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Mutual Cross Access EasemntsMUTUAL CROSS ACCESS EASEMENTS AND RESTRICTIONS AGREEMENT STATE OF TEXAS )( )( COUNTY OF DALLAS )( THIS MUTUAL CROSS ACCESS EASEMENTS .AND RESTRICTIONS AGREEMENT ( Agreement ) is entered into as of tbe.~)~- day of ~, 2005, by and among ALBERTSON'S, INC., a Delaware corporation ("nlbertson's'i!~a~..d THOMAS NICHOLSON and LISA NICHOLSON, husband and wife (collectively, "Nlcholson"). Albertson's and Nicholsun are sometime referred to individually as "Party" and Ct)llecfively as "Parties." RECITALS: A Albertson's is the owner of that certain real property more particularly described in Exbfibit A, attached hereto and incorporated herein b;/ this reference ("Albertson's Property"). Nicholson is the owner of that certain real property more l*articularly described in Exhibit 13, attached hereto and incorporated herein by this refe/enee ("Nicholson Property"). The Albertson's Property and the Nicholson Properly are sometime referred to individually as "Property" and collectively as "PropertieS." The Parties desire to create mutual ingress and egress easements across their respective Properties and create certain restrictions on use for the benefit of all owners and their successors and assigns, their tenants, employees, agents, contractors, licensees, customers, guests, and invitees and the employees, agents, contractors, liceusees, customers, guests, and invitees &such subtenants. NOW, THEREFORE, in consideration of the premisc~ releited above, together with the mutual agreements set forth below, the Parties do hereby agree as If°llows: 1. Access Easements. Each Party hereby GRANTS and CONVEYS to the other Party hereto, theh- tenants, employees, agents, contractors, licensees, Ct~stomers, guests, and invitees, and the employees, agents, eontxaetors, licensees customers, guests, and invitees of such subtenants, for the benefit of their respective Property, a non-exc]tSsive access easement and right of way for ingress and egress of vehicular and pedestxian traffi~ along, through and over the driveways and curb cuts ("Driveways") that presently exist or nlay subsequently exist on their respective Property, except for those areas devoted to service facilities or drive-up or drive through customer service facilities (the "Easements"). The Partie~ accept the Easements "As "Where Is" subjeet to all defects, latent and patent and subjecI to all easements, covenants, restrictions, liens and encumbrances of record or otherwise. 2. Relocation &Easements. Each Party acknowledges a~d agrees that the Driveways may be reasonably relocated by the respective owner of the Properly encumbered by the Page I of 8 Easements, and that to the extent such Driveways are relocated, the Parties, their tenants, employees, agents, con,actors, licensees, customers, guests, and invitees, and the employees, 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 acknowledg~ that it has sole responsibility for the planning, engineering, construction, maintenance, lightingi insuring and/or landscaping of the Easements that cross its respective Property, provided that Ni~holson shall be responsible, at is sole costs, for the initial construction ol'any curb cuts and/or drfveways 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 associaled with the initial construction and the schedules for construction. Nicholson shall have all work performed by a contractor approved in writing by Albertson'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 ar~y 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, from 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. Nicholson 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 instance, (ii) automobile liability insurance, and (iii) workers compensation insurance, all in an amount 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 ~ereof. The coverage shall be maintained, at minimum, until the work has been completedt. f. Nicholson shall not unreasonably interfere or obstrgct Albertson's, or Albertson's agents or contractors, unreasonably interfere with any business of Albertson's on the Page 2 of 8 Albertson' s Property. g. Nicholson agrees to notify Albertson's Store Dire0tor at store on the Albertson's Property at least fifteen (15) days in advance of work to be performed and shall coordinate all construction activity with the Store Director. 5. Maintenance Costs. Nicholson shall contribute to the common area maintenance of the Albertson's Property Driveways the stun of Five Hundred Dollars ($500.00) per year as its share of the cost to maintain thc Albertson's Property Driveways. Said!sm shall be paid on or before the first day of each calendar year, with the first payment, which l~ayment shall be prorated based upon a 365 day year, due upon execution of this Agrecmcnt. 6. Use Restrictions. Nicholson agrees that they shall not use the Nicholson Property or allow the Nicholson Property to be used tbr any of the following: a. As a supermarket, which shall be defincd as any ~tore or department 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 t~e sale of fresh or Erozen meat, fish, poultry or produce for off-premises consumption; for:the 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, on, 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 (whiclh shall be defined as any store primarily devoted to the deep-discount retail sale of goneml merchandise and/or food for off-premises 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 services 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 the services of a registered 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 the sale of any or all of the tbllowing items: food, beverages, grocery items, petroleum, tobacco and/or carwashes, as they may be operated from time to time. By way of example only, stores such as "7-Eleven" and "Circle K" are 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), ma&sago parlor, theater, bowling alley, skating rink, warehouse, or car wash or fo! the renting, leasing or sale of or displaying for the purpose of renhng, leasing or sale of any motor vehicle or trailer, or for industrial purposes. Page 3 of 8 7. Indemnity. To the extent any demand, claim, loss, cost or expense (including, but not limited to reasonable attorneys' tkes) is threatened or asserted on behalf of, or awarded to, any person or entity against a Party hereto arising out of an accidenti condition, omission or event that occurs on the Property not owned by such Party, the owner of the Proper'cy upon which the accident, condition, omission or event is claimed to have occurred~ or is ultimately determined to have occurred, hereby agrees to INDEMNIFY AND HOLD llARlVlLESS ail other Party hereto, unless the indemnified party is responsible 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, contractors, licensees customers, guests, and inVitees of such subtenants. 8. Purpose of Agreement. 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 emends nor superccdcs any such pre- existing agreements. 9. Duration/Amendments. The term of this Agreement shall be for twenty (20) years fi'om the date hereof This Agreement may only be emended or terminated upon the unanimous written consent of the Parties, which consent shall be recorded lin the real property records of Dallas County, Texas, together with the amendment or termination of this Agreement. l 0. Waiver. The failure of a Party to insist upon strict pcrtbrmance of any of the Restrictions contained herein shall not be deemed a waiver of any rights 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 Pan'y initiates or defends any legal action or proceeding in any way connected with this Agreement, the prevailling party in any such action or proceeding (in addition to any other relief which may be grante~t, 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 dec, ned to have accrued on commencement of any legal action or proceeding and shall be enforceable whether or not such legal action or proceeding is prosecuted to judgment. 12. No Third Party Beneficiary Rights/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 Parties that this Agreement shall be strictly limited to and tbr the purposes 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 construed to create, a joint verlture, partnership, or any other Page 4 of 8 similar relationship between the Parties. 14. Notices. All notices given pursuant to this A~'eement 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, return receipt requested, addressed to the appropriate [Party at the address set forth below: Alb~Psorl*s.- Albertson's, Inc. 250 Parkcenter Boulevard P.O. Box 20 Boise, ID 83726 Attention: Legal DeparUnent (#74200R) Nicholson: Tom & Lisa Nicholson 145 Fimess Court Coppell, Texas 75019 The person and address to which notices are to bc loven rOay be changed at any time by any party upon written notice to the other party. All notices giv[en pursuant to this Agreement shall be deemed given upon receipt. 15. Default/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 the event:iof failure to pay money) fi-om receipt of written notice fi.om the other Party specifying the parti~:ulars in which such Party has failed to perform the obligations of this Agreement unless such ~arty, prior to the expiration of said thirty(30) days (ten [10] days in thc event of failure to l~ay money), has rectified the particulars specified in said notice of default. However, such Par~y shall not be deemed to be in default if such failure (except a failure to pay money) cannot be ~ectified within said thirty (30) day period and such Party is using good faith and its best efforts to rectify the particulars specified in the notice of default. Albertson's, its successor a~nd assigns shall be entire to injunctive relief for the violation of any Restriction hereunden All remedies permitted or available to any Party hereunder, or at law 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 be recorded in the real property records of Dallas County, Texas and the Easements and Restrictitms provide for herein nm with thc 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 the date first above written. Albertson's: Albertson's, Inc., A Delaware corporation William H. Arnold Group Vice President, Real Estate Law/L. Nicholson: Thomas Nicholson ~ Nichols~n/ / / Attachments Exhibit A: Albertson's Property's Legal Description Exhibit B: Nicholson's Property's Legal Description Page 6 of 8 STATE OF IDAHO ) )ss. Courtly of Ada ) On this ~l~tday of(~L~h~r~ , 2005, before me, the undersigned, a Notary Public in and tbr said Stat~ personally a~peared William H. Arnold, to me known to be the Group Vice President, Real Estate Law, of Albertsons, Inc. a Delaware corporation, the corporation that executed the foregoing instrument, and acknowledged to me that the said instrument is the flee ~d voluntary ae~ and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated that he is authorized to cxcel~t¢ the said instrument. WITNESS MY HAND and official seal hereto affixed the day, month and year in this certificate first above written. My commission expires: Notary PuMic in and for the State of Idah~ _ Residing at"~'~)i~ Idaho Page 7 of 8 STATEOF l( q~.. ) )ss. On this day of 'r~' ~ ~:' "' '1 , 2005, before me, ~e ~d~si~ed, a Not~ ~blic in ~d fo~d State, p~onflly ~e~ed ]~,/;W .... &: t ~, .,, , to me ~om to be ~ . ~:: ~ ~,:.,.~ of Thomas Nicholson, who ex~ut~ the foregoing ins~ent, ~d ae~owl~g~ to me ~at ~e s~d ~s~m~t is ~e ~ee and volunt~ a~ ~d d~ of said individu~, for ~e ~es ~d p~s~ ~ein m~fion~, ~d on oa~ stated ~at he is au~ofiz~ to execute ~e said ins~ment. WITNESS MY HAND and official seal hereto affised the day, month and year in this certificate first above written. My commission expires: STATE OF ¢''' County of Notary Publi~. i,n and for the State of Residing at On this :~' / day of ~ 4..,,~, ~.: ~,~ ,2;005, before me, the undersigned, a Notary Public in and fo~-~a~d State, personally appeared '~.~ z(_ );4 ,; ~'5 .?x ~ , to me ka~own to be ~; ~,~/.: ~ ',A. ~'4. of Lisa Niehoison, who executed the foregoing instrument, and acknowledged to me that the said instrument is the fi.co 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 written. My commission expires: Notary Pubic in and for the State of -~k4 Residing at Page 8 of 8 Exhibit "A" Legal Description Store No. 4425/4115 Texas; ---- --~, ,~ ~o, ~ ~=~s, D~]]as County, Thence South 89' 43' 31" West, 245.00 feet ~o a 1/2 ~ d/~me~_r i~ rud South 47.00 feet ~o a 1/2 /rich d~t~r lro red ~e~; Sou~h 89' 4~' 31" ~st, 51.67 feet to a I/2 inch diameter iron red T~ South 254.16 f~t ~o a 1/2 /~-~ d~.=~-r ~ ro~ set; ~ Na~ 89' 43' 31" East, 100.67 feet ~D a 1/2 /nth di,,~_r irun rod ~ Nu~Lh 185.00 feet 'co a 1/2 irz:h d:La~e~__r i~.~ to:] ~et; South 89' 43' 31" West, 6.00 feet ix> a 1~'2 ~ ~,b~U, ~.00 feet ~o a 172 .tnoh cLt~.=~.~ /zc,~ rod set; South 89' 43' 31" Imasa, 44.00 feet ~o a I/2 ~ ~t~=t~r ~ set; XH_[I iT BEING, parcel or ~ ot'land si~,_~,_e ~_ in ~ GEOROB W. J^CK gURvl~¥, ABSTRACT NO, f~4, in tl~ City o£Copp~ll, DalJ~ Cou~tT, T,',-_,. being recordext by docd re~orged ia Vol, 2001232, Pg. 3344, Deed R~0ords, Dallas Corinth, Te. xai,; ~ I~ing mom pazliculsrly dc~'ibed as ~bllow$: BEi~IlqI~NG al a l~" iron rod fo~tut i,~ the south ~t~-~y T~ ~t ~ifi~ ~ ~n ~ ~ ~ of~ ~ Vol~ 9~ 118. Pa~ ~7. P~l ~o~. Da~-~ Co~, Te~ ~d ~i~ · e ~w~t ~ Of TACO ~ ~ ~ ~ to ~l ~ ~ed in Vol~c ~01 ~, Pa~ ~, Plat ~co~ D~I~ Co~. Te~ THENCI~ South 00' 16'~" Ba3t along _~i,4 TACO BELL ~ition a ~1 ~ r~ i~ VO~ 8~6. ~ ~, P~ a~o~s, DaI~ Co~, T~ THENCE So~ ~9'43'3 !* West along the Nor~ lino of ~d ~1Ska~ Ad~fi~ a ~o of353.~ f~ ~ n I~ i~h ~ ~ ~d for ~elopmem AMi~on; TH ENC.~ ~'o~h 00' 42'00" East along ~e ~ li~e of said Lot 2, · distance of 14~,~4 feet ~o a I~ ~ ~n r~ fo~ ~ ~, ~ ~ ~ ~ fi~f-~y of~ Fim~ Co~ T~CE lqoall ~9'42'43' Ea~ a dis~nce of 351.15 fect ~o ~s POINT OF BEGI!NNING ~md containing 1.17 acres of 1~1 or S0~5.2 SQ. Fl'., mom or less.