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HomeMy WebLinkAboutA023 - Declaration of Restrictions and Grant of Easements dated August 17, 1984 ✓ g - 01603 1 INST.NO. k 1 STORY COUNTY, IOWA 'q FILED FOR RECORD 016Q3 CITY CLERIC l0— AM AUG 311984 � INST # _ �'y of ar�Es,Iov�a SUSAN L POTTER,Recorder FEE 3 By Deputy DECLARATION OF RESTRICTIONS. AND GRANT OF EASEMENTS between AMERICAN STORES PROPERTIES, INC. a Delaware corporation "ASPI" and WAL-MART PROPERTIES, INC. a Delaware . corporation "Wal-Mart" Location: Northwest corner of 30th Street and Grand Avenue, City of Ames, Iowa Dated: Store No. : RECEIVEED a JUN021_`89 CITY OF AMES,IOWA DEPT.OF PLANNING&HOUSING BOOK ao9 PAGE TABLE OF CONTENTS Page Recitals. . . . . . . . . . . . 0 1 1. Incorporation 2 2. Definitions . . . . 2' A. Owner 2 B. Owner of Parcel One 2 C. Owner of Parcel Two . . . . . 2 D. Affiliate . . . .. . . . .. . 2 E. Building Area. . . . .. . . . . . . 3 F. Common Area 3 3. Building Area and Common Area . . . 3 A. Building Area 3 B. Maximum Building Area 3 .C. Common Area Use . . . . . . . . 4 . D'. Design -and Construction of Buildings 5 4. Easements 5 A. Ingress, Egress and Parking 5 B. Utility Lines . . . . . . . . . . . 5 C. Building Encroachments 6 5. Common Area Development and Maintenance 7 6. Restrictions . . . . . . . . . . . . . 8 A. Use Restrictions . . . . . . 8 B. " Parking Restrictions 9 C. Employee Parking 9 D. Parking Ratio. . . . 10 7. Signs . . . . . 10 ' 8. Indemnif.cation . . . . . . . . '_0 A. Indemnification of Owners . . 10 B. Waiver of Certain Rights 11 -i- BOOK a 09 PAGE a 3$ Page 9. Liability Insurance . . . . . . . . . 11 A. General Coverage and Limits 11 B. Coverage and -Limits During Construction . . . . . . . . . 0 12 C. Performance of Indemnity Agreements 12 10. Taxes . . . . . . . . . . . . 13 11. Damage or Destruction . . . . . 13 12. Consent, Approval and Other Rights of an Affiliate . . . 14 13. Eminent Domain . . . . . . 14 A. Owner' s Right to Award . 14 B. Collateral -Claims 14 C. Tenant' s Claim 14 D. • Restoration of Common Area 15 E. Restoration of Building Area 15 14. General Provisions 15 A. Inurement 15 B. Duration 15 C. Injunctive Relief 15 D. Right to Cure 16 E. Modification 17 F. Not a Public Dedication . . . 17 G. Breach Shall Not Permit Termination 17 H. Non-Merger . . . . . . . . . . 17 I. Attorneys' Fees 17 J. Notices . . . . . . . 17 K. Severability . . . . . 18 L. Counterparts lg M. Pronouns . . . . . . . . . . . . . 18 N. Captions . . . . . . . . . . . . 18 0. Not a Partnership . . . . . . . . . 18 P. Governing Law . . . . . . . . . . . 18 Q. No Presumption . . . . . . . . 18 ACKNOWLEDGEMENTS . . . . . . 20 -ii- BOOK q09 PAGE a= Page . EXHIBIT "A" 22 EXHIBIT "B" . . . . . 0 23 EXHIBIT "C" . . . 24 0672S Mi -iii- BOOK PAGE a y 0 DECLARATION OF RESTRICTIONS AND GRANT OF EASEMENTS THIS DECLARATION OF RESTRICTIONS AND GRANT OF r� EASEMENT (this "Agreement" ) is entered into as of the day of , 1984, by and. between AMERICAN STORES PROPERTIES, LNC. , a Delaware corporation ("ASPI") and WAL-MART PROPERTIES, INC. , a Delaware corporation ("Wal-Mart" ) , collectively referred to herein as the "Declarants" . RECITALS WHEREAS, this Agreement is made with respect to that certain real. ,property located approximately at the northwest corner of 30th Street and Grand Avenue, City of Ames, County of Story, State of Iowa, as shown on the site plan attached hereto as Exhibit "A" and incorporated. herein -by reference (the "Site Plan") , which real property is hereinafter referred to as the "Shopping Center"; and WHEREAS, ASPII -is or will be at the time of this - - document-' a recordation, the owner of that portion of the Shopping Center designated as "Parcel One" on the Site Plan, and as more particularly described on Exhibit "B" attached hereto and incorporated herein. by reference; and WHEREAS, Wal-Mart is or will be at the time of this document' s recordation, the owner of that portion of the Shopping Center designated as "Parcel Two" on the Site Plan, and as more particularly described on Exhibit "C" attached hereto and incorporated herein by reference; and WHEREAS, the Declarants desire that each of their respective Parcels and any portion thereof, be developed in conjunction with each other for the mutual benefit of the Declarants and of each and all of the Parcels and of every portion thereof, and accordingly do hereby establish a general plan for the improvement, protection, development, maintenance and use of each and all of the Parcels as a commercial shopping center and for such purposes Declarants do hereby establish easements, servitudes, covenants, restrictions, liens and charges (collectively the "Restrictions" ) as are hereinafter set forth, subject to which each of the Parcels and any portion thereof, shall be improved, held, exchanged, leased, sold and/or conveyed. Each of the Restrictions is imposed upon each BOOK PAGE .L. Parcel in the Shopping Center as a mutual equitable servitude in favor of each and every other Parcel and every part and portion thereof in the Shopping Center. Each of the Restrictions shall create reciprocal rights and obligations among each of the Owners of any Parcel, and any portion thereof, in the Shopping Center; they shall further create a privity- of contract and an estate between the Owners of each and every Parcel and their heirs, successors and assigns; and they shall, as to the Owners of each and every Parcel, their heirs, successors and assigns, operate as covenants running with the land for the benefit of the Shopping Center and each and every part and portion thereof. NOW, THEREFORE, in consideration of the foregoing, and the covenants and agreements set forth herein, the Declarants agree as follows: 1. Incorporation. The recitals are incorporated herein and by reference made a part hereof. 2. Definitions. The following terms shall have the meanings specified below: A. Owner. _ The Owner of Parcel One° and the Owner of Parcel Two and their respective assigns, grantees and successors in interest. S. Owner of Parcel One. ASPI and its respective assigns, grantees and successors in interest having fee record title to all or any portion of Parcel One. C. Owner of Parcel Two. Wal-Mart and its respective assigns, grantees and successors in interest having fee record title to all or any portion of Parcel Two. D. Affiliate. ASPI or any other entity which is wholly owned or ultimately wholly owned (i.e. , through various subsidiaries) by American Stores Company, a Delaware corporation, and as the context requires, Wal-Mart or any other entity which is wholly owned or ultimately wholly owned, (i.e. , through various subsidiaries) by Wal-Mart Stores, Inc a Delaware corporation, or any successor to each of the foregoing entities by merger, consolidation or acquisition of its assets substantially as an entirety, which entity is occupying all or a portion of Parcel One or Parcel Two, as the case may be, pursuant to a lease, sale-leaseback or other similar transaction giving such entity a right of occupancy to all or -2- BOOK Q 09 PAGE any portion of Parcel One or Parcel Two, as the case may be, pursuant to a recorded instrument; provided, there shall be deemed to be no Affiliate hereunder so long as ASPI or Wal-Mart., as the case may be, or any other entity which is wholly owned or ultimately owned (i.e.., through various subsidiaries) by American Stores Company or Wal-Mart Stores Inc. , as the case may be,. or any successor thereto by merger, consolidation or acquisition of its assets substantially- as an entirety has fee ownership of Parcel One or Parcel Two, as the case may be. E. Building Area. That area shown as "Building Area" and "Future Building Area" on the *Site Plan. F. Common Area... A11 real property within the Shopping Center upon which buildings are not from time to time located .or in the process of construction. 3. Building Area and Common Area. A. Building Area. No building or other structure shall be constructed upon any .Parcel in the Shoppping Center other than within the Building- Area on each Parcel. Notwithstanding the foregoing,: canopies and roof overhangs (including-supporting columns or pillars), normal foundations, doors, trash enclosures, and loading and delivery docks, covered areas attached to such docks, and doors for ingress and egress- may project from any .building or structure up to a distance of twenty (20) feet over or outside of the Building Area on any Parcel; provided, any such projection or extension must comply with all- applicable laws, rules, ordinances and regulations of..every governmental body having jurisdiction over the Shopping Center; and, provided further, no such extension or projection shall be allowed if it (i) materially alters the parking configuration or vehicular and pedestrian circulation, and/or access in and through the Shopping Center from adjacent streets and between Parcels within the Shopping Center from that shown on the Site Plan; (ii) decreases the parking area of the Shopping Center (or any Parcel thereof) from that shown on the Site Plan; or (iii) interferes with or prevents the location, placement or construction of buildings or structures in the Building Area on any Parcel. . B. Maximum Building Area. The total square footage of floor area of all buildings and other .structures within the Building Area on any Parcel in the Shopping Center shall not exceed the maximum amount designated for each Parcel on the -3- BOOK PAGE _ Site Plan. Such -maximum building area for each Parcel is hereinafter referred to as "Maximum Building Area" . For _ purposes hereof, "floor area" shall be defined as the area within the exterior surfaces of the exterior walls of any building or structure, excluding any mezzanine (so long as it is not used for sales area or generally open to the public) , trash enclosures, loading and delivery docks, covered areas attached to loading and delivery docks, canopies and roof overhangs (including supporting columns or pillars) . The Maximum Building Area for any Parcel is only a limitation on building si.ze and imposes no obligation whatsoever on the Owner of such Parcel to place, erect or construct a building or structure thereon having the maximum floor area. C. Common Area Use. The Common Area may be used for vehicular access, circulation and parking (except there shall be no multi-level parking), pedestrian traffic, . directional signs, sidewalks, walkways, landscaping and other similar uses necessary to the comfort and convenience of customers, invitees, licensees, agents and- employees of the Owners and business occupants of the. buildings constructed in the Shopping .Center, and for the servicing and supplying of such businesses, and for no other purpose unless otherwise specifically permitted herein. The- entire Common Area of the Shopping Center constitutes an integrated parking area to serve all the buildings located within the Shopping Center. In addition, the Common Area may be used (i) in connection with the construction and repair of any buildings in the Shopping Center so long as such use does not unreasonably restrict access to and from and the conduct of business from the buildings in the Shopping Center or access to and from the adjacent streets; (ii) in connection with the construction and maintenance of utility lines so long as such activity is undertaken in strict compliance with the requirements of the Article herein entitled "Easements" ; and (iii) for any other use required by any governmental authority having jurisdiction thereof. No building, barricade or structure .may be placed, erected or constructed within the Common Area on any Parcel except loading and delivery docks, trash enclosures, pylon (to the extent not ,herein prohibited) and directional signs, bumper guards or curbs, paving, landscaping and landscape planters, lighting standards, driveways; sidewalks, walkways, parking stalls, columns or pillars supporting roof overhangs and canopies (not exceeding twenty (20) feet from exterior building walls) , and any other improvements as may be required under applicable laws, rules, ordinances and regulations of any governmental body having jurisdiction over the Shopping Center. -4- BOOK�0 9 PAGE _ . i D. Design and Construction of Buildings. All buildings constructed in the Shopping Center shall be of first quality construction and designed so that the exterior design, color and elevation of each building will be architecturally and 'aesthetically compatible with the others, but in no event shall any building exceed a height of thirty-six (36) feet. All buildings in the Shopping Center shall be constructed and maintained in such a manner as- to enable each building. in the Shopping Center. to be fire- rated as a separate and distinct unit without deficiency charge. In the event it is necessary to sprinkler a building in order to achieve the foregoing result, the Owner of such building shall cause it to be sprinklered. No building shall .be built in such a manner as to adversely affect the structural integrity of any other building in the Shopping Center. 4. Easements. A. Ingress, Egress and Parking. Each Owner, as grantor with respect to each Parcel owned by it, hereby grants to each of the other Owners, as grantees, for the benefit of each other Owner and their respective tenants, employees, agents, customers and invitees of such tenants„ and for the benefit of each Parcel -owned by each grantee, a non-exclusive . easement appurtenant to each Parcel owned by each grantee for the purpose of ingress and egress by vehicular and pedestrian traffic and for vehicular parking upon, over and across the Common Area within each Parcel owned by the grantor. Such easements shall be for the Common Area uses described in Paragraph C of the Article herein entitled "Building Area and Common Area" ,- and shall be subject to all restrictions imposed- on such uses by this Agreement-- provided, such easements shall not pertain to the construction and/or maintenance of utility lines which shall be solely .governed by the provisions of Paragraph B of this Article. B. Utility Lines. Each Owner, as grantor with respect to each Parcel owned by it, hereby grants to each of the other Owners, as grantees, for .the benefit of each other Owner and its Parcel, non-exclusive easements appurtenant to each Parcel owned by each. grantee, under, through and across the Common Area of each Parcel owned by the grantor for the installation, maintenance, repair and replacement of water drainage systems or structures, water mains, storm drains, sewers, water sprinkler system lines, telephone or electrical conduits or systems, gas mains and other public utility facilities necessary for the orderly development and operation -5- BOOK PAGE y s of the Common Area and each building in the Shopping Center; provided, the rights granted pursuant to such easements shall 1 at all times be exercised in such a manner as to not unreasonably. interfere with the normal operation of the Shopping Center; and provided further, except in an emergency, the right of. any Owner to enter upon the Parcel of another. Owner for the exercise of any right pursuant to such easements shall be conditioned upon obtaining the prior written consent of such other Owner, which consent shall not be unreasonably withheld. All such systems, structures, mains; sewers, conduits, lines and other.public utilities -shall be installed and maintained below the ground level or surface of such easements. In the event an Owner deems it to be necessary to cause the installation of any utility line across the Common Area of any other Parcel subsequent to the 'initial paving and improving thereof, the Owner thereof agrees not to unreasonably withhold the granting of any necessary additional easements;' provided, in no event will such installation be permitted if it would unreasonably interfere with the normal operation of any business within the Shopping Center. In the event an Owner, in exercising the foregoing granted rights, disturbs or otherwise damages any portion of the Common Area improvements, such Owner shall expeditiously prosecute to completion the utility work and at its sole expense immediately restore: and repair the Common Area . improvements to their condition prior to the commencement of such construction. In the event that it should be necessary to grant any of the foregoing easements and rights to local utility companies as a condition of their providing or continuing service, such rights shall be granted so long as the Owners required to execute such instruments deem, in such Owners' reasonable opinion, the terms and conditions- of such a grant to be acceptable. C. Building Encroachments. Each Owner with respect to its Parcel, hereby grants to the other Owners for the benefit of such-other Owners and their respective Parcels, an easement for any portion of any building or structure on any Parcel which may encroach onto or over an adjoining Parcel; provided, the easement for such encroachment is limited to one (1) foot; and further provided, the encroachment easement shall not extend to encroachments which are intentional or which materially and adversely affect the location, orientation, design or construction -of buildings to be constructed on the Building Area of the Parcel upon which the encroachment has taken place, unless first approved in writing by the Owner of -6- BOOK ;J 09 PAGE a` the affected Parcel. The easement granted in this Paragraph shall last so long as the building of which such encroachment is a part is standing, and in the event this Agreement expires first, the easement shall survive such expiration. . 5. Common Area Development and Maintenance. The Common Area of the Shopping Center is to be improved as shown on the Site Plan. Upon the improvement of the Common Area, each Owner shall, at its own expense, cause to be maintained the Common Area located on its Parcel, together with the sidewalks immediately adjacent to the buildings located thereon, at all times in good and clean condition and repair, _ which maintenance shall include, but not be limited to, the following: A. Maintaining the paved surfaces in a level, smooth and evenly covered condition with the type of surfacing material originally installed or such substitute as shall in all respects be equal or superior in quality, use and durability; B. Removing all papers, debris, filth, refuse, snow, ice and water and. thoroughly sweeping the area to the extent reasonably necessary to keep the area in a':clean and orderly condition; C. Placing, keeping in repair, and replacing any necessary appropriate directional signs, markers and lines; D. Operating, keeping in repair, and replacing, where necessary, such artificial lighting facilities as shall be reasonably required; all of which shall be separately metered to the Parcel. on which they are located; E. Maintaining all landscaped areas, repairing automatic sprinkler systems and/or water lines and making replacements of shrubs and other landscaping as is necessary; F. Maintaining and repairing any and all walls, common storm drains, utility lines, sewers and other services which are necessary for the operation of the buildings and improvements within the Shopping Center; and G. Maintaining free and unobstructed access to and from its Parcel and the adjoining portions of the Shopping Center and to and from its Parcel and the streets adjacent thereto. -7- m BOOK PAGE a_ - - - - - - - -- - - - -- - - - Notwithstanding anything to the contrary contained _ herein, neither the Owner of Parcel One nor the Owner of Parcel Two shall be required. to develop its respective Parcel; provided., at such time. as any development work is commenced it shall thereafter be diligently prosecuted to completion to the boundary lines of the Parcel being developed and the streets and ways adjacent thereto, except: (i) the Owner- of. Parcel Two shall not be required to pave that portion *of Parcel Two designated as "Green Area One" on the Site Plan it being - acknowledged by the Parties that the Owner of Parcel Two desires to reserve Green Area One for future building expansion; and (ii) the Owner of Parcel Two shall not be required to pave that portion of Parcel Two designated as "Green -Area Two" on the Site Plan until such time as it desires or i.s required to develop Green Area Two for parking purposes. The Owner of Parcel Two shall seed and .maintain Green Area One and Green Area Two, respectively, as landscaped areas until it commences the foregoing development. In the event the Owner of Parcel One or the Owner of Parcel Two, as the case may be, ( "Developing Owner") elects to..develop its Parcel and in connection therewith to make temporary improvements on the Common Area of the other Owner'._a Parcel, the Developing Owner shall-give notice of its election to the other Owner ( "Non-Developing Owner"), which notice shall specify the nature of and the timetable for completion of temporary' improvements upon the Non-Developing Owner' s Parcel. Unless the Developing Owner receives a written objection from the Non-Developing Owner within fifteen (15) days following its receipt of such notice, the Developing Owner may commence construction of temporary -paving. and other temporary improvements upon the Common Area of the Non-Developing Owner' s Parcel in the manner depicted on the Site Plan; provided, such improvements shall be made at the sole cost and expense of the Developing Owner; and further provided, the Non-Developing Owner may remove or demolish such temporary improvements at such time as it elects to develop its Parcel. The Parties acknowledge that the Non-Developing Owner may not unreasonably object to the construction' of temporary improvements upon the Common Areas of its Parcel. 6. Restrictions. A. Use Restrictions. The types of uses permitted in the Shopping Center shall be of a retail and/or commercial nature as found in Shopping Centers of a similar size and quality in the metropolitan marketing area in which the Shopping Center is located; provided, nothing contained herein -8- BOOK PAGE y shall be construed to require ASPI, Wal-Mart or any Affiliate to operate any form of business in the Shopping Center. ` None of the uses listed below shall be conducted in the Shopping Center without the prior written consent of all Owners. This restriction on uses shall be a servitude upon the entire Shopping Center and shall be binding upon any person acquiring any interest in any part of the .Shopping Center. The decision to consent shall. be in the sole discretion of such .Owners. The uses prohibited are: theaters, flea markets, head shops, reading rooms, libraries, pornographic shops, adult bookstores, bowling alleys, skating rinks, bars or taverns (except. as an incidental. use to a restaurant primarily devoted to the sale of food for consumption on-premises) , massage parlors, car wash, gyms, automotive repair facilities, dance halls, billiard or pool halls, game rooms or arcades (provided that video game rooms operated as an incidental use. to a restaurant and. not occupying- more than five percent (5%) of the space occupied by such restaurant shall -be permitted) , schools,* or the renting, leasing or- sale-or displaying for the purposes of renting, leasing -or sale of .any motor vehicles, boats or trailers. No building providing drive-in, drive-up or drive-through customer service shall be constructed or operated-- in the Shopping Center, unless the Owners have first given their written approval to the location, parking and drive lanes of such facility and the effect such orientation would have upon traffic flow within and to and from the Shopping Center. B. Parking Restrictions. Unless otherwise required by law, there shall be no charge or other validation for parking in the Common Area without the prior written consent of all Owners in the Shopping Center. No persons, other than customers, employees and invitees of the occupants of the Shopping Center shall be permitted to park in the Common Area unless all the Owners give prior written approval thereto. C. Employee Parking. Specific areas within the Common Area of the Shopping Center to be used for motor vehicle parking purposes by employees of occupants of the Shopping Center may be designated from time to time by the unanimous written consent of the Owners and ASPI and Wal-Mart (or an Affiliate, if any) so long as they have any interest in the Shopping Center. In the event employee parking areas are designated as provided herein, employees of any Owner, tenant or other occupant if any building in the Shopping Center shall -9- BOOK PAGE use only those portions of the Common Area designated for such employee motor vehicle parking purposes. The authority herein granted shall be exercised in such a manner as not to discriminate against any Owner or commercial establishment in the Shopping Center. D. Parking Ratio.. Each Parcel shall be maintained with a parking area sufficient to maintain not less than five point three (5.3)' parking spaces for each one thousand (1, 000) square feet of Building Area thereon. 7. Signs. Each Owner shall have the right to maintain such signs on the interior of buildings located on its Parcel as it desires, whether or not such signs are visible from the exterior. As permitted by local ordinance and other applicable governmental regulations, each Owner shall have the right to erect, maintain and replace signs on the exterior of buildings located on its Parcel; provided, in no event shall signs be located on the roofs (excluding canopies so long as no sign is erected on a canopy which sign will extend above the height of the building roof) of any buildings in the Shopping Center without the prior written consent of all Owners. The Owner of Parcel One shall have the right to construct one (1) free-standing pylon, monument or other sign at the location designated on. the Site Plan as "Parcel One Sign" . The Owner of Parcel Two shall have the right to construct one ( 1) free-standing pylon, monument or other sign at the location designated on the Site Plan as "Parcel Two Sign" . The Owner of -Parcel One and the Owner of Parcel Two shall each maintain their respective pylon, monument or other free-standing signs in good condition and repair. Except as expressly permitted herein, there shall be no pylon, monument or other free-standing signs in the Shopping Center without the prior written approval of all Owners. 8. Indemnification. A. Indemnification of Owners. Each Owner (and any Affiliate) agrees to indemnify, hold harmless and defend all other Owners (and any Affiliate) from all claims, actions, liabilities, damages, expenses and judgments, including, but -10- BOOK PAGE not limited to, attorneys' fees, reasonable investigative and discovery costs, court costs and all other sums on account of any injury to persons, loss of life or damage to property • occurring on any Parcel owned by each such indemnifying Owner (including within any building located thereon) and- on the streets and sidewalks adjacent thereto or arising from or connected with the use, non-use, condition or occupation of such Parcel, streets or sidewalks, which are not caused, in whole or in part, by the negligence of the Owner (or any Affiliate or its agents, contractors or employees) claiming such indemnification. B. Waiver of Certain Rights. Each Owner- (and any Affiliate) , tenant, subtenant and occupant of the Shopping Center hereby waives any rights it may have against any other Owner (and any Affiliate) , on account of any loss or damage occasioned to each. Owner, or any Affiliate, as. the case may be, their respective Parcels (including buildings and contents of buildings thereon) or to other portions of the Shopping Center, arising from any risk generally covered by fire and extended coverage insurance whether or not such an insurance policy is maintained or there are insurance proceeds sufficient to cover the loss. Each Owner hereby waives any right of. subrogation that it may have against the other Owners (and any Affiliate) in connection with any risk or claim covered by such fire and extended coverage insurance and .shall procure from its insurers under all policies of fire and extended coverage insurance a waiver of all rights of subrogation which .the insurers might otherwise have under such policies. 9. Liability Insurance. A. General Coverage and Limits. Each Owner agrees to maintain or cause to be maintained liability insurance against claims for bodily injury, death. or property damage occurring on, in or about its Parcel (including within the buildings thereon) and the streets and sidewalks adjacent thereto, with a "Combined Single Limit" (covering bodily injury liability, death, and property damage) in any one occurrence of not less .than One Million Dollars ($1,000,000.00) . Such insurance may be in the form of blanket liability coverage applicable to the Owner' s Parcel and other property owned or occupied by the Owner or the party carrying such insurance so long as such blanket policy does not reduce the limits or diminish the coverage required herein. -11- BOOK 0 PAGE 9 Each Owner shall have the right to satisfy its insurance obligations hereunder by means of self-insurance to the extent of all or part of the insurance required hereunder, but only so long as the Owner (or Affiliate) so self-insuring shall have a net worth of at least Fifty Million Dollars (t50,0001000) . Such Owner or party shall, upon request, provide the other Owners with evidence of such coverage and/or a description of any plan of self-insurance being used. Any deductible under any policy of insurance in excess of Five Thousand Dollars (t5, 000) shall be deemed self-insurance. B. Coverage and Limits *During Construction. During the period of construction of a building on any Building Area or "the performance of any offsite or onsite work in or about the Common Area, the Owner so constructing or performing agrees it will maintain or cause to be maintained insurance covering such construction taking place which will insure against liability for bodily injury, death and property damage with limits, for one occurrence, with a "Combined Single Limit" ' (covering bodily injury, death and property damage liability) of not less than Five Million Dollars ($5, 000, 000.00) . The foregoing obligation may be imposed upon a general contractor, if any. Such insurance may be- in the, form of blanket liability coverage applicable *to the Owner' s Parcel and other property owned or occupied by the. Owner or the party carrying such -- insurance so long as such blanket policy does not reduce the .limits or diminish the coverage required herein. Each Owner shall have the right to satisfy its insurance obligations hereunder by means of self-insurance to the extent of all or part of the insurance required hereunder, but only so long. as the Owner (or the Affiliate) so insuring shall have a net worth of at least Fifty Million Dollars ($50,000,000) . Such. Owner or party providing self-insurance shall, upon request, provide the other Owners with evidence of such coverage and a description of any such plan of self-insurance. Any deductible under any plan of self-insurance in excess of Five Thousand Dollars ($5, 000) shall be deemed self-insurance. C. Performance of Indemnity Agreements. All policies of insurance required under this Article shall insure the performance of the Owner insured thereunder of the indemnity agreements contained in the Article herein entitled "Indemnification" and shall contain a provision that the insurance company will give all Owners twenty (20) days advance written notice of any cancellation or lapse, or the effective date of any reduction in the amounts or scope of coverage. Each Owner shall deliver to the other Owners, upon demand, a -12- BOOK eQ Q 9 PAGE a sa certificate from the applicable insurer that such insurance required in this Article is in full force and effect and that such insurance insures the performance by the Owner insured of the indemnity agreements to limits not less than those specified in this Article. Each Owner shall promptly notify any other Owners of any asserted claim. with respect to which such Owners are or may be indemnified against hereunder and shall deliver to such Owners copies of process and pleadings. 10. Taxes. > Each Owner shall pay or cause to be paid direct to the tax collector when due, the real property taxes and other special taxes and assessments assessed against the. property owned by such Owner, including the portion of the Common Area owned by such Owner. In the event any Owner fails at any time to pay before delinquency its taxes or. assessments on any portion of the property in the Shopping Center (which taxes or assessments may become a lien on any of the Common .Area) , then any other- Owner may pay such taxes and assessments together with interest, penalties, and costs, and in any such event the Owner obligated to pay such taxes and assessments shall promptly reimburse such other Owner for all such taxes and assessments, interest, penalties, - and -other charges and until such reimbursement has been made. The amount thereof shall constitute a lien and charge on the property hereinabove described of the defaulting Owner. 11. Damage or Destruction. In the event any building in the Shopping Center is damaged or destroyed by fire or other casualty or any other cause whatsoever, the. Owner of the Parcel upon which such building is . located may, in its discretion, tear down, restore or rebuild the damaged building. If an Owner determines to tear down a damaged building, such Owner shall either rebuild on the same location .or leave and maintain the Parcel on which the building was located in a smooth and level condition, free and clear of all refuse and sealed against dust. In the event the Common Area of the Shopping Center, or any portion thereof, shall be damaged or destroyed by fire or other casualty or any other cause whatsoever, the Owner of the Common Area so damaged or destroyed shall proceed with due diligence to restore such Common Area to a condition to permit. vehicular parking (in the manner required by this Agreement) and free and safe vehicular and pedestrian access and circulation in the Shopping Center and to and from all streets adjacent thereto. BOOK PAGE oZJr 12. Consent, Approval and Other Rights of an Affiliate. In the event an Affiliate is leasing or otherwise holding all or a portion of Parcel One or Parcel Two, as the case may be, pursuant to a sale/leaseback or other similar transaction which gives the Affiliate a right to occupy all or any portion of Parcel One or Parcel Two, as the case may be, pursuant to a recorded instrument: (i) the Affiliate shall be deemed to hold jointly with the Owner of Parcel One or Parcel Two, as the case may be, all of such Owner' s rights of consent and approval which are created by this Agreement and any consent or approval given hereunder by such Owner shall not be effective without the consent or approval of the Affiliate; .(ii) any rights to enforce this Agreement or cure defaults under this Agreement which are herein granted to the Owner of Parcel One or Parcel Two, as the case may be, shall be deemed to be also for the benefit of the Affiliate and the Affiliate may exercise such rights on its own behalf and without the joinder of: the Owner of Parcel One or Parcel Two, as the case may be; and (iii) this Agreement may not be amended or terminated without the prior written consent of the Affiliate and any waiver of rights hereunder by the Owner of Parcel One or Parcel Two, as the case may be, shall not be effective as against the Affiliate unless "such waiver is also obtained from the-Affiliate. , 13. Eminent Domain. A. Owner' s Right to- Award.. Nothing herein shall be construed to give any Owner any interest in any award or payment made to any other owner in connection with any exercise of eminent domain or transfer in lieu thereof affecting any other Owner' s Parcel or giving the public or any government any rights in the Parcels. . In the event of any exercise of eminent domain or transfer in lieu the of any part of the Common Area located within the Shopping Center, the award attributable to the land and improvements of such portion of the Common Area shall be payable only to its Owner, and no claim thereon shall be made by any other Owner. B. Collateral Claims. All other Owners or persons having an interest in the Common Area so condemned may file collateral claims with the condemning authority for their losses which are separate and apart from the value of the land area and improvements taken. C. Tenant' s Claim. Nothing in this Article shall prevent a tenant from making a claim against an Owner pursuant -14- BOOK ao9 PAGE a54 to the provisions of any lease between the tenant and Owner for all or a portion of any such award or payment. D. Restoration of Common Area. The Owner of each portion of the Common Area so condemned shall promptly repair and restore the remaining portion of the Common Area so owned as near as practicable to the condition of the Common Area immediately prior to such condemnation or transfer to the extent that the -proceeds of such award are sufficient to pay the cost of such restoration and repair and without contribution from any other Owner. E. Restoration of Building Area. In the event- any. building located in the Shopping Center is condemned and the Owner of the building chooses not to restore it, then the Owner of such building shall remove all debris and restore the Common Area surrounding such building; provided, in carrying- out this obligation, the Owner shall not be required to spend any amount in excess of that awarded or paid by or on behalf of the condemning authority to the Owner. 14. General Provisions. A. Inurement. This-- instrument and the easements, servitudes, covenants, restrictions, benefits and obligations created hereby shall inure to the benefit. of and be binding upon each Owner and its successors -and assigns; provided, if any Owner conveys any portion or all of its interest in any Parcel owned by it, such Owner shall thereupon be released and discharged from any and all further obligations under this Agreement as it had in connection with the property conveyed if the buyer assumes in writing all of such obligations; and provided further, no such sale shall release such Owner from any liabilities, actual or contingent, existing as of the time of such conveyance. B. Duration. Except as otherwise provided herein, this Agreement shall remain in full force and effect for a term of seventy-five (75) years from the date hereof. C. Injunctive Relief. In the event of any violation or threatened violation of any provision in this Agreement, any Owner (and any Affiliate) shall have the right, in addition to any other remedies herein or by law, to enjoin such violation or threatened violation. Notwithstanding the foregoing, tenants in the Shopping Center, other than any Affiliate, shall not have the foregoing right of injunction but shall rather be -15- BOOK PAGE =5 • r - limited to their rights granted by law and by their respective leases. D. Right to Cure. Should any Owner fail to timely perform any of its obligations hereunder and thereafter fail to perform such obligation within fifteen (15) days of its receipt of any other Owner' s written demand therefor, the Owner giving such notice shall, in addition to any other remedy provided at law or in this Agreement, have the right (but not the obligation) to perform -such obligation on behalf of the defaulting Owner and the defaulting Owner shall reimburse the curing Owner for the cost of performing such work within ten (10) days- after- receipt of billing therefor and proof of payment thereof. In the event the defaulting Owner does not reimburse the curing Owner within such- ten (10) days, the curing Owner shall have (a) the right to exercise any and all rights which such curing Owner might have -at law to -collect the same, and (b) have a lien on the property owned by the defaulting Owner to the extent of the amount paid by the curing Owner, but not reimbursed by the defaulting Owner, which amount shall bear interest at the Interest Rate from the date of billing until paid. Such lien- may- be filed for record by the curing Owner as a claim against the defaulting--Party, in the form required by law, in -the office where mortgages are recorded, which lien shall contain at least the following information: ( i) the name of the lien claimant; (ii) the name of the defaulting Owner; (iii) a description of the work performed on behalf 'of such Owner and a statement. itemizing the cost thereof; and (iv) a description of the property being liened. The lien so claimed shall attach from the date of recordation in the amount claimed by the Owner curing the default and may be enforced and foreclosed in any manner allowed by law, including, but not limited to, suits to foreclose a mortgage or mechanic' s lien under the applicable law or laws of the State of Iowa. Such lien, when so established against the real property described in such lien, shall be prior and superior to any right, title, interest, lien or claim which is attached to such real property after the time of recording the claim of _lien. -16- BOOK PAGE - E.• Modification. This Agreement may not be modified in any respect whatsoever or rescinded, in whole or in part, ,except -by a writing executed by Owners of- the Parcels containing at- least seventy-five percent (75%) of the total square footage of the Building Area in the Shopping Center and . duly recorded.. F. Not a Public Dedication. Nothing herein contained shall.be deemed to .be a gift or dedication of any portion of the Shopping Center to the general public or for any public.-purposes whatsoever, it being the intention of the Declarants that this Agreement shall be strictly limited to and for the purposes herein expressed. G. Breach Shall Not Permit Termination. No breach of this Agreement shall entitle any Owner to cancel, rescind or otherwise- terminate this Agreement, but such limitation shall not. affect in any manner, any other rights or remedies which such Owner may have hereunder by reason of any breach -of this Agreement. H. Non-Merger. So long as ASPI, Wal-Mart or any Affiliate has''any interest in any Parcel in the' Shopping Center, this Agreement shall not be subject to the doctrine of merger., even though the underlying fee ownership to such Parcel( s) , or any parts thereof, is vested in. one party or entity. I. Attorneys' Fees.. In the -event that legal proceedings are brought or commenced to enforce any of the terms of this Agreement against any Owner or other party with an interest in the Shopping Center, the successful party in such action shall then- be entitled to receive and shall receive from the- defaulting Owner or party a reasonable sum as attorneys' fees and costs, to be fixed by the court in the same action. J. Notices. Any notice or demand given or served by one Owner to another shall not be deemed to have -been duly given or served unless in writing and forwarded by certified or registered mail, postage prepaid, or by another commercially recognized means of delivery, addressed as follows: ASPI: American Stores Properties, Inc. 444 East 100 South P.O. Box 27127 (84127-0127 ) Salt Lake City, Utah 84111-1897 Attn: Real Estate -17- BOOK PAGE _ WAL-MART: Wal-Mart Properties, Inc. 702 SW 8th Street P. 0 Box 1116 Bentonville, Arkansas 72712 The person and the place to which notices are to be mailed may be changed by the Owners by written notice to the others. Notices shall be deemed effective upon receipt thereof. K. Severability. If any term or provision of this Agreement or the application of it to any person or circumstance shall to. any extent be invalid or unenforceable, the remainder of . this Agreement or the application of such term or provision to persons. or circumstances other than those as to which it is invalid or unenforceable shall not be affected thereby, and each term and provision of this Agreement shall be valid and shall be enforced .to the extent permitted by law. L. Counterparts. This Agreement may be executed in * any number of counterparts, each of which shall for .all purposes be deemed an original and all of which together shall constitute but one and the. same instrument, and shall become effective only upon execution of one or more of, such counterparts by each of the Declarants. M. Pronouns. When required by context, the singular shall include t e p ural, and the neuter gender shall include a person, corporation, firm, association, or other business arrangement. N. Captions. The captions in this Agreement are for convenience only and do not constitute a part of the provisions hereof. 0. Not a Partnership. The provisions of this Agreement are not intended to create, nor shall they be in any way interpreted to create, a joint venture, a partnership or any other similar relationship between the Declarants. P. Governing Law. This Agreement shall be construed and enforced in accordance with, and governed by, the law of the state in which the Shopping Center is located. 0. No Presumption. This Agreement shall be interpreted and construed only by the contents hereof and there shall be no presumption or standard of construction in favor of or against ant Declarant. -18- BOOK a09 _ PAGE . IN WITNESS WHEREOF, this Agreement has been executed as of the date first above written. AMERICAN STORES PROPERTIES, INC. , a. Delaware corporate v By _ President eel = ' -0 . Approved form as to fo . . f? S & effretary .bees,Waldo, Mcoonouyh rcck .�. x. • ` WAL-MART PROPERTIES, INC.. , a Delaware corporation By ATTEST: Secretary "WAL-MART" -19- BOOK Q 09 PAGE a s9 STATE OF UTAH ) ss. COUNTY OF SALT LAKE ) On the 16th day of August 1984, personally appeared before me Ralph E. Davis and Frederick P. McBrier who, being by me duly sworn, did say that they are the President and Assistant Secretary, respectively, of American Stores Properties, .Inc. , that said instrument was signed in behalf of said corporation by authority of ' its by-laws or a resolution of its board of directors, and said Ralph E. Davis and Frederick P. McBrier acknowledged to me .that said corporation executed the same. . 7 l • NOTARY PUBLIC �- .•`' P== •,r Residing at: ark City, IIt�h�,r My Commission Expires : cri; •, �: cj:, 11 12 87 4.0 .91rp. lit -20- BOOK a PAGE o_ STATE OF ss. COUNTY OF ) On the zz�_ day of Y e 1984 personally appeared before me �,La�-� and who, being by me duly sworn, did say that they are the and respectively, of Wal-Mart Properties, Inc. , that 'said instrument was signed in behalf of said corporation by authority of its .by-laws or a resolution of its board of -directors, and said l lU�2 and acknowledged to me that said 3 � � iporation executed the same. - W. - - : o• 1 g 4_.�•- .1 t; NOTARY PUE141c ''',�,�_�•.;' � .•' �i►a - Residing at- Sion Expires: 0673S EMH i -21- BOOK -C CL9_ PAGE + • :�,,. EXHIBIT "B" - --- ',r DESCRIPTION American Stores Properties, Inc. -Lot 1, Northwood Plaza First Addition A part of the. Northeast Quarter (NE-J) of the Southeast Quarter (SE;) ; AND a part of Lot Seven (7) , and a part of the vacated Frontage Road, located immediately East of Lot 7, in North Park Subdivision of the South-half (S}) of the Southeast Quarter (SEJ) ; all in Section 27 - T84N - 'R24W of the 5th P.M. , in the City of Ames , Story County , Iowa; de- scribed as follows : "Commencing at the Northeast (N.E. ) corner of the South- half (V-) of the Southeast Quarter (SEJ) of Section 27 - T84N - 11241ti of the: 5th P.M. , in the City of Ames , Story County , .Iowa; thence S 89° 09 ' 40" W, 70.01 feet along the north line of the _ S-4 - SE; of said Section 27, to the Point of Beginning; thence S 000 24 ' 28" W, 55.40 feet along the west line of Grand Avenue; thence West , 670.62 feet ; thence N 000. (Ti ' 00" W , 372 .35 feet along the east line of the West 60 feet of Lot 7, in _North Park Subdivision and that line extended North; thence S 88° '56 ' 00" E, 671.23 feet; thence South , 304.46 feet along the west line of Grand Avenue and along a line parallel with and 70 feet West of the east line of the SE-, to the Point of Beginning. " Lot contains : 245 ,666 square feet or 5 .640 Acres. Lot will be shown on the Administrative Plat. ���•i LANp�, Y �.•.• _ GCE` �- � Kenneth D. ianbsi4A P.E. ,L.S 813a row► j. BOOK PAGE EXHIBIT "C" _ DESCRIPTION Wal-Mart Properties , Inc. Lot 2, Northwood Plaza First Addition ~ A part of. Lots Seven (7) and Eight (8) , in North Park Sub- division of the South-half (SJ) of the Southeast. Quarter (SEJ) of Section 27 - T84N - R24W of the 5th P.M. , in the City of Ames , Story County, Iowa; EXCEPT the West 60 feet thereof; and including part of tie vacated Frontage Road, lying East of Lots- 7 and 8, in North Park. Subdivision; described: as follows "Cummenei.ng at the Northeast (N.E. ) corner of the South-half (S•'.) of the Southeast Quarter (SEJ) of. Section 27 - T84N - R24W of the 5th P.M. , in the City of Ames , Story County , Iowa; thence S 890 09 ' 40" W , 70.01 feet along the north line of the S! - SEJ of said Section .27; thence. S .00° 24 ' -28" W,• 55.40 feet along the west line of Grand Avenue, to: the Point of Beginning; thence con- tinuing•S 00° 24' 28 W', - 577-.00 feet along the west line of Grand Avenue; .thence S 89° 10 ' 55" W, 666.41 feet along the north line of 30t11 Street ; thence N 00° O1' 00" W, 586.50 feet along the east line of the West 60 feet of Lots 7 and 8, in North Park Subdivi- sion ; thence East , 670.62 feet to the Point of Beginning._" - , Lut contains : 388,874 square feet . or 8.927 Acres Parcel is subject to a 20 foot "bicycle. path easement" along the east side, as recorded in Book 203 , Page 172 , dated: September 12, 1983. Lot will he shown on -the Administrative Plat. F b uko a ��.• e; 1 81 CIZ/7 a: * 'Kenneth D. Janss P.E. L.S . 1oaI '. BOOK 05 PACE � r