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CC - Declaration of Easements and ConditionsAfter Recording Return To: Chad W. Lamer WinCo Foods, LLC P.O. Box 5756 Boise, ID 83705 Abbreviated Legal Description: Tax Lot Number(s): ADA COUNTY RECORDER Phil McGrane 2020-035128 BOISE IDAHO Pgs=60 HEATHER LUTHER 03/26/2020 12:52 PM TITLEONE BOISE $187.00 This Space Reserved for Recordin ADA COUNTY, IDAHO DECLARATION OF EASEMENTS AND CONDITIONS BETWEEN WINCO FOODS, LLC a Delaware limited liability company, AND HIGH DESERT DEVELOPMENT LINDER VILLAGE, LLC, an Idaho limited liability company (Chinden and Linder, Meridian, Idaho) 42795.0012.12720397.1 DECLARATION OF EASEMENTS AND CONDITIONS THIS DECLARATION OF EASEMENTS AND CONDITIONS ("DEC") is made as of the d—k–& day of March, 2020 (the "Effective Date"), by and between WINCO FOODS, LLC, a Delaware limited liability company ("WinCo"), HIGH DESERT DEVELOPMENT LINDER VILLAGE, LLC, an Idaho limited liability company ("High Desert"), and Lynx Investments, LLLP, an Idaho limited liability limited partnership, formerly known as Lynx Investments, L.P., a California limited partnership ("Lynx"). RECITALS This DEC is made with reference to the following facts and objectives: A. WinCo is or will be the owner of a certain parcel of land located in the City of Meridian, County of Ada, State of Idaho more particularly described on Exhibit A and depicted on the Site Plan (as defined below) as "Lot 2" (the "WinCo Parcel"). B. High Desert and Lynx are or will be the owners of certain parcels of land located in the City of Meridian, County of Ada, State of Idaho, more particularly described on Exhibit A-1 as "Lots 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 16" ("High Desert Commercial Lots") and the green space and Future Residential "Lots 1, 2, and 3" ("High Desert Residential Lots") as depicted on the Site Plan. The High Desert Commercial Lots and the High Desert Residential Lots are collectively referred to in this DEC as the "High Desert Parcel." C. The shopping center and mixed use complex ("ShoppingCenter") is generally identified on the site plan attached hereto as Exhibit X (the "Site Plan") and will consist of sixteen (16) contiguous Lots or more if further subdivided by High Desert. D. WinCo and High Desert intend for the Shopping Center to be developed as an integrated mixed use complex including retail shopping, restaurants, offices (financial and medical), civic (including a library branch and plaza), residential, hotel, health and entertainment uses. In order to effectuate the common use and operation of certain portions of the Shopping Center, WinCo and High Desert hereby grant certain reciprocal easements into, over, and across certain portions of the Shopping Center and impose certain conditions and restrictions thereon. E. Lynx executes this DEC solely in its capacity as owner or optionee of property that shall be subject to the terms, conditions and restrictions set forth in this DEC. DECLARATION NOW, THEREFORE, in consideration of the foregoing recitals, which are hereby incorporated into this DEC, the premises and the easements, conditions, and restrictions hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, WinCo and High Desert hereby make this DEC and agree as follows: 1. DEFINITIONS. 1.1. "Adjacent Party" shall mean the Party (as defined in Section 1.35 below) owning a Lot (as defined in Section 1.28 below) adjacent to another Party. 42795.0012.12720397.1 1.2. "Administration Fee" shall mean the fee that may be charged by the Operator (as defined in Section 1.33 below) in lieu of the Operator's administrative and overhead costs in accordance with Section 4.3(e). 1.3. "Affiliate" of a Person (as defined in Section 1.35 below) shall mean any other Person who directly or indirectly controls, is controlled by, or is under common control with, the specified Person. For purposes of the preceding sentence, "control" of a Person means possession, directly or indirectly (through one or more intermediaries or other means), of the power to direct or cause the direction of management and policies of that Person through the ownership of voting securities (or any other interest or interests), contract or other means. 1.4. "Approving Parties" shall mean each of WinCo, or its successor -in -interest (if an Affiliate of WinCo), and High Desert, or its successor -in -interest (if an Affiliate of High Desert or as approved by the Approving Parties) (each an "Approving Party" and collectively, the "AApproving Parties"), which Parties shall be designated from time to time to make certain decisions and/or give certain approvals pursuant to the terms of this DEC. The Approving Parties shall each, unless otherwise provided herein, have discretion to make the decisions and/or give the approvals expressly designated in this DEC to be made and/or given by the Approving Parties. Notwithstanding the foregoing or anywhere else in this DEC, WinCo's approval shall only be required for matters related to Lots 1 through 10, 14 and 15. As long as High Desert, or an Affiliate of High Desert, owns all or any part of any Lot in the Shopping Center, High Desert, or its Affiliate, shall be entitled to be an Approving Party. At no time shall there be more than two (2) Approving Parties. 1.5. "Architectural Feature" shall mean any gable, tower, pilaster or other design element appurtenant to any Building (as defined in Section 1.7 below) on a Lot. 1.6. "Budget" shall mean the written document setting forth the estimated cost of maintaining the Common Area (as defined in Section 1.13 below) of the Shopping Center, including the Center Signs (as defined in Section 1.12 below), and estimated Administration Fee prepared by the Operator and approved by the Approving Parties. 1.7. "Building" shall mean any building structure built within a Building Area, including drive-through facilities and trash enclosures, and any associated appurtenant canopies, supports, loading docks, truck ramps, and other outward extensions, including sidewalks immediately adjacent to any such building structure, exclusive of Center Signs. 1.8. "Building" shall mean the limited areas of the Shopping Center within which Buildings may be constructed, placed, or located. Building Areas are designated on the Site Plan by the building limit lines shown thereon. Any and all Buildings on a Lot must be constructed within the designated Building Area and within the building limit lines for such Lot. Notwithstanding anything to the contrary in this DEC, the owner of the WinCo Parcel shall not be required to submit or obtain Approving Party or other Party's approval for any relocation or reconfiguration of the Building Area on the WinCo Parcel nor the expansion of the Building Area on WinCo Parcel so long as any such building modifications are within the building limit lines, and provided that all such changes comply with the provisions of this DEC. During any period of rebuilding, repairing, replacement, or reconstruction of a Building, the Building Area of that Building shall be deemed to be the same as existed immediately prior to that period. Upon completion of such rebuilding, repairing, replacement, or reconstruction, the Party upon whose Lot such Building is located shall cause a new determination of Floor Area (as defined in Section 1.22 below) for such Building to be made in accordance with this Section, and such determination shall be sent to the Approving Party(ies) and to any Party requesting the same. 42795.0012.12720397.1 1.9. "Building Code" shall mean all applicable federal, state, and local building codes. 1.10. "Business Office" shall mean any business office, including but not limited to a medical or dental office, but shall exclude Financial Retail Office (as defined in Section 1.22 below). 1.11. "Cart Containment System" shall mean electronic systems or devices installed for the purpose of creating an invisible barrier preventing the removal of shopping carts beyond a perimeter - boundary signal, and shall include but not be limited to, underground cabling, painted lines, striping or other pavement markings identifying containment area boundaries, and freestanding signs used to alert customers that a Cart Containment System is in use. 1.12. "Center Signs" shall mean the signs used to identify Occupants (as defined in Section 1.32 below) of the Shopping Center, as further defined in Section 3.2(d), and located at the approximate locations shown on the Site Plan. 1.13. "Common Area" shall mean all areas within the boundaries of the Shopping Center, exclusive of Buildings. A free-standing or attached gas canopy, together with any columns or posts supporting the same, the area covered by such gas canopy, and the improvements under such gas canopy (such as gas pump islands), shall be deemed to be either a part of the Building located on the same parcel as which the canopy is located, or a part of the Building to which such canopy is attached, as the case be, and not a part of the Common Area. The area covered by a gas canopy (whether attached or free standing) shall not be included in determining compliance with maximum square footage permitted for a Building Area or within the building limit lines. 1.14. "Common Area Maintenance Costs" shall mean all sums expended in connection with the general maintenance and repair of the Common Area and the replacement of any improvements in the Common Area, in accordance with Section 4.3 below. 1.15. "Communications Equipment" shall mean such things as satellite and microwave dishes, antennas, and laser heads, together with associated equipment and cable. 1.16. "Constant Dollars" shall mean the present value of the dollars to which such phrase refers. An adjustment shall occur on January 1 of the sixth (0) calendar year following the Effective Date of this DEC, and thereafter at five (5) year intervals. Constant Dollars shall be determined by multiplying the dollar amount to be adjusted by a fraction, the numerator of which is the Current Index Number and the denominator of which is the Base Index Number. The "Base Index Number" shall be the level of the Index for the month of the Effective Date of this DEC. The "Current Index Number" shall be the level of the Index for the month of October of the year preceding the adjustment year. The "Index" shall be the Consumer Price Index, All Urban Consumers, for the West Region, published by the United States Department of Commerce (base year 1982 84=100), or any successor index thereto as hereinafter provided. If publication of the Index is discontinued, or if the basis of calculating the Index is materially changed, then the Approving Parties shall substitute for the Index comparable statistics as computed by an agency of the United States Government or, if none, by a substantial and responsible periodical or publication of recognized authority most closely approximating the result which would have been achieved by the Index. 1.17. "Constructing Party" shall mean a Party constructing, reconstructing, altering, repairing or maintaining improvements. 1.18. "Defaulting Party" shall mean the Party failing to perform under this DEC. 42795.0012.12720397.1 1.19. "Emergency Situation" shall mean a situation which threatens access to a Lot or threatens an immediate substantial loss or damage to property and/or any personal injury or death to Persons. 1.20. "Environmental Laws" means all present and future federal, state or local statute, ordinance, regulation, rule, guideline, decision, or order governing the generation, storage, release, discharge, transportation, removal, remediation, reduction, or disposal of hazardous or toxic materials such as, without limitation, the Resource Conservation and Recovery Act (RCRA, 42 U.S.C. § 6901, et seq.), the Comprehensive Environmental Response Compensation and Liability Act (CERCLA, 42 U.S.C. § 9601, et seq.) as amended, the Toxic Substance Control Act (TSCA, 15 U.S.C. § 2601, et seq.), the Emergency Planning and Community Right -to -Know Act of 1986 (EPCRTKA, 42 U.S.C. § 11001, et seq.), the Clean Water Act (33 U.S.C. § 1251, et seq.), the Clean Air Act (42 U.S.C. § 7401, et seq.), the Pollution Prevention Act of 1990 (42 U.S.C. § 13101, et seq.), the Hazardous Materials Transportation Act (49 U.S.C. § 1801, et seq.), or any similar laws of the city, county, and/or state in which the Shopping Center is located regulating environmental pollutants or underground storage tanks, and any and all amendments, supplements, modifications, and replacements thereof. 1.21. "Fast Food Restaurant" shall mean any quick serve restaurant that prepares and dispenses food orders in a limited period of time. Fast Food Restaurants do not include any Restaurant (as defined in Section 1.41 below) or food service establishment which offers as the primary method of service for orders to be taken and served by a waitperson at the customer's table, or whose primary method of service is for customers to serve themselves at a buffet line. 1.22. "Financial Retail Office" shall mean any office which provides financial services directly to consumers such as banks, credit unions, and stock brokerages. 1.23. "Floor Area" shall mean the actual number of square feet of space contained on each floor within a Building, including any mezzanine or basement space used for the sale or storage of merchandise , as measured from the exterior faces of the exterior walls or store front and/or the center line of any common walls; provided, however, that the following areas shall not be included in such calculations: exterior sidewalks, space attributable to any multi -deck, platform, or structural levels used for the storage of merchandise which is located vertically above ground floor; truck ramps, loading and delivery areas (unless covered by a roof, in which case it shall be included in the calculation of Floor Area), and trash -compactor facilities located outside the Building, though attached to it. Within thirty (30) days of a request, a Party shall certify to the requesting Party the amount of Floor Area applicable to each Building on its Lot. If any Party causes an as -built survey to be prepared with respect to any portion of the Shopping Center, such Party shall furnish a copy of the survey to the other Parties for informational purposes only. During any period of rebuilding, repairing, replacement, or reconstruction of a Building, the Floor Area of that Building shall be deemed to be the same as existed immediately prior to that period. Upon completion of such rebuilding, repairing, replacement, or reconstruction, the Party upon whose Lot such Building is located, shall cause a new determination of Floor Area for such Building to be made in the manner described above, and such determination shall be sent to any Party requesting the same. 1.24. "Grant of Exclusivity" shall mean the right to exclusively operate a type of business in accordance with Section 5.1(i). 1.25. "Hazardous Materials" means wastes, substances, mixtures, pollutants, contaminants, or other materials which are defined or classified by any Environmental Law as hazardous, toxic, or radioactive, including, whether or not so defined, petroleum and natural gas products, polychlorinated biphenyls, radioactive materials, urea formaldehyde foam insulation, and asbestos -containing materials. 42795.0012.12720397.1 1.26. "Initial Work" shall mean site improvement work to be performed on all or a portion of the Shopping Center, which includes rough grading, installation of certain on and offsite utilities, and completion of certain roads. 1.27. "Invoice" shall mean the monthly billing statement issued by the Operator for actual Common Area Maintenance costs, which shall include the Operator's certified statement and supporting documentation in accordance with Section 4.3(e). Party. 1.28. "Lot" shall mean a legally subdivided portion of the Shopping Center owned by a 1.29. "Maintenance Standard" shall have the meaning set forth in Section 4.2. 1.30. "No -Build Easement" shall have the meaning set forth in Section 3.5. 1.31. "Non -Defaulting Party" shall mean the Party who has not failed to perform under this DEC. 1.32. "Occupant" shall mean any Person from time to time entitled to the use and occupancy of any portion of a Building in the Shopping Center under an ownership right or any lease, sublease, license, concession, or other similar agreement. 1.33. "Operator" shall mean the Person that may be designated by the High Desert from time to time to maintain and operate the Common Areas within the Shopping Center in accordance with the Maintenance Standard. The Person designated as the Operator shall serve in that capacity until it resigns or is removed for failure to maintain and operate the Common Areas within the Shopping Center in accordance with Section 4.3. 1.34. "Outdoor Sales Area" shall mean the limited areas of the Shopping Center within which goods may be sold outside a Building as set forth in Section 5.1(e) below. 1.35. "Party" shall mean each signatory hereto and, after compliance with the notice requirements set forth below, their respective successors and assigns who become owners of any portion of the Shopping Center. Each Party shall be liable for the performance of all covenants, obligations and undertakings herein set forth with respect to the portion of the Shopping Center owned by it which accrue during the period of such ownership, and such liability shall continue with respect to any portion transferred until the notice of transfer set forth below is given, at which time the transferring Party's liability for unaccrued obligations shall terminate. A Party transferring all or any portion of its interest in the Shopping Center shall give notice to the Approving Parties and, if one is designated, the Operator, of such transfer and shall include the name and address of the new Party and a copy of the legal description of the portion of the Shopping Center transferred. If a Lot is owned by more than one Person, the Person or Persons holding at least fifty-one percent (51 %) of the ownership interest in the Lot shall designate one (1) of their number to represent all owners of the Lot and such designated Person shall be deemed the Party for such Lot. Until the notice of transfer is given, the transferring Party shall be (for the purpose of this DEC only) the transferee's agent. Nothing contained herein to the contrary shall affect the existence, priority, validity, or enforceability of any lien permitted hereunder which is placed upon the transferred portion of the Shopping Center prior to receipt of the notice. 42795.0012.12720397.1 1.36. "Person" shall mean any individual, partnership, firm, association, corporation, trust, or any other form of business or governmental entity. 1.37. "Permittee" shall mean all Occupants and the officers, directors, employees, agents, contractors (subject to Section 3.1(d) below), customers, vendors, suppliers, visitors, invitees, licensees, subtenants, and concessionaires of Occupants insofar as their activities relate to the development, use, and occupancy of the Shopping Center. Among others, Persons engaging in the following activities on the Common Area will not be considered to be Permittees: (a) Exhibiting any placard, sign, or notice; (b) Distributing any circular, handbill, placard, or booklet; (c) Soliciting memberships, contributions, or signatures; (d) Parading, picketing, or demonstrating; or (e) Failing to follow regulations relating to the use of the Shopping Center. 1.38. "Phase 1" shall mean the Initial Work and the construction of certain improvements on Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 14 and 15. 1.39. "Plans" shall mean detailed plans specifying planned construction of each Building and any additions, remodeling, reconstruction, or other alteration which changes the exterior of any Building or any Common Area. 1.40. "Remaining, Work" shall mean all site improvement work for or on the balance of the Shopping Center Property not included in the Initial Work. 1.41. "Restaurant" shall mean any operation or business which requires a governmental permit, license, and/or authorization to prepare and/or serve food for either on-site or off-site consumption, and which offers as the primary method of service for orders to be taken and serviced by a waitperson at the customer's table and/or for customers to service themselves at a buffet line. As used herein, the term "Restaurant" shall not include a Fast Food Restaurant. 1.42. "Site Plan" shall mean the site plan for the Shopping Center attached hereto as Exhibit X, which may be reasonably modified by amendment to this DEC duly executed and recorded in accordance with Section 9.4(e) below. 1.43. "Utility Lines" shall mean those facilities and systems for the transmission of utility services, including drainage and storage of surface water. "Common Utility Lines" shall mean those Utility Lines which are installed to provide the applicable service to the Lots and which are not Separate Utility Lines. Any surface water collection, retention, and distribution facilities within the Shopping Center shall be deemed a Common Utility Line. "Separate Utility Lines" shall mean those Utility Lines which are installed to provide the applicable service solely to a single Lot. For the purpose of this DEC, the portion of a Utility Line extending between a Common Utility Line and a Building shall be considered a Separate Utility Line. 42795.0012.12720397.1 2. EASEMENTS. 2.1. Ingress, Egress and Parking. Each Party hereby grants and conveys to each other Party for its use and for the use of its Permittees, in common with others entitled to use the same, a non- exclusive, perpetual easement for access and the ingress, egress and parking of vehicles, including without limitation, ingress and egress for delivery trucks, over and across the parking, drive aisle and driveway areas of the Common Area on the grantor's Lot, as the same may from time to time be constructed and maintained for such use, and for the ingress, egress and accommodation of pedestrians over and across the parking, drive aisle, driveways, and sidewalk areas of the Common Area on the grantor's Lot, as the same may from time to time be constructed and maintained for such use. Said access, parking, drive aisle and driveway easement areas shall be located as shown on the Site Plan. Such easement rights shall be subject to the following reservations, as well as other provisions contained in this DEC: (a) Each Party reserves the right to close off any portion of its Lot for such reasonable period of time as may be legally necessary, in the reasonable opinion of such Party's counsel, to prevent the acquisition of prescriptive rights by anyone; provided, however, that prior to closing off any portion of its Lot, such Party shall give a minimum of ten (10) days prior written notice (except in an emergency situation the closure may be initiated with reasonable notice) to each other Party of its intention to do so, and shall attempt to coordinate such closing with each other Party so that no unreasonable interference with the passage of pedestrians or vehicles shall occur. (b) Each Party reserves the right at any time and from time to time to exclude and restrain any Person who is not a Permittee from using the Common Area on its Lot. (c) Each Party reserves the right to temporarily erect or place barriers in and around areas on its Lot which are being constructed and/or repaired in order to ensure either safety of Persons or protection of property. (d) Each Party reserves the right, at its sole cost and expense to install, operate and maintain a Cart Containment System on its Lot for the purpose of preventing the removal of shopping carts from its Lot; provided, however, that each Party who elects to install, operate, maintain, alter, remove or replace a Cart Containment System on its Lot, shall defend, protect, indemnify and hold harmless each other Party from all loss, cost, liability, expense and damages resulting (or claimed to have resulted) from or in connection with the Cart Containment System. 2.2. Utilities. (a) Each Party hereby grants and conveys to each other Party non-exclusive, perpetual easements in, to, over, under, along, and across those portions of the Common Area (exclusive of any portion located within a Building Area or within building limit lines) located on the grantor's Lot necessary for the installation, operation, flow, passage, use, maintenance, connection, repair, relocation, and removal of Utility Lines serving the grantee's Lot, including but not limited to, sanitary sewers, storm drains, water (fire and domestic), gas, electrical, telephone, and communication lines. All Utility Lines shall be underground except: (i) ground mounted electrical transformers; (ii) as may be necessary during periods of construction, reconstruction, repair, or temporary service; 42795.0012.12720397.1 (iii) as may be required by governmental agencies having jurisdiction; (iv) as may be required by the provider of such service; (v) fire hydrants; (vi) surface water collection; and (vii) traffic signal controllers. After the initial construction of the improvements in Phase 1, if a Party desires to construct new Utility Lines for which an additional easement is required, then the grantee shall first provide the grantor with a written statement describing the need for such easement, shall identify the proposed location of the Utility Line, and shall furnish a certificate of insurance showing that its contractor has obtained the minimum insurance coverage required by Section 5.4(b) hereof. Except as otherwise agreed to in writing by the grantor and the grantee, any Party installing Separate Utility Lines pursuant to the provisions of this subparagraph shall pay all costs and expenses with respect thereto and shall cause all work in connection therewith (including general clean up and proper surface and/or subsurface restoration) to be completed as quickly as reasonably possible, in a manner so as to minimize interference with the use of the Common Area and in a manner so as to not unreasonably interfere with the use, occupancy, or enjoyment of the grantor's Lot. If the Approving Parties elect to install Common Utility Lines, all repair, maintenance, replacement, and other work thereon shall be performed by the utility company or the Operator, if an Operator is designated, and paid for as provided in Section 4.3 below. (b) The initial location of any Utility Line shall be subject to the prior written approval of the Party whose Common Area is to be burdened thereby, such approval not to be unreasonably withheld or delayed, and the approval of the Approving Parties. The easement area for such Utility Line shall be the greater of the width reasonably necessary to satisfy the requirements of a private or public utility, or five feet (5') on each side of the centerline if the easement is granted to a Party. Upon request, the grantee shall provide to the grantor a copy of an as -built survey showing the location of such Utility Line. The grantor shall have the right at any time to relocate a Utility Line upon thirty (30) days prior written notice, provided that such relocation: (i) shall have been approved by the Approving Parties; (ii) shall not interfere with or diminish the utility service to the grantee during the grantee's business hours, and shall not unreasonably restrict any vehicular movement; (iii) shall not reduce or impair the usefulness or function of such Utility Line; (iv) shall be performed without cost or expense to grantee; (v) shall be completed using materials and design standards which equal or exceed those originally used; and (vi) shall have been approved by the provider of such service and the appropriate governmental or quasi -governmental agencies having jurisdiction thereover. Documentation of the relocated easement area, including the furnishing to the grantee of an as - built survey, shall be provided at the grantor's expense and shall be accomplished as soon as reasonably possible. 9 42795.0012.12720397.1 (c) Each Party hereby grants and conveys to each Party owning an adjacent Lot the perpetual right and easement to discharge surface storm drainage and/or runoff from the grantee's Lot over, upon, and across the Common Area of the grantor's Lot, upon the following terms and conditions: (i) The Common Area grades and the surface water drainage/retention system for the Shopping Center shall be initially constructed in strict conformance with the details approved by the Approving Parties; and (ii) No Party shall alter or permit to be altered the surface of the Common Area or the drainage/retention system constructed on its Lot if such alteration would materially increase the flow of surface water onto an adjacent Lot either in the aggregate or by directing the flow of surface water to a limited area, or materially decreasing the purity or quality of surface water flowing onto an adjacent Lot, without the written consent of the owner of the applicable Lot, which consent shall not be unreasonably withheld or delayed. 2.3. Accommodation of Encroachments. In order to accommodate any Building improvements which may inadvertently be constructed beyond a Lot's boundary line, each Party grants to each other Party an easement in, to, over, and across that portion of the grantor's Lot adjacent to such common boundary line for the maintenance and replacement of such Building improvements to a maximum lateral distance of six inches (6"); provided, however, that the foregoing easement shall not diminish or waive any right of a Party to recover damages resulting from the Constructing Party's failure to construct its Building within its Lot. This easement shall continue in effect for the term of this DEC and thereafter for so long as the Building utilizing the easement area exists (including a reasonable period to permit reconstruction or replacement of such Building if the same shall be destroyed, damaged, or demolished), and shall include the reasonable right of access necessary to exercise and enjoy such grant upon terms and with the limitations described in Section 3.1(d) below. 2.4. Access to Center Signs. The Party upon whose Lot a Center Sign is located hereby grants to each Party that shall be responsible for the construction and maintenance of such Center Sign, and to each Party that has the right to use a sign panel or sign panels on the Center Sign, an easement in, to, over, under, and across that portion of such Party's Lot as is reasonably necessary to construct, install and maintain such Center Sign, including all necessary utilities and related improvements, and obtain access to the Center Sign and exercise such Party's or Parties' rights with respect to its sign panel(s) on the Center Sign as set forth in this DEC, provided that, at the time of exercising its rights under this Section 2.4, such Party's policies of insurance required under Section 5.4 below shall be in full force and effect. The Party exercising its rights hereunder shall defend, protect, indemnify, and hold harmless the Party upon whose Lot a Center Sign is located from and against all claims, including any action or proceedings brought thereon, and all costs, losses, expenses and liability (including reasonable attorney's fees and cost of suit) arising from or as a result of the injury to or death of any Person or damage to property or any improvements on the Lot on which a Center Signs is located, arising out of a Party's exercise of its rights hereunder or entry on to such Lot, or that of its agents, servants, contractors, employees, or representatives, except to the extent such claim is caused by the negligence or willful act or omission of such indemnified Party, or its licensees, agents, servants, contractors, employees, or representatives. 2.5. Easements Perpetual. Except as expressly set forth herein, all of the easements set forth in this Section 2 shall be perpetual and non-exclusive in nature, and shall continue in full force and effect unless and until: (a) all of the affected Parties (or their respective successors -in -interest) agree in writing to terminate such easement(s), or (b) such easements are terminated by operation of law. 10 42795.0012.12720397.1 2.6. Restriction. No Party other than the Approving Parties shall grant any easement or license for the purpose set forth in this Section 2 for the benefit of any property not within the Shopping Center or for the benefit of any Person in connection with any activity not related to the Shopping Center; provided, however, that the foregoing shall not prohibit the granting or dedicating of easements by a Party on its Lot to governmental or quasi -governmental authorities or to public utilities. 3. CONSTRUCTION. 3.1. General Requirements. (a) All construction activities performed by a Party within the Shopping Center shall be performed in compliance with all applicable laws, rules, regulations, orders, and ordinances of the city, county, state, and federal government, or any department or agency thereof. Further, a Party's construction activities shall not: (i) Cause any unreasonable increase in the cost of constructing improvements upon another Party's Lot; (ii) Unreasonably interfere with construction work being performed on any other part of the Shopping Center; (iii) Unreasonably interfere with the use, occupancy, or enjoyment of any part of the remainder of the Shopping Center by any other Party or its Permittees; or (iv) Cause any Building located on another Lot to be in violation of any law, rule, regulation, order, or ordinance authorized by any city, county, state, federal government, or any department or agency thereof. (b) Each Party shall defend, protect, indemnify, and hold harmless each other Party from all claims, losses, liabilities, actions, proceedings, and costs (including reasonable attorneys' fees and costs of suit), including liens, and any accident, injury, loss, or damage whatsoever occurring to any Person or to the property of any Person arising out of or resulting from any construction activities performed or authorized by such indemnifying Party; provided, however, that the foregoing shall not be applicable to events or circumstances caused by the negligence or willful act or omission of such indemnified Party, its licensees, concessionaires, agents, servants, employees, or anyone claiming by, through or under any of them unless covered by the release set forth in Section 5.4(d) below. (c) In connection with any construction, reconstruction, alteration, repair, or maintenance on its Lot, each Party reserves the right to create a temporary staging and/or storage area in the Common Area on its Lot or in the Building Area on its Lot at a location which will not unreasonably interfere with access between such Lot and the other areas of the Shopping Center. Prior to the commencement of any work which requires the establishment of a staging and/or storage area on its Lot, a Constructing Party shall give at least thirty (30) days prior notice to the Approving Parties, for their approval, of the proposed location. No other Party's staging area shall, without the prior written consent of the owner of the WinCo Parcel, which may be granted or withheld in its sole, absolute and unreviewable discretion, be located: (i) on the WinCo Parcel, or (ii) within any common drive aisles within the Shopping Center or the access points to the Shopping Center as depicted on the Site Plan. If the Approving Parties do not approve the proposed location of the staging and/or storage area, the Constructing Party shall modify the proposed location to satisfy the reasonable requirements of the Approving Parties. The Constructing Party shall, at the request of the Approving Parties, fence off the staging and storage area. Further, no laborers, suppliers, contractors, or others connected with such 11 42795.0012.12720397.1 construction activities shall use the middle access point to and from Linder immediately to the East of Lot 2 as shown on the Site Plan, or any parking area or access drive located on the WinCo Parcel at any time after the grand opening of the business on the WinCo Parcel, but such parties shall be permitted to use the access points to and from Chinden and also the rear collector road (West Plaza Shops Drive). All storage of materials and the parking of construction vehicles, including vehicles of workers, shall occur only on the Constructing Party's Lot outside of any common drive aisles or access points. Upon completion of such work, the Constructing Party shall restore the affected Common Area and access points to the Property to a condition equal to or better than that existing prior to commencement of such work. (d) Each Party hereby grants and conveys to each Constructing Party and to its respective contractors, materialmen, and laborers a temporary license for access and passage over and across the Common Area of the grantor's Lot as shall be reasonably necessary for the grantee to construct and/or maintain improvements upon the grantee's Lot; provided, however, that, subject to this Section 3. 1, (i) such license shall be in effect only during periods when actual construction and/or maintenance is being performed; and (ii) the use of such license shall not unreasonably interfere with the use, operation, and enjoyment of the Common Area by others. No Party shall interfere with access over and across the access points and common drive aisles located in the Shopping Center without the prior written consent of the Approving Parties. Prior to exercising the rights granted herein, the grantee shall first provide the grantor with a written statement describing the need for such license and shall furnish a certificate of insurance showing that its contractor has obtained the minimum insurance coverage required by Section 5.4(b). Any Party availing itself of the temporary license shall promptly pay all costs and expenses associated with such work, shall diligently complete such work as quickly as reasonably possible, and shall promptly clean the area, and restore and/or repair the affected portion of the Common Area and access points to the Property to a condition which is equal to or better than the condition which existed prior to the commencement of such work. Notwithstanding the foregoing, in the event a dispute exists between the contractor, laborers, suppliers, and/or others connected with construction activities, each Party shall have the reasonable right to prohibit the contractor, laborers, suppliers, and/or others working for another Party from using the Common Area on its Lot. 3.2. Common Area. The Common Area of the Shopping Center shall be initially constructed as shown on the Site Plan, as finally approved by the City of Meridian. No fence or other barrier which would prevent or unreasonably obstruct the passage of pedestrian or vehicular travel within the Common Area shall be erected or permitted within or across the Common Area, exclusive of the limited curbing and other forms of traffic control depicted on the Site Plan, or permitted staging and/or storage areas. Notwithstanding anything to the contrary in this Section 3.2, no Party shall be prohibited from installing a Cart Containment System on its Lot. The following minimum general design standards shall be complied with throughout the term of this DEC: (a) Unless otherwise approved by the Approving Parties, the lighting system shall be designed to produce a minimum maintained lighting intensity measured at grade at all points in the Common Area of at least 2.0 foot candles, the drive areas immediately in front of the entrance to any Building shall have not less than a minimum maintained lighting intensity measured at grade of 4.0 foot candles and a security lighting system designed to produce a minimum maintained lighting intensity of at least 2.0 foot candles or equivalent (based on lighting system used); provided, however, that if the applicable public agency does not allow the lighting intensity set forth herein, then compliance with the applicable public agency's maximum lighting intensity allowance shall satisfy the obligation under this Section 3.2(a). The type and design of the Common Area light poles and standards shall be subject to the prior written approval of the Approving Parties. In the event an Operator is designated, the Operator shall meter and maintain the Common Area lighting in accordance with the standards set forth in Sections 4.2 and 5.2 below, and shall invoice the Parties for their pro -rata share of such lighting expenses as part of the Common Area Maintenance Costs; provided, however, that the owner of the WinCo Parcel may elect to 12 42795.0012.12720397.1 separately meter and maintain the lighting on the WinCo Parcel as long as WinCo meets the standards provided in this Section and maintains such lights. The Common Area lights that are located within the area depicted on the Lighting Control Plan attached hereto as Exhibit X-1 ("Lighting Control Plan") shall be separately metered. (b) All sidewalks and pedestrian aisles shall be concrete or other approved materials. The automobile parking areas, drives, and access roads shall be designed in conformity with the recommendations of a registered soils engineer approved by the Approving Parties and shall require the installation of a suitable base and shall be surfaced with an asphaltic concrete or concrete wearing material. (c) Utility Lines that are placed underground shall be at depths designated by consultants approved by the Approving Parties. If surface water retention and/or detention areas are located outside of the general parking lots, such areas shall be fenced or otherwise secured to impede public access thereto. (d) Unless otherwise approved by the Approving Parties, the freestanding signs at the Shopping Center shall be utilized as follows: (i) Two (2) multi -tenant pylon signs, two (2) center identification signs, the monument signs, and one WinCo Monument Sign shall be located at the approximate locations shown on the Site Plan (collectively, the "Center Signs'). The Center Signs may only be used to identify the Occupants of the Shopping Center and the Shopping Center itself. The owner of the WinCo Parcel shall be entitled to the top panel signage area and the Electronic Message Board ("EMD") on the multi -tenant pylon sign labeled "WinCo Multi -tenant Pylon Sign" on the Site Plan, and no more than eight (8) double -sided panels shall be on the WinCo Multi -tenant Pylon Sign and available to Occupants of the Shopping Center. The monument sign located at the curb - cut off Linder, as shown on the Site Plan (the "WinCo Monument Sign") will identify only the Occupant of the WinCo Parcel, which initially will be WinCo, and WinCo shall be responsible for the repair, maintenance and/or replacement of the WinCo Monument Sign. The Multi -tenant Monument Sign on Linder Road will have no more than Eight (8) double -sided panels to be used only by the occupants of the Shopping Center. (ii) The design and construction of, and the panel inserts on, the multi -tenant pylon signs shall be subject to the prior written approval of the Approving Parties, which approval shall not be unreasonably withheld, conditioned, or delayed. Each of the individual sign panels on such multi -tenant pylon signs shall be maintained by the individual sign users as set forth in Section 4.2(a) below and subject to the requirements of Section 2.4 above. (iii) Subject to the prior written approval of High Desert, the owners of the other Lots may erect monument signs on their Lots at locations approved in writing by High Desert in their sole, absolute and unreviewable discretion. In no event shall any such monument signs be included in the definition of the "Center Signs" set forth in Section 3.2(d)(i) above. The design and construction of, and the inserts on, each such monument sign, shall be subject to the prior approval of High Desert and each monument sign shall be no more than ten feet (10') in height above ground level, and shall have a total sign panel of no more than seventy-five (75) square feet. In no event shall any such monument sign be placed within fifty (50) feet of the WinCo Monument Sign. (7) days a week. (iv) The Center Signs shall be fully illuminated from dusk until dawn, seven 13 42795.0012.12720397.1 (v) The owner of the WinCo Parcel shall have the right to install, meter and maintain an electronic or digital message display on the signage area allocated to it on the Center Signs and on any monument signs located on the WinCo Parcel. (e) The parking area on each separate Lot shall contain sufficient ground level parking spaces in order to comply with the following minimum requirements: (i) The number of parking spaces and configuration of the parking spaces for each Lot shall be as shown on the Site Plan, unless modified in writing by the Approving Parties. All governmental rules, regulations, and/or ordinances relating to parking requirements, as if such Lot were a separate legal Lot with self -parking requirements; (ii) If an Occupant's use contains a drive -up unit (such as remote banking teller or food ordering/dispensing facility), then, there shall also be created space for stacking not less than five (5) automobiles for each drive -up unit; (iii) In the event of a condemnation of part of a Lot or sale or transfer in lieu thereof or in the event of a casualty, which condemnation or casualty reduces the number of usable parking spaces below that which is required herein, the Party whose Lot is so affected shall use commercially reasonable efforts (including using proceeds from the condemnation award or settlement or insurance) to restore and/or substitute ground level parking spaces within the Common Area on its Lot in order to comply with the parking requirements set forth in this DEC. If, upon completion of restoration and/or substitution compliance with this Section 3.2(f)(iv) is not possible, such Party shall not be deemed in default hereunder, but such Party shall not be permitted to expand the amount of Floor Area located upon its Lot unless authorized to do so by the Approving Parties; and (iv) Each Party may upon thirty (30) days prior written notice to the Approving Parties and any Adjacent Party temporarily reduce the amount of parking available on its Lot for a period of ninety (90) days (unless otherwise extended with the consent of the Approving Parties) in order to construct, repair, or reconstruct any improvements on its Lot, so long as such reduction does not interfere with the use of any other Lot, such Party diligently proceeds with completion of such work and the Party's Lot complies with the parking requirements hereunder upon the completion of such construction, repair, or restoration. (f) No Party shall make changes to the Common Area on its Lot without the prior approval of the Approving Parties, except that each Party hereby reserves the right, from time to time without obtaining the consent or approval of any other Party, to make at its own expense any insignificant change, modification, or alteration in its portion of the Common Area, including the installation of convenience facilities such as mailboxes, public telephones and benches, provided that: (i) The accessibility of such Common Area for pedestrian and vehicular traffic (as it relates to the remainder of the Shopping Center) is not unreasonably restricted or hindered, and all parking stalls and rows and vehicular traffic lanes shall remain generally as shown on the Site Plan; (ii) There shall be maintained at all times within such Common Area, a sufficient number of vehicular surface parking spaces to meet the parking requirements set forth in Section 3.2(e); 14 42795.0012.12720397.1 (iii) No governmental rule, ordinance, or regulation shall be violated as a result of such action, and such action shall not result in any other Party being in violation of any governmental rule, ordinance, or regulation; (iv) No change shall be made in the access points between the Common Area and the public streets; provided, however, that additional access points may be created with the prior approval of the Approving Parties, which approval shall not be unreasonably withheld, conditioned, or delayed; (v) At least sixty (60) days prior to making any such change, modification, or alteration, the Party desiring to do such work shall deliver to each other Party copies of the Plans therefor. Except for the Initial Work construction of the Common Area and for repair of any Utility Lines, no such work shall occur on Lot(s) 1, 2, 3, 15, and 16 between November l Oth and the following January 10th; and (vi) Upon completion of such work, the Constructing Party shall restore the affected Common Area and access points to the Shopping Center to a condition equal to or better than that existing prior to commencement of such work. 3.3. Building Improvements. (a) While no Party shall have an obligation to commence construction of any Building on its Lot (unless provided in a lease or other legal document between High Desert and a Party), once construction has been commenced, such Building shall be completed in a timely fashion. Each Building on a Lot shall be located only within the Building Area within building limit lines designated on the Site Plan for such Lot. The Building Area for each Building shall not exceed the number of square feet designated in Section 3.3(e) for that Building. Other than the initial construction of the Building on the WinCo Parcel, there shall be no Building construction work performed between November 10`" and the following January 10`" on Lots 1, 2, 3, 15, and 16. (b) The exterior of all Buildings to be constructed or placed within the Shopping Center shall be architecturally and aesthetically compatible. In order to ensure the exterior architectural and aesthetic compatibility of the Buildings within the Shopping Center, each Party shall submit to High Desert detailed Plans covering the initial construction of each Building and any additions, remodeling, reconstruction, or other alteration thereto which changes the exterior thereof for approval at least thirty (30) days prior to the commencement of any such work. If High Desert should reject the Plans for not being architecturally and aesthetically compatible, the submitting Party and High Desert shall mutually consult to establish approved Plans for the proposed work. High Desert shall not arbitrarily or unreasonably withhold approval of the Plans, nor shall they withhold approval of exterior remodeling or exterior reconstruction which does not substantially change an existing structure. Approval of Plans by High Desert shall not constitute assumption of responsibility for the accuracy, sufficiency, or propriety thereof, nor shall such approval constitute a representation or warranty that the Plans comply with applicable laws. No material deviation shall be made from the approved Plans. Notwithstanding anything to the contrary in this Section, the owner of the WinCo Parcel shall not be required to submit or obtain the approval of any Plans for any additions, remodeling, reconstruction, or other exterior alteration of the Building on the WinCo Parcel, so long as such addition, remodeling, reconstruction or other alteration complies with the other provisions of this DEC and (i) does not increase the size of the building located on the WinCo Parcel, (ii) any alteration is within the building limit lines, (iii) does not materially alter the building materials or architectural compatibility on the building from the original design. Further, with respect to any Buildings to be located on Lots 1, 3, 4, 5, 6, 7, and 15, to ensure such architectural and aesthetic compatibility, the detailed Plans submitted to High Desert by each Party shall 15 42795.0012.12720397.1 also be submitted to WinCo for its review and approval, not to be unreasonably conditioned, delayed or withheld, it being understood and agreed that national retailers' elevations/color plate, and signage plans shall be deemed architecturally compatible and not require WinCo approval, however, such national retailers' elevations/color plate, and signage plans shall be provided to WinCo for its files prior to any construction beginning on such Parcels. (c) Buildings may be placed along the common boundary lines between the WinCo Parcel and the other Lots provided the Buildings to be constructed (1) are architecturally and aesthetically compatible with the Building or Buildings on the WinCo Parcel; (2) do not adversely affect the fire rating of the Building or Buildings on the WinCo Parcel; (3) do not encroach (including any footings) on the WinCo Parcel; and (4) otherwise comply with the requirements of this DEC, including, but not limited to, those requirements set forth in this Section 3.3 and Section 3.5. The construction of any Buildings to be placed along the common boundary lines with the WinCo Parcel may be constructed while the initial Building on the WinCo Parcel is being constructed only if the timing of such construction does not impact WinCo's construction schedule, as reasonably determined by WinCo in consultation with High Desert. (d) The second Party to construct a Building along a common boundary line shall do so in a manner that does not result in damage to the improvements in place on the adjoining Lot, and further shall undertake and assume at its sole cost the obligation of completing and maintaining the nominal attachment (flashing and seal) of its Building to that of the existing Building on the other Lot, it being the intent of the Parties to establish and maintain the appearance of one continuous building complex. In performing such attachment, the wall of one Building shall not receive support from nor apply pressure to the wall of the other Building. (e) No Building or other structure (exclusive of any light poles, free standing signs referred to in Section 3.2 or 5.2 or flag poles) shall exceed the following allowable Floor Area and height restrictions without the prior written approval of the Approving Parties: LOT PAD BUILDING HEIGHT HEIGHT OF ARCHITECTURAL FEATURES ALLOWABLE FLOOR AREA LOT SIZE Lot 1 2.75 acres K 26 31 5,000 S.F. L 26 31 6,500 S.F. M 26 31 5,000 S.F. N 26 31 5,000 S.F. Lot 2 WinCo 31 45 81,000 S.F. 8.06 acres Lot 3 Bldg. 1 26 31 12,250 S.F. 1.28 acres Lot 4 Bldg. 2 26 31 16,400 S.F. 2.34 acres Lot 5 Pad A 26 31 6,000 S.F. 1.27 acres Lot 6 Restaurant 30 35 8,000 S.F. 1.39 acres Lot 7 Pad B 26 31 5,000 S.F. 1.27 acres Lot 8 Pad C NA NA 7,000 S.F. 1.03 acres Lot 9 Building 3 NA NA 5,000 S.F. 1.46 acres Lot 10 Fuel NA NA 5,000 S.F. 1.49 acres Lot 14 12.96 acres Res./Office 30 40 16,800 S.F. Res./Office 30 40 16,800 S.F. Res./Office 30 40 16,800 S.F. Res./Office 30 40 16,800 S.F. 16 42795.0012.12720397.1 The height of any Building or Architectural Feature shall be measured perpendicular from the finished floor elevation to the top of the roof structure (including any screening, parapet, penthouse, mechanical equipment, or similar appurtenance located on the roof of such Building) or Architectural Feature, as applicable. The Buildings located on the Lots as set forth in the foregoing table shall mean and refer to the respective Buildings as they are identified on the Site Plan. The Buildings identified as Mid Anchor 2, 3 and 4 may be combined to more or less than three (3) buildings as long as the total square footage of Floor Area does not exceed 90,000 square feet. The buildings to be located on Lot 11, 12 or 13 shall have additional flexibility as Future Development and shall not be subject to size, site plans or building requirements in this DEC. (f) Any Party shall have the right to install, maintain, repair, replace, and remove Communications Equipment on the top of the Building on its Lot so long as such equipment (i) does not extend above the height limits established in Table 3.3(d) above and (ii) is screened so that it is not visible to customers; provided, however, that WinCo shall have the right place Communications Equipment anywhere on the WinCo Parcel without being subject to these limitations. (g) No Building or other structure on Lot 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 or 15 shall exceed one (1) story unless approved by the Approving Parties. An internal mezzanine level for the installation of equipment and storage on non -sale merchandise or offices in conjunction with the operation of its business, shall be permitted. 3.4. Phased Development. (a) WinCo and High Desert anticipate that certain Initial Work will be performed on all or certain portions of the Shopping Center. The Remaining Work shall be performed in accordance with and subject to the terms and conditions applicable thereto set forth elsewhere in this DEC and in accordance with this Section 3.4. All of the Remaining Work applicable to any Lot shall be completed prior to the earlier of. (i) initial occupancy of any Building on such Lot in question; or (ii) issuance of any certificate of occupancy for any such Building. Nothing in this DEC shall obligate any Party to commence any Remaining Work, but once commenced, all of the Remaining Work for the Lot in question shall be prosecuted continuously and with all due diligence to completion. The Remaining Work shall be performed (if at all) under separate contract(s) and shall be independent of the Initial Work, and the owner of the WinCo Parcel shall not have any responsibility therefor. 17 42795.0012.12720397.1 Market 26 31 3,800 S.F. Market 26 31 3,800 S.F. Library 30 35 15,000 S.F. Mid Anchor 2 30 35 25,000 S.F. Mid Anchor 3 35 40 50,000 SY Mid Anchor 4 30 35 15,000 S.F. Pad J 26 31 7,200 S.F. Lot 15 Mid Anchor 1 30 35 25,000 S.F. 1.73 acres Lot 16 1.52 acres Live/work 3/4 story 45,000 S.F. The height of any Building or Architectural Feature shall be measured perpendicular from the finished floor elevation to the top of the roof structure (including any screening, parapet, penthouse, mechanical equipment, or similar appurtenance located on the roof of such Building) or Architectural Feature, as applicable. The Buildings located on the Lots as set forth in the foregoing table shall mean and refer to the respective Buildings as they are identified on the Site Plan. The Buildings identified as Mid Anchor 2, 3 and 4 may be combined to more or less than three (3) buildings as long as the total square footage of Floor Area does not exceed 90,000 square feet. The buildings to be located on Lot 11, 12 or 13 shall have additional flexibility as Future Development and shall not be subject to size, site plans or building requirements in this DEC. (f) Any Party shall have the right to install, maintain, repair, replace, and remove Communications Equipment on the top of the Building on its Lot so long as such equipment (i) does not extend above the height limits established in Table 3.3(d) above and (ii) is screened so that it is not visible to customers; provided, however, that WinCo shall have the right place Communications Equipment anywhere on the WinCo Parcel without being subject to these limitations. (g) No Building or other structure on Lot 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 or 15 shall exceed one (1) story unless approved by the Approving Parties. An internal mezzanine level for the installation of equipment and storage on non -sale merchandise or offices in conjunction with the operation of its business, shall be permitted. 3.4. Phased Development. (a) WinCo and High Desert anticipate that certain Initial Work will be performed on all or certain portions of the Shopping Center. The Remaining Work shall be performed in accordance with and subject to the terms and conditions applicable thereto set forth elsewhere in this DEC and in accordance with this Section 3.4. All of the Remaining Work applicable to any Lot shall be completed prior to the earlier of. (i) initial occupancy of any Building on such Lot in question; or (ii) issuance of any certificate of occupancy for any such Building. Nothing in this DEC shall obligate any Party to commence any Remaining Work, but once commenced, all of the Remaining Work for the Lot in question shall be prosecuted continuously and with all due diligence to completion. The Remaining Work shall be performed (if at all) under separate contract(s) and shall be independent of the Initial Work, and the owner of the WinCo Parcel shall not have any responsibility therefor. 17 42795.0012.12720397.1 (b) On or before substantial completion of the Initial Work and except for areas on which any Party is then prosecuting any Remaining Work, any undeveloped Lot shall either be hard surfaced or left in a natural, but attractive, condition until Building improvements are constructed thereon. The owner of any such Lot shall take such steps on an on-going basis as are reasonably necessary to prevent erosion or blowing dust. In addition, the Party engaging in any Remaining Work shall leave the Initial Work, including all drive lanes and access points, open and accessible, and shall perform such construction in such manner as will not adversely affect the balance of the Shopping Center, or the businesses from time to time being conducted thereon, in any material way. 3.5 Fire Protection. All improvements within the Shopping Center shall be constructed in compliance with the Building Code. Additionally, (a) all improvements within sixty feet (60') of the Building on the WinCo Parcel shall be sprinklered for fire protection such that the unlimited Building Area for all Buildings shall be preserved, and; (b) there shall be sixty feet (60') of open space as depicted on the Site Plan on which no Buildings may be constructed around the Building on the WinCo Parcel and all Buildings which are adjacent to, abut or are in-line with the Building on the WinCo Parcel (the "No - Build Easement") such that the unlimited Building Area for the Building on the WinCo Parcel and any such adjacent, abutting or in-line Buildings shall be preserved. If required by governmental or quasi - governmental agency having jurisdiction, the Parties shall execute and record a separate No -Build Easement in the official records of Ada County, Idaho. Notwithstanding anything to the contrary in this Section 3.5, nothing shall prevent construction, use and maintenance within the No -Build Easement of any driveways, sidewalks, curbs and gutters, parking, landscaping, and similar uses which do not constitute buildings or structures as contemplated by the Building Code. Notwithstanding anything to the contrary in this DEC, no Party shall seek a building permit for a Building within sixty feet (60') of the permissible Building Area on the WinCo Parcel without the prior written consent of the owner of the WinCo Parcel, which such approval shall not be unreasonably withheld; provided, however, that the location of the Building to be built on Lot 15 with zero -lot line footings and no attachments to the WinCo Building unless approved by WinCo, as shown on the Site Plan, is hereby consented to and approved by WinCo, with WinCo retaining the right to approve the Building's elevations. 4. MAINTENANCE AND REPAIR. 4.1. Utility Lines and Center Signs. (a) Each Party shall maintain and repair, or cause to be maintained and repaired, in a good state of repair and safe condition, all Separate Utility Lines utilized by it regardless of where located within the Shopping Center. Subject to the provisions of Section 2.2(a) above, all Separate Utility Lines must be underground. Any maintenance and repair of utilities not dedicated to a public utility company which are located on another Party's Lot shall be performed: (i) after two (2) weeks prior notice to the grantor (except in an Emergency Situation the work may be initiated with reasonable notice); (ii) after normal business hours whenever possible; and (iii) in such a manner as to cause as little disturbance in the use of the grantor's Lot as is practicable under the circumstances. Any Party performing or causing to be performed maintenance or repair work shall: (1) promptly pay all costs and expenses associated therewith; (2) diligently complete such work as quickly as reasonably possible; and (3) promptly clean the area and restore the affected portion of the Common Area to a condition equal to or better than the condition which existed prior to the commencement of such work. (b) Common Utility Lines shall be maintained and replaced by the owner of the Lot on which such Common Utility Line is located; provided, however, that in the event an Operator is designated, the Operator shall maintain the Common Utility Lines as part of the Common Area pursuant to Section 4.3 below. 18 42795.0012.12720397.1 (c) Monument signs shall be maintained and replaced by the owner of the Lot on which such monument sign is located, except the WinCo Monument Sign which shall be repaired, maintained and/or replaced by the owner of Lot 2. If an Operator is designated, the Operator shall maintain the multi -tenant Pylon Signs as part of the Common Area pursuant to Section 4.3 below. 4.2. Building; Maintenance. (a) Each Party shall at all times during the term of this DEC, at such Party's sole cost and expense, (i) maintain, repair and replace the Building Area located on such Party's Lot and keep the Building Area in good condition and repair, clean and free of litter and other hazards to Permittees; (ii) after completion of construction on such Party's Lot, maintain, repair, and replace the exterior portion of such Building; and (iii) if such Party is entitled to use sign space on the Center Sign or monument sign, maintain, repair, and replace such Party's individual sign panel thereon. Prior to construction of a Building on a Party's Lot, such Party shall, at its sole cost and expense, keep the unimproved area of its Lot mowed and clean and free from all debris, litter, and other hazards to Permittees. Each Party's maintenance of its Lot as set forth herein shall: (i) meet or exceed the minimum standards set forth in Exhibit B, attached hereto; (ii) meet or exceed the standard of maintenance followed in other first class retail developments of comparable size in the Ada County, Idaho area; and (iii) be in compliance with all applicable governmental laws, rules, regulations, orders and ordinances, and the provisions of this DEC (collectively the "Maintenance Standard"). Each Party shall defend, protect, indemnify, and hold each other Party harmless from and against all claims, costs, losses, expenses and liability (including costs and reasonable attorneys' fees) arising from or directly or indirectly relating to the maintenance of its Lot as set forth herein, except for claims caused by the negligence or willful acts of the indemnified Party. (b) Further, each Party shall store all trash and garbage in adequate containers, to locate such containers so that they are not readily visible from the parking area, and to arrange for regular removal of such trash or garbage, except that in the event the Operator designates a common trash container area, then each Party assigned to the applicable trash container area shall be responsible for its pro -rata share of the costs of maintaining such area and the disposal of the trash deposited therein. (c) In the event any of the Building improvements are damaged by fire or other casualty (whether insured or not), the Party upon whose Lot such improvements are located shall, subject to governmental regulations and/or insurance adjustment delays, immediately remove the debris resulting from such event and provide a sightly barrier, and within a reasonable time thereafter shall either: (a) repair or restore the Building improvements so damaged to a complete unit, which repair or restoration must maintain the architectural and aesthetic compatibility of the Shopping Center as a whole and comply with the provisions of this DEC; or (b) erect other Building improvements in such location, such construction to be performed in accordance with all provisions of this DEC; or (c) demolish the damaged portion and/or the balance of such Building improvements and restore the cleared area to either a hard surface condition or a landscaped condition. Such Party shall have the option to choose which of the foregoing alternatives to perform, but such Party shall be obligated to perform one of such alternatives, and such Party shall give notice of which alternative it elects to the Approving Parties and, if one is designated, the Operator, within ninety (90) days from the date of such casualty. 4.3. Common Area Maintenance. (a) Each Party shall at all times during the term of this DEC, at such Party's sole cost and expense maintain, repair and replace the Common Area located on such Party's Lot and keep the Common Area in good condition and repair, clean and free of litter and other hazards to Permittees. Each Party shall perform all tasks that are necessary or beneficial to operate and maintain the Common Area of such Party's Lot in accordance with the Maintenance Standard. 19 42795.0012.12720397.1 (b) If an Operator is designated by High Desert, the Operator shall perform all tasks that, in the Operator's reasonable judgment, are necessary or beneficial to operate and maintain the Common Area in accordance with the Maintenance Standard and each Party shall share the costs and expenses of the Operator's operation and maintenance of such Common Area in the manner set forth in this Section 4.3. The shared costs of the operation and maintenance of the Common Area shall include all sums expended in connection within the general operation and maintenance of the Common Area and the repair or replacement of any improvements in the Common Area (the "Common Area Maintenance Costs"), including, without limitation, sums expended for the following: gardening and landscaping; the cost of public liability, property damage, and other insurance that meets the requirements set forth in Section 5.4, below; maintaining, cleaning, repairing and/or replacing sidewalks; line painting, paving, maintaining, repairing, and/or replacing the parking areas, drive aisles and driveways; snow and ice removal for the parking areas, drive aisles, driveways, and sidewalks; maintaining, repairing, and/or replacing all Common Utility Lines; maintaining, repairing, and/or replacing all lighting, electricity, sewer and water allocable to the Common Area, including any utility lines servicing the Center Signs; maintaining, replacing, and/or repairing all Center Signs, including individual panels thereon (except as set forth in subsection (vii) below); sanitary control and removal of trash, rubbish, garbage, and other refuse from the Common Area; with respect to all equipment and machinery used to maintain and operate the Common Area, the cost thereof if owned, or any rental paid therefor if leased; all items of repair, maintenance, and/or replacement of any improvements as may be required at any time or from time to time by a governmental agency having jurisdiction thereof; any public utility or governmental charges, surcharges, any other costs levied, assessed or imposed pursuant to laws, statutes, regulations, codes and ordinances promulgated by any governmental or quasi -governmental authority in connection with the use of the Common Area; and other expenses necessary or beneficial, in the Operator's reasonable judgment, for the maintenance and operation of the Common Area in accordance with the Maintenance Standard, and/or the repair or replacement of any improvements within the Common Area in accordance with the Maintenance Standard. With the exception of the minimum standards and requirements set forth in the Maintenance Standard, the enumeration of specific tasks herein shall not be construed to obligate the Operator to perform any such specific tasks. For purposes of this DEC, in no event shall the Common Area Maintenance Costs include any of the following: (i) Any late charges or fees, or any cost, fee, fine, penalty or similar charge; (ii) Any costs or expenses for utilities separately paid by any Party; (iii) Any costs to clean up or repair the Common Area resulting from promotional or holiday activities; (iv) Any costs for seasonal or promotional sales in a Party's Outdoor Sales Area, which shall be paid by the Party holding such sale; (v) Any costs resulting from or arising out of the repair or replacement of any items or improvements to the extent covered by warranties or guaranties; (vi) Any costs for the construction, maintenance, or replacement of any Buildings within the Shopping Center; (vii) Any costs of any individual sign panel, or the initial design and installation, or re -design, replacement, and installation, of a Party's individual sign panel insert on Center Signs; 20 42795.0012.12720397.1 (viii) Any costs for the installation, operation and maintenance of any electronic or digital message display on Center Signs. (ix) Real property taxes and assessments on the Common Area; (x) Any general corporate overhead and general administrative expenses; (xi) Entertainment, transportation, meals, and lodging of anyone; or (xii) Any costs, fees, expenses, and or adjustments to any of the Common Area Maintenance Costs submitted more than two (2) years after the date incurred by the Operator. (c) The Operator shall have the right with regard to any and all maintenance obligations of the Operator under this DEC to contract with a Person for the performance and accomplishment of such obligations as the Operator shall deem proper. Each Party hereby grants to the Operator and its agents and employees a license to enter upon its Lot to discharge the duties to operate and maintain the Common Area in accordance with the Maintenance Standard. The Operator shall defend, protect, indemnify, and hold harmless each Party from and against all claims, costs, losses, expenses, and liability (including reasonable attorney fees and costs of suit) arising from or directly or indirectly relating to its maintenance or operation of the Common Area, except for claims caused by the negligence or willful act or omission of a Party. (d) Notwithstanding anything to the contrary in this Section 4.3, any capital improvements or expenditures for any repair obligations of the Operator in excess of Ten Thousand and No/100 Dollars ($10,000.00) in Constant Dollars shall require the prior written consent of the Approving Parties. For purposes of this Section 4.3, "capital improvements" shall include the replacement of any existing improvements. The Operator shall complete any and all capital improvements in accordance with the standards set forth in Exhibit B. Further, the Operator shall submit all capital improvements in excess of such amount for bid to no less than two (2) general contractors acceptable to the Approving Parties, or one (1) general contractor for each Approving Party if there are more than two (2) Approving Parties. The Approving Parties shall review the bids and consult with one another to select the most qualified and responsible bidder. (e) The Operator shall, within thirty (30) days following the commencement of its operation and maintenance obligations hereunder and at least sixty (60) days prior to the beginning of each calendar year thereafter, provide the Approving Parties with a written Budget for the anticipated Common Area Maintenance Costs for the balance of the current year or the upcoming year, as applicable. The Budget shall be subject to the approval of the Approving Parties and shall separately identify cost estimates for at least the categories of expenses specified in Section 4.3(f) below. The Operator shall use its best efforts to maintain the Common Area in accordance with the Budget. In lieu of Operator's administrative, management, and overhead costs, the Operator shall be permitted to charge an administrative fee, which shall be computed by multiplying the Common Area Maintenance Costs by a percentage determined by the Operator ("Administration Fee"); provided, however, that the Administration Fee for the WinCo Parcel shall be computed by multiplying the Common Area Maintenance Costs by an amount not to exceed ten percent (10%). At no time will WinCo be assessed an Administration Fee on Utility, Tax or Insurance costs. If any of the Operator's personnel at the Shopping Center perform services, functions, or tasks in addition to the Operator's Common Area maintenance obligations pursuant to this DEC, then the cost of such personnel shall be equitably allocated according to time spent performing such duties and that portion not allocated to the Shopping Center shall not be included in the Common Area Maintenance Costs. If an item of maintenance, repair, replacement is to be 21 42795.0012.12720397.1 accomplished in phases over a period of calendar years (such as, without limitation and by way of example only, resurfacing of the drive and/or parking areas) the Operator shall separately identify the cost attributable to such work attributable to such calendar year, the portion of the Common Area affected, and shall note the anticipated cost and timing of such phased work during succeeding quarters and calendar years. The cost of any such phased work approved in the Budget shall be paid by the Parties as a Common Area Maintenance Cost. The Operator shall maintain all records related to Common Area Maintenance Costs, Budgets, Administration Fees, Invoices, and supporting documentation evidencing the Common Area Maintenance Costs for at least seven (7) years from the date of the Invoice to which such records are related. (f) Each Party shall pay to the Operator its share of the Common Area Maintenance Costs and the Administration Fee on a monthly basis. The Common Area Maintenance Costs and the Administration Fee shall, except as otherwise provided herein, be allocated among the Parties in the proportion that, respectively, the total Building Area of each Lot bears to the total Building Area of the Shopping Center excluding any Lots that are self -maintained by the owners or Occupants of such Lots. The Operator shall, on a monthly basis, prepare and submit to each Party an Invoice for such Party's share of the Common Area Maintenance Costs for the previous month and the Administration Fee applicable thereto. Each Party shall pay the amount due under the Invoice on or before thirty (30) days from delivery of the Invoice to each Party in the manner in which Notice are to be provided under Section 9.11, below. If any Party fails to timely pay an Invoice, the amount set forth in such Invoice shall accrue interest in accordance with Section 9.8 below. Notwithstanding the foregoing, in the event a Party's share of the cost of any single item of maintenance, repair, and replacement, including any emergency repair conducted pursuant to Section 4.3(g) below, exceeds Ten Thousand and No/100 Dollars ($10,000.00) in Constant Dollars, the Operator shall amortize the cost of any such item of maintenance, repair, and replacement over a term not less than the life of said maintenance, repair, and/or replacement item. Each Party shall pay interest on any such amortized amount at the rate of U.S. Bank National Association's prime rate of interest (or if it no longer exists a comparable regional national bank located in the State of Idaho), plus two percent (2%) per annum, provided that in no event shall the interest accrued on any amounts amortized pursuant to this Section be included as a Common Area Maintenance Cost for purposes of the calculation of the Administration Fee. The Invoice shall include a statement of each Party's share of the Common Area Maintenance Costs for the previous month and the Administration Fee applicable thereto certified by the Operator and supporting invoices and other materials evidencing the actual Common Area Maintenance Costs paid by it for the operation and maintenance of the Common Area. The Invoice shall be in a form reasonably acceptable to the Approving Parties and shall separately identify the Administration Fee and at least the following categories of Common Area Maintenance Costs: (i) Landscaping and irrigation; (ii) Storm drains and/or surface water retention facilities; (iii) Parking area maintenance; (iv) Parking and Common Area cleaning, sweeping, and lighting; (v) Use of a "day porter" or similar service; (vi) Rental or purchase of equipment and supplies; 22 42795.0012.12720397.1 (vii) Depreciation or trade-in allowance applicable to items purchased for Common Area purposes; (viii) The cost of any phased work approved in the Budget attributable to such year, including the portion of the Common Area affected in such year; (g) Notwithstanding anything to the contrary herein, the Operator shall have the right to make emergency repairs to the Common Area to resolve any Emergency Situation, it being understood that the Operator shall nevertheless advise each Party of such Emergency Situation as soon as reasonably possible, including the corrective measures taken and the cost thereof. The Operator shall submit a supplemental billing for the costs of such emergency repairs to each Party, together with evidence supporting such payment, and each Party shall pay its share thereof within thirty (30) days of receipt of the supplemental billing and supporting documentation. (h) Within ninety (90) days after receipt of any Invoice and supporting documentation, but not more than once per calendar year, each Party shall have the right to audit the Operator's books and records pertaining to the operation and maintenance of the Common Area for the month covered by such Invoice. Said audit shall be conducted at the office of the Operator and the auditing Party shall notify the Operator of its intent to audit at least fifteen (15) days prior to the designated audit date. In the event that such audit shall disclose any error in the determination of the Common Area Maintenance Costs, the Administration Fee or in the allocation thereof to a Lot, an appropriate adjustment shall be made, and the Person owing any sums after such adjustment shall pay such amount to the other Person within ten (10) days following the determination of the adjustment. The cost of any audit shall be assumed by the auditing Party unless the audit determines that such Party is entitled to a refund in excess of five percent (5%) of the amount calculated by the Operator as its share for the quarter, in which event the Operator shall pay the Party's out-of-pocket costs of such audit, excluding transportation, lodging and related costs. (i) The owner of the WinCo Parcel shall have the option, to be exercised in its sole, absolute and unreviewable discretion, to maintain the WinCo Parcel in the manner set forth in this Section 4.3, in which event the Operator shall not maintain the Common Areas on the WinCo Parcel and the owner of the WinCo Parcel shall not be responsible for any Common Area Maintenance Costs (except for sign costs or costs that are not easily segregable); provided, however, that the Operator shall continue to maintain the perimeter landscaping, common drive aisles and common stormwater facilities, and the owner of the WinCo Parcel shall pay its pro -rata share of such maintenance as set forth in Section 4.3(f) above. WinCo shall initially maintain the WinCo Parcel. 0) In the event the Operator fails to maintain the Common Area in accordance with this Section 4.3, any Approving Party may send written notice of such failure to the Operator, which shall contain an itemized statement of the specific deficiencies in the Operator's performance of its obligations under this Section 4.3. The Operator shall have fifteen (15) business days after receipt of such notice in which to cure the deficiencies set forth in such notice; provided, however, that in the event of an Emergency Situation, an Approving Party may immediately commence correction of such situation without providing notice of any default to the Operator. If the Operator fails or refuses to timely correct the deficiencies contained in the notice, then (i) any Approving Party may, at its option, correct the stated deficiencies; and (ii) any Approving Party may, at its option remove the defaulting Operator from acting as the Operator on its Lot. In the event that an Approving Party elects to correct the deficiencies, the Approving Party shall provide each Party an itemized invoice for such Party's share of the costs incurred in correcting the Operator's default, and each Party shall pay such costs to the Approving Party plus an administration fee in the amount of ten percent (10%) of such costs. If the invoice for such costs is not 23 42795.0012.12720397.1 paid within ten (10) business days, interest on the amount due under the invoice from the date of the invoice shall accrue until paid in accordance with Section 8.8, below. (k) In the event the Operator desires to resign as the Operator, such Operator shall deliver written notice thereof to High Desert at least ninety (90) days prior to the date of the proposed resignation; provided, however, that in no event shall the Operator's proposed resignation or any removal of the Operator be effective until such time as a successor Operator has been designated. Any such successor Operator shall be designated in a writing executed by High Desert, and thereafter shall have all rights and obligations of the Operator hereunder. 5. OPERATION OF THE SHOPPING CENTER 5.1. Uses. (a) Subject to the limitations set forth in this Section 5.1, the Parties recognize that the Shopping Center will be used as a mixed use complex including for retail sales, restaurants, offices (financial, medical and otherwise), residential, civic uses (including a library branch and plaza), banking, health, hotel and entertainment. (b) No use shall be permitted in the Shopping Center which is inconsistent with the operation of a first-class retail shopping center. Without limiting the generality of the foregoing, the following uses shall not be permitted: (i) Any use which emits an obnoxious odor, noise, or sound which can be heard or smelled outside of any Building in the Shopping Center, or any noise or sound that is objectionable due to intermittence, beat, frequency, shrillness or loudness; however, this provision shall not be interpreted to restrict the Occupant of the WinCo Parcel from conducting its supermarket operations thereon, including a bakery, in the ordinary course of its business, or to restrict any other Occupant in the Shopping Center that sells food that may create incidental odor (such as, by way of example, a restaurant), provided that the Occupant of the WinCo Parcel and such other Occupants shall take measures normally taken by first-class supermarket operations and food selling businesses located in shopping centers to limit the emission of odors; (ii) Any operation primarily used as a storage warehouse operation and any assembling, manufacturing, distilling, refining, smelting, agricultural, or mining operation; (iii) Any mobile home park, trailer court, labor camp, junkyard, or stockyard (except that this provision shall not prohibit the temporary use of construction trailers during periods of construction, reconstruction, or maintenance); (iv) Any dumping, disposing, incineration, or reduction of garbage (exclusive of garbage compactors or other future technology no more intrusive than garbage compactors located near the rear of any Building); (v) Any fire sale, bankruptcy sale (unless pursuant to a court order) or auction house operation; (vi) Any "second hand" store, "thrift store" or "surplus" store except those such as Ross Dress for Less, Nordstrom Rack, or T.J. Maxx; 24 42795.0012.12720397.1 (vii) Any "dollar type store" use, which includes, for illustrative purposes only, 99 Cent Store, Dollar Store, Dollar Tree, Family Dollar and Dollar General; (viii) Any central laundry or dry cleaning plant (except a small Laundromat or dry cleaning pick up shall be allowed); provided, however, that this prohibition shall not be applicable to: (1) nominal supportive facilities for on-site service oriented pickup and delivery by the ultimate consumer as the same may be found in retail shopping districts in the metropolitan area where the Shopping Center is located; (2) the operation of on-site laundry facilities within a store which services only the internal needs of that store and (3) a "green earth" type retail dry cleaning operator using DF -2000 or any similar hydrocarbon solvent used as an alternative to perchloroethylene; (ix) Any manufactured home, automobile, truck, trailer, boat or recreational vehicles sales, leasing, display, or body shop operation; (x) Any entertainment, recreation, or amusement use or facility (except as noted below), whether directed to children or adults which includes, without limitation, flea markets, movie theaters, live performance theaters, bowling lanes, skating rinks, dance halls, discotheque, off-track betting facilities, casino, card club, bingo parlor, rides, play for fun casino games, and carnival activities; provided, however, that this prohibition shall not be applicable to DVD/movie/game rental vending machines such as "Red Box" or other such nationally recognized DVD rental vending machine. Notwithstanding, the foregoing uses shall be permitted on Lots 11, 12, 13, 14 and 16; (xi) Any residences, living quarters, sleeping apartments, lodging rooms, or any hotel, motel, or other lodging facility. Notwithstanding, the foregoing uses shall be permitted on Lots 11, 12, 13, 14 (excluding the areas on Lot 14 labeled on the Site Plan as "Library" and "Market") and 16. (xii) Any veterinary hospitals or animal raising facilities (except that this prohibition shall not prohibit pet shops or retailers such as Petco or PetSmart). Notwithstanding, the foregoing uses (only as to veterinary hospitals) shall be permitted on Lots 11, 12, 13, 14 and 16; (xiii) Any cemetery, mortuaries, funeral homes or similar service establishments; (xiv) Any adult book or adult video stores or establishments selling or exhibiting pornographic materials, or any other use of a sexually -oriented or "adult" nature; (xv) Any stores selling marijuana (whether medical or otherwise) and/or drug-related paraphernalia; provided that this prohibition shall not be applicable to a retail grocery store operating on the WinCo Parcel; (xvi) Any liquor stores, bars, taverns, or other similar establishments in excess of 5000 square feet of Floor Area selling alcoholic beverages for on -premises or off -premises consumption; provided that this prohibition shall not be applicable to (1) a permitted Restaurant whose reasonably projected annual gross revenues from the sale of alcoholic beverages for on - premises consumption is less than fifty percent (50%) of the gross revenues for such business; or (2) to a retail grocery store operating on the WinCo Parcel; Notwithstanding, the foregoing uses shall be permitted on Lots 11, 12, 13, 14 and 16 without restriction to size; 25 42795.0012.12720397.1 (xvii) Any health spas, massage parlors, fitness centers, gyms, or workout facilities, or any day spas or similar facilities in excess of 5,000 square feet of Floor Area. Notwithstanding, the foregoing uses shall be permitted on Lots 11, 12, 13, 14 (excluding the areas on Lot 14 labeled on the Site Plan as "Library", "Market", "Retail 1" or "Retail 2") and 16 without restriction on size; (xviii) Any school, training, or educational or day care facilities, including, but not limited to, beauty schools, barber colleges, nursery schools, diet centers, reading rooms, places of instruction or other operations catering primarily to students or trainees rather than to customers; provided, however, that this prohibition shall not be applicable to the library referenced in Section 5.1(a) above, or to (1) on-site employee training by an Occupant incidental to the conduct of its business at the Shopping Center; or, (2) Tutor Time, Kinder Care or similar nationally recognized child day care facilities; or, (3) to a diet center or other educational or training uses that does not exceed 5,000 square feet of Floor Area. Notwithstanding, the foregoing uses shall be permitted, without restriction on size, on Lots 11, 12, 13, 14 (excluding the area on Lot 14 labeled on the Site Plan as "Retail 2") and 16; (xix) Any farmers' markets, flea markets, amusement or video arcades (except up to 1500 square feet in size in an adult supervised game arcade shall be allowed). Notwithstanding, an amusement or video arcade shall be permitted on Lots 11, 12, 13, and 14 (excluding the areas on Lot 14 labeled on the Site Plan as "Retail 1", "Retail 2", "Library" and "Market") without restriction on size; (xx) Any public or private nuisance; (xxi) Any fire, explosion, or other damaging or dangerous hazard, including the storage, display or sale of explosives or fireworks; provided, however, that this prohibition shall not be applicable to the seasonal sale of legal fireworks so long as such use: (1) complies with all federal, state and local laws and regulations; (2) is located within a Building; and (3) is incidental to an otherwise permitted use in accordance with this DEC; (xxii) Any gas station, lube shop, tire and/or muffler shop, or car washing establishment; provided that this prohibition shall not be applicable to any of the foregoing uses located on Lots 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13. (xxiii) Any automobile body and fender repair work; or (xxiv) Any church, synagogue, mosque or other place of worship. (c) The following additional use and occupancy restrictions shall apply: (i) Business Offices and Financial Retail Offices shall be permitted in the Shopping Center; provided, however, no Financial Retail Office shall be located on Lot 15 and provided further that the aggregate square footage of all Floor Area dedicated to use as Business Offices and Financial Retail Offices on Lot 3 may not exceed 5,000 square feet. Notwithstanding the foregoing, this restriction shall not be applicable to or include a Business Office or a Financial Retail Office located within a Building which only services the internal needs of that store and does not provide business office services or financial services to the general public. (ii) Restaurants shall be permitted in the Shopping Center, provided, however no restaurant over five thousand (5,000) square feet of Floor Area shall be permitted 26 42795.0012.12720397.1 within 300 feet of the Building on the WinCo Parcel in the Shopping Center. Notwithstanding the foregoing, this prohibition shall not be applicable to the operation of a Restaurant which is incidental to the Occupant's primary business purpose or any Fast Food Restaurant. For the purpose of this Section 5. 1, a Restaurant shall be an "incidental operation" if it occupies less than ten percent (10%) of the Occupant's Floor Area and does not have a separate customer entry/exit door to the outside of the Building. (iii) Fast Food Restaurants of not more than five thousand (5,000) square feet of Floor Area shall be permitted in the Shopping Center (subject to the restrictions provided in Section 5.1(d) below); provided, however, that: (1) no Fast Food Restaurants shall be located on Lot 15; (2) no Fast Food Restaurant that exceeds five thousand (5,000) square feet of Floor Area shall be permitted on Lot 1 or 3; and, (3) the design and location of the drive through facilities of any such Fast Food Restaurant on Lot 1 or 3 and the location of its Building footprint shall be subject to the prior written approval of the owner of the WinCo Parcel, which approval shall not be unreasonably withheld. Without limiting the foregoing and for illustrative purposes only, Fast Food Restaurants include the following: Burger King Hardy's Wendy's McDonald's Carl's Jr Jack In The Box Taco Bell Arby's Taco Time Subway Blimpie (d) The following sets forth what the Parties have previously agreed as being exclusive use provisions in favor of WinCo (hereinafter referred to as the "WinCo Restrictive Covenants"): (i) Until such time as WinCo, as the owner of the WinCo Parcel, opens on the WinCo Parcel a WinCo facility and thereafter for so long as the WinCo Parcel is being used as a retail grocery store operation (which is hereby defined to mean any retail store [including e- commerce retailers that may include, without limitation, storefront drop-off/pick-up facilities], bakery, delicatessen, sushi operation, or farmers' market, engaged in the sale of food products that will be both prepared and consumed off -premises), or has during any portion of the immediately preceding twenty four (24) months been so used, no portion of the Shopping Center or the High Desert Residential Lots, other than the WinCo Parcel, shall be used as a retail grocery store operation; provided, however, that excluded from the definition of a retail grocery store operation are restaurants, sandwich shops, bagel shops, ice cream shops or parlors, yogurt shops or parlors, donut shops (such as Krispy Kreme or Dunkin Donuts), pizza parlors, candy stores, vitamin or nutrition stores (such as a GNC), coffee shops and other similar operations primarily engaged in the sale of food for on -premises preparation and either on -premises consumption or takeout or takeaway (for example, ice cream cones or pizzas). Without limiting the foregoing, for purposes of the WinCo Restrictive Covenants, the term "retail grocery store operation" shall include any small -format grocery stores including, for illustrative purposes only, Sprouts, Grocery Outlet, 99 Cents Stores, Aldi, Lidl, and Wal -Mart's Neighborhood Market or Express stores. Notwithstanding the foregoing, any owner or occupant of a parcel within the Shopping Center may operate a store or business that sells food for off -premises preparation and consumption provided that the area within such store or business dedicated to the sale of food for off premises preparation and consumption shall not exceed the lesser of ten percent (10%) of said store or business' Floor Area, or two thousand five hundred (2,500) square feet of Floor Area (which shall include an allocable portion of the aisle space adjacent to the Floor Area of such 27 42795.0012.12720397.1 use). The restriction contained herein may be waived or modified solely by the owner of the WinCo Parcel in writing, in its sole, absolute and unreviewable discretion by an instrument recorded in the official records of Ada County, Idaho. The twenty four (24) month period referred to above shall not include any period during which the particular use lapses due to (i) force majeure events or (ii) damage, destruction, condemnation, or remodeling of the Building on the WinCo Parcel so long as the owner of the WinCo Parcel diligently proceeds with such repair and restoration of such Building reasonably calculated to permit resumption for such use. (ii) Notwithstanding the foregoing, the WinCo Restrictive Covenants are not intended (and shall not be construed) to prohibit any of the following uses within the Shopping Center: (A) Jackson's, Stinker or similar use service station that may include a convenience store, car wash and fuel dispensers up to 5,000 square feet of Floor Area, (B) a drug store, (C) a specialty retail store that sells primarily goods in a few specific product categories, such as pet food, sporting goods, office supplies, home goods, home improvements, books, toys, party supplies, craft supplies, apparel, shoes, furniture, appliances or electronics; or (D) a traditional department store, discount department store or junior department store, such as Kohl's, Target, Sears, JC Penny or K Mart. (iii) In the event WinCo purchases the WinCo Parcel from High Desert and a retail grocery store operation ceases to operate on the WinCo Parcel for a continuous period of twenty four (24) months or more at any time after the date a WinCo facility on the WinCo Parcel first opens for business for any reason other than (i) a force majeure event, or other temporary closure beyond the reasonable control of WinCo or any other Person occupying the WinCo Parcel, or (ii) temporary closure due to the restoration, reconstruction, expansion, alteration or remodeling of any Buildings or improvements located in the Shopping Center, then the WinCo Restrictive Covenants shall thereafter be void and of no further force or effect. (e) Any Party's Outdoor Sales Area shall be located only on such Party's Lot. Further, no merchandise, equipment or services, including but not limited to vending machines, coffee kiosks, temporary trailers, promotional devices and similar items, shall be displayed, offered for sale or lease, or stored within the Common Area except in the Main Street Shops area or the Plaza area as generally depicted on the Site Plan; provided, however, that the immediately foregoing prohibition shall not be applicable to: (i) the storage of shopping carts; (ii) the seasonal display and sale of bedding plants on the sidewalk in front of any Building located on the WinCo Parcel; (iii) temporary Shopping Center promotions, except that no promotional activities will be allowed in the Common Area (except in the Main Street Shops and Plaza areas) without the prior written approval of the Approving Parties which may be withheld in their sole, absolute and unreviewable discretion; or (iv) newspaper distribution stands and similar public service items. Notwithstanding the foregoing, the Occupant of the WinCo Parcel shall be permitted: (i) To have up to three (3) vending carts, including DVD/movie/game rental vending machines, and the display and sale of merchandise and ready to eat products on sidewalks directly in front of the Building located on the WinCo Parcel, provided that said Occupant maintains said sidewalks at its sole cost in a neat and clean manner; and (ii) To conduct seasonal or promotional sales of merchandise from the WinCo Parcel subject to the following restrictions: (1) sales shall be limited to not more than ninety (90) days per calendar year; 28 42795.0012.12720397.1 (2) all booths, stands, displays and other structures erected in connection therewith shall be promptly removed by said Occupant of the WinCo Parcel upon termination of said activities; (3) the Occupant of the WinCo Parcel shall be responsible for cleaning the Common Area where the sale is held during the sale and for restoring its condition to that existing immediately prior to said sale at the sole cost and expense of the Occupant of the WinCo Parcel. In the event said Occupant does not clean or repair such area promptly, the Operator (or if there is not an Operator, then any other Party) may do so and charge the cost thereof to said Occupant of the WinCo Parcel; and (4) the parking lot sales shall not interfere with the free movement of vehicular traffic within the Shopping Center or with access to or from the Shopping Center, and shall take up no more than twenty (20) parking spaces (f) Except to the extent required by law, no Permittee shall be charged for the right to use the Common Area. For the purpose of this provision, a tax assessment or other form of charge applicable to parking spaces or parking lots may be deemed by the Approving Parties an imposition required by law. (g) In order to minimize interference with normal customer parking within the Shopping Center, each Party shall cause the employees of the Occupants of its Lot to park their vehicles only on such Lot and only in the parking spaces on such Lot designated by the Approving Parties in their reasonable discretion. (h) Notwithstanding anything to the contrary contained herein, this DEC is not intended to, and does not, create or impose any obligation on a Party to operate, continuously operate, or cause to be operated a business or any particular business at the Shopping Center or on any Lot. (i) High Desert may approve a request for Grant of Exclusivity for a specific use on a Lot. Such Grant of Exclusivity shall be made at High Desert's discretion. The Grant of Exclusivity shall only be effective to prohibit other Occupants from engaging in substantially the same business which is protected by the Grant of Exclusivity for so long as the Occupant to whom the Grant of Exclusivity is made continues to conduct regular business operations as the business protected by the Grant of Exclusivity during the Shopping Center's normal days and hours of operation. Notwithstanding anything to the contrary contained herein, no such Grant of Exclusivity shall bind, burden, or otherwise encumber the WinCo Parcel without the owner of the WinCo Parcel's prior written consent, which may be granted or withheld in its sole, absolute and unreviewable discretion. NOTE: HIGH DESERT WILL GRANT EXCLUSIVITY WITHOUT AMENDMENT TO THE DEC UNLESS REQUIRED BY A LARGE TENANT (SUCH AS RITE AID, HOME GOODS, BURLINGTON, PETSMART/PETCO, ROSS, ETC. NO SUCH GRANT WILL RESTRICT THE W1NCO PARCEL UNLESS REQUESTED BY A MAJOR ANCHOR AND WINCO HAS GIVEN PRIOR APPROVAL. 5.2. Lghting. Each Party hereby covenants and agrees to keep its Lot fully illuminated each day from dusk to at least 10:00 p.m. and maintain minimum security lighting thereafter until dawn. During the term of this DEC, each Party grants an irrevocable license to each other Party for the purpose of permitting the lighting from one Lot to incidentally shine on the adjoining Lot. It is recognized that the Occupant of the WinCo Parcel may be open for business at different hours than the Occupants of the other Lots, and that the Occupant of the WinCo Parcel may require that some of the Common Area lights located on other portions of the Shopping Center and some of the entryway lighting depicted on the Lighting Control Plan remain illuminated before and/or after the period 29 42795.0012.12720397.1 required herein. In such event, the owner of the WinCo Parcel may reasonably require that such Common Area lights and entryway lights be installed or modified so that the owner of the WinCo Parcel controls the same as needed to provide lighting before and/or after the hours mentioned above. In such event, the owner of the WinCo Parcel shall pay for any and all expenses incurred for operation of any such Common Area lights on other Lots and the entryway lights which the owner of the WinCo Parcel causes or requires to be kept illuminated before and/or after the period set forth above. 5.3. Occupant Signs. (a) No Occupant identification sign attached to the exterior of a Building shall be: (i) Placed on canopy roofs extending above the Building roof, placed on penthouse walls, or placed so as to project above the parapet, canopy, or top of the wall upon which it is mounted; (ii) Placed at any angle to the Building; provided, however, the foregoing shall not apply to any sign located under a sidewalk canopy if such sign is at least eight feet (8') above the sidewalk; (iii) Painted on the surface of any Building except murals or part of tenants elevation design which have been prior approved by the Approving Parties, such approval not to be unreasonably withheld, conditioned, or delayed; (iv) Flashing or audible signs; (v) Signs employing exposed raceways (unless the raceway is the same color as the Building), exposed ballast boxes, or exposed transformers; or (vi) Paper, cardboard or fabric signs, temporary signs (exclusive of contractor signs), stickers or decals; provided, however, the foregoing shall not prohibit the placement at the entrance of each Occupant's space a small sticker or decal, indicating hours of business, emergency telephone numbers, acceptance of credit cards, and other similar bits of information. This prohibition shall not prohibit a business from using temporary signs to advertise the business' grand opening for a limited period of time; provided that such signs shall only be allowed one (1) week prior to the date the business is first opening for business and one (1) week after said opening date; provided, however, no Occupant, other than the owner of the WinCo Parcel, shall be entitled to place such signs on the WinCo Parcel at any time. Notwithstanding anything in this Section to the contrary, WinCo shall be entitled to (1) fly a WinCo blimp and (2) utilize temporary signage on its Lot and at the primary access points to the Shopping Center for a period of one (1) week prior to, and two weeks following, the date on which it first opens for business to the public on its Lot. (b) Unless approved by the Approving Parties, and excluding the Occupants of the WinCo Parcel, and further subject to any necessary governmental approvals, no Occupant of less than fifty thousand (50,000) square feet of Floor Area shall have an exterior sign which identifies leased departments, and/or concessionaires operating under the Occupant's business or trade name, nor shall such sign identify specific brands or products for sale or services offered within a business establishment, unless such identification is used as part of the Occupant's trade name. 30 42795.0012.12720397.1 (c) Notwithstanding anything in this Section 5.2 to the contrary, each Party shall be permitted to place within the Common Area located on its Lot directional signs or informational signs such as "Handicapped Parking", signs alerting customers that a Cart Containment System is in use, signs providing 24-hour emergency contact information for sprinkler/irrigation systems, and the temporary display of leasing information and the temporary erection of one (1) sign identifying each general contractor working on a construction job. (d) Without limiting any other provision of this DEC, no portion of any Lot may be used to display any temporary or permanent signs, banners, digital displays, advertisements or other marketing materials to advertise or promote a retail grocery store operation or related use that competes with the business located on the WinCo Parcel, even if such competing use is not located in the Shopping Center, including, but not limited to, fueling stations that partner with retail grocery store operations not located within the Shopping Center. 5.4. Insurance. (a) Each Party (as to its Lot only) shall maintain or cause to be maintained in full force and effect Commercial General Liability Insurance with a combined single limit of liability of not less than Five Million and No/100 Dollars ($5,000,000.00) for bodily injury or death, and for property damage, arising out of any one occurrence. Each Party shall name the Approving Parties as "additional insureds" with appropriate endorsements under such policy. The limits of such insurance may be increased from time to time consistent with the practices in similarly situated properties in the Boise - Nampa metropolitan statistical area as determined by the Approving Parties. (b) Prior to commencing any construction activities within the Shopping Center, each Party shall obtain or require its contractor to obtain and thereafter maintain so long as such construction activity is occurring, at least the minimum insurance coverages set forth below: (i) Workers' Compensation statutory limits; (ii) Employers' Liability $1,000,000; and (iii) Commercial General Liability and Business Auto Liability as follows: (1) Bodily Injury and Property Damage combined single limit — $3,000,000 per occurrence; (2) Independent Contractors Liability included; (3) Products/Completed Operations Coverage which shall be kept in effect for two (2) years after completion of work; (4) "XCU" Hazard Endorsement included; (5) "Broad Form" included; (6) "Personal Injury" included; and (7) "Blanket Contractual Liability" included. 31 42795.0012.12720397.1 If the construction activity involves the use of another Party's Lot, then the owner of such Lot shall be named an "additional insured", and such policy will be endorsed to cause such insurance to be primary to any insurance carried by such owner, and such insurance shall provide that the same shall not be canceled, or reduced in amount or coverage below the requirements of this DEC, without at least thirty (30) days prior written notice to the named insureds and each additional insured. If such insurance is canceled or expires then the Constructing Party shall immediately stop all work on or use of the other Party's Lot until either the required insurance is reinstated or replacement insurance obtained. (c) Effective upon the commencement of construction of any Building on its Lot and so long as such Building exists, a Party shall carry, or cause to be carried, commercial property insurance (cause of loss — special form) in the amount of one hundred percent (100%) of full replacement cost of said buildings and contents thereof (excluding footings, foundations or excavations). (d) Each Party (the "Releasing Party") hereby releases and waives for itself, and each Person claiming by, through or under it, each other Party (the "Released Party") from any liability for any loss or damage to all property of such Releasing Party located upon the Releasing Party's Lot, which loss or damage is of the type covered by the insurance required to be maintained under Sections 5.4(a), 5.4(b) or 5.4(c) above5.4(c), irrespective either of any negligence on the part of the Released Party which may have contributed to or caused such loss, or of the amount of such insurance required or actually carried, including any deductible or self-insurance reserve. Each Party shall use its reasonable efforts to obtain, if needed, appropriate endorsements to its policies of insurance with respect to the forgoing release; provided, however, that failure to obtain such endorsements shall not affect the release hereinabove given. (e) All insurance required by Section 5.4 shall be procured from companies licensed in the state where the Shopping Center is located and shall be rated by Best's Insurance Reports not less than A/VII. All insurance may be provided under: (i) an individual policy covering the Party's Lot(s) within the Shopping Center; (ii) a blanket policy or policies which includes other liabilities, properties and locations of such Party; provided, however, that if such blanket commercial general liability insurance policy or policies contain a per location aggregate of not less than $5,000,000; (iii) a plan of self-insurance, provided that any Party so self-insuring notifies the other Parties of its intent to self -insure and, upon request from another Party, shall deliver to such other Party each calendar year a copy of its annual report that is audited by an independent certified public accountant which discloses that such self-insuring Party has not less than $80,000,000 in Constant Dollars or more of net worth, determined in accordance with generally accepted accounting principles; and (iv) a combination of any of the forgoing insurance programs. To the extent any deductible is permitted or allowed as a part of any insurance policy carried by a Party in compliance with Section 5.4, such Party shall be deemed to be covering the amount thereof under an informal plan of self-insurance; provided, however, that in no event shall any deductible exceed $250,000 unless such Party complies with the requirements regarding self-insurance pursuant to (iii) above. Each Party shall furnish to any Party requesting the same, or the Operator at its request, certificates of insurance and endorsements evidencing that the insurance required to be carried by such Person is in full force and effect. 32 42795.0012.12720397.1 (f) The insurance required pursuant to Sections 5.4(a) and (b), above, shall include the following provisions: (i) shall provide that the policy may not be canceled or reduced in amount or coverage below the requirements of this DEC, without at least thirty (30) days prior written notice to each insured and to each additional insured; (ii) shall provide for severability of interests; (iii) shall provide that an act or omission of one of the insureds or additional insureds which would void or otherwise reduce coverage, shall not reduce or void the coverage as to the other named insureds; and (iv) shall provide for contractual liability coverage with respect to the indemnity obligation set forth herein. In no event shall the coverage limits of the insurance coverage required by subsection (iv) of this Section limit the indemnity obligations of any Party hereunder. (g) If an Operator is designated, the Operator shall maintain or cause to be maintained for the Common Area, insurance as required by and in accordance with this Section 5.4. (h) Each Party shall provide to such party named as an "additional insured" on such Party's insurance policy as set forth herein a copy of such policy, endorsement, policy binder, or other such document as may be reasonably requested. (i) Each Party shall defend, protect, indemnify and hold harmless each other Party from and against all claims, including any action or proceedings brought thereon, and all costs, losses, expenses and liability (including reasonable attorney's fees and cost of suit) arising from or as a result of the injury to or death of any Person, or damage to the property of any Person located on the Lot owned by each indemnifying Party, except for claims caused by the negligence or willful act or omission of such indemnified Party, its licensees, concessionaires, agents, servants, or employees, or the agents, servants, or employees of any licensee or concessionaire thereof. Q) The Parties specifically acknowledge that: (i) a public library, operated by the Meridian Library District, containing approximately 15,000 square feet of Floor Area, may be located with the Shopping Center, in a location as generally depicted on the Site Plan; (ii) the Meridian Library District is a public corporation and a public library district organized under the provisions of Idaho Code Section 33-2701, et seq., and as such is insured through the Idaho Counties Risk Management Program ("ICRMP"); and (iii) ICRMP coverage is acceptable and in compliance with the requirements of this DEC, and any insurance requirement or obligation in this DEC which is contrary to insurance offered by ICRMP or unavailable through ICRMP is void and inapplicable as to the Meridian Library District, or any successor in interest that may be similarly insured by ICRMP, including, without limitation, any disallowance by ICRMP of provisions for additional insureds, indemnity and waiver of subrogation. 5.5. Taxes and Assessments. Each Party shall pay, or cause to be paid prior to delinquency, all taxes and assessments with respect to its Lot, the Buildings, and improvements located thereon and any personal property owned or leased by such Party in the Shopping Center, provided that if the taxes or assessments or any part thereof may be paid in installments, the Party may pay each such installment as and when the same becomes due and payable. Nothing contained in this subsection shall prevent any Party from contesting at its cost and expense any such taxes and assessments with respect to its Lot in any manner such Party elects, so long as such contest is maintained with reasonable diligence and in good faith. At the time as such contest is concluded (allowing for appeal to the highest appellate 33 42795.0012.12720397.1 court), the contesting Party shall promptly pay all such taxes and assessments determined to be owed, together with all interest, penalties and costs thereon. 5.6. Mechanics' and Materialmen's Liens. In the event any mechanic's or materialman's lien is filed against the Lot of one Party as a result of services performed or materials furnished for the use of another Party, the Party permitting or causing such lien to be so filed shall cause such lien to be discharged within thirty (30) days after the filing of the lien, either by paying the indebtedness which gave rise to such lien or by posting any bond or other security as shall be required by law to obtain such release and discharge. In the event that such Party does not obtain a release of the lien, the Party whose Lot is subject to such lien may bond for or otherwise obtain a release of the lien and collect all expenses incurred in connection therewith from the other Party. The Party permitting or causing a mechanic's or materialman's lien to be so filed shall defend, protect, indemnify and hold harmless the other Party and its Lot against liabilities, losses, damages, costs or expenses (including reasonable attorneys' fees and cost of suit) on account of such claim of lien. Nothing herein shall prevent the Party permitting or causing such lien from contesting the validity thereof in any manner such Party chooses so long as such contest is pursued with reasonable diligence. 6. ENVIRONMENTAL MATTERS. 6.1. Duties of Users. Except as provided in Section 6.2, neither the Parties nor any Occupant(s) shall release, generate, use, store, dump, transport, handle, or dispose of any Hazardous Material within the Shopping Center or otherwise permit the presence of any Hazardous Material on, under, or about the Shopping Center or transport any Hazardous Material to or from the Shopping Center. Any such use, handling or storage permitted under Section 6.2 shall be in accordance with all Environmental Laws and all other applicable laws, ordinances, rules, and regulations now or hereafter promulgated by any governmental authority having appropriate jurisdiction. Neither the Parties nor any Occupant(s) shall install, operate, or maintain any above, below, or at grade tank, sump, pit, pond, lagoon, or other storage or treatment vessel or device on or about the Shopping Center unless Plans therefor have been submitted to and approved by the Approving Parties pursuant to Section 6.2 hereof. Each Party with respect to its Lot shall immediately notify the other Parties in writing of the following with respect to such Party's Lot: (a) any notice of violation or potential or alleged violation of any laws, ordinances, or regulations which the Party shall have received from any governmental agency concerning the use, storage, release, and/or disposal of Hazardous Materials; (b) any and all inquiry, investigation, enforcement, cleanup, removal, or other governmental or regulatory actions instituted or threatened relating to such Lot(s); (c) all claims made or threatened by any third party relating to any Hazardous Materials; and (d) any release of Hazardous Materials in a reportable quantity on or about the Shopping Center which such Party knows of or reasonably believes may have occurred. Such notice shall be accompanied by copies of any notices, inquiries, or other documentation issued to the notifying Party in connection with such matters. 6.2. Permitted Use, Storage, Handling and Disposal of Hazardous Materials. Notwithstanding anything contained in Section 6.1 to the contrary, any Party, or any Occupant or Permittee may sell, store, and use products containing Hazardous Materials in, on, or about the Lot occupied by such Party, Occupant or Permittee or the Common Areas to the extent such products and/or equipment are incidental to normal shopping center operations, and are sold, stored, or used in compliance with all applicable Environmental Laws. By way of example, and not limitation, such permitted materials may include paints, oils, solvents, sealers, adhesives, finishes, fertilizers, medicines, insecticides and rodent poisons, and the like, which may be or contain Hazardous Materials, so long as such products are produced, packaged, and purchased for retail sale and generally merchandised or sold in retail outlets or are normally used in maintaining or repairing shopping center improvements. A Party or an Occupant may also use other Hazardous Materials in connection with its use of its Lot if such Party or 34 42795.0012.12720397.1 Occupant has received the Approving Parties' prior consent to the same. The Approving Parties shall not unreasonably withhold its consent provided that: (a) the Party demonstrates to the Approving Parties' reasonable satisfaction that such Hazardous Materials (i) are necessary or useful to the Party's or its Occupant's business, (ii) will be monitored, used, stored, handled, and disposed of in compliance with all Environmental Laws, (iii) will not endanger any persons or property, and (iv) will not invalidate or limit the coverage or increase the premiums of any insurance policy affecting or covering any portion of the Shopping Center; (b) the Party or Occupant provides the Approving Parties with such security as may be reasonably required by the Approving Parties to help secure such Party's or Occupant's performance of its obligations under Section 6.3; and (c) such Party or Occupant satisfies any other requirements any other Party may reasonably impose with respect to the Party's or Occupant's use of the subject Hazardous Materials. 6.3. Cleanup of Hazardous Materials. In the event Hazardous Materials are released within the Shopping Center in violation of any Environmental Laws and such release occurred as a direct or indirect result of a Party's or its Occupant's or Permittee's use, handling, storage, or transportation of such Hazardous Material, as between the Parties, such Party or Occupant engaged in such activity shall be solely responsible and shall be liable for the prompt cleanup and remediation of any resulting contamination and all claims, costs, expenses (including reasonable attorney and consultant fees), and damages, including consequential damages, suffered by the other Party, Occupants and Permittees. 7. DEFAULT. 7.1. Events of Default. The occurrence of any one or more of the following events shall constitute a material default and breach of this DEC by the Defaulting Party: (a) The failure to make any payment required to be made hereunder within ten (10) days of the due date; or (b) The failure to observe or perform any of the covenants, conditions or obligations of this DEC, other than as described in Section 7.1(a) above, within thirty (30) days after the issuance of a written notice by the Non -Defaulting Party specifying the nature of the default claimed. 7.2. Cure by Operator or Non -Defaulting Party. With respect to any default under Section 7.1 above, the Operator or any Non -Defaulting Party which is an Approving Party shall have the right, but not the obligation, to cure such default by the payment of money or the performance of some other action for the account of and at the expense of the Defaulting Party; provided, however, that in the event the default shall constitute an Emergency Situation, the Operator or any such Non -Defaulting Party, acting in good faith, shall have the right to cure such default upon such advance notice as is reasonably possible under the circumstances or, if necessary, without advance notice, so long as notice is given as soon as reasonably possible thereafter. To effectuate any such cure, the Operator or such Non -Defaulting Party shall have the right to enter upon the Lot of the Defaulting Party (but not into any Building) to perform any necessary work or furnish any necessary materials or services to cure the default of the Defaulting Party. Each Party shall be responsible for the default of its Occupants. In the event the Operator or any Non -Defaulting Party shall cure a default, the Defaulting Party shall reimburse the Operator or such Non -Defaulting Party for all reasonable out-of-pocket costs and expenses actually paid in connection with such curative action, plus interest as provided herein, within ten (10) days of receipt of demand, together with reasonable documentation supporting the expenditures made. 7.3. Right to Lien. Payments, costs and expenses accruing and/or assessed pursuant to Sections 7.1 and 7.2 above shall constitute a lien against the Defaulting Party's Lot. The lien shall attach 35 42795.0012.12720397.1 and take effect only upon recordation of a claim of lien in the office of the Recorder of Ada County, Idaho, by the Party making the claim. The claim of lien shall include the following: (a) The name of the lien claimant; (b) A statement concerning the basis for the claim of lien and identifying the lien claimant as a curing Party; (c) An identification of the owner or reputed owner of the Lot or interest therein against which the lien is claimed; (d) A description of the Lot against which the lien is claimed; (e) A description of the work performed which has given rise to the claim of lien and a statement itemizing the amount thereof; and (f) A statement that the lien is claimed pursuant to the provisions of this DEC, reciting the date, book and page of recordation hereof. The notice shall be duly verified, acknowledged and contain a certificate that a copy thereof has been served upon the Party against whom the lien is claimed, by personal service or by mailing pursuant to Section 9.11 below. The lien so claimed shall attach from the date of recordation solely in the amount claimed thereby and may be enforced in any judicial proceedings allowed by law, including without limitation, suit in the nature of a suit to foreclose a mortgage or mechanic's lien under the applicable provisions of the law of Idaho. 7.4. Waiver of Default. No waiver by any Party of any default under this DEC shall be effective or binding on such Party unless made in writing by such Party and no such waiver shall be implied from any omission by a Party to take action in respect to such default. No express written waiver of any default shall affect any other default or cover any other period of time other than any default and/or period of time specified in such express waiver. One (1) or more written waivers or any default under any provision of this DEC shall not be deemed to be a waiver of any subsequent default in the performance or the same provision or any other term or provision contained in this DEC 7.5. Equitable Relief. The Operator and each Non -Defaulting Party shall have the right to prosecute any proceedings at law or in equity against any Defaulting Party hereto, or any other Person, violating or attempting to violate or defaulting upon any of the provisions contained in this DEC, and to recover damages for any such violation or default. Such proceeding shall include the right to restrain by injunction any violation or threatened violation by another of any of the terms, covenants, or conditions of this DEC, or to obtain a decree to compel performance of any such terms, covenants, or conditions, it being agreed that the remedy at law for a breach of any such term, covenant, or condition (except those, if any, requiring the payment of a liquidated sum) is not adequate. All of the remedies permitted or available to a Party under this DEC or at law or in equity shall be cumulative and not alternative, and invocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or available right or remedy. 7.6. DEC Continues Notwithstanding Default. No breach of or event of default under this DEC shall: (a) entitle any Party to cancel, rescind, or otherwise terminate this DEC; or (b) defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for value as to any part of the Shopping Center. This limitation shall not affect in any manner any other rights or remedies which a Party may have hereunder by reason of any such breach or default. 36 42795.0012.12720397.1 7.7. Limitation of Liability. Except as specifically provided below, there shall be absolutely no corporate or personal liability of persons, firms, corporations or entities who constitute a Party hereto, including, but not limited to, officers, directors, employees or agents of a Party hereto with respect to any of the terms, covenants, conditions, and provisions of this DEC. In the event of default by a Defaulting Party hereunder, the Operator or any Non -Defaulting Party who seeks recovery from a Defaulting Party hereto shall look solely to the interest of such Defaulting Party, its successors and assigns, in the Shopping Center for the satisfaction of each and every remedy of the Operator or Non - Defaulting Party; provided, however, that the foregoing shall not in any way impair, limit or prejudice the right of any Party: (a) to pursue equitable relief in connection with any term, covenants or condition of this DEC, including a proceeding for temporary restraining order, preliminary injunction, permanent injunction or specific performance; and (b) to recover from another Party (or its guarantor) all losses suffered, liabilities incurred or costs imposed arising out of or in connection with, or on account of, such Party (or its guarantor) not funding its self-insurance obligations which were assumed pursuant to Section 5.4. 8. SPECIAL PROVISION REGARDING SALES TAX ANTICIPATION REVENUE ACT. 8.1 STAR Act. High Desert, pursuant to and in compliance with the Sales Tax Anticipation Revenue Act, codified in Idaho Code Sections 63-3641 and 63-3638(12) (the "STAR Act"), has developed and will continue to develop the Shopping Center as a "retail complex" that qualifies for a rebate of sales taxes collected and remitted to the Idaho State Tax Commission by "qualified retailers within the retail complex" for the purpose of reimbursing High Desert for "project expenses" incurred for the installation of "approved transportation improvements" and held in a "project fund" created by the state treasury, as those terms are defined in the STAR Act. As required by the STAR Act, a Sales Tax Anticipation Revenue Agreement ("STAR Agreement") has been entered into with the Idaho Transportation Department ("ITD" ), the Idaho Transportation Board ("ITD Board") and the Ada County Highway District ("ACHD") for purposes of qualifying the project expenses for reimbursement. Neither the STAR Act nor the STAR Agreement impacts, increases or decreases the amount of sales tax that any Party, Person or Occupant as a retailer in the Shopping Center remits to the State of Idaho. 8.2 Qualified Retailer. Summarized, "qualified retailer" under the STAR Act means a specific location within a retail complex operated by a retailer in regard to which the retailer (i) has obtained a separate seller's permit pursuant to Idaho Code § 63-3620, applicable only to that location and has collected sales or use taxes in regard to retail sales made at that location and has remitted all such taxes to the state tax commission with returns related to that permit, (ii) has been identified in the manner required by rules of the state tax commission as associated with the specific retail complex, and (iii) has not operated in the retail complex prior to its construction. 8.3 Rule 136. The above referenced rules of the Idaho State Tax Commission are found in Idaho Administrative Code Rule 35.01.02.136 ("Rule 136), and, in pertinent part, provide: 02. Qualifying Shopping Center Location. Qualified retailers that are located in a qualifying shopping center must apply for a separate sellers' permit and report sales separately for that location. For instance, if a retailer has multiple stores in Idaho it must file a separate return for any store located in a qualifying shopping center. A retailer who ceases 37 42795.0012.12720397.1 operation in a qualifying shopping center must notify the Tax Commission and cancel the sellers" permit for that location. 03. Confidential Information. Information about an individual store's sales or aggregate sales for stores located in a qualifying shopping center is confidential and may not be released to the public. 04. Developer Responsibilities. The developer of a qualifying shopping center must provide the names and taxpayer identification numbers of the stores located in the shopping center to the Tax Commission. The developer must also notify the Tax Commission whenever a new retailer begins operation or when a retailer ceases operations in a qualifying shopping center. 8.4 Requirements. Accordingly, as required by law, to fulfill the requirements of a "qualified retailer" each retailer in the Shopping Center shall: (i) prior to conducting business at its location in the Shopping Center, obtain a separate seller's tax permit that will be applicable only to that location (the "Tax Permit"); (ii) as confidential information under Rule 136(03) above, provide the number of the Tax Permit to High Desert for High Desert's compliance with Rule 136(04) set forth above; and remit to the Tax Commission all collected sales or use taxes for retail sales made at that location in the Shopping Center with returns related to the Tax Permit and otherwise comply with the provisions of the STAR Act and Rule 136 applicable to a qualified retailer. 8.5 Reimbursements. Any and all reimbursements to High Desert under the STAR Act will be solely the property of High Desert, it successors and assigns, and no other Party, Person or Occupant has any right, title, interest or claim in or to same. 9. MISCELLANEOUS. 9.1. Approval Rights. (a) Nothing contained in this DEC shall limit the right of a Party to exercise its business judgment, or act, in a subjective manner, with respect to any matter as to which it has specifically been granted such right, or the right to act, in its sole discretion or sole judgment, whether "objectively" reasonable under the circumstances, and any such exercise shall not be deemed inconsistent with any covenant of good faith and fair dealing otherwise implied by law to be part of this DEC. The Parties intend by this DEC to set forth their entire understanding with respect to the terms, covenants, conditions, and standards pursuant to which their obligations are to be judged and their performance measured. (b) To the extent approval or consent is required under this DEC, said approval or consent shall not be valid unless the same is in a writing executed by the Party or Parties (if applicable) whose approval or consent is required. Unless provision is made for a specific time period, each response to a request for an approval or consent shall be given by the Party to whom directed within thirty (30) 38 42795.0012.12720397.1 days of receipt of such request. Each disapproval shall be in writing and, subject to (a) above, the reasons shall be clearly stated. Except for any written request tendered pursuant to Section 9.6, if a response is not given within the required time period, the requested Party shall be deemed to have given its approval; provided, however, that in no event shall the owner of the WinCo Parcel be deemed to have given its approval unless in a writing executed by said owner. 9.2. Binding Effect. The terms of this DEC and all easements granted hereunder shall constitute covenants running with the land and shall bind the real estate described herein and inure to the benefit of and be binding upon the signatories hereto and their respective successors and assigns who become Parties hereunder. This DEC is not intended to supersede, modify, amend, or otherwise change the provisions of any prior instrument affecting the land burdened hereby. 9.3. Condemnation. In the event any portion of the Shopping Center shall be condemned, the award shall be paid to the Party owning the land or the improvement taken, except that: (a) if the taking includes improvements belonging to more than one Party, such as Utility Lines or signs, the portion of the award allocable thereto shall be used to relocate, replace or restore such jointly owned improvements to a useful condition; and (b) if the taking includes easement rights which are intended to extend beyond the term of this DEC, the portion of the award allocable to each such easement right shall be paid to the respective grantee thereof. In addition to the foregoing, if a separate claim can be filed for the taking of any other property interest existing pursuant to this DEC which does not reduce or diminish the amount paid to the Party owning the land or the improvement taken, then the owner of such other property interest shall have the right to seek an award for the taking thereof. 9.4. Construction and Interpretation. (a) This DEC and the Exhibits hereto, which are incorporated into this DEC by reference thereto, contain all the representations and the entire agreement between the Parties with respect to the subject matter hereof. Any prior negotiations, correspondence, memoranda or agreements regarding the subject matter of this DEC are superseded in total by this DEC. This DEC has been fully negotiated at "arm's length" between the signatories hereto, and after advice by counsel and other representatives chosen by such signatories, and such signatories are fully informed with respect thereto. No such signatory shall be deemed the scrivener of this DEC; and, based on the foregoing, the provisions of this DEC, and the Exhibits hereto shall be construed as a whole according to their common meaning and not strictly for or against any Party. (b) Whenever required by the context of this DEC: (i) the singular shall include the plural, and vice versa, and the masculine shall include the feminine and neuter genders, and vice versa; and (ii) use of the words "including", "such as", or words of similar import, when following any general term, statement or matter shall not be construed to limit such statement, term or matter to specific items, whether or not language of non -limitation, such as "without limitation", or "but not limited to", are used with reference thereto, but rather shall be deemed to refer to all other items or matters that could reasonably fall within the broadest scope of such statement, terms or matter. (c) The captions preceding the text of each article and section are included only for convenience of reference. Captions shall be disregarded in the construction and interpretation of this DEC. Capitalized terms are also selected only for convenience of reference and do not necessarily have any connection to the meaning that might otherwise be attached to such term in a context outside of this DEC. 39 42795.0012.12720397.1 (d) Any provision of this DEC which is determined by a court of competent jurisdiction to be invalid or unenforceable shall be invalid or unenforceable only to the extent of such determination, which shall not invalidate or otherwise render ineffective any other provision of this DEC. (e) This DEC may be amended by, and only by, a written agreement signed by the then current Approving Party or Approving Parties and shall be effective only when recorded in the county and state where the Shopping Center is located; provided, however, that no such amendment shall impose any materially greater obligation on, or materially impair any right of a Party or its Lot without the consent of such Party. No consent to the amendment of this DEC shall ever be required of any Person other than the Parties. To the extent a Party's consent to an amendment of this DEC is required, such Party: (i) may consider, approve, or disapprove any such proposed amendment to this DEC in its reasonable discretion, and (ii) must approve or disapprove of any such proposed amendment within fifteen (15) days from delivery of such proposal in accordance with Section 9.11 below. If a Party does not respond within the required time period, that Party shall be deemed to have given its approval; provided, however, in no event shall the owner of the WinCo Parcel be deemed to have given its approval unless in a writing executed by said owner. 9.5. Counterparts. This DEC may be executed in several counterparts, each of which shall be deemed an original. The signatures to this DEC may be executed and notarized on separate pages, and when attached to this DEC shall constitute one complete document. 9.6. Estoppel Certificate. Each Party, Occupant, and Operator shall upon written request (which shall not be more frequent than two (2) times during any calendar year) of any other Party, issue to such Person, or its prospective mortgagee or successor, an estoppel certificate stating to the best of the issuer's knowledge that as of such date: (a) whether it knows of any default under this DEC by the requesting Person, and if there are known defaults, specifying the nature thereof; (b) whether this DEC has been assigned, modified or amended in any way by it and if so, then stating the nature thereof; and (c) whether this DEC is in full force and effect. Such statement shall act as a waiver of any claim by the Person furnishing it to the extent such claim is based upon facts contrary to those asserted in the statement and to the extent the claim is asserted against a bona fide encumbrancer 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. The issuance of an estoppel certificate shall in no event subject the Person furnishing it to any liability for the negligent or inadvertent failure of such Person to disclose correct and/or relevant information, nor shall such issuance be construed to waive any rights of the issuer to either request an audit of the Common Area Maintenance Costs for any year it is entitled to do so, or challenge acts committed by other Parties for which approval by the Approving Parties was required but not sought or obtained. 9.7. Excusable Delays (Force Majeure Events). Whenever performance is required of any Party, Occupant, or the Operator hereunder, such Person shall use all due diligence to perform and take all necessary measures in good faith to perform; provided, however, that if completion of performance shall be delayed at any time by reason of acts of God, disease outbreak, epidemic, pandemic, or other declaration of public health emergency, quarantine restriction, war, civil commotion, riots or other public disorder, strikes, picketing or other labor disputes, unavailability of labor or materials, damage to work in progress by reason of fire or other casualty, refusal or failure of governmental authorities to grant 40 42795.0012.12720397.1 necessary permits or is otherwise due to governmental agencies, or other causes, other than financial, beyond a party's reasonable control or any cause beyond the reasonable control of such Person, then the time for performance as herein specified shall be appropriately extended by the amount of the delay actually so caused. Performance hereunder shall not be deemed in violation or default where delay in performance is due to governmental agencies. The provisions of this Section shall not operate to excuse any Person from the prompt payment of any monies required by this DEC or the performance of any indemnity obligations hereunder. 9.8. Interest. Except as otherwise provided herein, any time a Party shall not pay any sum payable hereunder to another within ten (10) days of the due date, such delinquent Party shall pay interest on such amount from the due date to and including the date such payment is received by the Person entitled thereto, at the lesser of: (a) the highest rate permitted by law to be paid on such type of obligation by the Person obligated to make such payment or the Person to whom such payment is due, whichever is less; or (b) two percent (2%) per annum in excess of the prime rate from time to time publicly announced by U.S. Bank National Association or its successor (or if it no longer exists a comparable regional national bank located in the State of Idaho. 9.9. Mitigation of Damages. In all situations arising out of this DEC, all Parties shall use commercially reasonable efforts to avoid and mitigate the damages resulting from the conduct of any other Party. Each Party hereto shall take all reasonable measures to effectuate the provisions of this DEC. 9.10. Not a Public Dedication. Nothing herein contained shall be deemed to be a gift or dedication of any portion of the Shopping Center or of any Lot or portion thereof to the general public, or for any public use or purpose whatsoever. Except as herein specifically provided, no right, privileges or immunities of any Party hereto shall inure to the benefit of any third -party Person, nor shall any third - party Person be deemed to be a beneficiary of any of the provisions contained herein. 9.11. Notices. Whenever a Party is required or permitted under this DEC to provide the other Party with any notice, submittal, request, demand, consent, or approval ("Notice"), such Notice will be given in writing and will be delivered to the other Party at the address set forth below: (a) personally; (b) by a reputable overnight courier service, delivery fee prepaid; (c) by certified mail, postage prepaid; or (d) by e-mail. A Party may change its address for Notice by written notice to the other Party delivered in the manner set forth above. Notice will be deemed to have been duly given: (i) on the date personally delivered; (ii) one (1) business day after delivery to an overnight courier service with next -day service requested; (iii) on the third (3`d) business day after mailing, if mailed using certified mail; or (iv) on the date sent when delivered by e-mail (so long as the sender sends such email on a business day and receives electronic confirmation of receipt and a copy of the Notice is sent by one of the other means permitted hereunder on or before the next business day). The initial addresses for Notice are as follows: IF TO WINCO: WinCo Foods, LLC Attn: Greg Goins, Vice President of Real Estate 650 N. Armstrong Place Boise, ID 83704 Telephone: (208) 377-0110 E-mail: C;reg.goins{u).wincofoods.coiai With a copy at the same address to: Lori Gilbertson, Property Manager 41 42795.0012.12720397.1 E-mail: 1'�ertvM<ynnt(ii�wincofoo ls.com With a copy at the same address to: (which shall not constitute notice) Chad Lamer, Real Estate Attorney E-mail: chad.lamer��z?wincofoods.com IF TO HIGH DESERT: HIGH DESERT DEVELOPMENT LINDER VILLAGE, LLC 2537 W. State Street, Suite 110 Boise, ID 83702 Attn: Dave McKinney Telephone: (208) 389-9900 E-mail: ldnycPctcweb.net Attn: Joe Huarte Telephone: (208) 389-9900 E-mail: joehuarte("ci?(,Ymail.com With a copy to: (which shall not constitute notice) Hawley Troxell Ennis & Hawley, LLP 877 Main Street, Suite 1000 Boise, ID 83702 Attn: Ken Howell, Esq. 9.12. Relationship of Parties. None of the terms or provisions of this DEC shall be deemed to create a partnership between or among the Parties in their respective businesses or otherwise, nor shall it cause them to be considered joint venturers or members of any joint enterprise. Each Party shall be considered a separate owner, and no Party shall have the right to act as an agent for another Party unless expressly authorized to do so herein or by separate written instrument signed by the Party to be charged. 9.13. Time. Time is of the essence with respect to each and every term, condition, obligation and provision contained in this DEC. 9.14. Waiver. The failure of any Party to insist upon strict performance of any of the terms, covenants or conditions hereof shall not be deemed a waiver of any rights or remedies which that Party may have hereunder, at law or in equity and shall not be deemed a waiver of any subsequent breach or default in any of such terms, covenants or conditions. 9.15. Recordation. This DEC, upon full execution, shall be recorded in the office of the recorder of Ada County, Idaho. 9.16. Controllinp, Law. This DEC shall be governed by, and construed and enforced in accordance with the laws of the State of Idaho. 10. TERM 10.1. Term of this DEC. This DEC shall be effective as of the Effective Date and shall continue in full force and effect until 11:59 p.m. on December 31, 2095; provided, however, that the easements referred to as being perpetual or as continuing beyond the term of this DEC shall continue in 42 42795.0012.12720397.1 force and effect as provided therein. Upon termination of this DEC, all rights and privileges derived from and all duties and obligations created and imposed by the provisions of this DEC, except as relates to those perpetual easements as set forth herein, shall terminate and have no further force or effect; provided, however, that the termination of this DEC shall not limit or affect any remedy at law or in equity that a Party may have against any other Party with respect to any liability or obligation arising or to be performed under this DEC prior to the date of such termination. [Signatures on following pages.] 43 42795.0012.12720397.1 IN WITNESS WHEREOF, WinCo and High Desert have caused this DEC to be executed effective as of the day and year first above written. WINCO FOODS, LLC, a Delaware limited liability company By: G STATE OF IDAHO ) )ss. County of Ada ) On this�{-day of MCVcL 20.1-), before me, a Notary Public, personally appeared r...1 J �n • 1�-A-1 r- , known or proved to me to be the LP -0 of WinCo Foods, LLC, a Delaware limited liability company, the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same on behalf of said company. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. logo logo,, S ®OO® ^�... 2® Notary Public ®® ®,No. Residing at 3°0 ��AOTARY ®® = Comm. Expires 2, . ® = ®°® •m.r:u• �y 0�®deo RYoolol��, [Signatures continued on following page.] 44 42795.0012.12720397.1 HIGH DESERT DEVELOPMENT LINDER VILLAGE, LLC, an Idaho limited liability company By: Its: 6P STATE OF -�A<, ) )ss. County of aqd-) On this 9 9 --day of /19"- 1 , 202 before me, a Notary Public, personally appeared (j5fje4 19 G. k c , known or proved to me to be the of High Desert Deve opment Linder Village, LLC, an Idaho limited liability company, the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same on behalf of said company. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. stlt®®®88900 Notary Public ®<GO�T D'��P�� ee Residing at ee •®®® ®® i� e� Comm. Expires r1OTA/? ®C • • Ys°® ID 000 n�/BLIC l� expires: 11/28/2025 •O e ®e ••®®ae®• ee OF 45 42795.0012.12720397.1 LYNX INVESTMENTS, LLLP, an Idaho limited liability limited partnership By: k Joseph D. Huarte General Partner By: LJH GT Trust General Partner seph D, . Huarte Investment Trustee STATE OF ) )ss. County of On this" day of March, 2020, before me, a Notary Public, personally appeared Joseph D. Huarte, known or proved to me to be the general partner of Lynx Investments, LLLP, and the Investment Trustee of LJH GT Trust, the general partner of Lynx Investments, LLLP, the partnership that executed the within instrument or the person who executed the instrument on behalf of said partnership, and acknowledged to me that said partnership executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. ®° lNotary Public adding at: Boise, ID ®ttittlll/®111 ®00s O�'T DAA, s°O• Residing at CoLScl�A e�Epa,�' 41/28/2()25 � •,e,•�G®.'000, 0•.Irij, Comm. Expires 14corn R y :.�' ® Residing at: Boise, f PUB LIC ? = Commission expires: 11828/2025 00- 00 AV `�, °,�4 ® I'll ®®111//®stets% 46 42795.0012.12720397.1 CONSENT AND SUBORDINATION The unde`�signed, N.A. ("Lender"), being the beneficiary under that certain [Mortgage / Deed of 'frust] recorded in the Official Records of the County Recorder as Document (the "ExistingLien"), hereby unconditionally subordinates the Existing Li to the effects of the foregoing Declaration of Easements and Conditions (the "DEC"), and agrees that th's DEC shall be and remain at all times a lien or charge prior and superior to the Existing Lien and an subsequent amendments to same. IN WITNESS WHERE(V the undersigned has caused this Consent d Subordination instrument to be executed as of the _ day , 20_. Its: [ATTACH NOTARY B 47 42795.0012.12720397.1 EXHIBIT A LEGAL DESCRIPTION OF WINCO PARCEL 48 42795.0012.12720397.1 • HMH engineering EXHIBIT A - WINCO PARCEL DESCRIPTION A portion of land within the Midway Place Subdivision, recorded in Book 1 of Plats at Page 33 of the Ada County Records, in the North 1/2 of Northwest 1/4 of Section 25, Township 4 North, Range 1 West, Boise Meridian, City of Meridian, Ada County, Idaho, a portion of the Grantor's parcels (granted under Warranty Deed Instrument No. 104009792 and Warranty Deed Instrument No. 11106778) more particularly described as follows: COMMENCING at the Corner of Sections 23, 24, 25 and 26, monumented with a found Aluminum Cap as shown on CP&F Record 2017-072470 from which the Quarter Corner common to Sections 24 and 25 monumented with a 2" Aluminum Cap as shown on CP&F Record 2017-072469 bears South 89° 22'30" East, 2669.54 feet; A. thence South 00'55'10" West, 1328.81 feet to the SW Corner of the N 1/2 of the NW 1/4 monumented with a found 5/8" rebar with cap "FLSI ID PLS 7612"; B. Thence South 89°25'01" East, 48.50 feet along the south line of the North 1/2 of the Northwest 1/4 to the Easterly right-of-way of N. Linder Road and the Westerly boundary line of said Grantor's parcel; C. Thence along said right-of-way and westerly boundary line, North 00°55'10" East, 513.26 feet to a point to be monumented with the final plat; D. Thence continuing along said right-of-way and westerly boundary line, South 89°04'50" East, 4.50 feet to a point to be monumented with the final plat; E. Thence continuing along said right-of-way and westerly boundary line, North 00°55'10" East, 169.11 feet to a point to be monumented with the final plat, the TRUE POINT OF BEGINNING; 1. Thence continuing along said right-of-way and westerly boundary line, North 89°14'23" West, 8.00 feet to a point to be monumented with the final plat; 2. Thence continuing along said right-of-way and westerly boundary line, North 00055'10" East, 22.00 feet to a point to be monumented with the final plat; 3. Thence leaving said right-of-way and westerly boundary line, South 89°14'23" East, 107.12 feet to a point to be monumented with the final plat; 4. Thence South 70°37'29" East, 84.14 feet to a point to be monumented with the final plat; 5. Thence South 89'22'04" East, 39.37 feet to a point to be monumented with the final plat; 6. Thence North 00°37'56" East, 261.37 feet to a point to be monumented with the final plat; 7. Thence North 64°46'32" East, 139.86 feet to a point to be monumented with the final plat; 8. Thence South 89°22'04" East, 391.16 feet to a point to be monumented with the final plat; 9. Thence South 00°37'56" West, 381.26 feet to a point to be monumented with the final plat; 680 S. Progress Ave., Suite #26 • Meridian, Idaho 83642 • Tel: 208-342-7957 • Web: hmh-Ilc.com Equal Opportunity Employer 10. Thence North 89°21'59" West, 56.87 feet to a point to be monumented with the final plat; 11. Thence South 00°37'56" West, 285.19 feet to a point to be monumented with the final plat; 12. Thence North 89'09'10" West, 364.40 feet to a point to be monumented with the final plat; 13. Thence South 67°33'54" West, 111.25 feet to a point to be monumented with the final plat; 14. Thence North 22°26'06" West, 131.53 feet to a point to be monumented with the final plat; 15. Thence North 00°22'01" East, 165.24 feet to a point to be monumented with the final plat; 16. Thence North 19'20'05" East, 79.03 feet to a point to be monumented with the final plat; 17. Thence North 7037'29" West, 94.13 feet to a point to be monumented with the final plat; 18. Thence North 89°14'23" West, 95.57 feet the POINT OF BEGINNING. END OF DESCRIPTION. See the attached sketch. � .P .4. Containing 348,317 net square feet or 7.996 net acres, more or less. Timothy J. Fox Idaho PLS 7612 ' 3882 n. Schreiber Way, Suite 104 + CDA, Idaho 83815 • Tel: 208-635-5825 • Web: hmh-Ilc.com Equal Opportunity Employer ��j 0 w�l O EO LO ao zU) L4 I I L3 N J L1 I ( I CO N � co o M to m M 1.1.1 O_ I u') U) I o 0 I z r L16 Basis of Bearings EXHIBIT — _ S890 22'30"E 2669.54' 24 WINCO PARCEL W CHINDEN BOULEVARD 25 G) O 213.90' 177.26' O S89022'04"E 391.16' L$ M r cp N OW EdM O O Z L5 �6 L7 L15 1,14 - TPOB ,CID V N J O \ o� N 77 0 60 120 SCALE: 1"=120' w !�N4 LINE TABLE LINE DIRECTION LENGTH L1 S89" 04'50"E 4.50' L2 N00° 55' 1 WE 169.11' L3 N89' 14'23"W 8.00' L4 N00° 55' 10"E 22.00' L5 S89° 14'23"E 107.12' L6 S70° 37'29"E 84.14' L7 S89° 22'04"E 39.37' L8 N64° 46'32"E 139.86 L9 N89° 21'59"W 56.87' L10 S67° 33'54"W 111.25' L11 N22o 26'06"W 131.53' L12 NOW 22'01"E 165.24' L13 N19° 20'05"E 79.03' L14 N70° 37' 29'W 94.13' L15 N89° 14'23"W 95.57' L16 S89' 25' 01"E 48.50' N89°09'10"W 364.40' L9 .•, 3 b N OD M h M 0 0 O U) 16 LEGEND WINCO PARCEL - - - SECTION OTHER PARCEL LINE — TIE 000 SURVEY MONUMENTS ® CALCULATION POINT W. PLAZA SHOPS DROVE - --�� TPOB POINT OF BEGINNING FOX LAND SURVEYS (208) 342-7957 EXHIBIT A-1 LEGAL DESCRIPTION OF HIGH DESERT PARCEL HIGH DESERT COMMERCIAL LOTS HIGH DESERT RESIDENTIAL LOTS 42795.0012.12720397.1 LEGAL DESCRIPTION WHOLE PARCEL REZONE 1515 S. SHOSHONE ST. BOISE, ID 83705 208.342.7957 www.foxlandsurveys.com A portion of the Midway Place Subdivision, recorded in Book 1 of Plats at Page 33 of the Ada County Records, within the North 1/2 of Northwest 1/4 of Section 25, Township 4 North, Range 1 West, Boise Meridian, Ada County, Idaho more particularly described as follows: BEGINNING at the Corner of Sections 23, 24, 25 and 26, monumented by a found Aluminum Cap as shown on CP&F Record 2017-072470, thence South 89°22'30" East, 2669.54 feet to the North 1/4 Corner of Sections 24 and 25 monumented by a found Aluminum Cap as shown on CP&F Record 2017- 072469; Thence along the easterly line of the N 1/2 of the NW 1/4, South 00'32'03" West, 39.93 feet to the southerly right-of-way line for Highway 20/26 also known as West Chinden Boulevard; Thence continuing along said easterly line, South 00°32'03" West, 560.07 feet to the Almaden Lateral; Thence continuing along said easterly line, South 00'32'03" West, 726.83 feet to the Southeast Corner of the N 1/2 of the NW 1/4 (CN 1/16) of Section 25, monumented by a found 5/8" rebar with plastic cap stamped "FLSI PLS 7612"; Thence along the southerly line of said N 1/2 of the NW 1/4, North 89°25'01" West, 2678.47 feet to the Southwest corner of the N 1/2 of the NW 1/4 (N 1/16), monumented by a found 5/8" rebar with plastic cap stamped "FLSI PLS 7612"; Thence along the westerly line of Section 25, North 00°55'10" East, 1328.81 feet to the POINT OF BEGINNING. Containing 81.510 acres, more or less. Refer to the attached "WHOLE PARCEL REZONE EXHIBIT" Survey Map. END OF DESCRIPTION Prepared by: Ronald M. Hodge, PLS Senior Project Manager T 8575 0 F V N91 D M 151081-1WHOLE PARCEL REZONE.DOC 1 It, ' N. UNDER ROAD N N --_— O N00°55'10"E 1328.81' rn w G37 .A Cp I'o 17 Z m m I) O C `< or 07 o Z o� N � m zm ( CD w O I w m m I Z ( x N. ARLISS] I ( ^ AVE. 4j I I J w � I/NT� -CC� V N 1 G I W O I'I1 po A I I'oo l 1 I A I� z� N. BERGMAN AVE.— M �- -0 o I c I Z co � I O 9 C.n to .,, J r O �O 737 _60.0 7'C.71 S - 03— 72"1.83' S00°3205I7 iXm m 9 C/) 20 r N -m10-1 PARAMOUNT SUBDIVISION No. 3 C EXHIBIT B CAPITAL IMPROVEMENT AND MAINTENANCE STANDARDS Parking Lot, Sidewalk, Driveway and Drive Aisle Areas • Pot holes, sink holes, crumbling and other damage must be repaired immediately. • Slurry/Crack Fill/Reseal must be completed a minimum of once every four (4) years. • Striping of high traffic areas (including, but not limited to, cross walks, front hatching, stop bars, dock areas and speed bumps) must be completed no less than annually. The remainder of the parking lot must be completed no less than once every other year. • Concrete Curbing/Sidewalks/Driveways and Stamped Areas shall be inspected no less than annually. Repairs shall be completed in a in a timely manner to resolve hazards. • Metal Signage (including, but not limited to, handicap signs, "no parking" signs, stop signs) shall be inspected no less than quarterly. Damaged and/or weathered signs shall be replaced immediately. • Sweeping of parking lot, driveways and drive aisles o Sweeping shall occur no less than seven (7) days per week (hereinafter "Daily") o Debris must be blown out from cart corrals and gutters using back -pack blowers (Daily) o All sidewalks and business entrance areas shall be blown -off using back -pack blowers (Daily) o Pick up and remove trash from parking lot (Daily) o Vendors/contractors shall not be allowed to dispose of or discard any refuse or debris into dumpsters located on the Shopping Center or on any area of the Shopping Center o Work must be conducted at night, or at times that cause minimal customer interruption, unless prohibited by law • Snow/ice removal o Monitor weather conditions, respond and provide service immediately when a snow or ice event is predicted o Apply preventative applications of de-icing material starting with heavy frosts continuing throughout winter o Keep all sidewalks, landings, entryways, emergency exits, drive aisles and cart corral areas clear of snow and ice o Begin plowing parking lots no later than at one inch (I") accumulation Lighting and Signs • Parking lot lighting facilities and related equipment shall be formally inspected on no less than a quarterly basis to ensure they are in proper working order and that the parking and common areas are well lit at all times. Inoperative light bulbs and facilities shall be replaced immediately. • Pylon/monument Signs are to be inspected no less than quarterly to ensure proper operation and attractiveness. Damaged sign panels and/or sign structures shall be repaired in a timely manner. 42795.0012.12720397.1 Landscaping • Basic mowing, trimming and weeding shall be completed no less than on a weekly basis • An air blower shall be used to clear all sidewalks after all mowing/trimming services • Edging shall be completed no less than twice per season (determined by regional conditions) • Bed maintenance, weed removal and trash/debris clean-up shall be conducted no less than on a weekly basis • Sprinkler system maintenance shall be conducted no less than once a week (weekly sprinkler maintenance shall include but not be limited to, adjustments, inspection of sprinkler coverage as well as the identification of any necessary repairs) • Seasonal start-up and shut-off sprinkler system service shall be conducted (seasonal sprinkler service shall include but not be limited to end of season sprinkler system "blow-out") • Weed/pesticide treatments shall be conducted as needed to control weeds/pests and protect against weed growth and pest proliferation (determined by regional conditions) • Tree and shrub trimming shall be conducted on an as needed basis to resolve hazards and maintain attractive appearance (determined by regional conditions) • Monitor, re -stake and/or replace trees as needed and remove guy-wires/stakes as needed for proper tree growth and condition • Seasonal clean-up shall be conducted at the beginning and end of growing season (seasonal clean- up shall include but not be limited to trimming, pruning, removal of leaves) • Complete additional projects and repairs as needed (additional projects may include installation of fresh mulch, fence repair, etc.) • All trimmings, leaves, trash, debris, etc. shall be removed from the Shopping Center and disposed of properly Pressure Washing • Sidewalks and landings shall be pressure washed no less than every other week (weather permitting) • Pressure washing shall be performed at night unless prohibited by law Day Porter Services Day porter services shall include but not be limited to inspecting the entire Shopping Center on foot, including parking lot, sidewalks, landscape beds, ditches and swale and retention areas, and removing all trash and debris, including large items dumped on premises, including furniture, tires, etc. All Contractors shall perform work in accordance with the DEC and all applicable laws and shall be responsible for obtaining permits or licenses legally required prior to performing work. All Contractors shall be responsible for conducting work in a manner to protect against injury to all persons. All Contractors are required to provide proof of liability insurance, workers compensation insurance, a current business license and complete a W-9. All Contractors shall provide an emergency phone number for contact 24 hours/7 days a week and all Contractor employees and vehicles will be clearly marked and identifiable with the business name or logo. 42795.0012.12720397.1 EXHIBIT X SITE PLAN (See attached.) 42795.0012.12720397.1 r r r r r r r r r r r r r ; ; O 1 O 0 0 0 0 0 0 0 0 0 0 O cn "� m y og� A D D D D D D D p p p O o 0 0 p p 0 0 0 p M m m m m m m m m m m m m (I +zzwsaeux N m N m N m m m m N f0 N m m I ( I to Oi V N Ou OI T N � ut tT W fT G) o o) g o 0 o g o 0 0 0 0 C It 'r c o QQ I giof oo 0 25 g 25 $ $ m m m m m N m m m m N N m m O ml 0 0 (n Vml O O y v O O Z O v \\: D D O T 7n '31 T I T T T ?I ?I Ti T T 7t T m T T T T T T T I ,� '9 m�, ` I —! p X ?5 OI a - i 2Q$ ZR5 i ��i}.,� k K I r o� Bc�T�mvr-�0D m ml 0> r�c—� n 1�!I N+o 3 ail l� ill lI���11+�1Tit��� �$ ' iUOULiu t'L,iillijiqq''��e000ss� 1 Q l n+ � P N O O m N N N N O } m W I m mmmmmmmmmm m D r 1 r r r r r r r r r r r ° �` IWI .I�77c. m m mmmmmmmmmm m I L 'llI its-.[ 11l.11l I � ii IIS i In I r 1 O O O N N A to m !O A A tT j (ry j {I pp p p G N tJ O Gl N .p ( iiLlillii Yt lijlili� ilial ll'l I � E� �� � I S S o$$BSoS$So S �6 u�u� � Ra ym ,i,I�r"ulI 4 M� rl .wuss AVE. _ I �� (i"i `it`i U ; F1P" 7 1 i i 0 O i_. _. x`11 10.ci k .flit II�J'f.'s it 01 ;^u N w D O _�l 0� ... I JJ vv o m O M98K T m m m L_ z z — 69H i8 1 (li J 11 IT3389f MA%I m m m N 1 01 III �II iii' m 'm 'm m m m _ O ( Illi �(�i i!i riiilo OIhTill�i i©' "III'i! L!{� i �11fi1Otjf8 fill oog00000$$0000 u T II m. - 3 7n O mmmmmmmmmmmmmm 1Ijj!I, OII .. i1 T 'Ei T T T TI T A� T T T T m � ggg � ( =lA O o O O O N R O O O O0 0 _ A A� AI 0 m m m m � m ;•i � � Jyi il� oi) I'U!III'7i �i- kkF i 11 1 ilfll I toT 10 F-�m .�. 1 3.0388f m y m m 1 ---------- '.wL-1 °�'�, a€ m T a _ -,I f f la i m LT' m f�m m 1P 1111-11 111" z I,^ —i m q T II il'jP l l o. Gi O n n Z y = gg I zI I� m m m1Llj O m Ill _ m Z Z (: c m �! sl,i I i p i II, ;� ilsu�, mi Il m r m m z m m m m c m E f IIU i I ttl z Z m PM F �'i I! I o r _ cn o g faroOnl �11' °,l, o ® o o WINC z • O FOODS STORE z %� = 1 it ~ �,nCO W NHINDEN LINDERBRDD & 0 FOODS MERIDIAN, IDAHO zz EXHIBIT X-1 LIGHTING CONTROL PLAN (See attached.) 42795.0012.12720397.1 — -- _ — - 77 f I ( 1 I w,. to I- L L, I, i, �,i �.,,I�•, a fI r _ iT lt . �'f"' , . I r I' i- I ! � I I /f • � I'r+9 til � � ._.I: -!I I 1.7 I � � ,_. I A � lF i -g II I I;;,''r. _. r- l� 1 _ x IX I � —onz— ..�pu_m I LIGHTING CONTROL �o 0 LEGEND EXHIBIT TITLE � -- PROPERTY/PARCEL LINE NORTH DEC LIGHTING CONTROLAREA EXHI9iT ' 70 „o .,o X-1