prior to the commencement of any such work, the ~ Licensee shall submit to the Licensor for the Lic~nsor's approval ( w h .i d: cl ppr· o v a J. ::; ha 11 r10L be ut1r'ea::;t)nauly .. • i .. 1. 1 --, _, \ ----, -,_ _ , -·--L"' 1·J .t. t, r 111 ~ J. u J d p J. 'J :., !) .Lat I u.:. the Tract of the Licensor on which the Licensee shall have delineated those portions of such Tract, other than the aforesaid areas upon which fiuildings are located, iP respect of which the Licensee reason- ably requires such temporary license. At all times during th~ period of exercise of any such temporary license, the Licensee agrees to take each and all safety measures as may be reasonably required to protect the Licensor, Occupants and Permittees and the property of each from injury or damage arising out of or caused by such work. The Licensee agrees ~hat such temporary license shall not be used so as unreasonably to impair or interfere with the use, occupancy~ or enjoyment of the Shopping Center Site, or any part thereof, by the Licensor, Occupants, or Permittees. Upon the completion of any such work, such temporary license shall terminate and the Licensee shall promptly restore the area or areas in resp~ct of which such license existed tn a condition substantially the same as that which extended prior to the time the Licensee commenced the use of such temporary license. The Licensee shall clear such area or areas of 12/9/77 -93-16.1 2083 all loose dirt, debris and construction materials and shall restore any other portions of the Shopping Center Site which may have been damaged by the performance of such work or use of such temporary license to a condition substantially the same as that ~hich existed pri~r to the time t~e Licensee commenced the use of such temporary license. Notwithstanding anything to the contrary contained in Article 15, Licensee shall defend, indemnify and hold harmless Licensor and the other Parties hereto pursuant to Section 9.6 against matters covered by Section 9.6 arising in connection wi~h t· • use ~t· such temporary license. The Parties acknowledge that upon tne convey- ance uf the Phase II Public Parking l.an<J to tile Par:.ing Aul:.h.:;rity, the exercise of any license grontcd under this Section 16.1 with ,espect to the Public Parking within the City of Carlsbad will be subject to the provisions of Section 1 of the New Public Parking Lbt Operating Agreement. 16.2 Expiration of Right to License The right to requir~ the grant of temporary licenses pursuant with respect to the easements granted pursuant to Sections 10.1, 10.2,,10.3, 10.5, and 10.10 which survive the Termination Date as set forth in Sections 10.7 and 10.10. The right to ,·equire the grant of such temporary licenses with respect to each such easements shall expire on the expiration date of each such easements as provided in Sections 10.7 and 10.10. ARTICLE 17 COMPLIAHCE WITH LAWS, RULES AND REGULATIOHS 17.1 Compliance with Laws Subject to the ~rovisions of the following Section 17.2, no Party hereto shall use, operate, maintain, manage, or occupy or permit the use, operation, maintenance, manag~rnent, or occupancy of its respeotlve Tract, or any part thereof, in contravention of any law, rule, regulation, ordinance, or requirement of any government or governmental body having jurisdiction thereof, 17.2 Right to Contest Laws Any Party, at its own cost and expense, may in good faith 713178 16,2-17. 2 ,. ,. -n -J> r- ;a m n 0 ;a C en. ... en J> z C -m (i) 0 n 0 C z ..... -< ... :::c J> "' .-m -< • DI r- 0 0 ~ ... contest the validity, application, or enforcement of any such law, rule, regulation, ordinance, or requirement (as referred to in the preceding Section 17.1), provided: (A) non-compliance shall not subject its respect~ve Tract to loss or forfeiture, and it shall • • • • • • • • {TEXT CONTINUED ON HEXT PAGE} .. 7/3/78 -94A- ', r "Tl "Tl -n -> r- ,a, m n 0 ,al C, Cit ... Cit • > z C, -m Ci) 0 n o: c._: --~ 17 .2 ~--~ "' "' n 0 ,a a ffl ,a 1-n -n -n -> r- ;g ffl n 0 ;g C "' ... "' > z C ,, 2085 defend, indemnify and hold harmless the other Parties f1·n111 .:ir all liability for costs, cloims, losses, damaces, fines, "r 1 (includinu reasonable attorneys• fees) incurred in such cont< by such non-complianca; upon the final dctcrminati"n Cinclud; review procecdincs) thereof, \twill, if the decision be adv< to it, comply in accnrdancc thtrcwith. AIITICLE 18 OPERftTlNG COVEMnNTS 18.1 May Opcrntinr. Cr,ven,ml wilh Ocvclnpcr (A) Hay covenants to and agrees with D~veloper that,~, to any intcrl'uptinns due to Cl!.,:1• :nn, repair, rccnnstruct.in1 altcratinn, remadclinc, razinc, or replacement, an• subject I provisions of Subsections (D) a~d (C) of this Section 18.1 ar provi~ians nr Scctinn= 13.5, 13,6, 13.15, 18,7, 25.1 end 25.: and dur int; Lbe pcdl)d commencing on the dote hereof and expir Fc:~r~•ry 9, 1999, it will np•rat• nr cause to be operated nn Tract or porti,rn or portions thereof, during such business h( Ma;· sl,aU de:tcrmine in its s•.llc and ;;il,solutc c'.iscrel.inn, a d, .s.t'e1re,, ~oe,,; u,,;d'e.r ~:oe .Sd.l?fe .t'.r..1d'e du/?/t? u.se&7' /or /Kv/".s d'oA,Y;.t'"7h"d s.t',.,re., ../"*"'.J'/...-P" .J'# .ll'/.-?U ;#,::r .;#-<?~~ ..<'P...<· AW/""'./""'~ ,.a,pfi?/:?4' RR..,·..,,;;,,--;L?.;::,' #'.#.t"L? ~/ J.#u././ #-? ./t:74f".t"/ P..c' ~&"/.&"/./~ /4,c, .J;P/,::r ,:;,b,H?/PP# ..;/,.;,,,..-~ /..?e6L? under &he s,-7//IC &rode no/lie vseo' /'or /1°3,Y's f/./Jsl;.frc, .:;tort> ot utJ67 Wilshire Boulevard, Los Aneelcs, California 90036; but if and when Hay shall no Ioriccr be operating the ~aid 1-lilshirc ::tore, then under the same trade name used for May's Eastland store in West C'lvina, California; but if and when May shall no !oncer be opcratine the said Eastlmid store, then under the s.:une trade name used for May's Du~r1a Pal'it store in Ducr,a ra/'k, Cc11it'ornia; Lut if and when May shall no !oncer be opcratine the said Buena Park store, then under the trade name "1-tny" or such 'lther name as it. is d'lin& business in o majority or its Retail Facilities in reaional shnppins centers in Southern California; prl'.lvidcd, however, nt>thin& contained in this 12/9/77 16. l .,, . u, r- 0 0 s ... defend, indemnify and hnld harmless the other Parties frnm any and all liability for costs, clnims, losses, damaGcs, fines, or penalties (includinG reasonable attorneys' fees) incurred in such contest and by such non-compliance; upon the final determination (including review proceedings) thereof, it will, if the decision be adverse to it, comply in accordance therewith. ARTICLE 18 OPERATING COVENANTS 18.1 May Operating Covenant with Developer (A) May covenants to and agrees with Developer that, subject to any interruptions due to expansion, repair, reconstruction, alteration, remodeling, razing, or replacement, and subject to the provisions of Subsections (B) and (C) of this Section 18.1 and the provisions of.Sections 13.5, 13.6, 13.15, 18.7, 25.1 and 25.2, for and during the period commencing on the date hereof and expiring on February 9, 1999, it will operate or cause tn be operated on the May Tract or portion or portions thereof, during such business hours as May shall determine in its sole and absolute d~iscretion, a department store Retail Facility under the same trade name used for its San Diego store, located at 1702 Camino del Rio, San Diego: California; but if and when May shall no longer be operating the said San Diego . store, then under the same trade name used for May's downtown store, located at Eighth and Broadway, Los Angeles, California; but if and when May shall no longer be operating the said downtown store, then under the same trade name used for May's Wilshire store at 6067 Wilshire Boulevard, Los Angeles, California 90036; but if and when May shall no lonier be operating the said Wilshire store, then under the same trade name used for May's Eastland store in West Covina, California; but if and when May shall no longer be operating the said Eastland store, then under the same trade name used for May's Buena Park store in Buena Park, California; but if and when May shal 1 no longer be operating the said Buena P-ark store, then under the trade name "May" or such other name as it ·1s doing business in a majority of its Retail Facilities in regional shopping cent~rs in Southern California; provided, however, nothing contained in this 12/9/77 -:-95-18 .• 1 2086 any of the said sttlres lncatcd in San Dice,o, Lns Angeles, West Covina, and Buena Park, respectively. The temporary cessation of business to make repairs or alteratillns, or caused by strikes or other circumstances beyond the control or the Person whose business shall be so interru.pted, as provided in Art.icle 20, or a ces;sati<:>n of business for any other reason for a period not exceeding one Cl) month, shall not be deemed a discontiiiuance (If the operation o; a Retail facility by May, Notwith~tandins anythinc to the contrary herein contained, May may convey its interest in the May Tract and May Improvements to any subsidiary corporati,,n of May or to any corporation which may succeed to May• s business ,. 1 the State of California or to any corporatilln which may, as the result of retlrnan- ization, rnereer, conslllidation or sale of stoc~ or assets, succeed to such business. (B) Notwithstandine anything to the contrary contained in Subsection (A) of this Section 18.1, the foregoing covenant to operate of May shall be terminable at the ele~t1lln of May, P-xer- cisable at the time (or st any time there3fter) Developer shall fail to perform any of its covenants set forth in Section 18.lO(A) or 13.3, provided, however, May agrees not to exercise i:.s said right of termination until: (1) it shall have notified Developer or to terminate its said covenant, and thereafter Developer shall not have cured said default within thirty (30) days of the giving of such notice or if such default could not be reasonably cured within said thirty (30) days, then within such period thereafter as reasonably required to cure such default using due diligence, and (2) it shall have notified any Mortgagee of the Developer Tract pursuant to Section 22.3 of the particulars of such default by Developer and of May's intention to terminate its said covenant and such Mortgagee docs not cure such default within the time specified in Sectilln 22,3, Not~ing co~taincd in the foregoing provisions of this Subsection (D) shall in any manner be cnn- st~ucd as diminishing or be deemed to constitute a waiver of any other r1shts of ~::y re:iulf:!na from the ta!lur'! "r 1)1>vclllpr.r tn perform its covenants set forth in Sectl~n 18,lO(A) or 13,3, 1/20/7~ -96-18, l( 0) 2087 (C) May shall have the right tn terminate its covenant. under Subsectinn (A) of this Sectinn 18.1 if the arbitrators in arbitra- tion proceedings pursu .. nt to Article 21 shall d~tcrmine by express findin&s that Dcvclt)pcr is in default in the performance of any of its obligatjons under Section 13.1, 11,3 or ll.5(A); provided that th~ n,:,tir:e pi· suant tl'l Se".'tinn 21. 1 tlrnt a dispute l'lr <•ont.r,,v~rsy exists shall have stated May's intentinn t~ exercise its richts under this Sub sec t.i'>n ( C) ,:,f Section 18. 1 and that a C'"PY of SUC'h notice shall also have been given t'> any Mnrtg.,~ee fl!' the !)cvell)pt::r Tract; provided, further, that May aE,rees th.it it sh.iL n,,. exerci:-e s:e:id right '>f termination until: (1) it shall lwve nritifiC'a Developer of SAid deci:-lon by the r,rbltrntors t.,lHl thcr<>afl.cr Developer shall nl'lt have cu,.cd such default within thirty (30) d.iys •fter th• eiving of such nritice nr, if such default criuld nnt be reasonably cured within thirty (30) doys, then within ~uC'h pcririd thereafter as reasoncbly required tl'l cure suc~default, and (2) it sh.:11 tlC\'C notified any Mort:;or.ce of the Dcvelriper TraC't pursv:rnl. to Section 22. 3 of the dcci:;ion of the art.,itrat.11rs ,ind lhc• p.::,tl<.'U- lars of such default by Devclriper and ,.,f May's intention tn terminate its said covenant and such Mrirteacec d'les nnt cure said default uithin the time S?cci!ic1 in Sccti~r 22.3. !n the event of a take over by Dev eloper's main tenane e, manaaemcn t and 'lpcr at i"n obl!e&t!.ons for any Cnromnn /,rea pursuunt t" any of t.he p1·ovisi'>os of Article 12, the provisil'lns of this Subsectif'ln CC) shall not be applicable in respect of the maintenance, manaeement and opcrati'ln of such Common Area during the period of such take over. CD) May shall have the right to terminate its covenant under Subsccti'ln CA) of this Sec tirin 18, l i r any any t im·e a ftcr any two l-lajl)rs whonc Stores arc on the Phase II Land shall first npcn their Stt>res for business to the gencrol public there arc not at least two Majors (other thnn Moy) who arc signatories hereto who arc opcrntin1.1 o,· CilUSing tt> be operated Rc:tail Facilities on their Tracts and such conditi'ln Cl'lntfnucs r,,r a pcrit>d of twelve (12) inl)nths ofter ti"'ti"r.> nf sar~c is r.ivcn by H11y to JltJvcloper 110<1 nny 12/9177 -97-18,l 'Tl 'Tl -n -> ,- ,a m n 0 ,a C u, ... u, > z C m (i) 0 n 0 C z ... -< ... ~ > ,a r-m -< "'Tl • UI r- 0 0 s ... ,a m n 0 ,a 0 m ;Ila 1---' -.-,~ <C'. r ~ &n?· ~ -IIIC!J \ -• m~ - :, ~ \ ) :, ' " " . llr l f ___ ... ¥ 2088 Mortgagee or the Developer Tract (notice to such M~rteacee to at such address as the Mortgagee shall have designated by noti to Hay pursuant to Section 22.2). The temporary cessati~n or business to make repairs or alterations, or caused by strikes or other circ~mstances b~ycnd the con;rol of the Person wh~se business is so interrupted, or cessation of business tor any other reason for a period not exceeding one (1) month shall nc be deemed· a discontinuance of the operation or a Retail Facili by any Major. (£) Hay shall have the rJ~ht to termlnate its covenant under Subsecti,:,n (A) of this Sect .. •·· 18,l if at any time after any two HaJors"whose Stores are on the Phase II Lar.d shall fir open their Store for business to the general public more than forty percent (40j} of the Plgnned Floor Ar.ea of the Mall Sto:es is not open for business and sucb conoJtJon continues Hortgagee shall have des1snated by notice to Hay pursuant to Section 22.2,., provided that for, the purpose of determining whet:1er such condition has been remedied within said fifteen (15) months, any space in which ~ccupancy commenced during such fifteen (15) months shall not be deemed to he open for bu.siness unless it is occupied pursuant to a Lease having a term or at lea.st thirty (30) months. The temporary ce.saation of business to make repair.s or alterations, or caused by strikes or other circum- stances beyon~ the control or the Person whose business shall be ao interrupted, or a ces.sation or business tor any other reason for a period not exceeding one (1) month, .shall not be deemed a discontinuance or business by any Occupant. 18.2 Penney_Operating Covenant with Developer •..: (A) Penney covenants to.and agt"'ees with Developer that, subject to any interrupti1>ns due to expansion, repair, reconstruc- tion, aJ.terati1>n, remodelinB, razins, or replacement, and subject 1/20178 • -98-18.l<E)-18.2(A) ! ·- l 'j , I '1 ~ ~l Mortuagce of the Developer Tract (notice to such Mortgaeec to be at such address as the Mortcacce shall have designated by notice to May pursuant to Section 22.2). The temporary cessation of business to make repairs or alterations, or caused by strikes o~ other circumst~nces beyGnd the contiol of the Person wh~se business is so interrupted, or cessation of bu~iness for any other reason for a period not exceeding one (1) month shall not be deemed a discontinuance of the operation of a Retail Facility by any Major. (E) May shall have the right to terminate its covenant under Subsection (A) of this Section 18.1 if ~t any time after any two Majors whose Stores are on the Phase II Land shall first open their Store for business to the general public more than forty percent (40%) of the Pl~nncd Floor Area of the Mall Stores is not open for business and such condition continues for a period of fifteen (15) months after notice of the same J., is given by May to Developer and any Mortgagee of the Developer Mortgagee shall have designated by notice to May _pursuant to Section 22.2), provided that for. the purpose of determinine whetl1er such condition has been remedied within said fifteen (15) months, any space in which occupancy commenced during such fifteen (15) months shall not be deemed to be open for business unless it is occupied pursuant to a Lease having a term of at least thirty (30) months. The temporary cessation of business to make repairs or alterations, or caused by strikes or other circum- stances beyonc the control of the Person whose business shall be so interrupted, or a cessation of business for any other reason for a period not exceeding one (1) month, shall not be deemed a discontinuance of business by any Occupant. 18.2 Penney Operating Covenant with Developer (A) Penney covenants to and agrees with Developer that, subject to any interruptions due to expansi0n, repair, rec~nstruc- tion, alteration, remodeling, razing, or replacement, and subject 12/9/77 -98-18.l(E)-18.2(/\) 2089 to the provisions of Subsections (B) and (C) of this Section 18.2 and the provisions of Sections 13.7, 13.8, 13.15, 18.7, 25.1 and 25.2, for and during the period commencing on the date hereof and expiring on April 7, 1980, it will operate or cause to be operated on the Penney Tract or portio~ or port!ons thereof, during svch business hours as Penney shall determine in its sole and absolute discretion, a department store Penney Retail F&cility and will operate or cause to be ope.rated a department store Retail Facility for a ten (10) year period thereafter for the ·.ale of merchandise at retail of the kind and quality sold at the time by .,,e majority of Penney stores in ree; ion a 1 shopping cent.P.r s in Southern California and will cause the Penney Main Store Building to be'operated as a Retail Facility for an additional ten (10) year perioa expiring on April 7, 2000. The temporary cessation of business to make repairs or altera- tions, or caused by strikes or other circumstances beyond the contral of the Person whose business ~hall be so interrupted, as provided in Article 20, or a cessation of business for any other reason for a period not exceeding o~q (1) month, shall not b~ deem~d a discontin- uance of the operation of a Ret~il Facility by Penney. Not~ithstandinG anythjng to the contrary herein contained, Penney may convey its inte; est in the Penney Tract and Penney Improvements to any subsidiary corpora~ion of Penney or to any corporation which may succeed to Penney's business in the State of California or to any corporation which may, as the resuJt of reorganization, merger, consolidc:tion or sale of stock or assets, succeed to such business. CB) The covenant to operate of Penney contained in Subsection (A) of this Section 18,2 shall be terminable at the election of Penney, exercisable at the time (or at any time thereafter) Developer shall fail to perform any of its covenants set forth in Section 18.lO(A) or 13.3 or the covenant regarding the mix of Occupant categories with- in a specified portion of the Mall Stores as set forth in a separate agreement between DeveJoper and Penney, provided, however, Penney agrees not to exercise its said right of terminatJon until: (1) it shall have notlfied Developer or the partloulars of such default by .. 6/2178 ~99-18.2(13) . ., ., -( -, r " " ( C " t C, .. -" Ci C ( C C -~ --... -., • a r ( ( -.. -.. Developer and of Penney's intention to terminal.cits said crivcnant, and thereafter Developer shall not have cured said default within thirty (30) days rif the giving of such notice or if such default could not be reasonably cured within said thirty (30) days, then within such periQd thereafter as reasonably required to "..lure. su.-h default using due diligence, and (2) it shall have notified any Mortgagee of the Developer Tract pursuant to Sectirin 22,3 of the particulars of su.::h default by Developel', and of Penney's inte11Li•rn to terminate its said covenant, and such Mortgagee does not cure said default within the time specified in Section 22.3. Nothinc contained in the foregoing provisi0ns of this Subsection ( !3) shaL in any manner be construed as diminishing or be deemed to constitute a w.: 1 \' er of any other · ights of Penney rest:l tin::; from the fail ur c of Developer to perform j ts covenonts set forth in Section 18 .10(11) or 13,3 or the aforerue~tionld Occupant categories covenant. (C) Penney shall have the right to terminate its covenant under Subsection (A) of this Section 18.2 if the artitr~t0rs in arbitration proceedinl!s pursuant. to Ar t.icle 21 shall dcl.ern.i ne by cxprc~s fi 11,li11g~ that Developer is in default in the pe:rf,:,nnancc of any l)f its oblica- tions under Section 13,1, 11.3 or 11.S(A); provided that. t.he notice pursuant to Section 21.1 that a dispute or Cl)ntroversy exists shall havi;: sLaLi:J thuL i't::iney's inl.enti<>n Lo e:;;er.:.is~ its ri6hLs u11J1:r Lili., Subsection CC) of Section 18.2 and that a copy of such notice shall also have been given to any Mortgagee of the Developer Tract; provided, further, that Penney agrees that it shall not exercise said rieht ,:,f termination until: (1) it shall have notified Developer of said de- cision by the arbitrators and thereafter Devel,,per shall not hove cured such default within thirty (30) days after the giving o( such notice or, if such default could not be reasonably cured within thirty (30) days, then within such period thcr~arter as rcas,,nably ,equircd to cure such default, and (2) it shall have notified any Mortc.iccc of the Dcvclriper Tract pursuant to Sccti'>n 22.3 of the decision of the arbit.rat"rs and the particulars of such default by Developer and of Penney's intention to terminate its said covenant and such Mortcnc~c does nr,t cure said default wit.hill the Lime specified in ::ectirin ...... ') 6-&. • .,I. - 1/20178 -100-lll,2(C) '.,, .,, -n -> ..... ,a m n 0 ,a C CII ._ CII • > z C m G) 0 n 0 C z -t -< ' ... :c > ,a r-m -< "l"I • all r- 0 0 3 ... "' m n ~f C, ffl ,., 2091 In the event of a take over or Developer's maintenance, manaae- B\ent and opcratinn obligations for any Commnn Area pursuant to any of the provisions "r Article 12, the provisions or this SubsecLinn (C) shall not be applicable in respect of the main- tenancc, management and operation of such Common Area durinc the period o.f su<'l1 take nver. (D) Penney shall have the rir;ht to terminate its CQVenant under Subsecti"n (fl) or this Section 18.2 if at any time after any two 1-lajcrs uhose st,Jrcs arc on the Phase II Land !.I. ,11 rirst "PCll their StQres for business to the general public there aru not at least tJJo HaJors (ether Uran PenneyJ Wht'l are signatories hereto who arc operating or causing to be operated Retail facilities on their Tracts and such condition continues for a period of twelve (12) months a ftcr notice of same is 6 i ven by Penn:!y to Dev eloper and any Mortgar;ee <'f the Developer Tract (notice tt) such Mortgagee to be at such address as the Mortgacee shall hdvc designated by l, n1,Lice to Penney pursuani; to Secti.,n 22. 2). The temporary cessa- Lion of business Lo ma~e rep3irs or a!tcratinns, or caused by strikes or other circumstances beyond the control of the Person 11h.,se • bu.:;iness is so intcrru1>tcd, or cessation or business for any oLher reasnn ror a period n,.,t exceedinl,\ (lne (1) month shall not be deemed a discontinuance of the operation of a Retail Facility t,y any Major. (E) Penney shall have Lhe right to terminate its covenant under Subsection (A) of this Section 18,2 if at any time after any two Majors whose Stores are on the Phase 11 Land shall first open their Stores for business to the general public more than forty percent (40j) or the Planned Floor Area of the Mall Stores is not open for business and such condition continues for a period or· J'.lrteen {151 /flOnt.b.:1 aCt..'1.~ IU)..(..~<\.'\.. .... ~ ~~ ~"2'll>~ '>> ;:>~P.z> ~ >;-?;~ ~4' .A-r..,../.q.?d/ .Rd/ .I'd/ .#7/q'..?ffd.? .?/ t'4d krP./qpP/" frPPt' /ddt'/PP t'P sue,1 Hortcncec ti) be at such address as the Hortcacco shall have dcsic- natcd by nt'lticc to Penney pursuant to Section 22.2), provided that ft)r the J>Urpt'lsc of dctcrmin1nc wh<-thcr such Ct)nd1t1r,n has 1/20/78 -101-10,2(1>)-0:) ' '.,, .,, -n -> r- ;:IIIJ ffl n 0 ,0 C en ... en • J> z C -m Ci) 0 n 0 C z. ... -< ... :c i > \ ;:IIIJ r- ffl -< -n • GI r- 0 ~ ~ ._ '10 ffl n 0 ,., a "' In the event of a take over of Developer's maintenance, manage- ment and operation obligations for any Common Area pursuant to any of the provisions of Article 12, the provisions of this Subsection (C) shall not be applicable in respect of the main- tenance, management and operation of such Common Area during the period of sue~ take over. (D) Penney shall have the right to terminate its covenant under Subsection (A) of this Section 18.2 if at any time after any two Majors whose Stores are on the Phase II Land shall first open their Stores for business to the general public there are not at least two Majors (other ·than Penney) who are signatories hereto who are operating or causing to be operated Retail Facilities on their Tracts and such condition continues for a period of twelve (12) months after notice of same is given by Penney to Developer and any Mortgagee cf the Developer Tract (notice to such Mortgagee to be at such address as the Mortgagee shall have designated by b notice to Penney pursuant to Section 22.2). The temporary cessa- tion cf business to make repairs or alterations, or caused by strikes or other circumstances beyond the control of the Person whose business is so interrupted, or cessation of business for any other reason for a oeriod not exceeding one (1) month shall not be deemed a discontinuance of the operation of a Retail Facility by any Major. (E) Penney shall have the right to terminate its covenant under Subsection (A) of this Section 18.2 if at any time after any two Majors whose Stores are on the Phase II Land shall first open their Stores for business to the general public more than forty percent (40%) of the Planned Floor Area of the Mall Stores is not open for business and such condition continues for a period of fifteen (15) months after notice of the same is given by Penney to Developer and any Mortgagee of the Developer T~act (notice to such Mortgagee to be at such address as the Mortgagee shall have desig- natcd by notice to Penney pursuant to Section 22.2), provided that for the purpose of determining whether such condition has 1/20/78 -101-18.2(D)-(E) been remedied within said fifteen ( 15) months, any space in which occupancy commenced during such fifteen (15) months shall not be deemed ttJ be open f1Jr business unless it i~ occupied pursuant to a Lease havinc a term of at least thirty (30) months. The tem~nrary ccssation·or business to make repairs or alterations, or caused by strikes or other circumstances b<>yand the control of the Person whose business shall be so interrupted, or a cessation of business for any other reason for a period not ex- ceeding one (1) month, shall not be deemed a discontint..·n<' of business by any Occupant. 18 .3 S<>ars C,pcratl np, Covenant Yitli Devcl".'t:er (A) Sears covenants to and agrees with Developer that, subject ':..o any interrupti1;>ns due to expansion, repair, recanstructi'>n, alteration I remodel inc, razing or replacement and subject t'l the provisions of Subsections (B), (C), CD) and (E) of this Section 18.3 and the provisitJns_of SeclitJns 13,9, 13.10, 13.15, 18.7, 2~.l ~ and 25.2 for a period of twenty (20) years frnm t~e Sears Store ;)7.,.;,p~_, ,t,,,v.r:n,,?> ..:,,,vc>,, .),,,v..:,.)_pp..:,..,-Z>,!:>,V.T.Y ,..:, .>) ..:,;;;,,;,;, PP)PT.JP.!>.»P .>.» .!>)..:> ..:,»~P and a1?.solutc di.scretir;n, a Retail Facil if.y under the trade nm,1c "Sears Roebuck and Co.", or such other name as it is do..'.ng business in a majority of its Retail Facililies in reeional shoppine centers in Sovtt,c:rn Californi~. The temporary cessati,n of business to make repairs 1Jr alterations, or caused by strikes or other circu~stances beyond control of the Person whose business shall ·be so inlerrupted, as provided in Article 20, or a ce,sation of business for any other reasor, for a pe, iod ri-,t exceed:ng one Cl) month, sholl not be deemed a discontinuance or the operation of a Retail Facility by Scars. Notwithstanding anything to the contrary herein contained, Sears may convey its interest in the Sears Tract an~ Sears Improvements to any subsidiary corp,,ration of Scars or to any corporation which may succeed to Scars' business in the State or Californ-1.a or to any corporation which may, as the result or reorganization, mercer, oons.,lidatJl)n or sale of st,,ck or assot.;, succcod t" sucll business. 12/9177 -102-18,3(JI) ... ::c > ;D r-m -< ..,, • 0, r-0 0 ~ ... '"Tl "Tl -n -> r- ~ m n 0 ~ 0 en ... en )> z C -m (i) 0 been remedied within said fifteen (15) montt1s, any space in which occupancy commenced during such fifteen (15) months shall not be deemed to be open for business unless it is occupied pursuant to a Lease having a term of at least thirty (30) months. The temporary cessation of business to make repairs or alterations, or caused by strikes or other circumstances beyond the control of the Person whose business shall be so interrupted, or a cessation of business for any other reason for a period not ex- ceeding one (1) month, shall not be deemed a discontinuance of business by any Occupant. 18.3 Sears Operating Covenant With Developer (A) Sears covenants to and agrees with Developer that, subject to any interruptions due to expansion, repair, reconstruction, alteration, remodeling, razing or-replacement and subject to the provisions of Subsections (B), (C), (D) and (E) of this Section 18.3 and the provisions of Sections 13.9, 13.10, 13.15, 18.7, 25.1 ~ and 25.2 for a period of twenty (20) years from the Sears Store Opening Date, it will operate or cause to be operated on t~;e Sc~rs Tract, during such business hours as it shall determine in its sole and absolute discretion, a Retail Facility under the trade name ' "Sears Roebuck and Co.'', or such other name as it is doing business in a majority of its Retail Facilities in regional shopping centers in Southern California. The temporary cessati)n of business to make repairs or alterations, or caused by strikes or other circumstances beyond control of the Person whose business shall ·be so interrupted, as provided in Article 20, or a cessation of business for any other reason for a period not exceeding one (1) month, shall not be deemed a discontinuance of the operation of a Retail Facility by Sears. Notwithstanding anything to the contrary herein contained, Sears may convey its interest in the Sears Tract and Sears Improvements to any subsidiary corporation of Sears or to any corporation which may succeed to Sears' business in the State of California or to any corporation which may, as the result of reorganization, merger, consolidation or sale of stock or assets, succeed to such business. 12/9/77 -102-18.3(A) 2093 (D) The covenant tn operate of Scars contained in Subsectinn (A) of this Section 18.3 shall be terminable at the elcctinn nf Sears exercisable at the time (or at any time thereafter) Develnpcr shall fail to perform any of its covenants set forth in Scc.ti'>n 18.lO(A} or 13.3 or .. the covenant regarding the Occupant cateeorie:s within a specified portion of the Mall Stores as set forth in a separate· agreement between t,eveloper .. nd Sears; pr.,vicied, however, default by Developer and of Sears' intentinn t., terminate its sa\b covenants and, thereafter, Developer shall n.,t have cured said default within thirty (30) days of the givinc of such nntice nr if such default could no~ be reas~nably cur3d wit~~n said thirty (30} days, then within such perind thereafter as reaEonably required tn -n -n -n -> ~ ~ ffl n 0 ,a C "' ... n.cd an.~ V\l">\"\.\l,a£,ec ot \.\\ic \\~'I ~"\~•,,el' ·•;.-r a~\. ~\l.\' '<>\l."u'I.\\. \.~ 'b~~\.\.~" '-'-,::. of the p.irticular:: rJf such dcfaullt by Develop;r and nf Sears• not cure such d~fault wilhln the time specified ln Scctlnn 22,3. Nothine c"ntained in lhe forec"inc pr"visions 1'f this Subseeti.,n (0) shall 0 in any manner be construed as diminishing or be deemed tn failure of Developer to perf,,rm its covenants set fl)rth in Sectinn 18.lOCf,j 1'r 13,3 or the aforcmentinned Occupant cat.egrJries c,:,venant. (C) Sears shall have the right to terminate its c1'venant under Subsection (JI) ,,f this Section 18.3 if the arbitrat,,rs in arbitration pr,,cecdings pursuant t" Article 21 shall determine by express findin~s that Deveoper is in default in the perforrnance of any Qf its obligati"ns under Secti"n 13.1, 11.3 or 11.5 (A}; providc:d th.it the notice, pur!luant to Section 21.1 thDt ::i dispute or controversy exists shall have stated Sears' ihtentinn t" exercise its rl&hts under U1is Subsection(~) nf Scctiori 18.3 and that a copy or ~uch notice st\a"l.l. al.no \1avc been r.ivcn to any \.\t)rtr.oe,cc .,r the Dcvclt)\>er 'tract; prr.widcd • further, that Seara ar.rees t\\;.,t i\. 11201'18 -l:03-10,3(0)-(C) (0) The covenant to operate of Sears contained in Subsection (A) of tl1is Section 18.3 shall be terminable at the election of Sears exercisable at the time (or at any time thereafter) Developer shall fail to perform any of its covenants set forth in Section 18.lO(A) or 13.3 or. the covenant regarding the Occupant categories within a specified portion of the Mall Stores as set forth in a separate agreement between Developer and Sears; provided, however, Sears agrees not to exercise its said right of termination until: (1) it shall have notified Developer of the particulars of such default by Developer and of Sears' intention to terminate its said covenants and, thereafter, Developer shall not have cured said default within thirty (30) days of the giving of such notice or if such default could not be reasonably cured with~n said thirty (30) days, then within such period thereafter as reasonably required to cure such default using due diligence, and (2) it shall have noti- fied any Mortgagee of the Developer Tract pursuant to Section 22.3 of the particulars of such defaullt by DevelopJr and of Sears' intention to terminate its said covenant and such Mortgagee does not cure such default within the time specified in Section 22.3. Nothing contained in the foregoing provisions of this Subsection (B) shall in any manner be construed as diminishing or be deemed to constitute a waiver of any other rights of Sears resulting from the failure of Developer to perform its covenants set forth in Section 18.lO(A) or 13.3 or the aforementioned Occupatit categories covenant. (C) Sears shall have the right to terminate its covenant under Subsection (A) of this Section 18.3 if the arbitrat0rs in arbitration proceedings pursuant to Article 21 shall determine by express findings that Deveoper is in default in the performance of any of its obligations under Section 13.1, 11.3 or 11.5 (A); provided that the notice pursuant to Section 21.1 that a dispute or controversy exists shall have stated Sears' intention to exercise its rights under this Subsection (C) of Section 18.3 and that a copy of such notice s~all also have been given to any Morteaeee of the Developer Tract; provided, further, that Sears agrees that it 1/20/78 -103-18.3(0)-(C) 209~ shall not exercise said ri~ht of termination until: (1) it shall have notified Developer of said decision by the arbitrators and thereafter Developer shall not have cured such default within thirty (30) days after the giving of such notice or, if such default could not be reasonably cured within thirty (30) days, then within surh pPrind tkpreafter as reasnnahJy required tn cure such default, and (2) H shall have notfied .iny Mortga3ee of the Developer Tra<'t pursuant to Section 22,3 of the decision of the arbitr.itnrs and the particular:; of such d~faul t by Developer and of Scars' int~r,;-il)P to terminate its said covenant and such Mortgaece docs nnt cure said default within the time specified in Section 22,3, In the event of a take over of Developer's maintenance, management and opera•ion oblieations for any Common Area pursuant t~ any of ~ ~""~,n;,,,,;..r t?/ .,#'//~../, ../--::; /...?.e"' _,o-e?,/...r./;,,,-""'...r :!?/ U./J ~p,.r,«~/../?; /'C/ s,q,9// .#O.t' Pe .6"/,.::>.//e,9p/e ./.# .re.s_pee.t' <?/ .t'.?e ~7./d.t'edn"dl'."'~ .4"',.?d.&"b"'e- mcnt and operation of :;vch Common Area dvr in{J t/Je per i">d ,:,J" such 6 take ov<ir, (JJJ S1::ars sl,all nave tr,t-rieil1. t1J termin.:.Lc il..s c,.,.·e11.-1,i.. uuui.:, Subsection IA) of this Section 18,3 if at any time after the Scar~ n Store Oper,fog Date there are not at lec1st tw() othor 1-lajnrs wl;n arc signatories hereto wh-:> are operating or causing to be operated Retail Facilities on their Tracts and such condition c1Jntinucs fnr a period ot twelve (12) months after notice of same is given by Scars to l'leveloper and any M">rtcagee l)f the Develnpcr Tract (notice t.o such Mortgagee t.o be at such address as the Mnrtgar,ee shnll have designated by notice to Sears pursuant t-:> Secti,,n 22,2,), The temporar f ccssati'>n •:>f busi.ness to make repairs or alteratinns, ,,r caused by strikes or other circumstances beyond the control of the Person wh,,se business is so interrupted, as provided in Article 20, or cessati1Jn "f business f,,r any other reason for a period n1Jt exceeding 1Jne (1) month shall not be deemed a discontinuance of the operaLi1Jn of a Retail Facility by any Major, (£) Sears shall have the right t,, terminate its covenant under SubsecLfqn (A) "r this Seel.inn 18,3 if at any time nfter the Scars Stoa e Opening Datci has occurred more than f1Jrty perc<:?nL C•IOJ) of Lhe l?./9177 -1011-18 , 3 (I) )-( 10 0 C z ... -< ... :J: ' > / "' ,.. m I -< ~ • DI ,.. 0 0 := ... .,, .,, -n -> ,.. "' m n 0 "' C "' ... shall not exercise said right of termination until: (1) it shall have notified Developer of said decision by the arbitrators and thereafter Developer shall not have cured such default within thirty (30) days after the giving of such notice or, if such default could not be reasonably cured within thirty (30) days, then within such period thereafter as reasonably required tn cure such def~ult, and (2) it shall have notfied any Mortgagee of the Developer Tract pursuant to Section 22.3 of the decision of the arbitrator~ and the particulars of such default by Developer and of Sears' intention to terminate its said covenant and such Mortgagee does not cure said default within the time specified in Section 22.3. In the event of a take over of Developer's maintenance, management and operation obligations for any Common Area pursuant to any of the provisions of Article 12, the provisions of this Subsection (C) shall not be applicable in respect of the maintenance, manage- ment and operation of such Common Area during the period of such ~ take over. (D) Sears shall have the right to terminate its covenant under Subsection (A) of this Section 18.3 if at any time after the Sears Store Opening Date there are not at least two other Majors who are signatories hereto who are operating or causing to be operated Retail Facilities on their Tracts and such condition continues for a period of twelve (12) months after notice oi' same is given by Sears to reveloper and any Mortgagee of the Developer Tract (notice to such Mortgagee to be at such address as the Mortgagee shall have designated by notice to Sears pursuant to Section 22.2.). The temporary cessation of business to make repairs or alterations, or caused by strikes or other circumstances beyond the control of the Person whose business is so interrupted, as provided in Article 20, or cessation of business for any other reason for a period not exceeding one (1) month shall not be deemed a discontinuance of the operation of a Retail Facility by any Major. (E) Sears shall have the right to terminate its covenant under Subsection (A) of this Section 18.3 if at any time after the Sc~rs Store Opening Date has occurred mnre than forty percent (40%) nf the 12/9/77 -104-18.3(D)-(E) - 2095 Planned noor Arca of the Mall Stnres is not open fl)r business and such condition continues for a period of fifteen (15) months after notice of the sawe is ~iven by Sears t-:> Dcvel..,rer and any Mortuaeee or the Developer Tract (notice to such Mortcagce to be at such address as the Mortgagee ~hall have designated by notice to Scars pursuant to Section 22.2), provided that for the. purpose of determin- ing whether such condition has been rcmed ied within said fi ftcen {15} months, any space in which occupancy commenced during such fifteen (15) months shall not be deemed to be 0~8 r ~or business unless it is occupied pursuant to a Lease having a term of at least thirty (30) months. The temporary cessatinn of ,,usiness tn m.tke repairs or alteration~ or caused by strikes or other circumstances beyon" J;ne conl:ro:Z or toe l'erson vn,:,stJ "lluslness sna:Z2 be s~ Jntcr- ruptcd, as provided in Article 20, or a ces:;,1tJ,;,n or business fnr ar,y other reason /'or a period not exceeding one (1) month, shall not be deemed a discontinuance of business by any Occupant. p l{J.JI Federated Or,e_ atin,1 Covenant :,'i th Develnper subject to nny i~terruptjons due to expansion, rep~ir, reconstruc- tion, alteration, remodeling, razine or replacement, and subject to the provisions of Subse~ti-,ns CB), (C), CD), CE), en and (G) of thi3 Section 18.4 and the provisions of Sections 13,11, 13.12, 13.15, 18.7, 25.1 and 25.2, it will operate or cause to be operated on the Federated Tract, during such business hours as it shall determine in its sole and absolute discretion, a Retail Facility under the trade name "Bullock's" -:>r under such other name as the &ullock's division of Federated is doing business in a majority or its llet.ail facilities in regional shopping centers in Southern California, fl)r a peri'ld commeneinc "" the federated Store Opening Date and endina on the earliest; to o·ccur ,:,r the rollowina: Ca) fifteen (15) years from the Federated St,,re Opening Date; (b) February 9, 1999; or 12/9/77 -105-18, II (A) - n 0 C: z .... -< ... ::c J> ,a r-m -< ,, • 0, r- 0 0 ~ ... 2096 (c) Twenty (20) years from the Sears Stnre Openin& Date. The te1'.lpnra1·y cessation of business t,, make repairs or alt.eratinns, or caused by strikes or <'ther cil'cum!:t.ir:ces beyl)nd the control l)f the Person whose business shall be s" interrupted, as provided in Article 20, or a cessati"n o!' businness .for any other rcas,..n fnr a period not excecdinc "ne Cl) mnnth; s~~ll nnt be d~cmcd a dis~nntin- uance of the Qpcratil)n of a Retail Facility by fedcraled. Uotwith- standing anything to the contrary herein con•a'ncd, Feder&tcd may convey its interest. in the Federated Tract and F<s .... , ... t.ed Imp,nvc- rnents to any subsidiary corporation ,:,f Federated or t" auy cnrpr)r- tion which may succeed to the business of the Bulln~k's divisinn of Federated in S()uthcrn California or to any corpnrati0n which ~ay, as the result of re,:,rganization, mercer, consalidatlnn or sale of stock or ass~ts, succcc~ to such business. (D) The covenant to operate of Federated contained in Subsec- tion (A) of this Section 18.4 shall be terminable at the election " of Federated exer~isable at the time (or at any tifuc there3fLer) Section 18.lO(A) or 13.3 or Lhe covenant rcsardinc Occupant cat~- eorics 1-,it.hin u :;pecifle:d portion of the 1-iall Stores as set f-,rth in a s~parale a&rcerr,ent between Developer aud Federated, pr0vided, however, Federated agrees not to exercise its said right of termi- ~...v-~~~1 ~-~ ~~~~ .....;r,,~~---A,tf,~...,,,,._,./' AV/~ -Ar~~.,Air"~~~ ~ ,,ar,,r~~~~/f'Y~~~~~~ such notice or if such dcf~ult could not be reasonably cured wJthin said thirty (30) days, then within such period thereuftcr ac reason- ably required to cure such default usinc due dili&cncc, and {2) it shall have notified any Mortgagee of the Developer Tract pursuant to Socti.,n 22.3 of the particulars of such default by Dcvelnpcr and ot Fcdcratcd•s intcnti"n ti) terminate its said c0vcnant and such ll?.0/70 -106-Ul.11(11) "Tl • all ,... 0 0 ~ ... (c) Twenty (20) years from the Scars Stnre Opening Date. The temporary cessation of business to make repairs or alterations, or caused by strikes or other circumstances beyond the control of the Person whose business shall be so interrupted, as provided in Article 20, or a cessation of businness for any other reason for a period not exceeding one (1) rn0nth, s~3ll not be-deemed a discnntin- uance of the operation of a Retail Facility by Federated. Notwith- standing anything to the contrary herein contained, Federated may convey its interest in the Federated Tract and Federated Improve- ments to any subsidiary corporation of Federated or to any corpor- tion which may succeed to the business of the Bullock's division of Federated in Southern California or to any corporation which may, as the result of reorganization, merger, consolidation or sale of stock or assets, succeed to such business. (B) The covenant to operate of Federated contained in Subsec- tion (A) of this Section 18.4 shall be terminable at the election b of Federated exercisable at the time (or at any time thereafter) Developer shall fail to perform any of its covenunLs seL. for·L.r: :i11 Section 18.lO(A) or 13.3 or the covenant regarding -Occupant cate- gorie~ within a specified portion of the Mall Stores as set forth in a separate agreement between Developer and Federated, provided, however, Federated agrees not to exercise its said right of termi- nation until: (1) it shall have notified Developer of the parti- culars of such default by Develope~ and of Federated's intention to terminate its said covenants and, thereafter, Developer shall not have cu~ed said default within thirty (30) days of the giving of such notice or if such default could not be reasonably cured within said thirty (30) days, then within such period thereafter as reason- ably required to cure such default using due diligence, and (2) it shall have notified any Mortgagee of the D~veloper Tract pursuant to Section 22.3 of the particulars of such default by Developer and of Federated's intention to terminate its said cov~nant and such 1/20/78 -106-lB.ll(B) 2097 Mortgagee does not cure such default within the time specified in Section 22,3, Nothing contained in the foregoing provisions of this Subsection (B) shall in any manner he cons!'.r•ied as diminishing or be deemed to constitute a waiver of any other rights of Federated resdting from thP. failure of Developer to perform 1to; covenants set forth in Section 18.lO(A) or 13.3 or the aforementioned Occupant categories covenant. (C) federated shall have the right to terminate its covenant under Subsection (A) of this Section 18.4 if the ar~tt ,tors in arbitration proceedings pursuant to Article 21 shall determine by express findiras that DevP.loper is in d")fauJ t. fr the ~erformar,r.P of any of its obligations under Section 13,1, 11,3 or ll,5(A); provided that the notice pursuant to Section 21,1 that a dispute or controversy exists shall have stated Federatcd's intention to exercise its rights under this Subsection (C) of Section 18,q and that a copy of sue~ noti~e sha}l also have been given to any Hortgagec of the Developer Tract; provided, further, that Federated agrees that it shall not ex@roise said right of LermiuatJon until: (!) it shall have notified Developer of said deoision by the arbitrators and thereafter Developer shall not have cured such default within thirty (30) days after the giving of sue~ notice or, if such default could not be reasonably cured within thirty (30) days, then within such period thP.reafter as reasonably required to cure such default, and (2) it shall have not! fi ed any Mortgagee of the Veveloper Trant pursuant to Section 22. 3 of the decision of the arbitrators and the particulars of such default by Developer and of Federated's intention to terminate its said covenant and such Mortea8ee does not cure said default within the time specified 1n Section 22,3, In the event of a take over of Developer's main- tenance, manacement, and operation obligations for any Common Areo pursuant to any o/' the propfl1/01J..r o/' Article .I.?, the pro- vlslons of this Svbsection (C) shall not be applicable in respect of the maintenance, management and operation of such Common Area durlne the period of such take over. 213178 -107-18,1'(C) . ., ., -r -) ... " " r. 0 ,a CJ en ... en J> z Cl -m G) 0 n 0 C z .... -< ... :C I J> . ;-, I ,-I ffll -< ~ • 2098 CD) Federated shall have the risht to terminate its covenant under Subsection CA) of this Section 18.4 if at any time after the Federated Store Opening Date has occurred, May s~all cease to oper- ate or cause to be operated a Retail Facility on the May Tract and on or before sixty (60) days after such cessation or ~nor before thirty (30) days after Federated has given notice of such cessation a!'!d its i::tci:tior. to exercise its rights under this Subsection to Developer and any Morteasee of the Developer Tract (noLice to such Mortgagee to be at such address as the Morteasee shall have desic- nated by notice to Federated pursuant to Section 22.2), ,•hir"ie:ver is later, Kay aoes not either: Ci) resume operati~n or cause ,n~ same to be resumed, or give Federated notice within said period that it intends to do yo on or before twelve (12) months after such ces:ation; er (ii) having given Federated such notice, May does not resume such operation, or dnes not cause the same t~ be resuced, on or before twelve (12) months after such cessation. llot~1ing herein contained !3hall be dee,~cci to oblig.;te May to give any notice under this Section 18.lJ(D). l!otwithstanding the fore- goinL, federated shall not have the right to terminate its covenant under Subsection (A) of this Section 18.4, if, on er before sixty (60) days after such cessation or or. or before thirty (30) days after the aforementioned no~ice regarding such ces:;ation from federated to Developer and any l·!ortgagee of the Developer Tract, whichever is later, Developer and/or such Mort- gagec shall have Ci) commenced legal proceedings to enforce May's covenant under Section 18.l(A), (ii) given federated notice of such commencement and (iii) furnished Federated with a copy of the com~laint filed therein, unless, (iv) having commenced sue~ proccedinBs, the Person commencing the same thereafter fails to prns~cute the some with du~ diligenc~, or (v) noLwithstanding the commencement and prosecution of such proceedines, May doe:; not resume such operation or fails to cause the same to be resumed, on or before twelve ( 12) month:i after such cessation. The temporary cessation or business to make repairs or alter- ntions, or couscd by atrik~s or uthcr circumstances beyond the 213178 -108-18.11(1)~ -n -n -n -J> ~ ~ m n 0 "' 0 "' "' J> z 0 -m G') 0 n 0 C z -t -< I ... :c J> ,a ~ m -< .., • ,a m n 0 ,a CJ ffl ;1111:1 2099 control of the Person 11h"se business is so interrupted, as prnvidcd in Article 20, or cessation of business for any other reason fl)r a period not exceedin& one (1) monLh shall nl)t be deemed a discnntin- uancc of operation of a Retail Facility by ~ay. (E) Federated shall have the right to terminate its coven.int under Subsection (.r.) of this Secti~n iu:11 if at any time after both the federatea Store Opening !Jate and the Sears Stl)re Opuning D<.1te have occurred, Scars shall cease to operate or cause to be nperated a Retail 1-acility nn the Sears Tract and on or before sixty (60) days after such cessation or on or before thirty (301 ~ s after Federated has Given nntice of such cessation and its intenLinn to exercise its rich.ts under this Subsection Lo Developer and any Mo,·tgagc,.:: <-•f the Dc:veh•per ~:·act (notice to such l·iortgngee t;,, be at ~uch ncic!rcss as the M'>rtgac;ce shall have designated by not.ice to F~dcrat~ci pursuant. to Section 22.2), whichever is later, Sears does nnt either: Ci) resume operation or cause the same to be re- sumed, nr &ive Federate~ n"tice within said pc~iod_that it intends t'> d"' s..-. 0n nr bcf0rc twtive (12) l!l"nths after such cessati"lli or (i1) havine given Federated such notice Soars docs not resume such operntinn, or docs nr,L cause the same t0 be resumed, on or before t~1elve (12) months after such C'1SSation. Nothing herein shall be deemed t., ·,~ligate Sears to give any nDtice under this Sect.ion HL 11 CE). Nottii thstanding the forea.,ina, Federated shall noL have the right to terminate its covenant under Subsection (A) of this Sectil)n 18.q if, on or befl)re sixty (60) days ufter such ces:;atinn or on or beft>re thirty (30) days after the afore- mentioned notice recard inc sue h cessa ti'>n from Federated to De- veloper and any W:>rtcaccc of the Developer Tract, whichever is later, J>cvelt>per and/or such Morteaccc shall have Ci) commenced lc&al prr,cccdincs t'> enforce Zcar:;• covenant under Section 18.3(A), (ii) civctt Federated notice of such commencement and (iii) furni•hed Federated with a cr,py of the comr,laint fi'<Jd therein, unless, (iv) having cmnmcnccd :iuch proccedincs, the Person coinmencinc the sarne thereafter fails t., prosecute the same with due diliccncc, t>r (v) 12/9177 -109-10, ,, (I:;) t. ·-n -n -n -l> r- ,a m n 0 ,a C "' ... "' J> z C -m (i) 0 n 0 C: z .... -< ... :c J> _:ID r-m -< ..,, • ,a m n 0 ,a C "' ,a t . 2100 .. , notwithstandinc the commencement and prnscc-ution ,:,f such proceed- ings, Sears fails to resume such ()pcration or fails to cause the same to be resumed, on or before twelve ( 12) months after such cessation. The t.emporary cessatinn of business to make repairs or alter- ations, 01· caused L'y strikes or otlie,. circu1,1sta11ces lH:yonu the control of the Person whose busincs~ is so interrupted, as provided in Article 20, or cessation of bus°incss for any ,,thcr reaso11 f,:,r a peri,,d not excecdi11& one {l) month shall not be deemed a d!scontln- uance cof operatinn of a Retail facility by ·,ears. (f) Federated shall have the right t'> te,· · : .. ate its c"ven.mt under 3ubsecifou (1i) of Chis Section 18.4 if at :.iny time aft.,;· .,Ii,;; Federated Store Opening Date and the Sears ZtN·e Opening Date have both occurred more than twenty-five percent (25:J of the Planned Floor /1;·ea of t.t,e Hall St,,rcs it not cpen fr,r businc:.s and such condition c..,ntinues for a period or fifteen 05) m1Jnths after notice of the same i~ e.ivcn by Federated to Dcvel'>pcr and any N<:>rt- b zaeef:(s) of the Devcl,,per 1'ract (notice to such Horteac;ec t,, be at Federated pursu~~t t1J Section 22.2), provided that for thf purp,,se of determin.ing t1het.he1· such c,,nditil)tJ has been remedied within said fifteen ( 15) months, any space in which occupancy commcr,ced durin& such fifteen (15) months shall not be deemed to be open for busir.ess unless it is occupied pursuant to a Lease having a term or at least thirty (30) months. The temp"rary ccssati.,n of business t() make repairs or 1lterations, or caused by strikes or other circumstances beyond the control of the Pers,,n whose business shall be SQ interrupt- t:.:, as provided in Article 20, or a cessation or business for any ,,tiler reason for & period not exceeding one (1) month, shall not be deemed a discontinuance of business by any Occupant. (G) Federated shall have the rieht to terminate its covenant und~r Subsection (A) of this Section 18.q if Federated has opcn~d its Store for business t" the ecncral public a~d ten (10) m~nths .iftcr the Planned Phase II Opcming Date Scars has not yet opened its St,,re for business tt> the eencral public, and such cr,nditinn ct>ntinucs thereafter r~r sixty (60) days artor Federated elves Developer and l/20/'/8 -110-18 • It ( F' )-( G ) 2101 any Mortuagee of the Developer Tract notice of such condition and its intention to exercise its rights under this Subsection CG) (notice to such Mortgagee shall be at such address as the Mortgagee shall have designated by notice to Federated pursuant to Section 22.2). The aforementionej ten (10) month and sixty (60) day periods shall be subject to any delays in opening the Sears Store for bu~iness to the general public by reason of any ccusc or event stated in Article 20. /JI,) J,Jo.tnln,f' eonJ:aJnco J;ereln J.s lnttHJded to 1/J;J/le Feoen1ted tJ /#./// /.P/'~ """'""'A"-""~ll...-7 ,:;-/ /#It' ~..,,.,.,..A"..,...?/.r ~--At",,.. ""'""'A"U/R'...,.../ ./...? ..¥"~bi:'...? 18. 1 or the covenants of Sears contained in Section 18.J. 18.5 Cartar Operating Cnvenant l·litll Developer (A) Carter covenants to and agrees with Developer that subject to any interruptions due to expansion, repajr, re~cnstruction, alterations, remodeling, razinn or replacement and subje~t to the provisions of Subsections (!3), (C), (D) and (E) of this Section 18.5 and the provisicns of Sections 13.13, 13.l~, 13.15, 18.7, 25.l and 25.2 for a period of twenty (20) years from thP. Carter St".lre Openine uate, it u111 operate or cause to be opcrat~d on the Carter Tract, durin6 such business hours as it shall determine in its sole and absolute discretion, a Retail facility under the trade name "The Broadway" or under such other trade name as the Broadway divisic,n cf Carter is doing business in a majority of its Retail Facilities in resion~l sha~ping centers in Southern California. The temporary cess8Lio~ of business to make repairs or alterations, or caused by strikes or other circumstances beyond the control of the Person whose business shall be so interrupted, as provided in Article 20, vr a cessation of business for any reason for a period of one (1) month, shall not be deemed a discontinuance of the0 operation of a Retail Facility by Carter. Notwithstanding anything to th~ ~nntrary herein contnined, Carter may convey its interest in the Carter Tract and Carter Jmprovemcnts to any subsidiary corporation of Carter or to any corporation which may succeed to the business of the Broadw~y division of Carter in Southern California or to any corporation -'\.'\.'\.- 2102 which may, as the result c,f reflrganizatiiln, merger, Cil!IS'llidatit111 ilr sale of stock or assets, succeed to such business. CB) The covenant t() operate of Carter contained in Subsecti0n (A) of this Section 18,5 shall be terminable at the clecLinn of Carter exercisable .at the time (or at any time thereafter) Devel- oper shall fail to perform any of its covenants set forth in Secti•,n 18.lO(A) .,r 13,3 or the covenant reg,ll'ding Occupant catec.<>ries within a specified portion of tho Mall Str::rcs as set forth in o separate agreement between Developer and Carter; provided, h()wever, Carter agrees not to exercise its said rieht .,r terminatinn until: (l) it shall have notified Develoµer of the particulars C\f such default by Developer and of Carter's intention to terminate its said covenants andi thereafter, Developer shall n()t .. ave cured snid default 11ithin thirty (30) days of the giving of such nl)lice or if such defi'lll t enuld not be reasnnably cur eel within said trd rt.y (30) days, then 11ithln such period thereafter as rcasnnably required tn cure such default using due dili~enc:e, and (2):-it shall hnv,• 1,nt..i- ficd an~' !l".>r tcacec "f the !Jevclnpcr Tr ae t pl!r su~wt t" S1:c t i"rt 22. 3 of the p~rticulars r,f such default by Dovclopcr and of Carter's intentil)n to terminate its said covenant and such Ml)rRacce diles not cure such default within the time specified in Section 22.3. Nothing contained i;1 the forecoing provi:;ions of this Subsecti'>n (c~ shall in any manner be construed as diminishing or be deemed tn constitute a waivar of any other rights of Carter resultinG from the failure of Developer to perform its covenants set fr,rth in Sectinn 18.lO(A) ,.,r 13.3 or the aforementioned Occupant categories Cl)Venant. {C) Carter shall have the right to terminate its covenant under Subsecti.,n (A) "f this Section 18.5 if the arbitratnrs in arbitration proccedincs pursuant to Article 21 shall determine by express fl11di11cs that D1:vulr..pc1· is ir, d<:fuul t in the pc;·formi:incc of any of its ablicatians under Sccti.,~s 13,l~ 11.3 or ll.5(A); provided that the notice pursuant to Section 21.1 that a tisputc or controversy exists shall have stated Carter's intention t" exercise its rights under this Subscctiiln (C) of Section 18.5 and that a copy ni such IJQLicc shall also ~ave been ~ivcn ta any l/20/78 -112-18.!i(C) ''Tl 'Tl -n -> ,- "' m n 0 ::a C "' ... "' . > z ·C -m (i) 0 n 0 C z .... -< ... ::c > "' ,.. m -< 'Tl • u, ,- 0 0 ~ ... 2103 M~rtg.itee ,.,f the l)eveloper Tract; pr,.,vidcd, further, that Curter agrees that it shall not exercise said richt of terminatinn until: Cl) it shall have notified Developer of said decisinn ~y the arbitrators and thcre:..ifter Develc,pcr shall n"t have cured such default within thirty {30) dayo after the civiuc of such notice, or, if such default could not be reasonably cured within thirty (30) days, then within such period thcre~ftcr as reas,.,nnbly required tn cure such default, and (2) it shall have notified any Hortgacee of the Developer Tract pursuant to Section 22.3 of t.he decision c-f the arbitrat,:,rs and the particulars ,.,_,. S? h dcf.iult by Developer and of Carter's intention to terminate its said covenattt and such Mnrtgag<:?e does not cure said default within the time speci- fied in Section 22.3. In the event of a toke over of Developer's maintenance, manacernent, and operati"n obligations f0r an)' Common Arca prrsuant to any or the pr,:;visions of Article .Lt!, the provisil')n:; o~ this Subsection (C) shall not be applicable in respect of the maintenance, manaccment and o~eration of such Cnmmon Area durinc " Lhc period of such take over. under Subsection CA} of this Section 18.5 if at anr time after the Carter Stl')re O;,enine Date, the Sears Store Opening Date, and the Feder.i·~ed St,,rc Opening Date have all occurred any tw-:> Majors shall cease to operate or cause to be operated Retail Facilities on their Tracts and such c,,ndition continues for a perjod of twelve 02) months after notice of same is given by Carter to Developer and any Kortga8eC of Developer's Tr act ( riot ice t" such Mortgagee to be at such address as the f.l'lrtcae,ec :.hall have designated by notice to Cartc:r pur ... u;1nt 1,1) Section 22. 2). The teP1porary cessati1>n of business to make rcp~irs or altcrati,,ns, or caused by strikes or other circumstances bcy,,nd the control of the Person whose business is so interrupted, as provided in Article 20, or cessation of business for any other reason for a period not exceeding one (1) month shall ~ot be deemed a discontinuance of the ?peration of a lletail Faeilit.y by any Major. (E) Carter shall have the rJ3ht to terminate its covenant under Subsection (A) of thi~ Section 18.5 if at any time after the 1/20/78 -113-18.5(1))-(1.;) -n -n -n -> .... ,-:, -ffl n 0 ,ti C "' ... "' J> z C -m Ci) 0 n 0 C z _, -< ... :c J> ;I:, r-m -< ,, • 210~ Carter Store Openins Date has occurred more titan forty (IIOS) percent of the Planned floor Area of the Hall Stores is riot oper1 for business and such condition continues for a pe~iod of fifteen (15) months after notice of the same is given by Carter to Daveloper and any Mortgagee of the Developer Tract (notice to such NorLgagee to be at such address as the Horlg~ge~ shall have designated by r,ot1ce to Carter pu:-suant to Secticn 22.2), provided that for the purpose of determining whether such condition has been remedied within said fifteen (15) months, any space in which occupan~~ commenced during such fifteen (15) months shall not be deemed to be open for business 1mless it is occupied pursuont to a Leas~ having a term of at le~st thirty (10) months. The temporary cessation of business to make repairs or alterations, or caused by strikes or other circuostances beyond the control of the Person whose business shall be so interrupted, as provided in Article 20, or a cessation of business for any otho;r reason for a pP.riod not. <:xc:eedinc one Cl) month, sh.:11 ::::,t be deemed a discontinuance of business by any Occupant. 18.6 Assignability of Operating Covenants of the Majors ·oeveJoper shall not assign the covenant of any Major under St.:1tlo.'J 18.1, 18.2, 18.3, 18. I/ and 18.5 to any Person other tha11 a .";uccessor as /Jevelopor or a /1ortgagee of t/Je Developer Tract, Any purported assignment of or contract to assign said covenant, or the right to enforcP. thP. same or to demand tliat Developer enforce the same or or any other right thereundPr, to any Person other than a successor as DaveJoper or a Mortgagee shall bP. void and ur1enforce- able. The 1-fajors acKnow1edee that none of the provisions of this Agremnent Cincludfog the provisions or Sections 18.l, 18.2, 18.3, 18.~ Dhd 18.5) violate the DPvPJnper•s ob11gat1ons und~r this Section ~nd, accordingly, none of the provistons of this l\greemant are affected by the preced~nc sentence, 18,7 Hanner of Operation of Majors• Storns (A) Each Major shall have the rieht, but not tha obliaatfon, to oparata any department or dPpartmP.nt~ or tLe Retail Facility of - S/17178 -114-]8.6-18. 7(11) - ·-n -n -n -l> ~ ,0 m n 0 ,0 C "' .. "' l> z C -m Ci) 0 n 0 C: z _,' -< . ~ , :r :' >' '° I 5j .,, . DI' ~ 0 0 ~ .. "' m n 0 ,0 c:, m "' 2105 such Major referred to in Sections 18,1, 18,2, 18,3, 18,q or 18,5, as the case may be, in wh,:ilc or in part by licensees, lessees or concessinnaires. ( B) The nu1,1uer and types of departments t,o be operated in each Major's St.,re, the particular contents, wares and merchandise to be offered for s~le and the servjces to be rendere~, the methods of merchandising in such Store and the extent of storage thercfor,and the manner of operating such Store shall be within the sole and absolute discretion of each respective Mojor. (C) If any Major shall terminate its operatinc covenant,as permitted pursuant to the provislons of this Article 18, it shall not IJe required thereafter to continue or reinstate operation of its Store, notwithstanaing the subsequent curing of the default or removal of the condition whi~h allowed such termination, 18.8 Subordlnqtjnn of Operatinc Cnvenants nf Majnrs The covenants of each Major contained in Section 18.1, 18.2, b l8.3, 18.q or 18.~, as the case may be, shall be automatically -;ul:o:·dinu~!.'d tr: the: lic:1 -:if .inv MnrtRc1r.c.·, t,, the (;lld that a pur- chaser or purchasers (other than the defaultinc Major) in any foreclosure procecdins or pursuant to any exercise of power of sale, or any grantee under a deed in lieu of foreclosure and all successors to or through any such purchaser nr purchasers or to or throueh an:, such grantee shall take free and clear of the covenant of such Major contained in Section 18.1, 18.2, 18.3, 18,q or 18.5, as the case may be. Developer covenants and agrees to execute and deliver to such Major upon request therefor such Jn:.tru111t'nts, in r~cordable f'>rm, as shol 1 at any time and from time to time be required (the form of which shall be in the St>le and ubsolutc jud~mcnt of counsel for such Major) in order to confir111 or effect any such subordinotion as referred to in the prccedin& sentence. 18.9 Use nf Haj'>r 1s Tracts After Op~ratinR Cnvcnants End Except as set f1Jrt1, in Section 3, 9, nothing contained in thio 12/91'(7 -115-10,T(n)-(C)-ltt.9 2106 Agreement shall be construed or deemed in any wc1y to proscribe or limit any use of any Major's Tract, or any part thereof, or any Major• s Improvements, or any portion or portions thereof, after such Major shall cease to be obligated to operate or cau~e to be operated a Retail Facility on its Tract in accordance with the i>rovision5 of Sectiou 18.1, 18.2, Hl.3, 18.4 or 18.5, as the case may be, 18.10 Developer Operating Covenant (A) Developer covenants and agrees that, subject to •he provi- sions of Subsection CB) of this Section 18.10 and the prov.cions of Sections 13.3, 1}.15, 25.1 and 25.2 and subject to any inter ruptions due to expansion, alterations, remodeling, repair or reconstruction (as permitted or authorized herein}, it will continu- ously manaae and operate the Developer Improvem1rnts as fol1ows: (1) as a complex of retail stores and commercial enterprises, which is a part or·a first-class regional shoppins center de·,eloprnent with a two-] evel, enclosed mall and othP.r related Common Area facilities; (2) under the name of Plaza Camino Real and under no other name without the prior approval of each Major (which approval may be granted or ~ithheld in the sole ~nd absolute judgment of each Major}; (3) so as to have Floor Arca in the Mall Stores of not less than miui1,;urn floor Al"ea required by Subsection ( A) of Section 3.6 located as required by Subsection (B) of Section J.8 and so as to have and operate at least those portions of the Hal) described in Section 13.2(8); (ij) to use its best efforts, within the l~mits of reasonable ecoonmjc feasJbJlity to h~ve thP ~loor ArPa of the Mall Store• occupied iri its ,wtirety; (5) so as not to substantiDlly chan6e, modify or alter the exterior or the Mall Stores Buildir1gs without the prior written approvul or P.Dch Major (which may be grDnted or withlrnld in the sole and ab~olutn di~cretion or each Major); 5/25178 -lJ6-]8, lO(A) . "Tl "Tl -n -> r- ,i, m n 0 ,a C "' ... "' > z C -m (i) 0 .n 0 C z -4 -< ... :c > ,a r-m -< "II • u, r- 0 0 ~ ... "' m n 0 ,i, Cl m ~ 2107 (6) so as t,, manage, maintain, and operate the mechanic.il systems of the Mall in such manner that the temperature and humidity in the Mall is at a reasonable comfort level in accordance with Exhibit D, Part 3 and the ~all is liGht~d at all times when.any Hajor•s Buildinc having direct access t'> the Mall is open for retail operations; (7) so as not to withdraw any land from the Devel,...per 1'ract without the approval of each Major; (8) 30 as to carry out and perf,...rm or cause t'> be ccirricd out and performed, all of the terms, covenants, provisi~ns ~n: conditi,...n.:; of the Public Parkinc; Di,cumcnts t'> be pcrfnrmed by it, so that there shall be no default in or failure t,... perform any of the term.:;, covenants, provi3inns and Cl)nditi,...ns of t~e Public Parking Docufficnts. (9) so that during the rc:;pective t~rms nf the c'>venarits of each Major contained in Section 18.1, 18,2, 18,3, 18.Q, or I, 18,5, r.r.,t w:>re than seven percent (7'1,) of tl1. Fll)c,r Ar<.:a r,f the M::,11 SL'?rc:; :,h::lJ U:... 'lccupicd bj' service est&bli!:.Hment:; tcst~PJ!sh- mcnts not primarily devoted to the s1lc of merchandise). The provision::; of this subparai:;raph (9) shall not be cffeeti ve in favor of any Major for any purpose, including the purp,...ses of Sections 18.l(B), 18.2(8), 18,3(8), 18.4(D) and 18.5(D), after the terminatil)n of such Maj,...r's covenants contained in Sc~tinns 18.1, 18.2, 18,3, 18,Q or 18.5. For the purp,...ses of this subparacraph (9}, restaurants and eafeter ias ·will not be considered service establishments. Developer covenants with each Major ,hat during the term of its respective operating covenant Cl)ntaincd in Section 18.l, 18,2, 18.3, 18,Q or 18.5, there shall be no theater occupancy in the Mall Stores. The roreg'>ine rights and obligati'>ns of Developer of mariaBement and opcrati'>n .:;hall not be dcc,ncd to limit or· impair in any manner the rights, p,,wers and privileges t>f each Maj,,r as _pr1>vidcd in this Acrec111ent, including the rights, p,,wcrs ,ind privilcccs t>f each Maj.,r as pr1>vidcd in Article 12. ln the event .,f o talco t>vcr of Devr.1,,pcr• D 1/20/'18 -11·1-18.W(A) ' ·' ,.,. ,, -n -> r- ~ m n 0 ,ti C "' ... "' . > z C m Ci) 0 n 0 C z ... -< ... :c > ~ r-m -< ,, • a, r- 0 0 ~ ... 10 ffl n 0 ,., c:, m 10 2108 maintenance, management, and opcratinn nblicaLinns for any Cnrumnn Area pursuant tn any of the provisinns of Article 12, tho prnviainns of this Subscctinn (A) shall nnt be applicable in respect of the maintc11.1nce, management and i:-peration of such Common Jlrca durine the period or such take over. (D) "othin& herein shall require Dcvel~pcr tn h~vc any Nnn-H~ll Buildings or any Mall Stores or Hall in ~xcess of that specified in Section lj.2(8). ARTICLE 19 ADD1TIO~AL DEVELOPER COVENAHTS 19.1 Prnvisinns tn be Included in Leases nf Devclnpcr Trac. All Leases entered int!' by Dcvel,,per f':'r th~ ".'\ccupan<.'}' nf Floor Arca on th~ Developer Tract (includlnc any modificatinns of, supple~cnts tn, nr renewals thereof, nther than renewals made in acco,d.:;ncc i;ith the renei;al proyisi-,1::i in Leases in effect u:: of July 28, 1969)., shall contain pr(•Visions: (1) requirlnc the Occupant with respect to its facility to cnmply with the standards or maintenance, management a'ld operat.inn and ciont:..rol set forlh flr,r11r,nr:1·. t.n <'"mn1 ·1 -..... -. . . wi U, t.hr> provisions of Sect.ion 23.1 hereof; and (3) providinc that the provisions on this Section 19.l shall be enforceable by the Parties hereto, j~intly or severally, 19.2 Withdro~:nR Land from Devclnper Tract Developer covenants and acrees that it will not wiLh'>ut obtain- ins the prior approval of each Major (which approval rnay be grant,:,d or withheld in the sole and absolute judnment of each Hajnr) with- draw real pr->perty rrom the Developer Tract as the same exist on the d;;te hereof, or hereafter (in the event there ,nay have been any chanec, modirication or addition to the Developer Tract), MITJCI.,E 20 FORCE 111'.J £UR£ Hotwithstandinc any other provision of this Agreement, each Party shall be excused from performinc any obliBation or under- takine pr,,vided in this Agrec111ent, cxcei,t any oblicnti,,n t,, pay any :;um:; n/' ,nr,ney under the np1,lic.ible prov1s.1on:; hcre,,r, in 1/20178 -118-19.1-?.0 '"II '"II -n -> ,- ::,a m n 0 ::,a Cl en ... en l> z C m Ci) 0 n 0 C z .... -< ... :C I ~J m/ -< I '"II • a, ,- 0 0 ~ ... ~ m n 0 :,0 c:, '" 10 2109 the event Jnd sn lon~ as tlic pcrf'1t·lltancc of svcf~ r.,blic;;1ti1>n is prevented "r delayed, retarded, or hindered by Act of Gnd, fire, -ear thqu:ikc, floods, ex pl4'si"n, actii,ns of the clements, war, - invasinn, insurc~ti"n, riot, mob violence, saboLage, malicinus mi.:;chicf, inubility to prncu,.e or cene,·c:l shnrtn[!e of l;.1b"'r, '"'II "'II -n -:.-:. cquip:ncnt, fc,:ilitics, ir..itcri.::l.:;, or ::;upplic.:; in the open r.:.:irlwt, ~--: $ ~-'· =--,, ~---'-·Fa :an-__ ijJ\_a&~f? ____ ~ L ~ civil or military or naval auth"rities, ll:· JrlinB envir"mncntal protecti'>n laws or nrders) "''' any other cause, whether s1milr,· or di ssim 11 a,· to the fr,r c:;'>inc, n'>t within th-:. resp~c ti ve c"n trr:>l r,f suah Party. lna~ility to finance or obtain financing shall in nn ~vent Le considered as being a cause beyond the control of a Party. ARTICLE 21 II RBI THAT IOU In every case (and only in such cases) where this Agreement '} provides for or permits the resolution of a dispute "r controversy ~ h:i l 1 21, l Hight t." Arbi trati'>n If any of the Parties to this Aerecr.:cnt arc unable to rc;;ich an ar,r.:?1;,ncnt with respect t'> any such disputP. or cont.rovcrsy, it is a~recd and undcrstQod that if such airecment shall nl)t be arrive at within thirty (30) days after written nl)tice by one Party to the other P;;ir~y or Parties that such dispute or controversy exists, any Party to the controversy shall have the richt at any time aftei the expiration of such thirty (30) day period to refer the same to arbitration as herein provided, and the Parties aerce to cooper in o~taininc such arbitration, 21.2 Selection l)f Arbitrators .EPcb P~rt)I to tho dJsputa shall appoJnt an arbJtrator and if ~~Af!Y.-,?"'~~2~-~~~ ~~~ ............. ...........-~~ shall apr,l)int one addt til)nal arbitraLl)r. If they cannot aerce on the addi tillnal arbitr:1tor, ,.,,. if a Party refuses to appoint an arbitrator, 1/201'(8 -119-21,1-21.?. ' the event and so long as the pcrform,rnce of such oblieation is prevented or delayed, retarded, or hindered by Act of God, fire, 'earthquake, floods, explosion, acti0t1s of the elements, war, invasion, insurcction, riot, mob violence, sabotage, malicious mischief, inability to procure or general' shortage of labor, equipment, f~·:ilitics, matcri~ls, or supplic~ in the open market, failure of transportation, strikes, lockouts, action of labor unions, condemnation, requisition, laws, orders of government or civil or military or naval authorities, (including environmental protection laws or orders) or any other cause, whether similar or dissimilar to the foregoing, not within the respective control of such Party. Inability to finance or obtain financing shall in no event be considered as being a cause beyond the control of a Parti, ARTICLE 21 ARBITRATION In every case .(and only in such cases) where this Agreement ~ provides for or permits the resolution of a dispute or controversy by arbit8tion, the following provisions shall apply: 21.1 Right to Arbitration If any of the Parties to this Agreement are unable to reach 11 an agreement with respect to any such disputA or controversy, it is agreed and understood that if such agreement shall not be arrived at within thirty (30) days after written notice by one Party to the other Party or Parties that such dispute or controversy exists, any Party to the controversy shall have the right at any time after the expiration of such thirty (30) day period to refer the same to arbitration as herein provided, and the Parties agree to cooperate in obtaining such arbitration. 21.2 Selection of Arbitrators Each Party to the dispute shall appoint an arbitrat0r and if there are an even number of arbitrators, the arbitrators so selected shall appoint one additional arbitrator. If they cannot agree on the additi0nal arbitrator, or if a Party refuses to appoint an arbitrator, 1/ 20/'{ 8 -119-21.1-21.2 2110 such arbit.ralor shall be appnintcd uy the rresidinu Judi;e nf the District Court of the United States f(}r the Districl in which lhe Shoppinu Cer.ter Site is located, acting in his private and not judicial capacity. The arbit.ratf)r.s, when duly appnintcd, shall hold hcarincs and permit the Parties to present evidence and arnuments thereat, ~nd they ~hRJl render a decisinn by major~ty vote within thirty (30) days after the date upon which the last arbitratnr is appnintcd, ~hich decision &hall be binding and final upon the Parties tn such pro- ceedir1g to the extent and in the 111anner prnvid~d by : hP :alifnrni:i Code of Civil Procedure. All awards may uc filed with the Clerk .,f the appropriate Court of the State of California as a basis of declaratnry or other judcmrnt and of the issuan~e of executinn. Un Party shall be Cf)nsidered in default hereunder during the pendency of arbitration proccedincs relatine to such dhfault. If the ~rbltratnrs shall fai 1 tf) <!o so within said per ind '>f Lili r ty ( 30) days, then any Party shall have the r icht tn institute such <\,C tion ,:,r pr,:,c@ed i •13 in s~ch Court as shall be L~propriat.c in the cireurostn»ccs. The arbitrator shall determine in what prnp".lrt.1nn tile l'art1es snail iJE:ar the c0st of sue:, arbil..ration, except that each Party shall pay the expe11!.<:S of the arbitrator appointed t,y or on behalf or it; pr<'\'idcd, further, that no att,,rr.e;:;.' fees :.!'",ull be a:!.:irdcd in .:rbitr.:t!,:,n. Ir determining any questinn1 matter or dispute before them, the arbitra- tors shall apply t.he provi :;i1,ns of ti.is Ag1·ee111ent wil.hout varying therefrom in any respect; they sh~ll not have the pnwer t,, add tn, modify, change, or pass upon the validity or reasonableness of any of the provisions of this Aereement. If any procedural matter shall arise in the arbitration process, the same shall be resolved in accordance wit.h the provisions of Part 3, Title 9 (Sectif)ns 1280 ct seq.) of the California Code <'r Civil Procedure. 21,3 Arbitrntion is Cnnditinn Precedcn~ tf) Judicial Prncecdinns Compliance with \.he pr,,visi,,ns f)f this Article 21 shall be a conditif)n precedent t,, the Ctlmmenceincnt. by the Parties tlf any judici;,l r,rl}cccdine arislnc out l)f any such disr>utc or ct>nl:r,,ver:;y. 12/9177 -120-21.3 2111 21,4 CnsLs and Expen~cs nf Arbitrntinn Except as otherwise provided herein, the costs and expenses of arbitration shall be borne by the Parties tn the cnntroversy as determined in the arbitrati'>n proceedings. ARTICLE 22 NOTICES 22.1 U'>tices tn Parties Every notice, dem,md, request, consent, approvc1l or oLhcr communicati<>n which any Party is respectively required r.•· dr"ircs to give or IDcJke ,,r communicate upt)n or tn the other shall be in writing and sh.:ill t,e i:;i,·en or mad,: or conirqunicc1teti t,y mallint.; the same by ,·e&istered or certified mail, postage pre1,>aid, return rr:cipL requested, as .ollows: 12/9177 If Lo the Developer: The l~ay St,,res Sh"pping Centers, Inc, 10738 West Picn B"ulevard Los Anecles, Calirnrnia 90064 ~ttentinn: President ~ with a copy thereof t<>: ine Hay ~tnres ~h"pp1ne ~enters, lne. 1701 ltailuay Exchanec Buildine 6th and Olive Streets St. Lnui s, 1-li ssryur i 6 3101 Attentinn: Executive Vice President lf to llay: The May Department St<>res Cnrnpc1ny Railway Exchanae Buildine 6th and Olive Streets St. Louis, Missl')uri 63101 Attentinn: Vice-President -Real Estate with a copy there,,f to: The Hay Department Stores Ct)mpany 10738 West Pico n~ulevard Los AnGcles, Colifornia 900611 Attcntio~: Cl')ntroller -Real Estate and The Hay l>epartmont Stores Cnmpany 801 5'>uth Ul'.,odway !.o,; Ancelcs, Cal:i r,,rnia 900111 Attcntlnn: President lf to Penney: J. c. Penney Company, Inc. 1301 Avenue nf the Am~ricas Heu York, new York 1001? Attcnt;Lon: llcnJ. ~:;tntc Department -121-21.•1-22.1 . ., ., -r. -,. r- ;11:1 ffl n 0 ,a C VI ... "' l> z C -m G) 0 n 0 C: z .... -< ... :J: > ;a r-m -< .,, . GI r- 0 0 ~ ... :;ia m n 0 ,a C m :;ia 2112 and J. C. Penney Company, Inc. P. O. Box qo15 Buena Park, California 9062q Attention: Real Estate Department If to Sears: Sear:s, Roebuck and Co. 900 South Fremont Avenue Alhambra, California 91802 Attention: Executive ~ice-President and Sears, Roebuck and Co. Sears Tower Chicago, Illinois 6068q Attention: Vice-President/C0ntroller If to Fcderat~d: Federated Department Stores, Inc. 222 West Seventh Street Cincinndti, Ohio 45202 Attention: Senior Vice President - Real E;state with c~pi~s thereof to: Federated Department Stor~s, 15760 Ventura Boulevard Encino, C~lifornia 91316 Attention: Vice-President and Bullock's Inc. 7th Street, Hill Street and Broadway Los Angeles, California 9001q Attention: Chirf Executive Officer If to Carter. Carter Hawley Hale Stores, Inc. 550 South Flower Street Los Angeles, California 90071 Attention: Vice President, Real Estate -Legal Any Party may (esignate a different mailing address for the purposes of this Article 22 by fifteen Cl5) days• ·notice thereof to the other Parties as provided in this Article 22. Every notice, demand, consent, approval, req_u'est, or other communication so sent shall be deemed to have been given, made, or oommunJcated, as the case may be, on the date that the same was i/0J.Jyert1(:f er tleJJYery vas att.eldpt(!JI by recistoretl, ~r certi/'Jetl · United States Hall, p~oparly.add;cssed; as ar~resaitl, p~stacc prepaid, as shr,wn on the return rt:·ccipt. 12/9177 -122-22.1 ., _'11, . .,, .,, -n -)> ,- ;a m n 0 ,a 0 UI ... UI :J> z CJ -m Ci) 0 n 0 C 2 ~ -c ... ::i: )* ~ .- " ... .,. • 2113 22 ,2. Nrliccs tn Mnrtr.ae,ecs The Hortcagec under any Mortgage affecting real property in the Sh,,ppina Center, shall be entitled to receive notice or any de.fault by its Mortgagor, provided that such Mortgai:iee shall have delivered a copy of a notice in the following form to each P~rty: All capitalized terms set forth in thls nl)tice shall have the same meanings as are set f"rth f"r such terms in the Amended and. Rest.ated c,,nstruction, Operal ion anu iltrcipr,,cc1l Easem1.r1I. Agreement among Plaza Camino Real, The May Department Stores Company, J, C. Penney Company, Inc., Scars R~ebuck and C"., Federated Department St"res, Inc., and Carter Hawley Hale Stores, Inc. relating to the Plaza Camino Real Shopping Center, located in San Diego County, California. The undersigned, who:ed!~~r~!:e~; _c_e_r~t~i~f~y-,.t~h-a··t--,I~t.......,i-s the ... Fi-o .... i""'d .... e_r_o...,t··· -a~:'"1c-r""'t_g_a_g_e_u_p_o_n the [t:&n:~ or P::irt.,)· ~-· :• in scid Plaza Camin" Real Shopping Center, and is tne K"t -sa~ee thereunder, The land which is subject t" said M~rtgage is described in Exhibit A attached hereto and made a part hereof by reference. In the event that any notice shall be give:i of the default of the Party upnn whose Tract said lien applies, a copy thereof shnll ~~ delivered tn the ~ndersigned ~hn shall h~ve all ri&hts of such Party to cure such default. Failure t" deliver a copy of such notice to the u~dersigned shall inn~ way affect the validity of the notice of default as i~ respects such Party, but shall make the same t~valid as it respects the interest Qf the undersigned and its "lien upon said property. ...... " Any such n"tice t" ~ M0rtgagee shall be given in the same ~anner as provided in Section 22.1. Givins of any notic~ uf default or the fJilure t" deliver a copy to any Mortgagee shall in no.event create any liability on the part of the Party so 22.3 Additional Notices t" Mortgar,cs and Right to Cure In the event tha .. any notice shall be given of the default of a Party and such defaulting Party has failed to cure or commence to cure such default as previded in this Agreement, then and in that event an~ such Mortgagee under any Mortgage affecting the Tract of the defaulting Party shal~.be entitled to receive an additional notice given in the manner provided in Section 22.1, that the defaultine Party has failed to cure such default and such Mortgagee shall have sixty (60i days after said additio.nal notice to cure any such default, or, if such default ,Jannl)t be cured within sixty {60) days, to dilieently commence cur1ng within such time rind diligently cure within a rcilsonable ti111e thcreart.er. 1/20176 -123-22.2-22. 3 - 211~ 22.4 Notices to City Notice of any action taken under Article 12 or Section 6.6 shall be given to the City by the Party or Parties takin~ such ~c~ion. Notice of the findings and decision in any arbitration proceedings pursuant to Section 12.2 shall be given to the City by the Party or Parties initiating such arbitration proceedings. Any notice pursuant to this Section 22, 4 shall be in writing and shall be by certified mail addressed as follows: City Clerk City of Carlsbad 1200 Elm Avenue Carlsbad, California 92008 with a duplicate copy to City Attorney at the same address. The City may change its add!"css for notices by del Ivery t.o the Parties of a notification of a new address to be effecti\'e upon receipt of a writ ten acknowledgernent of said change from the Parties. * * I * I * * * * {TEXT COHTlHU[D OH UEXT PAGE} 7/13178 -l23A- l . "Tl "Tl -n -)> ,... ;a m n ,., ::.G C CII ... CII • > z C -m G) 0 n 0 C z -t -< ... ::c > ,a ,... '" -< "Tl • a, ,... 0 0 ~ .. 2115 ARTICLE 23 ~ 23.1 Developer Covenants (A) Developer covenants and asrees that it will not at any timL hereafter inst~ll or use or permit the installation or use of any signs or other advertising device_: (1) on the exterior of the Mall Stores Buildincs, except for the signs in existence on the date hereof, Shoppine Center identification signs, the seal referred to in Subsection (P) of this Section 23.1, and signs for Occupants of the Mall St.,rci, having an outside customer entrance t" the~r Floor Arca; (2) on the facades of the Developer Buildings (including the fac~des l"c~ted within the Mail) within or outside of tt.e Kall, which are n<,t in accordance with the pr<,visi,,ns of Exhibit 11; (3) in the Pa_rkin& Arca, except in&, .,how'-'vcr, traffic cont.rol siens, dire~ti,..nal sizns and C"mmr,n Area amenity sii;ns to in Subsection (8) of this Section 23.1, and subject to the fpprov~l of the Majors as Lo height, size and desiBn Sh'>pping CentP.r id_cnt1 f:I. catir,n sie ns, (in add 1 t i"n t.,, the e:d st.• nc ~hopping Center identification signs), in the locations shown on Exhibit C. CB) The Majors hereby approve the signs in existence on the date hereof on the facades of the Developer Buildings and in the Parking.Area, including the existing Shopping Center identification pylon-type signs (includini; the cxieting advertising for the H.irvcst House cafeteria), the theater identification pylon-type sign for use in conjunction with a theater oc~u,,ancy in the Non-Mall Stores, and the Penney identification sign as sh,..wn in Ex~ibit I, in the locations shown on Exhibit C. 1'hc Majors .ilsc, approve the installation, if Developer sh'>uld :;o d~tcr111inc, c,ver ariy of the entrance:; from the Parking Arca to the l'huse II Holl, of a seal identifying the Plaza Cam inn Real Shop pl n1~ Center similar t'l tlle ex is tine seal c,ver ccrtni n entrances to the Phusc I Hall. 12/9/'/'/ 23,l ' 1.,, .,, -n -> ... ,a m n 0 ,a C "' ... "' . > z C -ffl G) 0 n 0 C z .... ~i ... . ::c I ;I m ~ .,, • ... ,a ffl n 0 ,a a ffl 2116 (C) The Shopping Center and theater identification signs shall not contain any tenant advertising matter nor shall they bear the names of any Occupant of the Shopping Center, except for tenant grand openings for business, the name of any theatre Occupant, and the existing Harvest House cafeteria adverti~lng. 23.2 Signs of Majors Each Major shall have the right, in its sole and absolute judgment, at any time and from time to time, to erect and install, change, remove, and relocate its standard wall and penthouse identifi- cation signs, upon and over its Buildings as it dec~s r~cessary and convenient for the operation of its Improvements. 23.3 Penney Sign on Developer Tract Penney shall have the "right and easement, in its sole and ab30JnJ;.e Juuc.w1v1t, et: ,My tiare ano' from tf!J)e ti? tlae._ t<J erect. a.a..d. install on the Dcvelope~ Tract D Penney identifi,;ation siBn as sho1m on Exhibit I in the location shown on Exhibit C identified as "Existing Sign -Penney lD. ". ln exercise of said· rieht, Penney has erected and installed the existine Penney identification sign. Said easement shall continue until no building, structure or installation shall any longer be located on the Penney Tract, subject to the provisions of Article 20. ARTICLE 211 ~ 2~.1 Payment of Taxes Each Party shall pay or cause to be paid prior to delinquency all reol estate taxes and assessments upon its respective Tract (herein referred to as "Taxes"). lf there is any Center Parking and it is not separately assessed, such real estate taxes and assessmcr,ts with respect to the Center Parking shall be determined, for land, by the ratio of land area within the Center Parkina, to total land area in the Shopping Center included within the same assessment, and, for improvements, on a fair and equitable allocation among the various improvements in the Shopping Center included within such assessment, giving weight to the factors which determin~ the amount of the real :,ropcrty tax and assessment 213178 -125-23.2-211.1 ; "Tl ,, -n -> ,- "' m n 0 ,., 0 u, ._ u:t. > z C, -m (i) o· n 0 C z .... -< ' ._ :r f >' :! I m -< .,, • .,, ... 0 0 3 ' ,a m n 0 '10 C, m JO 2117 in question and to the provisions of this Agreement. In the event the San Diego County Assessor's work sheets are available and show thereon an apportionment of such improvement taxes and .assessments among such various improvements, then such work sheets chall be conclusive as to allocation of such improvement taxes and assessments among such various iffiprovements. 2q,2 Taxes May Be Paid In Ins~ailments If the Taxes or any part thereof or anr portion of any part thereof payable by any Party may be paid in installments, such Party may pay each such installment as and when the same beco~es due and payable. 24.3 Payment of Another Party•s Taxes Any Party sha:l have the rieht upon and after the expiration of thirty (30) days prior notice to the other Party{s) to c11re any default of the latt~r with respect to its obligations to pay its Taxes or any part thereof if such action shall be reasonably necessary to prevent the loss or forfeit1.re of the. Tl'act of the latter or ~ny portion or portions thereof, or to prevent the loss or forfeitu:•e of any easePJent granted in this Agree:r.ent to the paying Party, and in the event of any such payment or payments, then the paying Party shall have the right of immediate reimbursement froffi the latter Parly(s). 2q.~ Contestin& Taxes Each Party may contest, protest, or object to (hereinaftel' without distinction, except as to number, referred to as "Contest" or "Contests") any Taxes, or any part thereof, or any portion of any part thereof payable by it (as in this Article 24 provided) with respect to its Tract, as to the validity, applicability, or the amocnt thereof, provided that every such Contest shall be in ".>od f&it.11 aud the counsel for \.he c.:>ntcstin5 Party shall furnish to the non-contcstina Parties which so request a written opinion that the Tract or any p.,rtion .,r porti.,ns there.,r I bs the case lliay be, upon which the contested Taxes have l:>c·cn le.,,1.ed, is not in danger of bein5 lost <>r forfeited, by reason of such Contest. Each Party covenants \.hat lLs Tract shall not be lost or forfeited~~ a result of any such Contest by such covcnantin& Party. 2/3/'(8 -126-211. ?.-211, 11 .,, . "Tl -n -> .... ,a ffl n 0 ,a " "' ... "' . > z 0 -ffl (i) 0 n 0 C: z ... i -< ... :c I > \ ,a .... ffl -< .., • 0, .... 0 0 ~ .. ,a ffl n 0 ,a C ffl ,a - 2118 ARTICLE 25 CONDEMNATION 25.1 Cnndcmnatinn nf Tracts and/nr Imprnv~mcnts If any part of the Shopping Center Site or the improvements thereon is condemne·d or taken by right ~f eminent domain or is acquired for :>Ublic purp?ses by deed in lieu of co:ide:tn.:ition (l~crein referred to as "condemnation"), this Agreement shall continue in full force and effect, subject to Section 25.2. If fifteen percent C 1i;J,) or more ,;,f the Floc,r Arca or any Party (ex<.'l ;tdiru• any Flo"r Area on the Penney TBA Site and on the Non-Mall Buildiii.; Sites), shall be taken by condemnati,:,n, and such taking shall be other than a temporory requi'siti"n for a period of less than "ne hundred eiahty il80) days, then, the Party so affected shall have the right to terminate its "bligations provioed for in this ~greemcnt to restore, operate, repair an~ maintain its Store, in the case of any Maj"r, and the r-:all Stores .ind. Mall, in the ca.se or D§veloper·, by n~tiee given to the oth~r Parties within ninety (90) doy~·artcr such days followin3 the giving of such notice. If Developer exercises its right so to terminate its obligations to restore, operate, repair and maintain, the Majors shall thcreu~on each have the rfcht to terminate their respective such obligati,,ns. If any three Majors terminate their respective nbligati~ns to restore, operate, repair and 111aintr.in, Developer thereupon shall have the right to terminate its respective sue~ obligati'>ns. 25.2 Condcmnati'>n of Parking Area (A) If all, or any substantial portion, of tbe Parking At"ea shall be taken by condemnation so that after such taking the Parking Ratio in the Sho1,ping Center shall be reduced to less than eighty percent (80j) of the Parking Rati" specified therefor in Section 11.](D), and such taking shall be other than a temporary requisition tor a period ot less than one hundred cichty (180) days, then, subject t'> Su!>scction CO) of this Section 25.2, any Party shall have the rieht to terminate this Acre~m~nt by notice of intention to 12/9/77 -127-25.1-25.?. .. • • • • l ' ' r t C ' C C. ... C. l • .. -r C C (' C C 2 -... :c > '10 ,- '" -< -n • "' ,- 0 0 ~ .. '10 '" n 0 '10 C, ffl '10 2119 terminate given to the other Paa·tics within ninety (90) days after such taking, the termination of this Aarecment to tal<e effect automatically sixty-five (6~) days followina the giving of such notice, unless any Party shall give a not1~e of proposed alternative parking in accordance with Subsection (B) or this Section 25.2. CB) Any Party desiring to avoid a termination or this AcrAemcnt pursuant to Subsection (A} of this Section 25.2, shall within sixty (60) days after the receipt of the notice of intenti"n ti:, terminate eiven pursuant to Subsection (A}, give to th~ other Parties a n~tice of proposed alternotive parking specifyinr; ~h-lncati'ln <>f pr,,posed parking spaces i~ the Shopping Centor to an p~ount sufficient to urevent termination pursuant to Subsection (A). Such notice must be accompanied by preliminary pJans r-,r such parkine, top._ethcr with a statement of the steps required to provide such parking and a schedule for taking such st.eps. Notwithstanding t.he giving of b such notice of proposed al tcrnati ve parkinu, this Agrcc111en t shall terrui~at~ if wi~h1n s1xt~ (6U) o~ys foll~wlns the giving of ~uch notice any of the other Parties shall rejQct in writing by notice tr, the prop'>sing Party such proposed ~lternativc parking facilities. Such termination shall take effect automatically thirty (30) days after the r~jectlon notice is given. If such proposed alternative parking is not rejected by any of the other Pa:·ties 1 as set fr,rth above, then promptly upon the expiration of the time period r~r such rejection or after the other Parties have all appr·oved such pr,:,posed alternatite parking, in writing, whichever is earlier, the proposing Party shall communce an~ diligently prosecute to completi<>n in accordance with the schedule submitted and at its sole cost and expense (including all costs of acquisition and construction), all steps required to provide such alternative automobile parking facilities. (C) If twenty percent (20J) "r m,,rc of the parkinc spaces located within f'>ur hundred (1100) feet of the Stnrc of any Major arc taken by condemnati'>n, and such taki nc sha'J. l be other than a 12/9/'/7 -l?.8-25.2(8)-(C) 2120 te111poral'Y rcquisiti'>n for a period of less than l')ne hundred eighty (160) days, then such Maj(\r shall have the right t'> terminate its obligati,1ns tt) restore, operate, repair and maintain its Stl')re by notice given to the other Parties wtthin ninety (90) days after such taking, such terminati'>q t'> take effect aut~matically sixty (60) days fol!owinG the civins of tuch notic~. 25.3 Taking (\f Permissible Buildin~ Area (A) If any part of the Permissible Building Area of any Party is taken by condemnati'>n and such taki~c shall be l')thcr t~an a temporary rcquisiti'>n for a period or less than one hundred r'.,,ity (160) days, and the effect of such takinc is that such Party could not build up to its full Planned Floor Area above grade level on the remainder of its Tract, ta~i~i into account the size of such res•·:iindt!r and the hei~ht lirnita'~i0ns provided for in this Agreement, then effective on Lhc date of such taking the Planned Flo(\r Area nf such Party shall be reduced fnr all purpnse~ under this Agreement . ~ ( includ in& de term in ing the Planned flol)r Area on t.:he Shl)p11ine; Center remainder of its Tract above crade level, taking into accl)unt the si2e of such remainder and the height limitatinns provided fnr in this t..3recmcnt. (B) If any part of t~e Permissible Buildinu Area of any Party is taken by condemnatinn anrl such takin& shall be other than a tesnpor ar y rcqui sit.illn f,,r a per ind l)f less than one hundred eighty (180) days, and the effect of such taking is that such Party cnuld not build up t.o its full mini111um Floor Area under Article 3 ab.,vc grade level 1)0 the remainder nf its Tract, takinc into account the size of such re,,iaindcr and the height limitatil')OS provided for in this Agreement, then effective on the date of such taking the Minimum Floor Arca under Article 3 of such Party shall be reduced for all purpllscs under this Agreement t., the maximu111 floor Area wblch such P.:irty cnt.ld build lln the re111ainder "r .i.ts Tract ob,,ve eradc level, takine int'> occ'>unt the size of such rcmoindcr ond the hoight li1dtatinn:. prr,vidc.'d f'>r in t.his Ar.rcc~cnt. 12/9177 -129-25.3(A)-(II) ''"ft '"ft -n -> r- ,a "' n 0 ,a 0 "' .. "' > z C -ffl (i) 0 n 0 C z . .... -< UI ... 0 0 ~ .. ,a "' n 0 ,0 0 "' ~ 21~1 25.~ Use of Cnndcmnatinn Award In the event of a taking by condemnation, each Party shall apply the proceeds nf such award as follows; (A) In the case of a takinc affectinG the Mall, to the r,~tor- ati•Jn of su.ch Mall to a complete architectural and structural uriit(s) as similar as is reasonably possible in design, character and quality to the original Mall and to the replacement of a totally condemned Mall, insofar as is reas,,nably pnssible, with a structure similar in desicn, character and quality to the Mall structure 5n taken. (B} Subject to Seltinn 25.2, in the ca5e ef a takjne affectinc Parking Area, to the replacement of the car spaces lost by such taking with grade lnvei or multi-leve! parkina facilities at a lccation or locations acceptable to and apprnvcd by the uarties, or toward the acquisition ,.,f contie,uous lanci, suitat.ile in the Farties' judgment and approved ~hereby for parking purpos~s, ~1ich approvals l, shall not be unreasonably withheld. the Sht>ppi"I& Center ( i) if the Party wh,;,se Doildinc is M affected elects "r is required hereul'Jder t" rest.,re "r repair such Buildit1B, the amount of the award shall ~e applied to the rest'>ratinn or repair thereof to the extent required to acc.,mplish such repair or restorati,,n; (ii) if the Party whose 8uildin3 is so affected is nnt required t'> rest,:,re or repair .and elects not t,:, rest.,re or 1·epair such Duildinc, then the Partl' so elect in~ shall, within ninety (90) days after it disc,:,ntinues tne use of such Building, raze and rcm.,ve the remainder of tho Building and shall iropr.,ve the area prev f1>usl y occupied by such remainder of the Building as Coro"!on Area and ·sh:ill maintain the same as such until such time as a new replacement structure shall have been erected upon the s.i.te owned by such Party. Such Party shall als'> erect a closure wall, at its sole cost and expense, subject t'> the approval of the other Partic:, to enclose the opcninn t" the Hall from U.s Tract. 1/20176 -130-?.5,lt(A)-(C) ' ·-n -n -n -> ,.. ,a ffl n 0 ,., 0 "' ... "' . > z C -m (i) 0 n 0 C z ~ -< ... :c I ;I m -< -n . GI ,- 0 0 3 ... ,a m n .0 ,a 0 m ,a 2122 25,5 Oivisinn nf Cnndcmnatinn Award Any awa,·d, whether tl1e same shall be obtained by agreement prior to or during tile time or any court act.inn or by judgment, verdict, or order resulting from or entnred after any such court actit:>n, resul tinr, from a taking '>r damar,ing by condemnation of the Shoppint: Center Site or any portion or po1·tions thereof, or any rights or interests in the Shoppinc Center Site or any portion or portions thereof, or resulting from a requisitinninc therenf by military or other public authority for a~y purooses arising out nf a temporary emergency or other tompnrary circums-~nces, shall be 1i~tri- buted between the Parties in accnrdance with the terms and cnndit!nns of such agreement~ judgment, verdict, or order; pr'>vided, hnwcver, that each Party shall have the right to appeal any judgment, verdict, or order tn a court of last resort with respect to its respective interest therein. 25,6 Award to be Placed in SeBrenated nank Accnunt .. (A) Subject to Subsections (B) and (C) of ttis Section 2~.6, nation to be field by it in a sesresntcd b:inl: accn.unt de:!iicnnted as a trust account, t'> be applif!d arid paid '>Ver t'> svch use until the prr.visions of this Article 25 have been complied with in full in the same manner hereinabovc provided. Any amounts not required to be so utilized, to the extent of each Party's Qward so held in trust, shall upon being fr~ed from such trust, be paid over to the Parties in proportion t., their respective interests therein under this Aareement. (B) l'he amot.1nt of any net award (i.e., the total award less reast>nable expenses incurred in the condemnati"n procecdines)received by any Party not exempt from the provisions of this Section 25,6 pursuant to Subsection (C), which exceeds Fifty Thousand Dollars {$50,000.00) shall be paid to such bank '>r trust company o.uulified under the laws ()f the State of California as su·ch Party shall dcsienot<l f'>r the custt)dy ,ind disposition or :;nid run<ls as herein prodded, except th,1t it 1s expressly undcrst,iod and a&recd that a 1219177 -131-25,5-25,6(A)-(II . . ,.-.. ........ 2!.23 Mortgagee of such Party's Tract may b'e a trustee for the purposes of this Section 25.6(U). Payment of the proceeds required to be applied to reconstruction shall be m~de by said trustee to ~·uch Party, or its contract.or .or contractors, in th~ discretion of the trustee, as follows: (1) At the end of each month, or from time to time, as may be agreed upon, acainst such Party's archftect•s c~rtificat.e, an amount which shall be that proportion of the total amount held in trust which ninety percent (90$) of the payments to be made to the contractors or matcrialmen for work done, matrrifll supplied and services rendered durin& each month or other period bears to t~e total contract price. (2) At the completion of the work, Lhe balance of such proceeds required to complete the payment of such work shall be paid to such Party or its contractor or contractors as the P"PJ/..,.,...-, ~,a,..r ~,&V'~//..;,,,/~ //#-"'./H/ /;,;/ ,/ /#&" //4'&" ,::7/ JR'~# payment (a) there ara no liens against tha proparty by reason of suc/J work, and with respect to t.he t.1111e or payment of any balance rc1,rninin11. to be pain nt. th': c~mpl:.:\.~.:;n of ti' .. : wvr k t.iw period within -.1hich a lien may be filed has expired,_ or proof has been submitted that all cosLs of 1-1ork theretofore incurred have been paid, and (b) s~ch Party's architect shall certify that. all required work is completed and proper and of a quality and class of the original work required by this Agreement. and in accordance with the approved plans and specifications. (C) The provisions of this SecLion 25.6 shall not. be applicable to any ParLy entitled to self insure pursuant to Section 1q,3. 25.7 ArLitrat.!Q~ to Resolve Disputes Any disputes under this Article 25 shall be determined by arbitration as provided in Article 21. 25.8 CondernniiLion Provisions in Grant Deeds and Public Parkinc OperaLi.!!!l_A~~r~e~e~m~c~n~t'--~~--~~~~·~~~~~~~~~~~ llothin& in thi:; ArLLclc 25 shall be deemed to aff\lcl. the contlem- nation provisions in tl:e Crarit l>ced:i to the l'arkin& Authority of the Phase I, Phase 1-A, Phasn 1-ll and Phase Il Public Parkinu Land or in the Public Parki~e Opcratin& A~rc~mcnL. 713/'/8 -132-2!,;.7(C)-25.8 n 0 C: z ... -< .... :c > ,a r-m -< "Tl • GI r- 0 0 ~ .... ,a "' n 0 ,a 0 "' ,. ' "Tl "Tl -n -J> r- ,a m n 0 ,a C "' ... "' . J> z 212~ ARTICLE 26 COVEIJAIITS RUtl WITII THE LAND 26.l Covenants Af Ea~h Party {A) Each and all or the provisions af this AGrccmcnt nn each Party's pa1·t to be 'perfor111cd (wl1c:t.h<::1· afril'llrntive or negat.ivl! in nature) are intended to and shall bind each and every Person, that co111priscs such Party at any time a·nd from time to time 1 and shall inure to the benefit of the other Parties, unless the same is by this Agreement made for the benefit of '>r binding up,-,n o,:~y :-,ecified Parties in which event the same shall inure to the benefit of and bind only ~uch Parties. CB) Each and all of the covenants of each Party herein not to use 1 or permit the use of, any part of its T1·act, contrary to the pro,isions of I.his Agreemenl are als•, intended t", and shc!ll bind, eDch and ev.cry other l'cr:,'>n, ha vine an:; fee, leasehold or other interest in any part of such Party's Tract at any time and l, from time to time, derivrd throueh any Pers"n, that n,:,w "r hereafter Tract is affected or bound by the covenants in questl~n, or that such covenant is tt:> be performed thereon, and shall inure to the be"efiL of the other Parties. (C) Hi th respect t" the various covenants (whether affirmative or negative) on the pnrt of each Party contained in this Agreement which affect, or bind, or are to be performed on a Party's Tract or on portions of such Party's Tract, then the Tracts of the other Parties shall, during the term of this Agreement, be the dominant estate and such Party's Tract (or if the particular covenant affects, binds, l)r is tc, be performed on, less thar1 the whole of such Party• s »4.ac~, t.hon v.l~h respeet t-7 th<:> partJcoJar coJICJJJJnJ'-, .3JJcb p.>1·tJon &here,:,~ PS .Is p/./"t1ctcd /J,r., ,;,r b;;,vntl b,r., the port.lcu,/or coYcnonts, qn ,.,h.feh ~/J6' porefeuJar qoygnod~ f.:? ~Q .6.:? p.:?,...-A,,...-1.:-d'/ snB././, Q'a,,-/d,P" the U!'/'111 o./" th.f& Auree//Jent, be the serYfcnt eotote, 1219177 -133-26.l(A)-(C) ' ''Tl 'Tl -n -> ,- ,a m n 0 ,a C en .... en > z C -m Ci) 0 n 0 C: z .... -< .... ::c ,.. ,a r-m -c "T • 2125 ARTICLE 27 HISCl::LLAII mus 27.1 Waiver nf Default 1'0 waiver of any default by any Party t.o this Acreement shall be implied from any nmission by any nther Party tn take any actinn in respe<'t of :;uch default if such default cnnti,we~ nr is rep,:-,1·cd. 1'0 express waiver of any default shall affect any default or cover any perind of time other than the default and period nf ti~e speci- fied in such express waiver. One or more waivers of any dcf~ulL in the perf,:,r111;;mce of any term, provision, or covenant ct>ntaincd 1,1 this r,cree:~cnt shall .,.,~. be deemed tn be a wai v,ir nf any subsequent default in the performance of the same term, provi:;inn, or covenant contained in this Acreement. The consent or approval by any Party to or of any ~ct or request. by any other Party requiring ~nnsent or approval shall not. be dee1r.cd t.0 waive nr render unneccr.sary the consent t>r approval to or of any subsequent simil3r actfi nr requests. ;, The richts and rer.iedies given t,, each Party by th.:s Acreement shall shall be exclusive Qf any ,,r lhe "ther s, ,,r of any otlu:r r ieh t OI' re:me:dy at law 0r in equit.y which any Party might other11ise: have by virtue .,r a default under this Agreement (except as otherwise pr"- vided in Secti'>11s 27.4 and 27.16 and Article 21), and the exercise of one such riaht '>r remedy by any Party shall not impair such Party's standin& to exercise any other right or remedy. 27 .2 Self-Help If Developer shall fail to perfor111 any of the covenants to be pcrf-,rmc,;t by IJevel"'per pur:want t'> th!s Aere~ment, and if the failure "f De:veloper relates to a matter which in ~he judgmcnt·of a Maj"r rca:;onably exercised is of an emerecncy nature and such failur c :;hall reruain uncured f"r a per i"d of fl)r ty-eieht ( •18) hours after a Ma.ior shall have served upnn Developer notice of such failure, (provided if such cmcrccncy rcquir~s immcdlate action nnd it would be unrca~~nable to require prior notice under the circum- stance~, no noLicc shall be required before the Major takes actlnn 12/9/'l'f 27, l-2'/, 2 ''"Tl '"Tl -n -> ,- ,a ffl n 0 ,t';i CJ "' ... "' > z C, -m Ci) 0 n 0 C z ... -< ... :c > ,a r-m -< .,, . DI r- 0 0 ~ ... ,0 '" n 0 ,a 0 "' ,a 2126 as herein.iftcr set f"rth, provided the Maj.,,· shall sive Devcl<>pcr notice of such failure and the action Laken .is sonn as P"Ssiblc) then the M.ijnr m.iy, at its opti0n, and in its sole discretion as to the necessity ther cfnr, per fQrm any such c•>ve,Hrn t, of .11ake any such payl'lent as Developer's attorney-in-fact; ( each M::ijor be inc hereby irrevocably a~p.,inted by Developer as DeveJnper'~ r1ttorncy-in-fnct tor such purp,,se), and each ffaj,,r, by reason of so doing shall not be liable or responsible for any loss or damace thereby sustained by Developer "r anyone holdina under Developer. It a Party hereto shall be compelled "r shall e~~, ~,, pay any sum ,:,f money "r do any acts which require the payment of money by reason of another Party's failure or ina~ility to ~crfnrro any of the ter~s and provisi,,ns :n this Agreement t0 be by such other Party r2rforrr.ed, then such defaulting Pa,-ty shall pr"mptly upnn de~and reimburse the paying Party for such sums, and all such sums shall bear simple interest at the rate of o~e percent (11) per annum (., over Lhe then existing prime rate per annum of the Dank of America Ifft.Si., .-t Ln:; An;.clc:;, C,ilir1,r11in, but In :,<> c'.',:11 ... to cxccc.J I.hi; maximum rate permitted by law frnm the date of expenditure thercf~r. Any other sums payable by a Party to the other Party pursuant to the terms and provisions of this Agreement that shall n~t be paid when due shall bear si~pl, interest at the rate of one percent (li) per annum over the then existing prime rate of inl.ercst per annum of the Bank ,:,f America ?IT&SA at Los Angeles, Calif,:,rnia, but in "" event to exceed the maximum rate permitted by law from the due date tn the date of p.iyment thereof. If such repayment shall not be made within ten (10) days after such demand is made, the Party having so paid shall have the richt to deduct the amount thereof, together with interest as af'>resaid, without liability '>f forfeiture, from any sums then due or thereafter becoming due from i~ to the defaultine Party hereunder. Any deductinn made by any Party pursuant l? the provisions of this Sect.inn 27.2 from any sums due or payable by it hereunder shall Ollt c,,n:.tHute a default in the payment thereof' unle:1s :.uch 12/917'/ •135-27,l ' i "Tl "Tl -n -l> r- ,0 m n 0 ,0 C ii) ... "' . )> z C m (i) 0 .n 0 C z ~ -< ' ... :c > ,a .... m -< '"Tl • u, r- 0 0 ~ ... - ,,,. .... --·~---~····--·-··-... --·---·-·. ·-·· \ '· ··' 2127 ) . Party tails t,, pay the am,,unt ot such deduction t,, the Party t., whom the sum is owin~ within thirty (:30) days after final adjudi- cati'>n· that such amount is owing. The option tivcn in this Section 27.2 is for the sole protection or the Party so paying and its exhtence shall not release the deiaulting Party from the ouligation to perform the terms, provisi.,ns, covenants and conditions herein provided to be performed thereby o·r deprive the Party so paying or any legal rights which it may have by reason of any such default. 27.3 No Principal-Agent Relati.,nship Neither anything in this Agreement contained nor any acts of the Parties hereunder. shall ue deemed· or cons;.rued by the Part.ies or by any third Person to creat~ the relationship of principal and agent or of pa~·tncrship or of Joint venture or of any associatit>n between the Parties. 27.ij C.,nsents and Approvals (A) Whenever a Party is requested to consent to or approve l)f • any 1oattcr with respect !o which its consent or appr.,val is required withheld, except where this Agreement specifically provides that the same is in such Party's sole and absolute discretion. · (B) ffotw1thstandin6 any other provisi,,ns of this Agreement, wherever in this Agreement it is provided that the exercise '>fa right by or the perfo~mance of an obligati'>n of or the executi'>n or an acti'>n by any Party (hereinafter called the 11Conscntee") shall be subject to the consent or approval of any '>ther Party (hereinafter called the "Consentor") and pursuant to Subsection (A) of this Section 27.4, the consent or approval of the Consentor shall not l:e unreasonably withheld, then in any case where the Consentor shall withhold its C'>nsent or approval, such determination by the Consent"r shall be conclusive up,,n the Consentee, unless, however, the Conscntce shall, within thirty (30) days after n'>tice tr~m the Consentf>r of ' its determination, elect t'> have the matter submitted for determina- tion by arbitrati'>n in acc'>rdancc with the p~ovisi'>ns of Article 21. Such submission t'> urbit.rj:lt.i'>n ~hall be the s6lc remedy of the 1/20/78 -136-. 2·,. 3-27. ,, (A)-( 0) . ····:,:·. ..... ;.._ ........... ;: : .. , .·, .. ......... f t -:-J ."f."'i "1'. J " ---~ > .:..'. ,.. ·,; ) l ·:.a ) ffl ·' i n 0 ,., C, en .. en • > ~· (. z ~ * I• !: C I -f ffl ' G) ,: - 0 I -.. n ~ 0 C r z .... l' ·-< .. :c > jlllD. ,.. ffl -< ... • 11111 ,.. 0 0 • ... .-.,. ·"' :n . ' ~. .·! ) i12s ) .. ; Consentee for any such withh.,lding or consent ,:,r approval by the Consentor. Within fifteen ( 15) days after it rec.elves the Consentee' s notice pursuant t,:, Section 21.1, the Consent,;,r shall by notice ~o the Consentee state in detail its reasons for withh.,lding such consent or approval. In the arbitration proceedings, the Consentor shall not rely upon ~my reasons for wi thholdinc :m::h ct>nsent •">r approval, except as specifically stated in said notice to Consentee, In the event that any matter shall be submitted to arbitration by the Consentee pursuant t,:, the provisions of this Section 27. ll. ti' ... sole issue for arbitration shall be the determination as t,;, wheth1:,· the withholding or cons~nt or approval by the Conscnt,:,r shall have been reasonable or unreasonable, and in the event that a determina- tion s~~ll be made that the withh,;,lding of c~nsent or approval by the Consentor was unreasonable, then the decisi'>n shall Jnt1ul such withholding of consent or approval, such annulment being the sole remedy of the Consentee., it b~ing the intenti,,b" of the Parties that in no event shall any such withht>lding t>f consent or approval by the Con~cn~~r, er ~ny decision !n 3rbitrati~n with r!1pect th~r~tn: (A) impose any financial liability upon or result in any damages to the Consentor, or (B) create any right cognizable or remedy enforceable in favor or the Con~entee and against the Consentor in law or equity or under any special statutory proceeding or at all (except by arbitrati~n as aforesaid); provided, however, ,hat any such decision in arbiration may also include an assessment of the costs or the proceeding with respect thereto as between the Consentee and the Consentor as provided for in said deoision. (C) Wherever in this Agreement approvol or any Party is required, and unless a different time limit is provided in any Article of this Aereement, such approval or disapproval shall be given within thirty (30) days following the receipt of the item to be so approved or di$approved, or the same shall be conclusively doomed t,:, have been a1>pr.,ved by such Party. Any disapproval shall specify with particul~rity the reasons therefor; provided, however, 1/20/'18 -137- ,., m n 0 ,., C "' ... "' . > .. I z C -m C, 0 n 0 ; C i i z I .... I -< • ... % > ,., ... m -< ~ • .. ... 0 0 ~ ~ ,., '" n 0 ,. Cl '" 2129 that wherever in this Agreement any Party is given the right to approve or disapprove in its sole and absolute discretion it ~ay disapprove without specifying a reason therefor. Wherever in this Ar,ree111ent a lesser period of time is provided for than the thirty (30) day period hercinabove specified, ~uch time limit shall not be applirable unless the notice to the Party whose approval or disapproval is required contains a correct statement of the period of time within which such Party shall art. Failure to sperify such time shal 1 :,c. t i nv al id a t.c the notice but si1::pl y f hall 1·equir :! the action of such Party within sai<l thirty (30) days. CD) ilr,y doc:urnent submitted for tile consent or apprc,val !';f any Party shc1ll cc.nt".iin a cover pac.e prominently reciting the ar;.-lical>le A&ree~cnt trticle involved, listing the date ~ailed, and if applicable, contair,ine iJ stnter~ent to the effe<'t that the docur:,ent or tlic !'act:; co11t,dr1ed uithin su<'h de>cument shall bc deen:cd approved "·!' cor,se•1ted to by the recipient unless the rec1pient makes an objection thereto within the cnrrcct ti~e specifi~d in such notice, whirh shall be .. ~; ...... "'''" . ..,, sp~ciiy ~ oii1erent period, If the tim~ specified in the nctice is in<'orrect or not set forth, the ti~e limit shall be thirty (30) days unless a lo~cer time period is specified in the Agreement, in wtich case the !oncer period of tifue shall control. failuie to specify such time shall not invalidate the n~tice but simply sb~ll rt~uir~ Lhe actio~ ~f such Party within said thirty (30) day period, ( E) Where.-cr in this Acreemen t provision is made for apprcv al "by the: Parties" such phrase shall rr.can the approval of all of the 27,5 hnreeffiont Bindinn on Successors and Assinns This Acrecmcnt shall be bindinc upon and inure to the benefit of tho successors and assiens of the Parties. 27.6 Heloasc nf Parties t.:xcept as respects the covenants ;;ct forth in Section 11:1.1 with respect to Hay, in Section 18.2 with respect to Penney, in Sections 5.1 thro:,eli 5.3, in<'lusive, and Section 18,3 with respect to 2131'18 -H8-2'/, /1(1>)-;,'/, (, 2130 Scars, in Sections 5.1 throuch 5.3, inclusive, and SecLinn 18.~ with respect Lo Federated, in Sections 5.1 through 5,3, inclusive, and Section 18.5 with respect to Carter, and Sections 6.2 throuuh 6,7, inclusive, with respect to Developer, the terms "May", "Penney", "Developer", "Sears", "Fedcr~ted" and "Carter", as used in this Agreement insofar as the terms, covenants, and provisio11s in I.his Agreement on the part of May, Pennuy, Duvelopcr, Scare, Fcdcr~tPrl and Carter, respectively, to be kept, performed and (\bserved nrc concerned, shall mean and refer to the Pers,:,n nr Pers"ns wh" are fr"m time to time the Party (as that term is defined ''err;n) wHh respect to the I-lay Tract, the Penney Tract, the Devel,:,pe;-Tract, the Sears Tract, the Federated Tract and the Carter Tract, respec- tivcly, and sajd respertive terms, covenants, and provisinns shall be binding on May, Penney, Oevel"pcr, Scars, Federated and Carter, respectively, and tl•cir respective succcss,,rs and assigns only durin~ and in respect of its or their successive peri,:,ds of being a Part..y Lo thi~ Agreement and u,on a sale, trans~er, or conveyance of any Pcrs<'n or P~rs".!ns' int<:r~st in the May Tract, the Penney Tni"t,, the Developer Tr&ct, the Scars 'fr:ict, the Fedel'ated Tract. "r the Carter Tract, as the respective case may be, which rc~ults in such Person or rersnns ceasinr, t'> be a Party, the respective p,rant•ir ( as respect:; any liability arising thereafter) '!hall thencefnrth stand released and discharged of any and all liability f,,r the keeping, performing, and "bserving of the resµective terms and C'>nditi,,ns and its respective covenants and agreements; provided, however, that the preceding provisi'>n·1 '>f this Secti,,n 27,6 shall apply only on the conditions: Cl) That at the time of any such sale, transfer, "r conveyance "f' U1e Hay Tract, the Penney Tract, the Developer Tract, the Sears Tract, the Federated Traci~ or the Carter Tractf th~ respective grantee I.hereof shall deliver tn the other Parties an executed and acknowlcdced instrument in recordable form assuming the terms, conditions, covenants, and aero,•1J1ents 1n th1s /11.p•cemcnt t" be kept, "bservcd, and pcrfr,rmcd by J L.:. N:S/1cct1vc B'":mt..,..r; l/20/'lB .139 .. ' "'l'I "'l'I -n -)> ,- ::it, m n 0 ::it, CJ u, ... u, )> z C -m G') 0 n 0 C z -t -< ... ::c )> ;a r-m -< "Tl . u, ,... 0 0 ~ ... 2131 (2) That any and all amounts 1-1hich shall then be due and payable by such respective nrantnr tn the other rarties or to any other Person nr rersnns as herein provided shall be paid t'> the other Parties <'r such nther Persnn or Persons, as the case may be; and (3) Th2t ~uch re~pc~t{vc cr~~tnr sh~lJ ~ive nntice tn the other Parties of such respective sale, transfer, or cnn- veyanee after the instrument effectine the same shall be filed fQr record. Notwithstanding the foree,:,ing, until the c,:,1r.;,le .. • . nf c•,n- st.rucLinn l'}f tho!.e; portions of the Developer !m;.r,:,vemcnts 11hich Devel,:,pcr is required to construct or cause to be constructed pursuant tn Sectil'}n 6.2 throueh 6.7, inclusive, PlazA Caminn Real sl,i!ll n<Jt be released of personal liability with respect to· sucl, c".>venant!> .:.s Devel".'pcr under this l,grccmcnt, nor shall The Hay St'>r e:s Shnppi n~ Centers, Inc. be rel c~scd '>f its r csp'>n-•· sibility as ceneral partner in Plaza Caminn Re&l. Any provision "r provisi'>ns of this t,nreemcnt which sJ,all prove, t'> be invalid, vol~, or ill~gal shall inn" way affect nr impair or invalidate any ".>tt.er pr".>vi si'>n thereof, and t;1c re- maining provisions herenf shall, nevertheless, remain in full force and effect, 27.8 Captinns The capti,,ns nf the Articles and Scctinns l'}f this Acreement are for c,:,nvcniencc only and shall not be considered or referred to in resolving questions of intcrprct~tinn and c'>nstruction. 27.9 Cnlifnrnia Law Governs This Aerecment shall be construed, interpreted, and applied in acc,:,rdancc with the laws of the State of California. £1.10 Atncndmcnt nf Ar,rccmcnt This Anrecmcnt may be amended r.>r t<:rminated o,ily by the anrcc- mcnt in 11ritin& of all the l'artics hcrct,, rccl'lrdcd in the land records ,,f San Dicg,, C,,unty, California, - l?./9/'17 -1110-27. 'f-2'(, l() - . .,, .,, -n -J> ,- ,a m n 0 ,a 0 en .... en J> z C m (i) 0 n 0 C z .... -< .... :c J> ,a r-m -< ""'l'I . GI r- 0 0 ~ .... ·1 . . . j. I f l 1-i 2132 :.) 27. 11 sa1e:-1.easeback; Lease-Leaseback (A) . In the ev.ent that any Party shall sell part or all of it~ Tract for the purpose. or financing the improvements· on its Tract, and shall ·simultaneously enter inti, & leaseback ot not less than twenty (20) years with such tee owner t whereby the seller shall have the possessory rtghts in said real property, subject to the terms or said lease·, then and in that event it is expressly understood and agreed that so long as said lease remain~ in existence the fee owner of such Tract. or porti~n thereof, shall. for the purposes of this Agreement be given all of tr,-, ·, _me rights and privileges or a Hortgagee undel" a Mortijage ol said 1·eal 1>roperty, and such fee holder shall not be subject to any obligation which ~ight be created pursuant to any or the provisions of this Agreement ~o any ~reater extent than would be the Mortgagee under a Mortgage. In the event of a11y termination of such leasehold interest, and notwithstanding any language in said lease preventing a merger of • title in said fee owner, such language in the lease shall not be and assigns of the obligations under and pursuant to the terms or this Agreement, (exclusive of the respective covenants t>f Hay, Penney, Sears, Federated and Carter as provided in Secti~ns 18.1, 18.2, 18.3 and 18.5, the exclusi.on '>f said Sections not being applicable if the lea~eh<'.>ld interest is terminated as a result ot a Par.ty lessee acquiring the fee interest); provided, however, that the fee int~rest shall not be subject to liens as provided fo~ herein which are superior to said fee ownership during the first twelve (12) months in which the leasehold interest and the fee· interest shall be held by the same Person, but thereafter shall be ao subject unless a new lease shall have been entered into which would ~therwise comply with the provisions or this Section 27.11 or the lease shall have been assigned to a new Person, in which event tho rights ot the fee owner shall Ct>ntinue as though no def~ult had taken place under said lease. In the event of the mereer or tho iitle to tho tee interest and the lcaaeht>ld interest in an owner as 1/20/78 • 27,ll((A) .; .. , ::'I , 1 ..... ) ) 2133 hereinabove provided for, then and in that event sooh owner shall. no longer be deemed to be a Mortgagee, The lessee under any quali- fying lease, as herein provided, shall be deemed a Party hereto so long as said lease is in existence. As used herein in this Section 27,11, the term "sell" or "sale and leaseback" shall be deemed to include any lease by any Party of all of its Tract for the purposes of financing the improvements on its Tract and simul tane-,us lease- back, and the provisions of this Section 27,11 shall apply .t-·. 'f"to; and the terms "owner" and "fee" shall include a lessee and leasehold under such lease and leaseback transaction in th~ same manner and with like effect. (B) The leases of the t-lay Tract, the Penney Tract, the Sears Tract a:.d the Carter Tract referred to in Recital C (ii), (iii), (i~) and (vi) of this Agreement shall be ~reated for all purposes under this Agreement as.qualifying leases under saleleaseback transactions covered by Subsection (A) of this Section 27,11 of sale-leaseback transactions) and the obligationsr liabilities, right~ and privileges of the fee owners of such Tracts shall, accordingly, be governed by the provisions of saJd Subse~tion (A) and the terms "Mortgagee" and Mortgage", as defined in Section 1.23, shall include.said fee owners and said leases, respectively. 27,12 Exhibits incorporated by Reference All exhibits referred to herein and affixed hereto are deemed incorporated herein by reference with the same force and effect as. if at each place of reference, in lieu of such reference, such respective exhibit were set forth in its entirety. 27.13 Locative Adverbs Wheneve·r in this Agreement the locative adverb "herein" is used, the same shall be made in reference to th~s Agreement in its entirety and not to any specific Artioles, Section, 6ubseotion or subpart thereof. 5/25/78 27.l HD)-27, 13 "'II "'II -· n -> ,- ,a m n 0 -a 0 "' - "' > z C -ffl G) 0 n 0 C z ... -< -::c > "' ,... ffl -< .,, • • ,- 0 0 :t ... 213~ 27.14 Obli8atlons Cease on TPrmJnation Date (A) !his Agreement, and all the rights, powers, privileees, immunities, obligations and covenants or the ParttP.s rP.spP.ctivPly (except a~ provided in thP. following Subsection (B)), shall terminate on Termination Date; provided, however, the occurP.ncP of Termination Date and the tPrmination of this Agreem~nt shall not be deemed to release any Party from liability to thP other f"or the breach of any obligations which occurrPd ~r ,or t.o TPrrni- nation Date. ,S,s,et'/<7ns /t?. / ond' /tJ. 5 t'ea,M as-set fort// .111 SP.ct./0;1 /(l. Tl s/Jal I survivP. TP.rmination Date and continue there2ftPr respPcti~Ply in accordance with tne rPspective terms of such respective Sections. 27,15 No Mechanics• Liens All lll""Cha1dcs'. materialr,ien•-:, or 5imilar Jiers on th" :) .. v,,.J- oper Tract and the Public Parking Area shall bP promptly dis- charg~d or caused to be discharged by DevPloper. Wherever under the terws of this AgreP.ment any Party is permitted to perform any work upon the Tract of anothP.r Party, it is P.Xpressl y undPr- stood and agreed that such Party will not permit any mechanics', materialmen•s or other similar liens to stand against the Tract upon which such labor or material has been furnishP.d in connection with any such work pP.rformed by any such Party, and pur~uant to s-.ction 9.6, shall indemnify the Party whose Traot is so ,mcum- bered against all costs, expenses, and liabilities in connection therewith, includint reasonable attorneys• fees and court costs. Such Party may bond and contest the va11d1ty or any ~uch Jien but upon final dP.tP.rminatJ~n of the validity and the amount thereof, such Party shall JmmP.dJately pay any judgmP.nt rendered, with alJ ""---~~.........__~~~~'o::S::~-.:i,,~,-p; '"'..,.,.,n,s• ---~---...-.~, ............. ~~~. 6112178 -J'f 3- C -m G) 0 r, 0 C z -f -< ... :c > -'D ,- ffl -< .., • IP ,- 0 0 ~ ... 21 • 111-n • 1 s ·~- . .., "'l'I -n -> r- ;:IICI m n 0 ,;..z:, ~ ~ 27.14 Obligations Cease on Termination Date (A) This Agreement, and all the rights, powers, privileges, immunities, obligations and covenants of the Parties respectively (except as provided in the following Subsection (8)), shall terminate on Termination Date; provided, however, the occurence of Termination Date and the termination of this Agreement shall not be deemed to release any Party from liability to the other for the breach of any obligations which occurred prior to Termi- nation Date. (B) The easements~ covenants running with the land, and respective rights set forth in Sections 10.2 and 10.3 and in Sections 10.l and 10.5 (each as set forth in Section 10.7) shall survive Termination Date and continue thereafter respectively in accordance with the respective terms of such respective Sections. 27.15 No Mechanics' Liens All mechanics', materialmen's or similar lie~s on the Devel- oper Tract and the Public Parking Area shall be promptly dis- charged or caused to be discharged by Developer. Wherever under the terms of this Agreement any Party is permitted to perform any work upon the Tract of another Party, it is expressly under- stood and agreed that such Party will not permit any mechanics', materialmen's or other similar liens to stand against the Tract upon which such labor or material has been furnished in connection with any such work performed by any such Party, and_ pursuant to Section 9.6, shall indemnify the Party whose Tract is so encum- bered against all costs, expenses, and liabilities in connection therewith, including reasonable attorneys' fees and court costs. Such Party may bond and contest the validity of any such lien but upon final determination of the validity and the amount thereof, such Party shall immediately pay any judgment rendered, with all proper costs and charges, and shall have the lien released at such Party's expense. 6/12/78 -143-27.14-27.15 2135 27.16 Breach Shall Not Permit Termination or Def~at Mortnage CA) It is expressly agreed that no breach of this Agreement shall e»title any Party to cancel, or rescind or otherwise terminate this Agreement, but such limitation shall not affect, in any manner, any other right or remedies which the Parties may have hereunder or by law by reason of any breach of this Agreement. (B) A breach of any of the terms, conditions, covenants, or restrictions of this Agreement shall not defeat or render i~valid the lien of any Mortgage made in good faith and for valuP, but such term, condition, covenant or restriction shall be binding upon and effective against any Person who acqui:es title to sold property or any portion thereof by foreclosure, trustee's sale or otherwise. 2:.17 Use of Words "Include" and "Including" As used in this Agreement, the words "include" and "includinc" shal 1 be deemed to mean_, respective) y, "includP wi t.hout 1 imi tatio11" and "including without limitation". (A} The necessary ar,·a11gemer,ts to permit the co11structior1 and operatiori of the Phase II-0 Public Parking and the con:;t:-uc:tion and operation of the Carter Store in accordance with this A~reement have not yet been concluded. Developer's obligations to construct and operate the Phase 11-0 Public Parking and Carter's oblieations to construct and operate the Carter Store in accordance Qith this Agree- ment are subject to the conclusion of such arrangements. When such condition is satisfied, Developer and Carter shall jointly give the other Parties writtPn not.ice that such condition has bPPn sat.isfiPd, Upon satsifaction of such condition, Developer shall convey the Carter Tract to Carter in accordance with the provi~ion5 of a separate agreement between Developer and Carter. 1978: ln the event such condition has not been satisfied by July 25, (l) The P.\anned Carter Opening Date shall bP. extP.r1ded until fifteen (15) months after such condition is satisfied, unless, as a rP.sult of such extensjon, the Planned Carter OpcnJng l>atP. would fall bP.tWP.P.n October 1 of ar1y year and the 5/10178 -1'111-27,16-27,18 '"'Tl '"Tl -n -J> ,... ~ m n 0 ~ C u, ... u, > z 0 -m G) 0 n 0 C z ~ -< ... :c J> ;:la r-m -< '"'Tl • DI r- 0 0 3: ... ;:la m n 0 :JD - 2136 next succeeding January l, or during the thirty-day period prior to Easter Sunday, or the period from May 1 to August 1 of any 7ear, in which event the Planned Carter Openi~g Date shall be further extended to the next succeedin& date which does not fall wiLhi;i such perfod:;; ar,cJ (2) In lieu of improvin~ the Phase II P~blic Parking Land, as shown on Exhibit C, Developer, as part of the Phase Il Developer Constructior1, shall improve the Phase II Public Parking I.and, as shown on Exhibit. L, and furl"er "'hall improve the Carter Tract as Common ,\rea, as shown on Exhio:i. t l... (B) Deve1over a11d Carte,· have agreed that if th~ afore- mentioned condition has not been satisfied by August 1, 1981, or . if Oev<!loper and Carter mutually determine prior to that date that satisfaction of said condition ;;.s not feasible, "couomically <>r otherwise, then, in that event, the lease of the Carter Tract by Developer to Carter shall terminate in accordanc~ with the provi- sions of a separate agr<'P.ment between Developer ?t1°d Carter. Devel- other Parties. Prior to the recordation of the instrument executed by Carter or Developer acknowledging terminalion of said lease in the o1 fice of the County Recorder of San Di ego County, Carter shall execute and deliver to Developer the amendment to this Agreement hereinafter refP.rred to in this Subsection (B). Upon the recorda- tion of said instrument ackriowledgins termination in the Office of the County Recorder of San Diego Couuty, thP. following shall auto- matically occur without the necessity of any further action by any under this Agreement. (2) The Carter Tract shol l become part of the Developer Tract under this Aereement. The Planned Floor ArP.a of the Developer Tragt ~hall not be increased by reason of said expar1sJon of th•• Developer Tract. (3) The Dev~loper Tract shall not be deemed to include the Phase 11-0 Public Parking Land .:rnd the PhasP. IJ-0 Publ fc ParkJ ng Larid shall no JoneP.r be part of the Shoppf ng c,rntr.r Site and shall cP.ase to bP. subject to this AcrP.ement. S/101'{8 -111 !>-?.'(. 18 ,a m n 0 ~ 0 ffl ,a -n -n -n -> r-,., m n 0 ,., C "' ... "' > z C -m (i) 0 n 0 C z .... -< ... next succeeding January 1, or during the thirty-day period prior to Easter Sunday, or the period from May 1 to August 1 of any year, in which event the Planned Carter Opening Date shall be further extended to the next succeeding date which does not fall within sunh periods; and (2) In lieu of improving the Phase II Public Parking Land, as shown on Exhibit C, Developer, as part of the Phase II Developer Construction, shall improve the Phase II Public Parking Land, as shown on Exhibit L, and further shall improve the Carter Tract as Common Area, as shown on Exhibit L. (B) Developer and Carter have agreed that if the afore- mentioned condition has not been satisfied by August 1, 1981, or if Developer and Carter mutually determine prirr to that date that satisfaction of said condition is not feasible, economically or otherwise, then, in that event, the lease of the Carter Tract by Developer to Carter shall terminate in accordancie with the provi- sions of a separate agreement between Developer and Carter. Devel- operand Carter shall each give notice of such termination to the other Parties. Prior to the recordation of the instrument executed by Carter or Developer acknowledging termination of said lease in . the office of the County Recorder of San Diego County, Carter shall execute and deliver to Developer the amendment to this Agreement hereinafter referred to in this Subsection (B). Upon the recorda- tion of said instrument acknowledging termination in the Office of the County Recorder of San Diego County, the following shall auto- matically occur without the necessity of any further action by any Person: (1) Carter shall cease to have any rights or obligations under this Agreement. (2) The Carter Tract shall become part of the Developer Tract under this Agreement. The Planned· Floor Area of the Developer Tract shall not be increased by reason of said expansion of the Developer Tract. (3) The Developer Tract shall not be deemed to include the Phase II-0 Public Parking Land and the Phase II-0 Public Parking Land shall no longer be part of the Shopping Center Site and shall cease to be subject to this Agreement. 5/10/78 -145-27.18 6/21?8 2137 ~~~-----~~ ......... ~ .. ~....._~~~~-....~ ~"\."\. -r,it,"t,~~,-:. \.~ '\.~\., "'-~~~,~~ .......... ~ ~'1,,"\-.'\..~'\.., ~ ,"\-.,."'\."\. '"-~'t,~\., .... "t oe deemed to TefeT to said replace~ent E1bi~it C ~foT~eTll i.1'n\.o\. t \.) • Al though no further action shall be necessary to bring about the forego1ng results, nevertheless, Developer, Hay, Penney, Sears, Federated and Carter shall enter into an amendment to this Agreement confira1ing that the foregoing results have occurred and shall record said amendment in the Office of the County Recoro.;:• ... :' San Diego County. ARTICLE 26 REACOIJ1S1T10N OF THE PUBLIC PARKING In t.he event. the Parking A•lthority at any time and from time to time shall seek to transfer or seil the Public Parking or any por- tion thereof (excluding a transfer from one governmental agency to another governmental agency, which is subject to the provisions of the Public Parking Documents), the Developer shall use reasonable tion thereof by any Person from the Parking Authority or any other governmental agency, shall continue to be deemed part of the Common Area on the Develop~r Tract for all purposes of this Agreement. IH WITNESS WHEREOF, the Parties hereto have executed this Agree- ment as of the day and year ( 28 ... ::ig ffl n 0 "' 0 ffl ::ig Ji t f ~· ! ATTEST: 6/2178 2!38 FEDERATED DEPARTMENT STORES, INC. By~~2n~ lzecat1Ye Vlce Plteallellt VICE PRESIOE1(11 -1117- ' ,,, .., -n -J> ,- ~ m n 0 ;o C "' ... "' . J> z C -m Ci) 0 n 0 C z, .... ,< ... ::c J> ~ r-m ,< "Tl GI ,- 0 0 ~ ... STATE OF CALIFORNIA ) ) ss. COUNTY OF LOS ANGELES) On /lu(l«.5/#11 ~ 2139 , 1978, before me, the under- signed, a Notary Public in a11d for said State, personally appeared j/,,-~ .::::r ~ /JJ. //o.,n?1J , knowri to me to be the 0 c e /ft:"'::;;../e/JT and faeqt'/~e:? ~~f , known to me to be/C:1"'r'ifi° .. ;Af'sr~?'sa~PIHG CEtlTERS, IN°C., the corporation that executed the within instrument and known to ~e to be the persons who executed the within instrument on behalf of sc:1· · _corporation, said corporation being known to me to be one or the partners or PLAZA CAMINO REAt, a limited partnership, the partnership that executed the within instrument, and acknowledged to me that such corporation executed the same a~ such partn~r and that such partnership executed the same. WITNESS my hand Notary Public/ •"' STATE OF Lee. ,?h,rn,;4..) / ) ss. COUNTY OF LrJj~e/c."-< ) On a-qr/_<7 .J? r,.( , 1978, before me, the under-:? signed a Notary Public in and for said State, personally appeared "7b .6 e-:r / E. Cr J: , known to me to be the (/,. c c h e-s .. -~,;, r and ,..j,..zu-~e g-.n 1 , known to me to / ..... 0 be.a'~ /I'-.~/. 5:-t".rC!T.-a.-f of THE HAY DEPARTMENT STORES COMPANY, the d corporation that executed the within instrument, known to me to be the persons who executed the within instrument on behalf of the corportion therein named, and acknowledged to me that such corpor- ation therein named, and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a reso- lution of its board of directors. ~.. WITNESS illy hand and zrrJ. l seal, / ~ oma"':l";;':1t""'"''!! ' < . f !lr./,!/.J V£tlONICA &480 I ~~.-t".6?' LC.,..-'-'AA"~ ff ;11· • r-,.$.:_,,!,;/ l/()F4flJ' I-U3/ IC Cil/1/'l'a I ? ,-• r , X,7/jf' Ir;,;~-, • wNIA '() ;Jr .F ·,c,J/v;ce,1: . .,. ··~"£J'CD.:/hrr '}' 'I.I ,iJ11;,,1J.?,r,1J:,::~ns,u:1,1,1,;.S::'' :.A"11_11e, lkl I.?. l.98/ ~ ..... ~.,1-'J,1.,;,,1/':.-1,.:4;.,r,,,,;,n 8/q/78 -Jq8- STATE orfle/Af jM~K COUlfTY ortJet1 )'b If ll ) > as. ) On aJJ#~ ]} , 1978, before m~, the under- signed a Notary Public in and for said State, personally appeared R. E. MOKTAG , known to me to be the ,-_,,,,,, ~---~~---- and :r: OA v, () 1f LVeA 5 , known to me to be lit.-• ' ot J.C. PENNEY COMPANY, INC., the corporation that executed the within instrument, known to me to be the persons who ex<·".lut,,.'1 the within instrument on behalf or the corporation therein namea, and ackno~ledged to me that such corporation executed the within instru- ment pursuant to its by-laws or a resolution-or its board of directors. WITNESS my hand and orrical seal. • EUZA8ETH Ot FULVIO NOTMtt PU8UC.SINot .... 't-" No. 4l.:.t632326 Qu9llled In 0--,. c.lllY C)ertillmte 11111111'1 New Torie Coulll'I Ca111miwl1111 Exphs March 30, 1980 STATE OF t:;'11.;Fe111:• ) ) as. COUNTY OF I.•$ /lll,f,;-E4E~ ) . Oil ~/J~,.,•~:x.:SLJT~...:.Y~,.,,.__;/~f..:7..:1;;.._ ___ • befo,:e 111e, the unde1:sign.ed, a Hota,:y Public in end fo,: said State, personally appeared J. ~. BOIINE knOlnl to me to be the Territorial Facilities Planning Manager of the corpcn::ation that executed the within inatruaent, md known to me to be the person who executed the vi thin inatr-nt on behalf of the corporation therein named, and ackDowledged to me tl:aat such corporation executed the within instrument pursuant to its by-laua or a resolution of its board of director11. Vl'DIESII ., .... -· officid .. ~.6;«.&:..:_ OFF1e1AL SEAL No tar u c DOTTY ADANALIAN • HOTAIW il'U811C -CALltOIINIA l'lt•NCIPAI. omct IN LOS ANGILU COU.._ IIJ Cnnlalan &,ires Sept. 30, 1980 8111178 -lll9- - ; .,, .,, -n -> ... "' m n 0 "' C "' ... "' . > z C m Ci) 0 n 0 C z -t -< ... :c > ;a ... ffl -< .,, . GI ... 0 0 3 ... STATE OF ~~ COUNTY OF~ ) ) ss. ) On _...,.1..s.,,~~~-'-------' 1978, before me, the under- signed a Notary and for said State, personzlly appeared LAWRENCE M. ISMCI , known t<> me to be the hecativo Vice l'res1deat _____ ......, _______ _ and .-a. Rm~in , known to me to be ___ Ass_'L_s«n_1111 ___ _ of FEDERATED DEPARTMENT STORES, ItlC., the corporation that executed the within instrument, known to me to be the pe!'son ... wl'I-" executed the within instrument on behalf of the co!'poration ther~in named, and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of its board of directors. WITNESS my hand and offical seal. f..,r;!: , :·.': · ! .• • ,.;,, :, ' II., C .. 'l ;;,,.;. •• :. l,, 1 -~ .:.~ l. I'JJ2 STATE OF (!_.JJ_Lt.µ.. ..... Jt...._<. ) ,l (, ) ss. COUNTY OF,>:: j(,.-,(L ?f ..L( c...,,., ) On a ..... 7,,-c./'-// , 19'!8, before me, the under- s1gned a Notary Publ1~n and tor satd State, personally appeared ------------' known to me to be the ---------- • J MCYER , known to me to be .... .,. nc,uT .. ,.Y -----and ----------of CARTER HAWLEY HAL£ STORES, me., the corporation that executed the w1tb!n instrument, known to me to be the persons who executed the w1th1n instrument on behalf of the corporation the_re1n named, snd acknowledged to me that such corporation executed the within instru- ment pursuant to its by-laws or a resolution of its board of directors. WITNESS my hand and offical seal. ~ 'f 4 tlla11,.., Notaryuic 8/4/78 -150- ., ., -r -)I ... ;i&:I m r, 0 ,a C VI ... VI J> z C -m Ci) 0 n 0 C z _, -<' ... :r >; ~I ,-I ml -< J "Tl 0, ,... 0 0 ~ ... 21~2 AGREEMENT OF FEE OWNER OF MAY TRACT The undersigned, MAY PROPERTIES, I~C., a Delaware corporation, fee owner of the May Tract, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, does hereby subject its fee estate in said Tract to the foregoing 6-Party Amended and Restated Construction, Operation and Reciprocal Easement Agreement and joins in the grant of easements contained therein. In no event shall the undersigned be personally or otherwise ~ir :e for the performance of any of the provisions of the Agreement, except in accordance with Section 27,11 thereof. MAY PROPERTIES, INC. A Oelaware,Corporation By .I / (~./.~---,• .. (_ . ( (. By STATE OF ,C~k,,,.,,,e.z. ) . / ) ss COUNTY OF £#r-/7"/Je/t'J) On ~-~---~~t".~"2:o<.....c.··/.;...:...;·~~~~--~-~~/'---,/.~~--~-"tf' ____ before me, the undersigned, a Notary Pubfic in and for said State, personally appeared ;fb,6<:H f--ceA J-:--;, · / J/ c..;.,__. ___ ...,0""?r------· known to me to be the / re //'t:",:$.1de~ ---· and -~c-su.e!he K.~1~....:..· .,,____· ------ know:-: to me to be ~.::-.-:-. /' _t;;;.rrt>X.4"'£1 of the d corporation thaL executed the within instrument, known to me to be the persons who executed the within instrument on behalf of the corporation therein named, and a,cknowl edged to me that such cor- poration nxrlcuted the within instrument pursuant to its by-laws or a resolution of its board of directors. WITNESS my hand and official seal. . ~~c-!Lt·<L_,_ tllllllllllNIIIIIUIIIIIUIIHIUl.,,.IIIIIHIIU ...... IIU a OmCIAL SEAL I E ~'\ SUSAN E. PETERS ! (tre.":J.ifi~ IIOIMIY PIJBLIC • CAUFORIIIA ~ (,'.'f!;~jpJ lOS AtlCELES COUIITY 5, : '<.;-ta,Y 111 Commiu:i111 Ei\pi,H Ocl. 2, 1981 ji .:..,,11,.,11,11.;11111!,1tt::111111n.......,.01.......,..., 5/10/78 lfotar?ublic -1- ..;4.a- AGREEMENT OF FEE OWNER OF PENNEY TRACT The undersigned, NEW MARJORAM ASSOCIATES, a New York partner- ship, fee owner of the Penney Tr~ct, for valuable consideration, the receipt and sufficiency of which are hereby ac!~r-owl edged, does ,-~~-, ~in>'ye'lh. "':l"t.'S 'tee e'S't.a'te "ln salcl Tract to the foregoing 6-Party Amended and Restated Construction, Operation and Reciprocal Easement Agreement and joins in the grant of easements contained therein. In no event shall the undersigned be personally or otherwise liable for the performance of any of the provisions of the Agreement, except in accordance with Section 27.1; ';~"eof. NEW MARJORAM ASSOCIATES A New York Partnership By\v."-~\ \ 1~ · ·-"' ________ \ _______ _ STATE Of NEW yo~K) ) ss COUNTY OF New yc;t/:......) On Av6uST /O , 1978, before me, the undersigned, a tlotary Public in and for said State, personally appeared /JELS1fl) I:L11~1A- known to me &IIIC to be ~of the partners of ~EW MARJORAM ASSOCIATES, the partnership that executed the within instrument, and acknowledged to me that such partnership executed the same. WITNESS my hand and official seal, ·,, / 2115178 -!- '10 '" n 0 ',cl Cl '" '1fl AGREEMENT OF FEE OWNER OF SEARS TRACT The undersigned, PLAZA CAMINO REAL, a California limited partnership, fee owner of the Sears Trac~, for 1aluable consideration, the receipt and sufficiency of which are hereby acknowledged, does hereby subject its fee estate in said Tract to the foregoing 6-Party Amended and Restated Construction, Operation and Reciprocal Easement Agreement and joins in the grant of easements contained therein. In no event shall the undersigned be perso.nally or otherwise liable for the performance of any of the provisions of the As~~ .~nt in respect of said Tract, except in accordance with Section 27.11 thereof. Dated: PLAZA CAMINO REAL By: The May Storns Shopping Centers, Inc., STATE OF CALIFORNIA COUHTY OF LOS ANG!:LES ss a Corpor_a.tio,n, . Sole. ~ener~7' Par_t:er By I·'\. ('.'::St: h T(. ,' ~f.., _ _. 7 .-, .• t- -~ ~-i1'.'~~10f~~: ' <'~) By ,· ~J--Y vs . •/ ,(.ta---- / ASSISTAI.T S£ClltTA1t( On ,t;;,.,e/,1":./// , 1978, before me, the under-,?' signed, a Notary Public in and for said State, personally appeared ,Z 6c-·.,. / L-L-~-J=f , known to me to be 'the '7f ,:"'~,-,/ed an~.;~ '6c.~:,-/ /. A.:-/,,,f , known to me to be the A?.111/... ~er.et";;;,of THE HAY STORES SHOPPING CENTERS, INC, the corporation that executed the within instrument and known to me to be the persons who executed the within instrument on behalf of said corporation, said corporation being known to me to be one of the partners or PLAZA CAMINO REAL, a limited partnership, th~ partnership that executed the wi1;hin instrument, and acknowledged to me that such corporation executed the same as such partner and that such partnership executed the same. Lfi~• '. 1 :;,~("' .!Pf .01.00 .1Ad p/./..rc~ se.1J, / /., . •-"~ {tffi:. ri IIOfAIY PlllllC·CAUfOINIA -~'/ .da,.,,,( J" "7/:1' ....l'L..--i 'I, tOS AWGEtES COi/i/Tr -f:-"::.t:=~~:""";-~~~-i";:-::=:-'---..... ,'-""""'-.-....,""'---: M1Comritss,onc,~,,,s0cr.2.1ga1 i' NO'l: RY PUBLIC ,......,,,,,,,.,,..,,,,,,,.,,,,,,,,,,,,,,,,,.,,.,, .. HHHIN --- 21~5 ,. ·1 AGREE~ENT OF FEE OWNER OF CARTER TRACT The undersigned, PLAZA CAMINO REAL, a California limited partnership, fee owner of the Carter Tract, for valuable consideration, the receipt and sufficiency of which are hereby a~knowletle,d, does hereby subject its fee estate in said Tract to the foregoins 6-Party Amended and Restated Ccnstruction, Operation and Reciprocal Easement Agreement and joins in the grant of easements contained therein. In no event shall the undersigned be personally or otherwise liable for the performance of any of the provisions of the Agreement in respect of said Tract, except in accordance with Section 27.11 th~,~~ . STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) PLn~A CAMINO REAL By: The May Stores Shopping Centers, a Corporatian, Sole Gene}i8i Partper / I l~--~ By /, '-., t ,1 . 7(,/ '-(._. ( 1.-/ .. 7 -P~tsp.1El·IT • • ,_.. ' By .. ,/. -<1 ,,,: ·-::::-, 1<,:;. · · -·-·r ~·r-.-.-;,.-:,-,.1 On ~-f'.ri :/~/· // , 1978, before me, the under- ,/ signed, a Notary Public in and for said State, personally appeared Inc., '?c6r1,,,,/ E. 6'"e/1 , known to me to be the "?r~.:.,,,c/ed ~ /:kr.6,>;,r// :f£.·//J , known to me to be the~$/. ~~1ei.,~ of THE MAY STORES SHOPPING CENTERS, lNC, the corporation that executed the within instrument and known to me to be the persons who executed the within instrument on behalf of said corporation, said corporation b~ing known tom~ to be one of the partners of PLAZA CAMINO REAL, a limited partnership, the partnership that executed the within instrument, and acknowledged to me that such corporation executed the s~me as such partner and that such partnership executed the same. WIThESS ~Y nana ~r.d official seal, I ;. • f • J ' • -' f C • -C C ... C l • 4 C • ' C C ' ( C • ... • • ... --l ' r ,, -., • Cl r ( ( .. ... -... , " r ( , C: " , 21~6 AGREEMENT OF FEE OWNERS OF NOH-MALL BUILDING SITE I The underslgned, PLAZA CAMINO REAL, a California limited partnership and THE MAY DEPARTMENT STORES COMPANY, a New Y~rk corporation, fee owners of Non-Mall Building Site I, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, do hereby subject their fee estate in said site to the foregoing 6-Party Amended and Restated Construction, Operation and Reciprocal Easement Agreement and Join in the gr;,t r ease- ments contained therein. In no event shall The May Department Stores Company be per~onally or otherwise liable -for the performance of any of the provisions of the Agreement in respect of said site, except in accordance with Section 27.11 thereof, said site being part of the Developer Tract under the Agreement. Dated: #.--7,·r~/~ /y'7? 2/151713 PLAZA CAMINO REAL By: The May Stores Shopping Centers, Inc. a Corpora,tion, ' ,, THE MAY DEPARTMENT STORES A New YorkJOrB,Pration _,,,/ By ...,,~__,..__....~"---<---<i::::,,,''--i:::o,""""c....a::--:-L-_,,,_.; ,. '., ., -(" -, ,. ~ " (" C :;II C u .. " , 2 C -n (i C ( C C ~ --.. :I J ' r l'I -• C ' C C • .. • ... • ' I • 4 STATE OF CALIFORNIA COUNTY OF LOS ANGELES ss On /11'~.Y~/~/ .9' 21~7 , 1978, before me, the under- signe~, a Notary Public in and for said State, personally appeared ~:.6 t!_,..-/ E. &eg . , known _!:_o me. to be the 7/r:-: /rh' u '7' and ~;-,,.,,4~,,.//. 4-A, known to me to be the /l:~.; r.~7~~-of THE HAY STORES SHOPPING CENTERS, INC, the corporation that exe~uted the within instrument and known to me to be the persons who executed the within instrument on behalf of said corporation, said corporation being known to me to be one of thr partners of PLAZA CAMINO REAL, a limited partnership, the part~ersn·~ that executed the within instrument, and acknowledged to me that such corporation executed the same as such partner and that such partnership executed the same. WITNESS my hand and officialr5eal. ~ / . ~----~~:-~~ ~..........-~,;::.::::::~··:- ss onA"'i··/ . .,.,/ // , 1978, before me, the undersigned '~ _L a Notary Public in and for :;aid State, personally appeared ~,,14,.-;,·T / ,/ ·» / . £ -6 e../J _, known to me to be the / ,,;~ e· /> ,· ::/ L/ e-· n-/ and /~·:,hc.r/ ~ 2?,//f , known to me to be ,,,¢...,~./.S.:.-rt"../;... l"•j of ,,.-j THE MAY DEPARTHEHT STORES COMPANY, the corporation that execuf:·ed the within instrument, known to me to be the persons who executed the within instrument on behalf of the corporation therein named, and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of its board of directors. WITNESS my hand and official seal. ., .. @,FIIIIBl-llffl~~T--, c... ~ £_' • ~ VERONICA SZABO ..--, ' f .,:,r IIOTAIY l'IIBllC CAUIOiim~ § ,~~~.<-4'"' ~ ~ :, • .., LO$ AIIGllU CIJIJNfY "l __ li ~ u,1:ontm,1s..nt•JN1HlkLl2.193J :1 tlotary Publlc 7 ' •• , .... :,:, ..... .,.,.,...,,.,,,," ... '."'·''"''"· .••• ·:. ;,1 2/15178 -2- C ( ( C -• --.. ::J , ;I r " - ~ • e r ( ( • .. .. ... ' ' t C ' I ' ' Exhibit A, Part l Legal Description of Shopping Center Site The following land in the City of Carlsbad, County of San Diego, State of California: Lots l through 29, inclusive, of Carlsbad Tract No. CT-7618 (Plaza Camino Real Shopping Center) according to Hap No. 8956 filed in the Office of the County Recorder of said County on August 11 .• 1978, Excep~ from any portion of said land, all mineral rights and all oil, gas, petroleum or other hydro- carbon substances within or underlying said land without right of surface entry as reserved in deeds executed by Reginaldo Marron and Carolire Marron, recorded in Book 6699, Page 26U of Off1~ia~ ~ecords, and Book 7712, Page 477 of Official RecoraJ Also except from any portion of said land, all of the oil, gas and mii,erals and mineral rights, lying beneath a depth of 500 feet from the surface of said land, together with the right of entry at any point in such land lying bel~w said depth for the purposes of ex-ploring, drilling, conveying and removal of any such substances and installation of equipment and pipelines for such purposes, provided that any such entry and activity upon said land for such purpose shall be carried out in such manner as to avoid any interfer- ence with the use of the surface of said land, as excepted in deeds, from FAWCO, a partnership, William S, Bartman, Fred A. Bartman, Jr., Bernard Citron and Harry J.L. Frank, Jr., recorded April 21, 1966, Recorder's File Hos. 66913 and 66568. The following land in the City of Oceanside, County of San Diego, State of California: A parcel of land situated in the City of Oceanside, County of San Diego, State of California, being a portion of the northeas~ quarter of Section 31, ~cwnship 11 south, Range 4 west desc ·ibed as follows: Beginning at the southeast corner of the north half of the northeast quarter of Section 31; thence along the south line of said north half, north 89'42'1911 west, 325.70 feet to the true point of beginning; thence north 89'42'19" west, 1150.70 feet; thence leav;..ng said south line, north 46' 36'53" east, 143.87 feet; thence north, 312.85 feet; thence north 88'00'18" east, 543.32 feet; thence north 89"41'28" east, 500.04 feet; thence south 0'24'11" east, ~39,22 feet to the true point of beginning, EXHIBIT A, Part 1 8/14/78 -1- Exhibit A -Part 2 Legal Description of Phase I Land The following land in the City of Carlsbad, County of San Diego, State of California: Lots l through 13, inclusive, and Lots 16, 20, 22 and 26 of Carlsbad T!"act No. CT-7618 ('Plaza Camino Real Shopping Center) according to Map No. 8956 filed in the Office of the County Reco?"der 01 saw-county on August 11 , 1978. Except from any portion of said land, all mineral rights and all oil, gas, petroleum or other hydro- carbon substances within or underlying said land without ?"ight of surface entry as reserved 1.• d •ds executed by Reginaldo Marron and Ca!"oline Marr~.· recorded in Book 6699, Page 264 of Official Records, and Book 7712, Page 477 of Official Records. Also except from any po?"tion of said land, all of the oil, gas and mine!"als-and mine?"al rights, lying beneath & depth of 500 feet from the surface of said land, together with the right of entry at any point in such land lying below said depth for the purposes of ex- ploring, drilling 1 conveying and removal of any such substances and installation of equi~nent and pipelines ·for such purposes, provided that any such entry and activity upon said land for su~h purpose shall be carried out in such manner as to avoid any interfer- ence with the use of the surface of said land, as excepted in deeds, from FAWCO, a partne?"sh1p, William S. Bartman, Fred A. E:?rtrnen, J ... , Bernard Citron end He .. ry J.L. Frank, ~r., !"ecorded April 21, 1966, Recorder's File Nos. 66913 and 66568. EXHIBIT A, Part 2 8/14/78 -1- 2t50 Exhibit A -Part 3 Legal Description of Phase II Land The following land in the City of Carlsbad, County of San Diego, State of California: · Lots 14 and 15 and Lots 17 Lot 21 and Lots 23 through Carlsbad Tract No. CT-7618 Shopping Center) according filed in the Office of the said County on August 11 through 19, inclusive, 29, inclusi,e, of (Plaza Camino Real to Map No. 8955 County Recorder of t 19780 Except from any portion of said land, all mineral rights and all oil, gas, petroleum or other hydro- carbon substances within or underlying said land without right of surface entry as reserved in deeds executed by Reginaldo Marron and Carolin• Ma•ron, recorded in Book 6699, Page 2611 of Officia:. ,e~ords, and Book 7712, Page 1177 of Official Records. Also except from :my porUon of said land, all of the oil, gas and minerals and mineral rights, ~ying beneath a depth of 500 feet from the surface of said land, together with t.ue right of entry at any point in such land lying below said depth for the purposes of ex- ploring, drilling, conveying and removal of any such substances and installation of equipment nnd pipcl~nes for such purposes, provided that any such entry and activity upon said land for such purpose shall be carried out in such manne~ as to avoid any interfer- ence with the use of the surface of said land, as excepted in deeds, from FAWCO, a partnership, William S. Bartman, Fred A. Bartman, Jr., ·Bernard Citron and Ha!"ry J.L. frank, Jr., recorded April 21, 1966, Recorder's Fil~ No~. 66913 ?n~ 6~568 . .The /o.J.Jo.r,,.fn; .I.and .in the CJ t.Y of Oae.ans.Jde., County o.l' Sa,, l)J ego., ~A:-'A:V'"~/~~~, -" p1rPe,/ o/ ,/1//d' s/cu;ced' /d cne ffcf o/ a-e1ds/d'4', County of San O.lego, State of Ca1.lforn.la, be.inc a portion or the n~rtheast quarter or SPction 31, Township 11 south, Range 4 west described as follows: Beginning at the southeast corner of the north half of the northeast quarter of Section 31; thence along the south line of said north half, north 89'42'19" west, 325.70 feet to the true point of beginnfng; thence north F9'42'19" w~st, 1150.70 feet; thence leaving said sout~ line, north 46'36'53" east, 143.87 feet; thence north, 312.85 feet; thence north 88'00'18" east, 543.32 feet; thence north 89''-1'28" east, 500.011 feet; thence south 0·211 11111 east, 1139.22 feet to the true point of beginn{ng. EXH IDIT A, Part 3 8/14/78 -1- • -... :::l J ' r r - • C r C C 3 ... ~ " r C ~ C " ~ . . 2151 Exhibit B -Part l Legal Description of Portion of Developer Tract Owned by DevelopeP Alone The following land in the City of Carlsbad, County or San Diego, State of California: Lots 2 through 6, inclusive, and ~ots 13, 17, 21, 23, 27, 28 and 29 of Carlsbad Tr~ct No. CT-7618 (Plaza Camino Real Shopping Center) according to Map No. 8956 filed in the Office of the County Recorder of said County on August 11 , 19J8, Except from any portion of said land, all minepal rights and all oil, gas, petr'oleum or other hydro- carbon substances within or underlying said land without right o·f surface entry as reserved in de1;~~li executed by Reginaldo Marron and Caroline Marron, recorded in Book 6699, Page 26q of Official Records, and Book 7712, Page 477 of Official Records, Also excep~ from any portion of said land, all of the oil, gas and minerals·and mineral rights, lyine beneath a depth of 500 feet from the ~urface of said land, together with the right of entry at any point in such land lying below said dept.h for the pu!"poses of ex- ploring, drilling, conveying and removal of any such substances and installation of equipment and pipelines for such purposes, p!"ovided that any such ent!"y and activity upon said land for such pu!"pose shall be carried out in such manne!" as to avoid any interfer- ence with the use of the su~race of said l~~d, as excepted in deeds, {!"om fAl·lCO, a pa!"tnership, William s. nartwon, F?""ed A. D:.!'"tiuan, Jr., Oc?"'na!"'d Cit.run aaid Ua:-:-;: J,L, frank, ~r., recorded April 21, 1966, Recorder's File Nos. 66913 and 66568. EXHIBIT B, Part 1 8/14/78 -1- 2152 Exhibit a -Part l,l Legal Description of Portion of Developer Tract Owned by Developer and May The following land in the City of Carlsbad, County or San Diego, State of California: Lot 10 of Carlsbad Tract No, CT-7618 (Plaza Camino R~al Shoppine Center) accordinc to Map No; 89S6 filed in the Office of the County Recorder of said County on Auguat 11 , 1978. Except from any portion of said land, all mineral rights and all oil, gas, petroleum or other hyd~-- carbon substances within or underlying said land without right of surface entry as reserved in deed~ executed by Reginaldo Marron and Caroline Marron, recorded in Book 6699, Page 2611 of Offici:il Records, and Book 7712, Page 477 of Official Records. Also except from any po~tion of said land, all of the oil, gas and minerals and mineral rights, lying beneath a depth of 500 feet from the surface of said land, together with the right of entry at any point in such land lying below said depth for the purposes of ex- ploring, drilling, conveying and removal of any such substances and installation of equipment and pipelines for such purposes, provided that any such entry and activity upon said land for such purpose shall be carried out in such manner as to avoid any interfer- ence with the use of the surface of said land, as excepted in deeds, from FAWCO, a partner~h!p, ~il!i:: S. Bartman, Fred A. Bartman, Jr., Bernard Citron and P.arry J.L. Frank, Jr., recorded April 21, 1966, Recorder's File Nos. 66913 and 66568. EXHIBIT B, Part 1.1 8/;J.4/78 -1- 2153 Exhibit B -Part 2 Legal Description of Phase I Public Parking Land The following land in the City cf Carlsbad, County of San DhG:J, State of California: Lots, 1, 7, 8 and 9 of Carlsbad Tract No. CT-7518 (Plaza Camino Real Shopping Center) according to Hap No. 8956 filed in the Office of the County Recortler of said County on August 11 , 19i8. Except from any portion of said land, all mineral rights and all oil, gas, petroleum or other hydro- carbon substances within or underlying said land without right of surface entry as reserved in deeds executed by Reginaldo Marron and Caroline Marron, recorded in Book 6699, Page 264 of Official Record5, and Book 7712, Page 477 of Official Records. Also except from any portion or said land, all of the oil, gas and minerals and minerP1 rights, lying beneath a depth of 500 feet from the surface of said land, tcJether with tl.e right of entry at any point in such land lying below said depth for the purposes of ex- ploring, drilling, conveying and removal of any s~cn substances and installation of equipment and pipeli~es for such purposes, provided that any such entry and activity upon said land for sur.h purpose shall be carried out in such manner as to avoid any interfer- ence with the use of the surface of said land, as excepted in deeds, frorn FAWCO, a partnership, Williams. Bart~an, Fred A. Bartman, Jr., Bernard Citron and Harry J.L. Frank, Jr.: ~ecorriPri A,~il 21 1 196&, -·ecc~dQr•s file l,os. 66913 and 66S68. EXHIBIT ll, Part 2 8/14/78 . .,, .,, -n -J> ,.. ,a m n 0 ,a CJ "' ... "' . J> z I CJ -m Ci) 0 n 0 C z ... -< ... :c J> ,a ,.. m -< .,, • "' ,.. 0 0 ~ ... .. 215~ Exhibit B -Part 2.1 Legal Description of Phase 1-A Public Parking Land The following land in the City of Carlsbad, County of San Diego, State of California: Lots 16 and 22 of Carlsbad Tract No. CT-7618 (Plaza Camino Real Shopping Center) according to Hap No. 8956 filed in the Office of the County Recorder of said County on August 11 , 1978. EXHIBIT B, Part 2,1 8/14/78 -1- . .., .., -n -> r-__, m n 0 ;,g 0 c,, ... c,, . > z C -m (i) 0 n 0 C z ... -< ... :c > ;,g r-m -< ,, • ai, r- 0 0 ~ ... ;,g m n 0 ,a C rn ;,g 2155 Exhibit B -Part 2.2 Legal Description of Phase 1-B Public Parking land The following land in the City of Carlsbad, County of San Diego, State of California: Lot 26 of Carlsbad Tract No. CT-7618 (Plaza Camino Real Shopping Center) according to Map No. 89S6 filed in the Office of the County Recorder of said County on August 11 , 1978. EXHIBIT B, Part 2.2 8/14/:/8 -1- 2156 Exhibit B -Part 3 Legal Description of Phase II Public Parking Land The following land in the City of Carlsbad, County of San Diego, State of California: Lots 21 and 27 of Carlsbad Tract No. CT-7618 (Plaza Camin~ Real Shopping Center) according to Hap No. /956 filed in the Office of the County Recorde!"' o said County on August 11 , 1978. EXHIBIT 8, Part 3 8/14/7J -1- 21S7 Exhibit B, Part 3.1 Legal Description of Phase II-0 Public Parking Land The following land in the City of Oceanside, City of San Diego, State of California: A parael of land situated in the City of Ocea~side, County of San Dir.go, State of California, being a portion of the northeast quarter of Section 31, To,m::..iip 11 south, Banse II we&t described as follows: Beginning at the southeast corner of the north half of the northeast quarter of Section 31; thence along the south line of said north half, north d9'42'19" west, 325. 70 feet to the true point of cel\;r . ,run thence north 89'42'19" west, 1150.70 feet; t.l. 1,ce leaving said south line, north 46'36'53" east, 143,87 feet; thencr. north, 312.85 feet; thence north 88'00'18" east, 5113,32 feet; thence r~rth 89'41'28" east, 500.04 feet; thence south 0'241 11" east, 439,22 re~~ to the true point of beginning. erurP.r.r P, Por~ f, f 6/2/78 -/- £XHIB1T -l/11,/78 2158 Exhibit B -Part 4 Legal Description of May Tract The following land in the City of Carlsbad, County of San Diego, State of California: Lot 12 of Carlsbad Tract No. CT-7618 (Plaza Camino Real Shopping Center} according to -Map No. 8956 filed in the Office of the County Recorder of said County on August 11 ., 1.J);J})., Except rrom any portion of said land, all mineral rights and all 011, gas, petroleum or other hydro- carbon substances within or underlying said land without right of surface entry as reserved ,~ d-eds executed by Reginaldo Marron and Caroline kar,. , recorded in Book 6699, Page 26~ of Official Records, and Book 7712, Page ~77 of Official Records. Also except from any portion of said land, all of the oil, gas and minerals and mineral rights, lying beneath a depth of 500 feet r~om the surface of said land, together with the right of entry at any point in such land lying below said depth f~r the purposes of ex- ploring, drilling, conveying and removal of any such substances and installation of equipment and pipelines . for such purposes, provided that any such entry and activity upon said land for such purpose shall be carrjed out in such manner as to av-.-,•d any interfer- ence v.ith the use of the surface of sa.id .land, as e.rcepted fn deeds, frol/J FAIICO, a partnershJp, f/.f.ll.fa111 s. Bartl/Jan, Fred ,1. &lrt11u111, Jr., Bernard Citron and !larr.v J • .l. Frank,. Jr., recorded April 21, 1966, Recorder's Fi.le Nos. 66913 and 66568. S, Part II -l- ... % > "' r" m -< -n • "' r" 0 0 ~ ... '10 ffl n 0 1111 C, "' p I I ' ' I l :. --t • ~ r "' ffl n 0 ,0 C, en ... en . > z c:, 2t59 Exhibit B, Part 5 Legal Description of Penney Tract The following land in the Ci~j of Carlsbad, County of San Di State of California: Lots 11 and 20 of Carlsbad Tract No. CT-7618 (Plaza Camino Real Shopping Center) according to Map No. 8956 filed in the Office of the County· Recorder of said County on August 11 , 1978. Except from any portion of said land, all mineral rights and all oil, gas, petroleum or other hydro- carbon substances withir or underlying said land without right of surface .... /'' as reserved in deeds executed by Reginaldo Harro~ and Caroline Matro~, recorded in Book 6699, Page 264 of Official ~ecords, ar.d Book 7712, Page 477 of Official Records. Also except from any portion of said land, all of the oil, gas and minerals and mineral rights, lying benea1 a depth of 500 feet from the surface of said land, together with the right of entry at any point in such land lying below said depth for the purposes of ex- ploring, drilling, conveying and removal of any such substances and installation of equipment and pipeline: for such rurposes, provided that any sue~ entry and activi.ty upon said land for !!uch purpose shall be carried out in such manner as to avoid any interfer- ence with the use of the surface of said land, as excepted in deeds, from FAWCO, a partnership, William Bartman, Fred A. Bartman, Jr., Bernard Citron and Har1 J.L. frank, Jr., recorded April 21, 1966, Recorder's FUe 11..:,s. Mg13 sffo' 00$06'. _......,_ .. 2160 Exhibit B -Part 6 Legal Description of Sears Tract The following land in the City of Carlsbad, County of San D1eg6, State of California: Lot 25 of Carlsbad Tract No. CT-7618 (Plaza Camino Real Shopping Center) according to Map No. 8956 (iled tn the Offic~ of the County Recorder of said County on August 11 , 1978. EXHIIHT B, Part 6 3/14/78 -1- ' I "Tl "Tl -n -J> r- u, . J> z C -m (i) 0 n 0 C z ... -< ... :J:: J> ;o r-m -< "'l'I . m r- 0 0 it ... ;o m n 0 ~ C m "' 2161 Exhibit B -Part 7 Legal Description of Federated Tract The following land in the City of Carlsbad, County of San Diego, State of California: Lots 14 and 15 of Carlsbad Tract No. CT-7618 (Plaza Camino Real Shopping CenterJ according to Hap No. 8956 filed in the Office of the County Recorder of said County on August 11 , 1978. EXHIBIT B, Part 7 8/14/78 -1- 2162 Exhibit B -Part 8 Legal Description of Carter Tra~t The follo~ing land in the City of Carlsoad, County of San Diego, State of California: Lots 18, 19 and 2q of Carlsbad Tract No. CT-7618 (Plaza Camino Real Shopping Center) according to l:fap No. 8956 filed in the O!'fice of the County Recorder of said County on August 11 , 1978. EXHIBIT D, Part 8 8/14/78 -1- - ~ If', -< "'Tl • m ,.. 0 0 ~ ... ,a m n 0 ,0 0 m ,a 2163 Exhibit B -Part 8.1 Legal Description of Authority-Carter Parcel The following land in the City of Carlsbad, County of San Diego, State of California: Lot 19 of Carlsbad Tract No. CT-7618 (Plaza Camino Real Shopping Center) according to Map No. 8956 filed in the Office of the County Recorder of said County on August 11 , 1978. EXHIBIT B, Part 8.1 8/14/78 -1- ! "Tl "Tl -n -J> r- ,a m n 0 ,a 0 "' ... "' . J> z CJ -m Ci) 0 n 0 C z -t -< ... ::c J> ,a r-m -< -n • ,a ffl n 0 ,a C, ffl '10 . . ~. " . -.. ·-. . ..• ·----·-------------------------.... FFICIAL RECORDS, SAN DIEGO COUNTY, HARLEY F. BLOOM, RECORDE -~- ·-~-... -. t - I .. ~ •- fif'TZ·~- ~ :::: __ .......... .. -. ·-.,..---===---" .. . :. ·: -~-.-.. · "Iii'·' l~r lit"'''=~ -.... -. _,.---,. __ .,,.. ""--- M ==--:.--: ---_ ........ __ . --·--·'--=-=~~--~ .. .. _ ............. . ;. , .. . .. ; ..... ,.. '' .. . .; ~1 ,If'•' ~ .... ··~,. ·:· :.·· . ... . ' • • ~,.·· • + ·• ...•. -:-. ·t ..... : :.~·. ... . ! " -: .· ~·: ! ~ . .:: I r I ·, ·· .. ·:·;_ ..... . ,. ~· .. .:. . i'• ,., ·• ..... '• -... .__. .._-.,,, 'Mil Com .. . ~ ..... .=, ..... , •.. !~ - \ I j 1 ' ~' <O j ··~ . C\'.i !' ... __ -~FFICIAL RECORDS, SAN DIEGO COUNTY,. HAR-LEY F. BLOOM, RECORDER - 1 l I I I f i I t t \ ; } }--~ 2167 EXHIBIT D, PART l PROJECT IMPROVEMENT REQUIREMENTS l. DEFINITIONS: Any term or word defined in the Agreement to which this Exhibit is attached, shall have the same meaning when it is used in this Exhibit, except if the context clearly indicat.es otherwise. All references in this Exhibit to the "Agreement" shall be deemed to refer to said Agreement. As used in this Exhibit, the term "Phase II Majors" shall refer to Sears, Federated and c~rtPr and the term "Phase II Land" shall be deemed to include the Phast 1-A Public Parking Land and the Phase I-B Public Parking Land. 2. GENERAL REQUIREMENTS: (A) The peripheral boundaries and configuration, the termini, and ~11 dimensions (denoted or scaled) of the Phase II Mall shall be ~s respectively shown on Exhibit "C" attached to the Agreement. (B) The periph~ra! boundaries and configuration and the dimen- sions (denoted, or if not so denoted, then scaled) of the Building shell <•f the Phase II Hall Stores shall be n~ rp,~p~ntiv~iy ~hn~n ~n Exhibit "C" to the Agreement. CC) All areas not used as Building or Truck Facilities areas shall be improved, u~ed, and maintained as Common Area. 3. REPORTS AND OTHER INFORMATION: Developer shall furnish to each of the Majors, for their infor- mation, one (1) sepia of each cf the following drawings and three (3) copies of each of the following reports: (A) A Plan of the Shopping Center Site which shall include . the following information: (1) Outboundary lines showing monuments, bearings, distances and radii. The starting benchmark (point of beginning) and other key benchmarks referenced to USGS Datum and/or local mi..:nicipal datum. (ii) Contour lines drawn at two (2) foot intervals, except in flat terrain (that is, overall slopes less than two percent (2%)) contour5 shall be drawn at one (1) root intervals, Exhibit D, Part l ll/15/77 ... -1- 2168 (iii) The location of pertinent natural physical features such as trees, and prominent rock outcroppings. (iv) The location and, where significant, the sizes and elevations of all manrnade improvements including: (a) Existing Buildings, or obstructions on the property which will be retained, with Building area dimensions and approximate heights noted for line of sight studies. (b) Rights-of-way and dime1tJ\' s of all exist-.ing and propose~ streets and sidewalks adjacent to the Center and, to a sufficient distance to show adjacent major stre~ts, highways, ramps, and access roads. (c) Existing surface and subsurface utilities including sanitary sewers (show flow lines, size and type of material), storm drains, manholes, eaten basins, high voltage transmission towers and/or lines, electric po~Pr lines, telephone polcu lshow pn!~ numbers and indicate transformer cans), telephone lines and street lamp posts. (B) Im Outboundary Surve} of the Shopping Center Site ( includin, a complete metes and bounds description of the Shopping Center Site and of the parcels of each Major and Developer) which shall be prepared in accordance with the requirements of Title Insurance and Trust Company for the issuance of extended coverage title insurance, and shall includo the following information: /.// /.F// .d"~./e; .d"/.?d' .P.<"'.d'/"/.#;"S ,p'"§J'././ Ao' /p /#~ /.?d".d'/".e.:;"'/ 4"'.<"'CP.<?.c:?" .d".<?4" .d'.// d"U.t'.d".<?C~# .t'P ,.;::fY .U,:?'~ P.ll'.# ,1/;:u;,,q, ..,,....,..-..,rp/ P./ closure at l:10000. (ii) One magnetic bearing shall be shown on the survey t ,. and if an adopted bearing is used for field work, the adopted line shall be shown. 0 0 ~ .. Exhibit v, Part l Rl/llJ/77 R3/JO/'l7 RG/24/77 -2- (iii) The location of pertinent natural physical features such as trees, and prominent rock outcroppings. (iv) The location and, where significant, the sizes and elevations of all manmade improvements including: (a) Existing Buildings, or obstructions on the property which will be retained, with Building area dimensions and approximate heights noted for line of sight studies. (b) Rights-of-way and dimensions of all existing and proposed streets and sidewalks adjacent to the Center and, to a sufficient distance to show adjacent major stre~ts, highways, ramps, and access roads. (c) Existing surface and subsurface utilities including sanitary sewers (show flow lines, size and type oE material), storm drains, manholes, catch basins, high voltage transmission towers and/or lines, electric power lines; telephone pole~ (show pole numbers and indicate transformer cans), telephone lines and street lamp posts. (B') An Outboundary Survey of the Shopping Center Site (including a complete metes and bounds description of the Shopping Center Site and of the parcels of each Major and Developer) which shall be prepared in accordance with the requirements of Title Insurance and Trust Company for the issuance of extended coverage title insurance, and shall include the following information: (i) All angles and bearings shall be to the nearest second and all distances to .01 feet, with minimum error of closure at 1:10000. (ii) One magnetic bearing shall be shown on the survey and if an adopted bearing is used for field work, the adopted line shall .be shown. Exhibit D, Part 1 Rl/18/77 R3/30/77 RG/24/77 -2- 2169 (iii) All boundaries shall be tied to known or record monuments with property corners referenced to offset points if possible. On curved boundary lines the arc length~, deltas and radii shall be noted. (iv) All monuments shall be identified as "found", "s_et", or "reset" and desct-ibed (for example, "iron pipe"). In any event, an iron pipe or concrete monument is to be placed at all property corners. Cv) All adjacent streets and major streets, hir,, .. •a, . ramps and access roads in the area shall be identified and any private streets shall be so noted. The record widLh of each street shall be placed adjacent to the street name and dny restrictions on access to the Shopping Center Site shall be no Led. ( vi) All record easements shall be indicated with dimensions, bearings, their purpose, and all restrictions impo~ed by the cas~ment. (Ci The ioilow1ng reports which shall be prepared by independent, qualified consultants: Ci) Proctor,in place density, and compaction test reports and certificates (Paragraph 6(D)). (ii) Compaction and stability and flow tests (Paragraph 8 ( B) ( i)) • (iii) Report concerning suitability of on-site soil for backfill (Paragraphs 6(D) and 8(D)(ii)). (iv) Appropriate control tests on any concrete installed on the Phase II Public Parking Land. (v) Certification by a registered soils engineer that the Building pad for the Tract of each Phase 11 Major has been prepar,~d in conforrni ty with his reoornrnendation and the approved plans and specifications. Exhibit D, Part 1 213178 -3- ,. ! .,, .,, -n -> r- ,a m n 0 ~ C "' ... "' . >. z C -ffl (i) 0 n 0 C z -t -< ... :c > ,a r-ffl -< .,, • a, r- 0 0 ~ ... ,., ffl n 0 ,., a ffl ,., 2170 (vi) Certification of a licensed surveyor that Building pad for the Tract of each Phase II Party has been graded true and level to the elevation(s) specified therefor on the approved drawings. 4. PLANS TO BE SUBMITTED FOR APPROVAL: Developer shall subxr.it to each of the l•!ajors, foi: their c1pproval, one (1) sepia of the Temporary Utilities Plans, Permanent Utilities Plans, Paving and Parking Plans, Site Lighting Plans, Landscaping nnd Irrigation Plans, and the Site Grading Plans for the Phase II Developer Construction. Each of the Phase II Majors s'.'all sub::tit to each other and to the other Pa.rties, for their approval, one (1) sepia of the plans and specifications for the Perimeter Sidewalks on its Tract. 5. TEMPORARY UTILITIES PL1\N3: co:-:STRUCTI0:-1 ROAD AND STAGit-:G AREA(S) (A) The Temporary Utilities Plan shall sho~ th~ location and size and type of service for power, telephone, water, drainage, sediment or retention basins, construction access roads and construction yards on the portion of the Developer Tract on the Phase II Land ~:!.:.!::,; co:.::;tr.:cticr., ii, ... luu.i.ny ti1t. items 'CO be p;.oviaea by Developer as hereinafter set forth in this Paragraph 5. (B) Developer shall provide the following listed te:::porar:;:· utility services to a point not more than twenty-five (25) feet from tho Phase II Major's Building pads, in accordance with the following requirements. Each l·!ajor, as to its respective tempor.iry utilities, shall pay the utility companies on tho basis of metered use for the operating costs of the utility services: (i) Storm Drainage -Temporary ditches or other means au necessary to divert surface storm water runoff from building pads, access roads, and staging areas, which temporary drainage facilities shall be maintained by Developer for each such Major from before tho start of construction by such Major until permanent r.torm sewer syatems have been completed and made operational. Exhibit D, Part 1 'J/7/77 ,.,. ,, -n -> ,... "' m n 10 "' C en ... en > z tJ -m (i) 0 n 0 C z ...,t -< ... ::c J> ,a r-m -< .,, • ca ,- 0 0 3 ... "' m n 0 ,a a ffl ~ 2171 (ii) Water -Water service, at a pt·essure suitable for constructi<;,n purpos<!s shall be available before the start of construction by each such Major, as the cate may be, until such time as water supplies become available from project hydrants or such Major's system is operational. (iii) Electricity -Service at 208/120 volts with a at a service pole (provided by each such Major or it~ ronlrar- tor·) shall be available before the start of constr~r·.ion by the Major. Service pole, service head and drops shall c· provided by each such Major or its contractor. (iv) Telephone -Developer shall coordinate instnllHtion of an overhead trunk line with Lhe local telephone co~pany t.o assure telcphc-ne service availa~ility bcf,.,re the start .:,f const.ruct.ion by ea<'h such Major. (C) Developer shall provide and ~aintain t.hrou&hout the con- st.ruction process tem~orary all weather construction roads between an exist.in~ road udjacent to the Shop1,1inc Center Site an.:! the st.i6- in& ~re .. for each Phase 11 Major. Each Phase 11 Kajor's stacinc area shall be constructed by the Developer and maintained by the Phase II Mujor for l1orkers' parkinc, material storage, and e~,ntrac- tors' t.railcl"s and sheds. Each Phase l 1 1-'1jor shull rc-i:r:'bu?·sc Developer, pro::.ptly after tile subr~.i ssion of bills ther·efor, for the cost of constructini; and r:.aintaininr, the temporary road to its sta~ing area a!ld the cost of constructing its staginc area. The follo\4inc requi r cr,;ents sha 11 apply: Ci) The construction road shall be at least sixteen (16) feet wide and all stasin& areas shall be at least fifteen thous.ind (15,000) square feet in area for each building site. (ii) Developer shall prepare a plan showi~~ the planned locatlo~ of the construction road and the desi5nated stanine areas, which shall be c:onsi stent with the overall si tc develop- ment and ~ubjert to review and approval by each Major. The Dcvclupcr in ronsultation with the Parties shall make surh ~:xhibi L I>, Part l 2131'1 t -5- .,, .,, -n -> r- "' m n 0 ,u C "' ... "' J> z C -m (i1 0 n 0 C z -4 -< ... ~ J> "' r-m -< ..., • UI r- 0 0 ~ ... - 2172 reasonable aajustmcnts to the designated locations contained in the above plan in order to prevent unnecessary conflicts in construction or contlicts with the operation of a1,y Ph.:is(' 1 Major. (D) Develo~er shall provide temporary sedimentalion ba~ins as needed to prevent silting of areas which are downntream of the Shopping Center Site. 6. SITE GRADING Pl.l,tJS: (II) Tile Site Graciing Plans shall show existing ancl .. w contours in the Ph~se II Land drawn at two (2) foot interval~, (except in areas .ot flat terrain li.e., those w1th overall slopes less tha~ two percent ·,2.,)j. contours shall be druwn ,,tone (lj l.oot intervals) anJ shall show contours (overlaid on a reference grio) ancl these contours shall bo shown with Lhe initial a1,a t:inal elevation ot selected grid corners notco. All builciings, improvezcnts, roads and highways, wl·,cther presL>nt or propose<i, incl uci i ng those adjaLent to the Phase I anci Phase II Land shall be shown in thuir true relation to the grio pattern. (B) Any suitable excavated material shall be stockpiled and u5cd tor backfill, it the soil laboratory report indicates it is suitable. Each ~hase lI Major shall notify Developer, prior to the site design perioc of the quantity of backfill material such Major shall require and Developer shall so stockpile. Thereafter, use ano/or removal (including the cost of removal), prior to thirty (30) 6ays bctore the Planned Phase II Opening Cate, shall be the responsibility of each such Hajor. (C) Side slopes of embankments shall be 2:1 minimum and precautions shall be taken (for example, sodding and other planting tor stabili2ation) to preserve the integrity of the slopes in accordance with the Woodward-Clyde Report, hereina(ter referred to. ( D) 'l'he Uu i lu i119 pads for th~ 'l'r act o( each Phase II Major, the Phacc II Mall, the l'hase II l-1£111 Storos, .:ind the balance of the Exhibit o, Part 1 Hl/ltl/77 1<3/J0/"/7 RG/24/77 -6- .. -n -n -n -> ,- ;a m n l~ C "' .. "' > z C -m Ci) 0 n 0 C: z ..... -< .. :c )> ,a r-m -< ..,, . G r-e C 3 ... ~ " r C ,.. t " ;I 2173 portion of the Developer Tract on the Phase JI Land, shall be compacted in accordance wl th the recommend a ti on in the lfoodwa,·d-Cl yd e Soils Investigation Report, d.:Jtca September 17, 1975, toGethcr with all reports and plans prepared by ~oodward-Llydc S~F~lemcntary thereto ( the "l·:ood1,.:Jrd-Cly<le: llcyort" j. (£) The BuildinB pad soil for the Tract. of each /'i1ase II Major, the Phase 11 Mall, and Phase l1 Mall Stores shall have a minimum slub-bearinc capacity as detailed in the afore~cntioncj l·:oodward-C..lyde Rcµort. The p;:id soil shall be cap:-ible of s:::.;-;;rtinG conventional spread pootinLS and foundctions with a ~c~.-·.r v&lue of l.j,000 ~.s.f .. (F) The slope in the Pari<inc Areas shall be three percent (3~) ffi~Xirnum and one pcrc~nt (1~) ~inimum, unless otherwise approved by e~cll ;;,,j ur, with no rel.a in ine wal is or emu;:r;l<rr.cn ts fonr. in~ u -break in ,radc, unless otherwise approved by tach Major. 1. PERMt~E~T UTILITIES PLA~S: (Ii) The Pcr11;.rner.t Utilities PL.His shall :,Lew the lucat.ion a11d store s<:wcrs) of service for all utilities for wllose constrt.:~tior. liev.clopcr is responsible undl·r the Ai.;rccment und t!iis C:lihillit. (il) In addition to Developer providing all necessary cooroin~- tior, wit!; the various utility compani.:s to assure that ndequate sanitary sewer, strrm sewer, electrical, telephone:, natural gas (if the utility company will prnvide service), domestic and fire protection water service will be provided to the Phase 11 Land, Uev eloper shal 1 construe t or cause the construction of facilities for the followini; listed pcnndnent utiiity services to a point within five (5) feet of each Phase II Major's 13uilding wall, (i) Sanitary Sewer -Laterals at locations to r~ceivc sanitary sewaue from each such Hajor's.Ouilding. Service connections shall be below eradc at such locations, of such sizes and at invert elevations as . c4..aircd b'y each Hajor to Exhibit D, Pnrt 1 ll/ 15/'/'/ -7- allow gravity drainage throughout the system to point(s) of discharge off-site. (ii) Storm Sewer -Laterals not to exceed twelve inches {12") in diameter at locations to receive roof and canopy drainage from each such Major's Building at such locations and invert elevations as required by each Major to allow gravity drainage throughout system to point(s) of discharge off-site. (iii) Domestic Water~ One (1) location of service with valved outlet from a water line that shall be a minimum of four (4) inches in diameter at a pressure suitable for use by each Major without the need for pumping. (iv) Electrical Service -One location of service with primary conduit and cables of the sizes and in the quantity required for the Store of each such Major, as approved by such Major, and the utility company furnishing the primary electric- ity. All transformation and appurtenances as may be required for voltage reductions and metering facilities for such seivice .::, i I a l l u e µ r o v i LI e LI u y :::; u ci 1 Ha j or or t. r 1 e s e r· v i n g u t i l i t y comp a n y . (v) Telephone -One location of service with duct, con ,duit and cables of the size and capacity required for the Store of each such Major, as approved by such Major, and the utility company furnishing the telephone service. (vi) Na~ural Gas Facilities -If requested by a Phase II Major, one (1) location of service from a source and in a supply of sufficient capacity for the Store of the Major requesting gas s~rvice, as approved by such Major, and the utility company furnishing the gas service. A request by a Phase II Major for gas service shall be made within thirty (30) days after execution of this Agreement. ( vii) Fire protection - A single ten (10) inch service or a maximum of two (2) eight (8) inch services to locations as selected by each such Major. Exhibit D, Part 1 2/3/78 -8- 2175 ......... Actual connections to utility services at points of connection will be made by e.ich such Major's contractor and permits for these connections obtained by such ~lajors. Permit fees for Uuildinc connection and any other connectioh fees will be each such Kajor's responsibility, unless fees are contr~bution to cost of public systcrr. improvcme,;t or extension thereof to Ma_iur's building in whi<'li event same will be Developer's responsibility. (C) Sanaary sewer lines, storm sewer lin.::s a.1<! oU;cr uti! ity lines, co11duits, ducts or systcr~s shall r.c.t :;c con::;tr", '~..: ur 1:,tdn- tained above the cround level of the portion cf the Devclu~er Tract on the ~nase ll Lana, prQvided that certain a~purtcnances normally inst~llcd at, or above, &radc (such as hydrdnts, drain inlets, transforri.er:;, switchinG stations, E-tc.) shall be so installer. and shall conform with I.lie rci..uirc:::ents of the County of .S~:i Di.,-..,o, Cit.y of Carlsbad, and any other covcrnmcntal accncies havin~ jurisdiction over the work. (0) The stor• drainace system ~hall be a closed circuit system u11J ::.iiali i, ... ;iuJc lattral conn.,-ct1or,s tor bu11cun.; root' ,rnJ can .... p:,- drainale, all pertinent inlet and outl~t strucl.ure~, riprap an~ u8nk protection, with an overall dcsien based on the followinG: (1) A minimum regional t,wnty-five (25) ye.ir storm frc- quency with t.hirty {30) ffiinutc ti~e of concentration. ( i!.) Discharge ve;loci\.ics shall tc 101, c:noui;h su as t.o prevent darna~e downstream. (ii1) A minimum of ei&htccn (18) inches freeboard shall be maintained between Building floor elevation and the water surface rcsultine from a one hundred (100) year frequency storm. (iv) Conduit capacity shall be such as to develop no pondine from a twenty-five (25) year frequency storm, (v) A hydraulic analysis prcpar~d by a rctlistercd civil cneinccr which shall be submitted to each Major ror review and approval. Exhibit U, PLJrt 1 11ni!/'/'/ -9- - 2176 (vi) The requirement::; retiording a closed conduit storro draina;e system shall not be deemed to prohibit retention ponds, swales and ditches out~idc of paved Parkinc Arc~s. CE) Al 1 fire pro tee tion sys terns in the po,. t ion of the De-v el- opcr Tract on the Phase I I I.and sh;il l be c!esii;neci :•::c.! in::tallcd in accordance with the standards of the Natiooal Fire Protection Association, Baoklet Nos. 13 and 2q, or of Factory Mutual E~Gi~~er- ine Assocatior1, or other nationally recoRnizcd standard::; a~recable to the Parties, in addition to an other applicable e,ovcrnrr.c::.tal requin,ir.c:nts as oeter:::incd by such Party's build5.r,._ ' . .;:.ir.:ir:<··~ corrier or otht"r quc1lified inspection fir!!:. .'Lll sy~tc?;,~ ::.!!~ll ::~~.:..~ Industrial Risk l~surcrs Underwriter requirc~cnts for a "su~crior risk" classification as well ~s the requirements of Schirmer Enei- ncerin& Cc. Minimum de::ign standards arc as follow3: (i) At least 1500 GPH at grade level (~O PSIG <Pounds per Squ~rc Inch_ Guasc:> residua! for one-story Ouildi~ts, 60 ?SIG residual for t~o-story Buildings, 65 PSIG resicud! fvr in any event} -mini~um ten (10) inch loop -~ith sectional v~lvc control and fire hydrants at intervals not in excess of 300 feet, shall be provided. {ii} AddiL!onal fire hrdr~nts shall be located opposite each exterior store entrance ~nd wiLhin 100 feet or less of Building siamesc connection or as may be required by the local F.ire fl1Jrshall and Pvbl.ic Hcalt/J and Safety 0/"/".ices, 1.f.f./,/ 1/nt:,'ercrpu.nd H3t"t?r ,z·cf'l.7 shu./../ Lie pf ,9 su//"./e./t?nt .s/zc~ tc, ,9de'7Put"e./_r sup,P..!f PP&// /"..irt' ,oro~ect"./on ,gnd do:est.f.:o d&,,u,nds .;1mul tancously, but in no case 1 ess than ten ( 10) inches in diameter. (iv) Detector checks, water mc~ers, and enclouure rE!quire:rn<:nLs, as needed for the Store of each Phase II Major »ndcr the Rul~s and Reeul&tions of the SPrvinc utility company, t.:xhihit D, P.1rt 1 lJ/ l~/'('/ - u, .... 0 0 ~ ... (vi) The requirements regarding a closed conduit storm drainage system shall not be deemed to prohibit retention ponds, swales and ditches outside of paved Parking Areas. (E) All fire protection systems in the portion of the Devel- aper Tract on the Phase II Land shall be designed and installed in accordance with the standards of the National Fire Protection Association, Booklet Nos. 13 and 24, or of Factory Mutual Engineer- ing Assocation, or other nationally recognized standards agreeable to the Parties, in addition to an other applicable governmental requirements as determined by such Party's building insurance carrier or other qua:ified inspection firm. All systems shall meet Industrial Risk Insurers Underwriter requirements for a ''superior risk" classification as well as the requirements of Schirmer Engi- neering Co. Minimum design standards are as follows: (i) At least 1500 GPM at grade level (50 PSIG <Pounds per Square Inch Guage> residual for one-story Buildings, 60 PSIG residual for two-story Buildings, 65 PSIG residual for three-story Building~; ~ini~um 25 PSIG re~idual at roof level~ in any event) -minimum ten (10) inch loop -with sectional valve control and fire hydrants at intervals not in excess of · 300 feet, shall be provided. (ii) Additional fire hydrants shall be located opposite each exterior store entrance and within 100 feet or less of Building siamese connection or as may be required by the local Fire Marshall and Public Health and Safety Offices. (iii) Underground water mains shall be of a sufficient size to adequately supply both fire protection and domestic demands simultaneously, but in no case less than ten (10) inches in diameter. (iv) Detector checks, water meters, and enclosure requirements, as needed for the Store of each Phase II Major under the Rules and Regulations of the serving utility company. Exhibit D, Part 1 11/15/77 -10- 2!77 (F) All permanent utilities as required ::ercundcr shall be available as follows: (i) Sanitary Dnd storm sewers, and water, shall be availablt! for eoch Ph;1:;c 11 Major wit!iin five {5) 1r.011t.lis dfLer it starts construction. (ii) Electricity and telephone sh~ll be available for each Phase 11 Major within six (6) months after il starts construction. (iii} Natural cas -if the utility cocpany ~ill provije service, sh~ll l;,_ ~v .. ilalile for eac.:t·, i'i,..i~,: II i·i.iJt.r r.,4u.,:;ti:16 gc:s service!, not later than six (A) rr.onths after it starts construction. CG) Desii;r, .ind wor;.;ing drawi1i~s for utilit.,· syslLns, [ inctujin& services for ccmccrcial co~nactions to the internal ~ysLe~s of the buildines i1, tt:e Phase 1:-•. Land] 1:.c:y be prepared by tl,e utility co1,;pani1:s respor,zible for such i:::,t:.!l.itions unc!cr thE' supervision 8. PhVI~G ~cu PARKI~~ PLAGS: Cl.) The ?;,•1 iug anci Pi>rkinc Pl.ins shall si,o~r and <let.oil all curLo, retaiGine w~lls, berms, striping, sicnalizat!on, traffic and directional sJcning and 1i8ht stand&rds. Areas for heavy duty pavinB shall be identified, Said plans shall include the follo~inc: CB) Parking &nd Ro~dway Surfacing: (i) Pavement de~ign ~hall be based on~ "Cesign Period" of twenty (20) years and shall consider such v&riobJes as the C;;lifornic1 ~coring ai:itio of th1: sc.il, th(; 011t.iciput.1.:d t.r.,ffic volu~e and the vehicle mix (i.e., automobilos, sin&le-aile tru~ks and double-axle trucks). All pavement dcsinn shall be subject to review and approval by the M~jors and shall conform to the rccommcndatlons of the soils engineer. ExhibiL D, ParL 1 ll/ 15/'l'/ -11- ':, .. ,. .,, .,, -n -> ... ;a m n 0 ;a C, u, ... u, l> z Cl -m Ci) 0 n 0 C z -t -< ... ::c l> ,a ... m -< .,, • 2178 (ii) The surface of parking areas and access roads shall be paved according to desisn, with an asphaltic wearinc surface over a suitable base m~terial according to :he recom- mendations of thP. soils engineer. (iii) In cont1ection with the foregoing, all areas to be paved in the portion of the Developer Tract on the Phase II Land are classified as follows: (a) Heavy duty paving -all ring roads and main driveways, truck loading zones, truck thorougltt .. ~ ,. (b) Li:ht duty paving -automobil~ parkin~ ai~Jes and stalls, (C) P~rimeter Sidewalks. Ci) All sidewalks shall have a minimum slop~ toward curbs of one-fourth (l/l!) inch per foot and shall l>e saorell concrete, minimum four (l!} inches thick, or equivalent material of a rough non-skid texture over a suitable erauular base. (ii} Concr~Le ~,alb:ays. not less than ten (10) fe.,t in width, shall be constructed along the outer perimeter of the Buildings (excluding mall areas} in the development of the portion of the Developer T·act on the Phase II Land as shown on Exhibit C attached to the Agreement. Such walkways, includ- ing any planting, when installed, shall become a part of the Common Area. Such walkways, however, shall be constructed as part of the construction of the buildings adjacent to each such walkway. Each Phase II Major will be responsible for constructins all Perimeter Sidewalk~. includins landscaping and irrigation system located therein on its ~ract, Each ·Phase II Major may connect its irrigation to the site irrigation system. (iii) Entrance and access roads and other areas as required for suitable drainaee shall have curbs six (6) inches above the finished paving. Parking lot islands and landscape Exhibit D, Part 1 -12- 5/10/78 •'· _, - '"Tl '"Tl -n -> .... "' m n 0 "' 0 en ... u, . > z C -rn G) 0 n 0 C: z -I -< ... :c ):iii, ,a r-m -< -n • DI r- 0 0 ~ ... 2!79 enclosure shall be vertical barrier type curbs and shall be constructed of concrete. (iv) Handicap ramps shall be provided in the Perimeter Sidewalks where shown on Exhibit C. Said handic.1p ramps shall be the same in design as the handicap ramps in Lh~ Perimeter Sidewalks on the Phase I Land. (i) Developer shall stockpile on a portio~ of the Developer Tract on t.he Phase II Land at location(s. i1 rol'ed by the Parties, sufficient fill material to completely ~ack- fill the area behind any retaining 'ilalls on portion( r.) of the: Developer Tract on the Phase II Land up to sub5radc, ~nich fill material shall be tested by a soil• laboratory and certi- fled as com pl ctcly suitable for backfill and compacti<:n. (ii) Retaining walls and pavinR, which are necessary for and part of any dcprcs~ed doc~ facilities for any ?has~ II Major, will be such Major's responsibility. CE} Control Signs, Pavement Striping and Sicn~ls: (i) The traffic control si&ning and pavement striping plans ~hall show the type (0,8,, STOP, NO PARKING, special directional signs, etc.) and location of all sicns and lane refl~clcrized material. (ii) Parking lanes or bays (which include two rows of parking spaces and incidental driveway) shall have the follow- ine minimum and preferred widths (measured perpendicular to such driveway) at the angle of the parking designated below: llf.GRH~ Mit:11-!UI', PREFEIWED 45° 48' 52' 52° 50' 52°' 60° 54·, 55' 90° 6~· G5' (iii} Perpendicular width betweLn center lines or between midpoints between pnrallel lines of adjacent stall striping shall be a minimum of nine (9) feet. Stalls shall be separated 1-:xhiliit O, l'urt 1 ll/ l'j/'('( -13- : "'ft "'ft -n -J> ... ;o m n 0 ;o CJ "' ... "' > z C -m Q 0 n 0 C: z ... -< ... ~ f > t "' .... m l -< ~ • IP ... 0 0 ~ ... 2180 by usinu two (2) parallel lines four(~) inch~s in width and eibht (8) inches apart [twelve (12) inches apart center to center] so that the distance between the edges of the inner lines is eight (8) feet. Stripinc shnll be two (2) coats of paint, alkyd base synthetic resin, Fed. Spec. TTP-115 Type 1, in a color known as "traffic white". If seal coat is used, it ~h~ll be compatible with striping paint compound. (iv) Handicapped parkina shall be show!l on the parkinG plans as required by governmental authorities and approved by the Parties. (v) The location of any future off-site traffic siGnEls shall be determined in coordination with governing aeencics, a consultine tratfic en~ineer, and the Majors. 9. SITE LlG!:1"11,G PU\l!S: The Site Li&hting Plans shall include det&ils of the bnsc, pole anc.i lut:,in .. ire assembly and the followi ne requir.:imc!ltS sl::,11 apply: (i) Overall <'alculated averaee maintained foot <!,mdles shall oe not less than 1.6 foot candles at "end ur life" of light so~rces at thirty inche$ (30") above grade. (ii) One luminaire of ea(!h liehLinG standard ~n the partinc area t1jacent to the Store of each Phase II ~ajor and the Phase II Mall Stores shall be circuited for night lighting for security purposes after the Shopping Center has closed. (iii) Poles and luminaires shall be the sa~e as those in the Pha~c I Public Parking and shall be similarly placed. Lu~inaircs shall use metal halide lamps and shall be connected to De~eloper's site lighting panels and be provided with automatic procrammine by appropriate astronomical and seven (7) day calendar time switchc~. (iv) Developer shall prepare a drawing of the complete lightin& arrangement and equipment, inclu~ing the wirin& or all parkin& lot lights. ( v) Each Phase 11 Major shall have the rir,ht to install, at its 01m cxpcn~c, separately c:011Lr·ull1!d flood li&hts. The location and type of fixture l'lhall be sul>jo?ct Lo the appr,wal f:xhibl t D, l'arl 1 21-u·rn -111- ,, ,, -n -J> ~ ~ m n 0 ~ CJ "' ... "' . J> z CJ -m G) 0 n 0 C z -t -< ... :c > ~ ~ m -< ..,, . - 2181 of the other ~artics. The cost of conduit and separately controlled lights shall be paid by such Major. 10. LANIJSCAPiaG AND IRRIGATION PLANS: The LandscDping and Irrigation Plans shall show the autc~otic irrigation system to be in.stalled and shall sp1>cif:• ove!"all plnnt materials and loc~tion. 11. PHASE II ~ALL: (A) Developer shall install a continuous seismic/expansion joint throi.;ch the Ph.ise II Mall at the connection with the :,· o, of each Phase II Major and all plans for such expansion joint, includin& structural i~formhtion, shall be subject to r~vicw :n~ approval by such Hajors. The cost of supplying said joint at the connect1011 to each :.ucu Major's Store shall be !Jeveloper's respon- sibility. !Jevelo~cr and each Phase II ~ajor shall !n~tall it.s respective portion of the joiut each at its 0:11, cost. (B) The ventilating and cvoling systc::;s for the Phase II ~lall shall be constructed sc .:.s to be capable of co:nplyine with perf.,r:11..::,ce critPri;; set forth in Exhibit. r., P··rt. 3. -:.•.·r.~ r.~ . . .. shall be automatically controlled. (C) Tlic Pha!ie II Mall air-conditioni:it.\ sy:;te,~ shall provide both fire (heat) and smcke d~tection system~. The operation of the enclo5ed ~all air-conditioning shall be controlled so th•t in the event of fire detection, bS determined by appropriate rate of rise sensors, the system shall automatically shut down the unit and in the event of smck~ detection, as determined by appropriate smoke detectors, the system shall autowatically co into a one hundred pcrce~t (1001) outside air mode, so as to pressu?"ize the enclosed mall. The two systems shall be automat,ically controlled and sequenced in such a manner that the smoke detection system will be first-on-line. (D) Dcvelopc~, and the Phase 11 Majors ~hall each desian and rnaint1:1in their re:;pective ventilatinB, and air-conditionina syst<'lns so as to minimize the int.erchanee of air between each such Major's buildiril', and the enclosed moll dur .i.ne, normal operations. Exhibit D, Part 1 11 / l 'j l'l'( -15- 'Tl 'Tl -n -l> r- "' m n 0 ;G C CII ... CII J> z t'J -ffl G') 0 n 0 C z .... -< ... % J> ;g r-m -< "'Tl . GI r-0 0 ~ ... '° m n 0 '° C m :;Ill 2182 (E) The finished surface of the Phase II Mall shall be estab- 11shed at the same elevation as the Phase 1 Hall. (f) The surface of that portiou of the Phase 11 Mall devoted to pedestrian traffic shall be installed in a continuous plane without steps. The maximum slope of such surface shall not exceed .7151 on the.lower level and .7?1 on the upp~r level. 12. SCALE Of DRAWIHGS: All Common Area Improvement drawings to be submitted ~o the Hajors hereundt,r shall be preferably at a scale of one (l) i1,r' equals fifty (50) feet, but not smaller than one (1) inch equals one hundred (100) feet. Exhjbit D, Part 1 917177 -H,- . "'II "'II -n -> ,- ;a m n l) ~ C "' ... "' > z CJ -'" G) 0 n 0 C z ... -< ... :c > ;a I ,- ffl I -< r "'" I . GI ,- 0 0 ~ ... ...... ~---~---.... , ............. #< .......... . {.) 2183 J,l!!'r o::-rr.,,t-:f, "111' l;i'i:CIFI!:,Yt'JC)i!S 1-"0R D1:•11,:1,<.Wl:n l!IPr.O\'Em-:r:T l H 1·111~ _1>11,·,:;r: l ,-.n1·:i1 Encl,,::;c~l !t.,11 ,,:1d Mall Sho.£:!._~~;_in9:.; . ... 2 3 4 5 6 7 6 10 11 l::! 13 J.4 15 18 19 2'l 21 22 23 :u 36/R-U :l7/R-15 C-1 c-2 C-l C-•I C:-'i C-6 C-7 c-o C-9 CE-2 ExhibiL o, Part 2 Sheet• 'l'itl~. Sj tc 11.,~tl'!r Pl;;in J,,-,wm:-Level ?lan llpp~r L~vcl !'l.!n Roof Plan r::xtcr.icr l~lc-.,ation~ & Bui 1·di :1<1 Sccticns "uildin~ Sections & Elevation~ NrJrth r::ntrancc l'lun l,owcr I,evcl I'lon -t!orth~a!:t i'nrtion J,m,:ct· J,c•vol Pl;;in -t:ort!w1c:;t r-:-rti~-:1 l,ow.:.,r Leve 1 I' l,111 -~0~1 th~·,cr. t i"or t :.c:1 J,m·:or !,•:?vol Plai~ -Southe.wt i'o!:Licr. l.':~rP..r. !,('VC'l ·T'lun -i!orthca!:L !'nr.:i(i:'I '!r>ncr J,«?vcl Pl,111 -~:orth·,:c!;t l'orticn L=1~pcr Level Plan -soul:h1·.·c~:t l'c1·Uo:1 UJ:ipcr J,cvo;. l'l.tn -So11lhem;•: Portion 1/'.l" ~cctions -r:~:tcrior :·:nll:; 112·. ~~ctions -&xtcrior ~~lls l/2" Sections -~nll 1/2'' Section -i•:.J\' Court J/2" Snction~ -Penney Court 1/2" Section:; -l'laz,1 r.nt.r.i.1iccs 1/4" Jnlcrior Elciva~l~nR J/16" I,o:-:cr J.cv0.1 Hr.!'lr-ctc,! C.:-ilinq i'l.t:-i 1/16" llr.1per Level R,:;d:lcctccl Ccilin<:, Plan !=it~ 1-\astcr I'lan (:rndin,1 ,ind Or:i.i1H1'iC !'l,,n -~.,:. ''-::>:t::m; r.,·,vHno .ind n1~ainane Plnn -:;.r. i'11rtim1 (;::-,,cl l.ni1 and Dr.tinM;r1 !' J ,,n -· ;: . :·:. !·or tic:; ~r:vlinq and Drninarrc l'l«n -~.\·:. t'crti.on '' inished r.r.tclinri, Dr,,.i.i~aqc, l'•.n.ishc:i Grc,d.ing, Drainage, nnd Dct:ai ls · Finished Grading~ Drainage, and Details Slt;e IJl:ilitics PJ.,111 l','lrkin<J Lot Liyhting l' Ian r.pccifications D;:1tctl 5/7.0/G3 -1- f. (,."'\., .t:~!l !~ li~, .. (, .-,,._. ing Pl.in (, P.tving Plat~ ii:i le 11/25/66 2/.:?8/68 .::/28/68 2/28/68 ~.'28/fiO 2/28.'18 !,:·q 1%9 19€9 1 !169 1%0 1%9 196~ 19C:9 2/2~/68 :!/2P./6$ 2/26/68 !/15/68 1/15/66 1/15/68 :!/28/68 1/15/68 8/15/6!! 9/15/68 1/2/6') i./!S/t;v £/";./'-.! l/t5/E6 ; ll5/f5 !.ll5i7C 8/22/68 r./22/Ga (./'J.7/(,r; 6/27/66 ,., ffl n 0 ,., C, en ... en • > z Cl -ffl G) 0 n 0 C: ' ZI -t 1 ·-< ... :c > ,.,. ,... ffl -< ""' • • ,... 0 0 ~ ... ,0 "' n 0 -CJ . "' 218~ EXHIBIT D, PART 3 PEHFOHMAHCE CRITERIA FOR CLIMATE CONTROL SYSTEM FOR MALL The climate control system for the Mail shall be capable of maintaining (i) 75° F. dry bulb and fifty-five percent (55J) humidity inside conditions with outside conditions of 84° F. dry bulb and 7J° F. wet bulb, and (ii) an inside ory bulb temperature of 70° F. with an outside dry bulb temperature of 38° F •. The system shall be automatically controlled. Exhibit D, Part 3 11/15/77 -1- ?18 .. .... ~ :> EXHIBIT J:: MAll!TEl!ANCE AliD Mf1llf1GEMU!T STflNll,\RDS FOH COMMO:l AiiEA 1. All bard-surfaced portions of the Common Arec1: (a) shull be s:..-e.:t at intcrv,11:; suffich,r.1.. t.o t.,airitain the same in c1 cle;,n condition, before the Stores on tht Shopping Center Site shall open for business to the publir and ( b) shall be was!tcd at intervals sufficient to maintain the same in a clean conditinn. 2. All sidewalks shall be swept and washc~ at interval~ sufficient to rnaint..:iin the sa:ne in a <:lean conditiC>i,. Arc~, (including, but n~t li~ited to, :,idewalk~, malls anJ/or walkways) shall tic used to display, store and/or place any merchan- .di:,e, equip:,ent and/er devices, exceµt in conncc-ti<•n with Shoppinr, C(:nter prc.u,c•tions approved t.Jy tr1c Parties. Area for the use of Permi ttcc.s shall ~•c emptied daily and shall be washed at intervals sufficient to maintain the s~mc in a cle~n 4. All landscapina shall be propnrly m~i'lta1ned, includJ'lJ re11,c.val of dc.;d plants, weeds ana f(,rcir,n matter and such rcplant.inH and rt-pl.Jnc1.1e'lt as the occasion r,,ay rcqui re. 5. All hard-surfaced markinGs shall be inspected at regul3r intervals &nd pro~ptly repainted as the same ~ha!l beco~c u'lsi:ntly or indistinct from wear and tear or other cause. 6. All :;torm sewer catch basins shall be cleaned on a schedule sufficient to maintain all sewer lines in a free-flowing condition. 7. All pavin8 shall be inspected at recular intervals and ~ainlained in a first-class condition. 8. All stairways shall be: (o) swept and washed at intervals sufficient to maintain the same in a clean condition; {b) inspected at rceular intervals; and {c) promptly repaired upon the occurrence of any in·c&ularitics or worn porti,;n:; thereof, ~:XII IB 1'C E 2/!,/'(8 l t C C 2 .... -< ... ::c J> ,., ,- ffl -< "Tl • OJ r- 0 0 ~ ... 2!.86 9. All &lass, plate &lass, and/or glass-enclosed ucvices shall be cleaned at intervals sufficient to maintain the same in a clean conditil'ln. 10. All surface utility facilities servicing the Cnm~on Arca, includin&, but not by way of limi~ation, hr,se bibs, standpipes, sprin~lers, and dr,mestic water lin~s, shall be inspected at rei:;ular intervals and promptly repaired or replaced, as the nccasi0n may require, upnn the occurrence of any defect 0r malfunctinning. 11. All c~mm"n Area amenitie3, benches, and in~~it •1nn3l, directil'lnal, traffic and other signs, shall be inspected at regular intervals, maint~lne~ ifi a clean and attractive surface c0nditi"n and pr0mptly repiired or replaced upnn the occurrence nf &ny def~cts or irregularitiew theretn. 12. All l~mps on lightinn standards shall be inspected at regular intervals, and all lamps and ballasts (where applicable) shall be prn1~ptly replaced when no lnnr,er properly functinninr,. 13. The i~prr,vements nn and tn the Commr,n Area shall be - -........ l .. •. -•. ,u "'\.I .,_CI.L~ f dltU fucil i ties "I quality at least equal t'> the "riginal Q"~lity l}f the materials, apparatus and facilities repaired '>r replaced. 14. The heating, veritilating ano Cl'loling systems fr,r the Mall shall be: (a) inspected at regular intervals; (b) pr'>mptly repaired upnn the '>ccurrence '>f any defect or malfunctil'lni~g; and (c) maintained sn as t'> cnmply at all times with the perf'>rmance criteria attached t'> the f'>reg".>ing Agreement as Exhibit D, Part 3. 15. The Coinrnon Area shall be illuminated during such hours of darkn~ss as the Stnre '>f any Majnr '>r the Developer Buildings shall be '>pen f'>r b~siness to the general public, and for a reasnnable peri'>d thereafter in order to permit safe egress fr'>m the Shopping Center Site by Permittccs, and shall als'> be illuminated by such Comm'>n Arca lighting standards during such h'>u~s '>f darkness as will a rrord rcar,'lnable sccur i ty for the St'>res and Developer Build in&s. l::XIIIIHT E U3rt8 2 2!87 16, The Developer or <'.>tiler Pers"n resp..,nsible f,,r the "pera- ti"n of the Common Area shall use its best efforts to arranse with local police authnritics to: (a) patrol the C"mmon A;ea at reoular intervals, and Cb) supervise traffic directilln at entrances and e;;its to the Comw·,n Area during such hnurs and perious as traffic c0nditions W"uld reasonably require such suparvisinn, 17. The Parties shall use their best efforts to require their resp~ctive Permittees to cnmply with all regulatinns with respect to the Cnffimnn Area, includinG, but nnt by way n: -~;tati"n, posted speed limits, directillnal markings and parkinc-stali m~r~in~s. 18. The heating, ventilatinc and cnlllin& system f~r the Kall sh~ll be <'.>perated, 1~ accordance with the provisillnS nf the forecnini; Agi·eement, at least during ~he same hl')urs of the same c!ays that the heat.inc, ventilatinc and cooling system fllr any !·!ajl')r's Ouildine having direct access to the Mall shall be tlperated. The Mall shall be opcrated_s0 as tll ~ot unduly draw hnt tlr cnol air fro~ any %aj0r's Uuildin5 havino direct access to t~e Hall, any Major's Building havine direct access tll the Hall is open fnr business and fnr reasonable periods bef0re and after such hnurs in order ti') permit safe ingress to and eg;ess frnm the Shnpping Center Site by Permittees. 20. A~pr"priate parking area entrance, exit and directillr.al signs, markers and lights in the Shopping Center as shall be reasonably required shall be maintained in accorddnce with the practices prevail- ing in the operation of regional shl')pping centers in the San Diegn, Calif,,,-11.i.a area. 21. The Parties contemplate that the sound •system installed in the Phase I Mall f0r general proinoti0nal and nperatillnal purposes ryf the Shopping Center will be extended tn the Phase II Mall. The operatinn of such system shall be subject tn the rules and regulatinns adopted frnm time tn time by Develnpcr and approved by the Majnrs. t:XIIIIH'l' ~ 213/'{8 3 2188 22. The Parties do hereby establish the followinc rules and regulativns for the conduct of Persons using the Mall, Perimeter Side1-1alks, Parkilltl Areas, and other Common Area provided for the use of Permittees: A. Roadways, walkways_ and the Mall shall be used in an orderly manner, in accordance with the dirertional or other signs or cuidcs. Roadways shall not be used for parking or stoppinc, except for the immediate lo~dinc or unloadinn of passencers. \lalkways and the l-lall shall n.>t be ,Jsed f.:ir otl.er than pedestrian travel. B No Person shall use the Parl:ing Area E>x<?epi:. fo,· the p11rkir,g of moto-r vehicles. All motor vchiC?les shall be parked in an orderly manner within the painted lines defining the individual parkinc pl,~es. C. Ho Person shall use any utility area, Truck facilities, or other area reserved for use in connection with the cvnduct pc:r,cissi,,n t,, ,,sp sur-h B:'e-;1 is 1!i11en. D. No empl.:Jyee of any business in the Sh,:>ppi.ng Cent.er shall use any area r,,r mo t,,r vehi C? le par Id ni.;, except the area or a:-cas specifically desi0 nated for employee parking f.:>r the particular period of tiwe such use is to be ~adc. Uo employer shall designate an:, area for employee parkiig, except such area or areas as are designated in writing by the .,arties. E. No Persvn, without the written consent of the Parties, shall in or on any part of the Common Area: EXIIIIJIT £ 2/3/'lt', (i) Vend, peddle or solicit orders for sale or distri- bution of any merchandise, device, service, period- ical, book, pamphlet or other matter whatsoever. (11) Parade, rally, patrol, picket, demonstrate or engage in any conduct that might tend to interfere with or impede t..hc use or any or the Common Jlre.i by any 2189 Permittee, create a disturbance, attract attention or harass, annoy, disparage or be detrimental to the interest of any of the retail esc.ablish1,1~11t:; within the. Shoppine Center. (iii) Throw, discard or deposit any paper, glass or extraneous matter of any kind, except in designated receptacles, or create litter or h~zards or any kind. (iv) Except as provided in paragraph 21 of this Exhibit E, use any sound-making device of any kina • r•eate or produce in any manner noise or sound that is annoying, unpleasant, or distaste:ul to OccJpants or Per1Bi ttees. (v) Deface, damage or demolish any sign, light. standard or fixture, landscaplng material or other improvement within the Shopping Center, or the property of customers, business invitees or employees s~tuated within the Shopping Center. The listing of specific items as being prohibited is not intended to be exclusive, but to indicate in general the manner in which' the right to use the Common Area is 1 imi ted and controlled by the Parties in the Shopping Center. F. Any Party shall have the right to remove or exclude from or to restrain (or take legal action to do so) any unauthorized person from, or from coming upon, the Shopping Center or any portion thereof, and prohibit, abate and recover damages arising from any unauthorized act, whether or not such act is in express violation of the prohibitions lhted above, In so acting, such Party is not the agent of other Parties or Occupants of the Shopping Center, unless exprc33ly authorized or directed to do so by ~uch P~rty of Occupant in writing. c;, llothing in the above rules and regc!ations shall add to I.he City's obligations in its eovernmental capacity with respect to the enforcement of said rules and regulations. EXHIBI'f E 71131'/8 5 - EXIIIIJIT f 2/21/78 2190 EXHIBIT F MAINTENANCE AND MANAGEMENT STANDARDS FOR BUILDINGS IN TllE SHOPPING Cf.NTER 1. The Mall Stores shall have their disp.lay windows, and exterior signs (and the Mall shall be op~n and) adequately illuminated continuously during such hours as any Major shall be open for business to the public, but in no event shall Devel- oper be required to maintain such illumination beyond 12:01 a.m. 2. The Buildings and all portions thereor, including vcsti- bules, entrances and returns, doors, fixtures, WJ .. ·1'. s and plate glass, shall be maintai~ed in a safe, neat and clean ~onditlon. 3. All trash, refuse and waste materials shall be regu- larly rernoved from the premises and until removal shall be stored: Cc) in adequate ~ontainers therefor, which containers sh~ll be located so as not to be visible to the general public shopping on the Shopping Center Site, and (b) so as not to constitute any health or fire hazard, or nuisance to any Occupant(s). No burnin~ of tra:o;h. refusf.:' c1nd w:;,t.er ,,,,:;tl"rj;iJ.~ sh;ill Ol"!"llr if sut"!h w.-~uld be violative of any laws, ordinances, rules or regulations. II. The Buildings or any portion or portions thereof shall not be used for lodging purpos~s. 5. Except for the sound system referred to in paragraph 21 of Exhibit E, no advertising medium, sound systeru or other device shall be utilized whit!h can be heard or experienced outside of the BuildinBs, including, without limiting the generality of the fore- going, flashing lights, searchlights, loudspeakers, phonographs, radios and/or televisions. 6. Uo use shall be made of the lluildinu.s or .any portion or portions thereof which would: (a) violate any law, ordinance or regulation, (b) constitute a nuisance, (c) constitute an extra- ha~ardous use, or (d) violate, suspend or void any policy or policies of insurance on any Store, l 2191 Exhibit G, Part l May Adjacent Parking A PARCEL OF LAND SlTUATE IN THE CI1Y OF CARLSBAD, COUN1Y OF SAN DIEGO, STATE OF CAUFOf~NIA, BEING A PffiTION OF SECTION 31, TOvVNSHlP 11 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN ACCORDING TO OFFICIAL PLAT THEREOF, BEING MORE PARTIGI.ILl'RLY DESCRfBED AS FOLLOWS: OCGINNJNG AT THE SOUTHEAST CORNER OF THE NORTH HALF OF THE NORTHEAST QUARTER OF SECTION 31, TOVVNSHIP 11 SOUTH, RANGE 4 WEST; THENCE ALONG THE SOUTH LINE OF SAID NORTH I ~ALF NORTH 89°42'19" WEST, 404.27 FEET; THENCE SOUTH 00°00'C·O" L '\S-r 968.96 FEET, SAID POINT BEING IN THE NORTHERLY RIGHT OF WA\· LINE OF MARRON RD. (73. 50 FEET WIDE); THENCE SOUTH 76°30'00" EAST, 347 .95 FEF.:T; THENCE SOUTH 90°00100" FAST, 577.18 FEET; THENCE NORTH 70°0010011 EAST, 364.63 FECT TO THE TRUE POINT OF BEGINNING; THENCE NORTH 20°00'0011 WEST, 85.07 FEET; THENCE NORT'-1 70°00'00" E':.AST, 20.00 FEET; THENCE NORTH 20°00100" WEST, ::!80.00 FEET; THENCE NORTH 70°00'00" EAST, 180.00 FEET; THENCE NORTH 20°00'00" WEST, 190.00 FEET; THENCE NORTH 70°00100" EAST, 45.00 FEET; THENCE NORTH 20°00'00" WEST, 103.00 FE:ET; THE.;'IICE NORTH G1°49109" EAST, 300.69 FEET; THENCE SOUTH 48"12'4611 EAST, 72. 79 FEET; THENCE SOUTH 03°45147" EAST, 85.00 FEET; THENCE NORTH 86°1411311 EAST, 180.00 FEET TO A POINT IN THE WES1ERLY RIGHT OF WAY LINE OF EL CAMINO REAL (12G.60 FEET WID~); THENCE SOUTH (1~0 45'47" EAST ALONG SAID RIGHT OF WAY LINE, 361.32 FEET TO Tl IE BEGINNING OF A TANGENT CURVE CONCAVE EASTERLY HAVING~. RADIUS OF 2,563.00 FEET; THENCE SOUTHERLY ALONG SAID CUHVE THROUGH A CENTRAL ANGLE OF 03°58'47" A DISTANCE OF 178.03 FEET TO THE BEGINNING OF A REVERSE CURVE CONCAVE NORTl-tv\/ESTERLY HAVING A RADIUS OF 50.00 FEET, SAID POINT BEING IN THE NORTHERLY RIGHT OF WAY LINE OF MARRON ROAD (73.50 FEET WIDE); THENCE SOUTHWESTF:RLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 77·44•3411, A DISTANCE OF 67 .84 FEET; THENCE SOUTH 70°00'00" WEST, 520.45 FEET TO THE TRUE POll'>IT OF E3EGINNING. Y.xhibit G, ~art l 7/21/78 1 • • • t -l r , ,, r ( ' t ~ ... -• t -r, (i ( r ( C -"' --... ~ J ~ r r -• • II: ' C C • .. • ... ~ ' f C • -' I • I 2192 Exhibit G, Part 2 Penney's Adjacent Parking A PAf;;.CEL OF LAND SITUATE IN THE CITY OF CARLSBAD, COUNTY OF, SAN DIEGO, STATE OF CALIFORNIA, BEING/!' PORTION OF SECTION 31, TOWNSHIP 11 SOUTH, RANGE 4 WF.ST, SAN BERNARDINO MERIDIAN ACCOROING TO OFFICIAL PLAT THEREOF, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF THE NORTH HALI· 01· ·rt--1E NORTHEAST QUARTER OF SECTION 31, TOWNSHIP 11 SOUTH, RANGE 4 WEST; THENCE ALONG THE SOUTH LINE OF SAID NORTH HALF NORTH 89°42'10" WEST, 370. 70 FEET; THENCE SOUTH 00°17'41" Vl.'CST, 130.00 FEET; THENCE NORTH 83°52'3311 EAST, 233.98 FEET TO Tl-IC TRUE POINT OF BEGINNING; THENCE NORTH 93<>.~21~'"'11 EAST, 32.05 Fl=:ET; THENCE NO!~TH 64°43'20" EAST, 126.43 FEL · "HENCE NORTH 54°22'20" EAST, 71. 71 FEET; THENCE NORTH 74 ° 16'29,. EAST, 610. 77 FEET; THENCE NORTH 09°5911711 WESl, 31.89 FEET; THEhlCE NORTH 74°30'00'.' E"AST, 73.88 FEET TO THE BEGIN~JING OF A TANGENT CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF 95.00 FEET, SAID POINT BEINl:> THE WESTERLY RIGHT OF WAY LINE Or Hi\YMAR DRIVC; rl-lENCE SOUTHEASTERLY ALONG S/\ID CURVE, THROUGH A CENTRAL ANGLE OF 70°30100" /.. DISTANCE OF 116.69 FEET TO THE BEG!NNING OF A CURVr: CONCAVE EASTERLY HAVING A RADIUS 50,00 FEET; THENCE SOUTHERLY ALONG SAID CURVE THROUGH A CENTl~L ANGLE OF 58°00100" A DlSTANCI::: OF 50.62 FEET; THENCE SOUTH 14°00'00" EA.ST, 80.00 FEET; THENCE NORTH 73°59144" EAST, 187.29 FEET; THENCE SOUTH 02°30'00" EAST, 70.00 FEET; THENCE NORTH 87°30'00" EAST, 2!'i.OO FEET; THENCE SOUTH 02°30100" EI\ST, OC.OC F'CCT; Tl-!!:;!·!CE SJUT!-t 51(1t;Q'OO"'fi.'EST, :210.69 Fr==ET; THG:!·!t:C SOUTH 70°00'00" WE.ST, 260.00 FEET; THENCE NORTH 87°30'0011 WEST, 140.00 FEET; THENCE NORTH 60°57'51" WEST, 146.99 FEET; THENCE SOUTH 00°00100" WEST, 50 .00 FEET; THENCE NORTH 20°00'00" WEST, 21. 72 FEET TO THC BEGINNING OF A TANGENT CURVE CONCAVC SOLTHWESTERLY HAVING A RADIUS OF 10.00 FEET; THENCE NORTI-IWESTEf~L Y ALONG SAID CURVE THROUGH A CENTRAL ANGI.E OF 70°00100" A DISTANCE OF 12.22 FEET; THENCE NORTH 90°00'00" WEST, 185.24 FEET; THENCE NORTH 60°00'00" WEST, 90.00 FEET; THENCC NORTH 90°00'00" WEST, 140.00 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 10.00 FEET; THENCE SOUTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 90°00'00" A DISTANCE OF 15. 71 FEET; THENCE SOUTH 00°0010011 WEST, 13.67 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHWESTERLY HAVING A RADIUS OF 25.00 FEET; THENCE SOUTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 90°00'00" A DISTANCE OF 39,27 FEET; THENCE NORTH 90°00'00" WEST, 2.38 FEET TO THE BEGINNING OF A TANGEr,..rr CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 10.00 FEET; THENCE SOUTHWESTERLY ALONG SAID CURVC Tl IROUGI I A CENTRAL I\NCLC OF 90°00100" A OIST/',NCC OF 15. 71 FEET; THENCE NORTH 00°00100" EAST, 211 ,68 FEET TO THE ~ POINT Q!: BEGINNING. Exhibit G, Part 2 7/21/79 1 2193 Exhibit G, Part 3 Sears Adjacent Parking A PARCEL OF LAND SITUATE IN THE CITY OF CARLSBAD, COUNlY OF SAN DIEGO, STATE OF CALIFORNIA, BEING A PORTION OF SECTION 31, TOWNSHIP 11 SOUTH, HANG£:. 4 WEST, SAN OCRNAl=IDINO, SAN BERNARDrNO MERIDIAN /\CC:ORDING TO OFFICJ/\L PLA'T 11-IEREOF, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF THE: NORTH HALF OF 'THC NOl,nHCAST QUARTER. CF SECTION 31, TOWNSHIP 11 SOUTH, r~NC!:. II WEST; Tl-lt:::NCE ALONG THE SOUTH LINE OF SAID NOHTH H,\LF, NORTH 89°42'19" WEST, 404.27 FEET; THENCE SO' •TH /'\0°00'CO'' EAST, 241.44 FEET; THEI.JCE NORTI ! 00°00'00" WEST, 142.u:." ..:~T; THC::MCE SOUTH 56°30'4611 WCST, 93.96 FEET TO THE TRUr=: PO!N 1· OF BEGINNIMG. CONTINUE. SOUTH 56°30'4G"WCST, 20.00 FEET; THCNCE: NORTH 90600100" WCST, 110.8G FEC:T; Tl ICI\JCE N01::TH 30°00'CO" WCST, 69.29 FEET; THENCE NORTH 90~00'00" WEST, 90.00 FEET; THENCE SOUTH 00°00' 00" Wf:3T, 112,00 FEET; THENCE NORTH 00°00'00" WEST, 166.00 FCLT; THENCE SOUTH 00°00'00" W!.c:ST, S.1.00 FCCT; THCNCE S0U1H 90°00'00" E/\ST, 156 .00 FEET; THENCE SOUTH 00°00'0.J" WEST, 182.<Y> FEET; THENCE SOllTH 90°00'00" EAST, 1?4.00 FEF.T; THENCE SOUTH 00°00'00" WEST, 210.00 FEET; THENCE 1-.JORTH 80°00100" WEST, 45.00 FEET; Tl ICNCt: SOUTH 07°0311511 V\'EST l:v'\DI/\LLY 3G.19 FEET TO A POINT IN A CURVE CONCAVE TO THE SOUTH HAVING A RADIUS OF 842.00 FEET, SAID POINT BL::ING IN THE NORTHEr~LY RIGHT C>FWAY UNE OF M/.>..RRON RD. (82.00 FEET WIDE); THENCE WESTERLY /\LONG SAID CURVE THROUGH/., CENTRAL ANGLE OF 31"5G'43", A DISTANCE or-469,4(, FFr:T; 1'HENCE NOf:;.'Tl I ?4°(,~'?.R" WEST R/\DIAI 1..Y, 4f,,00 FEET; THENCE NORTH OO"OO'OO" EAST, 111.12 FEET; THENCE NORTH 90°00100" wr-csT, 27 .50 FEET; 1 HEI-.JCE NORTH 00°00'00" EAST, 190.00 FEET; THENCE NORTH 90°00'00"WEST, 63.92 FEET; THF:NCE NOl?.TH 00~00'00" EAST, 383.00 FEET; THENCE SOUTH 00°00'0:>" EAST, 763.60 FEET; THENCE SOUTH 00°00'00" Wt.::ST 77.97 FEET TO THE TRUE POINT OF BEGINI-.JING. ·--·-----·---- Exhibit G, Part 3 7/21/78 l 2194 Exhibit C, Part 4 Federated Adjacent Parking A PARCEL OF LAND SITUATE IN THE CITY OF CARLSDAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, BEING A PORTION OF SECTION 31, TOWNSHIP 11 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN ACCORDitlC TO OFFICIAL PLAT THEREOF, BEING MORE PARTICULARLY DESCRI6ED AS FOLLOWS: 8EGINNINC AT THE SOUTllEAST CORNER OF Tl!E NORTH llALF OF TUE NORTHEAST QUARTER OF SECTION 31, TOlr.iSIIIP 11 SOUTll, RANCE 4 Yr.ST: THENCE ALONG Tll1' sourn LUIE OF SAID NORTH llALF, NORTH 89°42'19" WEST, 404.27 FEET; TIIF..'!CE SOUTH 00°00' 00" EAST, 660. 86 FEET TO THE Tr..UE POINT OF I\F.G JllNING; TllF.t.CE SOUTH 79°26103" EAST, 91.00 FEET; Tl!ENCE SOOTH 00600'00" ,ms·r. 58.Sl FEET; THENCE SOUTH 90•00100" EAST, 10,00 Ft:ET TO TUE BEGINNING OF A TANGENT CURVE CONCAVE SOUTln·l'ES'tERLY HAVING A RADIUS OF 50.00 FEET; TUJ::NCE sou·ruEASTERI.Y AI.O:;c SAID CURVE TliROUCH A CE?:TRAL ANGLE OF 90°00'00", A DISTANCE OF 78.54 FEET; THENCE SOUTJl 00°00100" \.'EST, 88.50 FEET; THENCE SOUTH 90"00'0011 EAST, 249.9!'. FEET; THt:?lCE NORTH oo•oo•oo" EAST, 105.19 FEET; THENCE SOUTlt 90°00'00" F..AST, 280.90 FEET; TUI~:CE SOUTH 20°00'00" EAST, 60.98 FEET; THENCE HORTH 70° .03'00" EAST, 100.00 F~ET; THE::CE SOUTH 20°00'00" EAST, 175.00 Ft::ET; THENCE SOOTH 70°00'00" WEST, 35.IJO FF.ET; Tilt:NCE SOUTH 20°0010011 us-r. 86.20 FE.ET TO A POINT IN THE GORTHf .. ;:i@QLJNE OF MARRON RD. (7'3,50 FEi:T WIDE); THENCE HORTH 90°00100" WEST. 513.25 FEET; Tm:::ci,: NORTH 76°30100" \:!::ST, 347.95 FEET; TIIE.'.CE UORTH oo•oo•oo" EAST, 6.17 FEET; THENCE ?IOil.Tll 76°30'00" WEST, 331.90 FEJ,."T TO THE BEGINtm;c OF A TAI:CENT CURVE CONCAVE SOU'rJIF.RT.Y 11,\VU.G A ltAJ>IUS 0~ 842.00 FEF.T; TllF.?;cE wi:sn·1u,Y ALO!:C SAID CURVt. Tm:OUGII A cm,rr.,\L ANGLE OF 06°26'45". A DISTA?:CE 01-· 94.73 FEET; TiiENCE Nor.·rn 07°03'15" !::AST, RADIALLY, 36.19 FEET; TU.E.,CE SOUTH 60°00'00" EAST, 1,5.00 n:ET; Tlll':t,CE NORTH 00°00•0011 EAST, 210.00 FF.ET; THENCE SOUTH 90°00100" F.AST ~ 193 .oo Fi,ET: Tlli-'.~:cE SOUTH so•o3•01" EAST, 176.79 FEEn · =,1¥P··ZHS·f:\ti4%2i®&i:•NM TO TUE ~ W!:! .Q!: llf.Gill::rnc. V.xhtb tt r., rnrt '• 8/11/78 .,, .,, -n -> r- :,1:1 ffl n C ,a C CII .. CII )> z C m (i) 0 n 0 C z .... -< .. :c )> ;a r-m -< .,, • GI ,- 0 0 ~ .. 2195 Exhibit G, Part S Carter Adjacent Parking A PARCEL OF LAND SITUATE IN THE CITY OF CARLSBAD AND OCEANSIDE, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, BEING A POR'fION Of' SECTION 31, TOWNSHIP 11 SOUTH, .RA,~GE 4 WEST, SAN BERNARDINO MRRIDL',N ACCORDING 'ro OFFICIAL' PLAT TIIEREOF; BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT TP.E SOUTHEAST CORNER OF THE NORTH HALF OF THE NORTHEAST QUARTER OF SECTION 31, TOWNSHIP 11 SOUTH, RANGE 4 WEST; THENCE ALONG THE SOUTH LINE OF SAID NORTH HALF N 89"42'19" W, 165.70 FEET TO THE TRl'Z POINT or BEGINNING; THBNCE LEAVING SAID SOUTH LINE OF SAID NORTH HALF, soirr'h, }{ .88 FSET; TH~NCE NORTll 8J•52•33n EAST, 27.13 FEET; THENCE SOUTH oo•oo'OO" \~L.,• i2l.23 FF.ET; THENCE NORTH 90"00'00" WEST, 65.97 FEET; THENCE SOUTH oo·oo•oo" WEST, 15.00 FEET; THENCE NORTH 90'00'00" WEST, 341.66 FEET; THENCE SOUTH 56.10'46" WEST, 21.44 FEET; THENCE NORTH 00·00•0011 EAST, 100.0Q FEET; THENCE NORTH 90"00'00" WEST, 220.00 FEET; THENCE NORTH OO'OO'OO", EAST, 110,00 FEET; THENCE NORTH 90•00100" WEST, 30,00 ;EET; THENCE NORTH OO"OO'OO" EAST, 45.38 FEET TO A POilIT ON T::E SOUTH LINE OF SAID NOR'CIIEAST QUARTER; THEtlCE ALONG TUE SOUTH LINE rlORTII 89"42' 19" WEST, 662.16 FEET; Tl!E."lCE NORTH 46"36'53" EAST, 180.54 FEET TO TUE BEGINNING OF A TAt:GEtlT CURVE CONCAVE S0l'TIIEASTERLY IIAVINC A RADIUS OF 315.00 FEET; 1'HENCE NORTHEASTERLY ALONG SAID CURVE, THROUGll A CENTRAL ANGLE DF 41.28119" A DISTANCE OF 228.00 Ff.ET; THENCE NOR1'H 88"05 112" EAST, 137.15 FEET TO THE BEGINNING OF A TANGENT CUF.\IE CONCAVE SOUTHERLY HAVING A RADIUS OF 31S.OO FEET; THENCE EASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGJ.E OF 44'26'59", A DISTANCE OF 244.38 Ft:ET; THENCE SOUTH 47•27•49" F.AST, 201.36 FEET TO A POINT ON THE SOu'TH LINE OF SAID NORTHF.AST QUARTER; THENCE NORTH 42• 32' 11" EAST, 160.00 ~'EET; THENCE NORTII 47"27'49" WEST, 201,36 FEET TO THE BEGINNING O!" T.".Y.CfillT CUP.VE CO~!CJ\\JE SO!!!!!!·!ES!ER!.Y H.A\IINC .A P.ADHI$ OF 475,00 FF.F.'l'; THENCE NORTHWESTERLY ALONG SAID CURVE, THROUGH A CEh"TRAL ANGLE OF 22"28'48", A DISTANCE OF 186.37 FEET; THENCE NORTH oo·oo•oo" EAST, 84.73 FEET; THENCE NORTH 39•41•2s" EAST, 500.04 FEET; THENCE SOUTH 00•24'11" EAST, 439,22 FEET TO A POINT IN THE llEKEINBEFORE HEN'l'IONED SOUTH LINE OF SAID NORTH HALF; THENCE SOUTH 89"42 1 19" EAS'l', 160.00 FEET TO THE TRUE POINT OF BEGINNING. E~hibit C, Part S 8/11/78 1 2!96 EXHIBIT H SIGN STANDARDS FOR DEVELOPER BUILDING~ 1, These standards aprly only to exterior signs whjch face the Mall or any other Common Area.· 2. The advertising or informative content of all signs shall be limited to letters designating the store name and/or type of store (whi~h such designation of the ztore type shal. ~ by general descriptive terms and shall not include any specification of the merchan~1se offere1 for sale therejn or the ~ervices render~d thPrei~) only ~nd shall contain~~ advertising devices, slogans, symbols or marks (other than the store name and/or type of store, as aforesaid and other than crests or corpor.:c.te shields which shall be permj ttcd). 3, The lett~rs on all signs shall be either in script and/or block; the size of the letters shall be in proportion to the size or the sign, as determined in accordance with the provisions of subpa1·a11.raµhs D c!!!•J G of !)aragrap!. 5 of this Exhibit H: and if thi:.> letters are back-illurninatecl, the lamps therefor shall be contain~d wholly within the depth structure of the letters. ~. One small-scale standard sibn designated by Developer jnstalled at a location designated by Developer, may be placed at a right angle to the facade of the Occupant's premises. 5. All signs shall be in accordance with the following require- ments: (A) The sign and any part or parts thereof, except as otherwise provided in subp~ragraph (C) of this paragraph 5, shall be located within the physical limits of the store front of the premises of the Occupant. (B) All signs and identifying marks within the Mall shall occur within the limits of the lea5e lines nf the Occupant's prerniscs, except as respects said small-scale standard sign, and signature signs on the windows or doors of the Occupant's premises. EXHIBIT II 2/21/78 1 2197 (C) Nn sign or any part nr parts there<'f shall project beynnd the st<>re front mnre than eight (8) inches, ellcept f,,r said small- scale standard sign, provided in paragraph II hcre,,f. { D) The max imuni length <' f each si en shall be determi tle:!d by the foll,,winc f,,rmula: Fo,,t frontage* of the stnre multiplied by 0.66, pr0 vidcd, however, in nn event shall any sign exceed a length nf thirLy {30) feet. (E) Ho si~n within the Hall shall exceed .· 1r. l:r.Jm bl'ie,htness of one hundred (100) foot lamberts and nn sign located nutside nf the Mall ~hall exceed a maxi~um brightness of twn hundred (2GO) fnnt lamberts. (F) All signs shall be fabricated and installed in cnmpliance with all applicable building and electrical codes and bear a U. L. label. (G) Sicns shall not exceed thirty (JO) inches in hei~ht, except f,,r the signs r:·ferred to in the fnllnwinu subparagraph (H), wtlich such sicns sna11 not exceed f,,rth-ei&ht (118) inches in heieht. (H) Subject to Section 23.l, signs may be lncated nn the exteri.,r portinns -,f the Devel0per Buildinr.s expnsed to the Parking Area, at such locat~ons as may te designated by Developer; prnvided, however, the size, design and Cl)lor of such exteri.,r signs sholl be subj~et t" the approv&l -,f each Kajnr, These signs shall be limiteu to stnre name and/or st,,re type "nly, shall be c-,nstructed ,,~ suitable mat:a!rials f<>r weather cxp,,sure, and shall conf-,rm tn all applicable limitations set forth above. No p,,ri:.il)n of such signs si,..ill be m,,unted abt.>ve the fascia "r less than seven (7) feet above the Perimeter Sidewalks. *F.,.,t frnntace of the stnre is defined as the length nf facade measured between lease lines sepnrating the st<>re from Cl)mmnn areas or t.>thcr stnrcs, as the case may be. EXII !BIT II 2/'j/'{8 2198 (I) Corner stores may have signs on each facade, subject to the requirements of this Exhibit. (J) Except for one small-scale standard sign, signature signs and, except as provided in the preceding subparagraph (I), no O'!c1Jpant. -;ha] 1 erect more than one sign within the Mal 1 or n1ore than one sie,n on the exterior of the Deve]oper Bu.ildings. 5. The fabrication, installation and operation of all signs shall be subject to the fo]lowing re5trictions: (A) Ho exposed neon, fluorescent and/or incandescen tu"ing or larnps, raceways, ballast boxt-s and/or e]ect.rical tran,;forin . .-s, crossovPrs, conduit and/or sign cabinPts sha11 bP permitted. (B) No flashing, moving, flickering and/or blinking il]Uffiina- tion, animation, movi.11g lights and/or flood) ighl il luminalion shal I bP perm~tted. (C) The name and/or stamp of the sign contractor or sign company or both shall not be exposed to view, unles,; required by applicable laws. 6. The following type nigns are prohibited: (A) Paper signs and/or stickers utilized as signs. CB) Sign,; of a tPmporary character or purpose irrespective of the composJtion of the sign or material used therefor. (C) PrintPd signs, except, however, one non-illuminated, smallscale "sienature sign" which is lettered on the glass portion of a store front of an Occupant and/or affixPd to such store front surface, provided such sign does not project more than two (2) inche~ from the store front surface. (D) Moving or flashing signs. EXIIIDIT JI 6/12178 3 .,, .,, -n -> r- "' m n 0 "' CJ "' ... "' > z C -m c:, 0 n 0 C z -t -< ... :c J> ;a ... m -< .,, • a ,... 0 0 3 ... :;1111: ff r C -ic C " ~ -~ \ ) I \ I l I°" \.; ') .•' 2199 EXUIDIT I DETAIL FOR PENNEY IDF.NTIPICATIO~ SIGN IN PU13T,IC PJ\Hl<I1'G /\REA ~~i;i1r;·~:··:;·· '""'·'' -~ ... . .. ,"'"::., ~~~ t~!; f ~ .... ~i:j~?\·._;·-. .... ·, .r..::~ ·!\·•·· . . • •:;~: ···~\:·~-~ .. ·· ~ ... • •• •.1. •,. :-:, ·' • r)J-.i:~:;:li~ ..... · .. _:;~; .. .. · · ,~ ',--~· -, .. , . .;.\.. . {:~~tgit:.)··· f .. ?,1 ::;;~.:: .t :_ •• ,,. .. , ..... -,:. , .. ,. ,f ,·.:··l::·.·r·, .,, .... . ~~ : ... ; -; .. ~: :-· ...... . \i°"'>:f:t:i,:.::·l··;· :, ii:r:;;~r;:: r · !,?·J·.:.~.;.:.~~ ~ ~-->:' iri~~ti1-. .. ;~~ 'L''.~,.~~1; ;11 •• , • ,. . .. ........ ,, .. (;,.·,,._ ;:.~•:1;"~f· . .1 .: ••• t• .... ;·•;;;·-1·~··:~· • .. I!'.•,• .·;. ..... •; ,, •• ·,~ ••••• f'"" .. ~~t':!)~;•r,·!," r : .;.:..,.~ .... ,(.;:~: .. " . s · .·. :~;::t/ :~ 11,·,f .... t ··,·. ;"/'..~ ~~ :-, i ./.'!i:\~,:.::,"" . ;:• . . . ·l"'"•'"{ .. .:, .· .. t J. .. . ... •. ... .. . . . . . ...... •.· .. .. •" I .. ... . ,· ..... ~-. .. ._. ·,. .,··· ,.. " • ·. i~(:f.;~!I: .. • .. i• ...... ·:'::.,''::::··=··':'.::"'. ...... .,.. _________________________ ...;. ____ --------------- l, .... ;..;:;;Jr!fl-.. ~:.*'-;-~· .. •. .• I ,·· .. .. , ' ..·. :, I 'f l/13/69 "····~---... . ................. ··-··· ............................. -.................... _ .. __ ......................... . ,a ffl n 0 ~ C, "' ... "' > z C -ffl Ci) 0 n 0 C: zl ... 1 ·-< .... :c > ,a ,.. ffl -< ~ • • ,.. 0 0 3 ... ... I ·-.... ·--·---··-·----''--------..., .. FFICIAL RECORDS, SAN DIEGO COUNTY, HARLEY F. BLOOM, RECORDER _. .... _ ........ , ..... . . ... .. .. -:.--=-- M :~ ... -::: .. .az:: -·-.... ··-.. ·---·---.i· _____ , .. ,_ ,....,... l:-:.~ .. ---~--·-·-·: ·-=--11t:-E'!:,.::~ _,. I '. YIMtt Mt Ff -L.. ,,, ttete n =====:.... --------------·-·-------_-_ .. _ -"I --·-- --··--·---1 I ,, I I I I : ' -·-----... _ ... _ ··---... __ _ ........ ______ _ .. _ ..... _ =.:o-=:: -----.. ... ·---.... .... ___ ...... __ .. ---"-- j 1 .._. ...... , --,-.. ..... ........... ,. -- l . . ------· ___ ___. ___ ___,,......_..----ii FFICIAL RECORDS, SAN DIEGO COUNTY, HARLEY F. BLOOM, RECORDER WI :r:: ,=..., ----lii -----···-.. ~-=----• .:;:=.-...._ • :':!.=-;_:,,,.._~-- E'!.~te--u '"' I . ., ::. -Ii -------= :: -&c_.....,...,... ... _ .... ......,. .. _ ... __ ~==--:. .... _ ==== ==--:....---. ---·---~ ............. .. ---"--._ ·-·-..---· ···-····------- ............... ,-Corm fdstz ~ ..... ~ ... u. .,..._ ..... .. ......... ' .. . A•",• ': •) ( 2202 Exhibit. K Legal Description of Slope Area All that reol property situated within the City of Carlsbad, County of San Di ei;o, State of California, being those porti,,ns of Secti.:in 32, Township 11 south, Range 11 west, San 6ernardino mcri~i~n acrordinc to United States Govcrn~ent'Survey ~pp~ou~d April 5, 1891, together with those portions of Lots 11, 12, 13, 14, 15 and lo of Hosp. Eucalyptus Forest Company's Tr~c~ No. 1, accordinc to ~ap thereof No, 1136 filed in said County Re,w-~:r's Office June 8, 1908, described as a whole a~ follows: Beginnin& at a 3 inch by 4 inch stake at the south- eas~ corner of the no, ~h half of Section 31, Township 11 south, Runge q west, San Ucrnardino meridian, accordinc to map of Record of Survey No. 31~1 filed July 30, 1953 in said County Hec~rder•s Office (the bearine of the east line of said Section 31 being north 0•24 141", west for pur~ases of ~his description); thence s~uth 75°43•35•, west 91.76 !Jct; thence south 50°07'0S", \ICt:t 68.49 feet; thence n.:,rth 83"1111'2511 , west 273.67 fee~; thence north 77"34'50",west 213.61 feet; thence north 51°05'25", west 58,70 feet; thence north 36°50'25", west 118,53 feet; thence north 5if 38'16", w•.·st .'Hl1. 19 fe1ct t,, en inte•·:;r:"t.i·'.I" with t-hat. •··~··t.ai'l course hereinbefot·e described as having a beari~B of south 76°30'00", eaat and a distance of 126~.00 feet (said intersection being at a point distant north 76°30'0011 , west 1015,411 feet from the ea5terly terminus ' of said course); the9ce continuing south 76~30 100 11 , cast 1015.i:11 feet; thence east 7110.00 feet; thence no"th 77°15 151", cast 777,92 feet to the westerly line of the land described i'l easement to the City ,,f Carlsbad, for Public Highway Purposes recorded March 11, 1966 as Document It.:>. ll22ll5, Official Records of said County; tilencc s.:>utherly alone said westerly line a distance of 41,39 feet; thence s.:>uth 17°42'40", west 81.46 feet; thence south sr l.9 '2011 , weat 75,95 feet; thence south 77°06'50", wpst 113.14 feet; thence S..)Uth 84° 115'4011 1 west 136'.00 Teet; theMe n•:>rth 63°16 '50", west 127. 88 feet; thence south 76°53'10", west 123,61 feet; thence south 1111°3s•10 11 , west 297,75 feet.; thence north 41.f 56'50", west 215.00 feet; thence snuth 89 58' 10 11 , west lll6.52 feet; thence south 72~112'55", west 163.99 feet; thence south 54°55'05", west 103,22 feet; thence south 77•11150 11 , west 114.56 feet to the point of beEinning, EXlllUIT K 2/3/U, -1- i.,, "Tl -n -> r- ~ m n 0 ,ii:., C .,. ... .,. . > z C -m Q 0 n 0 C z .... -< : .. ! I :c ! I > \ ,i, .... m -< ,, • GI .... 0 0 ~ ... ~ ffl n 0 ,.. 0 ffl ,r, ., :,l -.; ; ~; ·f I .t ,• : . · .. : ., •... ~.fFICIAL RECORDS, SAN DIEGO COUNTY, HARLEY F. BLOOM, RECORDER. ~·-~·....,... ......... ..........,._. .............. --- ... ~==~~ii\ ·~w:-. t,r;s ~--. ... -.. ~ • --------·-·-• "91"!1• ~v::--. 5.ili ____ _ •.fer.,~---=·.:. WA ... ~··· -· -lltZ9 IMU r -------·----r----------- 1 I . I I I I I l ... .--·-------. ~--~ . .....:. ==--:.--':. . I"'" ..&===--- :···---· ,. -.. -~ ... . •. • ..... -·-....,.,_,,..._ .,,.,, ... ,.., -........ ---· .,,_--,.:o·• ·:- . .. ! ·--·---... ___ ..... _ ·--:~==~~~:-:::::::::::::::--:~:-::=---------.-::-"'.'."'.":-~-:·:.:::;-:;.... ____ ....;. ______________________________ 11 ·-··~·--.. --~=,.;..,.,.,.i,:~-:-....... ....:i....-. ........................... ....__.a..:,;,;.:~=,u....,.. ............. ~----------------------.:....----========~~~::~:: .......... I .fe.f!ICIAL RECORDS, SAN DIEGO C 0 0UNTY, HAR 0 LEY F. B~OOM, RECORDE!I ----------------···-· ~; ' ., : : ,f ·I ' ,i :I ~. ..:jt '= 'N ; ··N .! i l . l .. t :.1 :1 · t ,! 1 · 'i u .. . .. _, __ :· . ·. ·:· '. .. ·:' ... _. ~ !, ~ \~ ... ~ .. ;, /·. ·~ ........ ·~. i,_; f : .... ·;''. •. ·.·· ..... , · .. ,• : '· :., '·· .. · -•:---"---·· :~=·= . ..,.... ____ ... --.\c::.--:...;_. ·--·---...-.. ............ ... ---.·• ·---· ... : . ·.i ' ::i . ,. • .:,. -~ ..•. ·.• •J . I • ' ~ __ -;_ _ _:_·:r_:..___ I ..-=t-1----·· --=-...e. ---------·-=-=-=--=-=-=--'""""'-"""--'""'"----·---=--~'' ..... .,. ' ' . ....... ; ............ , · '811 Ctrml!f, ~--..,m.-•• - .i ...... ----------:-----.--.-:--.:---------------.;....----------':'""'---~---------------------------·.t ... L.:.. .. ~. ,.,.., m · r ···:...;:.,·· ..... 11oo··iiiii ...... ..,j .•.. iil, . ..,. ........ ..-----..... ---'-............. -------· ....... -.. _ _.__...____......._ ___ ----___, l ----.. •····· .................. ._ ........... .- ~~· " ,, fl r, ,, ~· ~, ~ ' ~ { -..:;._, i 4 '~ . ·~ : ' . . ... --. -· · .. ---·-··-------------------- _fFICIAL RECORDS, SAN DIEGO COUNTY, HARLEY F. BLOOM, RECORDER r .... ~ . . ... ·,.- l....--~-r ....... This isa true certified copy of the record "~}~~'''"' GREGORY J. SMITH AUG 1 7 2006 Assessor/Recorder/Clerk San Diego Count)( California • --, SUPPLEMENT TO PnOVISIONS OF SECTION 27,18 OF 6-PARTY REA THIS DOCUMENT constitutes a part of the 6-Party ~onstruction, Operation and Reciprocal Easement { "the 11 6-Party_ REA") amone the undersigned dealing witb the PLAZA CAMINO REAL SHOPPING CENTER in San Diego County, California. It _is executed concurrently with the 6-PARTJ REA and supplements the provisions of Section 27,18 thereof. The Parties agree that this document shall not be recorded. The (irst sentende of ~ection 27.18 provides that the ·necessary arrangements to permit the construction and operation of the Phase II-0 Public Park~ng and the construction and opera-·/ tion of the Carter Store in ~ccord·ance with-the .6-Party REA have not yet been concluded,: Developer and _Carter represent that the necessary arrangements consist of the follo":'ing :·· (a) Obtaining from the Cities of Oceanside and ·Carlsbad and any other governmental authority having jurisdiction the necessary approvals and permits to: (i) relocate the channel shown on Exhibit L of the 6-Party REA, from its present loca- tion, as shown on Exhibit L, to the location shown on.Exhibit C~ of the 6-Party REA; (ii) construct a.concrete box culver~~ swFfaee level pieu•lcii.s iliilc 5.n a portion of such channel as . \ .. shown on Exhibit C; and (iii) utilize the Phase II-0 Public ~ ~arking Land for automobile parking in accordance with Exhibit C. from the City of Carlsbad its approva1 . .---j. . ment, previbusl~ approved . oviae-f~ion of ~\( the Carter Tract. · ,-._ . -----l (cl Entering into an agreement with Cit; o; Carlsbad ~ and its Parking Authority for the exch~n~e of the Authority- CarLe~ Parcel for the Phase I-B Public ParkinB Land • 8/7 /78 -1- \ ' l ,-t I,, • Page 2 Developer and Carter agree to use their best efforts to conclude such arrangements. ASSIST ANT SECRET ARV • ATTEST: ATTEST: . ATTEST: 2/15/78 -2- PLAZA CAMINO REAL By: The May Stores Shopping Centers,·Inc a Corpo~ation, ol G~neral Partner / 1 I~ By~~~~--=-~=-~~~~:;.:..:.~--~- J. c. SEARS, ROEBUCK AND CO. FEDERATED DEPARTMENT STORES, INC. By .. CARTER HAWLEY HALES STORES, INC. . . Page 2 Developer and Carter agree to use their best efforts to conclude such arrangements .. ATTEST: ATTEST: ATTEST: A TT EST: ATTEST: L__· ATTEST: ~~~~~-~ ~ 2/15/78 PLAZA CAMINO REAL By: The May Stores Shopping Centers, Inc. a Corporation, Sole General Partner By THE MAY DEPARTMENT STORES COMPANY J.C. PENNEY COMPANY, INC. By SEARS, ROEBUCK AND"co. FEDERATED DEPARTMENT STORES, INC. .By~/'{j~ Executive Vice President .. INC. VICE PRESIDENT' -2- ----~-~-. -·-------~m~--.... --------:::::---~-------• ..,. . ....,.,____ ~ t'l!Ga~~ •. -. . .,w r, • Page 2 Developer and Carter agree to use their best efforts to conclude such arrangement~. ATTEST: ATTEST: ATTEST: LEGAL ATTEST: APPROVAL 766.PC 1df71,~ ATTEST: ATTEST: 2/15/78 -2- PLAZA CAMINO REAL By: The May Stores Shopping Centers, Inu. a Corporation, Sole General Partner THE MAY DEPARTMENT STORES COMPANY J.C. PENNEY COMPANY, INC. By SEARS, FElJERATED By LITIES GER RTMENT STORES, INC. CARTER HAWLEY HALES STORES, INC. By