Ballet TX-ES050127MUTUAL CROSS ACCESS EASEMENTS
AND RESTRICTIONS AGREEMENT
STATE OF TEXAS )(
)(
COUNTY OF DALLAS )(
THIS MUTUAL CROSS ACCESS EASEMENTS~ AND RESTRICTIONS AGREEMENT
(the "Agreement") is entered into as of the,~?~day of ,/~qt"i, , 2005, by and among
ALBERTSON'S, INC., a Delaware corporation ("Albertson's") and THOMAS NICHOLSON
and LISA NICHOLSON, husband and wife (collectively, "Nieholson"). Albertson's and
Nicholson are sometime refencd to individually as "P~.rty" and collectively as "P~.rfles."
RECITALS:
A
Albertson's is thc owner of that certain real property more particularly described in
Exhibit A. attached hereto and incorporated herein by this reference ("Albertson's
Property').
Nicholsun is the owner of that certain real property more particularly described in Exhibit
B. attached hereto and incorporated herein by this reference ("Nicholson Property").
The Albertson's Prope~y and the Nicholson Property are sometime referred to
individually as "Property" and collectively as "Properties."
The P',m'ies desire to create mutual ingress and egress easaments across their respective
Properties and create certain repletions on use for the banefit of all owners and their
successors and assigns, their tenants, employees, agents, contractors, licensees,
customers, guests, and invitees and the employees, agents, contractors, licensees,
customers, guests, and invitees of such subtenants.
NOW, THIZ~REFORE, in consideration of the premise~ recited above, together with the
mutual agreements set forth below, the Parties do hereby agree as follows:
!. Access Easements. Each Party hereby GRANTS and CONVEYS to the other Party
hereto, their tenants, employees, agents, contractors, licensees, customers, guests, and invitees,
and the employees, agents, contractors, licensees customers, guests, and invitecs of such
subtenants, for the benefit of their respective Property, a non-exclusive access easement and right
of way for ingress and egress of vehicular and pedestrian traffic along, through and over the
driveways and curb cuts ("Driveways") that presently exist or may subsequently exist on their
respective Property, except for those areas devoted to service facilities or drive-up or drive
through customer service facilific (the "Easements"). The Parties accept the Easements "As Is"
"Where Is" sobjcct to all defects, latent and patent and subject to all easements, covenants,
restrictions, liens and encumbrances of record or otherwise.
2. Relocation of Easements. Each Party acknowledges and agrees that the Driveways
may be reasonably relocated by the respective owner of the Property encumbered by the
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Easemants, and that to thc extent such Driveways are relocated, the Parties, their tenants,
employees, agents, contractors, licensees, customers, guests, and inviteas, and the ,mt,loyeea,
agents, contractors, licensees customers, guests, and invitees of such subtenants shall have a
continuing right of ingress and egress as provided in Paragraph 1, above.
3. Limitations on Development. Each Party agrees that no development shall occur or be
permitted on its respective Property that would permanently deny reasonable access over and
across its respective Property.
4. Construction and Maintenance. Each party acknowledges that it has sole responsibility
for the planning, engineering, constroetion, maintenance, lighting, insuring and/or landscaping of
the Easements that cross its respective Pwperty, provided that Nicholson shall be r~rponsible, at
is sole costs, for the initial construction of any curb cuts and/or driveways required to connect the
Albertson's Property to the Nicholson Property subject to the following requirements:
a. Nicholson shall obtain the prior written approval of Albertson's, which shall not
be unreasonably withheld or delayed, of all plans associated with the initial construction
and the schedules for constxuction. Nicholson shall have all work performed by a
contractor approved in writing by A]be~son's.
b. Nicholson shall obtain all necessary governmental permits and approval for the
initial construction at no cost to Albertson's.
c. All costs of the initial construction, including any permit fees, assessments or
penalties associated therewith, shall be borne solely by Nicholson with no expense
whatsoever to Albertson's.
d. Nicholson shall indemnify, defend and hold harmless Albertson's, its successors
and assigns, fi-om and against any and all claims, liability, obligation, loss and expenses,
including attorney fees, arising from the activities of Nicholson pursuant to this
Agreement. Nicholson shall not permit or allow any mechanics' or materialmans' lien of
any kind related to the expansion work or the access granted hereunder to be placed upon
or enforced against the Albertson's Property.
e. Nieholson agrees that they shall, for themselves, and shall cause their consultants,
contractors and any sub-contractors performing any work on the Albertson's Property to
obtain and maintain (i) general comprehensive liability insurance, (ii) automobile liability
insurance, and (iii) workers compensation insurance, all in an mount of not less than
Five Million Dollars ($5,000,000.00). The insurance policy(ies) required under
subsection (i) and (ii) shall name Albertson's, as an additional insured. Nicholson shall
provide Albertson's with certificates of insurance evidencing such coverage before
commencing the initial construction work or any portion thereof. The coverage shall be
maintained, at minimum, until the work has been completed.
f. Nicholson shall not unreasonably interfere or obstruct Albertson's, or Albcatson's
agents or contractors, unreasonably interfere with any business of Albertson's on thc
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Albeflson's Property.
g. Nicholson agrees to notify Albertson's Store Director at store on the Albertson's
Property at least fifteen (15) days in advance of work to be performed and shall
coordinate all cons~xuction activity with the Store Director.
5. Maintenance Costs. Nicholson shall contribute to the common area maintenance of the
Albertson's Property Driveways the sum of Five Hundred Dollars ($500.00) per year as its share
of the cost to maintain thc Albertson's Property Driveways. Said sum shall be paid on or before
the first day of each calendar year, with the first payment, which payment shall be prorated based
upon a 365 day year, due upon execution of this Agreement.
6. Use Restrictions. Nicholson agrees that they shall not use the Nicholson Property or
allow the Nicholson Property to be used for any of the following:
a. As a supermarket, which shall be defined as any store or dcpash~,ent containing
more than 3,000 square feet of floor area, including aisle space and storage, primarily
devoted to the retail sale of food for off-premises consumption; as a bakery or
delicatessen; as a cigarette or smoke shop or any other store the primary business of
which is to sell tobacco products and/or accessories; for the sale of fresh or frozen meat,
fish, poullry or produce for off-prernises consumption; for thc sale of alcoholic beverages
for off-premises consumption; for the sale of greeting cards and/or party goods; for photo
printing or processing, including, without limitation, one hour or less processing, and
printing of digital photographs; for the sale of health and beauty aids; for the sale of
vitamins and health supplements; as a dollar store (which shall be defined as any store
primarily devoted to the deep-discount retail sale of general merchandise and/or food for
off-p,:mises consumption including, without limitation, single price point retailers such
as "All-a-Dollar," "99 Cents Only," "Family Dollar," "Greenbacks," "Dollar General"
and "Big Lots"); as a printing and/or mailing scrviccs center such as "Kinko's, "Mail
boxes Etc." or similar operation the primary business of which is to provide printing,
packaging and/or mailing services; or for the sale or offer for sale of any pharmaceutical
products requiring thc services of a rcgistcrcd pharmacist; as a Convenience Store, as
hereinafter defined, or for the sale of petroleum. A "Convenience Store" is herein
defined as a self-contained area or building primarily devoted to thc sale of any or all of
thc following items: food, beverages, grocery itums, petroleum, tobacco and/or
carwashes, as they may be operated from limo to time. By way of example only, stores
such as "7-Eleven" and "Circle K" arc considered to be "Convenience Stores" under the
foregoing definition.
b. As a bar, tavern, cocktail lounge, adult book store or adult video store, gym,
health spa, billiard or pool hall, game parlor or video arcade (which shall be defined as
any store containing more than four [4] electronic games), massage parlor, theater,
bowling alley, skating rink, warehouse, or car wash or for the renting, leasing or sale of
or displaying for the purpose of renting, leasing or sale of any motor vehicle or trailcr, or
for industrial purposes.
Page 3 of 8
7. Indenmity. To the extent any demand, claim, loss, cost or expense {including, but not
limited to reasonablc attorneys' tees) is threatened or asserted on behalf of, or awarded to, any
pea~on or entity against a Patty hereto arising out of an accident, condition, omission or event
that occurs on the Property not owned by such Party, the owner of the Pmparty upon which the
accident, condition, mission or event is claimed to have occtmn~d, or is ultimately determined to
have occurred, hereby agrees to INDEMNIFY AND HOLD HARMLESS all other Party
hem-to, unless the indenmificd party is respons~le for the accident, condition, omission or event
due to its negligence or intentional conduct or due to the negligence or intentional conduct of its
tenants, employees, agents, contractors, licensees, customers, guests, and invitees, and the
employees, agents, contraetox~, licensees customers, guests, and invitees of such subtenants.
8. ~ent. The purpose of this Agreement is solely to provide the
Easements, indemnity, and restrictions described above. This Agreement is not intended to, nor
does it, establish any other covenants or restrictions against the Properties. To the extent that any
declarations of restrictions and/or grants of easements presently exist between some or all of the
Parties and their Property hereto, this Agreement neither amends nor superecdcs any such pre-
cxisting agreements.
9. ~ments. The term of this Agreement shall be for twenty (20) years from
the date hereof. This Agreement may only be amended or terminated upon the unanimous
written consent of the Parties, which consent shall be recorded in the real property records of
Dallas County, Texas, together with the amendment or termination of this Agreement.
10. Waiver. The failure of a Party to insist upon slrict performance of any of thc Restrictions
contained herein shall not be deemed a waiver of any fights or remedies that said person may
have, and shall not be deemed a waiver of any subsequent breach or default in the performance
of any of the Restrictions contained herein by the same or any other person.
11. Attorney's Fees. In the event either Party initiates or defcnds any legal action or
proceeding in any way connected with this Agreement, the prevailing party in any such action or
proceeding (in addition to any other relief which may be granted, whether legal or equitable),
shall be entitled to recover from the losing party in any such action or proceeding its reasonable
costs and attorney's fees (including, without limitation, its reasonable costs and attorney's fees on
any appeal). All such costs and attorney's fees shall be deemed to have accrued on
eommcucement of any legal action or proceeding and shall be enforceable whether or not such
legal action or proce~xling is prosecuted to judgment.
12. No Third Party Beneficiary Ri~_hts/Public Dedication. This Agreement is not intended to
create, nor shall it be in any way interpreted or construed to create, any third party beneficiary
fights in any person not a party hereto. Nothing herein contained shall be deemed to be a gift or
dedication of any portion of the Easements to the general public or for the general public or for
any public purpose whatsoever, it being the intention of thc Patties that this Agreement shall be
strictly limited to and tbr the proposes herein expressed.
13. Not a Partnership. The provisions of this Agreement are not intended to create, nor shall
they be in any way interpreted or conslxued to create, a joint venture, partnership, or any other
Page 4 of 8
similar relationship between the Parties.
14. Notices. All notices given pursuant to this Agreement shall be in writing and shall be
given by personal service, by United States mail or by United States express mail or other
established express delivery service (such as Federal Express), postage or delivery charge
prepaid, relum receipt requested, addressed to the appropriate Party at the address set forth
below:
Albertson's:
Albi~tson's, Inc.
250 Parkcenter Boulevard
P.O. Box 20
Boise, ID 83726
Attention: Legal Department (#74200R)
Nicholson:
Tom & Lisa Nicholson
145 Fitnes~ Court
Coppell, Texas 75019
The pe~on and address to which notices are to bc given may bc changed at any time by
any party upon written notice to the other party. All notices given pursuant to this Agreement
shall be deemed given upon receipt.
15. Defanlt~Remedies. A person shall be deemed to be in default of this Agreement only
upon the expiration of thirty (30) days (ten [10] days in thc event of failurc to pay money) fi'om
receipt of written notice t?om the other Party specifying the particulars in which such Party has
failed to perform the obligations of this Agreement unless such Party, prior to the expiration of
said thirty(30) days (ten [10] days in the event of failure to pay money), has rectified the
particulars specified in said notice of default. However, such Party shall not be deemed to be in
default if such failure (except a failure to pay money) cannot be rectified within said thirty (30)
day period and such Party is using good faith and it~ best efforts to rectify the patticulm-s
specified in the notice of default. Albertson's, its successor and assigns shall be entitle to
injunedve relief for the violation of any Restriction hereunder. All remedies pem~itted or
available to any Party hereunder, or at taw or equity, shall be cumulative and not alternative, and
the exercise of any such right or remedy shall not constitute waiver of election of remedies with
respect to any other permitted or available right or remedy.
16. Agreement Runs with the Land. This Agreement shall bc recorded in the real property
records of Dallas County, Texas and the Easements and Restrictions provide for herein mn with
the land and this Agreement is binding upon the Parties, their successors, assigns, heirs,
executors and administrators.
[Signatures on next page.]
Page 5 of 8
EXECUTED as of thc date first above written.
Albertson's:
Albertson's, Inc.
A Delaware corporation
William H. Arnold
Group Vice President, Real Estate Lawl~/~
Nicholson:
Thomas Nicholson
Attachments
Exhibit A: Albertson's Property's Legal Description
Exhibit B: Nicholson's Property's Legal Description
Pa§c 6 of 8
STATE OF IDAHO )
)ss.
County of Ada )
On this /~/'~'~day of(~t~g,fl.~,~ ?.05, before me, the undersigned, a
Notary Public in-~-~or said Stat~ personaily ~peared Wdllam !t. Arnold, to me known to be
the Group Vice President, Real Estate Law, of Albert~ons, Inc. a Delaware corporation, the
corporation that executed the foregoing inslmment, and acknowledged to me that the said
instrument is the flee and voluntary aCt and deed of said corporation, for the uses and pm'poses
therein mentioned, and on oath stated that he is authorized to execute the said instrument.
WITNESS MY HAND and official seal hea~to affixed the day, month and year in this
certificate first above written.
My commission expires:
1~) [~8'/0-010 __
Notary Public in and for the
State of Idab(~ -
Residing at'"l~X3~ Idaho
Page 7 of 8
/
)
County of-~ ~'c'~
)
On this :~?~ day of ~.~,<,.~ ,,~ ed
· 20.0,5, before me, the undersigned, a
Notary Public in and for said State, persbnally apl~ar ~ )~c.~: )~-ti:~ t;,~,,,, , to
me known to be [ x ~'..~.~[~.~,'& of Thomas Nicholson, who executed the foregoing instrument,
and acknowledged to me that the said instrument is the fi'ee and voluntary act and deed of said
individual, for the uses and purposes therein mentioned, and on oath stated that he is authorized
to execute thc said instrument.
WITNESS MY HAND and official seal hereto affixed the day, month and year in
this certificate firm above written.
My commissi, on expires:
~D[CK
Notary Pul~ll¢, Stat~ ~f Texas
Notary Pulfli,~ in and for the
State of :7- Y~L C/
Residing at (,,.<~. ~ c.. ;~ _,
On this :d' day of (it(<4~./.( Lt.,,d- , Z005, before me.~ the undersigned, a
Notary Public in and for sai'~--~ State, pe~..onally appeared ~'~C:4<- )h ct-,t~.;':d ~.a , to
me known to be .L~c~-~ of Lisa Nieholson, who executed the foregoing instrument, and
acknowledged to me that the said instrument is the fi.ec and voluntary act and deed of said
individual, fbr the uses and purposes therein mentioned, and on oath stated that he is authorized
to execute the said instrument.
WITNESS MY HAND and official seal hereto affixed the day, month and year in
this certificate first above writlen.
My commiss~ion expires:
Notary Pubic. in and for the '
State of
Residing at
Page 8 of 8
Exhibit 'A"
Legal Description
Store No. 4425/4115
Beg;~.-~r~3 al: a 1/2 ~ ~ l~.--i rod found /n ~ ~ i/ne of Denr.=~ Ta~
soa~, (a 100 foot r/ght-of-~), ~ /x~ ~ Al~ be/r~j the Soutb~ corner
Texas;
Tnenc~ South 89' 43' 31" West, 245.00 feet 1~ a 1/2 ~ diameter
Tne~Dm ~q~__~ch 47.00 feet tDa 1/2 ~
Tnen:~ Sout~ 89' 43' 31" West. 51.07
Then:~ ~kh 89' 43' 31' w~c, 100.67 feet to a 1/2 ~ ~""~r t,,.~ zCd
set;
Tneoce ~:3ut:h 293.00 ,'~t ~30 a 1/2 ~ ~t~r /rtz3 r~d set in 13he N~=L/~ ~
of Sandy Lake ~ (a 60 L~t r/ght-of-way);
%T,~ N~I/, 89' 51' 21" West, 491.75 f~ w~t~h the ~ ~, ~ ~ ~
~'~ of 1,~4.~ ~;
37~ ~L~, 290.12 feet: 133 a 1/2'/nth ~/m~ ro~ set:
%T~qce !~.~:, 89' 42' :~1." ~t. 134.01 fe~t
set;
Thence I~.~ 185.00 fe~ ~o a 1/2 ~ R~.~t~r /~ rud set;
ThenCe Sou'th 89' 43' 31" Wes'c, 6.00 feet ~o a 1/2 inch
Tne~c~ South 89' 43' 31" h~'t:, 44.00 feet ~o a 1/2 ~ Ri,-~ce.r
;_XH_|BIT B
BBING · portal o; trot of ~ ~itua~t ~ t~= GEORGB W. JAC-'~ gURv~y,
ABSTI~CT NO. ~4, in thc Cityo~Cordwl~,T~bein~
County, Te. xn~ tm(:l b*ing nao~ partictllnrly ~ .p~_.~.'~ aa ~llow$:
I~EOINNINO at a 1.'2" ~ron rod £oor, d in the roma rt~t-e£-w~¥
T~~]~ ~ ~ ~ of~ ~
~ Vo~ 98 ! 18, ~ 37. P~t ~, ~ Com~, Te~ md ~i~
~ u ~ ~ Vol~c ~019, h~ 97, Plat ~ D~I~ ~.
TI~NC'~ S0uO~ 00' 16~9" I:tsat eking ~ TACO B~LL Addition a dista~:
of 14S.00 Em to a I r2 i~h i~n ~xt f~und f~ ce~r. bel~ la ~e
~h tine of Connell $kag~ Addi~ an atd~ti~ to d~e City of
Cop~el~ aa retarded it Vob,~- 8~06, t~a~e :~, Pm Records, Dallas
County, Texas;
THENCE S~ 89'43'31' West aloa$ the Nort~ l~o
A~J lima at did'raise of 353.6~ feet m a I/2 Jndl irma md
¢e~er, be~n~ tl~ south ea~ eoeaer of ~ 2. lllnek A, or,aid Dcnton Tap
11~NCl~ ~q'~ 00'42~)0' ~st alel~ I!~ ~n~ ii~ of saki Lot 2. & ~tanoe
of 144.~4 feet ~ a i/2 laeb Iron xed found for e0met, bales ia ~e so~a
figh-of-w~y ofaa~ Pitacss CourL
THENCE lqeIl~ b'9°42'43 ~ East e dj.tahoe of 3:~ 1.15 feet Io tl~ POINT OF
BEOINN~O ~ eemainin~ 1.17 a~res of l$~d e~ 509~5.2 gQ, IT., more or leas.