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Home My WebLink AboutPlaza Camino Real; 1978-08-15; Part 2 of 2ORIGINAL 1977 TABLE OF CONTENTS FOR 6-PARTY AMENDED AND RESTATED CONSTRUCTION, OPERATION AND RECIPROCAL EASEMENT AGREEMENT (PLAZA CAMINO REAL) 78-346427 """Wiui —fteeOKOED REQUEST OF HUE INSURANCE AND TBUST AUCI5 .-.t:o»DS CUNTY.CAUF. RtCiMDE* RECITALS ARTICLE 1 1.1 1.2 1.31.4 1.51.6 1.71.8 1.91.10 1.11 1.12 1.13 1.14 1.15 1.16 1.17 1.18 1-19 1.21 1.22 1.23 1.24 1.25 1.26 1.27 1.28 29 30 31 32 33 34 35 36 37 38 3940 41 42 43 44 45 46 47 48 1.49 1.50 1.51 1.52 PEFIMITIOKS Accounting Period Agreement Tor Phase II Public Parking Adjacent Parking Building(s) Building Height Carter Store Opening Date Center Parking City Commcii Area Common Area Maintenance Cost Common Area Maintenance Cost Allocable Share Common Building Component Court Developer Buildings Federated Store Opening Date Floor Area Improvements Lease Kajorsi*. -i»• •CB.* A Mall Maintenance Cost Hall Stores Mortgagee and Mortgage New Public Parking Lot Operating Agreement lion-Mall building Sites Non-Mall Buildings Occupant Parking Area Parking AuthorityParking Ratio Party Penney Main Store BuildingPenney TBA Building. Perimeter SidewalksPermissible Building AreaPermitteesPersonPhase 1 Land: Phase 1 HallPhase 1 Mall Stores Phase I Public Parking Phase 1 Public Parking LandPhase 1 REAPhase I-A Public Parking Land Phase 1-B Public Parking LandPhase 11 Developer Construction Phase II Land Phase II MallPhase 11 Hall Stores Phase 11 Parking Phase 11 Public Parking Phase II Public Parking Land PAGE t.'O. 1-4 fit 4 4 4A 4A 5 5 5 5 556 66 66 7888 ' 888 99999 9 9 10 1313 13 13 13 14 14 14 14 14 14 14 14 15 15 15 15 15 15 15 15 7/13/78 -1- 1978 1.53 Phase II-O Public Parking Land 1.54 Planned Floor Area 1.55 Planned Phase II Opening Date 1.56 Planned Carter Opening Date 1.57 Planned Federated Opening Date 1.58 Project Architect 1.59 Project lupro.etaent Requirements 1.60 Proximity Area 1.61 Public Parking 1.62 Public Parking Documents 1.63 Public Parking Land 1.64 Public Parking Operating Agreement 1.65 Retail Facility 1.66 Scars Store Opening Date 1.67 Shopping Center 1.68 Shopping Center Site 1.69 Slope Agreement 1.70 Slope Area 1.71 Store 1.72 Termination Date 1.73 Tract 1.74 Truck Facilities ARTICLE 2 PHASE I AMD PHASE 11 PUBLIC PARKING 2.1 Phase I Public Parking Documents 2.2 Phase 11 Public Parking Documents 2.3 Phase 1-A and Phase I-B Public Parking Land; Authority-Carter Parcel ARTICLE 3 LOCATION, SU£, HEIGHT ftHD USE OF BUILDltlCS 3.2 Planned Floor Area 3>3 Minimum Floor Area and Maximum Height of Hay Store 3.4 Kiniraun Floor Area and Kaximun Height of Penney Store; Maximum Height of Improvements on Penney TEA Site 3.5 Kini wr. Flci.- Area sr.i Maximum Height cf Sears Store 3.6 Minimum Floor Area and Maximum Height of Federated Store 3.7 Minimum Floor Area and Maximum Height of Carter Store 3>8 Minimum Floor Area of Kail Stores; Proximity Areas; Maximum Height of Kail and of Kail Stores; Maximum Height of Uon-Hall Buildings 3.9 Uses AJST1CLC 4 COKSTRUCTIOi; EY KAY AMD PEKUEY 4.1 Approval of Existing Kay Construction 4.2 Approval of Existing Penney Construction ARTICLE 5 CQltSTRUCTlOU PY SEARS. FEDERATED AltP CARTER 5.1 Plans for Sears, Federated and Carter Stores5.2 Construction of Scars, Federated and Carter Stores5.3 Opening Dates for Sears, Fed'-atcd and Carter ARTICLE 6 COHSTKUCTiQH BY DEVELOPER 6.1 Approval of Existing Developer Improvements 6.2 />*velo|w»r(s Obligation to Construct 6.3 Project Improvement Requirements and Working Drawings and Specifications PACE NO. 15 16 16 16 16 16 16 16 16 17 17 17 17 17 17 17 17 18 IS 18 18 18 18 18 20 21 22 ->*> 23 21 25 27 27 28 29 31 32 32 32 33 33 3335 37 37 37 38 7/13/78 -11- 1979 PACE NO. 6.4 Governmental Approvals 40 6.5 Completion of Phase T.I Developer Construction 40 6.6 Take Over of Phase II Developer Construction 40 6.7 Opening of Phase II Mall Stores 41 ARTICLE 7 COMMON AREA MAINTENANCE COST ALLOCABLE SHARES 41 7*1 Common Area Maintenance Cost 41 7.2 Accounting Period . 43 7-3 Common Area Maintenance- Cost Allocable Shares 44 7.4 Payment of Allocable Share 45 7.5 Separate Books and Records; Right to Audit; Segregated Bank Account 47 ARTICLE 8 MALL MAINTENANCE COST CONTRIBUTIONS 49 8.1 Mall Maintenance Cost 49 8.2 Contributions of Majors Toward Mall Maintenance Cost 49 8.3 Separate Books and Records; Segregated Bank Account 49 ARTICLE 9 CONSTRUCTION STANDARDS 50 9.1 When Construction Commences on a Store 50 9.2 Diligently Proceed With Construction 50 9.3 Workmanlike Construction; First-Class Materials; Compliance With Laws 50 9.4 No Interference With Operation of Center 51 9.5 Coordinate Construction 51 9.6 Safety Measures; Indemnification 51 9.7 Construction Barricades 52 9.8 Certifications Re: Construction 53 9.9 Review of Plans, Drawings or Specifications Within Thirty (30) Days . 53 9.10 Construction to be Separate "Works of Improvement" 54 '9-11 Common Area Construction Plans 54 ARTICLE 10 GRANT OF EASEMENTS 55 Easements for Parking and Passage 55 Easements for Utilities 55 Further Utility Easements 56 Easement Grants to Public Utilities 57 Easements for Footing, Etc. 57A Easement for Support of Mall 58 Duration of Easements 59 No Dedication 59 Relocation of Utilities 59 Correction of Site Descriptions 60 ARTICLE 11 MAINTENANCE, OPERATION AND MANAGEMENT OF COMMON AREA AND SLOPE AREA 61 11.1 Operation and Maintenance of Parking Area 61 11.2 Maintenance Standards 62 11.3 Operation and Maintenance of Developer Improvements; Parking Ratio 62 11.4 Perimeter Sidewalks 6311.5 Maintenance and Repair of Utilities . 63 11.6 Penney Conduit System 61 11.7 No Charge for Parking 64 11.8 Employee Parking 6511.9 Obstruction of Common Area 65 .1 .2 .3 .6 .7 10. 10. 10. 10.4 10.510. 10. 10.8 10.910.10 I 7/13/78 -Hi- oc CD ARTICLE 12 12.1 12.2 12.3 12.1 12.5 12.6 ARTICLE 13 13.1 13-2 13-3 13. 1 13-5 13.6 13.7 13.8 13.9 13.10 13-11 13-12 13.13 '13.11 13.15 13-16 ARTICLE 11 11.1 11.2 11.311.1 11.5 TAKE-OVER OF MAINTENANCE, MAHAGEMENT AND OPERATIOH OF COMMON AREA AND SLOPE AREA Applicability of Certain Sections Right of Take-Over By Arbitration Right 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 Restoration of Developer Improvements Construction Requirements - Developer Maintenance, Repair, Reconstruction and Replacement by May Right to Raze, Remove, Relocate, Alter, Remodel or Add to May Store Maintenance, Repair, Reconstruction and Replacement by Penney; Termination of Penney Obligations Under Certain Circumstances Right to Raze, Relocate, Alter, Remodel or Add to Penney Store Maintenance, Repair and Reconstruction and Replacement by Sears Right to Raze, Relocate, Alter, Remodel or Add to Sears Store Maintenance, Repair, Reconstruction and Replacement, by Federat.ec] Right to Raze, Relocate, Alter, Remodel or Add to federated Store Maintenance, Repair, Reconstruction and Replacement by Carter Right to Raze, Relocate, Alter, Remodel or Add to Carter Store Termination of Obligations Common Building Components ARTICLE 15 15.1 15.2 15.3 FIRE JND PUBLIC LIABILITY INSURANCE Developer Insurance Requirements Majors' Insurance Requirements Self-Insurance Mutual Release; Waiver of Subrogation Insurance Provisions in Grant Deeds and Public Parking Operating Agreement INDEMNIFICATION 16.2 XT 17.1 17.2 Expiration of Right t,o License VIVtft 66 66 66 67 68 69 69 71 71 71 72 73 71 71 75 76 77 77 78 79 79 80 80 61 81 54 87 8990 90 91 Indemnification by Developer 91 Indemnification by Majors 91 Indemnification for Common Area and Slope Area 91 Compliance with Laws Right to Contest Laws 91 91 7/13/78 -iv- 1981 ARTICLE 18 18.18. 18.18. 18.518.6 18.7 18.8 18.9 18.10 ARTICLE 19 19.1 ARTICLE 20 ARTICLE 21 21.1 21.2 21.3 21.4 ARTICLE 22 22,1 22.2 22.3 22.4 ARTICLE 23 23.1 23-2 23-3 ARTICLE 24 24.1 24.2 24.3 24.4 ARTICLE 25 25.1 25.2 25.325.4 25.5 25.6 25.7 ARTICLE 26 26.1 PAGE H( 95 95 98 102 105111 114114 115 115 116 118 OPERATING COVENANTS Nay Operating Covenant with Developer Penney Operating Covenant with Developer Sears Operating Covenant With Developer Federated Operating Covenant with DeveloperCarter Operating Covenant With Developer Assignability of Operating Covenants of the Majors Manner of Operation of Majors' StoresSubordination of Operating Covenants of Majors Use of Major's Tracts After Operating Covenants EndDeveloper Operating Covenant ADDITIONAL DEVELOPER "OVENANTS Provisions to be Included in Leases of Develope. Tract 118 Withdrawing Land from Developer Tract 116 FORCE HIJEURE » 118 ARBITRATION 119 Right to Arbitration 119 Selection of Arbitrators 119 Arbitration is Condition Precedent to Judicial.Proceedings 120 Costs and Expenses of Arbitration 121 NOTICES 121 Notices to Parties 121 Notices to Mortgagees 123Additional Notices to Mortgagees and Right to Cure 123 Notices to City 123A SIGNS 124 Developer Covenants 124 Signs of Majors 125 Penney Sign on Developer Tract 125 TAXES 125 Payment of Taxes 125Taxes May Be Paid In Installments 126Payment of Another Party's Taxes 126Contesting Taxes 126 CONDEMNATION "127 Condemnation of Tracts and/or Improvements 127 Condemnation of Parking Area 127Taking of Permissible Building Area 129 Use of Condemnation Award 130Division of Condemnation Award 131 Award to be Placed in Segregated Bank Account 131Arbitration to Resolve Disputes 132 COVENANTS RUN WITH THE LAND 133 Covenants of Each Party 133 7/13/78 -v- ARTICLE 27 MISCELLANEOUS 27.1 Waiver of Default 27.2 Self-Help 27.3 No Principal-Agert Relationship 27.4 Consents and Approvals 27.5 Agreement Binding on Successors and As: 27.6 Release of Parties 27.7 Severability 27.8 Captions 27.9 California Law Governs 27*10 Amendment of Agreement 27.11 Sale-Leaseback; Lease-Leasebaek 27.12 Exhibits Incorporated by Reference 27.13 Locative Adverbs 27.11 Obligations Cease on Termination Date 27.15 No Mechanics' Liei,i- 27-16 Breach Shall Not Perm , Termination or Mortgage 27.17 Use of Words "Include" and "Including1' 27.18 Carter Contingencies ARTICLE ?ft REACQUISITION OF THE PUBLIC PARKING Exhibit Designation Exhibit A Part 1 Part 2 Part 3 Exhibit B Part 1 Part 1.1 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 LIST OF EXHIBITS Description Legal Description of Shopping CenterSite Legal Description of Phase I Land Legal Description of Phase II Land Legal Description of Portion of Develop Tract Owned by Developer Alone Legal Description of Portion of Developer 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 I-B Public Parking LandLegal Description of Phase II Public Parking Land Legal Description of Phase II-O Public Parking Land Legal Description of May Tract Legal Description of Penney Tract Legal Description of Sears Tract Legal Description of Federated Tract Legal Description of Carter Tract Legal Description of Authority-CarterTract Shopping Center Site Plan 7/13/78 -vi- 1983 Exhibit Designation Exhibit D Part 1 Part 2 Part 3 Exhibit E Exhibit F Exhibit G Part 1 Part 2 Part 3 Part U Part 5 Exhibit H Exhibit I Exhibit J Part 2 Part 1 Exhibit K Exhibit L 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 Description of Slope Area Site Plan Modification for Four Depart- ment Store Layout Initial Reference Section 12.6(B) Section 12.6(8) Section 12.6(B) Section 12.6(B) Section 12.6CB) Section 23-HA) Section 23.1(B) Section 12.6(8) Section 12.6CB) Section 1.67 Section 27.18 C n C C r Cc 2 Attachments - 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 Carter Tract - Agreement of Fee Owners of Non-Mall Building Site I 7/21/78 -vii- 1984 6-PARTY AMENDED AND RESTATED CONSTRUCTION, OPERATION AND RECIPROCAL EASEMENT AGREEMENT THIS AGREEMENT is made as of \J qu s' '± , 1978 by PLAZA CAMINO REAL, a California limited^partnership ("Developer"), 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 corporation ("Cartf") R E C I T A L S A. This Agreement deals with certain real property in the County of San Diego, State of California, herein referred to as the Shopping Center Site. B. The entire Shopping Center Site is in the City of Carlsbad, California, except for the Phase II-O 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 follows: (i) The "Developer Tract" is described in Exhibit B, Parts 1 and 1.1 and, in addition to the land described in Exhibit B, Parts 1 and 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 May. The Phase I Public Parking Land and the Phase I-A Public Parking Land are owned by the Parking Authority of the City of Carlsbad ("Parking Authority"). It Is contemplated, as provided in the Public Parking Documents, as hereinafter defined, that the Phase II Public Parking Land will also be owned by Parking Authority and that the Phase II-O 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- 1985 Oceanside itself. It is also contemplated, as hereinafter set forth, that the Phase I-B Public Parking Land will bs owned by the Parking Authority. (ii) Hay, pursuant to a lease dated September 1, 1972, is the lessee of the "Kay Tract", described in Exhibit B, Part 4. Hay Properties, Inc., a Delaware corporation, is the owner and lessor of the Hay Tract. (lii) Penney, pursuant to a lease dated March 1, 197?, is the lessee of the "Penney Tract", described in Exhibit B, Part 5. New Harjoras Associates, a New York partnership, is the owner and lessor of the Penney Tract. Civ) Sears, pursuant to a lease dat^d as of April 1, 1976, is the lessee of the "Sears Tract", described in Exhibit B, Part 6. Plaza Carolno Real, a California limited partnership, is the owner and lessor of the Sears Tract. (v) Federated is the owner of the "Federated Tract", described in Exhibit B, Part 7. (vi) Carter, pursuant to a lease of even date herewith, is the lessee of the "Carter Tract", described in Exhibit B, Part 8 except for the portion of the Carter Tract described in Exhibit B, Part 8.1, which portion i* at the present lisr.e owned by the Parking Authority. The portion of the Carter Tract now owned by the Parking Authority is hereinafter referred to as the "Authority-Carter Parcel". It is contemplated, as hereinafter • set forth, that the Carter Tract, including the Authority-Corter Parcel, will be owned by Carter, D. Said Tracts, including the Public Parking Land, are located as shown on Exhibit C, Sheet 3, C. Pursuant to a Construction, Operation and Reciprocal Ease- ment Agreement dated July 28, 1969 and recorded on July 28, 1969 as Document No. 135913* as amended by & First Auendment thereto, • dated as of September 21, 1971 and recorded September 27, 1971 as Document Bo. 220157, and • Second Amendment thereto, dated as of October 6, 1976, and recorded October 26, 1976, »* Document No. 351986, all of said recordings being in the Office of the County 6/22/78 -2-Recital D-f -< f oo 70m O70 O 1986 Recorder of San Diego County, California (herein such Construc- tion, Operation and Reciprocal Easement Agreement and the First and Second Amendments thereto are collectively called the "Phase I REA"), Developer, Hay and Penney have previously constructed and currently operate or cause to be operated certain retail facilities and other improvements on the Phase I Land as a regional shopping center. F. The Parties hereto desire to provide for the expansion of said regional shopping center to include the Phase II Land and to provide for the construction and operation of improvements thereon and on the Phase I-A Public Parking Land and the Phase I-B Public Parking Land as follows; (i) Developer, desires to construct and operate or cause to be operated the Phase II Kail Stores and Common Area on a portion of the Developer Tract on the Phase II Land all as hereinafter defined, and to improve and operate the Phase I-A Public Parking Land and the Phase I-B Public Parkinc Land. (ii) Sears desires to construct and operate or cause to be operated the Sears Store, as hereinafter defined, on the Sears Tract. (iii) Federated desires to construct and operate or eaufe to t»e operated the Federated Store, as hereinafter defined, on the Federated Tract. Ov) Carter desires to construct and operate or cause to be operated the Carter Store, as hereinafter defined, on the Carter Tract. G, In order to nakt integrated use of their Tracts in the Shopping Center, Developer, Kay, Penney, Sears, Federated and Carter each de-sire to grant to each of the other Parties certain casements, in, to, over, under and across their respective Tracts and to enter into certain other covenants and agreements hereinafter more specifi- cally set forth, H. Developer, Hay and Penney desire by this Agreement to amend and restate in its entirety the Phase I HEA effective as of the date hereof,and Developer, May, Penney, Scars, Federated! and Carter desire 2/3/78 -3-Rccltnl F-tl |||CD 1987 to enter into this Agreement. Nothing herein shall be de« supersede or abrogate any of the easements and covenants i with the land affecting the Phase I Public Parking Land ci in the Phase I REA, which easements and covenants shall c< -~_ effect, in addition to the easements and'covenants contaii If—v provided that to the extent of any inconsistency between ments and covenants contained herein and said easements ai contained in the Phase I REA, the easements and covenants herein shall govern among the Partie • to this Agreement ai successors. Developer, May and Penney hereby subordinate their rights, privileges, easements and interest under th« REA to this Agreement solely for the benefit of the Partic 'for the benefit of any other Person, including any governit entity. IN CONSIDERATION of the respective covenants, conditi agreements herein contained, Developer, May, Penney, Sears and Carter hereby respectively agree as follows:. ARTICLE I PEFIMITIONS As used in this Agreement, the terms defined hereinaft in this Article 1 shall have the following respective raeanii 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 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 i of the Carter Tract described in Exhibit B, Part 8.1, locat< shown on Exhibit C. 7/3/78 -M- 1. 1988 1.4 Building The term "Building" shall refer to any building on the Shopping Center Site for 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 on the Shopping Center Site or any portion or portions thereof (exclusive of any roof aerials) (TEXT CONTINUES ON NEXT PAGE) oo 6/22/78 1.4-1.5 nO 70 1989 measured to the highest of any of the following components, to wit: the roof of any penthouse (including screen or wall enclosure), cooling tower, the roof coping, or the parapet wall. 1.6 Carter Store Opening Date The tercs "Carter Store Opening Date" shall refer to the date that the Carter Store shall, in fact, first open for business to the general ,/ublic. 1.7 Center Parking The tern "Center Parking" shall refer to and include any area (exclusive of any area owned by a governmental entity, tu c ' y so long as it is owned by & governmental entity) used for Parking Area froci tine to tine on the Shopping Center Site. 1.8 City The terr, "City" shall refer to the City of Carlsbad, California. 1.9 Co.xr.on Area The tens "Conpion Area" shall refer to and include all portions of the Shopping Center Site which are from time to time improved and available for the general non-exclusive use. convenience and Benefit of the Parties and their respective Permittees-, excepting, however, frosi the foregoing definition: (A) Those portions of the Shopping Center Site which are from time to tir.c occupied tsy any duly dedicates! public street or highway. Any portion of the Shopping Center Site so occupied shall, upon dedication, be di-cr.ed deleted from the Shopping Center Site. (B) Truck Facilities. The Conoton Area :;hall include, (i) the Public Parking, (li) the Center Parking, If any, (Hi) the Hall, (iv) the Perimete- Side-balks, '.v) re-it rooms and stairways Cadjimrttve to Corrir.on jVrca}, (vi) such port lens, of the Shopping Center Site as nay be used as GMUt*n Area iBiiintvnanee offices and equipment shoos and, l.U) All utility lines and systems which Developer is required to , and operate pursuant to Section 1J.5-. 1.10 Coywn.Area Maintenance Cost As defined In Section 7.1U). 1.11 CocMM-n Area Maintenance- Cos:, Allorafctc Share 2/3/78 -5- 1.6-1.11 1990 The term "Common Area Maintenance Cost Allocable Share" shall refer to each Party's share of Common Area Maintenance Cost deter- mined in accordance Kith Section 7.3- 1.12 Coupon Building Component As defined in Section 13.16U). 1.13 Court Tne terns "Court" shall refer to those certain areas within the Hall, on each level thereof, abutting the Store of each Major as shown on and so designated on Exhibit C. 1.1 ft. Developer Buildings The term "Developer Buildings" shall refer to and include the Phase 1 and Phase II Hall Stores and the Non-Kail Buildings. 1.15 Federated Store Opening Date The term "Federated Store Opening Date" shall refer to the date that the Federated Store shall, in fact, first open for business to the general public. 1.16 Floor Area (A) The tens, "Floor Area" shall refer to and include the total number of square feet of floor space of all floors contained within a Building(s) located on the Shopping Center Site, whether or not s'uch Buildings) shall then be occupied and shall include floor space of b;ksec«cnt floor (s) and balcony ar.d mezzanine flcor(s), measured frees the exterior facade of the exterior vails (except party and interior walls as to which the center thereof, instead of the exterior faces thereof, shall be used); and shall also refer to and include the total number of square feet of floor apace of all floors or ground coverage, as the case may be, contained within any outside area or structures, used Tor the sale of merchandise or otherwise exclusively appropriated for use by tun Occupant except as provided in (ii), (viii) and (ix) of the second succeeding sentence below. The number of square feet of Floor Area shall not be reduced by floor space occupied by walls, columns, elevators, dumbwaiters, stairs, escalators, conveyors or by other interior construction and equipment within such Cuilding(s), Notwithstanding the foregoing, Floor Area shall not ineiuov floor space: (i) used exclusively to house mechan- 2/3/78 -6-1,12-1.16 1991 ical, electrical, HVAC, telephone and other such building systems * equipment, including trash rooms and trash compacting and baling roons whether physically separated or otherwise required by building codes; (ii) occupied by Truck Facilities; (iii) occuped by the u^fr levels of ajulti-decked storage areas; (iv) of emergency exit corridors of stairs between fire resistant walls required by 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 telecommunication rooms; (vii) of computer rooir.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 vertibule to the Federated Store so long as said area *.s not used for the sale or display of iserchandise, provided said vestibule exclusion shall not exceed three thousand (3,000) square foot; and/or (x) occupied by Coocson Area. (B) The Floor Area on the Phase 1 Land as of the date of execution of tfcis Agreement is as follows: Developer Tract, 276,501 square feet, Kay Tract, ltZ,lb9 square feet, Penney Tract, 154,093 Floor Arc-d of the Building shall be deemed to be the same as the Floor Area of th<,- Building inmedlately before such period, and upon the completion of the razing, rebuilding, repairing or replacement of such Building, the Party shall again cause its arch*nest to certify to the other Parties the number of square feet of Floor Area on such Tract. 1.17 lg.prcvcaj.cr.ts The term "iMprovemeiFfa* shall refer to all Buildings and any 2/3/78 -7- 1.16-1.17 o m O O square feet. Upon the completion of any construction on its Tract, -^ each Party shall certify to the other Parties the rtuir.ber of square feet of initially r subsequently constructed Floor Area on such Tract. If there is any disagreement about any certification of square feet of Floor Area, the natter shall be resolved by arbltra- in accordance with Article 21. 1C) Notwithstanding anything contained in tAls Agreement, during the period of any damage, destruction, razing, rebuilding, •< ' repairing or repl.-jcc-Mcnt of any Building in the Shopping Center, the ""* mno 70 O O O 70mnO 79 O 1992 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 Hall 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 Mali Maintenance Cost As defined in Section 8.1. 1.22 Mall Stores The term "Mall Stores" shall refer to tJt>f &sjj'is>iffgs eirvteiri/ xroTvsvrxic'xea o-i the Developer Tract, located as shown on Exhibit C, and shall consist of the Phase I Mall Stores and the Phase II Mall Stores. 1.23 Mortgagee and Mortgage 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 of any Tract which is the subject of a lease to any Party as lessee in a qualifying sale and leaseback or other qualifying lease transaction covered by Section 27.11, including the leases referred in Section 27.1KB). The term "Mortgage" shall refer to any first mortgage, first deed of trust, and to the extent applicable, a qualifying sale and leaseback or other qualifying lease transaction covered by Section 27.11, including the lease transactions referred to in Section 27.1KB). Except as expressly otherwise provided in tnis 2/3/78 -8- 1.18-1.23 ^70o 4_ V* ^ m/*\ 70 m O Omjo 1993 Agreement, the tern "Mortgagee" shall not include any of the fore- going Persons when in possession of the Tract of any Party. 1.2*1 Mew Public Parking Lot Operating Agreement As defined in Section 11.KB). 1.25 Non-Hall Building Sites The tern "Non-Hall Building Sites" shall refer to the areas so designated located as shown on Exhibit C. 1.26 Hon-Hall Buildings The tern "Non-Hall Buildings" shall refer to the free-standing Buildings and structures within the Ken-Kail Building Sites. 1.27 Occupant The tern "Occupant" shall refer to any Person from tine to time entitled to the use and occupancy of Floor Area on the Shopping Center Site, and shall also include each Major and the respective licensees, concessionaires, tenants and subtenants of each Hajo-. 1.28 Parking A-ea Tiifc itrje "f'aricir.o Area" sks.ll refer to ar.y z"«2 imp-*?"*"* fo- autoMobile parking from time to time on the Shopping Ccntc- Site, and shall consist of the Public Parking and any Centt- Pa-king and Shall include the following components as may be- locate 1 thereon: roads, drives, walkways, sidewalks and curbs (exclusive of Perimeter Sidewalks), traffic lanes, traffic aisles, entrances from and exits to public roads, vehicular parking spaces, spaces between vehicular parking spaces (including landscaped areas and irrigation systems therefor), lighting standards, traffic directional signs, the concrete box culvert and the surface parking deck (over the flood control channel) which nay be located on the Public Parking Land. 1.29 Parking Authori ty The tern "Parking Authority* shall refer to the Parking Authority of the City of Carlsbad. 1.30 Parking Katio The tern "Parking Ratio" shall reft"- to the ratio set forth in Section 11.3(0)• 8/3/78 -9-1.21-1.30 1994 1.31 Party The term "Party" shall refer to Developer, May, Penney, Sears, Federated or Carter or any successor Person nf any Party acquiring an interest in or to such Party's Tract, provided such successor 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 portion thereof so transferred; or (2) The transfer is followed immediately by a leaseback of the same Tract or portion thereof by the transferring Party or an affiliate thereof (a sale and leaseback), in which event only the lessee in possession shall have the status of Party, .so long as the lease in question has not expire-1 or been terminated; or (3) The transfer is by way of a lease other than as provided in (2) above; or (4) The successor-acquires by such transfer: (a) Less than all of a Party's Tract; or (b) An undivided interest, such as that of joint tenant, or tenant in common, of such Party's interest in its Tract, or such as that of a beneficial owner with others of such Party's interest in its Tract. In the circumstances described in this subparagraph CO, the Persons holding all of the interest in such Truct are to be jointly considered a single Party. In order that other Parties shall not be required, with respect to said Tract, to obtain the action or agreement of, or to proceed against, more than one Person in carry- ing out or enforcing the terms, covenants, provisions and conditions of this Agreement, then in the circumstances described in subpara- graph (fl)(a) above, the Persons holding the interest of the Party in and to not less than seventy percent (701) of said Tract in question, and in the circumstances described in subparagraph CO(b) above, the Persons holding not less than seventy percent (709) in interest in such Party, or the holders of undivided interests totaling not less than seventy percent (702) of the entire estate in and to said 1/20/78 -10- 1.31 nO >z O O o O -< ^ X> m-< O O 1395 Tract in question, shall designate one of their number as such Party's Agent to act on behalf of all such Persons. If any Tract is owned by Persons owning an undivided interest theroin under any form of joint or common ownership, then in the determination of such seventy percent (702) in interest, each such owner of such undivided interest shall be deeded to represent s percentage i. interest in the whole of such Tract equal to his fractional interest in such Tract. Any interest owned by any Person who is a minor or is likewise suffering under any legal disability shall ..• J'^regarded in the caking of such designation unless there is at such tine a duly appointed guardian or other legal representative fully empowered to act on behalf of such Pcr«on. In the absence of such written designation, the acts of the Party whose interest is so divided or held in undivided interests (whether or not he retains any interest in the Tract in question) Shall be binding upon all Persons having an interest in said Tract in question, until such tir.e as written notice of such dcsignatinn Is given and recorded in the Office of the County Recorder of the County and State in which said Tract is located, and a copy thereof is served upon each of the other Parties in accordance with the provisions of Article ??, except that such notice shall be furnished by registered or certified nail, return receipt requested; provided, however, in the following instances all of the other Parties acting Jointly, or in the failure of such Joint action any other Forty, at any time way make such designation of the Party's Agent: (i) If at any tine after any designation of a forty's Agent in accordance with the provisions of this subparagraph (4), there shall for any reason be no duly designated Party's Agent of whose appointment all other Parties have been notified as herein provided; or (ii) If a Party's Agent has "ot been so designated and such written notice of designation had not been given thirty (30) days after any other Parly shall 1/20/78 1996 become aware nf any change in the ownership of any portion of the Shopping Center Site; ir (iii) If the designation of such Party's A^cnt earlier than the expiration of such thirty (30) day period shall be reasonably necessary to enable any other Party to comply with any of its obligations under this Agreement or to take any other action which nay be necessary to carry out the purposes of this Agreement. The exercise of any powers and rights of a Party under tr- . , Agreement by such Party's Agent shall be binding upon all Persons having an interest in a../ Tract owned by such rarty.. Such Pity's Agent shall, so long as such designation remains in effect, be a Party her'under and the remaining Persons owning the Parcel in question shall be deemed not to be Parties. The other Parties shall have the right to deal with and rely upon the acts or omissions of such Party's Agent in the performance of this Agreement; but such ft* cDesignation shall not, however, i-elicve arty Person froa; the obligations ^ Any Person designated a Party's Agent pursuant to the provisions of this subpiiragraph (4), shall be the agent of the principals, upon whom service of any process, writ, summons, order or other mandate of any nature, of any court in any action, suit or proceeding arising out of this Agreement, or any demand for arbitration nay be made, and service upon such Party's Agent shall constitute due and proper service of any such natter upon the principal. Until a successor Party's Agent has been appointed and notice of such appointment has been gl/t-n purza&nt to the provisions of ..his subparagraph (1), the previous designation of a Party's Agent shall remain irrevocable. Upon any transfer, which transfer would create a new Party pursuant to the terms hereof, then the powers, rights and Interest herein conferred upon such new Party with respect to the Tract so conveyed, shall be dccacd assigned, transferred or conveyed to such transferee and the obligations herein conferred upon such 1/20/78 -12' ' 1.31 1997 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, assignment, 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 r.'bl'" Parking Land and in no event shall any governmental entity be a Party. 1.32 Penney Main Store Building The term "Penney Main Store Buildine" shall refer to the Build- }ng(s) constructed on the portion of the Penney Tract designated "Penney Main Store Building" on t'xhibit C. 1.33 Penney TBA Building The term "Penney TBA Building" shall refer to the Building(s), improvements, and installations constructed on ths portion nf the Peiii»ey Tr&cl designated :venney Tiia Site" on ExhiDit C. 1.3Q Perimeter Sidewalks The term "Perimeter Sidewalks" shall refer to and include the sidewalks, from the building face to and including the curb, (and any landscaping within such area) adjoining the perimeters of the Buildings of each Party, and shall include collectively all of the Perimeter Sidewalks on the Tracts of all Parties, as the context may require. 1.35 Permissible Building Area As defined in Section 3.1. 1.36 Permittees The term "Permittees" shall refer to and include Developer and all Occupants and all of their respective officers, directors, employees, agents, 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. 1/20/70 -13- 1.32-1.36 1998 1.37 Person The term "Person" shall refer to and include individual also partnerships, firms, associations and corporations, or other form of business or juridical entity. f T\ 1.38 Phase I Land «»,..- The term "Phase I 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 I Mall The term "Phase I Mall" shall refer to the portion of tfc. Kail on the Phase I Land located as shown on Exhibit C and thi designated "Phase I Mall". * -'"0 Phase I Hall Stores The term "Phase I Mall Stores" shall refer to the portior the Mall Stores on the Phase I Land located as shown on Exhibi and thereon designated "Phase I Mall Stores". 1.B1 Phase I Public* Parking The terra "Phase I Public Parking" shall refer, to that por the Parking Area on the Phase I Public Parking Land, on the Ph* I-A Public Parking Land upon the completion of the improvement as reTerred to in this Agreement, and on the Phase 1-3 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 3, Pai 2, located as shown on Exhibit C. 1.13 Phase I REA As defined in Recital E. 1.1*4 Phase I-A Public Parking Land The term "Phase I-A Publ.c Parking Land" shall refer to tl portion of the Shopping ;enter Site described in Exhibit B, Pai 2.1 located as shown on Exhibit C. 2/3/78 -1"»- 1.37- I- 1999 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<c 2.2, located as shown on Exhibit C. 1.46Phase II Developer ConstructionCD____ As defined in Section 6.2. 1.47 Phase II LandoThe tern "Phase II Land" shall refer to the por Shopping Center Site described i.i Exhibit A, Part 3 - shown on Exhibit C. 1.18 Phase II Hal' The term "Phase II Mall" shall refer to the port Hall on the Phase II Land located as shown on Exhibit designated "Phase II Mall". 1.49 Phase II Mall Stores The term "Phase II Mall Stores" shall refer to ti the Mall Stores on the Phase II Land located as shown and therein designated "Phase II Mall Stores". 1.50 Phase II Parking The terra "Phase II Parking" shall refer to the po Parking Area on the Phase II Land. 1.51 Phase II Public Parking The terra "Phase II Public Parking" shall refer to of the Parking Area on the Phase II Public Parking Lane Phase II-O Public Parking Land upon the respective comp the improvement and conveyance thereof to a governments 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 II-O Public Parking Land The term "Phase II-O Public Parking Land" shall ref portion of the Shopping Center Site described in Exhibit 3.1, located as shown on Exhibit C. 7/3/70 -15- J. 2000 CD QC O 1.5*4 Planned Floor Area The tern "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 dete mining each Party's Common Area Maintenance Cost Allocable Share, a ear 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(0). 1.57 Intentionally Omitted 1.58 Project Architect The term "Project Architect" shall refer to Ronald T. Aday, Inc., Architects, of Pasadena, California, or such other architect or architects designated by Developer, from time to time, and approv by the Majors as hereinafter set forth. If, (i) there shall exist a vacancy jn the position of Project Architect, or (ii) Developer shall desire to discharge the Person occupying such position (provid however, no such discharge shall occur until a successor Project Architect 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 "Proximity Area" shall refer to the respective portions of the Kail Stores designated as the Proximity Area of each Major in Section 3.8(0). 1.61 Public Parking The' 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 tfm r O O nO 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 Agreeaent for the Phase 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. 1.64 Public Parking Operating Agreeaent As defined in Section ll.l(D). 1.65 Retail Facility The tern "Retail facility" refers to Buildings used for the sale of goods, wares, merchandise and services to the general public, containing not less that one hundred thousand (100,000) square feet of Floor Area. 1.66 Scars Store Opening Pate The term "Sears Store Opening Date" shall refer to the date that the Sears Store shall, in fact, first open for business to the general public. 1.67 Shopping, Center The terra "Shopping Center1* shall refer to the land and im- provements on the entire Shopping Center Site. 1.68 Shopping Center Site The tern "Shopping Center Site" shall refer to the land described in Exhibit A, Part 1 located as shown on Exhibit C. 1.69 Slope Agreement The term "Slope Agreement" shall refer to that certain agree- ment, dated April 20, 1966, among Developer, Kay and the owners of the Slope Area recorded on April 21, 1966 in the Office of the County • Recorder of San Diego County as Document Ho, 669J6, a~ amended by those certain agreements, dated July 28, 1969, and August 15, 1978 re* spectively, among Developer, Hay, Penney »nrt th* owners of the Slop* 8/11/78 -17-1.62-1.69 2002 Area, recorded in the Office of the County Recorder of San Di July 28, 1969 as Document No. 135915 and /ttfftA/ ?& Docu No. ?£- 344,4%, respectively. 1.70 Slope Area 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 provi<K 1.72 Termination Date Subject to the provisions of Section 27.14 hereof, the te "Termination Date" shall refer to the date of termination of t Agreement, which shall be June 30, 2068, or the first date on < none of the Majors shall be operating a Retail Facility on the Shopping Center Site, whichever date shall first occur; provide however, no temporary interruption in the operation of a Retail Facility cs any Tract: (1) for a csuss or event set forth in Ar 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, May Tract, the Penney Tract, the Sears Tract, the Federated Trac the Carter Tract or any two or more of them, as the context may appropriately require. 1.71 Truck Facilities The tern "Truck Facilities" shall refer to the loading and parking facilities, docks and ramps provided for trucks on each Tract. ARTICLE 2 PHASE I AMP PHASE II PUBLIC PARKING 2.1 Phase I Public Parking Documents The Phase 1 Public Parking is at the present time used aa 2003 a public parking lot pursuant to the Parking Law of 1949 and is used by Developer, May and Penney and their Permittees 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) Grant Deed dated October 21, 1969, recorded the same day in the records of the San Diego County Recorder as Documert No. 193480, whereby Developer conveyed Phase I Public Parking La .'• to Parking Authority ant1 Grant Deed datedCAljQUSL-^J 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 Parking 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 •/Id&iJS'T' .3» 1978, whereby the Parking Authority, as lessor, leased the Phase I Public Parking to the City, as lessee. (D) Public Parking Lot Operating Agreement dated November 24, I ^ O1969, as amended by an Amendment thereto dated -MU6JUSI Q » among Developer, the Parking Authority and the City, whereby the City and Parking Authority employed Developer to manage and operate the Phase I Public Parking. (E) Amendment to Deed Covenants, Conditions, Restrictions and Reservations; Subordination Agreement; and Grant of Parking Ease- ments among Developer, the Parking Authority, the City, May, Penney, Sears, Federated, Carter, May Properties, Inc. and Hew Marjoram Associates, dated -HO^UST ^ • 1978 recorded on the same date -as *.hii 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 modification of the foregoing instruments for the Phase I Public Parking unless it first obtains the written approval of all of the Majors. oo z Oo n O70 O 7/21/78 -19- 2.1 200.4 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 for 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 completion of the construction of said improvements pursuant to a form of grant deed, (which shall be subject to the approval of each Major), containing a deed restriction limiting its use to a municipal parking lot operated without charge to the public unless such charge to the publi'c is required by another governmental entity other than the Parking Authority or the City, or any agency or instrumentality thereof, as a part of a parking management program, transportation control plan, or ether government regulation of parking and such charge cannot be legally absorbed by the Parking Authority or its successors and assigns. Said deed restriction shall be a condition subsequent, the failure of performance of which will entitle Developer to terminate the Parking Authority's interest 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 Authority 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 fall to commence and thereafter diligently to perform the construction of the Phase II Public Parking as provided 8/14/78 -20- 2.2 oo 70mO O 79O 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 or the Agreement for the Phase II' Public Parking unless it first secures the prior written approval of each Major. (B) It is contemplated that Developer may enter into a further agreement for the construction of additional Phase II Public Parking on the Phase II-O Public Parking Land. The tern^ and conditions of any such further agreement shall be subject to the approval of the Majors, insofar as they relate to the use and operation of the Parking Area on the Phase II-O 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 II-O Public Parking Land, and any provisions which would impose any lien 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 Major'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. 2.3 Phase I-A and Phase I-B Public Parking Land; Authority- Carter Parcel (A) Developer represents that: (1) The Phase I-A Public Parking Land was acquired by the Parking Authority from Developer in exchange for a portion of the Federated Tract, which was formerly part of the Phase I Public Parking Land; 7/13/78 -21- 2.3 UJCD 2006 (2) The Phase I-A Public Parking Land is subject the legal agreements with respect to the Phase I Publi embodied in the instruments referred to in Section 2.1 (3) The portion of the Federated Tract which was part of the Phase I Public Parking Land has been relea C 3 the instruments referred to in Section 2.1. (B) At the present time, the Authority-Carter Parcel by the Parking Authority and is subjfccc. to the Phase I Publ documents referred to in Section 2.1. Awc'j, the arrangement templated by Section 27.18 in connection with the obligatio • *»»««*t» (TEXT CONTINUED OF NEXT PAGE) 7/13/78 -21A- 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 1-B Public Parking Land and the release of the Authority-Carter Parcel from the Phase I Public Parking doc- uments referred 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 parcel has been conveyed or leased to Carter, the Authority-Carter Parcel snail be part of the Phase I Public 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 accordance with Article 6. ARTICLE 3 LOCATION, SI?.E, HEIGHT AND USE OF pi.m. DINGS 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. No 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 Permissible Building Area on a Party's Tract not used for Buildings or other improvements for the exclusive use of such Party or its Permittees, shall be improved as Common Area 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 area. 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. oo nO 70 O 7/13/78 -22-3.1 2008 3.2 Planned Floor Area (A) The Planned Floor Area on the Tract of each of the Parties and the Shopping Center Site as a whole is as follows: Developer Tract Phase I Mall Stores 212,551 s.f. Building on Non-Mall Bldg. Site I 14,000 s.f. Buildings on Non-Mall Bldg. Sites G and H 19,950 s.f. Total for Portion of Developer Tract on the Phase I Land 27" 501 s.f. Phase II Mall Stores 140,000 s.f. Total for Portion of Developer Tract on the Phase II Iind 140,000 s.f. Total for Developer Tract 416,501 s.f. May Tract 148,159 s.f. Penney Tract Penney Main Store Building 144,427 s.f. Improvements on Penney TBA Site 12,500 n.f. Total for Penney Tract Sears Tract Federated Tract Carter Tract Shopping Center Site 156,927 s.f. 148,958 s.f. 140,900 s.f. 152,000 s.f. 1,163,445 s.f. (B) Notwithstanding the foregoing, nothing herein is intended to put a maximum limit on the Floor Area on any Party's Tract. In the event that any Party constructs more than one percent (1J) 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 5/10/78 -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 Duilding Height permitted 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.1. (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 Shopping Center Site approved by the Parties, or by construction of a parkir;. jtructure on i."-s Tract in a location approved by the Parties. Such additional area for 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 Section 11.3(D) for the Shopping Center Site. Such additional area for automobile parking shall be available for the general non-exclusive use, convenience and benefit of the Parties hereto, and their Permitees. Such Party shall grant to the other Parties the same easements 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 construction of the Phase II Parking Area. Such Party shall maintain such additional 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 zf operation, maintenance, and reconstruction of such additional area 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 7/3/78 -24- 3.2-3.3U) 2U10 termination of the covenants of May set forth in Section 18.1 the Hay Store shall contain in the aggregate not less than one hundred thousand (100,000) 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 18.1, until February 9, 1989, said minimum Floor Area shall be one hundred forty thousand (l^O.OOO) square feet,provided further, nothwithstand- ing the foregoing, if as a result of fire or other casualty the Floor Area of the Kay Store is reduced to less than 110,000 square feet, May shall not be required to restore or rec.'is' uct the Kay Store to the extent of more than 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 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 during the process of razing, restoring, relocation, or removal and rebuilding (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 foregoing, the covenants of May contained in this Section 3-3(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 Carter contained in Sections 3.<KA), 3.5CA), 3-6(A), and 3.7(A). (B) May 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 Mall adjoining the May Store. 3.'I Minimum Floor Area and Maximum Height of Penney Store; Maximum Height of Improvements on Penney TBA Site (A) Penney covenants that until the expiration or earlier 2/3/78 -25-3.3(B)-3.4(A) Q m Oo nO -<«» x> m-< Oo 5 nO 70 Oi mUs. vided in Sections 13.7 and 13.8. (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 Penney contained in this Section 3.4(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 contained in Sections 3.3U), 3.5(A), 3-6(A) and 3.7U). (B) Penney convcnants that the Penney Main Store Building 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 Penney Store. (C) Penney covenants that the Buildings, improvements and in- 12/9/77 -26- n > 2011 termination of the covenants of Penney set forth in Section 18.2, the Penney Main Store Building shall contain in the aggregate not less than one hundred thousand (100,000) square feet of Floor Area (provided, however, Penney covenants with Developer thtt for all purposes under this Agreement, including the provisions of Sections 13.8 and 18.?, until April 7, 1990, said minimum Floor Area shall be one hundred forty thousand (110,000) 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 140,000 square feet, Penney shall no. t< f^ required to restore or reconstruct the Penney Main Store Builo'ina I O I 70to the extent of more than 100,000 square feet of Floor Areq) n subject, however, to the following: *^* (1) A temporary reduction of all or part or a permanent tA 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.I "' (H) A tcmpor-ry reduction of all or part of the Floor j VJ Area thereof during the process of razing, restoring, reloca- ^ tion, or removal and rebuilding (as may be required) as pro- *•O oo n O70 O 2012 stallatinns on the Penney TDA Site shall have a maximum height of twenty-one (21) feet above the finished floor elevation of the existing Building on said site. 3.5 Minimum Floor Area and Maximum Height of Sears Store (A) Sears covenants that comiscncing on the Sears Store Oponinc Date and continuously thereafter unti.l the expiration or earlier termination of the covenants of Sears 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 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 during the process of razing, restoring, relocation, or removal and rebuilding (as may be required) as provided in Sections 13.9 and 13.10. (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 Sears contained in this Section 3.5(A) shall not be enforceable in favor of May, Penney, Federated or Carter8 after the expiration or earlier termina- tion of the respective covenants of May, Penney,Federated and Carter contained in Sections 3-3(A), 3.4(A), 3.6(A)and 3.7(A). (B) Sears covenants that the Sears 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 Sears Store. 3.6 Minimum Floor Area and Maximum HelRht of Federated Store (A) Federated covenants that commencing on the Federated Store Opening Date and continuously thereafter until the expiration or earlier termination of the covenants of Federated set forth in Section 7 Cc o 2 rrcc r 0c 2 m O O nO 22/9/77 -27-3.5-3.6 2013 18.4, the Federated Store shall contain in the segregate 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 therof, 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 during the process of razing, restoring, reloc.-tj ., or removal and rebuilding (as may be required) as provided in Sections 13.11 and 13.12. (3) A temporary reduction of all or part of the Floor Area thereof during the couse of alteration or remodeling or repairing. Notwithstanding the foregoing, the covenants of Federated contained in this Section 3.6(A) shall not be enforceable in favor tof Hay, Penney, Sears or Carter, after the expiration or earlier termination of the- rc-i.pv-t J vt- covenants of May, fersr.-y, £«&.' i. o:iJ Carter contained in Sections 3-3(A), S-'UA), 3.5(A) and 3.7(A). (B) Federated covenants that the Federated 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 Federated Store. 3.7 Minimum Floor Area and Maximum Height of Carter Store (A) Carter covenants th&t commencing on the Carter Store Opening Date and continuously thereafter until the expiration or earlier termination of the covenants of Carter set forth in Section 18.5, the Carter 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, a-s the applicable case may be, by reason of any cause or event stated in Article 20. 12/9/77 -28-3.6<D)-3.7(A) 2014 (2) A temporary reduction of all or part of the Floor Area thereof during the process of razing, restoring, relocation, or removal and rebuilding (as may be required) as provided in Sections 13.13 and 13.11. (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 Federated contained in Sections 3.3U), 3-KA), 3.5(A) 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 Hall adjoining the Carter Store. 3.8 Minimum Floor Area of Hall Stores; Proximity Areas; Maximum Height of Hall and of Mall Stores; Maximum Height of !ion-Hall liui (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 obligations of Developer as otherwise provided in the applicable provisions of this Agreement, and subject to Subsections (B) and (C) of this Section 3.8, Developer covenants that commencing on the date hereof and continuously there- after until Termination Date: (1) 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 Floor Area and (after the completion of the Phase II Developer Construction) the Phase II Mall Stores shall contain in the aggregate not less than one hundred twenty thousand (120,000) square feet of Floor Area. (2) So long as at least three (3) Majors are operating 2/3/78 -29-3.7(B)-3.8(A) 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 operating Retail Facilities on their Tracts, the Hall Stores shall contain in the aggregate not less than two hundred ten thousand (210,000) square x'eet 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 not less than one hundred twenty-five thousand (125,000) squa: feet of Floor area. (5) Notwithstanding the foregoing, Developer covenants and agrees with Panney that so long as Penney is obligated to operate a Retail Facility on its Tract pursuant to Section 18.2 and with Kay 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. (B) 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(6) 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 Mall Stores within the following Buildings as shown on Exhibit C: Penney Proximity Area: Sears Proximity Area: Federated Proximity Area: Carter Proximity Area Buildings C, D, E and F Buildings J, K and L Buildings £, F, J and K Buildings J, K and L (C) For the purposes of Subsections (A) and (B) of this Section 2/3/78 -30-3.8(B)-(C) oo nO70 O 2016 HJCD CC.o 3.8, no temporary interruption in the operation of a Retail Facility on the Tract of any Major (1) for a cause or event tet 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 Hall Stores and Mall shall not exceed thirty-nine (39) feet measured from the finished floor elevation of the lower leve" o' the Mali, provided that (i) the Court of each Major and appurtenant equipment may attain a height of not to exceed fifty (.50j feet measured from tfte finished floor "levation of the lower level of the Mall, (ii) the entrance 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 Mai1, and (iii) the equipment appurtenant to the operation of the Mall may attain a height of not to exceed six (6) foet above the rooflirse. (E) Developer covenants that the Buildings, improvements 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 i»5 feet 15 feet 25 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, conducted or permitted on trie operation of a two-level regional shopping center aontalning an 2/21/78 -31-3.8-3.9 nO70 O 2017 jQC 'O (2) Any noise or sound that is objectionable due to intermittence, beat, frequency, shrillness, or loudness. (3) Any obnoxious odor. (1) 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 ?rc for the storage of goods intended to be sold at any retail establishment in th< Shopping Center or for storage of supplies or promotional materials used In the operation •'{ the Shopping Center and the Buildings therein shall not be deemed to be a warehouse), assembly, manufacture, dJstillation, refining, smelting, agriculture or mining operations. (7) Any mobile home or trailer cou&t, labor 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 automobile body and fender repair work. ARTICLE 1 COHSTRUCTIOU BY MAY AND PEHNEY ' 1.1 Approval of Existing Hay Construction 1.2 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 -32-1.1-1.? OO nO90 O 2018 ARTICLE 5 CONSTRUCTION BY SEARS, FEDERATED AND CARTER 5.1 Plans for Sears, Federated and Carter Stores Within a reasonable period of time before beginning construc- tion of its Store, Sears, Federated 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 u.'irs and Developer shall each, within thirty (30) days after the receipt of each s-.-t of plans and specifications notify the submitting Party of any exterior design features, color or material uhich it 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 whose 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 Article 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 general 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«ar&, Federated .and Carter Tracts, respectively, except for the grading and compaction thereof to be 5/10/78 -33- 5.1-5.2 2019 o performed by Developer pursuant to the Project Improvement Require- aents attached hereto as Exhibit D, Part 1, and any utilities work Off 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. (B) The term "Planned Phase II Opening Date" shall refer to October 1, 1979. (C) The Parties acknowledge that it is possible that Federated may not open its store for business to the general public before Spring of I960 and in such event, Federated shall be deemed to have met its opening obligation under this Agreement. {TEXT CONTINUES ON NEXT PACE} 6/12/78 -31-5.2(8>-<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 'or '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. Nothuithstanding the fore- going: (A) Neither Sears, Federated nor Carter shall open its re- spective Store for business to the general public more 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) nO O O n Ocz 6/20/78 -35-5.3 2021 (B) 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 of (i) the Phase II Parking (excluding the portion thereof to be constructed on the Phase II-0 Public Parking Land)., (ii) the improvement of the Phase I-A Public Parking Land and the Phase I-B Public Parking Land, and (iii) the Phase II Mall, 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 opening t <ts Store until completion of the aforesaid improvements and, in addition, until the time of completion of the portion of the Phase II Public Parking to be constructed on the Phase II-O 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 whatever permits may be required for occupancy and use of the improvements required to be completed. (C) Sears, Federated and Carter shall each have the right, in its sole and absolute discretion, to elect to defer the required date of opening of its Store until Occupants of at least fifty-five (551) percent of the Planned Floor Area of the Phase II Mall Stores reasonably distributed within the Phase II Mall Stores shall be open or ready to open for business to the general public on or before its Store Opening Date. (D) Neither Sears, Federated nor Carter shall be obligated to initially open its Store for business between October 1st of any year (except that with respect to the calendar year 1979 said date shall be November 1st, in lieu of October lit) and the next succeeding 5/10/78 -36-5.3(D)-(D) 2022 January 31st or during the thirty (30) day period prior to Easter Sunday or the period from May 1 to August 1, of any year. ARTICLE 6 COHSTRUCTIOH BY DEVELOPER 6.1 Approval of Existing Developer Improvements All consruction of the Phase I Mull Stores snd Non-Mall Buildings completed before the date hereof is hereby approved and accepted by the Parties. Developer represents that all Common Area completed before the date hereof on the portion of the Dev..o; T 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 D, Part 2. Changes in the Developer Improvements on the Phase I Land shall be subject to the approval of the Parties, in accordance with the provisions of Article 13. 6.2 Developer's Obligation to Construct Developer covenant's and agrees to construct, at its own cost and expense, (i) the Phase II Mall Stores, (ii) the Phase II Mall, (lii) the Perimeter Sidewalks for the Phase II Mall Stores, (iv) the Parking Area on the Phase I-A Public Parking Land and the Phase I-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 on 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 foregoing (herein collectively called the "Phase II Developer Construction"), as here- inafter provided in this Article 6, in compliance with the following requirements and all applicable provisions of this Agreement. (A) The Phase II Hall shall be located as shown on Exhibit C hereof. (B) The quality of (1) the construction-, (11) the construction components, (ill) the decorative elements (including landscaping and irrigation systems for the landscaping) and (Iv) the furnishings, and the general architectural character and general design (including 5/10/78 -37-5.3-6.2 2023 landscaping and decorative elements), the materials selection, the decor and the treatment values, approaches and standards of the Phase II Hall shall be comparable to the qualities, values, approaches and standards (as of the date hereof) of the Phase I Mall. (C) The Phase II Mall Stores .shall be located as shown on Exhibit C hereof and shall contain not less than fifty thousanu (50,000) square feet of Floor Area on the lower level of the Hall and not less than fifty thousand (50,000) square feet of Floor Area on the upper level of the Mall, and shall contain in the -ioregate not less than one hundred twenty thousand (120,000) 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 shown 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 1, 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 Developer Construction. In the prepara- tion of all plans and specifications for the Phase II Developer Construction, the Project Improvement 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 O O 70 O en Z O m O O n O OO 3S nO 7/13/78 -38-6.3 2024 in the Developer Improvements on the Phase I Land required by reason of the Phase II Developer Construction; provided, however, as respects the Phase II Mall Stores, said drawings and specifica- tions need cover only 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 practical and feasible the Phase II Mall and the Phase II Mall Stores shall conform 1n 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 6.3t 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 heights, lighting, wiring and the furnishings of such portions of the Phase II Mall. Notwithstanding 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 •hall exceed the cost of constructing said Court in accordance with plans and specifications therefor previously approved by such Major, said excess shall be paid by such Major. (C) Disputes under this Section 6.3 shall be subject to arbitration in accordance with Article 21, except 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(B)-(C) 2025 6.1 Governmental Approvals Developer shall obtain all necessary governmental approvals, authorizations, permits and certificates of occupancy necessary to permit the construction and operation on the Develops; 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 II Developer Construction, and any changes 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<• uf 6.5 Completion of Phase II Developer Construction Developer shall complete the Phase II Developer Const)action, as shown on the drawings and specifications 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 I IT1 I Othe Planned Phase II Opening Date and the improvement of the Phase | ^L II-O 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 of Phase II Developer Construction If the Developer shall fail to perform any of the Phase II Developer Construction as provided for herein, then in such event, if such failure 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 and complete such performance under any and all outstanding contracts of the Developer with the Project Architect, contractors and others for such work either in the name and on behalf of the Developer (in which case it or they, as the case may be, is hereby Irrevocably appointed as attorney-iii-fact for such purpose) cr 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 bidding, with the lowest, bidders. In the event that one or more Majors shall perform any 5/25/78 -10- 6.1-6.6 r»O 1 79 0 z O O O O O nO70 O 2026 work provided for in this Section 6.6, the cost of such work shall be due and payable by Developer upon demand therefor in writing. 6.7 Opening of Phase II Hall Stores Developer agrees that it will use its best efforts to have the Phase II Hall Stores open for business on or before the Planned Phase II Opening Date, subject to Sears or Federated or Carter being open or read.,- to open for business in its Store on or before said date. ARTICLE 7 COMMON AREA HAIHTEHAMCE COST ALLOCADLE SHAni" 7.1 Common Area Maintenance Cost (A) The term "Common Area Maintenance Cost" means the total of all moneys actually paid by Developer during a respective Accounting Period (as that term is hereinafter defined) for reason- able costs and expenses directly related to and incurred in the maintenance, operation, and management, pursuant to the requirements b of this Agreement, of (i) the Common Area (excluding the Mall), and (jj) tho Slop.- Aren (pursuant. In, ii: accordance '.-ith, and as re- quired by the Slope Agreement), including maintenance and construc- tion work required to preserve and maintain the utility of the Parking Area; policing, security protection and traffic direction; cleaning; removal of rubbish, dirt and debris; landscape maintenance; maintenance and repair of lighting facilities and storm drainage systems; maintenance and repair of utility systems constructed as part of the Developer construction on the Phase I Land and utility systems constructed as part of the Phase II Developer Construction; real estate and improvement taxes and assessments on the Parking Area, if any; and public liability and property damage insurance carried in respect of the Common Area (excluding the Mall); plus an amount for supervision and management equal to five percent (5S) of the total of all costs included in Common Area Maintenance Cost, excluding real estate and improvement taxes and assessments and any tax, fee, charge, assessment or other imposition imposed by any governmental entity on the business or practice of operating parking facilities (for the purposes of the foregoing, Developer's obliga- oO 70 O> O m O O o O -< ^ X 70 m-< O O 70mnO 1/20/78 -11-6.7-7.HA) ; 2027 tion to operate the Public Parking and to bear in full the cost thereof pursuant to the Public Parking Operating Agreement shall not be deemed to be a governmental imposition); provided, however, Common Area Maintenance Cost shall not include 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 of cost properly chargeable to capital account. Any capital expenditure in excess of $20,000 in any one year for items whose depreciation „ P. be included Cin Common Area Maintenance Cost shall be subject to the approval of the Parties. (B) Refunds and reimbursements of costs and expenses which have been theretofore included in Common Area Maintenance Cost shall > be deducted from Common Area Maintenance Cost upon receipt by Devel- 2 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 Shopping 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 disoretio- of each Party. (D) Common Area Maintenance Cost shall not include any costs or expenses included within Mall Maintenance Cost. (E) 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(B), the costs and expenses (determined in accordance with Section 7.1) for the Phase II Parking shall be included in Common Area Maintenance Cost C only to the extent that the Phase II Parking is required to meet the Parking Ratio requirements of Section 11.3(D), provided that Common Area Maintenance Cost shall in all events include such costs and expenses for all Phase II Parking within the City of Carlsbad from Jrand after the date that all of the Planned Floor Area on the Seara Tract, the Federated Tract,_and the portion of the Developer Tract on * 12/9/78 -12- 7.KD)-(E)l! 2028 the Phase II Land becomes incluciablc in the computation of Common Area Maintenance Cost Allocable Shares pursuant to Section 7.3(D). Developer shall not be required to open for use by Permittees or the public any Phase II Parking whose costs and expense? (deter- tfS*3s, mined in accordance with Section 7-1) are excluded from Conmon Area Maintenance Cost pursuant to the provisions of this Subsection (£}. Prior to the inclusion of the costs and expenses for any such area in Common Area Maintenance Cost, said area shall be maintained in sightly condition by Developer at Developer's expense. 7.2 Accounting Period The term "Accounting Period" shall refer to any period of twelve (12) calendar months commencing on January 1 and ending on and including the next following December 31. The first Accounting Period for Sears, Federated and Carter shall commence as to each on the earlier of the follcwing: (a) its 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. The first Accounting Period for Scars, Federated, ar.d Carter, respectively, shall end on and include Uie next following Dec ember 31. The last Accounting Par i'."J 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 part of which is ir.jluded within a first Accounting Pel iod tit any Party or said last Accounting Period and a part of which occurs before the commencement of said first Accounting Period or after the expiration of said last Accounting Period, respectively, shall be prorated on the basis of the actual number of days in the part or such period of time included within said first Accounting Period or said latt Accounting Period, as the case may be. 7.3 Common Area Maintenance Cost Allocable Shares (A) The term "Common Area Maintenance Cost Allocable Share" shall refer to the proportionate share of Common Area Maintenance Cost chargeable to each Party for each Accounting Period, as deter- mined in this Section. Subject to Subsection (B) of this Section 7.3. each Party's Common Area Maintenance Cost Allocable Share shall be computed tor each Accounting Period by multiplying the Common 12/9/77 -<<3- 7.P-7.3U) o > mno z g m O O nO X> OO 70mO O 2029 Area Maintenance Cost for such Accounting Period by a fraction, the numerator of which shall be the Planned Floor Area 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, Federated and Carter shall commence to accrue as to each respectively, on the first day of their respec- tive first Accounting Periods. ™ (B) Notwithstanding the foregoing, for the purpose of computing __ ^9each Party's Common Area Maintenance Cost Allocable Share: (i) The Planned Floor Area on the Sears Tract shall not be included in the computation of such Allocable __OShares until the earlier of the following: t/» (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.o<ii) The Planned Floor Area on the Federated Tract shall not be included in the computation of such AJlocable Shares until the earlier of the following: (a) The Federated 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' (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 TO (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 b« included in the computa- tion of such Allocable Shares until the earlier of the following: (a) The date that any portion of the Phase II Mall Stores first opens for business to the general public, or (b) The date Developer is required to complete •>O o 6/2/78 -44- 7.3<D) _ ^ 2030 construction of the Phase II Mall Stores pursuant t< Section 6.5. (C) Common Area Maintenance Cost Allocable Shares for tl calendar year during which the costs and expenses for any portr nv—-* the Phase II Parking first become includable in Common Area M« Cost pursuant to Subsection (E) of Faction 7.1 and for any ca! >«. -^ year for which there is a change in formula for computing Comt Maintenance Cost Allocable Shares pursuant to Subsection (B) c Section 7.3, shall be determined .1 daily basis. 7.1 Payment of Allocable Shares Each Major shall pay to Developer its Common Area Mainten Cost Allocable 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 amount herein referred to as "Advance Payment" or "Advance Pay as the context may require. Subject to Subsection (B) of this Section 7.1, the Advance Payments for each Accounting Period s an amount equal to the product of (i) one-twelfth (1/12) and ( each Major's Common Area Maintenance Cost Allocable Share for immediately preceding Accounting Period; provided, however, tt Advance Payment(s) shall be equitably adjusted between the De1 and such Major for any period(s) or interval(s) that Develope fail to perform its obligations,in whole or part, provided f«», Article 11 (whether or not such failure shall constitute a d< Jj? Me ereat £A0 S&rt/ffs aa at?? ocejsfen 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 :o the average of the Advance Payments of May and Penney, as certified by Developer, for the calendar year In which the respective first Accounting Periods of Sears, 6/2/78 -45- 7.3(C)-7.«(A) /( < n C7 CrrX 2031 Federated and Carter shall commence. If the commencement of any of said first Accounting Periods occurs on a day other than the 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 for ' • ; purposes of determining the Advance Payments for the second Accounting Period of such Major, the Common Area Maintenance Cost Allocable Share for the first Accounting Period shall be multiplied by a fraction, the numerator of which shall be twelve (12) and the denominator of which shall be the number of months and fractional portion of ronths in its respective first Accounting Period. (C) Within one hundred twenty (120) days after the end of each Accounting Period, and with respect to such Accounting Period, Develouer shall submit to each Ma.lor a written statement in duplicate, 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 certified statement, a separate, duly endorsed duplicate statement .invoicing 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 73 mnO 70 O </» z 5m O O r> OC 6/2/78 -46- 7.1(B)-(C) 2032 inclusion in its Common Area Maintenance Cost A3locable 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 complex ix >ks and records accurately covering all items of Common Area Maintenance Cost incurr-.'d by Developer during each Accounting Period and shall keep the sane for the next five (5) years -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 such 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 error. In addition to the aforesaid adjustment, 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 (3%) or more, Developer shall pay to such Major the fees and expenses of any independent certified public accountant engaged to perform such audit. If, subsequent to any Accounting Period, Developer 6/2/78 -47- 7.5 2033 shall either receive any refund or rebate or other credit payment, or be charged and make payment for any item, to be applied apainst, or added to, as the case may be, any Common Area Maintenance Cost 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 payment. 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 tne year in which received or paid. As soon as practicable after Termina- tion Date, a final settlement shall be made between Developer and each Major so as to adjust the Allocable Share(s) for any or all of such Accounting Periods as may be required by reason of the payment or accrual, after Termination Date, of any Common Area Maintenance 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 added to, as the case may be, any Common Area Maintenance Cost incurred during any or all such Accounting Periods. From and after the time The May Stores Shopping Centers, Inc., a Missouri corporation, and/or any other uholly-ouned 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 hereunder) 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 a segregated bank account designated as a trust account for the purpose of the payment of items of Common Area Maintenance Cost included within such Allocable Shares; and all payments tsacSe to Developer by any and all Occupants of the Developer 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. 6/2/78 -48-7.5 2034 ARTICLE 8 MALL MAINTENANCE COST CONTRIBUTIONS 8.1 Hall Maintenance Cost The term "Mall Maintenance Cost" shall refer to the total of all moneys actually paid out by Developer during an Accounting Period for reasonable costs and expenses directly related to and incurred in the performance of maintenance, operation and management of the Hr.ll, pursuant to the requirements of Article 11, including, without limiting the generality of the foregoing: maintenance and co.:«;t- .ction work A required to preserve and maintain the utility of the Mall; reasonable O supervision and management; policing and security protection; cleaning; removal ct rubbish, dirt sr.-i' debris; landscape maintenance; maintenance of lighting facilities and drainage systems, real estate and improve- </l ment taxes and assessments on the Kail; public liability and property M damage insurance carried in respect thereto (the policy limits of s "such insurance to be in compliance with the requirements of Article I JZZ l'« hereof): and maxnLen/mof. and nnf-rat-.ion of the heating, ven'.ila'-- I V* Oing and air-conditioning systems for the Mall. Notwithstanding the Oforegoing, Mall Maintenance Cost as respects the computation or ' •* determination of a Major's contribution to Mall Maintenance Cost shall not include thj costs and expenses of and the charges for any of the following items: (i) depreciation, and (ii) interest, carrying charges, debt service or late payment charges. 8.2 Contributions of Majors Toward Hall Maintenance Cost The contribution of each Major towards Mall Maintenance Cost shall be determined and paid in accordance with separate agree- ments between Developer and each Major. 8.3 Separate Books and Records; Segregated Dank Account Developer shall maintain separate and complete books and records accurately covering all items of Mall Maintenance Cost. From and after the time The May Stores Shopping Centers, 'Inc., a Missouri corporation, and/or any other wholly-owned subsidiary of The May Department Stores Company, or any corporate successor thereto, shall not be the sole general partner of Plaza Cdminn Coal or any successor 12/9/77 -'»9- 8.1-0.3 Om 2035 partnership (uhlle such partnership is Developer hereunder), «and from and after the time such partnership is no longer Developer hereunder, all payments made by the Majors in respect of all contri- butions toward Hall 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. similarly be held in trust by Developer for the purpose of payment of it./us of Mall Maintenance Cost-, ARTICLE 9 CONSTRUCTION STANDARDS All construction herein to be performed by any Part> (whether required or permitted pursuant Vo tY\e applicable provisions ot \Avis Agreement), shall be subject to and in accordance with all of the following respective requirements and standards to the maximum extent to which such requirements an-J standards are appl '.cable to tuoh 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 thereof. 9.2 Diligently Proceed With Construction Upon commencement of construction, each Party shall diligently proceed with such 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 urine first-class materials and in accordance with (i) 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 7/13/78 -50- 9.1-9.3 2036 CD DC CD 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.H 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; (0) to minimize, insofar as practic- able and consistent with ordinary construction oractices, the extent and duration of disturbance to Permittees. 9.5 Coordinate Construction Each Party as respects its construction shall use ail reason- able efforts to cause its architects and contractors to cooperate and construction of the other Parties to tAe extent reasonadly 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; (D) Notwithstanding anything to the contrary contained in Article 15, defend, indemnify and hold harmless the other Parties from and against all claims, costs, expense., (including reasonable attorneys' fees and court costs) , and liabilities arising from or mno 70o» O O 7/13/78 -51-9.4-9.6 O O nO 79 Om70 in respect to the death of or accident, injury, loss, or whatsoever caused to any natural person (including the indemnitec/s employees) or to the property of any Person as shall occur by virtue of said construction (except as such claims, costs, expenses, and liabilities shall arise from the negligence cr fault of the Party seeking indemnification, its respective agents, employees, or con- tractors); (C> defend, indemnify and hold the other Parties harmless from and against (1) mechanics', raaterialmen1s, and laborers' liens in connection with and arising from said construction, and (ii) and all other costs, expenses (including reasonable attorneys' fees and court costs), and liabilities in connection with or , ising from such construction; (D) promptly pay the other Parties in the amount of any damage to their Improvements caused by or resulting from the performance of construction carried on by such Party or its agents, employees, contractors, or any subcontractors of such contractors. 9.7 Construction Barricades If any Building construction work performed on a Party's Tract could reasonably be deemed to constitute a hazardous condition for Permittees of any other Party whose Store shall be open for business to the general public, the Party on whose Tract the work is beint performed shall erect or cause to be erected adequate and properly appearing solid construction barricades, painted a color approved by the Project Architect {the erection or maintenance of which shall not unreasonably interfere with the operation of then existing Stores or the Mall or access, ingress, or egress for Permittees) at least eight (8) feet in height, and substantially enclosing the Building construction work and a mall enclosure at the joinder of the Mall and the front of the Store where such construction is being performed. Such barricade or barricades shall be continuously maintained until the said construction shall have been substantially completed (to the extent reasonably necessary to remove the hazardous ( _ condition as aforesaid). The foregoing requirements regarding the appearance, height, and painting of barricades shall also apply with I jp respect to all Building construction facing east on the Phase II Land • *^ located within tw« hundred (200) feet of the Phase I Stores without 12/9/7Y -52- 9.1 70O 2038 regard to whether said construction constitutes a hazard. Upon the removal of the present westerly wall of the Phase I Mall, Developer shall erect an adequate and proper appearing, solid wall enclosure painted a color approved by the Project Architect between the Phase I Mall and the construction on the Phase. II Land and shall maintain such enclosure until the Phase II Mall is connected to the Phase I Mall 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, with reasonable diligence, submit and -furnish to the Requesting 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, ordinances, rules and regulations; provided, however, a certificate of occupancy (or the equivajeui thereof) is&ui-o' !>y the government cr gavcrnncntsl Itsdy having jurisdiction thereof shall be deemed satisfactory evidence of compliance with the requirements of this Subsection (A); (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; (C) all costs, expens's, liabilities and liens (except any lien(s) imposed in connection with financing the construction of improvements) arising out of or in 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- with, cause 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 submit to any other Party or Parties for their approval plans or oO "90 O» z o o Ocz 5/10/78 -53-9.8-9.9 Oo nO |DC!O 2039 drawings or specifications, then in the event any Party shall not, within thirty (30) days after receipt of such plans or drawings or • specifications, notify the submitting Party of its disapproval and the particulars thereof, then the said plans or said drawings or said specifications., as the case may be, shall bo deemed to bo approved by such Party. 9.10 Construction to be Separate "Works of Inipi-ovemcrit" For all purposes applicable to the provisions of Division Third, Part 1, 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 la. \n*, together with the Parking Area on the Phase I-A Public Parking Land and the Phase I-B Public Parking Laud; and (iii) the const; uction 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 4 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 (91) 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 (8'6") 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: DECREES MINIMUM PREFERRED 12/9/77 -54-9.10-9-H 2040 ARTICLE 10 CHANT OF EASEMENTS 10.1 Easements for Parking and Passage Each Party respectively hereby grants to the other Parties for 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 shall be for ingress to and egress from the Shopping Center Site and all portions thereof, for the passage ana 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 interest it may have in the Shopping Center Site, grants to each of the other Parties, perpetual non-exclusive 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 portion thereof, including 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: El Caraino Real and Harron Road; provided said easements to the extent that they are in said Lots 8 and 21 shall termimte automatically upon the dedication and acceptance of said lots as a public street; provided further, said easeraents shall not be exercised so as to interfere with the use of the Public Parking Land for public parking lot purposes as set forth in the Grant Deeds to the Parking Authority of the Phase I, Phase I-A, Phase I-B and Phase II Public Parking Land and shall be exercised 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 7/13/70 -55- 10.1-10.2 mnO oy> tn Z O m Oo nO 2041 <cs CD CD 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 Hajor's Tract: sanitary sewer systems, storm drainage 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 oowcr lines and power systems, telephone and cable television lines and other utility lines. All installations, lines, mains, trunks and pipes 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 underground utility systems. 10.3 Further Utility Easements Developer hereby g'rants to each Major: (A) an easement 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, uater, power, gas and telephone tn:nks, mains, culverts, lines, pipes, conduits, and systems now or hereafter located on the Developer Tract, for service of the Improvements on the Tract of each Penney an easement for the connection, installation, laying, operation, maintenance, repair, relocation, modification, alteration and removal of a conduit system underground betueen the Penney Main Store Building and the Building on the Penney TBA Site of four utility conduits for electr'-- service, telephone service, a sound system and a security system and of such other systems as may be required by Penney (pro- 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 utility company with respect to the 7/13/78 -56-10.3 /ft oo nO om 2042 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 the Sears, Federated and Carter Building walls the utility services specified in subparagraphs (i) through (vii), inclusive, of Paragraph 7(B) 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, culverts, 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, Developer"covenants that no Person, (unless required 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 the Shopping Center Site. 10.1 Easement Grants to Public Utilities Nothing 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, modifica- tion or alteration of sanitary sewers, storn drainage systems, fire protection installations, cable television gas, water power or tclcrhonc linos, mains, trunks; and (B) the transfer and assignment by any Major 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 this Section 10.1 is for the purpose of providing such services to the Shopping Center 7/13/78 -57- 10. t oo n Ocz Oo nO 70 O 2043 or an Occupant of 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 eac'h Major non-exclusive ease- ments in, to, over, under and across the Developer Tract for 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, sigi.'n' . 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 grantor's 'respective Tract 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 grants to Penney a non-exclusive easement ***»**«**«* {TEXT COKTIHUED OH NEXT PACE) 7/13/78 -57A-10.5 2044 in, to and over the area hereafter described and shown and desig-t 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 for the opening over said land of a door now or hereafter to oe 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 Penney1s Main Store Building and the highest being no less than twelve (12) feet above said top of floor si- . 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 (recorded on July 28, 1969, -is Document No. 135 912 in the Office of the County Recorder of San Diego County, California), having a course East and distance 366.'15 feet; thence from said point of beginning the following courses and distances; East 61.91 feet; thenoe South 6.00 feet; thence West 67.94 feet; thence North 95.91 feet; thence East 6.00 feet; thence South 8S.91 feet to the point of beginning. The foregoing shall extend from Base Elevation 28.00 feet to elevation 10.00 feet based on a brass cap monument located on the center line of Vista Highway at station 88 + 00 and having an elevation 13,11 feet. 10.6 Easement for Support of Hall Each Hajor (the "grantor") hereby grants to Developer an ease- ment for the support of the roof of that portion of the Mall (i) located as if 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 Building, shall be subject to the approval of grantor, which approval may be granted or withheld in the sole and absolute judgment of grantor. There shall be no seismic loading imposed by any Mall structure on any Major's Building by reason of 2/3/YB -58- 10.6 2045 H<C UJCD |QC!o 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 (D), 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 10.1 shall be perpetual. Each 01 tl. easements granted pursuant to this Article 10 shall survive the total or partlfi destruc- tion of (i) the subject matter of the easement, and (ii) the servient , £/>e easements for access, ingress, egress and pedestrian movement granted pursuant to Section 10.1 on and across portions of the Kail and/or other Common Area necessary for reasonable access to the entrances of tne Store of ench Major and the easement granted Penney pursuant, tv 3ec:lion iu.blt)) for access to the southerly door of the Penney Store and the easenents granted pursuant to Section 10.5(A) for footings, supports, canopies, roof and building overhangs, linings, signing, lighting and similar appurtenances to the Stores of sach Major and for the encroachments of Buildings and other improvement among the May, Penney, and Developer Tracts shall 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 -59-10.7-10.6 2046 •o 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 10.1, 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 utilities or increase the cost of maintenance thereof. 10.10 Correction of Site Descriptions It is recognized that by reason of construction errors, t' Buildings of the Parties may not be precisely constructed within their respective Tracts as described in Exhibit A. As 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 which 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 such 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 reeordation 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 Adeemed thereby corrected. In the alternative, such Parties, if they so agree, may correct such descriptions by an appropriate exchange of </&&&&</ ff reJSera or excuse any Party ti this Agreement from exercising all due diligence to construct its Buildings and other improvements within its respective Tract as described on Exhibit B and 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 Maintenance of Parking Area (A) The management, operation, and maintenance of 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 2.1(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 Parking referred to in Section 2.2 is the form for an agreement entitled "The Plaza Caraino Real Public .Parking Lot Operating Agreement". Said agreement is herein referred to as the "Mew Public Parking Lot Operating Agreement". Developer shall enter into the New Public Parking Lot Operating Agreement with the City and Parking Authority upon conveyance by Developer of the Phase II Public Parking Land to the Parking Authority. Said New Public Psrking Lot Operating Agr'St-n'Sit shsll th?r^i'pop by } *"* te|"fa<! supersede the Public Parking Lot Operating Agreement dated November 24, 1969, as amended. (C) Developer shall keep, manage, operate and maintain (i) the Phase I Public Parking during the term of the Public Parking Lot Operating Agreement, dated November 24, 1969, as amended, until superseded by the Hew 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 to or revests in Developer or any Major shall thereafter include the Public Parking, or said portion thereof, as the i-ase may be), in good order, condition and repair. (D) As used herein, unless the context requires otherwise, the term "Public Parking Operating Agreement" shall refer to the aforemen- tioned agreements between Developer and the City or the Parking Authority, or both, foe the management, operation and maintenance of the Phase I Public Parking and the Phase II Public Parking, as described in Subsections (A) an (B) of this Section 11.1. 7/13/78 -61- 11.1 m O O 73 O O O n Ocz O O oO 2048 11.2 Maintenance Standards In the performance of such management, operation and maintenance of the Public Parking and the Center Parking, Developer shall comply with the rules and regulations with respect thereto, as set fort.h in Exhibit E and, during such time as it is in effect, the Public Parking Operating Agreement. During -:uch times 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 ptr *\ .-med if Developer has exercised all of its rights and performed all of its obligations under the Public Parking Documents. 11.3 Operation and Maintenance of Developer Improvements; Parking Ratio Developer covenants to: (A) Keep, manage, operate and maintain the Mall and all improvements, facilities and equipment located thereon and therein and used in connection therevfith in c.ood o^de1", condition and repair, which maintenance, management and operation shall be in conformity with the rules and regulations set forth in Exhibit E. i (B) Provide air-conditioning and ventilation for the Mall at such times and in sucn manner as shall be required to maintain the temperature thereof throughout the Mall at a reasonable comfort level in execution and maintenance of the performance criteria set forth in Exhibit D, Part 3. (C) Maintain and operate (i) the Common Area on all Tracts and (ii) the Slope Area (subject to the provisions of the Slope Agreement), in good order, condition and repair in compliance with the applicable provisions of Section 11.1 and Exhibit E, provided that Developer's obligations in regard to Perimeter Sidewalks on the Tracts of the Majors shall be limited to those set forth in Section 11.4(0). (D) Maintain at all times on the Shopping Cen.ter Site, Parking Areas sufficient to provide at least M.76 Parking spaces per 1,000 square feet of Planned Floor Area of all Buildings on the Shopping Center Site; provided, however, the foregoing shall not be applicable 8/1/78 -62- 2049 to the Planned Floor Area on the Phase II Land until, as to each increment thereof described in Section 7>3(B), thirty (30) days prior to the date such increment first becomes inclinable in the computation of Common Area Maintenance Cost Allocable Shares pursuant to Section 7.3(B). (E) Obtain the approval of the Parties before consenting to any change in the Public Parking as Operator under the Public Parking Operating Agreement. 11.1 Perimeter Sidewalks (A) Subject to Subsection (B) of this Section 11.1, each Party covenants, at its own cost and expense, to maintain the Perimeter Sidewalks on its Tract in go«d order, condition and repair in compli- ance with the applicable provisions of Exhibit E. (B) Developer- shall be responsible for denning, 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 Maintenance and Repair of Utilities (A) Developer covenants (i) to maintain as originally constructed and located, and (ii) (except as such maintenance, 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, culverts and lines constructed as part of the Developer construction on the Phase I Land and as part of the Phase II Developer Construction, including utility laterals up to five (5>) feet from the Buildings of all Parties (including the Developer Buildings), but excluding utility laterals within five (5) feet of the Buildings. All costs incurred by Developer pursuant to the foregoing provisions of this Section 11.5 shall be included ir. Common Area Maintenance Cost. (B) Each Party shall be responsible for the maintenance, management, operoMon 5>nd repair of the utility Intcrals within five 7/13/78 -63- 11.1-11.5 r> > nO v» 2050 (5) feet of the Cuilding(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 performeJ only after *•***(*** {TEXT CONTINUED ON NEXT PAGE} 7/13/78 -63A-11.5 2051 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 same, as expeditiously as possible, and in such manner as to cause as little disturbance to the use of any other Party's Tract as may'be practicable under the circumstances. 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 applli' _P to the conduit system between the Penney Main Store Building and the Building on the Penney TBA Site. 11.6 Penney Conduit System Developer as part of the Developer construction on the Phase I Land has installed a conduit system between the Penney Main Store Building and the Penney TBA Building and the cost of such installation has been reimbursed to Developer by Penney. Subject to the provisions of Article 12 hereof. Developer shall be responsible for the maintenance and repair of said conduit system. The cost of such maintenance and repair shall be reimbursed by Penney to Developer from time to tine * 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 Permittees of any Occupant for parking unless the Parties otherwise jointly agree in writing. As respects the Parking Area on the Phase 1 and Phase I-A Public Parking Land and, upon the conveyance thereof to the Parking Authority, the Parking Area on the Phase I-B and Phase II Public Parking 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 part, of s parking management program, transportation control plan, or other government regulation of parking and such charge cannot be legally absorbed by the Parking Authority or its successors and assigns. 7/13/78 11.6-11.7 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: (A) To require its respective Employees to use for automobile parking only those portions of the Parking Area most remote (at least 300 feet distant) from Buildings. (B) To enforce compliance by its Employees with the parking requirements set forth in the preceding Subsection (A), 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 Employees' compliance with such parking require- ments. 11.9 Obstruction of Common Area (A) Each Party covenants not to place, keep, 'permit or maintain any fence, barricade, structure, bull ding, mproh.itirti .-.p or nt-.hnr 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 tie 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: (1) The exercise of if.", 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 accordance with the applicable provisions of this Agreement). (3) Any joint promotional activity for all the Stores in the Shopping Center approved by the Parties. (4) The exercise of the temporary license as granted to the Parties hereto respectively pursuant to the provisions of Article 16. (5) The construction, reconstruction, relocation, repair, Maintenance or replacement of utility transmission and distribution 7/3/78 -65-11.8-11.9 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 Parking within 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 of said Section 7. (13) Developer shall not give its permission .-suant to tne New Public Parking Lot Operating Agreement for or otherwise 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 COHTI1WED OH HEXT PACE) 7/3/78 -65A-11.8 2054 ARTICLE 12 TAKE-OVER OF MAINTENANCE, MANAGEMENT, AND OPERATION OF COMMON AREA AND SLOPE AREA t 12.1 Applicability of Certain Sections Section 12.2 shall be applicable only so long as The Hay 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 Stores Shopping Centers, Inc., or an> corporate successor thereto which may, as a result of reorganization, merger, consolidate, or sale of stock or assets, recced to such corporation's business, shall not bfc the sole general partner of Plaza Camino Real or any successor partnership (while such partnership is Developer hereunder) or (i,i) the tine such partnership is no longer Developer hereunder. 12.2 Right of Take-Over By Arbitration (A> Rilbioffc t.n Sort.inn 1? 1 ff any Mainr nt gnu tiS!9 C11" f**O!B time to time be dissatisfied with the performance by Developer of its obligations to maintain, manage and operate the Common Area or the Slope Area, as provided in Article 11, (including dissatis- faction with the CDSt of such performance as it relates to any Common Area other than the Ma)l), 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 of Subsection (B> of this Section 12.2, if such Major so decides (but said right shall not be deemed to diminish nor the exercise 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 said notice, Developer cure the unsatisfactory performance in the particulars specified. If, on or after the thirtieth (30th) day from receipt of said notice, such Major shall still be dissatisfied with said performance by 2/21/78 -66- 12.1-12.2 2055 Developer, then such Major shall have the right to submit to arbi- tration, as provided in Article 21, the question of whether or not Developer is satisfactorily performing said obligations. The findings of and decision in said arbitration proceedings shall be; binding and conclusive upon the Parties thereto. In the event the findings and the decision in the said arbitration proceedings shall be that Developer is not satisfactorily perfortaing its aforesaid obligations, then a Person shall be designated pursuant to Section 12.1 to take over such obligations from Developer. (B) At any time or from time to time after a Person shall he.v<. been designated to take over Developer's aforesaid obligations to maintain, manage and operate, as set forth in Subsection (A) of this Section 12.2, Developer shall have the ripht to submit to arbitration the questior whether or not under all the circumstances it is reasonable for Developer to reassume said maintenance, management, and operation; provided, however, that all expenses of arbitration (including the expenses of the Majors) with respect to such arbitration initiated by Developer shall be assessed to Developer and shall not be a part of Common Area Maintenance Cost. 12.3 Bight of Tske-Over Without Arbitration Subject to Section 12.1, if any three (3) Majors at any time arc dissatisfied •. ith the performance by Developer of its obligations to maintain, manage and operate the Common Area, or the Slope Area, as provided in Article 11, (including dissatisfaction with the cost of such performance as it relates to any Common Area other than the Mall), then such Majors shall have the right, if su,?h Majors so decide (but said right shall not be deemed to diminish nor the exercise thereof be deemed to Waive any of any Major's rights resulting from any breach in ii;e performance of Developer's obligations provided for in Artivic 11) to jointly serve notice upon Developer specifying therein the particulars of the dissatisfaction of such Majors and demand that within thirty (30) days after receipt l»y Developer of said notice, Developer cure the unsatisfactory performance in the particulars specified. If, on or after the thirtieth (30th) day from receipt of said notice, such Majors shall still be dissatisfied with perfor- mance by Developer, then such Majors shall have the right by joint 2/3/78 -67- 12.2-12.3 r»O 73 Oy» </*> Z O mO O nOc Z O O nO 2056 notice to Developer to discharge Developer from its obligations to ( 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 disctiarge shall also have the effect of discharging Developer 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 of discharge. In the event of any such discharge, a Person shall be designated pursuant to Section 12.1 to take over the af^esaid obliga- tions from Developer. Said take over may include or exuxude the Mall at the option of the Majors discharging Developer. Such election shall be set forth in the notice of discharge. 12.1 Designation of Person to Take Over Obligations In the event of a discharge of Developer as provided in Section 12.3, then during-the aforementioned sixty (60) day period between the 'notice of discharge and the effective date of the discharge, fr or in the event the findings and decision in arbitration proceedings ,/urcucr.t ;o icctior. ii.2 sftail cc Lfta1. usvolopsr IE not satisfactorily performing its aforesaid obligations, then within the sixty (60) day period subsequent to such decision, a Person qualified for such management shall be designated by the affirmative vote of a majority of the Parties (expressed by joint notice to the remaining Parties) to take over from Developer the maintenance, management and operation of the Common Area and the Slope Area and in addition, the maintenance and repair of the Penney conduit system referred to in Section 11.6, to the full extent Developer is responsible therefor, as provided in Article 11 and Sections 14.1 and 15.3 (except said Person shall net be responsible for the management, operation and maintenance of the Mall, 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 the Public Parking Operating Agreement to such Person and such Person shall assume In writing Developer's responsibilities thereunder. Such Person shall similarly assign such rights to any successor and such successor shall similarly assume such obligations. O79 O o m O O nOcz m oo nO 12/9/77 -68-12.3-1?..»» I1 I o 2057 In performing such maintenance, management, repair and operation such Person shall comply with the provisions of 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) its respective. Common Area Maintenance Cost Allocable Share, and if said Person is responsible for performing Developer's obligations with respect to the Mall, its contribution toward Hall Maintenance Cost, in accordance with the provisions of Article 7 and Article 8 hereof and Penney shall prompt'.y and duly pay to said Person the reimbursement provided for in Section l-.o. Any amounts payable to Developer by any Occupant as such Occupant's allocable share o'f Common Area Maintenance Cost and, if said Person .taking over Developer's obligations is responsible for such obligations with respect to the Nail, any amounts payable to Developer by any Occupant as such Occupant's contribution toward Mall Maintenance Cost, shall be deemed assigned to said Person taking over said obligations, together with the right to enforce payment and collect the same, without t.':e Kccessiiy of any further instrument of assignment, sc long as said Person is performing said obligations. It is agreed that any such designation to take over such maintenance, management and operation, and such maintenance and repair shall not relieve Developer or release it from its obligations to keep, perform and observe any and all other terns, 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 Person designated to perform and then in control of the maintenance, 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 12.1, then a majority of the Parties shal.l have the right to appoint a successor Person by joint notice to the remaining Parties. Such successor Person shall assume in writing the Developer's responsibilities under the Public Parking Operating Agreement. 12.6 Right of Each Major to Take Over Its Adjacent Parking (A) In the event any Major is dissatisfied with the performance 7/3/78 -69-12.4-12.6U) 2058 by Developer or any Person appointed pursuant to Sections 12.3 or 12.1 of its obligations under Section 11.1 respecting the Parking Area, such Major may, upon at least ninety (90) days' notir.^ to all the other Parties, take over such obligations under Section 11.1 respecting the Parking Area designated in Subsection (B) of this Section 12.6 as its Adjacent Parking. In such event, for so 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 Adjacent Parking, including the obligation u .:-ry insurance and provide indemnification with respect thereto under Sections 11.1 and 1&.3. Such Major, on not less then six (6) months' notice to all Parties, shall have *he right to require Developer or the Person appointed pursuant to Sections 12.1 or 12.5 to reassure such obligations respecting its Adjacent Parking effective on the first day of the next following Accounting Period. Automatically, and without the necessity of any further action by Developer, the Major exercising said right, or a Person designated uy ouuh Major, shall oecome, cy virtue 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 fiajor shall fulfill all of Developer's obligations under this Agreement and the Public Parking 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 (including 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 managing, operating and maintaining its Adjacent Parking. So long as such take over shall be in effect, in determining the Comer on Ares Maintenance Cost Allocable Shares of the Parties and Advance Payments (as said terra is used in Section 7.1) with respect thereto, the Planned Floor Area of the Major exercising the right of take over under this Section 2/3/78 -70- 12.6 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 are located as shown on Exhibit J, Part 2. If pursuant to Section 2?.18(B), Exhibit L replaces Exhibit C the May, Penney, Sears and Federated Adjacent Parking shall be located as shown on Exhibit J, Part 1. (C) A Major's right to take over its Adjacent Parking under this Section 12.6 shall not be subject to arbitration. ARTICLE 13 MAINTENANCE AND RESTORATION OF IMPROVEMENTS • 13-1 Maintenance by Developer oDeveloper covenants .that (subject to the provisions of this Article 13), it will keep .ind maintain, or cause to be kept and z;.i::tcir.cd, without ar.y ec-t or cspcnss ta a::y M^jor (except ss provided in Article 7 and Article 8), the Developer Improvements, including 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 _ TO (A) Subject to the provisions of 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 described in Subsection (B) of this Section 13.2. (B) Developer covenants that it will not faze, relocate or remove the following: (1) The Mall Stores necessary to fulfill the requirements of Subsections (A) and (B) of Section 3.8. 'o70o. m 7/21/78 -71- 13.1-13.2 JljO 2060 (2) The portions of the Mall (i) abutting the Mall Stores specified in subparagraph (1) above; (ii) abutting and between « • i • » « * *' (TEXT CONTINUED ON NEXT PAGE} 7/13/78 -7U-13.2 nO 70 O 2061 the Stores of the Majors then operating Retail Facilities on their Tracts; and (iii) constituting any side malls connecting the portions of the Hall referred to in subdivisions (i) and (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 front time to time. 13.3 Restoration of Developer Improvements (A) Subject to the provisions of the following Subsections (B) and (C), if at any time any or all of the Developer Improvements 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 the repair, reconstruction or replacement thereof and diligently prosecute the same to completion. (B) Notwithstanding the provisions of the preceding Subsection (A), if, at any tips'? after th« *»ynir»t.<nn or par):er termination of the operating covenants of all the Majors set forth in Article 18, the Hall 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 (B) 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 damage or destruction would be covered by insurance of the kind Developer was required- to maintain pursuant to Article 14, 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 of five (5) years from and after the date of occurrence of such damage or destruction. (2) In the case where such damage or destruction would 6/2/78 -72- J3.3(A)-(B) 70mO OTOO CO o m O O nOcz 70 m OO oO70 O 2062 QC O not be covered by insurance of the kind Developer was required 4 to maintain pursuant to Article It, and Developer did not in feet cover the same by insurance, within forty-five (15) 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 of fifteen (15) years from and after the date of occurrence of such damage or destruction. (C) 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 Utilities lines and systems constructed by Developer as part of the JJ Developer Construction. J3.4 Construction All construction work done by Developer under the preceding provisions of this Article 13 shall: (A) as respects the Mall Stores, conform in architecture, design and construction quality with the Hal) Stores or the respective parts thereof as ordinal ly constructed; as respects the Mall, conform in architecture, engineering, design, utility and construction quality with the Mall as originally construc- 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 respects the Mall and Mall Stores, be done in accordance with preliminary and final working drawings and specifica- tions therefor approved by the Majors; (C) as respects the Non-Mall "••'ildings, be done in accordance with drawings and specifications therefor approved by the Majors as to the compatibility of sucli Jfc/r~/X?JJ J&fSJtf//&j Jsr ipjrtf/-10s' e/esJ#0, color snd material wl th the remainder of the Shopping Center; (D) be done in accordance uitft C/iff requirements and standards set forth in Article 9, to the maximum applicable extent; (E) as respects the Mall Stores, be in compliance 6/2/78 -73-13.1 o79 O 20G3 \cc 13.5- with the requirements of Section 3.8; and (F> subject to Developer's « rights to raze, relocate, remove, alter or remodel the Developer Improvements in accordance with Section 13.2, maintain the relative and particular locaX-ioTvs o£ XAvi VteVL SXores, U.\e V\all and t\ve Parkin ance, gopafr , Subject to the provisions of this Article 13, May covenants and agrees: (A) to keep and maintain, at its own cost and expense, the Hay Improvements and all portions thereof in good order, condition, and repair and that it will as respects its Buildings coii.;-l< .;ith the standards of maintenance, management, operation and control set forth in Exhibit F; and (B) if at any time prior to the exoiration or earlier te.minotion of the covenants of Hay contained in Section 18.1, the Hay Improvements should be damaged or destroyed by fire or other cause or casualty, to commence with reasonable diligence the repair, reconstruction, or replacement thereof and diligentlyi> prosecute the same to completion, notwithstanding the foregoing, the covenant ana agreement oi Kay contained in uii:> Secii'm 13.5(13) 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(B), 13.1KB) and 13.6 night to Raze, Remove, Relocate, Alter, Remodel or Add Subject to the provisions of Sections 3. J , S. 2 sne/ J. 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 i,J-.c 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 -71-13.0-13.6 oo Om 2065 (B) Anything herein to the contrary notwithstanding, it is understood and agreed that if such damage or destruction occurs after July 28, 1991 and if the Penney Improvements (excluding the Improve- ments on the Penney TEA Site) should be damaged or destroyed by fire or other cause to such an extent that the cost of repair, reconstruction or restoration would exceed fifty percent (50%) of the amount i* would have cost to replace all of the Penney Improvements (excluding the Improvements on the Penney TBA Site) in their entirety at the time such damage or destruction took place, then Pc-nncy shall hn.--> t'? right to terminate any obligations to repair, reconstruct or restore and maintain its Buildings that it may have to the other Parties contained in this Agreement, and, <n the event Penney so elects to terminate such obligations, it (i) shall give the other Parties notice of its election so to do within sixty (GO) days after such damage or destruction occurs, and (ii) shall repair, reconstruct or restore the Penney Improvements only to the extent that it shall, in its sole and b absolute discretion, decide upon, but if such repair, reconstruction or restoration in not so undertaken, Penney shall raze the acuasgt-a Improvements and shall improve the areas ns Common Areas. In the event that Penney gives notice of such 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 Penney1 s aforesaid obligations terminate. 13.8 Right to Raze, Relocate, Alter, Remodel or Add to PenneyStore ______ Subject to the provisions of Sections 3.1, 3.2 and 3.MB) 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 tine prior to the expiration or earlier termination of the covenants of Penney contained in Section 18.2", the effect of any such razing, removal, relocation, alteration or remodeling shall be that the Penney Main Store Building shall contain less than the minimum Floor Area OB 12/9/77 -76-13.7(10-13.« 2066 provided for in Section 3-'li then Penney shall commence and complete with reasonable diligence, such construction as shall be necessary to cause the Penney Main Store Duilding, upon completion of said construc- tion, to contain at least said minimum Floor Area. Notwithstanding the foregoing, the obligations of Penney contained in this Section 13.8 to commence and complete the construction referred to in this Section 13.8 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 13-11 to commence and complete the construc- tion referred to therein. 13.9 Maintenance, Repair, Reconstruction and Replacement by Sears Subject to the provisions of this Article 13( Sears covenants and agrees: (A) to keep and maintain, at its own cost and expense, the Sears Improvements and all portions thereof in good order, condition, and repair and that it will as respects its Buildings comply with the standr-rdo of maintenance, manaccaietit, 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 Sears contained in Section 18.3. the Sears Improvements 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. Notwithstanding the foregoing, 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 of the respective covenants and agreements of Kay, Penney, Federated and Carter contained in Sections 13.5(0), 13.7CAH2), 13-11 (B) and 13.13(D). 13-10 Bight to Raze, Relocate, 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 right at any time and fmn time to time to •n•n n 12/9/77 -77-13.8-13.11 n O70 0 (A z o rn O O O O O O XImnO79 O 2067 raze, remove, relocate, alter.remodel, or add to the whole or any part of the Scars Store; provided, however, that in the event, at any time prior to the expiration or earlier termination of the covenants of Sears contained in Section 18.3, the effect of any such razing, removal, relocation, alteration or remodeling shall be that the Scars Store shall contain less than the miniium Floor Area provided for 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 of said construction, to contain at leas; s-' -J 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 obligations of Hay, Penney, Federated and Carter contained in Sections 13.6, 13-8, 13.12 and 13.11"to commence and complete the construction referred to therein. 13.11 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 expense, the Feder- ated 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 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 thereof and diligently prosecute the same to completion. Notwithstanding the foregoing, the covenant and agreement of Federated contained in this Section 13.1KB) shall not be "-enforceable in favor of Kay, Penney, Sears and Carter, respectively, after the expiration or 1/20/78 -78-13.10(0-13.11 2068 earlier termination of the respective covenants and agreements of May, Penney, Sears and Carter contained in Sections 13.5(fl), 13.7CA) (2), 13.9(15) and 13-13(8). 13.12 Right to Haze, Relocate, Alter, Remodel or Add to Federated Store Subject to the provisions of Sections 3-1, 3.2 and 3-6(13), Federated 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 Federated Store; provided, however, that in the event, it any time prior to the expiration or earlier termination of the covenant.. of Federated contained in Section 18.1, the effect of any such razing, removal, relocation, alteration or remodeling shall be that the Federated Store shall contain less than the min-.tfum Floor Area provide* for in Section 3.6, then Federated shjill commence nnd complete with reasonable diligence, such construction as shall be necessary tr- eatise the Federated Store, upon completion of said construction, to contain at least said minimum Floor Area. Notwithstanding the forefloinp,. the obligations of Federated contained in this Section 13-12 to commence and complete the construction referred to in this Section 13.12 shall not be enforceable in favor of Kay, Penney, Sears and Carter, respectively, after the expiration or earlio-* termination of the respective obligations of May, Pennty, Sears and Cartel- contained in Sections 13.6, 13.8, 13.10 and 13.11 to commence and complete the construction referred to therein. 13.13 Maintenance, Repair, Reconstruction and Replacement by Carter Subject to the provisions of this Article 13, Carter covenants and dgrees: (A) to keep and maintain, at its own expense, the Carter Improvements and all portions thereof in good order, condition, and repair o«id 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 Carter contained in Section 18.5, the Carter Improvements should be damaged or destroyed by fire Oen<* tn 12/9/71 -79-13.12-13.13 2069 or other cause or casualty, 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 Carter contained in this Section 13.13(0) shall not be enforceable in favor of Hay, Penney, Seats and Federated, respectively, after the expiration or earlier termination of the respective covenants and agreements of May, Penney, Sears and Federated contained in Sections 13.5(B), 13.7UM2), 13-9(B) and 13.1KB). 13.1JI Right to Haze, Relocate, Alter, Remodel or Add to Carter Store Subject to the provisions of Sections 3.1, 3.2 and 3-7(B), Carter shall have the r.ght at any time and from time to time to raze, remove, relocate, alter, remodel, or add to the whole or any part of the Carter Store; provided, however, that in the event, at any time prior 'to the expiration or earlier termination of the covenants of Carter contained in Section 18.5,•'the effect of any such rezinjj, removal, relocation, alteration or remodeling .ihcll be that the Carter Store shall contain less than the minimum Floor Area required by Section 3.7, then Carter shall commence and complete with reasonable diligence, such construction as shall be necessary to cause the Carter Store, upon completion c.' said construction, to contain at least said minimum Floor Area. Notwithstanding the foregoing, the obligations of Carter contained in this Section 13.1'l to commence and complete the construction referred to in this Section 13.11 shall not be enforceable in favor of May, Penney, Scars and Federated, respectively, after the expiration or earlieir termination of the respective obligations of Hay, Penney, Sears and Federated contained in Sections 13.6, 13.8, 13.10 and 13.12 to commence and complete the construction referred to therein. 13.15 Termination of Oblir.at.ions It is expressly provided, however, that if any of the following is damaged or destroyed: the May Store, the Penney Main Store 12/9/77 -80-13.13-13.10 notice being given said obligations and restrictions, as the case may be, shall automatically terminate and end. 13-16 Common Building Components (A) For the purposes of this Section J3.16, each Party shall be deemed to be the owner of all improvements on its Tract. (B) Each Party owning any improvement in the Shopping Center which contains a Common Building Component (as hereinafter defined in Section 13.16(E)> if such Common Building Component is utilized by another improvement in the Shopping Center owned in whole or in part by another Party (as owner of a benefited improvement): (1) Shall maintain, at its own cost and'expense, such Common Building Component therein in such state of repair that it shall continue to have the capacity to be so used in common with the benefited improvement in question (subject to the provisions of item (1) of Subsection (C) of this Section 13.16. 2070 Building; the Sears Store, the Federated Store, the Carter Store or the Mall Stores, and the Party whoso Building is damaged or destroyed for any reason whatsoever, fails to commence such repaii or restoration work necessary to provide the minimum Floor Area specified for such Party in Article 3 with reasonable diligence after the dote when such damage or destruction occurred or fails thereafter to proceed diligently to complete such repair, restoration or rebuilding, the other Parlies, in addition to such other rights and remedies as may be accorded them by law, or in this Agreement, shall each have the right and optioi. respectively, to terminate (i) any obligations to restore, operate, repair and maintain contained in this Agreement that they may hsvc to the Party so failing, and (ii) any restriction on their right to use their Buildings contained in the Agreement that exist in favor of the Party so failing, by giving the Party so failing (with copies to the other Parties) written notice of such election so to do at any tiiae prior to the completion of such repairs or rebuilding, provided such restoration work shall not then be actively underway, ?nd upon surh I ^ o O70 O z o oCz Oo 12/9/77 -81- 13.1S-13.16 . . 2071 (2) Shall not cause or permit to occur any damage, loss or injury to the owner of the benefited improvement or* its 'tenants by or as a result of any act or negligence on its part with respect to the Common Building Component in question 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 'Building Component contained in an improvement which is not owned in whole or in part by it: (1) Shall not place upon the Common Building Componen . in question any burden which at the time of placement thereof is in excess of the capacity of the Common Building Component therefor or will prevent the use of the improvement contained in the Common Building Component in question for its intended : . purposes; and *(2) Shall not cause or permit to occur any damage, loss or injui y to the improvement which contains the ComS-on Suildin^ Component in question by or as a result of any act or negligence on its part wih respect to the benefited improvement (subject to the provisions of the last sentence of Subsection (D) of this Section 13.16. ! (D) Nothing in Subsections (B) of (C) of this Section 13.16 • shall be deemed to preclude any Party owning either an improvement ; I containing a Common Building Component or a benefited improvement, j as the case may be, from doing or causing to be done any work (whether j of repair, alteration, restoration or otherwise) with respect to any | such improvement (notwithstanding that during the course of performing j such work a condition otherwise prohibited by the provisions of this i Section 13.16 may result) if: (1) During the course of performance of such work the .' Party by whom or on whose befnlf such work is being done shall, at its own cost and expense, provide such temporary facilities as nay be necessary: 12/9/77 ' -82- 13.16(C)-(U> 2072 (a) To perform tho function performed by the Building Component in question, if such work is performed with respect to the improvement containing the Common Building Component in question, or (b) . To increase the capacity of, or supplement, the Common Building Component in question to the extent necessary so that the benefited improvement shall not, during the course of performance of such work, either place on such Common Building Component a burden in excess of the capacity thereof for such purpor' -ir otherwise prevent the use of the improvement containing the Cowmon Building Component in question for its ir.tended purposes, if such work i^ performed with respect to the benefited improvement in question; and (2) At the conclusion of such work there is compliance with the provisions of item (1) of whichever Subsections (8) or (C) of this Section 13.16 is appropriate to the improvement with respect to which the work in question was done. *• notwithstanding the provisions of item (2) of whichever of Subsections (B) or (C) of this Section 13.16 is appropriate, the * owner of the improvement with respect to which the work in question is being performed shall not be liable to tue owner of the other Improvement affected by such work for any inconvenience, annoyance, disturbance or loss of business to the owner of the improvement affected by the performance of such work (or his occupant) arising out of and during the performance of such work (unless occasioned by the negligence of the owner of the improvement with respect to which the work in question was being performed or its agents), but the owner of the improvement with respect to which such work is being performed shall make all reasonable efforts to keep any such incon- venience, annoyance, disturbance or loss of business to the minimum reasonably required by the work in question. - . (E) As used herein, the term "Common Building Component" shall mean any single improvement, including, but not necessarily limited to, the H«ill structure, which is located partially on one- Tract and partially on another Tract within the "Shopping Center. l?/9/77 -83- 2073 ,E 11 FIRE AMI) PUBLIC LIABILITY IHSUliAMCE 1*|. 1 Developer Insurance licquircnicnts Developer covenants and agrees that: .• (A) It will, at all times prior to Termination Date, keep or cause- to be kept the Developer Improvements, including thu I'arking Area, insured against at least the following perils: loss or damage by fire, lightning, windstorm, cyclone, tornado, hail, explosion, ?5 riot, riot attending a strike, civil commotion, malic. IF Mischief, vandalism, aircraft, vehicle, smoke, sprinkler leakage and any other ^ causes or events from time to time included as covereo risks under standard insurance industry practices within th<- classificatJon of "Fire and Extended Coverage" in an amount not less than eighty percent (80?) of the actual full replacement cost thereof (excluding foundation, footing and excavation costs). (B) It will at all tiines prior to Termination Date maintain Oor cause to be isaintaincci in force snd effect comprehensive public TL liability insurance (including automobile liability and property damage coverage and contractual liability coverage insuring the indemnification obligations set forth in Section 15.1) having a cossbintd single j-ir.it f-f ot least T:n Million Dollars ($2,000,000.00* ocr occurrence covering the Developer Improvements and the Developer "^ Tract and operations conducted thereon or emanating therefrom, together with the Slope Area and all Common Area; provided, however, I ™ in the event of a take over of Developer's obligations for maintenance, f ^ managein'ent and operation of any area pursuant to any of the provisions of Article 12, the Person taking over such obligations shall also be responsible for providing such insurance with respect to the area so taken over, including any such aroa on the Developer Tract, and, so long as Developer is relieved of such obligations pursuant to Article 12, Developer shall no longer be responsible for providing such insurance with respect to any area so taken over. oO 12/9/77 2074 IOC (C) The insurance required pursuant to Subsections (A.) and (B) of this Section 11.1 shall: (1) Be effected under a valid and enforceable policy or policies or contract or contracts issued by an insurer 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 thirty (30) days' prior written notice to each Major in the event of: fa) any change in the scope or amount of coverage provided by su^- .. .isurancc; (b) cancellation of such insurance; (3) With respect to the insurance required under Sub- section (B) of this Section 11.1, name each Major as an addi- tional named insured. Developer shall have the rifcht to comply with and satisfy its obligations under this Subsection (C) by means., of self-insurance to the extent of all or any part of the first Fifty Thousand VSollars l.i'bO,000") of insurance required Yiercunder so long, as Developer is Plaza Camino Real and The Hay Stores Shopping Centers, Inc. is a ceneral partner thereof. (D) It will f-rnish each Major with a certificate or certifi- t<o /&/£• SeetS#/t J-f. J, oa a the date on w/iich 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 11.3, it shall furnish a certificate respecting such self- insurance. (C) (1) The insurance required under Subsection (A) of this Section I'l.l shall be for the benefit of Developer, each Major and the holder of any Mort(jajje on the Developer "iract, (and tho City 12/9/77 -85-l'I.KC)-(E) 2075 and Parking Authority, as respects the Public Parking), as their respective interests may appear, and shall provide that all proceeds or 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 trust fond for the purpose of paying the cost to Developer of the repair, reconstruction or replacement of the Devel- oper Improvements and the Parking Area, as provided for in Article 13 hereof. Should any amount of insurance proceeds remain after such repair, reconstruction or replacement (ES provided for in Article 13 hereof) shall have been completed and fully p1'.^ for, free of any liens or claims, such remainder shall belong to and shall be paid to Developer, subject, however, to the rights of the said holder of :, Mortgage. From and after Plaza Carnino Real is no longer the Developer or The Kay Stores Shopping Centers, Inc. is no longer a general partner thereof, whichever first occurs, if the proceeds of any claim exceed Fifty Thousand Dollars ($50,000.00), said proceeds shall be i>i>io' to suc.'i bonk or trust company qualified tin«Jrr the- laws of the State of California as Developer shall designate for the custody and disposition of said funds as herein provided, except that it is expressly understood and agreed that a Mortgagee of the Developer Tract may be a trustee for the purposes of this Section Payment of the proceeds shall be made by said trustee to Devel- oper, or its contractor or contractors, in the discretion of the trustee, as follows: (1) At the end of each month, or from time to time, as may be agreed upon, against Developer's architect's certificate, an amount uhieh shall be that proportion of the total amount held in trust which ninety percent (902) of the payments to be made to the contractors or matcriolmcn for work done, material supplied and services rendered during each month or other period bears to the total contract, price. 13/9/77 -86- l'l.l(K) 2076 (2) At the completion of the work, the balance of such proceeds required to complete the payment of such work shall, be paid to Developer, or its contractor or contractors as the trustee deems appropriate, provided that at the time of such payment (a) there are no liens against the property by reason of such work, and with respect to the time of payment of any balance remaining to be paid at the completion of the work the period within which a lien may be filed has expired, or proof has been submitted that all costs of w.»rk theretofore incurred have been paid, and (b) Developer's archit.jt shall certify that all required work is completed and proper s.id of a quality and class of the original work required by this Agreement and in accordance with the approved plans and specifications. (F) The insurance required under Subsection (A) and/or Sub- section (B) of this Section 14.1 may be obtained through blanket policies or contracts which may cover other properties or liabilities, t>provided that as respects the insurance referred to in Section 2.'i.l(A) J»«»'irOf thai'e is i 3pa.-' it*iy iti'ied Silt! alioeat**-' * >'• *iwh policies or contracts with respect to the Developer. Improvements ancf the Parking Area amounts at least equal to the amount of insurance required with respect to the Developer Improvements and the Parking Area as if the same were so insured under separate policies or contracts of insurance. 11.2 Majors' Insurance Requirements Each Major covenants and agrees that: (A) It will at all times prior to the expiration or earlier termination of i'-,s operating covenants under Article 18 keep or cause to be kept insured its Improvements against: loss or damage by fire, lightning, windstorm, cyclone, tornado, hail, explosion, vandalism, riot, riot attending a strike, civil commotion, aircraft, vehicle, suokfs, sprinkler leakage, and any other cause or events from time to time included as covered risks under standard insurance industry • 12/9/77 -87- 2077 HjCD }Q£'o practices within the classification of "Fire and Extended Coverage" in an amount not less than eighty percent (802) 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 anc> effect comprehensive public liability insurance (including automobile liability and property damage coverage and contractual liability coverage insuring the indemnification obligations set forth in Section 15.2), having a combined single limit of at least Two Million Dollars ($2,000,000.00) per occurrence, fevering its Improvements and its Tract and operations conducted tnereon 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 11. KB); 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 co^pii^ncc with the .-s.-quirc:.'.ar.ts of this Subsection (D) snri or 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 the other Majors as additional named insureds. (C) The insurance required to be maintained pursuant to the provisions of Subsection* (A) and (B) of this Section 11.2 shall: (1) Be effected under a valid and enforceable policy or policies or contract or contracts issued by insurers of recog- nized responsibility: provided, houever, that nothing contained in this Subparaeraph (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- 2078 Subsection A of this Section 14.2, or any other liabilities or risks or perils of any Persons, in addition to the liabilities or risks or perils covered pursuant to Subsections (A) and (B) of this Section 11.2. (2) Contain an agreement by such insurer or insurers 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 scope or amount of coverage provided by su-.h ' surance; (b) 1 cancellation of such insurance coverage. (D) Each Major covenants it will furnish Develooer and the other Mcjors on receipt of a written request therefor with a certi- 'ficate or certificates evidencing insurance coverage of the liability required to be maintained by it pursuant to Subsections (A) and (B) of this Section 11.2, such certificate or certificates to be fur- nished within forty-five (15) days after the date on which such request is made, provided with respect to any insurance carried under a plan of self-insurance pursuant to Section 11.3, it shall furnish a certificate respecting such self-insurance. 11.3 Self-Insurance (A) Notwithstanding anything to the contrary that may be contained in Section 11.1, so long as Developer is Plaza Camino Keal and The May Stores Shopping Centers, Inc. is a general partner thereof, the insurance required under Section 11.1, or any part or portion thereof, may be carried un-Jer any plan or plans of self- insurance at any time and from time to time furnished and maintained by the parent company of said general partner, provided such parent company, according to its latest published annual report containing certified financial statements has net current assets and a net worth of at least Forty Million Dollars ($10,000,000.00). (B) notwithstanding anything to the contrary that may be contained in Section 11.2, the insurance required under Section 11.2 or any part or portion thereof, may be carried.under any plan or r> > n O70 Oen O m O O nOc X> O O n OJO O 7/3/78 -89- 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 financial staUuients, has net current assets and a net worth of at least Forty Million Dollars ($40,000,000.00). 14 .'4 Mutual Release; Waiver of oubrogation Each Party hereby releases for itself, and to the extent legally possible for it to do so, on behalf of its insurer, each of the other Parties from any liability for any loss or damage to U property of each located upon the Shopping Center Site occasioned to such pro- perty, which loss or damage arises from any cause or event enumerated in Section 14.HA) and Se.tion 14.2CA), irrespective of any negligence on the part of such Parties which may have contributed to or caused such loss or damage, Each Party covenants that it will obtain for the benefit of each other Party a waiver of any right of subrogation which the insurer of such Party may acquire against any other Party or Parties by virtue 01 the payment of any such loss covered by such 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 tira* 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 to 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 11.'I. 1'l.S Insurance Provisions in Grant Deeds and Public Parking Operating Agreement Nothing in this Article 14 shall be deemed to affect the insurance provisions in the Grant Deeds to the Parking Authority of the Phase I, Phase I-A, Phase I-D and Phase II Public Parking Land or in the Public Parking Operating Agreement. 7/3/78 -90- 14.4(B)-14.5 2080 or ARTICLE 15 INDEMNIFICATION 15.1 Indemnification by Developer Developer, except as provided iti 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 ony nccMcnt, 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 fr^a the time, and so long as, Developer has the maintenance and operation responsibility with respect thereto, as hereinbefore provided), cxce;.-t for any Common Area on its Tract for which any other Person must provide indemnification pursuant to Section 1L>''. 3. • 15.2 Ir.dcBnificr.tion hy f!-~.1 ors Each l-iajor (the "Inderanitor") , 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 JteveJaper aacf Me eMcr Mgjvrs' frerarJess /"/"•&! &?<z? &g#j/?j£ a>#j cJalas, costs, expenses fine Jut/fag /•easo/!#6Je ffffv/'/tej's ' fees 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 th'e Indewnitor's Tract or Improvements (including its Adjacent Parking frc,» the time and so long as, it has taken over the Maintenance and operation responsibility uith respect thereto, as provided in Section 12.6), except for any Common Area on its Tract for Hhich any other Person must provide indemnification pursuant to Section IS. 3. 15.3 Indemnification for Common Aren and 'Slops Area Except as provided in Section 9.6, Developer, from the time nnd so long as it is responsible for the maintenance, management and operation of the Common Area and Slope A'-ea pursuant to Article 11, o O70 O 12/9/77 -91-15.1-10.3 2081 covenants and agrees to defend, indemnify and hold harmless each of the other Parties from and against (i) 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 -if any Person, as shall occur, jn on or about UIP Common Area and Slope Krea, and tii} any mechanics', tnaterialmen' s nnd/or laborers' liens, and all costs, expenses and liabilities in connection therewith, including reasonable attorneys' fees and *. .•" costs, arising out of the maintenance, management, and operation performed in respect to the Common Area and Slope Area (whether performed prior to or after the execution of this Agreement), and that in the event that any Tract shall become subject to any such lien, it shall at the request of the owner of such Tract promptly cause such lien to be released and discharged of record, cither by paying the indebtedness which gave rise to such lien, or posting such bond or t, tie regaJrecf i> Ja t/>e eyeae os 2 ta/fe ores is &e;e Jeer's &0jfsie?asf/rt>, and operation obi igai fins for any area pursuant ti any •?/" the provisions of Article 12, the Person taking over such obligations shall also proviue such indemnification with respect to the area so taken over, including any such area on the Developer Tract, and including providing such indemnification in favor of Developer as an indemnified Party, and so long as Developer is relieved of such obligations pursuant to Article 12, Developer shall no longer be responsible for providing such indemnification with respect to any area so taken over. 15. Jl Exciusions from Indemnification A Party shall not be entitled to indemnification under any of the provisions of this Article 1'j for damage caused by its sole negligence or by reason of occurrences arising from its acts which are excluded from standard California public liability and property damage insurance policies as the same exist from time to time. 12/9/-I7 -92-15.1 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 which existed prior to the time the 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 wivh t' •» use oi ^ such temporary license. The Parties acknowledge that upon uie convoy- Q ance of the Phase II Public Parking Land to the Parking Authority, _ the exercise of any license granted under this Section 16.1 with C/V •espect to the Public Parking within the City of Carlsbad will be (/) subject to the provisions of Section 7 of the New Public Parking Lot Operating Agreement.o16.2 Expiration of Right to License The right to require the grant of temporary licenses pursuant ^ t.o this Article 16 chsll osi%ira OR the Tfii'Kination Dste sxtc"t ^J with respect to the easements granted pursuant to Sections 10.1, O 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 require the grant of such temporary licenses with respect to each such easements _J shall expire on the expiration date of each such easements as provided in Sections 10.7 and 10.10. ^ ARTICLE 17 COMPLIANCE WITH LAWS. RULES AND REGULATIOMS 17.1 Compliance with Laws Subject to the provisions of the following Section 17.2, no Party hereto shall use, operate, maintain, manage, or occupy or permit the use, operation, maintenance, management, or occupancy j"* of its respective 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 Q Any Party, at its own cost and expense, may in good faith . yg O 7/3/78 -91- 16.2-17.2 2D8Z 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 respective Tract to loss or forfeiture, and it shall {TEXT CONTINUED ON NEXT PAGE} 7/3/78 -91A-17.2 oo 2085 g^-—-^ defend, indemnify and hold harmless the other Parties from ar all liability for costs, claims, losses, damages, fines, or | (including reasonable attorneys' fees) incurred in such contc by such non-eoinplianco; upon the final determination (includ; review proceedings) thereof, It will, if the decision be adv< to it, comply in accordance therewith. AKTICLE 18 OPERATING COVEHftHTS 18.1 May Operating Covenant with Developer (A) May covenants to and agrees with Developer that, si to any interruptions due to ex;;i- .Ion, repair, reconstructiot alteration, remodeling, razing, or replacement, an1 subject I provisions of Subsections (D) a^d (C) of this Section 18.1 ai provisions of Sections 13.5, 13.6, 13.15, 18.7, 25.1 =nd 25.: and during the period commencing on the date hereof and expii February 9, 1999, it will opc-rate or cause to be operated on Tract or portion or portions thereof, during such business h< Kay slialj determine in its sole and absolute discretion, a d. t/te saae trtx/e />a/are c/setf /"or /tey's MtJ.y/?Jr£r store at 6067 Hilsliire Boulevard, Los Angeles, California 90036; but it and uhen Hay shall no longer be operating the said Uilshire store, then under the same trade name used for May's East land 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 Pack store in Buena Park, California; but if and when Kay shall no longer be operating the said Ducna Park store, then under the trade name "Hay" or such other name as it. is doing business in a majority of its Retail Facilities in regional shopping centers in Southern California; provided, however, nothing contained In this Section 18.1 ultuii be oeuiuc-J to rcqul/ c- i-'uiy nl ai'.y time to operate 12/9/77 790-10. 2086 any of the said stores located in San Diego, LOS Angeles, West Covir.a, and Buena Park, respectively. 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 business for any other reason for a period not exceeding one (1) month, shall not be deemed a discontinuance of the operation o: a Retail Facility by May. Notwithstanding anything 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 .. i the State of California or to any corporation which may, as the result of reorgan- ization, merger, consolidation or sale of stock or assets, succeed to such business. (B) Notwithstanding 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 election of May, exer- cisable at the time (or st any time thereafter) Developer shall fail to perform any of its covenants set forth in Section 18.10CA) or 13.3i provided, however, May agrees not to exercise i'»s said right of termination until: (1) it shall have notified Developer of the particulars of such default by Developer and of May's istcnti«n 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 Section 22.3. Nothing contained in the foregoing provisions of this Subsection (0) shall In any manner be con- strued as diminishing or be deemed to constitute a waiver of any other rights of Hsy resulting from the failure *>f Developer tn perform its covenants set forth in Section IB.IO(A) or 13.3. 1/20/78* -96- 10. KB) 2087 (C) May shall have the right to terminate its covenant under Subsection (A) of this Section 18.1 if the arbitrators in arbitra- tion proceedings pursuant to Article 21 shall determine by express findings that Developer is in default in the performance of any of its obligations under Section 13-1, 11-3 or 11.5(A); provided that tha notice pi- suant to Section 21.1 that a dispute or controversy exists shall have stated Hay's intention to exercise its rights under this Subsection (C) of Section 18.1 and that a copy of such notice shall also have been given to any Mortgagee of the Developer Tract; provided, further, that Hay agrees that it shall no' exercise said right of termination until: (1) it shall have notified Developer of said decision by the nrbitrntors and thereafter Developer shall not have cured such default within thirty (30) days "fter 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 to cure such, default, and (2) it shall have notified any Mort^acee of the Developer Tract pursuant to Section 22.3 of the decision of the arbitrators and the- particu- lars of such default by Developer and of Hay's intention to terminate its said covenant and such Mortgagee does not cure said default ::ithin the time specified in Sectior 22.3. In the event of a take over by 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, management and operation of such Common Area during the period of such take over. (D) Kay shall have the right to terminate its covenant under Subsection (A) of this Section 18.1 if any any tim'e 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 May) who arc 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 ri«ti'*f> of same is given by Mf»y to Itovclnper «nd any 12/9/77 -97- •* Tr 3PI 3 7 CD QC O 2088 Mortgagee of the Developer Tract (notice to such Mortgagee to at such address as the Mortgagee shall have designated by not! to May pursuant to Section 22.2). The temporary cessation of business to wake 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 period not exceeding one (1) month shall nc be deemed a discontinuance of the operation of a Retail Facili by any Major. (E) May shall have the r5&ht to terminate its covenant under Subsection (A) of this Sectj.' • 18.1 if at any time after any two Majors'whose Stores are on the Phase II Land shall fir open their Store 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 sunk condition continues Tract (notice t* such "orteaee? #/» f>f xf, r.unh /MV/r.-wr sta tha Mortgagee shall have designated by notice to May pursuant to Section 22.2), provided that for the purpose of determining whet.'ier 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 he 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 •ake repairs or alterations, or caused by strikes or other circum- stances 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 exceeding one (1) month, shall not be deemed a discontinuance of business by any Occupant. 18.2 Penney Operating Covenant with Developer vf(A) Penney covenants to-and agfeea with Developer that, subject to any interruptions due to expansion, repair, reconstruc- tion, alteration, remodeling, razing, or replacement, and subject 1/20/78 -98- 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 portion or portions thereof, during such business hours as Penney shall determine in its sole and absolute discretion, a department store Penney Retail Facility and will operate or cause to be operated 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 -u<? majority of Penney stores in regional shopping centers in Southern California and will cause the Penney Main Store Building to be'operated as a Retail Facility for an additional ten (10) year period 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 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 or-t (1) rooni-h, shall not be deemrd a discontin- uance of the operation of a Retail Facility by Penney. Motrfithstandinc anything to the contrary herein contained, Penney may convey its inte; est in the Penney Tract and Penney Improvements to any subsidiary corporation of Penney or to any corporation which may succeed to Penney1s business in the State of California or to any corporation which nay, as the result of reorganization, merger, consolidation or sale of stock or assets, succeed to such business. (B) 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 18.10(A) or 13.3 or the covenant regarding the mix of Occupant categories with- in a specified portion of the Hall Stores as set forth in a separate agreement between Developer and Penney, provided, however, Penney agrees not to exercise its said right of termination until: (1) it shall have notified Developer of the particulars of such default by 6/2/78 -99- 18.2(0) Developer and of Penney's intention 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, surh 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 Penney's intention to terminate its said covenant, and such Mortgagee does not cure said default within the time specified in Section 22.3. Nothing contained in the foregoing provisions of this Subsection (B) shal- in any manner be construed as diminishing or be deemed to constitute a waiver of any other • ights of Penney resulting i'roa the failure of Developer to perform its covenants set forth in Section 18.1CK/O or 13.3 or the aforementioned Occupant categories covenant. (C) Penney shall have the right to terminate its covenant under Subsection (A) of this Section 18.2 if the arbitrators in arbitration proceedings pursuant to Article 21 shall determine by express findings that Developer is in default in the performance of any of its obliga- tions under Section 13-1( 11-3 or ll.S(A); provided that the notice pursuant to Section 21.1 that a dispute or controversy exists shall have staleu that Peuney's intention to exercise its rights uiidtr this Subsection (C) 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 right of termination until: (1) it shall have notified Developer of said de- cision 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 to cure such default, and (2) it shall have notified any Mortgagee of the Developer Tract pursuant to Section 22.3 of the decision of the arbitrators and the particulars of such default by Developer and of Penney's intention to terminate its said covenant and such Mortgagee docs not cure said default within the time specified in Section 22.Z- 1/20/78 -100- ltt.2(C) •n•n n yoenr> O 90 O z O m O O nO OO nO 2091 CD CCLo 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 o.f suoh 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 arc on the Phase II Land il. •>!! rirst open their Stores for business to the general public there are not at least tvo Ksj&rs (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 Pennoy to Developer and any Mortgagee ff the Developer Tract (notice to such Mortgagee to be at such address as the Mortgagee shall have designated by(, notice to Penney pursuant to Section 22.2). The temporary cessa- tion oj' business to tr.ai:e 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 period 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 (102) of the Planned Floor Area of the Mall Stores is not open for business and such condition continues for a period of fifteen (15} monttms. to be at such address as the Mortgagee shall have desig- nated by notice to Penney pursuant to Section 22.2), provided that for the purpose of determining whether such condition has r» > oO 70 O tn Z O m Oo n O cnnO70 O 1/20/70 -101- UfCD IOC'o been remedied within said fifteen (13) 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 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 discontin^-no of business by any Occupant. 18.3 Sears Operating, Covenant With Developer (A) Sears covenants to and agrees with Developer that, subject '~o any interruptions due to expansion, repair, reconstruction, alteration, remodeling, razing or replaceraent 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 trie Sears Store Opcnini, D~Cc, it :;ill operate '-•;• cousc- 1:- be- oporatci* *r, the £c£-,-r- and absolute discretion, a Retail Facility under the trade name "Sears Roebuck arid Co.", or such other name as it is do^ng business in a majority of its Retail Facilities in regional shopping centers in Southern California. The temporary cessation 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 Kctail Facility by Scars. Notwithstanding anything to the contrary herein contained, Sears nay convey its interest in the Sears Tract and Sears Improvements to any subsidiary corporation of Scars or to any corporation which may succeed to Scars' business in the State of Calif or n-ia 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-lfl.3(A) 2093 (B) The covenant to operate of Scars contained in Subsection (A) of this Section 18.3 shall be terminable at the election of Scars exercisable at the time (or at any time thereafter) Developer shall fail to perform any of its covenants set forth in Section 18.10(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, Scars agrees not to evicrciso its said ri&ht of termination until: default by Developer and of Sears' intention to terminate its salu 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 curod witb'.n said thirty (30) days, then within such period thereafter as reasonably required to ~"<l!9SBsC?!^eSS?%SSI^&=£2*^3SiiS5 mnO»o CO (/» CD OC O of the particulars of such defaullt by Developer and of Sears' i\>tev\\Ar>n to tetuinate its> said covenant and such \V>r t^a^EC <lr.es not cure such default within the time specified in Section 22.3. Nothing contained in the foregoing provisions of this Subsection (D) shall in any manner be construed as diminishing or be deemed to const'.tutc a -waiver of any other rights of Scars resulting froi.i the failure of Developer to perform its covenants set forth in Section 18.10(A> or 13.3 or the aforementioned Occupant categories covenant. (C) Sears shall have the right to terminate its covenant under Subsection (A) of this Section 18.3 if the arbitrators 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 ot such notice shall also have been fcivcn to any Mort^a^cc of the ttcvclovcr Tract-, provided, further, that Scars agrees that it 1/20/78 -103-io.3<n)-<o 2094 CD cn 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 su^h period thereafter as reas«nab)y required t" cure such defs'.Ot, and (2) it shall have notfied any Mortgagee of the Developer Tract pursuant to Sec tion 22.3 of the decision of the arbitrators and the particulars of such default by Developer and of Scars' inter. . ior 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 opera* ion obligations for any Common Area pursuant to any of ntcnt and operation of such Common Area during the period of suc/i<} take over. ID) Sears shall fiave ifte right to terminate its c-.weiiniii. unu' Subsection (A) of this Section 18.3 if at any time after the Sears Store Opening Date there are not at least two othor Majors wlio arc 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 Sears to developer 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 Scars Stoi c Opening Date has occurred more than forty percent ('10%) of the 90mn O 79 O en 12/9/77 -10'I- z -< O O nO90 2035 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 sawe is given by Sears to Developer 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 scars pursuant to Section 22.2), provided that for the purpose of determin- ing whether 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 of-r Tor business unless it is occupied pursuant to a Lease having a term of at least thirty (30) months. The temporary cessation of nusincss to make repairs or alterations or caused by strikes or other circumstances ~beyo/)d the control of fhe Person i/bosc 'business sfta^l 1>e so Inter- rupted, as provided in Article 20, or a cessation of business for any other reason for a period not exceeding one (1) month, shsll not be deemed a discontinuance of business by any Occupant. IS.'l Federated Ope stin% Covenant With Developer (k) federsteo covenants f> enn ap.rceF s>"'r.n fteveinpcr i'nal, subject to any interruptions due to expansion, repair, reconstruc- tion, alteration, remodeling, razing or replacement, and subject to the provisions of Subsections (B>, (C), (D), (E), (F) and (G) of this Section 18.1 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 TOdetermine in its sole and absolute discretion, a Retail Facility under the trade name "Bullock's" or under such other name as the •«£ Bullock's division of Federated is doing business in a majority of its lie-tail Facilities in regional shopping centers in Southern California, for a period commencing on the Federated Store Opening Date and ending on the earliest to occur of the following; (a) Fifteen (15) years from the Federated Store Opening »( (b) February 9, 1999; or O 70 O 12/9/77 -105- 18.'KA> CC O 2096 (c) Twenty (20) years from the Sears Store 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) month,' srill not be doomed a discontin- uance of the operation of a Retail Facility by Federated, notwith- standing anything to the contrary herein con'a'ned, Federated may convey its interest in the Federated Tract and Fco--- ..ted 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, mercer, 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 18.1 shall be terminable at the electioni> of Federated exercisable at the time (or at any t.ir'nc thereafter) iH-VC-l^'C:' shi'll fsil t" ••crforpi pry ri ' ii.r; pr-.vpn.'in t.s r.i-h f"f"l.!l i r< Section Iti.lO(A) or 13.3 or the covenant regarding Occupant cate- gories within a specified portion of the Kail Stores as sot forth in a separate agreement between Developer and Federated, provided, however, Federated agrees not to exercise its said right of termi- £^ such notice or if such default could not be reasonably cured within said thirty (30) days, then within such period thereafter ar reason- ably required to cure such default using due diligence, and (?) 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 Federated's intention to terminate its said covenant and such oo nOxiam 1/20/70 -106-KI.'KID 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 consJ.rued as diminishing or be deemed to constitute a waiver of any other rights of Federated resfltjng from the failure of Developer to perform Its covenants set forth in Section 18.10(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^i*- .tors In arbitration proceedings pursuant to Article 21 shall determine by express findings that Developer is in default, ir the performar/«<> 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 Federatod's intention to exercise its rights under this Subsection (C) of Section 18.1 and that a copy of such notice shall also have been given to any Mortgagee of the Developer Tract; provided, further, that Federated agrees th;jf. it .shall not exercise said riant 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 sucK- notice or, if such default could not be reasonably cured within thirty (30) days, then within such period thereafter as reasonably required to cure such default, and (2) it shall have notified any Mortgagee of the Developer Traot 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 Mortgagee does not cure said default within the time specified in Section 22.3. In the event of a take over of Developer's main- tenaneet managementt and operation obligations for any Co/naon . Area pursuant to any of the provisions of Artie}e J2, the pro- visions of this Subsection (C) shall not be applicable in respect of the Maintenance, management and operation of such Common Area during the period of such take over. ITrG m O Oscz 2/3/7D -107-18.H(C) 2098 (D) Federated shall have the right to terminate its covenant under Subsection (A) of this Section 18.1 if at any time after the Federated Store Opening Date has occurred, May shall 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 on or before thirty (30) days after Federated has given notice of such cessation and its ir.tcrtiori to exercise its rights under this Subsection to Developer and any Mortgagee of the Developer Tract (notice to such Mortgagee to be at such address as the Mortgagee shall have desig- nated by notice to Federated pursuant to Section 22.2), .'hit-hover is later, Kay aces not either: (i) resume operation or cause cne same to be resumed, or give Federated notice within said period that it intends to do ,ro on or before twelve (12) months after such cessation; or (ii) having given Federated such notice, '-lay o'oes not resume such operation, or does not cause the sar;;e to be resuned, on or before twelve (12) months after such cessation. HoUiing herein contained shall be deeir.ec to obligate May to give any notice under this Section 18.4(0). Notwithstanding the fore- going, Federated shall not have the right to terminate its covenant under Subsection (A) of this Section 18.1, if, on or before sixty (60) days after such cessation or on or before thirty (30) days after the aforementioned notice regarding such cessation from Federated to Developer and any Mortgagee of the Developer Tract, whichever is later, Developer and/or such Mort- gagee shall have (i) commenced legal proceedings to enforce Kay's covenant under Section 18.HA), (ii) given Federated notice of such commencement and (iii) furnished Federated with a copy of the complaint filed therein, unless, (iv) having commenced such- proceedings, the Person commencing the sume thereafter fails to prosecute the same with due diligence, or (v) notwithstanding the commencement and prosecution of such proceedings, Hay does not resume such operation or fails to cause the same to be resumed, on or before twelve (12) months after such cessation. The temporary cessation of business to make repairs or alter- ations, or caused by strikes or other circumstances beyond the 2/3/76 -108-IS.'KDJ 2099 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 exceediti|; one (1) month shall not be deemed n discontin- uance of operation of a Retail Facility by May. (E) Federated shall have the right to terminate its covenant under Subsection (/.) of this Section 18.1 if at any time after both the Federated Store Opening Date and the Sears Store Opening Date have occurred, Scars shall cease to operate or cause to be operated a Retail Facility on the Sears Tract and on or before sixty (60) days after such cessation or on or before thirty (30; ''. , s after Federated has given notice of such cessation and its intention to exercise its rights under this Subsection to Developer and any Mortgagee of the Developer Tract (notice to such Mortgagee to be at s>uch address as the Mortgagee shall have designated by notice to Federated pursuant to Section 22.2), whichever is l.iter, Sears docs not either: (i) resume operation or cause the same to be re- sumed, or give Federated notice within said period that it intends lo do so on «r before twelve (12) months after such cessation; or (i.t) having given Federated such notice Soars does not resume such operation, or does not cause the same to be resumed, on or before twelve (12) months after such cessation. Nothing herein shall be dec-ised to -.-bligatc Sears to give any notice under this Section IS.'KE). Notwithstanding the foregoing, Federated shall not have the right to terminate its covenant under Subsection (A) of this Section 18.1 if, on or before sixty (60) days after such cessation or on or before thirty (30) days after the afore- mentioned notice regarding such cessation from Federated to Do- velopcr and any Mortgagee of the Developer Tract, whichever is later, Developer and/or such Mortgagee shall have (i) commenced legal proceedings to enforce Scars' covenant under Section 18.3(A), (ii) given Federated notice of such commencement and (iii) furnished Federated with a copy of the complaint fi'od therein, unless, (iv) having commenced uucli proceedings, the Person commencing the same thereafter fails to prosecute the same with duo diligence, or (v) n O z O m O O n Ocz 12/9/77 -109-lO.'KE) O O nO70 O. m I* 2100 notwithstanding the commencement and prosecution of such proceed- ings, Sears fails to resume such operation or fails to cause the same to be resumed, on or before twelve (12) months after such cessation. The temporary cessation of business to make repairs or alter- ations, 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 discontin- uance of operation of a Retail Facility by '.ears. (F) Federated shall have the right to ter-L.ate its coven. int under Subsection (A) of this Section 18.1 if at yny time aft^r Jie Federated Store Opening Date and the Sears Store Opening Date have both occurred more than twenty-five percent (25») of the Planned Floor hi'QU of the Hall Stores it not open for business and such condition continues for a period of fifteen (15) months after notice of the same is given by Federated to Developer and any Mort- t,gagee(s) of the Devclope-" Tract (notice to such Mortgagee to bo at Federated pursuant to Section 22. 2} , provided that for the purpose of determining whether 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 circumstances beyond the control of the Person whose business shall be so interrupt- ed, as provided ir. Article 20, or a cessation of business for any other reason for & period not exceeding one (1) month, shall not be deemed a discontinuance of business by any Occupant. (G) Federated shall have the right to terminate its covenant undc-r Subsection (A) of this Section 18.4 if Federated has opened its Store for business to the general public and ten (10) months after the Planned Phase II Opening Date Scars has not yet opened its Store for business to the general public, and such condition continues thereafter for sixty (60) days after Federated gives Developer nn«l 1/20/78 -110- i8.1(F)-(fi) 2101 any Mortgagee of the Developer Tract notice of such condition and its intention to exercise its rights under this Subsection (G) (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 aforementioned ten (10) month and sixty (60) day periods shall be subject to any delays in opening the Sears Store for business to the general public by reason of any reuse or event stated in Article 20. contained herein js Intended to /sake Federated a UJCD 18. 1 or the covenants of Sears contained in Section Jfl.J. J8.5 Carter Operating Covenant With Developer (A) Carter covenants to and agrees with Developer that subject to any interruptions due to expansion, repair, reconstruction, alterations, remodeling, razing or replacement and subject to the provisions of Subsections (3), (C), (D) and (E) of this Section 18.5 and the provisicns of Sections 13.13, 13-11, 13.15, 18.7, 25.1 and 25.? for a period of twenty (20) years from the Carter Store Opening uatc, it will operate or cause to be operated on the Carter Tract, during 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 division of Carter is doing business in a majority of its Retail Facilities in regional shopping centers in Southern California. 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 business for any reason for a period of one (1) month, shall not be deemed a discontinuance of the' operation of a Retail Facility by Carter. Notwithstanding anything to the contrary herein contained, Carter may convey its interest in the Carter Tract and Carter Improvements to any subsidiary corporation of Carter or to any corporation which may succeed to the business of the Broadway division of Carter in Southern California or to any corporation -VVV- 2102 which may, as the result of reorganization, mercer, consolidation or sale or stock or assets, succeed to such business. (B) The covenant to operate of Carter contained in Subsection (A) of this Section 18.5 shall be terminable at the election of Carter excrcisablo -at the time (or at any time thereafter) Devel- oper shall fail to perform any of its covenants set forth in Section IB.IO(A) or 13-3 or the covenant regarding Occupant categories within a specified portion of the Hall Stores as set forth in o separate agreement between Developer and Carter; provided, however, Carter 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 Carter's intention to terminate its said covenants andj there-after, Developer shall not ..ave cured said default within thirty (30) days of the giving of such notice or if such defpuit 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 havn noti- fied any Mortgagee of the Developer Tract pursuant t" Section 22.3 of the particulars of such default by Developer and of Carter's intention to terminate its said covenant and such Morgagce does not cure such default within the time specified in Section ?2.3- Nothing contained in the foregoing provisions of this Subsection (i;) shall in any manner be construed as diminishing or be deemed to constitute a waiver of any other rights of Carter resulting from the failure of Developer to perform its covenants set forth in Section 18.10(A) ->f 13.3 or the aforementioned Occupant categories covenant. (C) Carter shall have the right to terminate its covenant under Subsection (A) of this Section 18.5 if the arbitrators in arbitration proceedings pursuant to Article 21 shall determine by express findings that Developer is in de-fault in the performance of any of its obligations under Sections 13.1, 11.3 or 11.5(A); provided that the notice pursuant to Section 21.1 that a cispute or controversy exists shall have stated Carter's intention to exercise its rights under this Subsection (C) of Section 18.5 and that a copy »i such notice shall also 'nave been given to any 1/20/78 -112-IB.O(C) 2103 of the Developer Tract; provided, further, that Carter agrees thnt it 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 to cure such default, and (2) it shall have notified any Mortgagee of the Developer Tract pursuant to Section 22.3 of the decision of the arbitrators and the particulars o.*" si h default by Developer and of Carter's intention to terminate its said covenant and such Mortgagee (Joes not cure said default within the time speci- fied 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, management and operation of such Common Area during *the period of such take over. (D) Carter s'nf-:."' h-'.ve fc»f rj^nt to tormi nate ils c»vo:iiini: under Subsection (A) of this Section 18.5 if at any time after the Carter Store Opening Date, the Sears Store Opening Date, and the Federated Store Opening Date have all occurred any two Majors shall cease to operate or cause 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 Carter to Developer and any Mortgagee of Developer's Tract (notice to such Mortgagee to be at such address as the Mortgagee shall have designated by notice to Carter 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) Carter shall have the rijjht to terminate its covenant under Subsection (A) of thin Section 18.5 if at any time after the 1/20/78 -113- 10.5<U)-<K> 2104 Carter Store Opening Date has occurred more than forty (40?) percent 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 Carter to Developer and any Mortgagee of the Developer Tract (notice to such Mortgagee to be at such address as the Mortgage,.- shall have designated by notice to Carter pursuant to Section 22.2), provided that for the purpose of determining whether 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 Leas* having a term of at least thirty OO) 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, as provided in Article 20, or a cessation of business for any other reason for a period not t-xeeedirifc one (1) month, shall ::ot be deemed a discontinuance of business by any Occupant. 18.6 Assignability of Operating Covenants of the Majors Developer shall not assign the covenant of any Major under Section 18.1, J8.2, 18.3, J8.1 and IS.5 to any Person other than a successor as Developer or a Mortgagee of the Developer Tract, liny purported assignment of or contract to assign said covenant, or the right to enforce the same or to demand that Developer enforce the same or of any other right thereunder, to any Person other than a successor as Developer or a Mortgagee shall be void and unenforce- able. The Majors acKnouled&e that none of the provisions of this A&reeiaent (including the provisions of Sections 18.1, 18.2, 18.3. J8.4 ar;d 18.5) violate the Developer's obligal.ions under this Section and, accordingly, none of the provisions of this Agreement are affected by the preceding sentence. 18.7 Manner of Operation of Majors* Stores (A) Each Major shall have the right, but not the obligation, to operate any department or departments of tl,a Retail facility of 5/17/78 -11H-38.6-18.7U) 2105 such H;ijor referred to in Sections 18.1, 18.2, 18.3, 18.1 or 18.5, as the case may be, in whole or in part by licensees, lessees or concessionaires. (B) The number and types of departments to be operated in each Major's Store, the particular contents, wares and merchandise to be offered for s*le and the services to be rendered, the methods of merchandising in such Store and the extent of storage therefor,and the manner of operating such Store shall be within the sole and absolute discretion of each respective Major. (C) If any Major shall terminate its operating covenant.as permitted pursuant to the provisions of this Article 18, it shall not be required thereafter to continue or reinstate operation of its Store, notwithstanding the subsequent curing of the default or removal of the condition which allowed such termination. . 18.8 Subordination of Operating Covenants nf Majors The covenants of each Major contained in Section 18.1, 18.2, b 18.3, 18.H or 18.5, as the case may be, shall be automatically subordinated I'.- the lien of anv !•!"»• tp.ap.c. to the end that a pur- chaser or purchasers (other than the defaulting Major) in any foreclosure proceeding 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 or purchasers or to or through any such grantee shall take free and clear of the covenant of such Major contained in Section 18.1, 18.2, 18.3, 18.1 or 18.5, as the case may be. Developer covenants and agrees to execute and deliver to such Major upon request therefor such instruments, in recordable form, as shall at any time and from time to time be required (the form of which shall be in the sole and absolute judgment of counsel for such Major) in order to confirm or effect any such subordination as referred to in the preceding sentence. 18.9 Use of Major's Tracts After Operating Covenants End Except as set forth in Section 3.9, nothing contained in this 12/9/77 -115- 10.70»)-<C)-1I).9 2106 Agreement shall be construed or deemed in any way 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 cause to be operated a Retail Facility on its Tract in accordance with the provisions of Section 18.1, 18.2, 10.3, 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 (B) of this Section 18.10 and the provisions I Q I 3Dof Sections 13-3, 13.15, 25.1 and 25.2 and subject to any inter 6 «I ruptions due to expansion, alterations, remodeling, repair or reconstruction (as permitted or authorized herein), it will continu- ously manage and operate the Developer Improvements as follows: (1) as a complex of retail stores and commercial enterprises, which is a part of'a first-class regional shopping center development with a two-level, enclosed mall and other related Common Area facilities; (2) under the name of Plaza Camino Real and under no other f*oname without the prior approval of each Major (which approval may be granted or withheld in the sole ?nd absolute judgment, of each Major); «^ (3) so as to have Floor Area in the Mall Stores of not less than miniuum Floor Area required by Subsection (A) of Section 3.8 located as required by Subsection (0) of Section 3.8 and so as to have and operate at least those portions of the Mai) described in Section 13.2(13); (1) to use its best efforts, within the limits of reasonable I V economic feasibility to have the Hoor Area of the Mall Store? I ^ooccupied in its entirety; —^ (5) so as not to substantially change, modify or alter the exterior of the Mall Stores Buildings without the prior written approval of each Major (which may be granted or withheld in the sole and absolute discretion of each Major); b 5/25/78 -1)6- )8.)0(A)&ZS. 2107 (6) so as to manage, maintain, and operate the mcchonical systems of the Mall in such manner that the temperature and humidity in the Hall is at a reasonable comfort level in accordance with Exhibit D, Part 3 and the Mall Is lightod at all times when.any Major's Building having direct access to the Mall is open for retail operations; (7) so as not to withdraw any land from the Developer Tract without the approval of each Major; (8) so as to carry out and perform or cause to be carried out and performed, all of the terms, covenants, provisions =»>•' conditions of the Public Parking Documents to be performed by it, so that there shall be no default in or failure to perform any of the terms, covenants, provisions and conditions of the Public Parking Documents. (9) so that during the respective torns of the covenants of each Major contained in Section 18.1, 18.2, 18.3, 18.1, or t 18.5, not more than seven percent (72) of th . Floor Area of the Kail Storca ^ii.ilJ bi. occupied by service establishments testaBii mcnts not primarily devoted to the silc of merchandise). The provisions of this subparagraph (9) shall not be effective in favor of any Major for any purpose, including the purposes of Sections 18.KB), 18.2(B), 18.3(8), IS.'HB) and 18.5(U), after the termination of such Major's covenants contained in Sections 18.1, 18.2, 18.3, 18.1 or 18.5. For the purposes of this subparagraph (9), restaurants and cafeterias'will not be considered service establishments. Developer covenants with each Major chat during the term of its respective operating covenant contained in Section 18.1, 18.2, 18.3, 18.1 or 18.5, there shall be no theater occupancy In the Hall Stores. The i'orcgoing rights and obligations of Developer of uiaiicigement and operation shall not be deemed to limit or impair in any manner the rights, powers and privileges of each Major as provided in this Agreement, including the rights, powers <'ind privileges of each Major as provided in Article 12. In the event of a take over of Developer's 1/20/78 -117-18. 10 (A) 2108 maintenance, management, and operation obligations for any Common Area pursuant to any of the provisions of Article 12, the provisions of this Subsection (A) shall not be applicable in respect of the maintenance, management and operation of such Common Area during the period of such take over. (B) SJothinc herein shall require Developer to have any Non-Hall Buildings or any Hall Stores or Hall in 'excess of that specified in Section 1^.2(B). ARTICLE 19 ADDITIONAL DEVELOPER COVENANTS 19.1 Provisions to be Included in Leases of Developer Trac- All Leases entered into by Developer for th? occupancy «f Floor Area on the Developer Tract (including any modifications of, supplements to, or renewals thereof, other than renewals made in accordance with the renewal provisions in Leases in effect ac of July 28, 1969), shall contain provisions: (1) requiring the Occupant with respect to its facility to comply with the standards of maintenance, management and operation and control set forth in Exhibit F hereof'* (2^ rc^'v wi !•. h provisions of Section 23.1 hereof; and (3) providing that the provisions on this Section 19.1 shall be enforceable by the Parties hereto, jointly or severally. 19.2 Withdraw .Inf. Land fron Developer Tract Developer covenants and agrees that it will not without obtain- ing the prior approval of each Major (which approval may be granted or withheld in the sole and absolute judgment of each Major) with- draw real property from the Developer Tract as the same exist on the date hereof, or hereafter (in the event there way have been any chance, modification or addition to the Developer Tract). ARTICLE 20 FORCE MAJEUjtE Notwithstanding any other provision of this Agreement, each Party shall be excused from performing any obligation or under- taking provided in this Agreement, except any obligation to pay any sumo of money under the applicable provisions hereof, in 1/20/78 -118-19.1-20 2109 the event and so long as the performance of such obligation is prevented or delayed, retarded, or hindered by Act of God, fire, "earthquake, floods, explosion, actions of the elements, war, invasion, insurcction, riot, mob violence, sabotage, malicious mischief, inability t'o procure or general shortage of labor, equipment, facilities, ir.atcri£lc, or supplies in the open market, - n CD QC CD civil or military or naval authorities, (i~- j-Hng environmental protection laws or orders) or any other cause, whether similrr or dissimilar to the foregoing, not within th^ 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 Party. ARTICLE 21 ARBITHATIO!! In every case (and only in such cases) where this Agreementi> provides for or permits the resolution of a dispute or controversy hy arhifst i nn t t-.hc tYil 1 rvii ng nrovi f.ionr. 8 h.l] 1 flpn'iy: 21.1 Hight f> Arbitration If any of the Parties to this Agreement are unable to reach an agreement with respect to any such dispute or controversy, it is agreed and understood that if such agreement shall not be arrive at within thirty (30) days after written notice by one Party to the other Par',y or Parties that such dispute or controversy exists, any Party to the controversy shall have the right at any time aftei the expiration of such thirty (30) day period to refer the same to arbitration as herein provided, and the Parties acree to cooper in obtaining such arbitration. 21.2 Selection of Arbitrators Party to kbe dispute shall appoint an arbitrator and if shall appoint one additional arbitrator. If they cannot agree on the additional arbitrator, or if a Party refuses to appoint an arbitrator, 1/20/78 -119-21.1-21.2 2110 sued arbitrator shall be appointed by the Presiding Judge of the District Court of the United States for the District in which the Shopping Center Site is located, acting in his private and not judicial capacity. The arbitrators( when duly appointed, shall hold hearings and permit the Parties to present evidence and arguments thereat, and they shall render a decision by majorr-ty vote within thirty (30) days after the date upon which the last arbitrator is appointed, which decision shall be binding and final upon the Parties to such pro- ceeding to the extent and in the wanner provided by :hp California Code of Civil Procedure. All awards may be filed with the Clerk >f the appropriate Court of the State of California as a basis of declarotory or other judgment and of the issuance of execution. MO Party shall be considered in default hereundcr during the pendency of arbitration proceedings relating to such default,. If the arbitrators shall f;iil to <Jo so within said period of thirty (30) days, then any Party shall have the right to institute such faction or proceed; ».g in such Court as shall be J>i/propriate in the circumstances. The arbitrator shall determine in what proportion the Parties snaii bear the cost of suc!i arbitration, except that each Party shall pay the expenses of the arbitrator appointed by or on behalf of it; provided, further, that r.o attorneys' fees sholl be awarded in c.-bitrstion. Ir deterr.ining any question, matter or dispute before them, the arbitra- tors shall apply the provisions of tliis Agreement without varying therefrom in any respect; they shall not have the power to add to, modify, change, or pass upon the validity or reasonableness of any of the provisions of this Agreement. If any procedural matter shall arise in the arbitration process, the same shall be resolved in accordance with the provisions of Part 3, Title 9 (Sections 1280 ct scq.) of the California Code of Civil Procedure. 21.3 Arbitration is Condition Precedent, to Judicial Proceedings Compliance with the provisions of this Article 21 shall bo a condition precedent to the commencement by the Parties of any judicial proceeding arising out of any such dispute or controversy. 12/9/77 -120- 21.3 2111 21.1 C"sts and Expenses of Arbitration Except as otherwise provided herein, the costs and expenses of arbitration shall be borne by the Parties to the controversy as determined in the arbitration proceedings. ARTICLE 22 NOTICES 22.1 notices to Parties Every notice, demand, request, consent, approval or other communication which any Party is respectively required r•• d^-ircs to give or make or communicate upon or tn the other shall be in writing and shall be given or made or communicated by mailing the same by registered or certified mail, postage prepaid, return requested, as »ollows: If to the Developer: The I'ay Stores Shopping Centers, Inc. 10738 West Pico Boulevard Los Angeles, California 90061 Attention: President $ with a copy thereof to: ine Hay stores &h"ppang tenters, inc. 1701 Railway Exchange Building 6th and Olive Streets St. Louis, Missouri 63101 Attention: Executive Vice President If to Hay: The Kay Department Stores CompanyRailway Exchange Building 6th and Olive StreetsSt. Louis, Missouri 63101 Attention: Vice-Presidcnt - Real Estate with a copy thereof to: The Hay Department Stores Company10738 West Pico DoulevardLos Angeles, California 9006'!Attention: Controller - Real Estate and The Hay Department Stores Company 801 South Broadway Los Angeles, California 90014 Attention: President If to Penney: J. C. Penney Company, Inc.1301 Avenue of the AmericasNew York, New York 10019Attention: Herri. Estate Department 12/9/77 -121- 21.11-22.1 -< ^ X 2112 and J. C. Penney Company, Inc. P. 0. Box 1015 Buena Park, California 90621 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 TowerChicago, Illinois 60684Attention: Vice-President/Controller If to Federated: Federated Department Stores, Inc. 222 West Seventh StreetCincinnati, Ohio 15202Attention: Senior Vice President - Real Estate with copies thereof to: Federated Department Stores, Inc. 15760 Ventura BoulevardEncino, California 91316Attention: Vice-President and Bullock's 7th Street, Hill Street and Broadway Los Angeles, California 90011 Attention: Chief 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 designate a different mailing address for the purposes of this Article 22 by fifteen (15) days' notice thereof to the other Parties as provided in this Article 22. Every notice, demand, consent, approval, request, or other communication so sent shall be deemed to have been given, made, or communicated, as the case may be, on the date that the same was delivered or delivery MS attempted by reelstered, or certified United States Mall, properly addressed, as aforesaid, postage prepaid, as shown on the return receipt. ro•n Z!n nO 79 Oyi cr> Z g rn O O n Oc -H -< ^ Z. 12/9/77 -122-22.1 2113 22.2 Notices t" M"rtr,ap.ces The Mortgagee under any Mortgage affecting real property in the Shopping Center, shall be entitled to receive notice of any default by its Mortgagor, provided that such Mortgagee shall have delivered a copy of a notice in the following form to each Party: All capitalized terms set forth in this notice shall have the same meanings as are set forth for such terms in the Amended and. Restated Construction, Opera! ion and Reciprocal Easenn.nl. Agreement among Plaza Camino Real, The May Department Stores Company, J. C. Penney Company, Inc., Sears Roebuck and Co., Federated Department Stores, Inc., and Carter Hawley Hale Stores, Inc. relating to the Plaza Camino Real Shopping Center, located in San Diego County, California. The undersigned, whose address is , does hereby certify that it is the holder of a Mortgage upon the [I/arce of Party]-T- ;f in said Plaza Camino Real Shopping Center, and is tne h'oi .$a&ee thereunder, The land which is subject to said Mortgage is described in Exhibit A attached hereto and made a part hereof by reference. In the event that any notice shall be given of the default of the Party upon whose Tract said lien applies, a copy thereof sh.-tll lie delivered t« the undersigned wh" shall hsve all rights of such Party to cu>-e such default. Failure to deliver a copy of such notice to the undersigned shall in no way affect the validity of the notice of default as it respects such Party, but shall make the same invalid as it respects the interest of the undersigned and its 'lien upon said property. Any such notice to u Mortgagee shall be given in the same wanner as provided in Section 22.1. Giving of any notice of **»• default or the failure to deliver a copy to any Mortgagee shall in no. event create any liability on the part of the Party so declaring 2 default. 22.3 Additional Notices to Mortgages 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 provided in this Agreement, then and in that event a^y such Mortgagee under any Mortgage affecting the Tract of the defaulting Party shall.be entitled to receive an additional notice given in the manner provided in Section 22.1, that the defaulting Party has failed to cure such default and such Mortgagee shall have sixty (60) days after said additional notice to cure any such default, or, if such default cannot be cured within sixty (60) days, to diligently commence curing within such time and diligently cure within a reasonable time thereafter. 1/20/78 ~ -123- 22.2-22.3 2114 22.1 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 taking such action. 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 22.1 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 address for notices by delivery to the Parties of a notification of a new address to be effective upon receipt of a written acknowledgement of said change from the Parties. ««»**«««« {TEXT CONTINUED OH NEXT PAGE} 7/13/78 -123A-22.'I 2115 ARTICLE 23 SICKS 23.1 Developer Covenants (A) Developer covenants and agrees that it will not at any time hereafter install or use or permit the installation or use of any signs or other advertising device^: (1) on the exterior of the Hall Stores Buildings, except for the signs in existence on the date hereof, Shopping Center identification signs, the seal referred to in Subsection (p) of this Section 23.1, and signs for Occupants of the Mall Store;, having an outside customer entrance to their Floor Area; (2) on the facades of the Developer Buildings (including the facades located within the Kali) within or outside of the Kail, which are not in accordance with the provisions of Exhibit 11; (3) in the Parking Area, excepting, .however, traffic control signs, directional signs and Common Area amenity signs (e£cor*t t:S r»royid£d in Exhibit !!) th£ exist irrr si^ns r^rorrnr! to in Subsection (B) of this Section 23.1, and subject to the approval of the Majors as to height, size and design Shopping Center identification signs, (in addition to the existing Shopping Center identification signs), in the locations shown on Exhibit C. (B) 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 (including the existing advertising for the Harvest House cafeteria), the theater identification pylon-type sign for use in conjunction with a theater occupancy in the Non-Mall Stores, and the Penney identification sign as shown in Exhibit 1, in the locations shown on Exhibit C. The Majors also approve the installation, if Developer should so determine, over any of the entrances from the Parking Area to the Phase II Hall, of a seal identifying the Plaza Cain 1no Real Shopping Center similar to the existing seal over certain entrances to the Phase I Mall. nO 70 O Z o m O O r»O 12/9/77 .1211.23.1 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 advertising. 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 arid over its Buildings as it defis ^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 absolute judgment, s6 say tistse and frox> tjac te tJ0e^ to eread a«o! install on the Develops* Tract a Penney identification sign as shown on Exhibit I in the location shown on Exhibit C identified as "Existing Sign - Penney ID.". In exercise of said- right, Penney has erected and installed the existing Penney identification sl#n. 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 21 TAKES 21.1 Payment of Taxes Each Party shall pay or cause to be paid prior to delinquency all real estate taxes and assessments upon its respective Tract (herein referred to as "Taxes"). If there is any Center Parking and it is not separately assessed, such real estate taxes and assessments with respect to the Center Parking shall be determined, for land, by the ratio of land area within the Center Parking, 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 determine the amount of the real property tax and assessment 70 m O OyoO 2/3/78 -125-23.2-2H.1 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 improvements. 24.2 Taxes Hay Be Paid In Installments If the Taxes or any part thereof or any 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 becor.es due and payable. 2t.3 Payment of Another Party's Taxas Any Party shall have the right upon and after the expiration of thirty (30) days prior notice to the other Party(s) to cure any default of the lattor 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 forfeiture of the. Tract of the latter or any portion or portions thereof, or to prevent the loss or forfeiture of any easepient granted in this Agreement 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 from the latter Party(s). 21.1 Contesting Taxes Each Party may contest, protest, or object to (hereinafter 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 amount thereof, provided that every such Contest shall be in good faith it nil the counsel for the contesting Party shall furnish to the non-contesting Parties which so request a written opinion that the Tract or any portion or portions thereof, as the case may be, upon which the contested Taxes have been levied, is not in danger of being lost or forfeited, by reason of such Contest. Each Party covenants that its Tract shall not be lost or forfeited as a result of any such Contest by such covenanting Party. 2/3/78 -126-21. 2-2'I. 4 2118 ARTICLE 25 CONDEMNATION 25.1 Condemnation of Tracts and/^r Improvements If any part of the Shopping Center Site or the improvements thereon is condemned or taken by right of eminent domain or is acquired for public purposes by deed in lieu of condemnation (herein referred to as "condemnation"), this Agreement shall continue in full force and effect, subject to Section 25.2. If fifteen percent (15.J>) or more of the Floor Area of any Party (exclndin" any Floor Area on the Penney TBA Site and on the Non-Mall Building Sites), shall be taken by condemnation, and such taking shall be other than a temporary requisition for a period of less than one hundred eighty .(180) days, then, the Party so affected shall have the right to terminate its obligations provided for in this Agreement to restore, operate, repair ano maintain its Store, in the case of any Major, and the Kail Stores and. Mall, in the case of Developer, by noticef given to the other Parties within ninety (90) days after such *..!.{.... *...«;. <•,*..,,. t ~ -«- *«« <« «-..i,~ nrr~»,4. ....•• nn.~i- •:«-} •».. *{..«... /r*t\\W/k^o^, W14^«J trf^JM/A'luwA*.1!! fr./ •* U ft I. t. J A ^ V Ir UUI*'^*'IU^ili>UXAJ h) A A if J X W / days following the giving of such notice. If Developer exercises its right so to terminate its obligations to restore, operate, repair and maintain, the Majors shall thereupon each have the right to terminate their respective such obligations. If any three Majors terminate their respective obligations to restore, operate, repair and waint.'-in, Developer thereupon shall have the right to terminate its respective such obligations. 25.2 Condemnation of Parking Area (A) If all, or any substantial portion, of the Parking Area shall be taken by condemnation so that after such taking the Parking Ratio in the Shopping Center shall be reduced to less than eighty percent (80?) of the Parking Ratio specified therefor in Section 11.3(D), and such taking shall be other than a temporary requisition for a period of less than one hundred eighty (180) days, then, subject to Subsection (B) of this Section 25.2, any Party shall have the right to terminate this Aereem^nt by notice of Intention to oo nO 12/9/77 -127-25.1-25.2 2119 terminate Given to the other Parties within ninety (90) days after such taking, the termination of this Agreement to take effect automatically sixty-five (65) days following the Giving of such notice, unless any Party shall give a notice of proposed alternative parking in accordance with Subsection (B) of this Section 25.2. (B) Any Party desiring to avoid a termination of this Agreement pursuant to Subsection (A) of this Section 25.2, shnll within sixty (60) days after the receipt of the notice of intention to terminate given pursuant to Subsection (A), give to the other Parties a notice of proposed alternative parking specifying ;'»' location of proposed parking spaces in the Shopping Center to an p-nount sufficient to prevent termination pursuant to Subsection (A). Such notice must be accompanied by preliminary plans for such parking, topether with a statement of the steps required to provide such parking and a schedule for taking such steps. Notwithstanding the giving of t> such notice of proposed alternative parking, this Agreement shall terminate il" ui*,hin sixty (60) days following the giving cT r.uch. notice any of the other Parties shall reject in writing by notice to the proposing Party such proposed alternative parking facilities. Such termination shall take effect automatically thirty (30) days after the rejection notice is given. If such proposed alternative parking is not rejected by any of the other Parties, as set forth above, then promptly upon the expiration of the time period for such rejection or after the other Parties have all approved such proposed alternative parking, in writing, whichever is earlier, the proposing Party shall commence and diligently prosecute to completion 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 (20%) or more of the parking spaces located within four hundred ('1 00) feet of the Store of any Major arc taken by condemnation, and such taking slia'll be other than a 12/9/77 -128- 25.2(B)-(C) 2120 temporary requisition for a period of less than one hundred eighty (180) days, then such Major shall have the right to terminate its obligations to restore, operate, repair and maintain its Store by notice given to the other Parties within ninety (90) days after such taking, such termination to take effect automatically sixty (60) days following the Giving of such notice. 25.3 Taking of Permissible Duildinn Area (A) If any part of the Permissible Building Area of any Party is taken by condemnation and such taking shall be other t'lan a temporary requisition for a period of less than one hundred t',,.ity (180) days, and the effect of such taking is that such Party could not build up to its full Planned Floor Area above grade level on .the remainder of its Tract, takir.g into account the size of such remainder and the height limitations provided for in this Agreement, then effective on the date of such taking the Planned Floor Area of such Party shall be reduced for all purposes under this Agreement» (including determining the Planned Floor Area on the Shopping Center Si'o) tn trt.-- mnyiir.isrr, ¥">~->r Arc.-: w!;ich such Party could builtf on the remainder of its Tract above grade level, taking into account the size of such rersaincJer and the height limitations provided for in this Agreement. (B) If any part of the Permissible Building Area of any Party is taken by condemnation and such taking shall be other than a temporary requisition for a period of less than one hundred eighty (180) days, and the effect of such taking is that such Party could not build up to its full minimum Floor Area under Article 3 above grade level on the remainder of its Tract, taking into account the size of such remainder and the height limitations provided for in this Agreement, then effective on the date of such taking the Minimum Floor Area under Article 3 of such Party shall be reduced for all purposes under this Agreement to the maximum Floor Area which such Party could build on the remainder of its Tract above grade level, taking into account the size of such remainder and the height limitations provided for in this Agreement. 12/9/77 -129-25.3<A)-(H> 2121 25.'I Use of Condemnation Award In the event of a taking by condemnation, each Party shall apply the proceeds of such award as follows: (A) In the case of a takinc affecting the Mall, to the restor- ation of such Mall to a complete architectural and structural unit(s) as similar as is reasonably possible in design, character and quality to the original Mall and to the replacement of a totally condemned Kail, insofar as is reasonably possible, with a structure similar in design, character and quality to the Mall structure so taken. (B) Subject to Se7ti«n 25.2, in the case cf a taking affecting Parking Area, to the replacement of the car spaces lost by sucli taking with grade l"vei or multi-level parking facilities at a location or locations acceptable to and approved by the "arties, or toward the acquisition of contiguous land, suitable in the Parties' judgment and approved thereby for parking purposes, which approvals *shall not be unreasonably withheld. (f.) 7n t.hi> rr:f.f* of a tai:irt« affect i'i;; ariy F.'.ii iOi'iui's) in the Shopping Center (i) if the Party whose Building is so affected elects or is required hereunder to restore or repair such Building, the amount of the award shall l>e applied to the restoration or repair thereof to the extent required to accomplish such repair or restoration; (ii) if the Party whose Building is so affected is not required to restore or repair and elects not to restore or repair such Building, then the Party so electing shall, within ninety (9C) days after it discontinues tne use of such Building, raze and remove the remainder of the Building and shall improve the area previously occupied by such remainder of the Building as Common Area and -shall maintain the same as such until such time as a new replacement structure shall have been erected upon the site owned by such Party. Such Party shall also erect a closure wall, at its sole cost and expense, subject to the approval of the other Parties, to enclose the opening to the Mall from its Tract. m Oo 1/20/70 -130- 25.«A)-<C> o m O O n Oc OO oO 2122 25.5 Division of Condemnation Aucird Any auard, whether the same shall be obtained by agreement prior to or during the time of any court action or by judgment, verdict, or order resulting from or entered after any such court action, resulting from a taking or damaging by condemnation of the Shopping Center Site or any portion or portions thereof, or any rights or interests in the Shopping Center Site or any portion or portions thereof, or resulting from a requisitioning thereof by military or other public authority for a^y purposes arising out rtf a temporary emergency or other temporary circums.prices, shall be distri- buted between the Parties in accordance with the terms and conditions of such agreement-, judgment, verdict, or order; provided, however, that each Party shall have the right to appeal any judgment, verdict, or order to a court of last resort with respect to Its respective interest therein. 25.6 ftward to be Placed in Sefjirec.aV.ed Rank Account, (A) Subject to Subsections (B) and (C) of tJ-.is Section 2t.6, each Party screes to cauj ^ any si-iara receivcc as a result of a condem- nation to be field by it in a segregated bonk account designated as a trust account, to be applied and paid over to such use until the provisions of this Article 25 have been complied with in full in the same manner hereinabove provided. Any amounts not required to be so utilized, to the extent of each Party's award so held in trust, shall upon being frsed from such trust, be paid over to the Parties in proportion to their respective interests therein under this Agreement. (0) The amount of any net award (i.e., the total award less reasonable expenses incurred in the condemnation procecdings)recelved 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 or trust company qualified under the laws of the State of California as such Party shall designate for the custody and disposition of said funds as herein provided, except that it Is expressly understood and agreed that a 12/9/77 -131- 25.5-20.6(A)-(l» 2123 Mortgagee of such Party's Tract may be a trustee for the purposes of this Section 25.6(1!) . Payment of the proceeds required to be applied to reconstruction shall be made by said trustee to such Party, or its contractor .or contractors, in the discretion of the trustee, as follows: (1) At the end of each month, or from time to time, as may be agreed upon, against such Party's architect's certificate, 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 materialtnen for work done, matnrial supplied and services rendered during each month or other period bears to the total contract price. (2) At the completion of the work, the 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 payment (a) there are no liens against the property by reason of suc/i uork, and with respect to the time of payment of any balance reiiiain inc. to be paid at-, the ccnplflian of the work the period within which a lien may be filed has expired, or proof has been submitted that all costs of work theretofore incurred have been paid, and (b) such 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 Section 25.6 shall not be applicable to any Party entitled to self insure pursuant to Section 14. 3> 25.7 Arbitration to Resolve Disputes Any disputes under this Article 25 shall be determined by arbitration as provided in Article 21. 25.8 Condemnation Provisions in Grant Deeds and Public Parking _ Operating Agreement ____ nothing in this Article 25 shall be deemed to affect the condem- nation provisions in the Grant Deed a to the Parking Authority of the Phase I, Phase 1-A, Phase 1-0 and Phase II Public Parking Land or in the Public Parkins' Operating Agreement. 7/3/78 -132-25.7(C)-20.8 mnO 90 Din -<* X 90 O O nO 90 Om 2124 ARTICLE 26 COVEHAHTS RUN WITH THE LAND 26.1 Covenants "f Each Party (A) Each nnd all of the provisions of this Agreement on each Party's part to be 'perT°n"Cl1 (wliellier affirmative or negative in nature) are intended to and shall bind each and every Person, that comprises such Party at any time and from time to time, and shall inure to the benefit of the other Parties, unless the same is by this Agreement made for the benefit of or binding upon oOy pecified Parties in which event the same shall inure to the benefit of and bind only such Parties. (B) Each and all of the covenants of each Party herein not to use, or permit the use of, any part of its Tract, contrary to the provisions of this Agreement are also intended to, and shall bind, each and every other Person, having any fee, leasehold or other interest in any part of such Party's Tract at any time and I,from time to time, derived through any Person, that now or hereafter •***«•»• »• <"*•*• -..«»li f). .*.*-.. t. ft. «•!»/. *... »-*..»•. 4-U~«. » ..A!« nnw>4. f. f••' l' '' '- *- ' ** Tract is affected or bound by the covenants in question, or that such covenant is to be performed thereon, and shall inure to the benefit, of the other Parties. (C) Hith respect to the various covenants (whether affirmative or negative) on the part 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, or is to be performed on, less than the whole of such Party's tAexr frftA respect to the particular covcaantf such portion as Is affected ty, or 6ovad by, the particular covenants, or on tera of Agreement, be the serylent estate. mn O oo -<I* X> i2/9/77 -133-26.KAMC) 2125 ARTICLE 27 MISCb'LLAHEOUS 27.1 Waiver of Default No waiver of any default by any Party to this Agreeuient shall be implied from any omission by any other Party to take any action in respect of such default if such default continues or is repcii-cd. Ho express waiver of any default shall affect any default or cover any period of time other than the default and period of tine speci- fied in such express waiver. One or more waivers of any def-.ult In the performance of any term, provision, or covenant contained in this Agreement shall no*, be deemed to be a waiver of any subsequent default in the performance of the same term, provic-ion, or covenant contained in this Agreement. The consent or approval by any Party to or of any act or request by any other Party requiring consent or approval shall not be dceir.cd to waive or render unnecessary the consent or approval to or of any subsequent similar acts or requests. V The rights and remedies given to each Party by tins Agreement shall I»O H.-rrv.-.-i tr hr- ri:;::t:1 ::»•. j vn K'td !!'» 'Mie of sue!: fii/'lti anu I'yliJiidio* shall be exclusive of any of the others, »f of any other right or remedy at law or in equity which any Party might otherwise have by virtue of a default under this Agreement (except as otherwise pro- vided in Sections 27.t and 27.16 and Article 21), and the exercise of one such right or remedy by any Party shall not impair such Party's standing to exercise any other right or remedy. 27.2 Self-Hclp If Developer shall fail to perform any of the covenants to be performed by uovelopor pursuant to this Agreement, and if the failure of Developer relates to a matter which in the judgment-of a Major reasonably exercised is of an emergency nature and such failure aha11 remain uncurcd for a period of forty-eight Oi8) hours after a Major shall have served upon Developer notice of such failure, (provided if such emergency requires immediate action nnd it would be unreasonable to require prior notice under the circum- stances, no notice shall be required before the Major takes action n 70mno 9Coen^ tr> Oo o O Oo 12/9/77 27.1-SV.2 2126 as hereinafter set forth, provided the Major shall give Developer notice of such failure and the action taken as soon as possible) then the Major may, at its option, and in its sole discretion as to the necessity therefor, perform any such covenant, or .nake any such payment as Developer's attorney-in-facfc (each Major being hereby irrevocably appointed by Developer as Developer's attorney-in-facfc for such purpose), and each Major, by reason of so doing shall not be liable or responsible for any loss or damage thereby sustained by Developer or anyone holding under Developer. If a Party hereto shall be compelled or shall e*- i 'o pay any sum of money or do any acts which require the payment of money by reason of another Party's failure or inability to perform any of the ter:.is and provisions In this Agreement to be by such other Party performed, then such defaulting Party shall promptly upon demand reimburse the paying Party for such suras, and all such sums shall bear simple interest at the rate of cie percent (155) per annum l> over the then existing prime rate per annum of the Bank of America NT&SA, u'i Los Anr.clcs, C-il i f"rrii«, but in no even;, to exceed tlit maxir.iUM rate permitted by lav/ from the date of expenditure therefor. Any other sums payable by a Party to the other Party pursuant to the terms and provisions of this Agreement that shall not be paid when due shall bear simple interest at the rate of one percent (IS) per annum over the then existing prime rate of interest per annum of the Bank of America NT&SA at Los Angeles, California, but in no event to exceed the maximum rate permitted by lav; from the due date t« the date of payment 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 right to deduct the amount thereof, together witli interest as aforesaid, without liability of forfeiture, from any sums then due or thereafter becoming due from it. to the defaulting Party hereundcr. Any deduction made by any Party pursuant to the provisions of this Section 27.2 from any sums due or payable by it hereundcr shall not constitute a default in the payment thereof unless such oo o Ocz oo n O70 12/9/77 -135-27.1 lU \ 2127 Party fails to pay the amount of such deduction to the Party to whom the sum is owing within thirty (30) days after final adjudi- cation that such amount is owing. The option given in ihis Section 27.2 is for the sole protection of the Party so paying and its existence shall not release the defaulting Party from the obligation to perform the terms, provisions, covenants and conditions herein provided to be performed thereby or deprive the Party so paying of any legal rights which it may have by reason of any such default. 27.3 .Ho Principal-Agent Relationship Neither anything in this Agreement contained nor any acts of the Parties hereuno'er shall be deemed or cons-rued by the Parlies or by any third Person to create the relationship of principal and agent or of partnership or of joint venture or of any association between the Parties. 27. fl Consents and Approvals (A) Whenever a Party is requested to consent to or approve of any matter with respect to which its consent or approval is required by liiis ABceuinefit, sucii i-.-juzr.iti, o<- approval shall not be unreasonably withheld, except where this Agreement specifically provides that the same is in such Party's sole and absolute discretion. - (3) Notwithstanding any other provisions of this Agreement, wherever in this Agreement it is provided that the exercise of a right by or the performance of an obligation of or the execution of an action by any Party (hereinafter called the "Conscntee") shall be subject to the consent or approval of any other Party (hereinafter called the "Consentor") and pursuant to Subsection (A) of this Section 27.4, the consent or approval of the Consentor shall not be unreasonably withheld, then in any case where the Consentor shall withhold its consent or approval, such determination by the Consentor shall be conclusive upon the Consentee, unless, however, the Conscntee shall, within thirty (30) days after notice fr->m the Consentor of i Its determination, elect to have the matter submitted for determina- tion by arbitration in accordance with the provisions of Article 21. Such submission to arbitration shall bo the sole remedy of the mO O 79 Oi o O OO 1/20/78 -136- .27.3-27.'KA)-(D) r/ 2128 Consentce for any such withholding of consent or approval by the Consentor. Within fifteen (15) days after it receives the Consentce's notice pursuant to Section 21.1, the Consentor shall by notice to the Consentee state in detail its reasons for withholding such consent or approval. In the arbitration proceedings, the Consentor shall not rely upon any reasons for withholding such consent or 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 to the provisions of this Section 27.T th" sole issue for arbitration shall be the determination as to whether the withholding of consent or approval by the Consentor shall have been reasonable or unreasonable, and in the event that a determina- tion shall be made that the withholding of consent or approval by the Consentor was unreasonable, then the decision shall untiul such withholding of consent or approval, such annulment being the sole remedy of the Consentee, it being the intention of the Parties thatIf in no event shall any such withholding of consent or approval by the ConKc::>'-'r, or any decision in arbitration with rcipect theret«: (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 of the Consentee and against the Consentor in law or equity or under any special statutory proceeding or at all (except by arbitration as aforesaid); provided, however, chat any such decision in arbiration may also include an assessment of the costs of the proceeding with respect thereto as between the Consentee and the Consentor as provided for in said decision. (C) Wherever in this Agreement approval of any Party is required, and unless a different time limit Is provided in any' Article of this Agreement, such approval or disapproval shall be given within thirty (30) days following the receipt of the item to be so approved or disapproved, or the same shall be conclusively deemed to have been approved by such Party. Any disapproval shall specify with particularity the reasons therefor; provided, however, oo 8i Oo 79mO § 1/20/78 -137-27.«(C); 2129 that wherever in this Agreement any Party is given the right to approve or disapprove in its sole and absolute discretion it may disapprove without specifying a reason therefor. Wherever in this Agreement a lesser period of time is provided for than the thirty (30) day period hereinabove specified, .such time limit shall not be applicable 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 act. Failure to specify such time shall not invalidate the notice but sinply rhall require the action of such Party within said thirty (30) days. (D) Any document submitted for the consent or approval of any Party shall contain a cover page prominently reciting the applicable Agreement Article involved, listing the date nailed, and if applicable, containing u statement to the effect that the document or the facts contained within such document shall be deemed approved <~-r consented to by the recipient unless the recipient makes an objection thereto within the correct tirr.e specified in such notice, which shall be thirty Cj'j) <ii./j ui'ilcoo L.IIio A^i CUUILMIL shall specify c oifierent period. If the tirnf specified in the nctice is incorrect or not set forth, the tiiae limit shall be thirty (30) days unless a longer time period is specified in the Agreement, in which case the longer period of time shall control. Failure to specify such time shall not invalidate the notice but sircply shall require the action of such Party within said thirty (30) day period. (E) Wherever in this Agreement provision is made for approval "by the Parties" such phrase shall mean the approval of all of the Par tics. 27.5 Agreement Binding on Successors and Assigns This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Parties. 27.6 Holeaso of Parties Except as respects the covenants act forth in Section 18.1 with respect to May, in Section 18.2 with respect to Penney, in Sections 5.1 through 0.3, inclusive, and Section 18.3 with respect to 2/3/71! -138- 27.'I(I))-;?'/. 6 2130 Scars, in Sections 5.1 through 5.3, inclusive, and Section 18.'I with respect to Federated, in Sections 5.1 through 5.3, inclusive, and Section 18.5 with respect to Carter, and Sections 6.2 through 6.7, inclusive, with respect to Developer, the terras "May", "Penney", "Developer", "Sears", "Federated" and "Carter", as used in this Agreement insofar as the terms, covenants, and provisions in this Agreement on the part of May, Penney, Developer, Soars, Fcdcrnterl and Carter, respectively, to be kept, performed and observed are concerned, shall mean and refer to the Person or Persons who are from time to time the Party (as that term is defined ser<-<n) with respect to the May Tract, the Penney Tract, the Develope;- Tract, the Sears Tract, the Federated Tract and the Carter Tract, respec- tively, and said respective terms, covenants, and provisions shall be binding on May, Penney, Developer, Sears, Federated and Carter, respectively, and tl>cir respective successors and assigns only during and in respect of its or their successive periods of being a Party to this Agreement and u;>on a sale, trans'fer, or conveyance of any Person or Persons' intorc-st in the May Tract, the Penney Tract, the Developer Tract, the Sears Tract, the Federated Tract or the Carter Tract, as the respective case may be, which results in sue!; Person or Persons ceasing to be a Party, the respective grantor (as respects any liability arising thereafter) shall thenceforth stand released and discharged of any and all liability for the keeping, perforDiing, and observing of the respective terms and conditions and its respective covenants and agreements; provided, however, that the preceding provision", of this Section 27.6 shall apply only on the conditions: (1) That at the time of any such sale, transfer, or conveyance of the May Tract, the Penney Tract, the Developer Tract, the Sears Tract, the Federated Tract or the Carter Tractp the respective grantee thereof shall deliver to the other Parties an executed and acknowledged instrument in recordable form assuming the terms, conditions, covenants, and agreements in this Agreement to be kept, observed, and performed by Us, respective g-ant^r; 70mnO Z o m Oo n Oc Z IP O O J/20/78 -139-27.6 2131 (2) That any and all amounts which shull then be due and payable by such respective grantor to the other Parties or to any other Person or Persons as herein provided shall be paid to the other Parties c>r such other Person or Persons, as the case may be; and (3) That Fuch respective grait«r sh^lA give notice tn the other Parties of such respective sale, transfer, or c«n- veyance after the instrument effecting the same shall be filed for record. notwithstanding the foregoing, until the ooir.ple,, • . *f con- struction of those portions of the Developer 1m,.rovc-ments which Developer is required to construct or cause to be constructed pursuant to Section 6.2 through 6.7, inclusive, Plaza Caraino Real shall not be released of personal liability with respect to such covenants ts Developer under this Agreement, nor shall The Hay Stores Shopping Centers, Inc. be released of its respon- V sibility as General partner in Plaza Camino Real. 27.7 S',-v..-.'-::-!:.imy Any provision or provisions of this Agreement which shall prove, to be invalid, voit:, or illegal shall in no way affect «r impair or invalidate any other provision thereof, and t.ie re- maining provisions hereof shall, nevertheless, remain in full force and effect. 27.8 Captions The captions of the Articles and Sections of this Agreement are for convenience only and shall not be considered or referred to in resolving questions of interpretation and construction. 27.9 California Lau Governs This Agreement shall be construed, interpreted, and applied in accordance with the laws of the State of California. 27.10 Amendment of Agreement This Agreement may be amended or terminated only by the agree- ment in writing of all the Parties hereto recorded in the land records of San Diego County, California. 12/9/77 -110- 27.7-27-10 .0-2132 '.j 27.-11 Sale-Leaseback; Lease-Leaseback (A) In the event that any Party shall sell part or all of its Tract for the purpose of financing the improvements1 on its Tract, and shall simultaneously enter into a leaseback of not less than twenty (20) years with such fee owner, whereby the seller shall have the possessory rights in said real property, subject to the terms of said lease', then and in that event it is expressly understood and agreed that so long as said lease remains in existence the fee owner of such Tract, or portico thereof, shall. for the purposes of this Agreement be given all of tr.c •; _me rights and privileges of a Mortgagee under a Mortgage of said real property, and such fee holder shall not be subject to any obligation which might be created pursuant to any of the provisions of this Agreement to any greater extent than would be the Mortgagee under a Mortgage. In the event of any 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 operative Lu relieve &al<- fee owuei und its respective successors and assigns of the obligations under and pursuant to the terms of this Agreement, (exclusive of the respective covenants of Kay, Penney, Sears, Federated and Carter as provided in Sections 18.1, 18.2, 18.3 and 18.5, the exclusion of said Sections not being applicable if the leasehold interest is terminated as a result of a Party lessee acquiring the fee interest); provided, however, that the fee interest shall not be subject to liens as provided for 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 so subject unless a new lease shall have been entered into which would otherwise comply with the provisions of this Section 27*11 or the lease shall have been assigned to a new Person, in which event the rights of the fee owner shall continue as though no default had taken place under said lease. In the event of the merger of the title to the fee interest and the leasehold interest in an owner as 1/20/78 -1'fl-27.11«A>ti f •• ! 2133 hereinabove provided for, then and in that event such 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 simultaneous lease- back, and the provisions of this Section 27.11 shall apply .K -eto; and the terms "owner" and "fee" shall include a lessee and leasehold under such lease and leaseback transaction in the same manner and with like effect. (B) The leases of the May Tract, the Penney Tract, the Sears Tract a:.d the Carter Tract referred to in Recital C (ii), (iii), (iv.) and (vi) of this Agreement shall be treated for all purposes under this Agreement as qualifying leases under saleleaseback transactions covered by Subsection (A) of this Section 27.11 ' regard! or.«» nf uhofr-her or not such leases are, in fact, the products of sale-leaseback transactions) and the obligations,, liabilities, rights and privileges of the fee owners of such Tracts shall, accordingly, be governed by the provisions of said Subsection (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 Whenever in this Agreement the locative adverb "herein" is used, the same shall be made in reference to this Agreement in its entirety and not to any specific Artioles, Section, Subsection or subpart thereof. . I O 5/25/78 -1«2- 27-lHD)-27.13 2134 H^c CD DC CD 21.It Obligations Coase on Termination Dole (A) This Agreement, and all the rights, powers, privileges, immunities, obligations and covenants of the Parties respectively (except as provided in the following Subsection (B)), 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 pr.-or to Termi- nation Date. l^^^-^^^^r--^^-^!g®<^^x^^^<^' Sff, / ff/re/ /<?.£ feffcfi 37 set /"artA 1'ti Section SO. 7J snaJ/ survive Termination Date and continue thereafter resppctiw}y in accordance with tiie respective terms of such respective Sections. 27.15 Mo l-iechanics* Liens All mechanics' . mater ialwen' r- or similar Hers on th" Devel- oper Tract and the Public Parking Area shall be promptly dis- charged or caused to be discharged by Developer. Wherever under the terws 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 way bond and contest the validity of any tuah linn but upon final determination of the validity and the amount thereof, such Party shall immediately pay any judgment rendered, with all n > oo rio 6/12/78 27. l'(-? 2135 27.16 Breach Shall Not Permit Termination or Defeat Mortgage (A) It is expressly agreed that no breach of this Agreement shall entitle 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 horeunder 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 invalid the lien of any Mortgage made in good faith and for value, but such term, condition, covenant or restriction shall be binding upon and effective against any Person who acqui:es title to said property or any portion thereof by foreclosure, trustee's sale or otherwi se. 2V.17 Use of Words "Include" and "Including" As used in this Agreement, the words "include" and "including" shall be deemed to mean, respectively, "include without limitation" and "including without limitation". (A) The necessary arrangements to permit the construction and operation of the Phase II-O Public Parking and the construction and operation of the Carter Store in accordance with this A0reement have not yet been concluded. Developer's obligations to construct and operate the Phase 11-0 Public Parking and Carter's obligations to construct and operate the Carter Ston; in accordance with 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 written notice that such condition has been satisfied. Upon satsi faction of such condition, Developer shall convey the Carter Tract to Carter in accordance with the provisions of a separate agreement between Developer and Carter. In the event such condition has not been satisfied by July 25, 1978: (1) The Planned Carter Opening Date shall be extended until fifteen (15) months after such condition is satisfied, unless, as a result of such extension, the Planned Carter Opening Date would fall between October 1 of any year and the 70mno 70o* oo n Ocz 5/10/78 -I'l'l-27.16-27.18 2136 CD 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 succeedinc date which does not fall withiii such periods; arid (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 -hall improve the Carter Tract as Common A>-ea, 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 prior 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 accordance with the provi- sions of a separate agreement between Developer ?n'd Carter. Devel- oper i:r;cJ Curtc/' ^h£? 2 cci'-h givo ;;c.-of such t*?rfl!- r>?t jr-r* t 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 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 Lsha)] not be increased by reason of said expansion of th«» Developer Tract. (3) The Developer Tract shall not be deemed to include the Phase II-O Public Parking Land and the Phase II-O Public Parking Land shall no longer be part of the Shopping Center Site and shall coase to be subject to this Agreement. 70mr>O70 O 5/10/Y8 27.18 2137 CD Cd O be deemed to refer to said replacement £xV>ihit C (.formerly txMAiit V). Although no further action shall be necessary to bring about the foregoing results, nevertheless, Developer, May, Penney, Sears, Federated and Carter shall enter into an amendment to this Agreement confirming that the foregoing results have occurred and shall record said amendment in the Office of the County Recoroc-r . r San Diego County. ARTICLE 26 REACOUISITION OF THE PUBLIC PARKING In the event the Parking Authority at any time and from time to time shall seek to transfer or sell 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 efforts tc acquire the ssae. The Public Parking, upon the acquisi- 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 Developer Tract for all purposes of this Agreement. IN WITNESS WHEREOF, the Parties hereto have executed this Agree- ment as of the day and year first above written. PLAZA CAMIMO HEAL .-^''""^ \& By: This May Stores Shopping" "Ifeytejef, Ifi&.-, a/Corporation, Sole Geifgfalt-.gaftrierjij' '^4&~f/lS' C THE MAlTPEPARTHEHT STORES COMPAQ•...£.„• "x ,/y .' _ 7; // v>V „i .'v.'f. By JS-TS f4. ^^ /-/ .,,. ,TOE FPESinahr^ ;: 'i \ '.. p ...o VICE PRESIDENT ^^^r*MK"" 6/2/7B -IH6-28 2138 ATTEST: LEGAL APPROVAL 766-PC FACILITIES NINd MANAGER .... ^....js^,, FEDERATED DEPARTMENT STORES, INC. 'Iffif Jjj% ^/UriL— By s^L^t 7)0 Jif^exu.so? ?• y JH . **. ..T / ~c*^ l_ ..f. li-tafLStcnlMy CARTER H Vice Prealdsnt HALE STORFS, INC. VICE PRESIDENT) n > r»O90 Q(/)«• (A > Z O O n O > OO2 6/2/78 -147- n O90 O 2139 STATE OF CALIFORNIA ) ) ss. COUNTY OF LOS ANGELES) On //£/<? c/J/ Cr i 1978f before me, the under- 7signed, a Notary Public in and for said State, personally appeared r' f and t knowri to me to be the » known to me to be'of THE MAY STORES'SHOPPING CENTERS, INC., the corporation that executed the within instrument and known to IBS to be the persons who executed the within instrument on behalf of s<* ' corporation, said corporation being known to me 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 same ai. such partner and that such partnership executed the same. WITNESS my hand and official seal. omciAL SEAL"""""* VERONICA SZABO | IK AWJUES COU.'IIY | . 12. 1981 a wuusiutfcKiiiifii.ittunuii.iii STATE OF COUNTY OF On ) SS. <s , 1978, before me, the under- signed a Notary Public in and for said State, personally appeared , known to me to be the fr>'g e i known to me to //'"''of THE MAY DEPARTMENT STORES COMPANY, the 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. «7»£5S my hand and m *£&s»'-'-*••' "0™',>™>c C*WM!Notary public^ 8/1/78 2140 STATE COUNTY ) ) ss.) On II _, 1978, before m«, the under- signed a Notary Public in and for said State, personally appeared R L MOMTAfi known to me to be the and ~T.known to me to be of J.C. PENNEY COMPANY, INC., the corporation that executed the within instrument, known to me to be the persons who excsut"! the within instrument on behalf of the corporation therein nameo, and 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 ' ELIZABETH 01 WLlflO STATE OF COUNTY OF 2-5 ) ss. On ftI>£*>S,T V /?7f , before me, the undersigned, a Rotary Public in and for said State, personally appeared B. K. BOBNE known to me to ba the Territorial Facilities Planning Manager of the corporation that executed the within instrument, and known to me to be the person who executed the within instrument on behalf of the corporation therein named, and acknowledged to ae that such corporation executed the within instrument pursuant to its by-laws or a resolution of its board of director*. WITNESS my hand and official seal OFFICIAL SEAL DOTTY ADANALIANNOTAUr PUBLIC — CAll»O*NMMUNctnu. cruel mu» ANCUCS coo-»au. bpirts Sept. 30. 1980 -119- 9141** AltX STATE OF COUNTY OF ?*&>- > "• On L , 1978, before me, the under- signed a Notary Public in and for said State, personally appeared LAWRENCE M. ISAACS known to me to be the «"«»»»• '*ca fraaldoat and _ ** *• *"""" _ , known to me to be of FEDERATED DEPARTMENT STORES, INC., the corporation that executed the within instrument, known to me to be the person- wh^ 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 offical seal. Notary Public P.CT:/.'." K, C.i an.;,I'M STATE OF if v ) ss. On / 1978, before me, the under- (7signed a Notary Public in and tor said State, personally appeared , known to me to be the and , known to me to be of CAHTER HAWLEY HALE STORES, INC., the corporation that executed 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 instru- ment pursuant to its by-laws or a resolution of its board of directors. WITNESS my hand and offical seal. JEd/«t(»»? f^JNotary 8/1/78 -150- 2142 AGREEMENT OF FEE OWNER OF MAY TRACT The undersigned, MAY PROPERTIES, INC., 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 Ji'1 '.e for the performance of any of the provisions of the Agreement, except in accordance with Section 27.11 thereof. Dated:ts&tfJS /, HAY PROPERTIES, INC. A Delaware!Corporation STATE OF COUNTY OF On ) ss -i'Sr. s //, // 'a before me, the undersigned, a Notary Public in and for said State, personally appeared ^ePOtzv r r/' and know- to me to be known to me to be the <m<* • of the corporation that executed 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 cor- poration sxrfcuted the within instrument pursuant to its by-laws or a resolution of its board of directors. WITNESS my hand and official seal. niniHiiiuuiiimiii OFFICIAL SEAL SUSAN E. PETERS --~:'t*:fi K01A8V PUBLIC-CALIFORNIA10$ ANGELES COUNTY 5/10/78 ^J^xUliV^- X f j A.(/L'Notary Public -1- AGREEMENT OF FEE OWNER OF PENNEY TRACT The undersigned, NEW MARJORAM ASSOCIATES, a New York partner- ship, fee owner of the Penney Tract, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, does Hre^tet?} -sttrS'jvSx ~l"Xs "lee eslate 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 liable for the performance of any of the provisions of the Agreement, except in accordance with Section 27.1', ' -. Dated: NEW MARJORAM ASSOCIATES A New York Partnership By yA^ \ V..^ By STATE COUNTY On Au6-<->&7~ /O . 1978, before me, the undersigned, a Notary Public in and for said State, personally appeared known to me cueto be fewer-of the partners of NEW 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. '//•• J£ 2/15/78 -1- 2144 AGREEMENT OF FEE OWNER OF SEARS TRACT The undersigned, PLAZA CAMINO REAL, a California limited partnership, fee owner of the Sears 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 liable for the performance of any of the provisions of the Ag."«» ..<?nt in respect of said Tract, except in accordance with Section 27.11 thereof. Dated: PLAZA CAMINO REAL By: The May Stores Shopping Centers, Inc., a Corporation, Sole General-Partner By By L.ttJ P«r;iofNT ASSISTANT SECRETARY STATE OF CALIFORNIA ) } ss COUNTY OF LOS ANGELES ) On , 1978, before me, the under- signed, a Notary Public in and for said State, personally appeared fit? foci /£•£>• ezs J , known to me to be the s, ff.s'e, -r r> c.'?' / S. X:e?s/'' ,known to me to be the 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 of PLAZA CAMINO REAL, a limited partnership, thi partnership 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. '* S ttOIAHY PUSUC- CtlirOtHlf Itas AHoues cowm f IMI |PUBLIC ' «• . * 2145 AGREEMENT 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 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 liable for the performance of any of the provisions of the Agreement in respect of said Tract, except in accordance with Section 27.11 thar .•"! . Dated PLAZA CAMINO REAL By: The May Stores Shopping Centers, Inc., a Corporation, Sole General Partner By By ;y^-.^ '(,**''< •Mill'""' cJ-/*-?•.: STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) C 4 On tS5>/ // ,1978, before me, the under- signed, a Notary Public in and for said State, personally appeared /Sf&' c/tz**sfknown to me to be the and known to me to be the of THE MAY 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 of PLAZA CAMINO REAL, a limited partnership, the partnership that executed the within instrument, and acknowledged to me that such corporation executed the s;ame as such partner and that such partnership executed the same. WITNESS sty hand ar.d official seal. cmciAL SEAL SUSAN E. PETERS KOTARY PUBLIC-CAUfORIIIA ICS AKCELES COUNIYUy CarnnMttn DMW Oct. 2.19«limillilMiHlilliiiiirmiMHiiniiiimiiiiiiiiiini rn I C C nt C 2146 AGREEMENT OF FEE OWNERS OF NOH-MALL BUILDING SITE I The undersigned, PLAZA CAMINO REAL, a California limited partnership and THE MAY DEPARTMENT STORES COMPANY, a New York 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 grv")t <" ease- ments contained therein. In no event shall The May Department Stores Company be personally 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: '-•• 5- ^ •.....••k<i PLAZA CAMINO REAL By: The May Stores Shopping Centers, Inc. a Corporation, Sole ,6'eneral Partner By »W SECRETAfty f THE MAY DEPARTMENT STORES COMPANY A New York ^Corporation / V By By 2/15/78 IT c O 2 n C C c Cc 7 STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) 21W On , 1978, before me, the under- signed, a Notary Public in and for said State, personally appeared , known to me to be the and t known to me to be the of THE MAY 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 tlv partners of PLAZA CAMINO REAL, a limited partnership, the partnersn .) 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 official .seal. STATE OF COUNTY OF On .•/<, / //, 1978, before me, the undersigned a Notary Public In and for said State, personally appeared j^f^c**-* ^ - C>- &*~ 'known to me to be the *£•? X< .*-/jf. 3?e • "> , known to me to be ?•/ *e~ f 'and \ r^; Of THE MAY DEPARTMENT STORES COMPANY, the corporation that executed 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 ray hand and official seal. omcuj. SEAL VERONICA S2ABOno»»r WBUC CMJFUMKu* ««cius cwj«rvW Ctmmmai town ua.i2.mi -i :1•'<;- fin -. 2/15/78 _ Notary Public -2- 2U8 Exhibit A, Part 1 Legal Description of Shopping Center Site The following land in the City of Carlsbad, County of San Diego, State of California: Lots 1 through 29, inclusive, 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 within or underlying said land without right of surface entry as reserved in deeds executed by Reginaldo Harron and Caroline Marron, recorded in Book 6699t Page 261 of Off.Kfa? Records, and Book 7712, Page 177 of Official Reeora., 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 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 FAUCO, a partnership, William S. Bartman, Fred A. Bartman, Jr., Bernard Citron and Harry J.L. Frank, Jr., recorded April 21, 1966, Recorder's File Nos. 66913 and 66568. The following land in the City of Oceanslde, 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 northeast, quarter of Section 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*12*19"west, 325.70 feet to the true point of beginning; thence north 89*12*19" west, 1150.70 feet; thence leaving said south line, north 16*36*53" east, 113.87 feet; thence north, 312.85 feet; thence north 88*00*18" east, 513.32 feet; thence north 89*11'28" east, 500.01 feet; thence south 0*2Htll" east, 139*22 feet to the true point of beginning. EXHIBIT A, Part 1 -1- B/14/78 2149 Exhibit A - Part 2 Legal Description of Phase I Land The following land in the City of Carlsbad, County of San Piego, State of California: Lots 1 through 13, inclusive, and Lots 16, 20, 22 and 26 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 sain 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 landwithout right of surface entry as reserved i.; d *ds executed by Reginaldo Marron and Caroline Marrc. recorded in Book 6699, Page 26U of Official Records, and Book 7712, Page 177 of Official Records. Also except from any portion of said land, all of theoil, gas and minerals-and mineral rights, lying beneath n 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 partnership, William S. Bartnan, Fred A. B:;rtnan, Jr., Bernard Citron and Harry J.L. Frank, -Jr., recorded April 21, 1966, Recorder's File Nos. 66913 and 66568. EXHIBIT A, Part 2 -1- 8/14/78 2150 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 11 and 15 and Lots 17 through 19, inclusive, Lot 21 and Lots 23 through 29, inclusi/e, of Carlsbad Tract No. CT-7618 (Plaza Camino Real Shopping Center) according to Map No. 8955 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 within or underlying said land without right of surface entry as reserved in deeds executed by Reginaldo Marron and Carol in ' MaTon, recorded in Book 6699, Page 261 of Official \e-ords, and 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 beneath a depth of 500 feet from the surface of said land, together with We 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 partnership, William S. Bartman, Fred A. Bartman, Jr., Bernard Citron and Harry J.L. Frank, Jr., recorded April 21, 1966, Recorder's Fil* MOS. 66913 and 66568, S0JJ0i/Jag laad la the City of Oeeanside, County of San Diego, At*County of San Diego, State of California, oeing a portion of the northeast quarter of Section 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 beginning; thence north 89*42'19" west, 1150.70 feet; thence leaving said south' line, north 16*36/53" east,113.87 feet; thence north, 312.85 fe'et; thencenorth 88*00'18" east, 543.32 feet; thence north 89**1'28" e'ast, 500.04 feet; thence south 0*24'11"east, 439.22 feet to the true point of beginning. EXHIUIT A, Part 3 -1- 8/14/78 2151 Exhibit B - Part 1 Legal Description of Portion of Developer Tract Owned by Develope1" Alone The following land in the City of Carlsbad, County of San Diego, State of California: Lots 2 through 6, inclusive, and Lots 13, 17, 21, 23, 27, 28 and 29 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 within or underlying said land without right of surface entry as reserved in det^s executed by Reginaldo Marron and Caroline Marron, recorded in Book 6699, Page 261 of Official Records, and 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 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 lend, as excepted in deeds, from FA'..'CO, a partnership, William S. Cartiuan, Fred A. D.-.rtiusn, Jr., Dernard Citron and liarry J.L. Frank, Jr., recorded April 21, 1966, Recorder's File Nos. 66913 and 66568. EXHIBIT B, Part 1 -1- 8/14/78 2152 Exhibit B - Part 1.1Legal Description of Portion of Developer TractOwned by Developer and Kay The following land in the City of Carlsbad, County of San Diego, State of California: Lot 10 of Carlsbad Tract No. CT-7618 (Plaza CarainoReal Shopping Center) according to Map Ho. 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 hyc'r- —carbon substances within or underlying said land without right of surface entry as reserved in deeds executed by Reginaldo t-'.arron and Caroline Harron, recorded in Book C699, Page 26'l of Official Records,and Book 7712, Page 177 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 from the surface of said land, together with the right of entry at any point in suchland lying below said depth for the purposes of ex-ploring, drilling, conveying and removal of any suchsubstances and installation of equipment and pipelinesfor such purposes, provided that any such entry andactivity 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, asexceoted in deeds, from FAtfCO, a partnership, V/illisr. S.Bartman, Fred A. Bartr&an, Jr., Bernard Citron and HarryJ.L. Frank, Jr., recorded April 21, 1966, Recorder'sFile Nos. 66913 and 66568. EXHIBIT B, Part 1.1 -1- 8/14/78 2153 Exhibit B - Part 2 Legal Description of Phase I Public Parkins Land The following land in the City of Carlsbad, County of San Diego, State of California: Lots, 1, 7, 8 and 9 of Carlsbad Tract No. CT-7518 (Plaza Camino Real Shopping Center) according to Hap Ho. 8956 filed in the Office of the County Recorder of said County or. 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 right of surface entry as reserved in deeds executed by Reginaldo Marron and Caroline Marron, recorded in Book 6699, Page 26« of Official Records, and Book 7712, Page 477 of Official Records. Also except from any portion of said land, all of the oil, gas and minerals and miner?1 rights, lying beneath a depth of 500 feet from the surface of said land, together with U.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 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, frora FAWCO, a partnership, William S. Bartoan, Fred A. Bartman, Jr., Bernard Citron and Harry J.L. Frank. Jr.. t-ecordPd April 21, 1965, "eecrdcr's File Kos. 66913'and 66568. n O 70 O O m O O nO EXHIBIT D, Part 2 8/14/78 -1- 2154 Exhibit B - Part 2.1 Legal Description of Phase I-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 Ho. CT-7618 (Plaza Catnino Real Shopping Center) according to Hap No. aosfi filed in the Office of the County Recorder of said County on August 11 , 1978. EXHIBIT B, Part 2.1 8/14/78 -1- 2155 Exhibit B - Part 2.2 Legal Description of Phase I-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. 8956 filed in the Office of the County Recorder of said County on August 11 , 1978. EXHIBIT B, Part 2.2 -1- 8/14/78 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 Ho. CT-7618 (PlazaCamino 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 3 8/14/78 -1- 2157 Exhibit B, Part 3-1 Legal Description of PhaseII-O Public Parking Land The following land in the City of Oceanside, City 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 northeast quarter of Section 31, Towns.tip 11 south, Range 1 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 <J9*42'19" west, 325.70 feet to the true point of be^'r . tnr,; thence north 89S42'19" west, 1150.70 feet; tl. i.oe leaving said south line, north 46'36'53" east, 1M3.87 feet; thenen north, 312.85 feet; thence north 88'00'18" east, 513.32 feet; thence rorth 89*i)l'28" east, 500.04 feet; thence south O'24'll" east, 139.22 fer«- to the true point of beginning. 0, fart j.s -/- 6/2/78 2158 Exhibit B - Part 4 Legal Description of Hay 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 _ Except from any portion of said land, all mineral rights and all oil, gas, petroleum or other hydro- carbon substances uithin or underlying said land uithout right of surface entry as reserved .n d-eds executed by Reginaldo Harron and Caroline toari . ,recorded in Book 6699, Page 261 of Official Records, and Book 7712, Page 177 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 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 av/>*d any interfer- ence vitfi t/je use of the surface of said land, as excepted Jn deeds, from FAI/CO, a partners/ilp, t/MlJam S. ffartaan, fred A, Bertman, Jr. . Bernard Citron and Harry J.L. Frank,. Jr., recorded April 22, 1966, Recorder's File ties. 66913 and 66568. W '0 EXHIBIT B, Part H8/14/78 -1- 2159 Exhibit B, Part 5 Legal Description of Penney Tract The following land in the Cit> of Carlsbad, County of San Di State of California: Lots 11 and 20 of Carlsbad Tract No. CT-7618 (PlazaCamino 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, ail mineral rights and all oil, gas, petroleum or other hydro- carbon substances withir or underlying said land without right of surface v- ;••• as reserved in deeds executed by Reginaldo l-iarrot. and Caroline Matro.i, recorded in Book 6699, Page 264 of Official Records, and 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 beneat 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 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 Bartman, Fred A. Bartman, Jr., Bernard Citron and Han J.L. Frank, -Jr., recorded April 21, 1966, Recorder's ttos. 66213 art 2160 Exhibit B - Part 6Legal Description of Sears Tract The following land in the City of Carlsbad, County of San Diego, State of California: Lot 25 of Carlsbad Tract No. CT-7618 (Plaza Camino Real Shopping Center) according to Map No. 8956 f.iled in the Office of the County Recorder of said County on August 11 , 1978. EXHIBIT B, Part 6 «/14/78 -1- 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 (PlazaCamino Real Shopping Center)' according to Map No. 8956 filed in the Office of the County Recorderof said County on August II , 1978. EXHIBIT B, Part 7 8/14/78 -1- 2162 Exhibit B - Part 8 Legal Description of Carter Tract The following land in the City of Carlsoad, County of San Diego, State of California: Lots 18, 19 and 24 of Carlsbad Tract No. CT-7618 (Plaza Camino Real Shopping Center) according to Map Ko. 8956 filed in the Office of the County Recorder of said County on August 11 , 1978. ooB: nO 70 O EXHIBIT 0, Part 8 -1- 8/14/78 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 D, Part 8.18/14/78 -1- oo ,;- .. _ . ^:i' • • •2*64 nO 90 O01 o m O O o Ocz > 70I—m oo nO 2166 •n Z!n m O O O O n Ocz O O O 70 Om 2167 EXHIBIT D, PART 1 PROJECT IMPROVEMENT REQUIREMENTS j I. DEFINITIONS:f ^~*~"~~"~^~~ • Any term or word defined in the Agreement to which this Exhibit is attached, shall have the sane meaning when it is used in this Exhibit, except if the context clearly indicates 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 Phase 1-A Public • Parking Land and the Phase J.-B Public Parking Land. ; 2. GENERAL REQUIREMENTS: : (A) The peripheral boundaries and configuration, the termini, • and nil dimensions (denoted or scaled) of the Phase II Mall shall be \ .as respectively shown on Exhibit "C" attached to the Agreement. ; (B) The peripheral boundaries and configuration and the dimen- sions (denoted, or if not so denoted, then scaled) of the Building shell of the Phase II Kail Stores sha)l be as resppr.M vol y shown on Exhibit "C" to the Agreement. (C) All areas not used as Building or Truck Facilities areas • shall be improved, used, and maintained as Common Area. 3. REPORTS AMD OTHER INFORMATION; Developer shall furnish to each of the Majors, for their infor- ; mation, one (1) sepia of each of 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: (i) 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 municipal datum. (ii) Contour lines drawn at two (2) foot intervals, i • except in flat terrain (that is, overall slopes less than two I percent (2?)) oontourr. shall be drawn at one (1) foot intervals. Exhibit D, Part 1 -1- 11/15/77 I- CD cn o 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 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 dimen-v' s of all existing and proposed streets and sidewalks adjacent to the Center and, to a sufficient distance to show adjacent major streets, 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, catch basins, high voltage transmission towers and/or lines, electric pow«»r linc-s, telephone pale:.- (show cn'.o numbers and indicate transformer cans), telephone lines and street lamp posts. (B) An Outboundary Survey 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 include the following information: closure at 1:10000. (ii) One magnetic bearing shall bo shown on the survey and if an adopted bearing is used for field work, the adopted line shall be shown. Exhibit D, Part 1 R1/1U/77H3/30/V7 R6/24/77 -2- m 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 lengths, deltas and radii shall be noted. (iv) All monuments shall be identified as "found", "set", or "reset" and described (for example, "iron pipe"). In any event, an iron pipe or concrete monument is to be placed at all property corners. (v) All adjacent streets and major streets, higi.-'a*- , ramps and access roads in the area shall be identified and any private streets shall be so noted. The record width of each street shall be placed adjacent to the street narae and any restrictions on access to the Shopping Center Site shall be noted. (vi) All record easements shall be indicated with dimensions, bearings, their purpose, and all restrictions imposed by the easement. (C) The following reports which shall be prepared by independent, qualified consultants: (i) Proctor, in place density, and compaction test reports and certificates (Paragraph 6(D)). (ii) Compaction and stability and flow tests (Paragraph (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 II Major has been prepared in conformity with his recommendation and the approved plans and specifications. Exhibit I), Part 1 2/J/78 -3- 217'0 (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. PLAKS TO BE SUBMITTED FOR APPROVAL; 1Developer shall submit to each of the Majors, for their approval, one (1) sepia of the Temporary Utilities Plans, Permanent Utilities Plans, Paving and Parking Plans, Site Lighting Plans, Landscaping and Irrigation Plans, and the Site Grading Plans for the Phase II Developer Construction. Each of the Phase II Majors s>alJ sutait to each other and to the other Parties, for their approval, one (1) sepia of the plans and specifications for the Perimeter Sidewalks on its Tract. 5. TEMPORAP.Y UTILITIES PLAIJ3; CONSTRUCTION ROAD AND STAGING AREA(S) (A) The Temporary Utilities Plan shall show the 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 Snii^s construction, i,:<_iuiij.jiy tut items to be pxoviaed by Developer as hereinafter set forth in this Paragraph 5. (B) Developer shall provide the following listed temporary utility services to a point not more than twenty-five (25) feet from the Phase II Major's Building pads, in accordance with the following requirements. Each Major, as to its respective temporary utilities, shall pay the utility companies on the basis of mctered use for the operating costs of the utility services: (i) Storm Drainage - Temporary ditches or other means an 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 the start of construction by such Major until permanent storm scwcr systems have been completed and made operational. Exhibit D, Part 1 -4- 9/7/77 O m Oo o z oo nO 70 O 2171 (ii) Water - Water service, at a pressure suitable for construction purposes shall be available before the start of construction by each such Major, as the case 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 mini-nu-: of 100 ai.ips, three phaso-four wire and tc-i uiuaiirij; at a service pole (provided by each such Major or its contrac- tor) shall be available before the start of construction by the Major. Service pole, service head and drops shall c • provided by each such Major or its contractor. (iv) Telephone - Developer shall coordinate installation of an overhead trunk line with the local telephone cor.p.iny to assure telephone service availability before the start of construction by each such Major. (C) Developer shall provide and maintain throughout the con- struction process temporary all weather construction roads between an existing road adjacent to the Shoppinc Center Site ana the stati- in£ artii for each Ph&se II Major. Each Phase II Major's staging area shall be constructed by the Developer and maintained by the Phase II Major for workers' parking, material storage, and contrac- tors' trailers and sheds. Each Phase II t-'ijor shall reimburse Developer, promptly after the submission of bills therefor, for the cost of constructing and ir.aintaiiiinc the temporary road to its staging area and the cost of constructing its staging area. The following requirements shall apply: (i) The construction road shall be at least sixteen (16) feet wide and all staging areas shall be at least fifteen thousand (15,000) square feet in area for each building site. (ii) Developer shall prepare a plan showing the planned location of the construction road and the designated staging areas, which shall be consistent with the overall site develop- ment and subject to review and approval by each Major. The Developer in consultation with the Parties shall make such 73mnO 70 O Exhibit 1>, Part 1 2/3/Vo 2172 reasonable adjustments to the designated locations contained in the above plan in order to prevent unnecessary conflicts in construction or conflicts with the operation of any Phase 1 Major. (D) Developer shall provide temporary sedimentation batins as needed to prevent silting of areas which are downstream of the Shopping Center Site. 6. SITL GRADING PLANS; (A) The Site Grading Plans shall show existing and . . w contours in the Phc.se II Land drawn at two (2) foot intervals, (except in areas ot flat terrain |i.e., those with overall slopes 7^VI less thar. two percent "(2.)]'contours shall be drawn <»t one (1) loot V) intervals) ana shall show contours (overlaid on a reference Cjrio) J> „..,—«. ^..~—. ~ „..„..» .„. ~..v., ^.. ^..^ ^..^..^ „..„ „» elevation ot selected grid corners noted. All buildings, improvements, V? roads and highways, whether present or proposed, including those A adjacent to the Phase I and Phase TI Land shell be shown in their true relation to the grid pattern. (B) Any suitable excavated material shall be stockpiled and used for backfill, it the soil laboratory report indicates it ~ is suitable. Each t'hase II 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 ana/or removal (including the cost of removal), prior to thirty (30) days before the Planned Phase II Opening Bate, shall be the responsibility of each such Major. (C) Side slopes of embankments shall be 2:1 minimum and precautions shall be taken (for example, sodding and other planting tor stabilization) to preserve the integrity of the slopes in accordance with the Woodward-Clyde Report, hereinafter referred to. (0) The Building pads for the Tract of each Phase II Major, the Phase II Hall, the Phase II Hall Stores, and the balance of the I C C Exhibit D, Part 1-6- I fl 1U/1U/77 K3/JO/V7 R6/24/77 2173 portion of the Developer Tract on the Phase II Land, shall be compacted in accordance with the recommendation in the Woodward-Clyde Soils Investigation Report, dated September 17, 1975, together uith all reports and plans prepared by Woodward-Hyde sup,)lencntary thereto (the "Woodward-Clyde Report"). (E) The Building pad soil for the Tract of each Phase II Major, the Phase II Mall, and Phase II Kail Stores shall have a minimum slab-bearing capacity as detailed in the aforementioned Woodward-Clyde Report. The pad soil shall be capable of sa^f-or'-inc conventional spread poolings and foundations with a bcj.- -L vtlue of 1,000 p.s.f . . (F) The slope in the Parking Arc-as shall be three percent (3?) Buxiir.utB and one percent (IS) rr.iniruun, unless otherwise approved by each Mo j or, with no retaining walis or embr.nkrr.cnts fonr.inc a break in grade, unless otherwise approved by each Major. 7. PERmiNE;:? UTILITIKS PLA::S: (A) The Permaner.t Utilities Plans shall sl.ow the location and ;?ze s:.d I y ;,•:.• { i::tl jd 1.-,^ i/.vvrt cicv aliutii. for sanitary tewtrs anci store sewers) of service for all utilities for whose construction Developer is responsible undc-r the Agreement and this Exhibit. (ii) In addition to Developer providing all necessary coordina- tion witli the various utility companies to assure that adequate sanitary sewer, strrm sewer, electrical, telephone, natural gas (if the utility company will provide service), domestic and fire protection water service will be provided to the Phase II Land, Developer shall construct or cause the construction of facilities for the following listed permanent utility services to a point within five (5) feet of each Phase II Major's Buildinjj wall. (i) Sanitary Sewer - Laterals at locations to receive sanitary sewage from each such Major ' s. Building. Service connections shall be below grade at such locations, of such sizes and at invert elevations as required b'y each Major to fxhlbit D, Part 1 -7- ll/l'j/77 2175 Actual connections to utility services at points of connection will be made by each such Major's contractor and permits for these connections obtained by such Majors. Permit fees for Uuilding connection and any other connection fees will be each such Major's responsibility, unless fees are contribution to cost of public systctr. improvement or extension thereof to Major's building in which event same will be Developer's responsibility. (C) Sanitary sewer lines, storm sewer linos a.id other utility lines, conduits, ducts or systcr.s shall r.ot be construi ' LU or n^iin- tained above the ground level of the portion cf the Developer Tract on the Hiase ii Lane, provided that certain appurtenances normally installed at, or above, grade (such as hydrants, drain inlets, transformers, switching stations, etc.) shall be so installer; and shall conform with the retjuiregents of the County of i>a;i Die-aO, City of Carlsbad, and any other Governmental agencies having jurisdiction over the work. (Li) The stori.'i drainage system fchall be a closed circuit system oiio &i»dii include iattrai connections lor buildiri£ roof and canopy drainage, all pertinent inlet and outlet structures, riprap ana bank protection, with an overall design based on the following: (1) A minimum regional twenty-five (25) year stor:» fre- quency with thirty (30) minute tine of concentration. (ii) Discharge velocities shall be low enough so as to prevent damage downstream. (iii) A minimum of eighteen (18) inches freeboard shall be maintained between Building floor elevation and the water surface resulting from a one hundred (100) year frequency stors;. (iv) Conduit capacity shall be such as to develop no ponding from a twenty-five (25) year frequency storm. (v) A hydraulic analysis prepared by a registered civil engineer which shall be submitted to each Major for review and approval. Exhibit It, Part 1 -9- 2176 (vi) The requirements regarding a closed conduit storm drainage system shall not be deemed to prohibit retention ponds, swales and ditches outside of paved Parkins Areas. (E) All fire protection systems in the portion of the Devel- oper Tract on the Phase II Land shall be desicneu ;'::i! installed in accordance with the standards of the National Fire Protection Association, booklet Kos. 13 and 21), or of Factory Mutual E!i£i:ioer- ing Assocation, or other nationally recop.r.ized standards agreeable to the Parties, in addition to an other applicable Governrcetit'.ai requirements as determined by such Party's t>uild*r,,_ ; . jurat:',-•_• carrier or other qualified inspection firs. All systc:r.c shall r;cct Industrial Risk Insurers Underwriter requirements fnr a "superior risk" classification as well as the requirements of Schir:r,cr Engi- neering Co. Minimum design standards arc as follows: (i) At least 1500 GPM at grade level (bO PSIC <Pounds per Square Inch Gua£e> residual for one-story Euildir.es, 60 PSIG residual for two-story Buildings, 65 PSIG residua! for in ar.y event) - ir.initr.uw ten (10) inch loop - with sectional valve control nr*d fire hydrants at intervals not in excc-ss of 300 feet, shall be provided. (ii) Additional fire hydrants shall be located opposite each exterior store entrance snd within 100 feet or leas of Building Siamese connection or as may be required by the local Fire Marshall and Public ffealtfi aacf Safety Offices. £0 00"eyc/3£eJj' se/ppjy oot/t /"Ire protection j/!£f cfoxestSs simultaneously, but in no case less than ten (10) inches in diameter. (iv) Detector checks, water meters, and encloaure requirements, as needed for the Store of each Phase II Major under the Rul^s and Regulations of the s<*rv-i.n(j utility company. Exhibit D, {';irt 1 -10- 2177 (F) All permanent utilities as required iiereunder shall be available as follows: (i) Sanitary and storm sewers, and water, shall be available for each Phase II Major within five (5) months after it starts construction. (ii) Electricity and telephone shall be available for each Phase II Major within six (6) months after it starts construction. (iii) natural gas - if the utility co.v.pany will provide service, sht:ll fc. cvailable for eaeli Piiiisc II Major re^ucstint, £i!S service, not later than six (M months after it starts construction. (C) Desigii and working drawings for utility sysluis, [including services for commercial connections to the internal ,-ysterr.s of the buildings ii; the Phase IXLandj i;.ay be prepared by tl.e utility companies responsible for such installations under the supervision of t.hr* !-rvjc-r* (, r .7 \-'_ t; &.; * . &_. PAVING A iii; PARKING PLAjiS: (A) The Paving and Parking Plans shall snow and detail aZi curbs, retai};ir,£ walls, berres, striping, signal i zat'.on, traffic and directional sieving and light standards. Areas for heavy duty paving shall be identified. Said plans shall include the fallowing: (B) Parking and Roadway Surfacing: (i) Pavement design ^hali be based on & "Cesign Period" of twenty (20) years and shall consider such variables as the California fic-cring Siitio of the- soil, the anticipated traffic volume and the vehicle mix (i.e., autoir.obilos, single-axle trucks and double-axle trucks). All pavement design shall be subject to review and approval by the Majors arid shall conform to the recommendations of the soils engineer. r 70mn O 70 Cr> z g m O O n O Exhibit D, Part 1 11/15/VV -11- 2178 (ii) The surface of parking areas and access roads shall be paved according to design, with an asphaltic wearing surface over a suitable base material according to '.he recom- mendations of the soils engineer. (iii) In connection 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 thoroughi.-*" .. (b) Li^ht duty pavJng - automobile1 parking aisles and stalls. (C) Perimeter Sidewalks. (i) All sidewalks shall have a minimum slope toward curbs of one-fourth (1/1) inch per foot and shall be scored concrete, minimum four (4) inches thick, or equivalent material of a rough non-skid texture over a suitable granular base. (ii) Conorwte walkways, not less than ten (10) fe«rt 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 constructing all Perimeter Sidewalks, including landscaping and irrigation system located therein on its Tract. 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 drainage shall havo curbs six (6) inches above the finished paving. Parking lot islands and landscape Exhibit D, Part 1 5/10/78 -12- 2179 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 handicap rair.ps shall bo the same in design as the handicap ramps in the Perimeter Sidewalks on the Phase I Land. <D) Retaining Walls and EuiL»ut.iCinej)t!>: (i) Developer shall stockpile on a portion of the Developer Tract on the Phase II Land at location(s. p roved by the Parties, sufficient fill material to completely back- fill the area behind any retaining walls on portion(s) of the Developer Tract on the Phase II Land up to subgrade, which fill material shall be tested by a soil' laboratory and certi- fied as completely suitable for backfill and compaction. (ii) Retaining walls and pavinc., which are necessary for and part of any depressed dock facilities for any Phase- II Major, will be such Major's responsibility. (E) Control Signs, Pavement Striping and Signals: (i) The traffic control signing and pavement striping plans shall show the type (e.g., STOP, MO PARKING, special directional signs, etc.) and location of all signs and lane reflectcrized mate-rial. (ii) Parking lanes or bays (which include two rows of parking spaces and incidental driveway) shall have the follow- ing winiwuifi and preferred widths (measured perpendicular to such driveway) at the angle of the parking designated below: DEGREES 45" 52° 60° 90° HI til HUM i)8'50'54' 63' PREFEliiiED 52' 52' 55' '05' (iii) Perpendicular width between center lines or between midpoints between parallel lines of adjacent stall striping shall be a minimum of nine (9) feet. Stalls shall be separated Exhibit D, I'urt 1 11/15/77 -13- 2180 by using two (2) parallel lines four (4) inches in width and eight (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. Striping shall 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 shall be compatible with striping paint compound. (iv) Handicapped parking shall be shown on the parking plans as required by governmental authorities and approved by the Parties. (v) The location of any future off-site traffic signals shall be determined in coordination with governing agencies, a consulting traific eng-ineer, and the Majors. 9. SITE l.IG!5TIIJG PLA.'IS: The Site Lighting Plans shall include details of the base, pole and lutiinaire assembly and the following requirements shall apply: (i) Overall calculated average maintained foot candles shall DC not 'less than 1.6 foot candles at "end of life" of light sources at thirty inches (30") above grade. (ii) One lur.inaire of each lighting standard in the parking area i Ijacent to the Store of each Phase II l-'.ajor and the Phase II Kail Stores shall be circuited for night lighting for security purposes after the Shopping Center has closed. (iii) Poles and luminaires shall be the sair.e as those in the Phase I Public Parking and shall be similarly placed. Luminaircs shall use metal halide lamps and shall be connected to Developer's site lighting panels and be provided with automatic programming by appropriate astronomical and seven (7) day calendar time si/itches. (iv) Developer shall prepare a drawing of the complete lighting arrangement and equipment, including the wiring of all parking lot lights. (v) Each Phase II Major shall have the right to install, at its own expense, separately controlled flood lights. The location and type of fixture shall be subject to the approval Kxhibit D, I'.-irl 1 -I'l- 2/V78 z O A O -<* x O 2 2181 of the other Parties. The cost of conduit and separately controlled lights shall be paid by such Major. 10. LANDSCAPING AMD IRRIGATION PLAHS: The Landscaping and Irrigation Plans shall show the autc'natic irrigation system to be installed and shall specify overall plant materials and location. 11. PHASE II HALL: (A) Developer shall install a continuous seismic/expansion joint through the Phase II Hall at the connection with the a' or of each Phase II Major and all plans for such expansion joint, including structural i.iforra.'.tion, shall be subject to review "nd approval by such .Majors. The cost of supplying said joint at the connection to each suco Major's Store shall be Developer's respon- sibility. Developer and each Phase II Kajcr shall install its respective portion of the joint each at its own cost. (U) The ventilating and cooling systems for the Phase II Hall shall be constructed sc as to bo capable of complying with performance criteria set forth in Exhibit ?.. P-rt. 3- Tr-^ •»;•-•?';:•• shall be automatically controlled. (C) The- Phase II Mall air-conditioning systetr. shall provide both fire (heat) and sncke dc-tection systems. The operation of the enclosed rr.all air-conditioning shall be controlled so that in the event of fire detection, as determined by appropriate rate of rise sensors, the system shall automatically shut down the unit and in the event of smoke detection, as determined by appropriate smoke detectors, the system shall automatically go into a one hundred percent (100%) outside air mode, so as to pressurize the enclosed mall. The two systems shall be automatically controlled and sequenced in such a manner that the smoke detection system will be first-on-line. (0) Developer, and the Phase II Majors shall each design and maintain their respective ventilating, and air-conditioning systems so as to minimize the interchange of air between each such Major's building and the enclosed mall during normal operations. Exhibit D, Part 1 11/10/77 -15- 2182 (E) The finished surface of the Phase II Mall shall be estab- lished at the same elevation as the Phase I Mall. (F) The surface of that portion of the Phase II Mall devoted to pedestrian traffic shall be installed in a continuous plane without steps. The maximum slope of such surface shall not exceed .7152 or. the. lower level and .773 on tho upp^r level. 12. SCALE OF DRAWINGS: All Common Area Improvement drawings to be submitted to the Majors hereunder shall be preferably at a scaie of one (1) iur1 equals fifty (50) feet, but not smaller than one (1) inch equals one hundred (100) feet. srjjtx •n22 n Exhibit D, Part 1 9/7/77 -16- 2183 Lift O" PLAMfi AMP KL'LICIKltrATIOilS FOR Di:'/EU;!T.P. 1MPP.OVEMEUT ]H THIS PIIAtfr. I ARKA Sheet Ho. Enclosed Mall and Hall Shop"; l.'rawimts 2 3 4 ' • 5 6 7 6 9 10 11 12 13 11 15 13 19 20 21 22 23 ' 33 36/K-1-: .17/R-15 Site C-l C-2 C~? C--I C-5 C-6 C-7 C-0 C-9 CE-2 CxhibiL D, PnrL 2 Sheet'Title Site Master Plan Lower Level Plan Upper Level Plan P.ooJ: Plan Exterior Elevations 6 U'.ii]c!i".ti Sections P-'.iilciir.q Sections f. Elevations Worth Entrance Plan Lower Level Plan - Northeast i'nrtie:1. f.'orthwcr.t Portir:i Southwor-t i)ato 11/25/66 2/23/63 2/28/68 2/23/68 Lower Level PlanLower Level PlanLower 1-evel^Planl.'|?p<?jr Level Plan - ilorthear:'ipncr Level Plan Upper Level Plantipper Level Plan 1/2" Sections - Hsterior s-.'nlln 1/2". Sections - Exterior l-.'nlls Sections - Hall Section - Kay Court Portic:'. Portion Portion Korth-A-ent Portion Kouthv.-o;:t Portion Southern': Portion J/2 1/2 3/2" Sections - Penney Court 1/2" Sections - Plaza Entrances 1/4" interior novations 1/16" Lo'.-.-er Level Hoflrctcrl C'oilinn Plan 1/16" Uwper Level Reflected Ccilino Plan r.necificatior.s U.tcU January 15, ivb« Pite Master Plan Crndiiui and Drainage Plan - ^ratlino and Drainanc Plan - Or-idintj find Drainage Plan - nr.vJiiuj and Drainane Plan - ''inisherf Trndinn, Orainaie, I'rnishc'.i Grading, Drainage-, and Details Finished Grading, Drainage, f. Paving Plan and Details Site Utilities PJ.m Parking Lot Lighting Plan Specifications Dated 5/20/C-3 2/2 8. '58 IV.' «J 1365 1969 1069I960 1969 19G? 1969 2/28/68 2/38/58 2/28/68 1/15/63 1/15/68 1/15/68 2/28/63 1/15/68 S/15/6J! 8/15/68 1/2/6? S.S . "ojcior.r;.i".'••r~.\- . for t ion . 1'ortic.". . Portion f. I v ir.n ric.-. i. Pnving Plan ii/15/«012 /:/«.: 11/15/66 il/lSA'S 1/15/70 8/22/63 R/22/63 C/37/6S 6/27/6C -1- 2184 EXHIBIT D, PART 3 PERFORMANCE 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 81° F. dry bulb and 7J° F. wet bulb, and (ii) an inside ary bulb temperature of 70° F. with an outside dry bulb temperature of 38" F.. The system shall be automatically controlled. Exhibit D, Part 3 -1- 11/15/77 2185 EXHIBIT E HA1HTEKAHCE AND HAH ACE UK HT STANDARDS FUli COi-mO.'i AHEA 1. All hard-surfaced portions of the Common Area: (a) shall be swept at intervals sufficient to maintain the same in a clean condition, before the Stores on the Shopping Center Site shall open for business to the public and (b) shall be washed at intervals sufficient to maintain the same in a clean condition. 2. All sidewalks shall be swept and washer1 at intervals sufficient to maintain the same in a clean condition , D Coir.r.cn Area, (including, but not limited to, sidewalks, malls and/or walkways) shall be used to display, store and/or place any tnerchan- .dibe, equipment and/or devices, except in connection with Shopping Center promotions approved by trie Parties. Area for the use f,f Permittees shall iic emptied daily and shsll be uashecl at intervals sufficient to maintain the s(-me in a clean 4. All landscaping shall be properly Maintained, includjij I * al of dead plants, weeds ana f(>reic,n matter and such replanting / C and replacement as the occasion way require. \ _ 5. All hard-surfaced markings shall be inspected at regular intervals and promptly repainted as the same --hall become unsisntly or indistinct from wear and tear or other cause. 6. All storm sev/er catch basins shall be cleaned on a schedule sufficient to maintain all sewer lines in a free-flowing condition. 7. All paving shall be inspected at regular intervals and maintained in a first-class condition. 8. All stairways shall be: (a) swept and washed at intervals sufficient to maintain the same in a clean condition; (b) inspected O at regular intervals; and (c) promptly repaired upon the occurrence j JjT of any irregularities or worn portions thereof. j •» *3mnO KXH1I1IT 2186 9. All glass, plate class, and/or glass-enclosed devices shall be cleaned at intervals sufficient to maintain the same in a clean condition. 10. All surface utility facilities servicing the Common Area, including, but not by way of limitation, hose bibs, standpipes, sprinklers, and domestic water lines, shall be inspected at regular intervals and promptly repaired or replaced, as the occasion may require, upon the occurrence of any defect or malfunctioning. 11. All Common Area amenities, benches, and iriL'.it 'i^ncl, directional, traffic and other signs, shall be inspected at regular intervals, maintained it; a clean and attractive surface conditiAn and promptly repaired or replaced upon the occurrence of any defects or irregularities thereto. 12. All lamps on lighting standards shall be inspected at regular intervals, and all lamps and ballasts (where applicable) shall be promptly replaced when no linger properly functioning. 13- The improvements on and to the Common Area shall be repaired *»;• .••&;:lj-j!.-d :;it.; r.otcriais, a^pui ai-ua diiu futilities ni quality at least equal to the original q"ality of the materials, apparatus and facilities repaired or replaced. It. The heating, ventilating an<l cooling systems for the Hall shall be: (a) inspected at regular intervals; (b) promptly repaired uprtn the occurrence of any defect or malfunctioning; and (c) maintained so as to comply at all times with the performance criteria attached to the foregoing Agreement as Exhibit D, Part 3- 15. The Common Area shall be illuminated during such hours of darkness as the Store of any Major or the Developer Buildings shall be open for business to the general public, and for a reasonable period thereafter in order to permit safe egress from the Shopping Center Site by Permittees, and shall also be illuminated by such Common Area lighting standards during such hours of darkness as will afford reasonable security for the Stores and Developer Buildings. EXHIBIT E 2/3/78 2187 16. The Developer or other Person responsible for the opera- tion of the Common Area shall use its best efforts to arrange with local police authorities to: (a) patrol the Common Ai'ea at regular intervals, and (b) supervise traffic direction at entrances and exits to the Common Area during such hours and perious as traffic conditions w>uld reasonably require such supervision. 17. The Parties shall use their best efforts to require their respective Permittees to comply with all regulations with respect to the CTKrson Area, including, but not by way o." ..p* tati^n, posted speed limits, directional markings and parking-stall markings. 13. The heating, ventilating ana cooling system f-.-r the Kail shc.ll be operated, ir. accordance with the provisions of the foregoing Agreement, at least during the same hours of the same days that the heating, ventilating and cooling system for any Major's Building having direct access to the Mall shall be operated. The Mall shall be operated.so as to not unduly draw hot or cool air froa any Major's building having direct access to tKe Hall. i>. Ti'iC .'mil 3iidil ufc i i iuinji uultu uui inn oi i hours liiui, any Major's Building having direct access to the Mall is open f«r business arid for reasonable periods before and after such hours in order to permit safe ingress to and eg:ess from the Shopping Center Site by Permittees. 20. Appropriate parking area entrance, exit and directional signs, markers and lights in the Shopping Center as shall be reasonably required shall be maintained in accordance with the practices prevail- ing in the operation of regional shopping centers in the San Diego, California area. 21. The Parties contemplate that the sound -system installed in the Phase I Mall for general promotional and operational purposes of the Shopping Center will be extended to the Phase II Mall. The operation of such system shall be subject to the rules and regulations adopted from tiwc to time by Developer and approved by the Majors. EXHIBIT li 2/3/78 I 2188 22. The Parties do hereby establish the following rules and regulations for the conduct of Persona using the Hall, Perimeter Sidewalks, Parking Areas, and other Common Area provided for the use of Permittees: A. Roadways, walkways, and the Hall shall be used in an orderly manner, in accordance with the directional or other signs or guides. Roadways shall not be used for parking or stopping , except for the immediate loading or unloading of passengers. V,'alkways and the Hall shall not bvr osed for other than pedestrian travel. B No Person shall use the Parking Area except for the parkins of motor vehicles. All motor vehicles shall be parked in an orderly manner within the painted lines defining the individual parking plr^es. C. Mo Person shall use any utility area, Truck Facilities, or other a»-ea reserved for use in connection with the conduct pcnsissivn to use siifh m'ea Js niven. D. No employee oC any business in the Shipping Center shall use any area for motor vehicle parking, except the area or areas specifically designated for employee parking for the particular period of time such use is to be ir.ade. Ho employer shall designate any area for employee parking, except such area or areas as are designated in writing by the °arties. E. Mo Person, without the written consent of the Parties, shall in or on any part of the Common Area: (i) Vend, peddle or solicit orders for sale or distri- bution of any merchandise, device, service, period- ical, book, pamphlet or other matter whatsoever. (ii) Parade, rally, patrol, picket, demonstrate or engage in any conduct that might tend to interfere with or impede the use of any oC the Common Area by any EXIUOIT E 2/3/78 2189 Permittee, create a disturbance, attract attention or harass, annoy, disparage or be detrimental to the interest of any of the retail escablisluucnts within the Shopping Center. (iii) Throw, discard or deposit any paper, glass or extraneous matter of any kind, except in designated receptacles, or create litter or hazards of any kind, (iv) Except as provided in paragraph 21 of this Exhibit E, use any sound-making device of any kino - e-eate or produce in any manner noise or sound that is annoying, unpleasant, or distasteful to Occupants or Permittees, (v) Deface, damage or demolish any sign, light standard or fixture, landscaping material or other improvement within the Shopping Center, or the property of customers, business invitees or employees situated 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 limited 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 coining 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 listed above. In so acting, such Party is not the agent of other Parties or Occupants of the Shopping Center, unless expressly authorized or directed to do so by such Party of Occupant in writing. C. Nothing in the above rules and regulations shall add to the City's obligations in its governmental capacity with respect to the enforcement of said rules and regulations. EXHIBIT E 7/13/V8 2190 EXHIBIT F MAINTENANCE AND MANAGEMENT STANDARDS FOR BUILDINGS IN THE SHOPPING CENTER 1. The Hall Stores shall have their display windows, and exterior signs (and the Mall shall be open 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 thereof including vesti- bules, entrances and returns, doors, fixtures, W-I..-K s and plate glass, shall be maintained in a safe, neat and clean condition. 3. All trash, refuse and waste materials shall be regu- larly removed from the premises and until removal shall be stored: (c) in adequate containers therefor, which containers sh.ill 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 burning of trash, refuse a«d water msterjals sha]) ooftir if such wnuld be violative of any laws, ordinances, rules or regulations. 1. The Buildings or any portion or portions thereof shall not be used for lodging purposes. 5. Except for the sound system referred to in paragraph 21 of Exhibit E, no advertising medium, sound system or other device shall be utilized which can be heard or experienced outside of the Buildings, including, without limiting the generality of the fore- going, flashing lights, searchlights, loudspeakers, phonographs, radios and/or televisions. 6. Mo use shall be made of the Buildings or any portion or portions thereof which would: (a) violate any law, ordinance or regulation, (b) constitute a nuisance, (c) constitute an extra- hazardous use, or (d) violate, suspend or void any policy or policies of insurance on any Store. EXHIBIT F 2/21/78 fi 2191 Exhibit G, Part 1 May Adjacent Parking A PARCEL OF LAND SITUATE IN THE CITY OF CARI.SBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, BEING A PORTION OF SECTION 31, TOWNSHIP 11 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN ACCORDING TO OFFICIAL PLAT THEREOF, BEING MORE PARTICUL/RLY DESCRIBED AS FOLLOWS: BEGINNING AT THE 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 NORTH 89°42'19" WEST, 404.27 FEET; THENCE SOUTH 00°00'CO" LAS'1" II 968.96 FEET, SAID POINT BEING IN THE NORTHERLY RIGHT OF WA\ f LINE OF MARRON RD. (73.50 FEET WIDE); THENCE SOUTH 76e30'OO" EAST, 347.95 FEET; THENCE SOUTH 90°00'OO" FAST, 577.18 FEET; THENCE NORTH 70°00'00" EAST, 364.63 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 2O°OO'OO" WEST, 85.07 FEET; THENCE NORTH 7OC00'00" BAST, 20.00 FEET; THENCE NORTH 20°00'00" WEST, kSO.OO FEET; THENCE NORTH 7O°OO'00" EAST, 180.00 FEET; THENCE NORTH 20°00'00" WEST, 190.00 FEET; THENCE NORTH 7O°OO'00" EAST, 45.00 FEET; THENCE NORTH 2OCOO'CO" WEST, 1O3.OO FEET; THENCE NORTH G1°49'09" EAST, 3OO.69 FEET; THENCE SOUTH 40"12'46" EAST, 72.79 FEET; THENCE SOUTH 03°45'47" EAST, 85.00 FEET; THENCE NORTH 86°14'13" EAST, 180.00 FEET TO A POINT IN THE WESTERLY RIGHT OF WAY LINE OF EL CAMINO REAL f 126. 60 FEET WIDE); THENCE SOUTH (v?045'47" EAST ALONG SAID RIGHT OF /j WAY LINE, 361.32 FEET TO Tl IE BEGINNING OF A TANGENT CURVE !J CONCAVE EASTERLY HAVING A RADIUS OF 2,563.00 FEET; THENCE V SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 03°58147" A DISTANCE OF 178.03 FEET TO THE BEGINNING OF A REVERSE CURVE CONCAVE NORTHWESTERLY HAVING A RADIUS OF 50.OO FEET, SAID POINT BEING IN THE NORTHERLY RIGHT OF WAY LINE OF MARRON ROAD (73.50 FEET WIDE); THENCE SOUTHWESTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 77 44'34", A DISTANCE OF 67.84 FEET; THENCE SOUTH 70e00100" WEST, 520.45 FEET TO THE TRUE POINT OF BEGINNING. ' a J 7rr r ] J" 1* I r I Bxhibit G, I'art 1 7/21/78 \ \ 2192 Exhibit G, Part 2 Penney's Adjacent Parking A PARCEL OF LAND SITUATE IN THE CITY OF CARLSBAD, COUNTY OF. SAN DIEGO, STATE OF CALIFORNIA, BEING f PORTION OF SECTION 31, TOWNSHIP 11 SOUTH, RANGE 4 WF.ST, SAN BERNARDINO MERIDIAN ACCORDING TO OFFICIAL PLAT THEREOF, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF THE NORTH HALI- Oi- I HE 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" WEST, 130.00 FEET; THENCE NORTH 83"62'33" EAST, 233.98 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 83€1"-2'3'"1 EAST, 32.G5 FEET; THENCE NORTH 64°43'2O" EAST, 126.43 FEL "HENCE NORTH 54°22'20" EAST, 71.71 FEET; THENCE NORTH 74°16'29r EAST, 610.77 FEET; THENCE NORTH 09059'17M WES1 , 31.89 FEET; THENCE NORTH 74°30'001.1 EAST, 73.88 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF 95.OO FEET, SAID POINT BiriNl* THE WESTERLY RIGHT OF WAY LINE OK HAYMAR DRIVE; THENCE SOUTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 70030'OO" A DISTANCE OF 116.89 FEET TO THE BEGINNING OF A CURVE CONCAVE EASTERLY HAVING A RADIUS 5O.OO FEET; THENCE SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 50°00'00" A DISTANCE OF SO.62 FEET; THENCE SOUTH 14°00'00" EAST, 80.00 FEET; THENCE NORTH 73°59'44" EAST, 187.29 FEET; THENCE SOUTH 02°30'00" EAST, 70.00 FEET; THENCE NORTH 87°30'CO" EAST, 2R.OO FEET; THENCE SOUTH 02°30'0011 EAST, 00.CG F"CCT- THJZf'.'CE SOUTH 51010'00" WF'ST 210.69 FEET' THEK'CC SOUTH 70°OO'00" WEST, 260.OO FEET; THENCE NORTH 87°30'00" WEST, 140.OO FEET; THENCE NORTH 80°57'51" WEST, 146.99 FEET; THENCE SOUTH OO'OO'OO" WEST, 50.00 FEET; THENCE NORTH 20°00'OO" WEST, 21.72 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 1O.OO FEET; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 70°00'00" A DISTANCE OF 12.22 FEET; THENCE NORTH 90°00'00" WEST, 185.24 FEET; THENCE NORTH 6O°00'00" WEST, 90.00 FEET; THENCE NORTH 90°00'OO" WEST, 140.00 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 10.0O FEET; THENCE SOUTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 90°00'00" A DISTANCE OF 15.71 FEET; THENCE SOUTH OO'OO'OO" 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 9O°OO'OO" WEST, S.3B FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 10.00 FEET; THENCE SOUTHWESTERLY ALONG SAID CURVE Tl IROUGII A CENTRAL ANGLE OF 90°00'00" A DISTANCE OF 15.71 FEET; THENCE NORTH OO'OO'OO" EAST, 211.68 FEET TO THE TRUE POINT OF BEGINNING. Exhibit 6, Part 2 7/21/78 2193 Exhibit G, Part 3 Sears Adjacent Parking A PARCEL OF LAND SITUATE IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, BEING A PORTION OF SECTION 31, TOWNSHIP 11 SOUTH, RANGE 4 WEST, SAN BERNARDINO, SAN BERNARDINO MERIDIAN ACCORDING TO OFFICIAL PLAT THEREOF, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF THE NORTH HALF OF THE NORTHEAST QUARTER OF SECTION 31, TOWNSHIP 11 SOUTH, RANG'-- 4 WEST; THENCE ALONG THE SOUTH LINE OF SAID NORTH HALF, NORTH 89°42'19" WEST, 404.27 FEET; THENCE SO' 'Tl-l OO°00'CO" EAST, 241.44 FEET; THENCE NORTH 90°00'00" WEST, 142.o: .J^T; THENCE SOUTH 5G°30'46" WEST, 93.96 FEET TO THE TRUr^ POIN I OF BEGINNING. CONTINUE SOUTH !56°30'40" WEST, 20.OO FEET; THENCE NORTH <JO°00'00" WEST, 119.3G FEliT; Tl ICNCE NORTH 30°00'CO" WEST, 69.29 FEET; THENCE NORTH 9O"00'00" WEST, 9O.OO FEET; THENCE SOUTH 00°00'00" WE3T, 112.00 FEET; THENCE NORTH 9O°OO'OO" WEST, 16G.OO FCI::T; THENCE SOUTH oo0oo'oo" WEST, CJ.OOFEET; THCNCE SOUTH 90°00'00" EAST, 156.00 FEET; THENCE SOUTH 00°00'00" WEST, 182.00 FEET; THENCE SOUTH 90°OO'00" EAST, 1P4.00 FEF.T; THENCE SOUTH 00°OO'00" WEST, 210.00 FEET; THENCE NORTH 80°00'00" WEST, 45.00 I-EET; THENCE SOUTH 07°03'15" WEST RADIALLY 36.19 FEET TO A POINT IN A CURVE CONCAVE TO THE SOUTH HAVING A RADIUS OF 842.OO FEET, SAID POINT BEING IN THE NORTHERLY RIGHT OF WAY LINE OF MARRON RD. (82.00 FEET WIDE); THENCE WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 31"5G'43", A DISTANCE OF 469.40 FFTIT; THKNCE NORTH P4°r..T3R" WEST RADIAl I..Y. 45.00 FEET; THENCE NORTH OOeOO'OO" EAST, 111 .12 FEET; THENCE NORTH 90°CO'00" WF.ST, 27.5O FEET; THENCE NORTH OO'OO'OO" EAST, 190.OO FEET; THENCE NORTH 9O°OO'OO" WEST, 63.92 FEET; THENCE NOT?.TH OO'OO'OO" EAST, 383.OO FEET; THENCE SOUTH 90°OO'OD" EAST, 763.60 FEET; THENCE SOUTH 00°OO'00" WEST 77.97 FEET TO THE TRUE POINT OF BEGINNING. Exhibit C, Part 37/21/78 2194 Exhibit G, Part 4 Federated Adjacent Parking A PARCEL OF LAND SITUATE IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, BEING A PORTION OF SECTION 31, TOWNSHIP 11 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN ACCORDING TO OFFICIAL PLAT THEREOF, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF THE NORTH HALF OP THE NORTHEAST QUARTER OF SECTION 31, TOWNSHIP 11 SOUTH, RANGE 4 WEST: THENCE ALONG THt SOUTH LINE OF SAID NORTH HALF, NORTH 89°42'19" WEST, 404.27 FEET; THENCE (t SOUTH OO'OO'OO" EAST, 660.86 FEET TO THE TRUE POINT OF HF.GTUNING; THEKCE £», SOUTH 79'26'03" EAST. 91.00 FEET; THENCE SOUTH OO'OO'OO" WEST, 58.81 FEET; V^ THENCE SOUTH 90*00'00" EAST, 10.00 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 50.00 FEET; THEKCE SOUTHEASTERLY O ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 90*00*00", A DISTANCE OF 78.54 (/) FEET; THENCE SOUTH OO'OO'OO" WEST, 88.50 FEET; THESCE SOUTH 90P00'00" EAST, 249.95 FEET; THENCE NORTH Ou'00'00" EAST, 105.19 FEET; THENCE SOUTH 90'00'00" i* FAST, 280.90 FEET; TUKXCE SOUTH 20000'00" EAST, 60.98 FEET; THESCE NORTH 70* .OO'OO" EAST, 100.00 FEET; THET.'CE SOUTH 20*00'00" EAST, 175.00 FEET; THESCE SOUTH 70'00'00" WEST.'35.UP FEET; THENCE SOUTH 20"00'00" EAST, 86.20 FEET TO £ A POINT IN THE NORTHj ..'^^gfflfaiALINE OF MARRON RD. (73.50 FEHT WIDE); THENCE NORTH 90*00'00" WEST, 513.25 FEET; THESCE NORTH ?6'30'00" WEST, 347.95 Q FEET; THENCE NORTH OO'OO'OO" EAST, 6.17 FEET; THENCE NORTH 76"30'00" WEST, 331.90 FEET TO THE BEGINNING OF A TAKCEST CURVE CONCAVE SOUTHERLY HAVING A RADIUS 0? 842.00 FEET; THEKCE UESTKHLY ALONG SAID CURVt THKOUGH A CKKTRAL ff) ANGLE OF 06*26'45". A DISTANCE OK 94.73 FEET; THENCE NORTH 07°03'15" EAST, TL RADIALLY, 36.19 FEET; THEKCE SOUTH 80*CO'00" EAST, 45.00 FKET; THESCE N011TH ' \J OO'OO'OO" EAST, 210.00 FEET; THEKCE SOUTH 90°00'00" EAST, 193.00^FEETtTHKXCE TO THE TRUE. _POICT PF/BEGIJKjlKC. ' Q Cz Kxhi1.lt H, 8/11/78 Part 4 X> oo mno 70o 2195 Exhibit C, Fare 5 Carter Adjacent Parking A PARCEL OF LAND SITUATE IN THE CITY OF CARLSBAD AND OCEANSIDE, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, BEING A PORTION OK SECTION 31, TOWNSHIP 11 SOUTH, .RANGE 4 WEST, SAN BERNARDINO MKRIDL'.S ACCORDING TO OFFICIAL' PLAT THEREOF, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE 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 TKl'2 POINT OF BEGINNING; THENCE LEAVING SAID SOUTH LINE OF SAID NORTH HALF, SOITVK. K 88 FEET; THENCE NORTH 83'52'33" EAST, 27.13 FEET; THENCE SOUTH OO'OD'OO" hLo" S21.23 FEET; 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"JO'46" WEST, 21.44 FEET; THENCE NORTH OO'OO'OO" EAST, 100.00 FEET; THENCE NORTH 90'00'00" WEST, 220.00 FEET; THENCE NORTH OO'OO'OO", EAST, 110.00 FEET; THENCE NORTH 90'00'00" WEST, 30.00 TEET; THENCE NORTH OO'OO'OO" EAST, 45.38 FEET TO A POINT ON T"E SOUTH LINE OF SAID NORTHEAST QUARTER; THENCE ALONG THE SOUTH LINE NORTH 89'42'19" WEST, 662.16 FEET; THENCE NORTH 46*36'53" EAST, 180.54 FEET TO THE BEGINNING OF A TAKCEKT CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 315.00 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 41*28'19" A DISTANCE OF 228.00 FEET; THENCE NORTH 88'05'12" EAST, 137.15 FEET TO THE BEGINNING OF A TASGENT CUF.vfE CONCAVE SOUTHERLY HAVING A RADIUS OF 315.00 FEET; THENCE EASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 44'26'59", A DISTANCE OK 244.38 FEET; THENCE SOUTH 47'27'49" EAST, 201.36 FEET TO A POINT ON THE SOUTH LINE OF SAID NORTHEAST QUARTER; THENCE NORTH 42*32'11" EAST, 160.00 FEET; THENCE NORTH 47'27'49" WEST, 201.36 FEET TO THE BEGINNING OF TAKCEKT CURVE COKCAVE SOUTHWESTERLY HAVING A PADIVS W 475.(10 FF.CT; THENCF. NORTHWESTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 22*28'48", A DISTANCE OF 186.37 FEET; THENCE NORTH OO'OO'OO" EAST, 84.73 FEET; THENCE NORTH 89'41'28" EAST. 500.04 FEET; THENCE SOUTH 00'24'11" EAST, 439.22 FEET TO A POINT IN THE HEREINBEFORE ^NTIOMED SOUTH LINE OF SAID NORTH HALF; THENCE SOUTH 89'42'19" EAST, 160.00 FEET TO THE TRUE POINT OF BEGINNING. Exhibit C, Pott 5 8/11/78 2136 EXHIBIT H SIGN STANDARDS FOR DEVELOPER BUILDINGS 1. These standards apply only to exterior signs which 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 (which such designation of the store type shal~ l» by general descriptive terms and shall not include any specification of the merchandise offered for sale therein or the services rendered therein) only 2nd 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 corporate shields which shall be permitted). 3. The letters on all signs shall be either in script and/or block; the size of the letters shall be in proportion to the size of the sign, as determined in accordance with the provisions of subparasraphs D &«'j G of paraKrap!: 5 of this Exhibit H: and if tho letters are back-illuminated, the lamps therefor shall be contained wholly within the depth structure of the letters. , *.. One small-scale standard si&n designated by Developer j installed 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 subparagraph (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 lease lines of the Occupant's premises, 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 2197 (C) Nn sign or any part or parts thereof shall project beyond the store front more than eight (8) inches, except for said small- scale standard sign, provided in paragraph <4 hereof. (D) The maximum length of each sign shall be determined by the following formula: Foot frontage* of the store multiplied by 0.66, provided, however, in no event shall any sign exceed a length of thirty (30) feet. (E) Ko sign within the Hall shall exceed -• ir> iir.jm brightness of one hundred (100) foot larnberts and no sign located outside of the Kail iihall exceed a maximum brightness of two hundred (2CO) foot 1amberts. (F) All signs shall be fabricated and installed in eoi,-.pi iance with all applicable building and electrical codes and bear a U. L. label. (G) Signs shall not exceed thirty (30) inches in height, except for the signs referred to in the following subparagraph (H), which such signs snail not exceed forth-eight (18) inches in height. (H) Subject to Section 23.1, signs may be located on the exterior portions of the Developer Buildings exposed to the Parking Area, at such locations as nay te designated by Developer; provided, however, the size, design and color of such exterior signs shall be subject to the approval of each Major. These signs shall be liiniteu to store name and/or store type only, shall be constructed of suitable matsrials for weather exposure, and shall conform t« all applicable limitations set forth above. No portion of such signs siidll be mounted above the fascia or less than seven (7) feet above the Perimeter Sidewalks. •Foot frontage of the strtre is defined as the length of facade measured between lease lines separating the store from common areas or other stores, as the case may be. EXHIBIT I! 2/3/YB 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 Occupant shall erect more than one sign within the Mai] or more than one sign on the exterior of the Developer Buildings. 5. The fabrication, installation and operation of all signs shall be subject to the following restrictions: (A) No exposed neon, fluorescent and/or incandesced tuMng or lamps, raceways, ballast boxes and/or electrical transform- ,-s, crossovers, conduit and/or sign cabinets shall bp permitted. (B) Ho flashing, moving, flickering and/or blinking illumina- tion, animation, moving lights and/or floodlight illumination shall be permitted. (C) The name and/or stamp of the sign contractor or sign company or both shall not be exposed to view, unless required by applicable laws. 6. The following type r.igns arc prohibited: (A) Paper signs and/or stickers utilized as signs. (B) Signs of a temporary character or purpose irrespective of the composition of the sign or material used therefor. (C) Printed signs, except, however, one non-illuminated, si.nallscale "signature sign" which is lettered on the glass portion of a store front of an Occupant and/or affixed to such store front surface, provided such sign does not project more than two (2) inches from the store front surface. (D) Moving or flashing signs. EXHIBIT H 6/12/78 2199 EXI1IDIT I DETAIL FOR PEKSEY IDENTIFICATION SIGN IN PUBLIC PAUKIKG AREA 1/13/69 r>O oy» </» Z O m Oo n Oc Z "»• Z ?D m O O 2200 i| mp ^ I It ji;; ,H'te« *i «£•• •«• •• '• * ijjiiMli't!lli " &L; v \ "' J *'l* • Men H. |«|{»f>:;» I 11 11 1111 i i f fll ^/ oo 5 oO nO 70 O «/» ^ </» > 2202 Exhibit K Legal Description of Slope Area AH that reel property situated within the City of Carlsbad, County of San Die^o, state of California, being those portions of Section 32, Township 11 south, Range 'I west, San Bernardino noridisn according to United States Government 'Survey rpprovod April 5, 1891, together with those portions of Lots 11, 12, 13, 11, 15 and 16 of Hosp. Eucalyptus Forest Company's Tree*. No. 1, according to map thereof Mo. 1136 filed in said County fiei „*•. .r1 s Office June 8, 1908, described as a whole as follows: Beginning at a 3 inch by 1 inch stake at the south- east corner of the no; \,ti half of Section 31, Township 11 south, Ra"ge 'I west, San Uernardino meridian, according to nap of Record of Survey No. 3131 filed July 30, 1953 in said County Recorder's Office (the bearing of the east line of said Section 31 being north Q'ZH'Hl", west for purposes of this description); thence south 75°43'35'', west 91.76 f,>ot; thence south 50° 07 'OS", west 68.19 feet; thence north 83' 44 '25", west 273. 87 feet'; thence north 77" 34 '50", west 213.61 feet; thence north 5i°05'25", west 58.70 feet; thence north 36°50'25", west 178.53 feet; thence north 50" 38 '16", w.-st iS^.^9 feet t.-> an intersection with that c^'taln course hereinbefore described as having a bearing of south 76°30'00", east and a distance of 1265.00 feet (said intersection being at a point distant north 76°30'00", west 1015. 44 feet from the easterly terminus of said course); thence continuing south 76C30'00", east 1015.411 feet; thence east 740.00 feet; thence no-th 77" 15 '51", cast 777.92 feet to the westerly line of the land described in easement to the City of Carlsbad, for Public Highway Purposes recorded March 11, 1966 as Document Ho. 42245, Official Records of said County; thence southerly along said westerly line a distance of 41.39 feet; thence south 17*42'40", west 31.46 feet; thence south 5T 19 '20", west 75.95 feet; thence south 77C06'50", w/est 113.14 feet; thence south 84*45'40", west 136r.OO Teet; thence north 63"16'50", west 127.88 feet; thence south 76e53'10", west 123.61 feet; thence south 4ii°38'10", west 297.75 feet: thence north 44°56'50", west 215.00 feet; thence south 89 58' 10", west 146. 52 feet; thence south 72*42'55", west 163.99 feet; thence south 54"55'05H, west 103.22 feet; thence south 77*11'50", west 114.56 feet to the point of beginning. EXIIIHIT K 2/3/Y8 -1- •'^T"£.>«-vX-.V:".. •"•'V ••,. n > n O Cn O O n Oc O O5: nO VjT c- 11 - • "V '/'• f t- - . . » '•' "II• !! .'•• •1 * I • I 220' . ' .. '" *'• • .. -..•'-• ' ; -V,: :,-:'.- .;->/' 1'»ji. ' - r.;v: •':,"-H.-| ItlP". r^ fe M- - vS, t . •.'*•" /////._ n O70 Oc/i O m O O n O O O2: nO90 O This is a true certified copy of the record '" purple ink GREGORY J. SMITH Assessor/Recorder/Clerk San Diego County, California AUG 1 7 2006