HomeMy WebLinkAbout1994-08-16 Easement Grant & Agreement This document was prepared by )
and after recording should be }
returned to- }
Michael E. Smetana, Esq. �
MKS, Attorneys at Law }
11 East Ontario Street )
Susie 1450 )
Chicago, Illinois 60611 }
}
(THIS SPACE RESERVED FOR RK RDING PEJKPOSBI
EASEMENT GRANT
AND
AGREEMENT
By and Between
AMERI AN STORES PROPERTIES, INC.,
a De[a acre corporation
and
KEBB PROPERTIES, INC.,
a Massachusetts corporation
DATE: , 1997
LOCATION. 525 Turnpike Street
and 565 'Turnpjkc, Street
North Andover, MA
STORE NO- 18-330
DRAFTDAl'ED. . uAw 10, 1997
TABLE OF CONTENITS
page
€lei aiinns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1 .1 ASPI &ffifi& . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1 .2 Initial Walkway_ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1 .:3 Qwner or Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1 .4 Parcel or Parcels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.5 1+'V I€ ay lmprovernents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1 .6 Walkway ay Parcel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
. C,ranto f Ejsement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.1 Kebb'sGrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A5Pf Walkway Easement . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Right of Entry , . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
,2 A5P1's Grant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Kebb Walkway Easement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
.3 �R.neral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3. Duratic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4. Use f Easements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.1 Yyalk ay Easement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.2 Eight of Fnt!)r . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5. a i nten a nce a n n5truct€ n . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5,1 Maintena . .and.. o.ngrudiort...Obligation . . . . . . . . . . . . . . . . . . 7
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Maintenance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5.2 Maintenance.arid onsta-uctiori Contribution . . . . . . . . . . . . . . . . . . . . . .
General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Kebb'� Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Billing and Paymefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
, Resefyation of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6,1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6,2 1 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
. Insurance �r ..li�r�er �rrificatin€� . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
7,1 Jr€dentlnification 10
DRAFTDAirD: JuNEIO, 1997 i
7.2 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Liability Insurapce Coverage and Limits . . . . . . . . . . . . . . . . . . . . . . . . . 10
Contractor's Insurance . . . , . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Waiver of Certain Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . T1
General Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Performance of Indernnity Agrremeats . . . . . . . . . . . . . . . . . . . . . . . . . . 12
• D Fe r Q struction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
9. Ii3ent main . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
9,1 Owner's Right to Award . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
9.2 Collateral Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
r�lt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
10.1 € fight o Curd . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
10.2 Inju ctive Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
-
10.3 Brea Shall Not PernA Tormination . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
10.4 IgoEirnitationofRert-cedi s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
11, Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
12. Attorneys' F.M. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . , . . 14
13. Modification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
14. Gen. ral Provis.t . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
14,1 #dot a Pub IiC- Dedicatjon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
14.2 Severabi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
14.3 Pronou . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
14.4 C-aptior . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
14.5 Not aPartn r.$.bi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
14.6 Ciovorning_. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
14.7 NoPres€ Qt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
14.8 Inurement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
14.9 Ecto el._ ifi , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Exhibit rr*" Site Ilan
Exhibit r,t'3l, ASP[ Parcel - Legal Description
Exhibit "C" Kebb Parcel - Legal Description
Exhibit it " Walkway ay Marcel - Legal Description
,VA HMENT GRANT AND AGREEMENT
This Easement Grant and Agreement ("Agrepmont") is made this day of
1997, by I EBB I• ROPERTIES, INC,, a Massachusetts corporation ("Kebb") and
AMERICAN STORES PROPERTIES, INC., a Deiaware corporation ("ASPI"), also "Parties" or
RECITALS.
A. This Agreement is made with respect to that certain real property commonly
known as 525 and 565 Turnpike Road, Town of North Andover, Courity of Essex, State of
Massachusetts, which property is depicted on the site plan attached hereto as Exhibit A {"`S
EjsI?Ft) ("Enttir ....E "):
B. Kebb is the fee simple title holder of the real property commonly known as 565
Turnpike Road, North Andover, Massachusetts and legally described on E hibi {"IC�E�
") which is part of the Entire Site.
C. ASP[ is the fee simple title bolder of that certain real property commonly known
as 525 Turnpike load, North Andover, Massachusetts and legally described on Exhibit C
("ASPI Parce. ") which is pair of the Entire Site. Together, the Kebb Parcel and the ASPI Parcel
constitute the En#ire Site.
D. The Parties desire to grant for the benefit of the other, and their respective
successors and assigns, certain easement rights for the nor}-exclusive use of various portions
of the Entire Site for pedestrian irigress and egress as more fury set foi#h below.
NOW, THEREFORE, in consideration of this sure of Ten and o/100 Dollars ( 10.00)
the mutual covenants and agreements herein contained and other good and valuable
consideration, the sufficiency and receipt of which are he reby ack now Iedge, the Parties agree
as follows:
1, Defini.tiL)M. The following terms shall 1)ave thc, meanings specified below:
1.1 65PI Al-fiIiate, Any entjty cc)nt ro I I i n g, coiitreIled by or Under corr mon
control with API.
1,2 nitiai Walkway Im r ve ,t5. Thr- pedestrian i-ir gi= and other
improvements of the Walkway ay Parcel as shown on the Site Plan.
D rrrDATFD. J AvE 10, 1997 1
1.3 Owner or Owners, The fee simple title hoIder(s) of the En ire Site or any
portion thereof.
IA f mi nr Pa..__...rcels. The Kebb Parcel, the ASPI Parcel and portions thereof.
1,5 Walkway Improvements. 'The pedestrian 6?i and other walkway
i fn pl-overn ents now or hereafter constructed on the Walkway Rarcel, inCI Lid ing btit not Iirnited
to the Initial Walkway Improvements.
1,6 Walkway Parcel. A parcel of Iand, being a portion of the Entire Site, as
shown as "Walkway Parcel" on the Site Plan and legally described on Exhibit..".f�".
. G ran t of E a sem ent.
2.1 ebb's Grant.
(a) ASPI Walkway Easement. Subject to the provisions of this Agreement,
Kebb hereby grants to ASPI far the benefit of the ASPI Parcel a non-e cIusive ea some nt
over, across and up011 that portion of the Walkway Parcel located on the Kebb Parcel
for the purpose ofcantinuous, unobstructed ingress and egress of pedestrian traffic on€y
to, from and between the ASPI Parcel and the Kebb Parcel {",GASP€ Walkway
E�es -merit"�.
(b) anst�'uckion... as. .rrren.t. Subject to the provisions ofthis Agreement,
Kebb hereby grants to ASPI for the benefit of the ASPI Parcel a non-exclusive easernerrt
over, across, upon and under that portion of the 1+ a[k ay Parcel located on the Kebb
Parcel and sticb other portions of the Kebb Parcel as may be reasonably required for
the construction of the Initial Walkway lmprovements (defined later) ("Construction
Faserrie
(c) Right of E ntry. Subject to the provisions of this Agreerrrent, Kebb hereby
grants to ASPI for the benefit of the ASPI Parcel the right, permission and authority to
enter upon such portions of the Kebb Parcel as may be reasonably required to perform
Its obIi gat ions or exercise. its rights under this green)ent (" PI's Irntry Easement").
2.2 A .PI.'.s.._ .ran.k.
Kebb Walkway Easement. Subject to the provisions of this Agreement,
ASPI grants to Kebb for the benefit of the Kebb Parcel a non-exclusive easement over,
across and upon that po inn of the Walkway Marcel located on the ASH Parcel for the
purpose of continuous, unobstructed ingress and egress of pod estrian traffic only to,
#ram and bet een the ASPI Parcel and the I ebb Parcel{"Kebb Walkway Easement").
DRA F T DA TFn: JUNFs 10, 1997 2
1
23 General. Except as otherwise expressly provided in this Agreement, no
grant of easerrkent set forth herein scull be deemed to obligate either- of the Ow11ers to
install or rnaintain any improvements or) any Parcel,
3. Qua- ' . Except as otherwise expressly provided herein, the easernents
established herein shall be perpetual. If any portion of the Walkway ay Parcel is dedicated and
accepted by a public a u th o ri ty with judsdiction over- such Parcel, the easement rights herein
granted with respect to skich portion so dedicated sjhaII thereupon terMinate,
4. Use f F , it n ,
4.1 balk ay.Ea5ernenk. The ► alk ay Parcel and Walkway Improvements are
inteMed to provide pedestrian access for the Owners between their respective Parcels, The
Owners mutually agree and covenant as follows: 0) neither Owner shall construct or erect
any building, structure or other irnp rove ment on the WaIk ay Parcel except for the Walkway
Improvements, 00 neither Owner shall change or alter the grade or ground level of the
Walkway Parcel without the other Owner's prior written consent, which shall not be
unreasonably withheld, and (iii) neither Owner shall unreasonably intt-rfere± with the other
Owner's use of the WaNway Parcel or the rights of others to whom rights to use such Parcel
have been granted or are hereafter granted
4.2 Eight of Entry. In connection with the Owners' respective rights of entry
hereunder, the Owners covenant and agree that any Owner- making such entry shall do so in
a manner so as to cause the least interference with the operation of the other Owner's Parcel
and the rights of such other Owner, its tenants, occupants and their invitees.
51 aintenance and Construction.
5A Jyiaintenance and Ccnstruction Obligations.
(a) API shall construct the Initial Walkway ay Irnprovements
as shown orgy the Site Plan In a good and workmanlike manner, and in accordance with
applicable laws.
(b) aintenanc. , ASP[ shall make necessary repairs and replacements to
the Walkway Improvements.
5,2 fyajotenance and Conc;trudion Contribution.
(a) Genera1. Except as otherwise expressly provided in this Agreement, each
DR,4FTDATED: Jum 10, 1997 3
Owner shall bear €ts own costs for any construction, maintenance, repair or
replacement of the Walkway Improvements. AS PI shall pay al casts incurred by A5-PI
in connection with the construction of the Initial Walkway Improvements.
M ebh'.i�i.l�uticn. Subject to the following terns and conditions,
ebb shall reimbui,se ASP I "Kebb'sShare" (defined below) of costs and expenses for
ASPI's maintenance, repair and replacement of the Walkway Improvements except
with respect to such maintenance, repairs and replacements arising from Kebb's
negligence, willful miscanduct or misuse of the Walkway Improvements, in Which
case, Kebb shall reimburse A PI for al€ of suer costs and expenses. "Kebb's..S.h r'�"
s€gall rrieas� lift}+ percent {50 l ) of A I'3's ont-of-packet casts and expenses incurred ire
connection With such maintenance, repair and replacement.
(c) Billing and Payment. All payments required to be crude under this
Section shaII be made within thirty { 0} days of a Owner's receipt of a balling therefor,
which billing shall include reasonably satisfactory evidence that such costs were
incurred and paid for (such as copies of bills, payment applications, invoices, receipts
and lien waivers) and such work was paid for and completed. Amounts owing
pursuant to this Section, if not paid when clue, shall accrue interest at the rate of
interest equal to the therx published "Prime Rate" of Citibank, N.A. (the Owners
acknowledging that such rate may not be the lowest or "best" rate) or the highest rate
permitted by law, whichever is lower from the date due unh[ the date of payment.
6. Reservation of lights.
61 Keb . Except as otherwise expressly provided to the contrary in th is Agreernent,
I ebb reserves the right, without obtaining the consent of AS I'€, provided that ASP€'s use of thte
rights here€n granted are not 1rnpaired, to grant easernents and other interests and rights in a
to that portion of the Walkway Parcel located on the Kobb Parcel.
6.2 API. Notwithstanding anything in this Agreeirient, ASPI reserves the right,
without obtaining the consent of I ebb, provided that Kebb's rights herein granted are not
impaired, to grant easements and other interests and rights in and to that portion of the
Walkway Parcel located on the ASPI Parcel.
7, lns ,fiance and Indemnification.
7.1 lade—m-nificatie",
Each Owner ("Indemnifying Owner') hereby indemnifies, holds harmless and agrees
to defend the other Owner (Indernnified Owner") fi-om and against all claims, damages,
DRAFT DATED. JuNL.-10, 1997 4
expenses (inc:luding without IIr citation, reason abIc, aItorneys' fees and reasonable investigative
aFId discovery costs), kiabiIities and judge etits can account of injury to persons, loss of life, or-
darxragn to property occurring in the Entire Sitr- and on the ways immediately adjoining the
Entire Site, caused by the active or passive negligence or wfl€ful m[sconduct of Indemnifying
.Owner, its contractors, subcontractors or terrains in the L-n#are Site, and its or their agents,
servants.or eir5pIoyees; providiod, the I nde in n 1 fy i ng Owner does not indernnify the Indemnified
Owner against any injury, foss of life or damage which is caused by the active or passive
negIigence or w iIIfuI misconduct of the Indemnified Par#y, er its contractors, subcontractors,
agents, servants or employees, The Owner obi i gat!ons under this Section 7.1 shal l srirvive the
expiration or termination of this Agreement with respect to claims arising on or before the
expiration or termination of this Agri-ement.
7.2 Insurance.
(a) Liability Insurance Covera e._ari{r l + .1 . Each Owner agrees to main(ain,
and/or came to be maintained, at no cost to the other Owner, liability insurance
insuring its Werests against claims for personal injury, bodily injury, death and
property damage occurring on, in or about the Entire Site and the ways immediately
adjoining the Entire Sate, with a "Combined Single Limit" (covering personal liability,
bodily injury liability and property damage liability) of riot less than Five Million
Dollars ($5,000,000,00) for total claims for any one occurrence.
The insurance limits irl this Section shall be subject to increase frorn time- t time by
such amounts as the Owners may reasonably agree: is necessary or desirable, as may be
evidenced by the practice of similarly situated properties.
(b) Contractor's.Irr.5.unam , louring the p riod of any construction on tl)e
Entire Site by ar at the request of any Owner, such Owner agrees to obtain or require
its contractors) to obtain and thereafter maintain so long as such constr uctiori activity
is occurring, at least the following minirnurn insurance coverage:
(a) 1 orkers' compensation - statutory Iimits;
(b) Employers' IiabiI fly- One Hundred Thousand dollars ($100,000,00); and
(c) Comprehensive General and Commercial Automobile Liability as follows: (1)
"Combined Single 1.met" (covering {personal injury liability, bodily injury
liability, and property daFn-,)ge liability) of not less than Five Million Dollars
{ S,OOO,C}00.00) for total c€airiis for any one occurrence; ( ) Indeptandent
Contractors' Liability or Owner's Protective Liability with the same coverage as
set forth if (1) above; (3) Products/Completed Operations Coverage which shall
be kept fn effect for two (2) years after completion of work; (4) "XCU" Hazards
Coverage, if applicable, (5) "Broad Form" Property Damage Endcrsernents; (6)
"Personal Injury" Endorsements, and (7) "Blanket Contractual Liability"
Endorsement.
if tJte construction activity involvos the use of another Owner's f arcef, then the Owner
"-of such Parcel shall be named as an additional insured and such insurance shalt provide that
the same shall not be canceled without at least thirty (:30) days prior written notice to the
named insureds.
{c} iv 'sFh . With respect to any loss or damage that may
occur to the Entire Site (or any i mprovernents thprron) or the respective property of the
Owners therein, arising from rxr)y peril customarily insured under a fire and extended
coverage insurance policy, regardless of the cause or origin, excluding wHiful acts but
including €tegligence of thr Owners, their agents, servants or empIoyee.s, the Ow rier
suffering such Toss ter damage releases thQ other- Owner from a]I c Iairns with respect to
such loss or damage whether or not such fire and extended coverage insurance is
maintained or there are insurance proceeds sufficient to cover sucks loss or damage;
and the Own rnutualIy agree that their respective insurance ccni pan ies shall I1ave
no right to subrogation against the other Owner on account of such loss, and each
Owner shall procure from heir respective insurers under all policies of fire and
extended coverage insurance a waiver of all rights of subrogation against the other
Owner- which the insurers might otherwise have under such policies.
(d) C;eneraI Provisions. Insurance coverage required by this Agreement may
contain the following elements, so long as the required coverage is not dii-nirtished, the
required Iirt-iits are not reduced, and the elements thereof are otherwise cornmercially
reasonable: a Owner's insurance program may include blanket, layered, umbrella,
convent ion a€ and/or- manuscript forms. of policies, as wall as retention levels ail loss
reserves which are charged against earnings or otherwise funded, and commercially
reasonable deductibles.
Ll port i-equest, each Owner shall cause cet#ificates of insurance reasonably evidencing
compI[ance with the requirements of this Article to be delivered to the other- Owner. The
insurance policies and ceitificates required by this Article shall require the insurance company
to fur-nis6 the other Owner, as the case may be, Mirky (30) days' prior written notice of any
cancellation or lapse, or the effective date of any reduction it) the amounts or scone of
coverage.
fe) Perforntancc, of Indemnity Agreement. All policies of IiabiIity insurance
shall ii3s€ i-e the performance by each Owner of the inderywity agreements contained
herein. Each Owner skull promptly notify the other Owner of any asserted clairn with
respect to which such Owner is or may be irrder nified against hereunder and shall
deliver to such other Owner copies of process and plead!rigs,
Di?AFTDATED: . uNF- 10, 1997
8. Da age.._.0 r D-sUa<t�. In the event any improvements required to be
maintained under this Agreement shall be damaged or destroyed by fire or other casualty or
any other cause whatsoever, the Owner then obligated to maintain the improvements so
damaged or destroyed shall forthwith proceed with due diligence to restore such
i ni provernents to substantially the same condo€on as existed irx medi ate Iy prior to such loss.
Such restoration sha€I be subject to re i f n b u rse m e nt as provided in Section i of th is Agre.emerit,
. Emln-ent Domain.
9.1 r er's Fight to Award. N oth i ng lie rein shall be construed to give airy Owner
any interest in arry award or payment made to any other Owner in connection with any
exercise of ernirtent 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 thereof of any part of the Entire Site, the award attributable
to the iand and improvements of such portion of thrs Entire Site shall be payable only to the
owner holding fee title thereto and no claim: thereon shall be made by any other Owner for
such land and improvements.
9.2 Cc I I a amLCIa#rats. All other Owners having an easement interest hereunder in
the Parcel so condemned may file collateral claims for the severance or disruption of same
with the condem ring authority for their losses which are separate and apart from the vaIue of
the land area and improvements taken,
0. _fault.
10.1 I € ht to tvrrre. Should any Owner fail to timely perform airy of its obIi gat ion s
her under and thereafter fail to perform such obligation within twenty (20) days of its receipt
of any otherOwner's rittei-i demand therefor, or if the failure is of such a character as to
require snore than twenty (20) days to cure and such Owner faits to use reasonable diIi go-nce
in curing such failure (sinless such failure shall threaten immediate material economic injury
or imminent danger to person or property, in which case no such cure period shall be
applicable), the owner giving such notice shall, in addition to any other remedy provided at
law, in equity or in this Agreement, have the right (but riot the obligation) to perform such
obligation on behalf of the defaulting Owner upon prior notice to 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 payint-nt thereof. In the event
the defaulting Owner does not reimburse the curing Owner within such ten (10) days, the
curing Owner sha€I Dave (i) the right to exercise any and all rights which suet curing Owner
might have at law to collect the same, and (ii) 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 small beat- interest at a rate equal to the than
publishers Federal Discount € ate plus four percent (4%) per annurn, or the. high-test legal rate
of interest, whichever is less, from the date of bilfing until paid. Such lien may be filed for
D AfTAiTr:L): JUNFs 10, 1997 7
record by the c.urrrig Owner as a claim against the defaulting Owner, irr the form required by
law, in the office wherein mortgages arc, recorded, which lieu shall contain at least the
following information,
(a) The name of the lien clairnant;
( ) The narne of the clefau€ting Owner;
(c) A description of the work performed on behalf of such Owner and a
statement itemizing the cost thereof; and
(d) A description of the property being Iiened.
Thr lieu so claimer shall attach fmm the date of rocordatiian in the arnount claimM by
the Owner curing the default and it may be enforced and foreclosed ire any manner aI[owed
by law, including, but not limited to, suits to forecCose a mechanic's lien, trust de(-d or
mortgage under applicable law. Such Tien, when so established against the real property
described in such Tier, shall be subordinate and inferior to any mortgage or lien then
encumbering Such property but, except as provided by law, shall be prior and superior to any
right, title, interest, lien or claim which may be or is acquired or attached to such real property
after the time of recording the claim of Hen.
10,2 1njunctl.ye. Relief. In the event of any vioCation or th4reatened violation of any
provision of this Agreement, airy Owner shall have the right, In addition to any other remedies
herein or by law provided, to enjoin such violation or threatened violation.
1 Breach Sl f3 Not Permit Termination. No breach of this Agreement shalC entitle
any Owrtei-to cancel, rescind or otherwise terminate this Agreement, but such Iimitation Shall
not affect in arty manner any other rights or rerriedies whichsuchOwner may have he�e+�i�d�r
l by reason of any breach of this Agreement.
10,E No Limitation of Remerf'te�. The various rights and remedies herein contained
and reserved to the Owners, except as otherwise provided in this Agreement, shall not be
considered as e clusive of any other right or remedy, but shall he construed as cumtjlative arts€
shall be in addition to every other r i�E Ay now or heieafker existing �t law, En ec�tiEty or by
statute. Igo delay or c)mission of the right to exercise any power or rem42dy shall impair any
such right, power or remedy or be construed as a waiver of any default or nonperformance or
as acgijiescence therein.
} Ido ' .es. All notices, requests, demands, and other communicatians (collectively,
e4Not '"} hereunder shall be in writing and given by (i) established express delivery service
which maintains delivery records, (Ii) band delivery, or(ii1) certified or registered mail, postage
prepaid, return receipt requested, to the Owners at the following addresses, or at such other
address as the Owners may designate by N otice in the above rr)anner:
RA r DotTFj): JuNE 10, 1997 8
TO API:
American Stores Properties, Inc.
444 East 100 South
Salt Lake Gty, Utah 84111
Attn: Legal Depattment
(18- 30)
MALLin g A f rc' s:
P. O, Box 27447
Salt Lake City, Utah 84127-0447
Am- Legal Department
(#18-330)
TO Iebb:
ebb Propenies, ITic.
565 Turnpike Road
North Andover, Massachusetts 01845
Attn:
Notices are effective upon rece€pt, or upon attempted delivery if delivery is refused or
impossible because of failure to provide a reasonable means for accomplishing delivery.
12, Attor ' Fees.
In the event legal proceed!ngs are brought a commenced to en€orce any of the terms
of this Agreement against any Owner or other person with an interest in the Entire Site, the
successful Owner Fn such action shall he entitled to receive and shall receive from the
defauIting Owner, a reasoriabie sum as attorneys' fees and costs, to be Axed by the court in
the same action,
13, Modi i n-
All negotiations and oral agreements acceptable to the Owners have been incorporated
herein. Except as otherwise provided herein, this Agreement may not be modified 111 any
respect whatsoever or rescinded, in whole a ire part, except by a writing executed by the
Owners and duly recorded,
14. General Provisions. ry
14.1 I of a Public Dedicat€on. Nothing heroin ccntained shall he deemed to be a gift
or dedication of any portion of the Entire Site to the general public or for any public purposes
hatsoevor, it be€ng the intent€on of the Owners that t h j s Agreement shaII be strictly Iif1)itE'd
to arld for the purposes herein exp€-essed.
14.2 5everabIIi: . If any term or p€-ov is-to n of this Agree€rtent or the appIication of €t
to any person or circumstance shall to any extent be invalid and unenforceable, the remainder
of this Agreernent or the application of such term or provision to per-sons or circumsta€ices
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.
14.3 Pronoun . When required by context, the singular shall include the plural, and
the neuter gender shall Include a person, corporation, firms, association, or other business
arrange€neat.
14.4 Captions. The captions in this Agreement are for convenience only and clo not
constitute a part of the provisions hereof.
14,5 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 Owners.
14,6 oye-rning Law. This Agreement shall be construed and enforced in accordance
with, and governed by, the law of the state in whirch the Entire Site is located.
14,7 No P ern ti n. This Agrr+er- ont shall be interpreted and construed only b
the contents hereof and there shall be no l)resuinption or standard of construction in favor of
or against any Owner.
14,8 Ir7€ arnent. `fleis Agreement and the easements, covenants, benefits and
obligations created hereby shall inure to the benefit and be binding upon each Owner and its
successors and assigns; provided, if any Owner conveys arty portion or all of Its interest in any
Parcel owned by it, such Owner shall thtereupon automatically be released and discharged
from any and all further obligations under this Agreement as it had in connection with the
property conveyed by it and the buyer dial I thereupon autornaticaI I be bound by al I of such
obligations accruing after such conveyance; and provided further, no such sale shall release
such Owner from any liabilities, actual or contingent, existing as of the time of such
conveyance. The easements, restrictions, benefits and obligations here-under shall create
mutual benefits and servitudes running with the land,
14.9 Esto ej Certificate. Each Owner agrees that upon request by arey other Owner,
it will issue to a prospective Ivnder of such other 0 ner or to a prospe tIve purchaser of such
other Owner's interest, an estoppel certificate stating:
(a) whether the Owner to whore the request has been directed knows of any
default by the rearresting Owner under this Agreement, and if there arcs known
defaults, specifying the nature thereof;
(b) whetherthis Agreernent has been assigned, mod jfied or arnended in any way
(arid if it has, then stating the nature thereon; and
{c} that to the Owner's knowledge this agreement as of that date is in fu#I force and
effect.
Such statement shall act as a waiver of any claim by the Owner- furnishing it to the
extant such claim is ba-Wd upon facts contrary to those asserted in the statement and to the
extent the clairn is asserted against a bona fide encurnbrancer or purchaser for value without
knowledge of facts to the contrary of those contained in the statement, and who has acted in
reasonable reliance upon the statement; however, such statement shall in no event subject the
Owner furnishing it to any Inability whatsoever, not ithstand!ng the ne l`€€gent or otherwise
inadvertent failure of such Owner to disclose correct and/or relevant information.
15. Effective...Qate,. This Agreement shall take effect upon the recording of this
Agreement with tho Recorder of Essex County, Massachusetts (the "Effe-cttve Date"). In the
event such transfer does not occur on or before days from the Mate hereof,
this Agreement shaII a utom ati ca I I y terminate without the execution of any other instrument.
THE SUBMISSION OF THIS AGREEMENT FOR EXAMINATION OR ITS
NEGOTIATION OTIATION OR THE NEGOTIATION OF THE TRANSACTION DESCRIBED t--IEREI
DOES NOT CON5TITUTE A CONTRACT, ARID THE EXECUTION OF THIS AGREEMENT BY
Kebb DOES NOT CONSTITUTE A BINDING CONTRACT UNTIL SUCH TIME AS THIS
AGREEMENT T HAS BEEN APPROVED BY THE REAL ESTATE COMMITTEE, EXEC TED B
AUTHORIZED OFFICERS OI PI AND DELIVERED TO Kebb.
(SIGNATURE PAGE FOLLOWS)
DR�tF7,DATED. JuNE 10, 1997 11
IN WITNESS ESS bVFIEREOF, this Agreement is entered into as of the clay and year first
written above.
AMERICAN STORES PROPERTIES, INC.,
a Delaware corporation
By
Executive Vice President
Attest:
Assistant Secretary
"ASPI"
KERB PROPERTIES, INC.,
a Massachusetts carporation
B
Its
Attest:
Its:
"`Kebb"
Drain DATED. JuNE 10, 1997 12
Sate Flan.
DpAn DA rED. Ju E 10, 199
EXHIBIT- "B"
ASK,Parce I - LegaI Description
E H I BIT "C„
t ebb Parcel - L.,2,gaj Qescro tr)n
EXHIBIT M"
Walkway Parcel„_.Legal Dge5cription
DrzAFf DATED: JuNE 10, M7
Nov 14 87 01 : 07p KEOB MRWOEMEMf , INC . 508OB7 -1148P . !
F A X COVER SHEET
KE38 MANAGEMENT qc
R soy
UE7w0W. Nov 24
F 5O&VWQ746
3/§c TC;
, m ay.me ;.m
] Brian Sheehy )
|^ Robert Stack ; November 14, 1997 _I
'Coke Canso 1 ORE!W a=Z |
708-786-3718
22mr R11AP FRmmmm: k7Asa ems_ r Your m&_ na
\�§Ekza
Nov 14 97 e1 : 07r KEBB MANAGEMENT, INC . r . 2
rhi5,jacurmentw p 2db ]
and after recofding should be ]
reftmed to, >
Michael b 5f-melana, [m. )
MKS. AtmrlleyS at Law |
211E2e On Ear emW )
Suite 14SO
Chk R %ram, 60611
LH 15 ±AcERESE RVMFQR REC OR f3i NG PUNYLDkw
[A5EMFN7 GRANT
AND
AGREEMENT
. By and Bexwcon
AkrmCAN OPROPERTIES, IN{,
a Delaware ciarporation
d
u
it
0
q uses ma� nr
DATE 1997
LOCATION: 5251m | Street
and 565lum am@
North �dovnr, MA
STORE NO-, 18-33n
DRAf-r DAT 2 Jv z z$ 1997
4 . �� . m-
. mr, . a. ar uq �*�
Nov 14 97 01 : 08P KERB MRNRGEMEN't , INC. 50BE;BV ;1?46 P . 3
EJ-S ENT. A i [] .AGME-MI i
fork
it
u
rrr�s-
This t:a5ernent C nt mtd Agreement i rem _ �"? �s
1997, by
A, FMCA S-FOREf) PRO IRTIES. 3M;_, a neIa►wa.re carporati0n "f'411LO-I" W
PZEQTA1.. :
A, This Agrt'P.Fnent i5 :Wade kvi?h rt-sp er t to that certain goal pfoper y Common iy
known as 525 and 565 Turnpike Road. Tcrwit of North Afidowr, County OF Essex, Stare of
Mas5acl',tisett5, which prop" k ciepir-tr on tl,e` 5kte piaf, attached heroto,�i Exjjjbj(,6 { 5jLe
S. KRbb is the fee Simple title holder of the real proppity cornmonly known as 565
Turnpi€ce Road, North Andover, Nlassac:hu54c � and Iugai;y rfc�scrlbed on �t
1' ") which iS part of the Eritire Site.
A5PI is the fee 0mple Vtie holder of that c2rkain real property commonly knows r
as 525 -Turnpike Road, NUFIh Andover, Ma5sachasett-, and legs}ly descrjbed on Exbiblt.,
("A fter") whrci) is pan of the Entire Site. Together, the Kebb P-ircel and the A5P! f arc:r*I
constitute the Entire Site.
The Parfies desire to grant for the beriefkt of the crtltef, and th0ir resPC Ove
successors end as%ign% certain ei5emer}t rights for the nori-f xxcl rslve use of varlUidS pottlom
of the En,,ire Sito for pedestri3in Ingress and cgr,,Ss as more fully set forth belovy.
NOW, T HER CF()RFr Ln r�onsicle rat ion of the Sum oT Ten aad No/100 0oIlors (�IU-00)
the -mu#mal covenaots and agreerrm€nh hereiri. contained and other good and valoable
c(�,rr5Fderation, the suffic€e7,Gy itfnd receipt of vv ic#i art, hPrF4)y ackno irsdge, tine Parties agree
as follows,
1, #i ri#� _ 'The fo1;o in terms 5hat1 have the aitinirigs spt i1`led below:
1. 1 API AM Uik. A€ry (,iaItity cont cut lirtg, C€rlkr)11cd by or wider Comr' on
i-ontfol with eksVh
192 inlual Wailky ay—hiprgvements. The pedestrian bra and usher
„ cf)verr'eo of the W.11k Ay !'arse! as '4hOWTr on the Site V1arr.
Dicvr DATLD. ,1Vlvr 10, 1997 1
Ncv 14 97 01 : 08P KEBB MANAGEMENT, INC. 508C3H?-374G p . 4
1,3 Qw net €r Owne The fee simple title holders) of the Entire Site(if ally
portion th ireof.
1 .4 ce r P t t The. Kebb Parcel, the ASH Parcel and portio€ls thert o&.
i.� ► !k m raveta fhe pedosrriar brill wid rather walkway
is rnp rovejne.t�4 q nc)w rya thereafter<Qr3tructed ors the t alkway Par'ral, ir�t'#t&ng blot not 4irriMd
to the initW Walk way Improve tents,
1.6 Walkway Pik, A parcel of lard, being a Purtjor,of tine Entire Site, as
shown as "Walkway Parcel" on the Site Plat) and legally described on
2 sarn ,n ,
2.1 Eabbr, G.. I:,
W ASPI Va ass Subject to the pro t ions of thk Agrfemer t,
Kebb hemby grants to ASPI for The fx:riok of the ASM Pa;-(-el a raorc-ex *e emernant
over, afros and apart Char portion of the Walkway Parse! located on t€ e Ke.bb PiticL-I
fora.he porpc"of contiguous, urxob5trucwd ingress and egress of pedestrian traffic:on]y
io, from and between the ASPI Parcel and the Kebb Parcel CASH WalkWaY
[I}� r aserrr Subject to the pmvirions of this Agreement,
Kebb hereby grakits to ASPi for the benefit of the ASPt Parcel a rtorr-oxcdusive easomevt
aver, zrro55, Upon and ixder that poniv) of the WaIk ay Parcel Iac.aktd on the. Kebt�
Parcel and gosh other portion!, of the Kebb Parcel as niay be reasenabky required for
the construction of the Ilittiak bola€}sway Iwprove:rtenis (dofiried later) ("QuEsFvrti-w
��rrf
(6 RlrhtD L r?, Subject to tha provisions of this Agreement, Kebb hemby
grants to ASPI for the benefit of the ASP1 Parcel thtt right, perm jssron aM avthcrtiy to
enter upon such porficns o€1&, Kiabb Parcel as rntly be. rnasooaably required to pedorm
its Ohl;1t,*w or exercise its rigtrrs tinder this Agree.merit f"'ASf's Fn[y. Ea njea").
KL-JAj Walkway p.me€xt. Subject !o the provisions of this Agfeer tent,
ASM grams to Kebb fof the benefit of the Kebb Parcel a non-exclusive easement over,
across and upofi that portion of the Walkway Parcel Iocated Oil the ASPI Parr-el for the
yjurpUas Of tcarxtirtUous, uncbsiructed ingress mid egress of pe&strian traffic usfly to,
from arui between the ASPI Parcel and the Kebb Parcel("Kebb Walkway Eat a€r,Ew"}.
DRA Fr DATED. JUJVE 10. 11797 2
Nov 14 51 0 t : 08p KERB #°1ANRGEMEN T , INC. 50IBS87- 374E P. 5
Qwnpr shall bear its GWn C-QMS (or any construction, r*1�irlterTarT�e, repair or
r't�placeawiit cif the 1 a1kway Irnprovemants, ASPI shall Pay a?I MSt5 :rkcrsrred by ASP1
In conne6on with the construction of the Initial Walkway CMPFoVef' cnt,.
f r Subject to tin $ ter s and condt#iaris,
Kebb 0kalI re-imhurse "'Keb 's Sir} etf ) of Hosts and expenses for
ASPi's rn inten,rnce, repay lacercnt of tht. W,)Ikway improvements except
wit respect t maintenance, pa rO replacements arlskig frufn 1{ebb's
rreg€; , wil ful n3iscondut-k or rnisk�se of tl3 Ikiwi Improvements, in which
, Kebb shall reirnburse ASM for all of suclfr costs am-expenses- "l�r�l�fr'ti,.Sl,.are"
51 aiII mean fifty percent M%) of ASPI's auk-of-packet costs and expen .- gd ;n
con bection with such mal Mena nce, repair and rep laccfnent.
(0 tlaf€i9 WIA X11Tcro11- A]I payments mquired to be made tjnder, this
edion sha€I be made within thi dy(30) (lays of a O ner% receipt of a bill ing thp-roFor+
whlEch billing shad Mclude reasonably satisfactory rvidence that such r.05,rs were
ificurrod and pair! for{such w, copies of 6 if].5, payment appi icarlon s, invoicr?s, receipts
aad fie , waiveW and such word€ was paid for and colnpleted. AMour}tS owing
ptIrSoan[ to this Suction, if not paid uriier# duo, shall acr-rui? interest at the rate of
interest equal to the uteri wblished "Prime Rats' of Citibank, N.A. (the OwFlers
ackno ledging that such rate may not be the lowest ar "best" rate) or the higbe5t raEe
permitted by law, whioi eve r €s low er f►am the date due until the date of payment,
5. FY fi
6-1 Except as iMlget%vhse expressiV provfded tothv-ccintrary in this Ag reef nent,
Kebb reserves the right, wi thou I obt,ai ring the conseW of ASP1. 1proyided thaE A5PI'S use of the
ri&s herein gramcd are not Impairi--d,to gfzrit easemeW5 and other interests aP)d rights in and
to that Portion of th,,� Walkway Parcet located -�in t€he Kebk" Parcel,
- 6,2 Ate- Not ith-standing anything in this Agreement, ASPI reservers the right"
wvithoul obtaining the consent of Kehb, pmvided that Kebb's rights herein granted are ntA
flnpaired, to grara ea5ernents and other interacts and rights in and 10 that portion of Ire
Walkway Parcel located on the ASP1 Parcel.
7. 1115uNIn ce. and lriderlin tj(,atIc)n.
7.1 rlrx�T3ifil' tire�,
Each Owner l" ndgmn f;ere-by iridefTPnifies, ItoW harMIe55 and agrees
to tinfend the other Owner Mndemi-1ified- w nee) from and againo ;Itl claims, darnages
r-T10 1060fC _-JI Kf -TKI3j 11CY' NAG 1 '0 +C -!TT
Nov 14 97 01I UBp KEBB MRNnGEMENT , INC. S08887-3746 P. B
expenses (in cfucfing VvithoUt II itari0n, red5ondble atiomeys, f!es and rc asonable inueit!g hive
atA discovery co-5t-}, liabilit{e5 and judgments on account of injury to perackn3,, lass of like, cr
davvzge to property occurring in The Entire Site and on the ways ommadiately adjoining the
Entire Site, caused by tie active Qr passive negiigence or wiltFui misconduct o€ IndemFlifying
Owns ?r, its corltracters, subcontractors or tenants in the l mire Site, dod its or their agent5,
*ery?lnts Or,0 Mp loyee5. pfavidedr the Iilderiinifyarig OWfleruOeS I10t rrld£'1Flnify The I Fidefi in died
Owner 39ao1151 arty injury, lass of Ilfo or damage which is, cAused by ire ai0ve ur pas!ove
ncgligence or wit€fur ttt€sconduct of the IndenmlfIed Pady, o;its confiractors, subornVactvr5,
agents, servants ov employees. The Owner obIiRaticons under this Section 7.t rhaI I survive the
orcpiratlOn Of ter rninat!on of#his o,,sreer>nent with re5per-t to claims wi5iitU vi1 ter irr!fore the
expifation or tiRrmi nation cF this Agreement.
7,2 in �r anc •
(a) iiability In ur nr and Limits. Each Owner agrees to maintain,
andlor cau�ci to be maintained, at no c~ost to the other Owner, liability insurance
in5iiring its interests against claims far personal injury, buddy injurer, de,3th and
property damage ai�7curring on, in or abow the Entire 5it2 and the ways immediately
adjoining The Entire Site, with a "Combined Single tiImIt" (covering personal 1iabi1iIy, (p�
bvdIIy injury lability and property damage Iiabjlity) of not less than Fivo M illion
Dol[ars (S 5,000,000.001 for total 6aim5 for any one QI�0urM FCO.
The'iti5urance I i m i U ir3 1hIs Section sltialI be subire.t to increa!;e from time to 0me by
s,vc:t, amounts as the Qwner, may masonably agree is necessary or de i ble, as may he
ev;de-nced i.,y the practLce of Ami:larly sifu&W pru Sties,
(b) r . Curing the period of any constructlon on the
Emir,, Sitar} by or at:the regUest of any tDwnerr sur-h Owner agmo—; to obtain er require
its contractor(5) to obtain and thereafter Maintain so tang ab wch construction Jr-tivity
is ccLurring, at leas,the following akinimum msurancP coverage;
(a} Woe,w5' cornpertsation - statutory lirt•rits;
ibi Finpioyers' Ij;thitity - Cane Hondri rd Thousand Dollars (S100MOM)' and
tcl Comprehen5iye Ceneraf and Commercial Automobile Liability as follows: t1}
"Combined Single Lir W' {covering persona$ injury fiability, bodily lnjuty
`si.bi,1 t., and property damage liability} of not less than Five Million Dollars
35,000,000.00) for total claims for zmy ofltk occurrenLc�-i (2) independent
otxtractors' Uabili ly or Owner's Prcttictive l iabiIity with the Soule coverage a5
set forth in (i) above; �3l ProducWCorr}pICed OpeTations Covorage which shall
1, t kt:pt in effect for two( ) years after cOmPlet.iOn of work; (4 " Hazards
CQverage, if aVolicablo. (5) "broad Furore" Prnporty Damage EndorsameRts; (fi)
Nov 14 97 0t : 09p KER8 MRNFIGEMENT , INC. 50'8687- 740 P. 7
TO ASPI.
Arn�rican Mores Properties, tree,
4441,F as] 100 SiMh
SaIt.Lakc , Utah 841 1
+°RF11: Legal Deparlrnent
(ta-3311
i
: ai inc Address;
P. 0, Box 21447
Salt Lakc City, Utah 841 27-0447
Attq: Legal L7ro
��;trlrttet�t
01045
t5Mh1.isQtts
Notices a rPPffP.rtivF1 upon ricLiptr or upon attempted delivery If deIivery 4 r- tfU5od or
iIII po5S1We ber.iiu5e of fai€ure lu prGvide a reasanable means for ac<:GniplishiAg delivery,
12.
In nc� vent legal Proceedings are bar g# t or comfr�e,iced to a-nfnrce i�ay u(the terms
of tr�+.5 Agrewi tit against any Owner air other person with zin interest in the Emire Suer the
successfu! Owner In such action shall bo cmitlod M receive and shall receive frorrx the-
def.juking Owner, a rkagnnable sum as attorncys" fees -and cosh, to be Fixcd by the court in
1hA name action-
13. MadificatiQrx.
Al l nego1ation5 and oral agrct�rnwAs acceptable to the o ngrs have been ir,c(}rporated
here1n- l=xcept as o I hLlrw ise provided E)nrein, this Agret!rnent may 001 be fncdi6E!d in arty
resfrect ,whatsoever of resctn6A, in whale, ter in part, except by a writhig executed by the
Owners and dryly recordeci-
Dr efr Des TM JvtvE 10, 1997
Nov 14 S? 01 : 09p KESS x"tRNRGEMENT, INC. 508687-3746 P. 8
IN WITNESS VI HEREOF, tbit Agreement iJ entered Enko as of the day rind ye�ir lir,,x
riven above,
AAA ERICAN STORES PROPERTIES, INC.,
a De�awarr cor}�o�at��n
�Y
Executive vice Presid(w
AtTP.St;
Assistant Cepry
"ASK'
INC.,
OBI
z
its_
Attest:
I
,rKebbn
I
DRdFTDATED; Ju;vp-14, 1997 12
AMERICAN STORES PROPERTIES, INC,
A F R R E 3 E n y i n c
ACM2 waKErs I JEW 0c Kaav srOFtEs r AWx L OSCO 1955 North AVe.nuc
LtJQKY ST[MOS r 6SCC DFIVG I SAV-O.Y O:LVG I SUR:R SAWrtA Melrose Park, IL 60160
FAX 4 (70 ) 78 -31 18 (708) 786-3087 phone
(708) 786-3118 fax
T'Ir 1LF N '�r1 , ' { ( 17) 347-1400 100bile
TO, DATE:
FAX 63 4-44'
FROND: __ ... Ro ert
NUMBER OF PACES; ve + v'
iECiE (if any).—
IL
T Q FA bjU E QPERA' 0R. If you did not receive all of the pagts, please contact
Robert Stack at (70 ) 78 087 at yourearliest posse convenience. Thank you.
�e�no,�ocS E
CORPOPA FE OFFJCE $AST J,AXJ CITY, UT'AH
A Sub f-Urif,of Am ifiS#A Stq,q%G moAay
I ��L E�E.`"7.�I "J: 1�Fh'I"`I !'�`•,x- e•i�;? .] G+1+11U�.n�--r � _ c.
EN' S E AGFt ENT
(Store # 18-330)
THIS LICENSE AGRlr2MENT 1"Aoremmeal"y made and effective as of the�day of Novernber,
bV and, between CHESTNUT {GREEN AT THE ANDOVERS CONDOMINIUM. a Massachusetts
condominium trust l"Lico "), and AMERI AN STORES PROPERTIES, INC., 6 Delaware oarporation
(" PI"); Licensor and ASPI are hereinafter €ndividual€y referred to as a "Party'" a nd eiollectively as the
"Parties."
RI OITALS:
A, Licensor Is the owner of certain real property In Essex County, Massachusetts, and legally
descr1had on h�• attached hereto and made a Part hereof and("C h estnut 13 Men Ca roe 10).
B. API is the owner of certain real property in Essex County, Massachusetts, and legally
described on ExhibilrA attached hereto and made a part hereof and as approximatety shown on the Site
Plan �"ABPf Parcgf"). Together, the ASPI Parcel and the Chastnut Green Parcel are sometimes referred
to as the Entire Site.
C. ASPI desires to construct a certain pedestrian walkway V'Walkway ) on the Parcel of land
as,approximately shown on • xhlblt 8, {" aW) as tha " al€c s �" A portion of the Walkway
Parcel is located on the AS PI Parcel and another portion is located on tha Chestnut Green Farce!.
0. Licensor is willing to allow ASPI to cons�truct that portion of the Walkway on that portion
of the Walkway Parcel located on the Chestnut Green Parcel on the terms, covenants and conditions
as hereinafter set forth:
NOW,THEREFORE, in consideration of the sum of Teri Dollars ($10.00) paid by ASP] to Licensor,
and the agreements herein contained, Licensor and ASP] covenant and agree as follows:
h. Gront, Subject to and in accordance with the terms and conditions of this Agreement,
Licensor hereby grants to ASPI a Iicanse "Llunlen) to enter onto the Chestnut Green Parcel and use
that portion of the Walkway Parcel located on the Chestnut Green Parcel and such other portions of the
Chestnut Green Parcel as may be reasonably required for the construction of the Walkway during the
License Period has hareinafter defined) in order to construct the Walkway. Such license $hall permit
such activities as are feasanably necessary to achieve the pUrposes for which such license is granted,
Including the location of Construction equipment and rnaterials, erection of protective barricades, and
fencing, and access for construction vehicles and personnot as may be required from time to tiMe.
2, Term. This Agreement shall be for the period of time ("License Perlis ") commencing ors
the gate hereof and continuing through and Including the Termination Date {as hereinafter defined).
Unless otherwise extended by mutual written agreement of the Parties, the License and this Agreement
shall terminate on the earlier to occur of M Deoamber 31, 1998 or 61) the date on which the Walkwayr
has been finally completed "Termination Pite") upon which date the License Period, the License artd
this Agrea ent small terminate and ASP[ shall surrender possession of the Chestnut Groan-Parcel to
Chestnut Crean.
. License Fe+ No license fees or other charges shall be payable by either Partyr in
eonnection with this License.
4. Each Party (" ) hereby indemnifies, Folds harmless
and agrees to defend the other Party ("Indemnified Pprrty_"') from and against all claims, damages,
expenses (including without limitation. reasonable attorneys' fees and reasonable investigative and
dlscovery costs), liabilities and judgments on account of injully to persons, lass of life, or damage tc
property occurring in the Entire SIte and on the ways Immedlately adjoining the Entire Site, caused by
the active or passive negligence or willful misconduct of IndemF�Hying Party, its contractors,
subcontractors or tenants in the Entire Site, and its or their agents, servants or ernployees; provided,
the indemnifying Patty floes not indernn'Ify the Indemnified Panyf against any Injury, loss of llfe or
damage which is caused by the active, or pasgive negligence of wlIIfuI misconduct of the IndemnlfIad
Party, or its contractors, subcontractors, agents, servants or employees, The Party obligations under
this Section 4 shall survive the expiration or terinination of this Agre mart with respect to claims arising
on or before the expiration or termination of thi-t Agreement.
tote e n r Walkway.. Upon completion of the Walkway, that portion
S.of the Walkway Iocated on the Chestnut areen Parcel shall becorne the property of Li ensar i its then
"AS-IS, WHERE-AS'' condition, without representation or warranty frorn ASP], and title to the sarrre shall
have been deemed to have been conveyed to Llcansor without further action of the Parties. That portion
of the Walkway Parcel located on the A PI Parr:el (anal that portion of the Walkay located thereon)
shall continue to remain the property of ASPI. Neither Party shall have any obligation to rnsintain, repair
or replace all or any portion of the Walkway,ay, and each Party with respect to that portion of the Walkway
Parcel located on its parcel expressly reserves the right, from time to time, to add, alter, e�cpand, reduce,
r i'%ul l a uNa is
eliminate, relocate or grange the shape, size, location, character, design, appearance, and use of
improvements thereon (including but not limped to That portion of the Walkway located 1heravo).
Nothing contained in this Agreement, expressed or implied, shall be cansxTuod to crate or great any
essement or other rights or encumbrances upon either the Chestnut 6r9an Parcel or the ASPI Parcel.
This Sectinn 5 shall survive the termination of this Agreernont.
6, Notice&. Any notice or demand given or served by one Party to another shall not be
deemed to have been duly given or served unless in writing and personally delivered or forwarded by
postage prepaid certified or registered meH, return receipt requested, or by astablished express delivery
service which maintains delivery records, addressed as follows:
l l"nscr: Chestnut Green Gor}dominhim Association
C/o Fable Management, Inc.
(provide street address7?1
Methurn Massachusetts 01844
A PI: c/o American Stores Properties, (roc,
4" East 100 South
Salt Lace Ciiy, Utah 84111-18 7
r
P.O. Banc 27127
Salt lake City, Utah 84127-01 7
Attn: Legal Department (#18-3 0$
Wth a copy to: American Stores Properties, Ino.
1955 W. North Avenue
Building F
Melrose Park, Illinois 60160
Attn: Property Managament (#18-3 30)
Notices and.dernands shall be deemed effective upon receipt. The person and place to which notices
are to 6e given may bo changed by a Party by w4ttan notice to the other in the manner heroic set forth.
7, Oafs, In the event of a breach of this Agreement the Parties shall have such rights
and remedies as are available in law or equity, and nothing contained its the Agreement shall be deemed
#o (Dolt or restrict thb rights and remedies of the Parties at law or in equity. No delay or omission of the
right to exercise any pourer or remedy shall impair any such right, power or remedy or be construed as
a waiver of any default or nonperformance or acquiescence thereon.
g, cca r This Agreement shall inure to the benefit of and be binding
upon the legal representatives, successors and assigns of A l l and Licensor; provided, hOwever, that
A PI shall not assign its rights under or Interest in this Agriva rent without the Prior written rwnsent of
Licensor.
g, . Each Party represents and warrants to the other that such Party
has the right and authority to enter Into and perform this Agreement and that upon the execution of this
Agreement, this Agreement shall constitute a valid and binding Agreement upon such Party in
accordance with its terms. licensor further represents and warrants to ASPI that Licennor is fee simple
title holder of the Chestnut Careen Parcel with the full right and authority to grant the License. Licensor
represents and warrants to ASPl. that, as of the date of this AgreeMaM no third parties Omcluding
without limits#ion any lender or martgagee) has any right to prevent, approve or control In any manner
tnt terms of this Agreement, or the use or occupation of the Chestnut Green Parcel by A PI if
accordance with the terms of the Agreement.
10, MAdificatiom All negotiations and oral agreernents acceptable to the Parties have
been incorporated herein. Cxcept as otherwise provided herein, this Agreer3nent may not be modified
in any respect whatsoever or rescinded, in whole or in party, except by a u CAing executed by the
Parties
h t. Miscellaneous.
W When required by content, the singular shall include the plural, and the neuter
gander shall inolude a person, corporation, firm, association, or other business arrangement.
(b) The captions of this Agreement are for convenience only and do not constitute ak
part of the provislons Kereof.
(n1 The provisions of this Agreement are not intended to create, nor skulk they be in
any way interpreted to create, a joint venture, a partnership, or any other similar relationship between
the Parties.
(d) This A retrntnt than be Interpreted and construed only by the contents hereof and
there shall be rya presumption or standard of construction in favor of or against any Party.
a) Nothing contained in tlfis Agreement, expressed or implied, shall be construed to
4
i — 1—f3 7 iJ1'h4 -# iSM MKti ! [14i �� Ems_ k
confer or arcat6 any rights, benefits, privileges, claims, actions or remedies in or for tha benefit of any
ether party, any governmental body or agency, or the general public,
THE SUBMISSION OF THIS AGREEMENT FOR EXAMINATION OR ITS NEGOTIATION OR THE
NEGOTIATION OF THE TRANSACTION DESCRIBED HERON DIES NOT CONSTITUTE AN OFFER, AND
THE EXECUTION OF THIS AGREEMENT BY LICENSOR DOES NOT CONSTITUTE A BINDING
AGR EMENT UNTIL SUC ri TIME AS THIS A0REEMENT HA S SEEN APPROVED ICY THE i3O ERixfING
REAL ESTATE COMMITTEE OF ASPI, EXECUTED BY ASPI AND DELIVERED TO LICENSOR.
IN WITNESS WHEREOF, Licensor and ASPI have duIV executed this Agreement as of the date
first set forth above.
CHESNUT GR15EN AT THE ANDOVERS CONDOMINIUM, s
Massachasetts candamInkum trust
6y:
Its:
ATTEST:
4
Its.
AMERICAN STORES PROPERTIES, INC.,
a Delaware corporation
By:
Its. Senior Vice President
ATTEST-
Its-
6
S S- 1-1997 5: 0PM FROM GCS 3124402359 P. l
EXHIBIT "A"
Legal Description
Please provide legal for Chestnut GraOn NNW
EX IBM Ran
i7E PLAN
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TI ANSM I SS [ N REPORT
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THIS DOCUMENT WAS CONFIRMED
( REDUCED SAMPLE ABOVE - SEE DETAILS BELOW )
)
COUNT �
TOTAL WAGES SCANNED
TOTAL PAGES CONFIRMED E2E=51 '1"E SlA� Jc) START "1 111 {}E112A'i'I€1\ #I'A{�r �![]ilI RESULTS
I 508687 -i74G I i -2 1-197 5--27 PNI ! 'SEA" 71 7 FC c(AMl'1 JI 1 1-I)
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TOTAL (1-r U 1 5u" 7
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RMGMURN 5TURES PROPERT(ES. INC, 2100SVOfFI rPIVE
F,'A E 5 E e- a I r.G OA IS BRiDOK. 1.51)521
AGME h1AF1KE-FS i J=5'JEL%L)!)USIU%LG r JLkYLLp;;Csy TEL17G17151:1-210
March
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�Vkarc y�F 1 8r E 7 +
mr. Brian Sheehy
} ebb Property Managemefit
5 Pleasant Street
Methuen, MA 01644
Fie: Osco Drug
Barth Andover, MassachuseM
Dear Brian'
It was a pleasure meeting with you last week at our Noah Andover store. As I
mentioned, I will be forwarding to you the site plan for the walkway when I receive it,
Also, regarding the issue of cross parking and access, 0-sco Drag wiH be happY to
re-review this issue after the store has reached its mature growth period, usually
years after its opening.
It f can be of further assistance, phase do not hesitate to contact rye,
Sincerely
[�,
Robert A. Star
Senior Real Estate Manager
RA :Icllefter.doc
c; A. Gentilezza
D, IIg
Ci)APORArfO�:r,GF SAi.r LAKE CeTY, 0TAH
a,SWlixii7iiiy Of fuii4riCiA Sinrbi[:OrnDnp
289 Devonshife Street
k3GsS OF1, WssaClILlsetts C R R E
021101� �f
AU6 1 3 1997
' 12 August 1997
DeAnn lig
American ~Mores Properties, Inc
48 East South Temple
Salt Lake City, UT 84111
RE, Osco Drug Stare Igo, 30
North Andover, MA
Project Nao 10724
Dear DeAnn,
Pursuant to your request, attached please fired (2) two copies of the proposed walkway sketch
for the connection between #Fie Osco site and the adjacent office ccndominiuMs-
This design is based on a site meeting I had with Bill Scott (North Andover Chief Planner) on
site 20 ,dune 1997 to resolve the town's request to have a "bridge" between the two properties.
The completion of this walkway should allow the bond being held by the town to be released
(as indicated by Mr. Scott at that meefirlg).
A letter should be forwarded to Sill Scott by American More Properties, Inc. with the attached
sketch indicating the intenticn and request for release of the bared.
Under separate cover, I have included a cost breakdown from CM&S Corp, for the work.
If this is acceptable to American Store Properties, Inc. and the adjoining property owner, the
general contfactor should be released to perform the work-
If you have any questions or comments, please feel free to contact this office.
Sincerely,
Dubell's & Associates, Inc
Kenneth Hyszczak AIA
Principal
Enclosures
111(CFiors
Planning 1 ati;Qrd {;. CtibAli-;,A A
'I t}7241tr 4.dac, Ken nt Lh C. 3 ivstcc,,�-,��IA
V0Ice= 1`3 1 ' 138-f1OW) Susan .1-1. Packard, 110A
117ccimif€: i3 I7•.i:iti [}Ilks;i Ric1 ,ard 4 . R.snkaai, A I A
AMERICAN STOW9S RRapEnTIES, INC.. l
R E n A E 9 E H 7 r m a
AGM EMAAxErg i JEWEL FOOD rTQPVt / J EWE L03CO 1955 North Aventie
LUCKY57pA£S f oSCQORu I SAY-QNOaUO . su#ERsnv€a Melrose Park, It, 60160
FAX # (708) 786-3118 (70 ) 756-3G87 phone
(708) 786-3118 fax
NUMBER OF PAGES: Cgver
MESSAGE if and+): ,., 1 + f. &l 2
-E T TAB ' HELF OPERATE .R: If you did aot receive all of the pages, please contact
RobgrE St rk sit (7 78 - .0 at your ear�icst possible conver�ie�ice. Thank you.
Memo.does
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TRANSMISSION REPORT
THIS DOCUMENT WAS CONFIRMED
( REDUVED SAMPLE ABOVE - SEE DETA I L.S BELOW )
* COUNT
TOTAL PAGES SCANNED
TOTAL PACES CONFIRMED
SEND
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