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20100177 Rec Use Restrictions 122704Document 2 of 4 == Order: 2063452 == Page 1 of 12 Record and return to: Safeway Inc. 5918 Stoneridge Mall Road Pleasanton, CA 94588-3229 Attn; Real Estate Law (FDA #(51) GIt`dlfdOSlff.E 2~~0~~~ t~>> USE THIS USE RESTRICTION ("Agreement') is dated as of the _ day of December, 2004 and is made and entered into by and SAPEWAY INC., a Delawaze corporation {"Seller"), and John Lubbesmeyer, Chuck Lubbesmeyer and Pamela Lubbesmeyer, husband and. wife, and Paul Lubbesmeyer, and/or their successors and assigns (collectively, `Buyer"). RECITALS A. Buyer and Seller aze parties to that certain Purchase and Sale Agreement dated April 28, 2004 (the "Purchase Agreement"). B. Pursuant to the terms of the Purchase Agreement, Seller has agreed to sell and Buyer has agreed to purchase the Property ("Burdened Property") described in Exhibit A, which is attached hereto and made a part hereof. C. On the date hereof, Seller operates a grocery supermazket adjacent to the Burdened Property, the legal description of which is attached hereto as Exhibit B and made a part hereof (the "Benefited Property"). D. Buyer acknowledges that (i} Seller has made a considerable investment in the Benefited Property, (ii) Seller has invested its business reputation in the Benefited Property, which reputation will be adversely affected if the sales volume of Geller is significantly less than the level planned by Seller, (iii) the addition of other businesses to the Burdened Property that may violate the Restrictions may result in a reduction of Seller's sales volume and thus impair the benefit of the bargain for which Seller negotiated in entering into the Agreement, (iv} the Benefited Property might be adversely affected by incompatible uses and (v) Seller's agreement to sell the Burdened Froperty is predicated upon Buyer's acknowledgement of all of the foregoing, and Buyer's agreement to the terms of this Agreement. E. Buyer and Seller agree that tht use of the Burdened Property will be restricted as provided in this Agreement. ,ty. ~5`b~bDOpa,OD (1619use3.doc] i I1~IIGI~~~` III,I~ ~III~II~I III) I~I~ I (I~III III ~~f 2g2~78004 f04 I9P IIICCCAAA 7 MPARRNNN p ~~~ ~~~~ PlantImage User Print Job Page 6 p'r~~i5 Q h iii ~~ 05/02/2008 BY:__._______-- Document 2 of 4 _= Order: 2063452 == Page 2 of 12 ., ...~.,.~. ~ I NOW, TIiEREFORE, in consideration of the foregoing Recitals and other good and valuable consideration the receipt and sufficiency of which are acknowledged, the parties agree as follows: 1. USE RESTRICTION. Buyer agrees, on behalf of itself and its successors and assigns, that the Burdened Property will not be used in violation of the "Restrictions" (defined later) or the Residential Use Requirement (defined later). The "Restrictions" are the "Required Use (defined later)," the "Food Restriction" (defined later), the "Prescription Pharmacy Restriction" (defined later), and the "Fuel Restriction" (defined later). 1.1 Food Restriction. Without limiting the generality of the Required Use for the duration of the Restriction Period (defined below), no portion of the Burdened Property shall be used or occupied for a general food mazket, supermarket, grocery store) meat market, fish market, fruit store, vegetable store, convenience store, or any combination of the foregoing ("Food Restriction"). 1.2 Prescri t~tion Pharmacy Restriction. Without limiting the generality of the Required Use, for the duration of the Restriction Period (defined below), no portion of the Burdened Property shaIl be used or occupied for the sale of merchandise which, under the laws of the State where the Burdened Property is located, is required to be dispensed by or under the supervision of a registered or licensed pharmacist ("Prescription Pharmacy Restriction"). 1.3 Fuel Restriction. Without limiting the generality of the Required Use, for the duration of the Restriction Period (defined below), no portion of the Burdened Property shall be used or occupied for the sale of fuel products for use in vehicles ("Fuel Restriction"). 1.4 Required Use. The Burdened Property shall be used and occupied as a multi-family apartment complex and/or medical and/or professional office use and no other use {the "Residential Use Requirement"). Any medical and/or professional office use (i) shah be restricted to a building floor area no greater than fi,000 square feet, and no mare than two (2) stories in height (total building floor azea thus not exceeding 12,000 square feet), (ii} shall be located neaz the Vancil Road entrance, so that it is the first building on the driveway and (iii) shall have adequate pazkino to meet code requirements governing and in the near vicinity of the building. 2. RESTRICTION PERIOD. The Restriction Period shall begin on the date this Use Restriction A greement i s r ecorded and a nd (as t o e nch a pplieable R estriction) o n the date on which Seller and/or its successors and assigns aze not operating at least one grocery supermarket and/or prescription pharntacy and/or fuel center within a radius of five (5) miles of the Burdened Property (measured as the crow flies from any point on the perimeter of the Burdened Property} for a continuous period of at least one (1} year for any reason other than (a) a strike, lockout or other labor difficulty, fire or other casualty, condemnation, war, riot, insurrection, act of God, the requirements of any local, state or federal law, rule or regulation, or any other reason (other than financial) beyond the reasonable control of Seller (or its affiliate or successor, as applicable} or (b) temporary clasttre due to the restoration, reconstruction, expan3inn, alferaGon or remodeling of such store, such temporary closure in no event to exceed three hundred sixty-five {365) days. [1619use3.doc] ~~~~IIG~f~~L~IIIICa~~I1~~I~~~Il~tll~~l~l ~III~II~I~I~I 3698009 04,19P I C R3B.00 Thurston Ca NF PlantImage User Print Job Page 7 05/02/2008 Document 2 of 4 == Order: 2063452 = Page 3 of 12 • •• .ir4.l•~1 1. 3. COVENANT RUNNING WITH THE LAND. T he Restrictions and the Residential Use Requirement shall be deemed to be a restriction and covenant burdening the Burdened Property for the b enefit of the Benefited Properly. The Restrictions and the Residential Use Requirement are a servitude upon the entire Burdened Property, shall run with the land and shall be binding upon any person acquiring any interest in any part of the Burdened Property. 4. ENFORCEMENT. The parties agree that the economic loss to Seller or its successors and assigns resulting from a violation of the Restrictions or the Residential Use Requirement is not readily measurable, or subject to precise calculation. Each of the parties hereto agree that, in any lawsuit by Seller or its successors or assigns seeking specific performance of the terms of this Agreement by injunctive relief, the harm suffered by Seller or its successors or assigns by reason of a breach of this Agreement shall be deemed to be irreparable for which the party so harmed does not have an adequate remedy at law. Seller and its successors or assigns also shall have the right to enforce the Restrictions and the Residential Use Requirement directly against any one or more of Buyer, and the owner, tenant, or occupant of any business on the Burdened Property in violation of this Use Res#riction. In no event shall Seller or its successors or assigns be required to post a bond or other security in any action seeking to enforce the provisions of this Agreement by injunctive relief or other remedy. 5. BINDING EFFECT. Each and all of the covenants, terms, agreements, rights and obligations contained in this Agreement shall extend to and bind and inure to the benefit of the heirs, personal representatives, successors and assigns of Seller .and Buyer. 6. SEVERABILITY. This Agreement is intended to be performed in accordance with, and only to the extent permitted by, all applicable laws and court decisions. If any provision of this Agreement or the application thereof to any person or circumstance shall, for any reason or to any extant, be invalid or unenforceable, neither the remainder of this Agreement nor the application of such provision to other persons or circumstances or other instruments referred to in this Agreement shall be affected thereby, but rather the same shall be enforced to the greatest extent permitted by law. 7. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on the successors and assigns of Buyer for the duration of the Restriction Period, and perpetually, with respect to the Residential Use Requirement. Seller's rights and benefits under this Agreement shall automatically pass to the any successor of Seller by merger, consolidation or reorganization, and to any purchaser of all or substantially all of the assets of Selleg without the necessity of entering into or recording any additional instrument or document. 8. MODIFICATION. Neither this Agreement nor any provision of this Agreement maybe waived, modified, amended, disehazged or terminated except by an instrument in writing signed by all parties to this Agreement and then only to the extent set forth in such instrument. 9. NOTICES. Any notice provided for herein shall be given by registered or certified United States mail, postage prepaid, or expedited delivery service (e.g., Federal }'sxpress), addressed if to: If to Seller; Copy to: [I619use1.dw1 ~IIIIIIIIIIIIIIIIIIII~~IIIIIIIIIIIIII IIIVIIIIIIIiIII P g99 0af84119F CHICAGO TITLE C017PflNY t1ISC 330.95 Thurston Ca, WA P1antImage User Print Job Page 8 05/02/2008 Document 2 of 9 = Order: 2063452 == Page 4 oP 12 Safeway Inc. 5918 Stoneridge Mall Road Pleasanton CA 94588-3229 Attn: Real Estate Law, PDA #9325 Fax: (925) 467-3224 if to Buyer: Lubbesmeyer Conshuetion, Inc. Attn: Paul Lubbesrneyer 1151 East 112a' St. Tacoma WA 98445 Fax (253) 537-916$ Safeway Inc. 1510 140`h Ave. NE. Ste. 200 Bellevue WA 98005 Attn: PDA Regional Vice President Fax: (425)450-1116 Copy to: Gordon Thomas Honeywell Attn: Jemima McCollum 1201 Pacific Ave, Ste. 2100 Tacoma, WA 98401 Fax (253)620.6565 10. WAIVER OF JURY TRIAL. Each party hereto desires and intends that any disputes arising between them with respect to or in connection with this Agreement be subject to expeditious resolution in a court trial without a jury. Therefore each of Buyer and Seller hereby waive the right to a trial by jury of any cause of action, claim, counter claim or cross complaint in any action, proceeding or other hearing brought by any one or more of the parties hereto against any one or more of the other parties hereto on any matter whatsoever arising out of, or in any way connected with, this Agreement, the relationship of Buyer and Seller conceming the subject matter of this Agreement or the documents related thereto or any claim of injury or damage, or the enforcement of any remedy under any statute, ]aw, ordinance, rule or regulation now or hereafter in effect concerning such agreements. 11. LEGAL FEES. In the event any party hereto brings or commences legal proceedings to enforce any of the terms of this Agreement, the s uccessful p arty i n s uch a ction s hall then b e entitled to receive and shall receive from the other party, in every such action commenced, a reasonable sum as attorney's fees, court costs, investigation expenses, discovery costs and costs of appeal incurred by it in the litigation. 12. COUNTERPARTS, This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which, together, shall constitute one and the same instrument. W WITNESS WHEREOF, the parties have executed this Agreement as of the day and year fast /y~,y~,.(~~en above `_C/ G~nQ. '~~~/ Safeway Inc. a Delaware corporation Paut L besmeyer ~~~"!.~~... BY Assistant ice Presid , Lubb~~~ y / ~ r ~~J 1 / ~ ~~~~~ Assistant Secretary Pamela Lubbe/sm~eyer / i'/ - Jb~~~;l`it~y,GNi - Pa e 4 oP 12 [7619use3.doc7 Ilil~llll~~llllll~~lll~llllllllllllllllllllllNIII11 3598221 CHIC GO TtE MP NY MISC l30. A ThurstongCoG4~9P PlantImage Vser Print ,lob Page 9 05/02/2008 Document 2 of 4 == Order: 2063452 = Pag®5 of 12 STATE OF CALIFORNIA COUNTY OF ALAMEDA ACKNOWLEDGMENT ss. On December 21, 2004, before me, Janice M. Palmer, Notary Public, personally appeared Sharman BrafF and Linda S. MacDonald, personally known to me (or proved on the basis of satisfactory evidence) to be the persons whose names are subscribed to the wtthin Instrument and acknowledged to ma that they executed the same in their authorized capacities, and that by their signatures on the instrument, the persons or the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and official seat. i ture ~~~~~ ,aam.aa~a..s. JA.W,Cf iri. PALAI6A ~y anv~aissiousatssas g HJTHgYPUWGQLLIFpANtA'~ A1AptEOA COUNTY ! i Mym'snbskn aq EpPt 18~SOBB1 (Seal) IHII~IGIIIT~TLIIJ,II~IIjIA,~1~~IIIII~I~IIJI~I~~~~llslll~ll 2/298 04a04 A9P Plantimage User Print Job Paga 10 05/02/2008 Document 2 of 4 == Order: 2063952 = Page 6 of 12 ,. ,,.~...,, p John Lubbesmeyer [I619use3.doc[ 11~11~1111111111~~11~~1111111~III~IIIIIIIIIIIIIIII P~98©?°04~~R CHICR P1antImage User Print Sob Page 11 05/02/2008 ' Document 2 of 9 _= Order: 2063452 =_ Exhibit A Burdened Property Lot 2 of Binding Site Flan Subdivision No. BSP 018275-YL as recorded December 27, 2001 under Auditor's File No. 3401453 and as delineated on map recorded under Auditor's File No. 3401454. In Thurston County WA [1619use3.doc1 111111IIIIIII111llllllllllll111111III~IIIIIIN11111111 P /~2~7/~2 A ~8q~ 19P t1ISC 530.@8 ihlx~stan Co, WR P1antImage User Print Job Page 12 05/02/2008 Document 2 of 4 == Order: 2063452 == Page 8 0£ 12 Exhibit B Benefited Property Lot 1 of Binding Site Plan Subdivision No, SSP 018275-YL as recorded December 27, 2001 under Auditor's File No. 3401453 and as delineated on map recorded under Auditor's File No. 3401454. STATE OF WASHINGTON County of ss. I certify that I know or have satisfactory evidence that is the person who appeared before me, and said person ackrnowledged that [he][she] signed this instnunent, on oath stated that [he][she] was authorized to execute the instrument and acknowledged it as the of tc be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. DATED this _____ day of STATE OF WASHINGTON County of ss. I certify that I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged that [he][she] signed this instrument, on oath stated that [he][shc] was authorized to execute the instrument and acknowledged it as the of to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. DATED this ! day of , 20 20 {Type/Print Name above) Notary Public in and for the State of Washington, residing at My appointment expires: (Type/Print Name above} Notary Public in and for the State of Washington, residing at My appointment expires: [7619uat3.dce] ~111111111111111N1 IIIIIIIIIIIIINIIIII~11111111111 z~ 9 ~a ~e4~,~R MISC X0.08 Thurston Ca, WR PlantImage User Print Job Page 13 05/02/2008 Document 2 0£ 4 == Order: 2063452 == Page 9 of 12 STATE OF WASHINGTON County of ) ss. I certify that I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged that [he][she] signed this instrument, on oath stated that [he][she] was authorized to execute the instrument and acknowledged it as the of to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. DATED this ~ day of STATE OF WASHINGTON County of 20_ {Type/Print Name above) Notary Public in and for the State of Washington, residing at My appointment expires: ss. I certify that I know or have satisfactory evidence that is the person who appeazed before me, and said person acknowledged that [he][she] signed this instrument, on oath stated that [he][she] was authorized to execute the instrument and acknowledged it as the of to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. DATED this ~ day of zo~ (Type/Print Name above) Notary Publio in and for the State of Washington, residing at My appcintment expires: (1619use3.doo] CIIII~I~~IIT~IIIIIII~III II~IIIIIII~~II(IIII~Ii~llli~l~l P~98~~04WR9P PlantImage User Print Job Page 14 05/02/2008 Document 2 of 9 == Order: 2063952 = Page 10 of 12 STATE pF California ) } ss. County of ) I certify that I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged that [he][shej signedthis inshwrrent, on oath stated that [he](shej was authorized to execute the instrument and acknowledged it as the of to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. DATED this day of , 20,____ [1679use3.doc] (TypelPrint Name above) Notary Public in and for the State of California, residing ak My appointment expires: IIIINIIIINIIIIIIIIIIIIIIJIIIIIIIIIUI III~iJ111111 ~~~8 04 04 I9P T T E C~PRNY Mf~C K30.00 Thurston Cv, _g_ ~ Plantrmage User Print Job Page 15 05/02/2008 Document 2 of 4 == Order: 2063452 == Page 11 of 12 I ~ „ ,....~,,. ,. ~ STATE OF CALIFOi2NIA ) ss. County of ) I certify that I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged that [he][sbe] signed this instrument, on oath stated that [heJ[she] was authorized to execute the instrument and acknowledged it as the of to be the free and voluntary act of such party for the uses and purposes mentioned in the inshnment. DATED this day of , 20 {Type/Print Name above) Notary Public in and for the State of California, residing at My appointment expires: (1619use3.doc) ~H~II~III~ITI'~IIII~Ii010III~IIIIIIII~~I~III(~~CII~~II~II~II ~ /298 020 4~A9P P1antImage User Print Job Page 16 05/02/2008 Docwnent 2 of 4 m= Order: 2063452 == Page 12 of 12 STATE OF WASHINGTON r SS COUNTY OF PIERCE 1 ON THIS f~ DAY OF ~.~I~ ~t~ 2004 BEFORE ME, THE UNDERSIGNED, A NOTARY PUBLIC IN AND FOR THE STATE OF WASHINGTON, DULY COMMISSIONED AND SWORN, PERSONALLY APPEARED PAUL LUBBESMEYER, JOHN LUBBESMEYER, CHUCK LUBBESMEYER, AND PAMELA LUBBESMEYER KNOWN TO ME TO BE THE INDIVIDUAL(S) DESCRIBED IN AND WHO EXECUTED THE WITFIIN INSTRUMENT AND ACKNOWLEDGED THAT THEY SIGNED AND SEALED THE AME AS TH FREE AND VOLUNTARY ACT AND DEED, FOR THE USES PURP~SES EREIN IONED. ~~lJ~~ 11 ~ ~C.J ~ NOTARX SIG E PRINTED NAME: CHERYL EE STEINER. NOTARY PUBLIC IN AND FOR THE STATE OF WASHINGTON RESIDING AT SPANAWAY. MY COMM25$ION EXPIRES ON IO-3-O5. `,,;Q`N~'TAFRy Fz ~.~ - - ~.~`: PUBLIC,:`o ''~,,,,,,, a ~" I I III ~IIIf ~ III ~IIi~ illl ~IIII II~I~I I I~IIII 111 IIII 2fi98004 004 18P CN~fiGO TITLE COMP NV MISC 430.80 Thurston Co, l4i P1antlmage User Print Job Page 17 05/02/2008