Mutual Cross Access AgreementMUTUAL CROSS ACCESS EASEM~TS
AND RESTRICTIONS AGREEMKNT
STATE OF TEXAS )(
)(
COUNTY OF DALLAS )(
THIS MUTUAL CROSS ACCESS EASEMEN_TS,AND RESTRICTIONS AGREEMENT
(the "Agreement") is entered into as of the.~day of d(?t~-~ , 2005, by and among
ALBERTSON'S, INC., a Delaware corporation ("Albertson's")'.and THOMAS NICHOLSON
and LISA NICHOLSON, husband and wife (collectively, "~iebolson"). Albertson's and
Nicholson are sometime referred to individually as "Party" and COllectively as "Parties."
RECITALS:
A
Albertson's is thc owner of that certain real property more particularly desca'ibed in
Exlffbit A, attached hereto and incorporated herein by this reference ("Albertson's
Property").
Nicholson is the owner of that certain real property more particularly described in Exhibit
B_, attached hereto and incorporated herein by this refe.~ra~ce ("Nieholson Properly").
The Albextson's Property and the Nicholson Properly are sometime referred to
individually as "Property" and collectively as "Propertie~."
The P'~ies 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, ~gents, contractors, licensees,
customers, guests, and invitees and the employees, agents, contractors, liennsees,
customers, guests, and invitees of such subtenants.
NOW, THEREFORE, in consideration of the premisc~ r0eited above, together with the
mutual agreements set forth below, the Parties do hereby agree as ?follows:
1. Access Easements. Each Party hereby GRANTS and CONVEYS to the other Party
hereto, their tenants, employees, agents, contractors, licensees, ~ustomers, guests, and invitees,
and the employees, agents, contractors, licensees customers, guests, and inviteea of such
subtenants, for thc benefit of their respective Property, a non--exc]*sive access casement and right
of way for ingress and egress of vehicular and pedestrian trafl~ 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 facilities (the "Easements"). The Parties accx~pt the Easements "As Is"
"Where Is" subject to all defects, latent and patent and subjecl to all easements, covenants,
restrictions, liens and encumbrances of record or otherwise.
2. Relocatio~n of Eas~ements. Each Party acknowledges and agrees that the Driveways
may be reasonably relocated by the respective owner of the Property encumbered by the
Page I of 8
Easements, and that to the extent such Driveways are relocated, the Parties, their tenants,
employees, agents, contractors, licensees, customers, guests, ~ 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 Pan'y agrees that no development ,shall occur or be
permitted on its respective Property that would permanently de~y reasonable access over and
across its respective Property.
4. Construction and Maintenance. Each pafly acknowledgqs that it has sole responsibility
for the planning, engineering, construction, maintenance, lighiin~ insuring and/or landscaping of
the Easements that cross its respective Property, provided that Ni~holson shall be rmponsible, at
is sole costs, for the initial construction of any curb cuts and/or driveways required to connect the
Albertson's Pmpexty 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 dclaycd, of all plans associated 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 af~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 harmiless Albertson's, its successors
and assigns, from and against any and all claims, liability~ obligation, loss and expenses,
including attorney fees, arising from thc activities of Nicholson pursuant to this
Agreement. Nicholson shall not permit or allow any mechanics' or materiulmans' lien of
any kind related to the expansion work or the access grant~l hereunder to be placed upon
or enforced against the Albertson's Property.
e. Nicholson agrees that they shall, for themselves, a*d shall cause their consultants,
contractors and any sub-contractors performing any workion the Albertson's Property to
obtain and maintain (i) genial 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 insuranc~ policy(ies) required under
subsection (i) and (ii) shall name Albertson s, as an additional insured. Nicholson shall
p v~de Albertson s w~th cm'~ficates of insurance ewdencmg such coverage before
commencing the initial consmacfion work or any portion thereof. The coverage shall be
maintained, at minimum, until the work has been complete~l.
f. Nicholson shall not unreasonably interfea'e or obstruct Albertson's, or Albertson's
agents or con,a-actors, unreasonably interfere with any l~usiness of Albertson's on the
Page 2 of 8
Albertson's Property.
g. Nicholson agrees to notify Albertson's Store DireCtor at store on the Albeflson's
Property at least fifteen (15) days in advance of wort 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 sam of Five Hundred Dollars ($500.00) per year as its share
of the cost to maintain thc Albertson's Property Driveways. Said sam shall be paid on or before
the fast 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 tbr any oftbe following:
a. As a supermarket, which shall be defined as any ~tore or department containing
more than 3,000 square feet of floor area, including ais}e 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 meal
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, 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 ganel'al merchandise and/or food for
off-premisas consamption 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 ~enter 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 pharmacentieal
products requiring the services of a registered pharmacist; as a Convenience Store, as
hereinafter defined, or for the sale of petroleam. 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 itemts, petroleam, tobacoo and/or
carwashes, as they may be operated from time to time. l~y way of example only, stores
such as "7-Elevea~ 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 ar0ade (which shall be defined as
any store containing more than four [4] electronic games), mas~ge 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 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' ii:es) is threatened or asserted on behalf of, or awarded to, any
person or entity against a Party hereto arising out of an accident, condition, omission or event
that occurs on the Property not owned by such Party, the owner of thc Property 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 HARMLESS all other Party
hereto, unless the indemnified party is respons~le for the accider~t, 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, cnstom~rs, guests, and invitees, and the
employees, agents, contractors, licensees customers, guests, and invitees of such subtenants.
8. Puruose of Aereement. The purpose of this Agreement is solely to provide the
Easements, indemnity, and restrictions descn'bed above. This Agleement 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 Prolx~ty hereto, this Agreement neither amends nor supercodcs any such pre-
existing agreements.
9. Duration/Amendments. The term of this Agreeraent shall be for twenty (20) years f~m
the date hereof. This Agreement may only be amended or terminated upon the unanimous
written consent of the Parties, which consent shall be re~orded in the real pmpcaty records of
Dallas County, Texas, together with the amendment or termination of this Agreement.
10. Waiver. The failure of a Party to insist upon strict performance 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 oth~ person.
11. Attorney's Fees. In the event either Pafl~ initiate~ or defends 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
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 he 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 hexein expressed.
13. Not a Parlmership. The provisions oft his Agreement are not intended to create, nor shall
they be in any way interpreted or construed 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, return receipt requested, addressed to the appropriate Party at the address set forth
below:
Alb~'tson's:
Albertson's, IRC.
250 Parkcenter Boulevard
P.O. Box 20
Boise, ID 83726
Attention: Legal Department (#74200R)
Nicholson:
Tom & Lisa Nicholson
145 Fitness Cotu~
Coppell, Texas 75019
The person and address to which notices are to be given may be 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. 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 of failure to pay money) from
receipt of written notice from 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 thc 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 its best efforts to rectify the particulars
specified in the notice of default. Albertson's, its successor and assigns shall be entire to
injunctive relief for the violation of any Restriction hereundeI. All r~medies permitted or
available to any Party hereunder, or at law or equity, shall be cumulative and not aitemative, and
the exercise of any such fight or remedy shall not constitute waiver of election of remedies with
respect to any other permitted or available right or remedy.
t6. Agreement Runs with the Land. This Agreement shall be recorded in the real property
records of Dallas County, Texas and the Easements and Restrictions provide for herein mn with
the Iand 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 L(~
Nicholson:
Thomas Nicholson
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.
County of Ada )
Notary Public in-~-~or said Stat~ personally dltpeared William I
the Group Vice President, Real Estate Law, of AIber~ons,
corporation that executed the foregoing instrument, and ackno
instmmont is the free and volunta~ act and deed of said corporal
ther~,qn mentioned, and on oath stated that he is authorized to excc~
from me, the undersigned, a
L Arnold, to me known to be
a Delaware corporation, the
~ledged to me that the said
ion, for the uses and purposes
ttc the said instrument.
WITNESS MY HAND and official seal horeto affixed tl~ day, month and year in this
certificate first above written.
My commission expires:
Notary Pub{lc in ~nd for the
State of Idab~ ~
Residing at '-'~Y,D.~_~ Idaho
Page 7 of 8
On this :& day of ,~ i~ ~.~ ~1 ,2~5, before m~ ~e ~d~s~, a
No~ ~bhe m ~d for smd State, p~onflly ~e~ [~7;~ ...... t~ ~.~, , to
me ~o~ to be ~ ~( z t,:C~'~, of Tho~s Ni~olson, who ex~t~ the ~mgoing ins~t,
~d a~owl~g~ to me ~at ~e s~d ~s~t is ~e ~ ~d yol~t~ a~ ~d d~ of s~d
~di~d~, for ~e ~ ~d p~s~ ~e~ m~fion~, ~d on o~ stated ~at he is au~ofi~
to execute ~e s~d in~ent.
WITNESS MY HAND and official seal hereto affixed the day, month and year in
this certificate first above written.
My commission expires:
STATE OF
County of
Notary Pul~lE in ~d for the
Residing at ' ,,.
On this v! ~ day of :i~/4,~t~L'~,~,}- ,2D05, beforo me, the undersigned, a
Notary Public in and for said State, per~,°nally appeared ~,C'.~ ~;~; ~{i .~'x' ¢4 , to
me known to be ~;'~£~ ~ ~-c~,'& of Lisa Nieholson, who executed~ the foregoing instrument, and
acknowledged to me that the said instrument is the fi.ce and vOluntary act and deed of said
individual, ~rbr the uses and purposes therein mentioned, and on o~ath stated that he is authorized
to execute the said instrument.
WITNESS MY HAND and official seal hereto affiged the day, month and year in
this certificate first above written.
My commission expires:
No~aly Pub~{~c in ~d for the
State of
Residing at
Page 8 of 8
Exhibit #A"
Legal Description
Store No. 4425/4115
89' 4.3' 31" Wsm-"c, 245.00 feet
South 47.00 feet ~o a 1/2 hlOh 8{~m~_r i~o zod ~;
Sou~h 89' 4~' 31" West:. 51.67 feet tDa 1/2 i~ ~ /~,~ rod
Ther~:~ South 254.16 feet ~o e 1/2 /rich dis~t~r /~u~ z~ set;
~ ~d, 89' ~' 31" w.~, 1~.~ ~t ~ a 1/2 ~ ~
Tne~ So. th 293.00 feet ~o a 1/2 /rich ai~_r lrun z~ set in ~ ~d~ 1/ne
of sarny L~ ~ (a 60 ~
T~ce ~:, 290.12 fe~ ~o a 1/2' ~ a~r /rcn zo~ se~;
Tnerg~ ;~::, 89' 43' 31" F~c, 134.01 feet to a 1/2 /~=hi~-me~r tzgn ~x]
(C~)
Tner~e Nu~l/~ 185.00 fee~: ~o a 172 /nob
Tnefx~ Sout~ 89' 43' 31' We~;, 6.00 fee~
iron z~d se~:;
~ Scut~ 89' 43' :31' Wes=, 44.00 feel: 'bo a 1/2 ~ ~-I.~.~,=~=r
264,759 square feet: (6.078 ac='~s) of larlcl, of ~ 13,350 square
feet (0.306 ~,:~..-,.=) az~ wil:h.l.n
251,409 scluam fe~l: (5.772 ~cz'es) of 1~:1, ,~.',~ or
X_I"iJ. BIT B
AB~ zKACT NO, C~4, ~ ex: City o£CoF~H, Dalu~ Cauaty, Tcxa~ being
Da~ Coamty, Tea~; ~d beiag mine pani~btly described as ~allow$:
{3EO]NNIN(} at = I./2~ iron ~ £~ i~ ~e ~ ri~t-.o.f-~ty of Fltne~
TaP Developme~ A~litieu. au ~tditiea to d~e City of Coi~j1. recor~d
in Votume 9;{ I 18. ~ ~17. PI~{ Record~ D,n,, Cuumy. Texas. ~ b~iu~
· ~e ue~J~west ~cmmr 01'TACO ]{~LL ~ am a~k~ieu ~o ~l~ Clv/u£
C.o{~e{! ts ~ed in Voiumc 9~0! 9. ~ 97. Plat P~e¢o~ D~Jlts County.
Tcxa~
TRENCB goutE 00' 16'29" East along ~1 TACO BE&I, Addition a distanco
noxth line of Cennell Skaggs AddMon+ an a~lition to ~e C~ty o~
Coppe~l ts rer,~ded i~ ¥oimac 88006, Pa$e ~, P~t Records, Dallas
Count'/, Texas;
THENCE So~ 89'43'3 l' West al~ the ~ ~ of~d ~ ~
'I'HENCI~ ~l~t~t ~'42'4~~ ~ & dJ$1a~ce o['351.15 f~t {~ t~ POINT OF
BEOINNINO ~4 ca~Uatntag 1.17 ~ of |~ e~ $0S~5.~ SQ. lrl'., mom or I~