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Item 8 - PARKING STUDYUrban Air Parking Study ZA18-008 Page 1 WAI #75801 PARKING STUDY FOR A PROPOSED FACILITY IN SOUTHLAKE, TEXAS Prepared for: 317 S. Jenkins Street, Suite C Grapevine, Texas 76051 Prepared by: 6750 Hillcrest Plaza Dr., Ste. 325 Dallas, TX 75230 972-490-7090 March 5, 2018 WAI #75801 Urban Air Parking Study ZA18-008 Page 2 WAI #75801 TABLE OF CONTENTS PURPOSE:..................................................................................................................................... 3 EXISTING SITE ANALYSIS – MANSFIELD, TX: ................................................................. 4 EXISTING SITE ANALYSIS – ROCKWALL: ........................................................................ 5 EXISTING SITE ANALYSIS – GARLAND: ............................................................................ 6 PROPOSED SITE ANALYSIS / CONCLUSIONS: .................................................................. 8 APPENDIX:................................................................................................................................... 9 MANSFIELD ........................................................................................................................... 10 ROCKWALL ........................................................................................................................... 15 GARLAND ............................................................................................................................... 20 ZONING SITE PLAN ............................................................................................................. 25 PARKING AGREEMENT (VOLUME 9734, PAGE 0478 TARRANT CO.) ................... 26 Urban Air Parking Study ZA18-008 Page 3 WAI #75801 PURPOSE: The purpose of this parking study is to evaluate the potential needs for parking at a proposed Urban Air location in Southlake, Texas. This study will also look at 3 existing Urban Air locations within the Dallas-Fort Worth Metroplex and evaluate the parking demand during the store’s peak hours on Saturday. The planned Urban Air location in Southlake, Texas is located at the SE corner of Southlake Blvd. (FM 1709) and Davis Blvd. (FM 1938) within the Southlake Marketplace. The property is platted as Lot 2R, Block 1 of the Southlake Crossing addition. Urban Air is proposing to own and occupy the 58,949 sq. ft. space formerly known as Neighborhood Wal-Mart. The former Wal-Mart site contains 301 parking spaces and does not currently meet parking code. The City of Southlake requires 1 space per 100 sq. ft. of floor area which is approximately 589 parking spaces required. Winkelmann & Associates, Inc. used drone technology to capture aerial photography at 3 existing Urban Air locations within the Dallas-Fort Worth Metroplex during peak times on Saturday. Per Urban Air management, the peak store hours for Urban Air on Saturday are from Noon until 4pm. The photos of data collected occurred on the hour (i.e. Noon, 1pm, 2pm, 3pm and 4pm). Urban Air Parking Study ZA18-008 Page 4 WAI #75801 EXISTING SITE ANALYSIS – MANSFIELD, TX: This site is located at 989 N. Walnut Creek Dr., Mansfield, Texas near the intersection of N. Walnut Creek Rd. & U.S. 287. The parking lot not only serves the Urban Air location but also serves a “Big Lots” retail store as well as an adjacent retail building with a single nail salon tenant. Urban Air in Mansfield is their top-performing store in the DFW Metroplex. Drone footage was captured on Saturday, January 13, 2018 between Noon and 4pm. The site has a total of 378 parking spaces. Below is a table of the total number of parking spaces occupied during each hour evaluated. Peak Hour Evaluated Total Parking Spaces Used Percentage of Lot Utilized 12:00 pm 156 41.27% 1:00 pm 187 49.47% 2:00 pm 193 51.06% 3:00 pm 215 56.88% 4:00 pm 242 64.02% Based on the data collected, the highest utilized time was at 4pm in the afternoon. It should be noted that no peak was ever established during the data accumulation. The times of data sampling were selected based on historical data provided by Urban Air management. It is assumed that the nail salon has a maximum of 12 customers and 8 employees during the peak hour and to be conservative, every one of them parked within the lot. It is also assumed that Big Lots has 10 employees who all drive and 49 additional vehicles holding customers during the peak hour. Based on these assumptions, the total parking during the peak hour is as follows: Business Parking Spaces Utilized Nail Salon 20 Big Lots 59 Urban Air 163 Total 242 It should be noted that none of the assumptions above are based on the Institute of Transportation Engineers publication of Parking Generation and it is solely based on professional engineering judgement based on the observations at the time data was collected. Urban Air occupies approximately 32,000 SF of floor area in Mansfield. Based on the parking utilized, the parking needs for Urban Air are 1 parking space per 196 sq. ft. The parking needs appear to be met for this location during peak times. Drone images for Mansfield, Texas can be found in the appendix of this study. Urban Air Parking Study ZA18-008 Page 5 WAI #75801 EXISTING SITE ANALYSIS – ROCKWALL: This site is located at 5757 State Highway 205, Rockwall Texas. Although the physical address shows Rockwall and Urban Air considers this site as their Rockwall location, the actual property resides in McLendon-Chisholm, TX and borders the City of Rockwall. The building has its own parking lot and is immediately adjacent to the Oasis Beach & Tennis Club. During the data collection, it was observed that the outdoor pool for Oasis Beach & Tennis Club was closed and the tennis courts were not utilized. All of the vehicles parked within the lot were utilizing the Urban Air Trampoline Park. Drone footage was captured on Saturday, January 20, 2018 between Noon and 4pm. The site has a total of 190 parking spaces. Below is a table of the total number of parking spaces occupied during each hour evaluated. Peak Hour Evaluated Total Parking Spaces Used Percentage of Lot Utilized 12:00 pm 66 34.74% 1:00 pm 77 40.53% 2:00 pm 81 42.63% 3:00 pm 88 46.32% 4:00 pm 95 50.00% Based on the data collected, the highest utilized time was at 4pm in the afternoon. It should be noted that no peak was ever established during the data accumulation. The times of data sampling were selected based on historical data provided by Urban Air management. Urban Air occupies approximately 24,000 SF of floor area in Rockwall. Based on the parking utilized, the parking needs for Urban Air are 1 parking space per 253 sq. ft. The parking needs appear to be met for this location during peak times. Drone images for Rockwall, Texas can be found in the appendix of this study. Urban Air Parking Study ZA18-008 Page 6 WAI #75801 EXISTING SITE ANALYSIS – GARLAND: This site is located at 3046 Lavon Drive, Garland, Texas near the intersection of Lavon Drive & S.H. 190. The parking lot not only serves the Urban Air location but also serves multi-tenant buildings containing metroPCS, Omni Dental, Subway, Dollar Tree, Tuesday Morning, NickelRama Arcade, Eye Love Optical, and an Animal Hospital. There are other businesses within the shopping center to the South however the associated parking is far enough away from Urban Air to avoid a conflict with the analysis. Drone footage was captured on Saturday, January 27, 2018 between Noon and 4pm. The parking area in front of the business has a total of 493 parking spaces. Below is a table of the total number of parking spaces occupied during each hour evaluated. Peak Hour Evaluated Total Parking Spaces Used Percentage of Lot Utilized 12:00 pm 252 51.11% 1:00 pm 270 54.77% 2:00 pm 305 61.87% 3:00 pm 297 60.24% 4:00 pm 310 62.88% Based on the data collected, the highest utilized time was at 4pm in the afternoon. It should be noted that no peak was ever established during the data accumulation. The times of data sampling were selected based on historical data provided by Urban Air management. It is assumed that the metroPCS has 2 employees and 2 driving customers during the peak hour. It is also assumed that Omni Dental has 5 employees and 5 driving customers during the peak hour. Subway is also assumed to have 3 employees and 6 driving customers during the peak hour. Dollar Tree is also assumed to have 6 employees and 16 driving customers during the peak hour. Tuesday Morning is also assumed to have 6 employees and 22 driving customers during the peak hour. NickelRama Arcade is also assumed to have 8 employees and 50 driving customers during the peak hour. Eye Love Optical is also assumed to have 3 employees and 4 driving customers during the peak hour. The Animal Hospital is also assumed to have 4 employees and 5 driving customers during the peak hour. Based on these assumptions, the total parking during the peak hour is as follows: Urban Air Parking Study ZA18-008 Page 7 WAI #75801 Business Parking Spaces Utilized MetroPCS 4 Omni Dental 10 Subway 9 Dollar Tree 22 Tuesday Morning 28 NickelRama 58 Eye Love Optical 7 Animal Hospital 9 Urban Air 163 Total 310 It should be noted that none of the assumptions above are based on the Institute of Transportation Engineers publication of Parking Generation and it is solely based on professional engineering judgement based on the observations at the time data was collected. Urban Air occupies approximately 34,000 SF of floor area in Garland. Based on the parking utilized, the parking needs for Urban Air are 1 parking space per 209 sq. ft. The parking needs appear to be met for this location during peak times. Drone images for Garland, Texas can be found in the appendix of this study. Urban Air Parking Study ZA18-008 Page 8 WAI #75801 PROPOSED SITE ANALYSIS / CONCLUSIONS: The proposed site in Southlake, Texas will occupy 58,949 SF of area making it the biggest in North Texas. Although the floor area is larger, approximately 30,000 SF of the space will be utilized as a GoKart track which has at a maximum 12 racers at a time with 1 employee. Most of the customers for Urban Air cannot drive themselves to the business and are being dropped off by family members or friends. The parking lot that serves the new Urban Air location has 301 parking spaces. The Mansfield and Garland locations appeared to be the busiest locations during the time of this study. The parking demand for all locations is met with the amount of spaces each site provides. Below is a table summarizing the total parking utilized during the highest utilized hour at the 3 DFW Urban Air locations that were studied as well as parking ratio. Urban Air Location Total Parking Study Estimated Parking Demand Mansfield 163 1 per 196 sq. ft. Rockwall 95 1 per 253 sq. ft. Garland 163 1 per 209 sq. ft. Average 1 per 219 sq. ft. Based on the data collected, it is our recommendation that the new site in Southlake be parked at a ratio of 1 space per 200 sq. ft. This will require 295 parking spaces which appears, based on the data collected, more than adequate to serve the needs of this use. It should also be noted that the existing shopping center has a recorded Declaration of Restrictions and Grant of Easements recorded in Volume 9734, Page 0478 of the Tarrant County records (included in the appendix). This document provides for a cross parking agreement among the Shopping Center tenants. With this document, the proposed Urban Air use has access to more than the 301 parking spaces shown within their lot limits and has access to overflow parking areas within the Shopping Center. Urban Air Parking Study ZA18-008 Page 9 WAI #75801 APPENDIX: Urban Air Parking Study ZA18-008 Page 10 WAI #75801 MANSFIELD Urban Air Parking Study ZA18-008 Page 11 WAI #75801 Urban Air Parking Study ZA18-008 Page 12 WAI #75801 Urban Air Parking Study ZA18-008 Page 13 WAI #75801 Urban Air Parking Study ZA18-008 Page 14 WAI #75801 Urban Air Parking Study ZA18-008 Page 15 WAI #75801 ROCKWALL Urban Air Parking Study ZA18-008 Page 16 WAI #75801 Urban Air Parking Study ZA18-008 Page 17 WAI #75801 Urban Air Parking Study ZA18-008 Page 18 WAI #75801 Urban Air Parking Study ZA18-008 Page 19 WAI #75801 Urban Air Parking Study ZA18-008 Page 20 WAI #75801 GARLAND Urban Air Parking Study ZA18-008 Page 21 WAI #75801 Urban Air Parking Study ZA18-008 Page 22 WAI #75801 Urban Air Parking Study ZA18-008 Page 23 WAI #75801 Urban Air Parking Study ZA18-008 Page 24 WAI #75801 Urban Air Parking Study ZA18-008 Page 25 WAI #75801 ZONING SITE PLAN Urban Air Parking Study ZA18-008 Page 26 WAI #75801 PARKING AGREEMENT (VOLUME 9734, PAGE 0478 TARRANT CO.) *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 1 Of 38 I • ~ ' ,:·,,00L-6/ L VS I "' 1~ 5yi___ '17 #42-P -Southlake Boulevard & Davis Boulevard Southlake, TX 10/12/89 DECLARATION OF RESTRICTIONS AND Article Subject ARTICLE I: PRELIMINARY 1. 1 Definitions 1.2 Parties 1.3 Purpose GRANT OF EASEMENTS Table of Contents ARTICLE II: BUILDING AND COMMON AREA DEVELOPMENT 2. 1 Building Location 2.2 Common Area 2.3 Type and Design of Building 2.4 Construction Requirements 2.5 Casualty and Condemnation 2. 6 Indemnification ARTICLE 111: EASEMENTS 3.1 Ingress# Egress and Parking 3.2 Utility Lines and Facilities 3.3 Signs 3.4 Building Encroachments 3.5 Perimeter Access Drive ARTICLE IV: OPERATION OF COMMON AREA 4. 1 Parking 4.2 Employee Parking 4.3 Signs 4.4 Protection of Common Areas. 4. 5 Sales ARTICLE V: RESTRICTIONS ON USE 5. 1 Food and Drug Restrictions. 5. 2 Shopping Center Restrictions 5.3 5.4 5.5 Location Restrictions Driveup and Dr-ive Through Facilities Mall Restrictions 5.6 E><ceptions ARTICLE VI: GENERAL PROVISIONS 6.1 Covenants Run With the Land 6.2 Succenors and Anigns 6.3 Duration 6.4 Injunctive Relief 6. 5 Modification and Termination 6.6 Method of Approval 6. 7 Not a Public Dedication Page 1 3 3 3 4 5 9 10 11 12 13 14 14 15 15 16 16 17 17 18 18 1l, 20 20 20 23 23 23 24 24 24 25 09734 01.78 i\[ I ~ I ' I I I ' I :.ii I ' I i-1; if 1! I I, ! .\ i !i ~j I 'I , ' *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 2 Of 38 • 6.8 6.9 6.10 6.11 6. 12 6.13 6. 14 6.15 6. 16 6.17 6.18 6.19 6.20 6.21 6.22 . .;,.---~ Breach Shall Not Permit Termination Default Notices Waiver Attorney's Fees Sale & Sale-leaseback Purchaser Severability Not a Partnership Third Party Beneficiary Rights Captions and Headings Entire Agreement Construction Joint and Several Obligations Estoppel Certificates Recordation 09734 25 25 25 26 26 27 27 27 27 27 27 28 28 28 28 -~-·-· ..,~·....,;,,,,,,,.,,,.·.;.·-=---------------------------~ ' I I. I I I I l i I I *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 3 Of 38 I 4 ...... r ~~·.~-:--...... ..,.""'!iiilll-• ~-----_,-!'! _JC~-- DECLARATION OF RESTRICTIONS AND GRANT OF EASEMENTS THIS DECLARATION OF RESTRICTIONS ("Declaration") is made to be effective as of AND GRANT OF EASEM;°N:\_,,./ the /_f_ day of oth fulY_ 1989, by and between Southlake Joint Venture, a Texas joint venture ("First Party") and Albertson•s# Inc., a DeLaware corporation ("Albertson's"). l. PRELIMINARY 1 . 1 Definitions: (a) "Albertson's": Albertson's,, Inc., a Delaware corporation,. its ' successors and .assigns, together with any corporation succeeding thereto by consolidation~ merger or acquisition of its assets substantially as an entirety, and any wholly owned subsidiary thereof, and whose current address is 250 Parkcenter Boulevard, P.O. Box 20, Boise, Idaho 83726. (b) "Building Are.a"; All those areas on each Parcel shown as. Building Area on Exhibit "A" attached hereto and incorporated herein by this referencel together with those portions of the Expansion Area which ar-e from time to time covered by a building or other commercial structure. (b-1) "Building Envelope": That portion of each Pare~! located within the Building Envelope Line reflected on Exhibit "A" attached hereto. (c) "Common Area": All those areas on each Parcel which are not Building Area together with those portions of the Building Area on each Parcel which are not from time to time actually covered by a building or other commer- cial structure or which cannot under the terms of this Declaration be used for buildings. Canopies which extend over the Common Area, together with any columns or posts supporting same, shall be deemed to be a part of the building to which they are attached and not a part of the Common Area. (d) "Common Area Maintenance Agreement"~ That certain Common Area Maintenance Agreement between the parties hereto which encumbers the Shopping Center and ls recorded concurrent\y herewith. (e) "Consenting Owners": The Owners of Parcels 1, 2 and 3; provided~ however, that in the event any such Owner sells its Parcel and becomes the Prime Lessee -thereon. said Prime Les.see is hereby appointed the entity to cast the vote or give the consent for said Parcel on behalf of the Owner thereof so long as a is the Prime Lessee of said Parcel. 0~80 ... ____________________________ .._ _______ _ I I H1 ~l !J/ :"i' '1 l 11 1 I *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 4 Of 38 I • (f) "Development Agreement", That certain Development Agreement between the parties hereto which encumbers the Shopping Center and is recorded concurrently herewith. (g) "Expansion Area": All those areas on Parcel 2 located between the boundaries of the pertinent Building Af'ea and the Expansion Limit Line shown on Exhibit "A". (h) 1•First Partyn: Southlake Joint Venture, a Texas joint venture, its successors and assigns, whose current address is 1725 E. South lake Boulevard, Suite 203, Southlake, Texas 76092. (i) "floor area" The total*· number-of square feet of floor space in a building whether or not actually occupied including basement., subterranean_, batcony and mezzanine space. Floor area shall be measured from the exterior line of the exterior walls and from the center line of any party or common interior walls without deduction for columns, waits or other structural or non-structural components. (J) "Lien holder": Any mortgagee under a mortgage or a trustee or beneficiary under ii deed of trust constituting a lien on any Parcel. (k) "Owner", The record holder of fee simple title to a Parcel, its heirs, per-son al representatives, successors and assigns, ( I) "Padu: Pad "A,h "s,•• .. C,." "D,." .. E" or .,F., as shown on Exhibit "A" attached hereto. The foregoing Pads are sometimes hereinafter referred to individually as "Pad .. and collectively as nPads." (m) "Parcel", Parcel 1, 2, 3 or 4 as shown on Exhibit "A" and more particuJarly described in Schedule (Parcel 1}, Schedule 2 (Parcel 2), Schedule 3 (Parcel 3) and Schedule 4 (Parcel 4), all of which are attached hereto and incorporated herein by this reference. (n) "person": Individuals. .. partnerships, firms, as.-sociation-s, corpo- rations, trusts, governmental agencies, administrative tribunals or any other form of business or legal entity. (o) "Prime Lessee", An Owner of a Parcel who sells said Parcel to an unaffiliated third party and thereafter enters into a net lease for said Parcel with such third party or its le-ssee or subless.ee. Prime Lessee i neludes the successors and assigns ot said Prime Lessee but does not include the sub- lessees, licensees or conce.ssionaires of said Prime lessee. (p) "Restrictions": The easements, covenants, restrictions, liens and encumbrances contained in this Deiclaration. 2 IJ9734 G I. 8 0 -----------------------·---·------- ! ' I I ~ I WI ·~~: . I '=' : f ii ./ *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 5 Of 38 L (q) "Service Facilities": Loading docks1 trash enclosures1 bottle storage areas and other similar service facilities. (r) "Shopping Center": Parcels 1, 2, 3 and 4 collectively. (s) "Excusable Cause": (i) strikes, lockouts or other labor probfems, fire or other casualty., condemnation, war,, riot 1 insurrection,, act of God, the requirements of any local., state or federal law, rule or regulation, or other reason beyond the reasonable control of the pertinent party, (ii) the faHure or refusal of any governmental or other entity to grant necessary approvals, (iii) the initial design and/or construction of the building on Parce1 2 or the Common Area improvements,, or (iv) the restoration,, reconstructlon,, remodeling, alteration or expansion of any building on Parcel 2 or, of any Common Area improvements. (t) "Phase I": That portion of the Shopping Center identified as Phase on Exhibit nA" consisting of Parcels 1,. 2, and 3 and a portion of Parcel 4. (u) "Phase II": That portion of Parcel 4 of the Shopping Center identified as Phase II on Exhibit "A." l .2 Parties: First Party is the Owner of Parcels 1, 3 and 4 and Albertson's is the Owner of Parcel 2. The Parcels are located at the southeast corner of the intersection of Southlake Boulevard (F.M. 1709) and North Davis Boulevard (F,M. 1938) in the City of Southlake, County of Tarrant, State of Texas as shown on Exhibit "A" and more particularly described in Schedules 1 through 4 attached hereto. 1.3 Purpose: The parties plan to develop the Shopping Center as an integrated retail sales complex for the mutual benefit of all real property in the Shopping Center and, therefore, hereby establish the Restrictions. II. BUILDING ANO COMMON AREA DEVELOPMENT 2. 1 Building Location: All buildings and other structures (e>ecept those permitted in Section 2.2 below and except as <>therwise provided with specificity in Section 2.3(d) hereinafter) shall be placed or constructed upon the Parcels only in the Building Areas; provided, however, that canopies,. eaves and roof overhangs (including cotumns or posts supporting same), normal foundations .. utility cabinets and meters, signs. and doors for ingress and egress may project from the Building Area into the Common Area. All buildings and other str-uctures shall be constructed and maintained in accordance with all local, state and federal laws, r-ules and regulations applicable thereto. AU Building 3 09734 Ot.82 *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 6 Of 38 ---'-->-·-' --.,c--~----------------------- Areas on Par-eel 1, 3 and/or 4 on which buildings are not under construction on the date the Owner of Parcel 2 first opens its building for business shall be covered by a one inch asphalt dust cap or-sodded and shall be kept mowed, watered, weed free and clean at the Owner's sole cost and expense until such time as buildings .are constructed thereon. Moreover, First Party shall, at its sole cost and expense, provide for the hydromulching or sodding of those portions of Phase II within one hundred (100) feet of the Phase Line on Exhibit "A" contemporaneously with the development of Phase I. First Party shall, at its sole cost and expense~ keep any such sod within Phase 11 mowed and watered1 and keep any such sod and hydromulching replenished~ weed free and clean until such time as buildings or other permanent improvements are constructed thereon~ In all events, First Party shall at all times keep all undeveloped portions of Phase 11 (whether or not covered with hydromuich or sod) weed free and clean at First Party's sole cost and e-xpense. 2 .. 2 Common Area: The Common Area is hereby reserved for the sole and exclusive use of all Owners of the Shopping Center 1 their tenants., contractors, employees, agents1 customers, licensees and invitees and the subtena:,ts, contractors, emptoyees.., agents1 customers 1 Sicensees and invitees of such tenants. The Common Area may be used for vehicular driving, parking (except that there shall be no multi-Jevel parking)# pedestr-ian traffic,. directional signs, sidewalks, walkways, landscaping. perimeter walls and fences, parking lot lighting., utilities and Service Facilities and for no other purpose unless otherw;se specifically provided in this Declaration. No buildings or structures not shown on the Site Construction Documents approved pursuant to the Development Agreement shall be placed or constructed in the Common Area except pylon and directional signs (as provided in Article IV), paving, bumper guards or curbs, landscape planters, lighting standards, perimeter walls and fences., utility pads and equipment,. sidewalks. and, to the extent that they are located,. and do not impede access I to the rear or sides of buildings., Service Facilities. The Common Area shall be constructed in accordance with the site plan attached hereto as Exhibit "A" i>nd shall be kept and maintained as provided for in the Common Area Maintenance Agreement. All portions of a Building At'ea which cannot be used for buildings shall be developed by the Owner thereof., at said Owner's sole cost and expense.,. in accordance wjth a site plan approved by the Consenting Owners and maintained as improved Common Area. Thti s.iZ.8'5. and arrilngements of the Common Ar-ea improvements, 4 09734 f_i I '. 1 1; j-:1 i rJ ~j *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 7 Of 38 ~ I •- including~ without limitation, service drives and parking areas, striping,. traffic dir-ectionai arrows and signs, concrete bumpers, parking lot lighting., perimeter walls and fences, .and landscaped areas, together wlth necessary planting., may not be changed without the prior wrttten consent of the Consenting Owners; provided., however, that nothing contained in this Section 2. 2 s.hall be in any way interpreted or construed to require t.he written consent of the Consenting Owners to the expansion of any buHding into the Expansion A.r-ea shown on Exhibit "A"'. 2.3 Type and Design of Building: (a) Each building in the Shopping Center, now and in the future, shall be of first quality construction and architecturally designed so that its exterjor elevations (includingr without limitation 1 signs and color) will be architecturally and aesthetically compatible and harmonious with all other buildings in the Shopping Center. No buHding may be c.onstt·ucted nor the exterior of any existing building changed in any way (including, without limitation, signs and color) without the prior wr-itten approval of the Consenting Owners. as to the exterior elevations (including, without limitation, signs and color) of the building to be constructed or modified provided, however, that in the event First Party shall sett a Pad or enter into a lease transaction in connect;on with a Pad which is commonly knows as a "buitd-to-suit1" and if the purchaser of sa1d Pad or the tessee under the build-to-suit transaction (said purchaser or 1essee being hereinafter referred to as the "'National/Regional Chain") operates twenty-five (25) or more units throughout the United States or a region thereof, and provided further that the National/Regional Chain utilizes a standard and uniform prototypical building for each of its units and intends to and does actually construct such prototypical building on any such Pad, then the exterior elevation of any such standard prototypical building constructed on the pertinent Pad by or for the NationaJ/Regional Chain shall not be subject to the approval rights provided for hereinabove so long as said building otherwise conform$ in every respect to this Declaration (includin91 without limitation, the maximum Building Area and building height designated for the pertinent Pad) and is otherwls.e reasonably aesthetically consistent with the exterior design of the other buildings in the Shopping Center. Provided further, however, that the foregoing provision shall not be construed to negate the approval rights of the Consenting Owners over the exterior designr color and elevations of any user of a Pad who is not a National/Regional Chain and 5 09734 0 l, 8 !:< <> "1 " f··-' ~ i'l bi ! *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 8 Of 38 who occupies any one of the Pads subsequent to the occupation thereof by a National/Regional Chain if any such subsequent user proposes to construct a building on any such P-ad or proposes to make alterations to the exterior design., color or elevations of an existing building previously utiHzed by a Natlonal/Regional Chain. The standard signs and logos of Albertson's as they may exist from time to time and the opening, closing or relocation of any door,. however,. shall not require approval. Before the construction of any building or any modification of an existing building which requires approval is commenced,. sufficient information shall be sent to the Consenting Owners to enable the Consenting Owners to make-a reasonable determination as to the architectural and aesthetic compatibility of said building or modification with alt other buildings in the Shopping Center. No Consenting Owner may arbitrarily or-unreasonably withhold its appr-oval of the proposed building or modification if it is archjtecturally and aesthetically c.ompatH:ile and f'H!rmonious wjth al! other buildings in the Shopping Center-. Each Consenting Owner-must approve or disapprove the proposal within thirty (30) days after receipt of the proposal, and~ if such Consenting Owner disapproves the proposal, it shall provide a written explanation in reasonable detail of its reasons for disapproval. If a Consentlng Owner rejects or disapproves the proposal and fails to provide such explanation within the thirty (30) day period, such Consenting Owner shall be deemed to have approved same provided that,. when the approval was sought, the one seeking the approvat made express written reference to this Section 2.3(a) and stated in writing to the one whose-approval was sought that,. if a disapproval with e•planation was not made within the thirty (30) day period 1 approval would then be deemed to have been given pursuant to this Section. If the proposal is disapproved as provided her-ein, then an alternate proposal may be submitted, which alternate proposal shall be handled in the same manner as the initial proposal. (b) Every building shall be either equipped with automatic sprinkler systems which meet all the standards. o-f the Insurance Services. Office (or other similar local organization having jurisdiction) or shall be constr-ucted in such a manner as not to adversely affect the fire rating of any building built upon any other Parcel. The purpose of this subparagraph (bl is to allow buildings built on each Parcel to be fire rated as separate and distinct units without deficiency charge, 6 09734 01.;05 *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 9 Of 38 -_...-.,_ ·•·-...s' ;_,-;,;,,' ------------------------------- (c) No building shall be built in such a manner as to adversely affect the structural integrity of any other building in the Shopping Center. (d) All bulldlngs within the Building Areas (and/or within any corresponding Building Envelopes) identified on Exhibit "A" as Major .. A," Shops "B,.H HAlbert.son's" and Shops "C" shall be single story with mezzanine permitted and shall not exceed thirty-one (31) feet in height. No building within the Building Areas (and/or their corresponding Building Envelopes) identified on Exhibit "A" as Shops "A,*' Pad "A, .. Pad "B," Pad "C," Pad "D," Pad "E" or Pad "F" shall exceed one (1) story and twenty-two (22) feet in height (including mechanical fixtures. and equipment and screening for same). No mezzanine or basement shall be used for the sale or display of merchandise. The utilization of the Building Area (including any corresponding Building Envelopes) on Parcels 1 and 3 and on those por-tions of Parcel 4 identified as. Pad .. D" and Pad "E" shall be limited to the maximum square footages assigned to the pertinent Building Area or Pad on Exhibit "A," but the configuration of the buildings shown on Exhibit •1 A" may be altered from that shown on said Exhibit "A," provided (i) each such building .-emains within the boundaries of it,; rei\pective Building Envelope, (ii) no such building exceeds the building heJght timit applicable to it pursuant to the provisions of this Declaration; (iii) no such building exceeds the specific maximum squar-e footage assigned to it on Exhibit "A," and (iv} each ,;uch building otherwise complies in alt respects with the provisions of this Declaration. The use cf Pads "A," "B, ·· "C#" .. D," "E .. and "F'· (including any corre-sponding Building Envelope) shall each be limited to the location of a single building within the Building Envelope of each such Pad, except that (i) a detached one-bay car wash may be located on Pad "C.. as provided under Section 5.6(d} hereinafter, and (ii) a single 5eparate service building (an nlncidentai Buildin9'1 ) which is strictly ancillary and incidental to the use being made of a Pad, and which is not intended for and is not utilized for occupancy by persons or the conducting of any bu&iness therefrom, may be located within the Building Envelope of a Pad provided the total square feet of floor area contained in any such Incidental Building does not exceed five percent (5"-} of the total square footage of floor area contained in tho primary building on the pertinent Pad and the combined aggregate &quare footage of floor area contained in all buildings (including the Incidental Building) located within any Pad does not exceed the maximum square footage limitation assigned to such Pad on Exhibit "A." Moreover, it is acknowledged 7 r .j j ______ 0_9_1_3_4 __ o_ti_a_s ___ .J *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 10 Of 38 .. ...;._ -i--=--~~---ii~ c that the building sizes and configurations shown for the buildings within Phase 11 identified as Pad *'F,.1-1 Shops 11 A" and Major "AH on Exhibit ~'A" ar-e currently only conceptual in nature. Consequently, First Party may, within the perimeters of the Building Envelopes encompassing Pad .. F, n Shops "A" and Major uA", alter the configuration, location and/or size of the buildings outlined by the Building Area designation shown within said Building Envelopes on E)(hibit tlA,., provided that all of the following provisions are in all events satisfied in all res.pects: (A) the prior written consent of the Owner of Parcel 2 to any such alteration in conflguratlon., location and/or size is first acquired, (B) all portions of each such building remains within the. boundaries of the pertinent Building Envelope within which it is contained~ (C) there is at all times provided on the Parcel on which the pertinent building is located five (5) vehicular parking spaces {with dimensions. acceptable in all respect.-s to Albertson's !n its so!e clis.cretion.) for uach square foot -o-f floor area contained. in all buildings located or to be located within the pertinent Parcel, ( D) there is at all times provided on the Parcel on which the pertinent buHding is located ten (10) vehicular parking spaces (with dimensions acceptable in all respects to Albertson's in Jt5 s-ole discretion) for each square foot of floor area on the pertinent Parcel which is utilized or is to be utilized for the operation of a restaurant, (E) if the aggregate square footage of floor area on Parcel 4 is increased from that shown on Exhibit "Au as. the result of the implementation of changes. permitted hereby1 the Owner of Parcel 4 must first reimburse (prior to the implementation of the pertinent change) the Owners of Parcels 1, 2 and 3 such sum or sums of money as would result in the payment by said Owner of Parcel 4 of such increased proportionate share of the cost of all Site Work and Project Architect's fees as would have been borne by the Owner of Paree! 4 under Article 10 of the Development Agreement had the increased square footage been initially calculated into the square footage applicable to Parcel 4 for purposes of said Article 10 of the Development Agreement and (F) the Owner of Parcel 2 is provided with as-built surveys'" plans or such other documentation as said Owner may reasonably request in order to confirm the extent of any such alteration of t.he confi9uration1 location and/or size of the building(s) at issue. In the event any Common Area 1mprovements must be altered in order to accommodate a change in the configuration and/or sjze of a building as permitted in this Section 2.3(d), such alteration shall only be done in accordance with a site plan approved in wrJting by the Consenting Owners 8 09734 0487 1 • *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 11 Of 38 I I and incorporated into an amendment to this Declaration, which amendment shall have been fully executed and recorded in the appropriate publtc records of Tarrant County, Texas prior to the construction or alteration of the pertinent Common Area improvements. (e) Each Owner shall maintain or cause to be maintained the exterior of any building located on such Owner's Parcel (s) in a quality and condition comparable to that of first class shopping centers of comparable size and nature located in the same geographic area as the Shopping Center. All Service Facilities shall be attractively screened from view from the parking areas. 2.4 Construction Requirements: (a) All work per-formed in the construction, maintenance, repair, replacement, alteration or expansion of any building, sign or Common Ar-ea improvements located in the Shopping Center shall be effected as expeditiously as: possib!e and -in ~uch a manner as. not to un reasonabiy interfere~ obstruct or delay (i) access to or from the Shopping Center, or any part t:hereof, to or from any public right-of-way, (fi) customer vehicular parking in that portion of the ,mproved Common Area Located in front of any building constructed in the Shoppfng Center, or (iii) the receiving of merchandise by any business in the Shopping Center including~ without Hmitation, access to the Service Facilities. Staging for the construction, replacement.. alteration or expansion of any building, sign or Common Area improvements located in the Shopping Center including,.. without !imitation, the location of any temporary buildings or construction sheds~ the storage of building materialsl and the parking of construction vehicles and equipment shall be limited to that portion of the Shopping Center approved in writing by the Consenting Owners. Staging as aforedescribed for Phase 11 of the Shopping Center may be located at any location within Phase 11 which is at least two hundred fa.,t !200') from the Phase Line shown on Exhibit ~1 A, .. provided that the exact location of any such staging area must in all events first be approved of in writing by the Consenting Owners, which apprcval shalt not be unreasonably withheld or delayed. Unless. otherwise specifically stated herein, the person contracting for the performance of such work ("Contracting Party") shall, at Its sole cost and expense, pr-ompt1y repair and restore or cause to be promptly repaired and restored to its prior condition all buildings.. signs and Common Area improvements damaged or destroyed in the performance of such work. 9 09734 Oli88 - , . . ' ~I ! I d *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 12 Of 38 (b) The Contracting Party shall not permit any liens to stand against any Paree\ for any work done or materia,s furnished in connection with the performance of the work described in subparagraph (a) above; provided, however, t.hat the Contracting Party may contest the validity of any such iien, but upon a final determination of the validity thereof 1 the Contracting Party shall cause the lien to be satisfied and released of record. The Contracting Party shall, within thirty (30) days after receipt of written notice from the Owner or Prime Lessee of any Parcel encumbered by any such lien or claim or Hen, cause any such outstanding lien or cfaim of lien to be released of record or transferred to bond in accordance with applicable law, failing which the Owner or Prime Lessee of said Parcel shall have the right.,. at the Contracting Party's expense, to trans.fer said lien to bond. The Contracting Party shall indemnify, defend and hold harmless the Owners and occupants of the Shopping Center from any .and aH liability,. claims~ damages.. expenses: (includfng reasonable attorney's fees and reasonable attorney's fees on any appealL Hens, cJaims of lien,. judgments,. proceedings and causes of action .. arising out of or in any way connected with the performance of such work, unless caused by the neg1igent or willfu~ act or omission of the indemnified person, its. tenants, subtenants.:, agents, contractors or employees. (c) The parties acknowledge and agree that incidental encroachments upon the Common Areo may occur as a result of the use of ladders.~ scaffolds, store front barricades and similar facilities in connection with the construction, maintenance.,. repair, replacement., alteration or expansion of buildings, s.igns and Common Ar-ea improvements located in the Shopping Center, all of which are permitted hereunder so long as all activities requiring the use of such facilities are expeditiously pursued to completion and are performed in such a manner-as. to minimize any interference with use of the improved Common Area or with the normal operation of any business in the Shopping Center-. 2.5 Casualty and Condemnation: In the event all or any portion of any building in the Shopping Cente.-is (i) damaged or destroyed by fire or other ca$ualty,. or {it) taken or damaged as a result of the exerctse of the power of emlnent domain or any transfer In Heu thereof, the Owner of such building shaU promptly restore or cause to be restored the remaining portion of ~uch building or, in lieu thereof, shall remove or cause to be removed the damaged portion of such building together with all rubble and debris related thereto. All Building Area• on which buildings are not reconstruct~id following a ca,.ualty 10 n9734 f *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 13 Of 38 _____ , F ..... __ ._ __ or condemnation shall be graded or caused to be graded by the Owner thereof to the level of the adjoining property and in such a manner as not to adversely affect the drainage of the Shopping Center or any portion thereof, shall be covered by sod, hydromulch or by a one inch asphalt dust cap, and shall be kept mowed, watered,. replenished,. weed free and clean at the Owner's sole cost and expense until buildings ar-e reconstructed thereon. 2. 6 I ndemn lfication : (al Each Owner hereby agrees to indemnify, defend and hold harmless the other Owners and occupants from and against any and all liability,. claims 1 damages,. expenses (including r-easonabfe attorney's fees and reasonable attorney's fees on any appeal), judgments, proceedings and causes of actionr for injury to or death of any person or damage to or destruction of any property occurring in the interior of any building constructed on the indemnifying Owner's Parcel.,. unless caused by the negligent or willful act or omission of the indemnified person, its tenants.,. subtenants.,. agents, contractors or employees. (b} The Owner-of Parcel 3, for itself and its successors; assigns; agents, employees and legal representatives, does hereby unconditionally agree to fully and completely indemnify, defend, protect and hold harmless Albertson"s, and its directors, officers, employees.,. partners, iega! representatives, successors and assigns, from and against any and all claims, losses, damages (including.,. without limitation, all foreseeable and unforeseeable consequential damages), liabilities, fines., penalties; charges, interest, administrative and/or judicial proceedings and/or orders, judgments, remedial action requirements, enforcement actions of any kind, and all costs and expenses incurred in connection therewith (including, without limaation,. any and all .attorneys• fees and expenses and attorneys' fees and expenses on any appeal) directly or indirectly resulting in whole or in part occasioned by., involving.,. ancillary to., connected with, from., caused arising from or or otherwise related in any manner to the use and occupation of Parcel 3 including, without limitation, the storage and/or utilization of gasoline and/or other petroleum products thereon. The Owner of Parcel 3 a9 rees to assume full responsibiUty for-the safe and efficient operation and use of any and all underground gasoline storage tanks on Parcel 3, and shall ass:ume fuH respons:ibiHty for any damage to or adverse effect upon Albertson's,. Paree~ 1, Parcel 2 and/or Parcel 4 in any way related to the e)(istence of said storage tanks on Parcel 3~ The Owner of Parcel 3 agrees that neither it, nor its tenants, successors; assigns, agents, employees or legal representatives, shall 11 09734 01190 i *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 14 Of 38 I lali_ -- conduct,. permit or cause any activities to be conducted on ParceJ 3 in violation of any local.,. -state or federal ordinance, rule, regulation or statute pertaining to construction..,. operation,. maintenance or disposal activities regulated for-the purpose(s) of human health and/or the environment. The Owner of Parcet 3, for itself and its tenants, successors., assigns, agents,. employees and legal representatives,. does hereby unconditionally agree to fully and complete~y indemnify, defend, protect and hold harmless Albertson's, and its directon, officers,. employees, partners,. legal representatives, successors and assigns from and against any and all claims, losses, damages (including,. without limitation, all foreseeable and unforeseeabJe consequential damages)_,. liabilities, fines.,. penalties.,. charges, interest, administratfve or judicial proceedings and/or orders, judgments., remedial action requirements# enforcement actions of any kind, and ail costs and expenses incurred Jn connection therewith (including, without limitation, any and all attorneys' fees and expenses and attorne,y$,' fees and expenses on any appeaO directly or indirectly resulting in whole or in part from, caused or occas.ioned by, involving, ancillary to, connected with, arising or otherwise reJated in any manner to the violation by the Owner of Parcel 3 of any local., state or federal ordinance.,. rule, regulation or statute pertaining to the construction.,. operat1on, maintenance or disposal activities regulated 'for the purpose(s) of human health and/or the environment applicable to Parcel 3 or from any activity conducted thereon. The Owner of Parcel 3 shall reimburse Albertson~s immediately upon demand for any and all sums paid and/or costs incurred by Albertson's with respect to the matters addressed in this SectJon. Payment in full shall be due to Albertson's immediately upon receipt by the Owner of Parcel 3 of an accounting for such sums paid and/or costs incurred by Albertson~s.. Sald sums paid and/or costs incurred shall bear interest at the highest rate permitted by law and said interest shaU commence accruing if payment is not received by Albertson's. from the Owner-of Parcel 3 within thirty (30) days after receipt by the Owner of Parcel 3 of the foregoing accounting. 111. EASEMENTS 3.1 Ingress, Egress and Parking: Each Owner, as grantor, hereby grants to the other Owners, their respective tenants. contractors, employees.. age-r.tsl customers# licensees and invitees., and the subtenants. contractors,. employees, agentll;r customers, licensees .and invitees of such tenants.I for the benefit of each Parcel belonging to the other Owners, as grantees, a mutual nonexclusive easement for ingress and egress by vehicular and pedestrian 12 0 9 7 3{~ 0 !) 9 I *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 15 Of 38 traffic and vehicular parking upon .. over-and across that portion of the Common Area located on the grantor•s Parcel(s), except for those areas devoted to Service Facilities or driveup or drive through customer service facilities. The reciprocal rights of ingress and egress set forth in this Section 3. 1 shall apply to the Common Area for each Parcel as such area shall be increased pursuant to Sectjon 2. 2 above. 3.2 Utility Lines and Facilities: (a) Each Owner-, as g r-antor,. hereby grants to the other Owners,. for the benefit of each Parcel belonging to the other Owners as grantees, a rionexclusive easement under,. through and across the Comm.on Area of the grantor's Parcel(s) for the installation, operation, maintenance,. repair and replacement of water drainage systems or structures, water mains, sewers, water sprinkter system Hnes, te1ephones# eleetr-ic.at conduits or systems# gas mains and other public or private utilities. All such systems,. ~triActur~s.. mains, sewers, conduits. Hnes and other utilities shalt be installed and main- tain13d below the ground level or surface of such easements. except for ground mounted electrical transformers and such other facilities as are required to be above ground by the utility providing such service (including temporary service required during the construction,. maintenance, repair, replacement, alteration or expansion of any buildings or improvements located in the Shopping Center). The instaUation, operation~ maintenance,.. repair and replacement of such ease- ment facilities s.halJ not unreasonably interfere with the use of the improved Common Area or with the nor-ma! operation of any business in the Shopping Center. The grantee shall bear all costs related to the installation, operation,. maintenance, repair and replacement of such easement facilities.,. shall repair to the original specifications any damage to the Common Area resulting from s.uch use and shall provide as-built plans for all such facilities to the Owners of all Parcel~ upon which such utility lines and facilities are located within thirty (30) days after the date of comp1etion of construction of same. (b) At any time and from time to time the Owner of a Parcel shall have the right to relocate on its Parcel any utility line or facility installed pursuant to the foregoing grant of easement which is them located on the land of such Owner, provided that any such relocation (i) shall be performed only afte-r sixty (60) days notice of the Owner"s intention to undertake the relocation shall have been given to the Owner of each Parcel served by the utility line or facility~ (ii) shall not unreasonably interfere wlt'h or diminish utility service to 13 ng734 ________________ ,_ !' ' ' I l J ./ I I" ' ·' ~ _l I ~ ! *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 16 Of 38 the Parcets served by the utility line or faciBty.,. (iii) shaU not reduce or unreasonably impair the usefulness or function of the utility line or faciHty# {iv) shall be performed without co.st or expense to the Owner or occupant of any other Parcel.,. and (v) shall provide for the original and relocated area to be restored to the original specifications. The Owner performing such relocation shall provide as-built plans for all such relocated utility lines and facilities to -ihe Owners of all Parcels served by such utility lines and facilities within thirty (30) days after the date of completion of such relocation. (c) Each Owner agrees to grant such additional easements as are reasoi1ably required by any public or private utilities for the purpose of providing the utility lines and facilities described herein provided such easements are not otherwise inconsistent with the provisions of this Declaration. 3 .3 Signs: Each Owner, as g ran tor# hereby grants. to the other Owners, for the benefit of each Parcel beJon9in:9 to the other O\vners# as grantaes, an easement under, through and across the Common Area of the grantor's Parcel(s) for the instal!ation, operation, maintenance, repair and replacement of the free-standing signs refer-red to in Sectjon 4.3 of this Declaration and all utility lines and facilities appurtenant thereto. Except where otherwise speclficaUy stated herein to the contrary.,. the grantee(s) shall bear-all costs related to the installation, maintenance, repair and replacement of its free-standing sign and appurtenant facilities, shall repair to the original specifications any damage to the Common Area resulting from such us.e and shall provide as-built plans for aH such facilities to the Owners of all Parcels upon which such facilities are located within thirty (30) days after the date of completion of construction of same. 3.4 Building Encroachments: First Party, as grantor, hereby grants to Albertson's, for the benefit of Parcel 2, as grantee,. an easement for any portion of any building or structure located on Parcel 2 which may encroach into or over an adjoining Par-eel; provided the easement for footings.,. piers.,. piles, grade beams and building encroachments is limited to two (2) feet, and provided further that, to the extent that any of the foregoing buildings or structures located on Paree~ 2 encroach onto the Building Area of an adjacent. Parcel, said encroachment (a) must be limited to six (6) inches, (bl must be inadvertent and (c) must not be shown by the pertinent plans and specifications for the Albertson's building on Parcel 2. Albertson's hereby grants to First Party, as the Owner and for the benefit of Parcels I and 4, an 14 0 l; 9 3 f l,: I -! I I i-o'. I ~ j -~ ' I *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 17 Of 38 I easement for any portion of any building or structure located on Parcel 1 or 4 1 which may encroach into or over Parcel 2; provided that (i) the foregoing easement may be utilized by First Party only after the construction of all improvements which Albertson's. resolves to place on Parcel 2 is completed, including the Albertson's building shown on Exhibit "A," (ii) the foregoing easement does not apply to any portion of Parcel 2 upon which Albertson's has constructed or plans to construct improvements, or any portion of Parcel 2 which is: used or which Albertson's plans to use as lateral, subjacent or any other form of support for any improvements constructed or to be constructed by Albertson's on Parcel 2~ (iii) any such encroachment easement onto Parcel 2 is limited to six inches. from the pertinent Parcel boundiirY line, (iv) any such encroachment mus:t be inadvertent and (v) any such encroachment must not be shown by the pertinent plans and specifications for the improvements to be constructed on Par-eel 1 or Pare.el 4, as the case may be. Anything in this Section 3.4 to the contrary notwithstanding,. each Owner agrees to use its reasonable efforts to minimize any encroachment into or over an adjoining Parcel so as not to restrict the size or interfere with the construction of any building bu Ht on any other ParceL The easements granted in this Section 3 .4 shaU survive this Declaration and shall last so long as the encroaching building is standing following its initial construction or following its reconstruction where such building is substantially restored to its prior condition foilowing a casualty or condemnation. 3.5 Perimeter Access Drive: Each Owner, as g.rantor_. hereby _grants to the other Owners, their-respective tenants, contractors,. empfoyees# agerits, customers# licensees and invitees, and the subtenants* contractors, employees, agents, customers~ licensees and invitees of such tenants, for the benefit of each Parcef belonging to the other Owners., as grantees# a perpetua} nonexclusive easement for ingress and egress by vehicular and pedestrian traffic upon~ over and across that portion of the Common Area located on the grantor's Parcel(s) shown on Exhibit "A" as "Perimeter Access Drive" and more particularly described in Schedule 5 attached hereto and incorporated herein by thls reference. IV. OPERATION OF COMMO~! AREA 4.1 Parking: There shall be no charge for parking in the Common Area without the prior written consent of the Consenting Owners or-unless otherwise required by law. 15 0'3731+ *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 18 Of 38 I ~ I 4.2 Employee Parking: Anything in this Declaration to the contrary notwithstanding, areas to be us.ed for motor vehicle parking by emptoyees of occupants of the Shopping Center may be designated within the Shopping Center from tjme to time with the prior written consent of the Consenting Owners. Jn the event employee parking areas at"'e designated as provided herein, then employees of any Owner or occupant of any part of the Shopping Center shalJ use only those portions of the Common Area designated for such motor-vehicle parking purposes. In no event shat! employees park within two hundred (200) feet of the front of any building located on Parcel 2. The authority herein granted shall be exercised in such manner as not to discriminate against any Owner or occupant of the Shopping Center. 4.3 Signs: (al Subject to governmental approval, two (2) free-standing signs shall be erected at the location designated "Center/Albertson's Pylon Sign'" on Exhibit "A." Each such sign shalt display the designation of the- Owner or occupant of Paree\ 2 andr provided the amount of si9nage otherwise permitted by governmental authority to the Owner or occupant of Parcel 2 is not adversely affected thereby, designations for not more than three (3) other businesses in the Shopping Center. Any such business, in order to display its designation on the Center/Albertson's PylGn Signs.,. must occupy not less than eight thousand (8,000) square feet of ground floor area. The cost of constructing, installing, maintaining,. repairing and replacing each Center/ Albertson's Pylon Sign structure (excluding electrical hookup to the Common Area meter) shall be paid by the Owners of all Parcels entitled to display designations thereon in the proportion that the total square footage of each Owner's designation or designations bears to the total square footage of all designations entitled to be displayed thereon. Each person displaying a designation on a Center/AJberts.on's Pylon Sign shall supply and majntaln its own sign fascia and can. The duign of each Center/Albertson's Pylon Sign structure shall be subject to the approval of the Consenting Owners, as shall be the size, design and location of the sign fascia used; provided, however,. that Albertson's and other persons occupying not less than eight thousand (8,000) square feet of ground floor area may use such standard fascia as they from time tu time u5e generaiiy in carrying on their businesses. The Owner or occupant of Parcel 2 shall have the top designation on each Center/Albertson's Pylon Sign. The Owner of Pare"! 1 shall have the right to substitute a Shopping Center designation for any one of its business designations. 16 0973l> ; ' f ,. ' LJ ·.1 ! .,, .,,._,i ~: I *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 19 Of 38 --All. -J .:r -alc';-,-"o- (b) Provided the amount of signage otherwise permitted by governmental authority to the Owner-or occupant of Parcel 2 is not adversely affected thereby, a pole sign which does not exceed twenty-five (25) feet in height may be er-ected on each Pad subject to the approval of Albertson's as to the size,. design and location of same, which approval shall not be unreasonably withheld. Each such free-standing sign shall be restricted to the designation of one (1) occupant of the pertinent Pad, and the cost of constructing, installing,. maintainin91 repairing and replacing each such pole sign shall be paid entirely by the Owner of the pertinent Pad. (c) There shall be no other si9ns 1 except directional signs and signs on buildings,. in the Shopping Center. All exterior building signs on Par-eels 1,. 3 and 4 shall be restricted to identification of the business or service focated or provided therein. No exterior building sign shalJ be placed on penthouse walls,. extend above the building roof or be painted on the exterior building surface. No exterior building or-fr-ee-standtng sign shaU utilize flashing,. moving or audible lights or appurtenances. 4.4 Protection of Common Areas: Each Owner and Prime Lessee shall have the right to take such steps as it deems r-easonably necessary to prevent those persons not authorized by this Declaration to use the Common Area from using the Common Area for ingress, egress and parking. Such steps shall include,. without limitation,. the construction of fences,. walls or barricades along the boundary lines of any portion of the Shopping Center except along the common boundary of any Parcel with any other Parcel. 4.5 Sales: No portion of the Common Area, except sidewalks, shall be used for the sale or display of merchandise without the prior written consent of the Consenting Owners, which consent may be granted or withheld without any reason or justification whatsoever in any Consenting Owner's sole discretion. Moreover, no more than fifty percent (50%) of the width of any sidewalk shall be used for the sale or display of merchandise at any one tjme,, and the Owners may display and sell merchandise only on those sidewalks located on their respective portions of the Shopping Center. The sale or display of merchandise as aforedescribed shall not be allowed more than once each calendar quarter on each Parcel and any one such quarterly sale or display shall not exceed fifteen {15) days in duration. Anything to the contrary hereinabove notwithstanding, (A) motor oil, wiper blades, fuel additives and other such products typically sold by an automotive service station ma\'· be tastefully 17 ' I ' _, j I ' ~-: I r1 i *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 20 Of 38 ""1--..... --; . displayed on Par-cet 3 in proximity to any gasoline pumps utitized on said Paree~ as part of the operation of such a service station..- and ( B) the seasonal sale of merchandise by the. Owner or occupant of Parcel 2 shall be permitted from the parking lot located on Parcel 2 subject to the following restrictions: (i} sales shall be limited to not more than four (4) occasions per-calendar year for a cumulative total or not more than sixty (60) days du ration, (ii) the sales area shall be limited to not more than twenty (20) parking spaces located on Parcel 2, (iii) all booths, stands, displays and other structures erected in connection with such sales. shall be promptty removed by the Owner or occupant of Parcel 2 upon termination of sa£d activities, (iv) the Common Area s.haH be promptly repaired to its condition immedlately prior to sai.d sate at the sole cost and expense of the Owner or occupant of Parcel 2, and (v) sales shall not interfere with the free movement of vehlcular traffic within the Shopping Center or with access to or from the Shopping Center,, or any part thereof, to or from any public right-of-way. V. RESTRLCTlONS ON USE S.1 Food and Drug Restrictions: No part of Parcel 1, 3 or 4 shall be used as a supermarket (which shatl be defined as any store or department containing at teast 5,000 square feet of floor area, including aisle space and storage, primarily devoted to the retail sate of food for off-premises con- sumption); as a bakery or de1icatessen; for the sale of fresh or frozen meatl fish, poultry or produce for off-premises consumption; or for the sale of alcoholic beverages for off-premises consumption {except as otherwise provided in Section 5.6 hereinafter); or for the sale or offer for s.a\e of any ethical pharmaceutical products requiring the services of a re-gists-red pharmacist; provided,. however, that the foregoing restriction against the oper-at,on of a supermarket shall automatically terminate if a supermarket containing at least 40,.000 square feet of floor area is not operated from Parcel 2 for a continuous period of one (1} year or more for any reason other than an Excusable Cause. 5.2 Shopping Center Restrictions: No part of the Shopping Center shall be used as a bar,. tavern, cocktail lounge, adult book or adult video store, automotive maintenance or repair facility, warehouse.. car wash (except as 18 Ol,Q"7 • J ' ' j ,.,._! '"--1 (1 ,. 'l ' 1 *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 21 Of 38 • -... L ~--~..'...-.. ;I j ! otherwise-provided in Sec·tion 5.6 hereof), entertainment or reerE-aiionat . :1ci1ity or training or educational facility; for the renting, leasing or selling of or displaying for the purpose of renting, leasing or selling of any boat, motor vehicle or traHer; or for industrial purposes. For the purpose of th i • Declaration,. the phrase "entertainment or recreationat facility" shall include, without limitation, a theater, bowling alley, skating rink, gym, health spa or studio, dance hall, billi.,rd or pool hall, massage parlor, game parlor r,r video arcade (which shall be defined as any store containing more than four [4] ele.ctronic games). The phrase "training or educational facitlty" shall include, without ltmltation,. a beauty school, barber college, reading room.. place of instruction or any other operation catering primarily to students-or trainees as opposed to customers. 5.3 Location Restrictions, No part of ?areal 1 or 4 within two hundred (200) feet of the BuUd!ng Area of Parcel 2 shan be u~ed as .: restaurant or as a medical,. dental,. pr-ofesstonal or business office. No restaurant which contains in excess of ten thousand (10,000) square feet of f!oor area shall be located anywhere within that portion of Parcel 4 identified on Exhibit "A" as Major "A" (or within the corresponding Bunding EnveJope within which said Major "A" is contained). No alcoholic beverages shall be -soJd, served or offered for sale or service: from s.aid Major 1'A" or from Pad "D" (and/or from their r-espective corresponding BuHding Envelopes) unless (i) said sale or service-~s done as an Incidental part cf a family style restaurant whose primary function is the sale of food for on-premises consurnptton, (H) said sale and/or service is lim,ted to the sale and/or service, of alcoholic beverages for on-premises consumption,. (Hi) the total quarterly gross: revenue fr-om the sate of atcohoUc beverages fr-om any such restaurant does not exceed twenty-five percent (25%) of the total quarterly gross revenues derived from al! sources by any such restaurant, and (iv) the Owner and occupant of any such restaurant and of Parcel 4 provide to any Owner and/or Prime Lessee, within thirty (30) days after receipt of a written request. for same from time to time, quarterly statement$ of gross revenue,; by percentage attributable to the sale of alcoholic beverages from any such restaurant. The total floor area of all restaurant" and medical, dental, professional and business offices located on ?arcals 1, 3 and 4 combined shall not exceed an aggregate of thirty thousand (30,000) square feet. No alcoholic beverages other than beer and/or wine shall be sold, served and/or offered for sale or service from the areas designated as Pad "A" and Pad "B" (and/or their 19 0'373~ d *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 22 Of 38 j d • respective corresponding Building Envelopes.) on Exhibit 11 A, n and beer and wine may be sold, served and/or offered for sale or service only from one such Pad at any particular tlme, and the contemporaneous sale, service and/or offering for sate and/or service of beer and/or wine from both such Pads (and/or their respective cor-responding Building Envelopes) is expressly prohibited. Moreover~ the sale of beer and/or wine from Pad "A" and/or Pad "B" (and/or their respective corresponding Building Envelopes) shall be str,ictly limited to the sale and/or service of such beverages for on-premises consumption as an incidenta1 part of the operation of a family-style restaurant whose primary function is the table service of food for on-premises consumption. All entrances and all public, non-service exits to or from any restaurants located on Pad "A.. and/or Pad "B" (and/or their respective corresponding Building Envelopes) shall face the public right-of-way shown on Exhibit "A" as Proposed North Davis Boulevard, AU entrances and all public, non-service exits to or from any restaurant located on the area identified as Pad "D" (and/or its corresponding Building Envelope) on Exhibit "A" shall face the public right-of-way identified as Southlake Boulevard {F. M. 1709) on Exhibit "A". 5.4 Driveup and Drive Through Facillties: No restaurant, bank or other facility featuring vehicular drive through customer service shall be located anywhere in the Shopping Center other than on Pad "E" unless the Consenting Owners have first given their Wr"itten consent, which shaU not be unreasonably withheld, to the location, parking and drive lanes of such facility. The foregoing consent of a Consenting Owner shall be granted or withheld based solely upon the impact, If any, which such facility may have on the traffic circulation,. parking and/or access to any building constructed or to be constructed in the Shopping Center. The parties hereby approve the vehicuJar driveup and drive th rough customer service facilities shown on Exhibit uA. u 5.S Mall Restrictions: There shall be no open or enclosed malls in the Shopping Center unless the Consenting Owners have first given their written consent, which shall not be unreasonably withheld, to the location of the entrance to such mall. !> .. ti Exceptions: Anything hereinabove to the contrary notwithstanding: (al A single automotive repair facility such u a Goodyear or a Firestone car care facility (hereinafter referred to as "CCF"J may be located within any •~ne (but not more than one) of those portions of Parcel 4 identified on Exhibit "A 0 as Major 11 A'1 and Shops "Au. provided 20 0499 ;i-~734 -i,,_-------------------------~-~-=···=···~·-··· _._.,., .. I I I ' ~ l ~ I .) ,_1 • l .~ J,i: ' I I I J . I *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 23 Of 38 . that in all events (i) all servicing of vehicles is done on the interior of the building utilized for the operation of the CCF, (ii) all vehicles left for repair at the CCF must be par'ked within the pertinent Building Envelope and behind the building utilized for the operation of the CCF, screened from the view of persons utilizing the parking and other Common Areas cf the Shopping Center, (iii) any such CCF shall not exceed fifteen thousand (15,000) total square feet of floor area in size, and (iv) no disabled vehicles shall be parked anywhere in the Shopping Center incident to the operation of any such CCF and such CCF must be a business entity operating at least twenty-five (25) stores th rough out the United States under the same trade name~ such as "Firestone" or '~Goodyear." The foregoing provisions are intended to permit only one CCF within either Major "A" or Shops "AU, and are not intended to permit and shall not be cons.trued to permit the simultaneous operation of more than one such CCF on more than one of the foregoing portions of the Shopping Center at any time. Moreover., automotive accessories such as tires and batteries may be so,d and installed as an incidental part of the operation of a discount store or a department store (such as K mart, ShopKo or Fred Meyer's) located on Parcel 4 within the Building Area identified on Exhibit "A" as Major "A," so long as (A) the discount or department store within which the foregoing products and services are offered contains at least forty thousand (40,000) square feet of floor area and (B) the conditions set forth in 5. 6(a) (i), 5.6(a) (ii) and 5.G(a)(iv) hereinabove are s.atisfied. (b) A theater shall be permitted on Parcel 4, provided the written consent and approval of Atber-tson •s is first acqui r-ed* which consent and approval may be arbitrarily withheld or conditioned In Albertson's sole and unbr-idled discretion; provided, however, that if said proposed theater is to be located more than five hundred (500) feet from the Building Area on Parcel 2, Albertson's shall not unreasonably withhold or unreasonably condition any such approval. (c) A cocktail lounge shalt be permitted in a restaurant providing seating for subs.tantially all of its customers. so long as (i) said restaurant is located within the Building Area identified on Exhibit "A" as Shops "A," Pad "E" or Pad "F, •• {ii) any such restaurant in Shops "At' or on Pad "E" does not exceed five thousand (5,000) square feet of floor area and any such restaurant on Pad "F" does not exceed six thousand five hundred 21 Cl9734 0500 *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 24 Of 38 ---_.;_ ~-:-:.-=-----•.,•_y••·•·o•. -·~ (6,500] square feet of floor area, (iii) the sale and/or service at alcoholic beverages is limited to the safe and/or service of same for on-premises consumption, .and (iv) the total quarterly gross revenues from the sale of alcoholic beverages from any such restaurant does not exceed thirty percent (30%) of the total quarterly gross revenues derived from all sources by any such restaurant. The Owner and the occupant of any such restaurant and of any Parcel on which such restaurant is located agree., within thirty (30) days after receipt of written request from any Owner or Prime Lessee from time to tirne, to provide said Owner or Prime Lessee quarterly statements of gross revenues by percentage attributable to the sale of alcoholic beverages from any such restaurant. The Owner or Prime Lessee requesting such statement agrees to hold in confidence all information contained in said statement; providedr however, that said Owner or Prime Lessee may disclose such information to its Lienholder or to a prospective purchaser.,. Lienholderr tenant or subtenant of a!J or any part of its Parcel. The Owner or Prime Lessee requesting such Jnformation shall not be responsible for the disclosure of such information by any such Lienholder or by any such prospective purchaser.,. Lienholder, tenant or subtenant, its agents or employees.~ provided such information was tendered to such person with the request that same be held confidential. The provisions of this Section 5.6(c) are intended to permit the operation of only one such restaurant with a cocktail lounge withtn Shops *'A" as hereinabove providedr and is not intended to permit and shall not be construed to permit the simultaneous operation of more than one such restaurant within said Shops '"A". (d) A single automatic automotive car wasn may be located within the Building Area of Parcel 3 provided Ci) said car wash is operated as an incidental part of the operation of a gasoline service station~ (ii) the building housing any such car wash doe• not exceed 864 square feet of floor area in size, (iii) the car wash is located in the building so identified on Exhibit "A," and (iv) the combined aggregate square footage of floor area contained in all buildings located on said Parcel 3 (including the square footage of the car wasl-1) does not e,cceed l ,8n4 s~uare feet. (el A single health spa or studio may be located within that portion of the Building Area of Parcel 4 identified on Exhibit "A" as Shops "A" provided (i) said health spa or studio does not e.,ceed a total of ten 22 -09i134 0501 I I I I I ' I I I I l) I l'~ l: I i~ i ' ~j ~I ;11 i I >1 • I .' ,-. ~ . ' *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 25 Of 38 ' . \ . . ·, -------.. -. . . - thousand (10,000) square feet of floor area in size and (ii) said health spa or studio is located in the northernmost two hundred (200) feet of said Snops "A". (f) One donut shop (such as "Dunkin' Donuts" or a "Mister Donut") and one or more submarine sandwich shops may be located on Parcel 1 or Parcel 4, provided that all entrances and exits to or from any such donut shop or sandwich shop shall be located at least one hundred fifty (150) feet from any and all public entrances and exits to or from any building located on Parcel 2 and provided no such donut shop shall exceed one thousand five hundred (1,500) total square feet of floor area in size and no such sandwich shop shall exceed two thousand (2,000) square feet of floor area in size. The provisions of the immediately preceding sentence are intended to permit mult,,::.de sandwich shops on Parcels 1 and 4, but a total of only one donut shop on either Parcel 1 or Par-eel 4.~ and are not intended to and shall not be construed to permit the simultaneous operation of more than one donut shop on: said Parcels. VI. GENERAL PROVISIONS 6.1 Covenants Run With the Land: Each Restriction on each Parcel shall be a burden on that Parcel, snail be appurtenant to and for the benefit of the other Parcels and each part thereof and shall run with the land~ 6.2 Successors and Assigns: This Declaration and the Restrictions created her,eby shail inure to the benefit of and be binding upon the Owners, their heirs, personal representatives, successors and assigns., and upon any person acquiring a Parcel~ or any portion thereof., or-any interest therein, whether by operation of law or otherwise; provided,. however, that if any Owner sells all or any portion of its interest in any Parcel, such Owner shall thereupon be released and discharged from any and all obligations as Owner in connection with the property sold by it arising under this Declaration after the sale and conveyance of title but shall remain liable for all obligations arising under this Declaration prior to the sale and conveyance of title. The new Owner of any suer, Parcel or any portion thereof (including, without limitation, any Owner who acquires its interest by foreclosure,. trustee's sale or otherwise) shalt be lhrble for alt obiigations arising under this Deciar-at1on with respect to such Parcel or portion thereof after the date of sale and conveyance of title. 6.3 Duration: Except as otherwise provided herein, the term of this Declaration shall be for sixty-five (65) years (the "Base Term .. ) from the date 23 09734 0502 ,, *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 26 Of 38 hereof. From and after the e)(piration of the foregoing Base Term$ this Declaration shall automatically renew from year to year until such. time as. this Declaration is terminated by written agreement executed by the Owners and Prime Lessees of Parcels 1 and 2 or the Owners and Prime Lessees of Parcels 2 and 3 setting forth the intent of the parties thereto to so terminate this Declaration and recorded in the appropriate public records of Tarrant County,. Texas. 6.4 Injunctive Relief: ln the event of any vio1atjon or threatened violation by any person of any of the Restrictions contained in this Declaration, any or all of the Owners and Prime Lessees of the property included within the Shopping Center shall have the right to enjoin such violation or threatened violation in a court of competent jurisdiction. The right of injunction shall be in addition to all other remedies set for-th in this Dec1aration or provided by law. 6.5 Modification and Termination: This Declaration may not be modified in any respect whatsoever or terminated (except as otherwise provided in Section 6.3),, in whole or-in part, except with the consent of the Owners and Prime Lessees. of the Parcels containing ninety percent (90%) of the total square footage of Building Area in the Shopping Center at the time of such modification or termination, and then only by written instrument duly executed and acknowledged by all of the required Owners and Prime lessees and recorded in the office of the recorder of the county in which the Shopping Center is located. No modification or termination of this Declaration shall affect the rights of any Lienholder unless the Llenholder consents in writing to the modification or ter-mlnation. 6.6 Method of Approval: Whenever the consent or approval of any Owner is required, such consent or approval shatl be exercised only in the foJlowing manner. Each Parcel shall have only one {1) vote. The Owners {if consisting of more than one [l] person) of each Parcel shall agree among themselves and designate in writing to the Owners and Prime Lessees of each of the other Parcels a single person who is entitled to cast the vote for that Parcel. If the Owners of any such Parcel cannot agree who shall be entitled to cast the single vote of th.at Parcel, or if the Owners fail to designate the single person who is entitled to cast the vote for that Parcel within thirty (30) days after receipt of request for same from any other Owner or Prime Lessee, then that Parcel shall not be entitled to vote. In the event a Pa reel is not entitled to vote, its 24 09734 0503 ' l ~ ! "i . ' I' J I / ,, Cj f.-! i ; ,., 1' • I I I "'I, I .'I ·I I I I I I I *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 27 Of 38 consent or approval shall not be necessary and the total square footage of Building Area located on said Parcel shall be disregarded for the purpose of computing the percentage requirement set forth in Section 6.5. Except as otherwise set forth in Sections. 6.3 and 6.5,. in the event an Owner sells its Parcel and becomes the Prime Lessee thereon,. said Prime Lessee is hereby appointed the entity to cast the vote or give the consent for said Parcel on behalf of the Owner thereof and is hereby granted all of the rights and remedies granted to the Owner of said Parcel so long as it is the Prime Lessee of said Parcel, anything in this Declaration to the contrary notwithstanding. 6.7 Not a Public Dedicat,on: Nothing herein contained shall be deemed to be a gift or dedication of any por-t:ion of the Sliopping Center to the general public or for the genera1 public or for any public purpose whatsoever, it being the intention of the parties that this Declaration shall be strictly limited to and for the purposes herein expressed. 6.8 Breach Shall Not Permit Termination: lt is expressly agreed that no breach of this. Declaration shall entitle any Owner to terminate th is Declaration, but such limitation shall not affect in any manner-any other rights or remedies which such Owner may have hereunder by reason of any breach of this Decla- ration. Any breach of this Declaration shall not defeat or render invalid the lien of any mortgage or deed of trust made in good faith for value, but this Declaration shall be binding upon and be effective against any Owner whose title is acquired by foreclosur-e,. trustee's s.ale or otherwise. 6.9 Default: A person shall be deemed to be in default of this Declaration only upon the expiration of thirty (30) days (ten (10] days in the event of faUure to pay money) from receipt of written notice from any Owner or Prime Lessee specifying the particulars in which such person has failed to perform the obligations of this Dedaration and such person's failure., prior to the expiration of ,aid thirt~• (30) days (ten [10] days in the event of failure to pay money), to rectify the particulars specified in said notice of default. However, such person shall not be deemed to be in default if such failure (except a failure to pay money) cannot be rectified within said thirty (30) day period and such person is using good faith and its best efforts to rectify the particulars specified in the notice of default. 6.10 Notices: (al All notices given pursuant to this Declaration shall be in writing and shall be given by personal delivery, by United States mail or by United 25 09734 0504 ,. \ . _·-j ' ' !!! *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 28 Of 38 "~~·-,_..._ _ .... ~ ,_ States express mail or other established express delivery service (such as Federal Express), postage or delive~ charge prep.aid, return receipt requested., addressed to the person and address designated be1ow or., in the absence of such designation., to the person and address shown on the then current real property tax rolls of the county in which the Shopping Center is located. All notices to First Party or Albertson's shall be sent to the person and address set forth below: First Party: Southlake .Joint ve .. ture 1725 E. Southlake Boulevard Suite 203 Southlake, Texas 76092 Attention: John Drews Albertson's: Albertson~s, lnc. 250 Parkcenter Boulevard P.O. Box 20 Boise, ID 83726 Attention: Legal Department The person and address to which noti-c.as are to be giv~ri m~y be changed .at any time by any party upon written notice to the other parties. All notices given pursuant to this Dec\aration sha\l be deemed given upon receipt. {b) For the purpose of this Declaration, the term 0 receipt" shalt mean the earlier of any of the following: (i) the date of delivery of the notice or other document as shown on the return t"eeeipt 1 (ii) the date of actual receipt of the notice or other document by the person or entity specjfied pur- suant to this Section~ or (iii) in the ease of refusal to accept delivery or inability to deliver the notice or other document, the earlier of (A) the date of the attempted delivery or refusal to accept delivery, (B) the date of the post- mark on the return receipt, or (C) the date of receipt of notice of refusal or notice of nondelivery by the sending party. 6.11 Waiver: The failure of a person to insist upon strict performance of any of the Restrictions contained her-ein shall not be deemed a waiver of any rights or remedies that s:aid person may have,. and shall not. be deemed a waiver of any subsequent br-each or default in any of t.he Restrictions contained herein by the same or any other person~ In the event any person initiates or defends any lega, action or proceeding to enforce or interpret any of the terms. of this Declarationr the prevailing party in any such action or proceeding shall be entitled to recover its reasonable costs and attorney's fees (inc!uding it!t reasonable costli and attorney's fees on any appeal). 26 09734 0505 --------------------------·------- *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 29 Of 38 6.13 Sale & Sale-leaseback Purchaser: Notwithstanding anything to the contrary contained in this Declaration, it is expressly agr-eed that in the event an Owner sells its Parcel to an unaffiliated third party and thereafter enters into a net lease for such Parcel with such third party or its lessee or sublessee (hereinafter referred to collectively as the "Prime Lesso!""), so long as said Owner is in possession of the property as a Prime Lessee the parties hereto shall look solely to said Prime Lessee (and said Prime lessee shall be liable therefor) for the perfonnancl' of any obligations either the Prime Lessee or the Prime Lessor shall have under this Declaration and the Prime Lessor shall be relieved of any obligation for the performance of or liability for the Restrictions set forth herein relating to either the Prime Lessee or its Parcel. 6. 14 Severability: If any term or provision of this Dec[aration or the application of it to any person or circumstance shall to any e,ctent be invalid or unenforceable, the remainder of this Declaration or the application of such term or provision to persons o-r circumstances~ other than those as to which it is invalid or unenforcecble, shall not be affected thereby, and each term and provision of this Declaration shall be valid and shall be enforced to the extent permitted by law. 6.15 Not a Partna .. ship: The provisions of this Declaration are not intended to create,. nor shall they be i.n any way interpreted or construed to create, a joint venture., partnership., or any other similar relationship between the parties. 6.16 Third Pa .. ty Beneficiary Rights: This Declaration is not intended to createt nor shall it be in any way interpreted or constr-ued to create, .any third party beneficiary rights in any person not a party hereto unless otherwise expressly provided herejn~ 6.17 Captions and Headings: The captions and headings in this Decla~a- tion are for reference onJy and shall not be deemed to define or limit the scope or intent of any of the terms., covenants., conditions or agreements contained herein. 6. 18 Entire Agreement: This Declaration contains the entire agreement between the parties hereto and supersedes: all prior-agreements, oral or written, with respect to the subject matter her~f. The provisions of this Declaration shall be construed as. a whole and not strictly for or against any party. 27 09734 0506 *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 30 Of 38 ., 6.19 Construction: In construing the provisions of this Declaration and whenever the context so requires., the use of a gender shat\ indude a~I other genders, the use of the singular shall include the plural, and the use of the plural shall include the singular. 6.20 Joint and Several Obligations: In the event any party hereto is composed of more than one person~ the obHgations of said party shalJ be joint and several. 6.21 Estoppal Certificates: Each party to this Declaration agrees, upon receipt of a written request from the other party, and provtded the requested party can do s:o truthfully, to certify in writing to a prospective purchaser or Lienho!der of the requesting party (i) that this Declaration is in full force and effect, (H) that this Declaration has. not been amended (or,. if it hasi identifying all such amendments), (iii) that, to the requested party's knowledge~ the requesting party is not in <lefau!t of any cf the terms, covenants_.. conditions or agreements contained in this Declaration (or,. if the requesting party is in default, specifying the nature of such default), and (iv) such additional facts within the requested party's knowledge as may be reasonably requested by the requesting party. 6.22 Recordation: This Declaration shall be recorded in the office of the recorder of the county in which the Shopping Center is located. EXECUTED to be effective as of the day and year first above written. ALBERTSON'S: FlRST PARTY: (CORPORATE. SEAL) 0973q 0507 ;: ij n I : I I ll ·:1 9 ii ;1 w ., 'I ,, ·\ if l I I I I I i I I i I • ,-'-;. } *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 31 Of 38 •• I I STATE OF TEXAS J County of Valla 5 ~ u. On this/6,tli i::lay of t7~-, 1989, before me, the under:gned.n a A'Jotary Public in anc1orSaid State, persona\ly ed ,WJin &-LJreuhS , t~m~. Kn9Y,!J}_)9_ ~ the .Al).ODa~'UJ_,1&;'1iJ,/_f1:'{ of Southlake Joint Venture~ the· s ¼£1,a:r:;=dfM'4>t&fi that execute t foregoing instrument# and acknowledged tq--"."j+th§t~h~,,. !,aid instrument ls the free and voluntary act and deed of sai~r the uses and purposes therein mentioned, and on oath stated that he is authorized to execute the said instrument. WITNESS MY HAND and official s al hereto affixed the day, month and year in this certificate first above wri My commission expires: (AFFIX NOTARIAL SEAL) ~-- ~~··· ~J .. ·-....... Ol/29,91., STATE OF IDAHO ) ) ss. County of Ada ) (printed or typed name of Notary) On this \~ day of (\,~\~ , 1989, before me, the undersigned, a Notary Public in and for s.aid State,. personally appeared Thomas R. Saldin, known to be a Senior Vice President of Alber-tson~s., lncq the corporation that executed the foregoing instrument, and acknowledged to me that the said instrument is the free and voluntary act and deed of said corporation .. for the uses and purposes therein mentioned., and on oath stated that he is authorized to execute the said instrument and that the seal affhc:ed is. the corporate seal of said corporation. WITNESS MY HAND and official seal hereto affixed the day, month and year in 'this certificate first above written. My commission expires: (AFFIX NOTARIAL SEAL) Notary/>ublic in and for the State of Idaho Residing at Boise, Idaho J(lf\i, e..i0 br-e,Q.iJ (printed or typed name of Notary) 29 09734 0508 *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 32 Of 38 For Exhibit See Exhibit File Appert,..ire Card # · 1;~ _ _,_.;_.;:;; __ _ . Instru.JDen.t # J) lf'F,,,za.:,, f ' . 091314 0509 *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 33 Of 38 I ' ; I t I l l 1 :. 'I I I t • • SCHEDULE 1 Legal Description Pare&! 1 Being all of Lot 1, Block 1, SOUTHLAKE CROSSING, Phase I, an addition to the City of Southlake, Tarrant County, Texas, according to the plat thereof recorded in Cabinet A, Slide 251# Plat Records of Tarrant County~ Tws, as amended b)<....-the Amended Plat thereof recorded in Cabinet -Lti---1----' Slide ,;2/;z.6 , Plat Records of Tarrant County, Texas. Said parcel of land is also described as being 3. 189 acres of land located in the W.R. EAVES SURVEY, Abstract No. 500, Tarrant County, Texas, and being a portion of the tract of land conveyed to Southlake Joint Venture by the deed recorded in Volume 7675, Page 1133 of the Deed Records of Tarrant County, Texas. Said 3.189 acres of land being more particularly described by metes and bounds,. as follows. BEGINNING at a 1/2" iron rod in the South boundary line of said Southlake Joint Venture Tract, lying NB9°54'56"E 217.44 feet from the Southwest corner of said Southlake Joint Venture Tract and also lying in the East boundary line of the tract of land conveyed to The State of Te><as for Davis Boulevard (FM Road No. 1938) by the deed recorded in Volume 9614, Page 1745 of the Deed Records of Tarrant County,. Texas; THENCE N00°18'47"W 274. 01 feet along the East boundary line of said State of Texas Tract to a 1/2 .. ir-on rod; THENCE N51°25'41"E 253.33 feet departing said State of Texas Tract to a 1/2" iron rod; THENCE S06°26'34"W 45. 03 feet to a 1/2" iron rod; THENCE S38°33'26"E 200.00 feet to a 1/2" iron rod; THENCE N51°26'34"E 45.00 feet to a 1/2" iron ,-od; THENCE S38°33'26"E 205.00 feet to a 1/2" iron rod; THENCE S51°26'34"W 20.00 feet to a 1/2" iron rod; THENCE S38°33'26"E 109.08 feet to a 1/2" it<on rod in the South boundary line of the aforesaid Southlake Joint Venture Tract; THENCE S89°54'56"W 531.49 feet along the South Southlake Joint Venture Tract to THE PLACE OF 3.189 acres (138,906 square feet) of land. boundary line of said BEGINNING, containing J 09734 0510 -;:•.-.. 1 __________ ,_.., ____ ,,==--·-••·-···=··~-· .-,~- .l •I *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 34 Of 38 f1 • IH • •t • • )'i .1. ' •\, t • • SCHEDULE 2 Legal Description Parcel 2 Being all of Lot 2, Block 1, SOUTHLAKE CROSSING, Phase I, an addition to the City of Southlake, Tarrant County., Texas,. according to the plat thereof recorded in Cabinet A, Slide 251, Plat Records of Tarrant County, Tws, as amended Qk?" Amended Plat thereof recorded in Cabinet -~---' Slide t.:> , Plat Records of Tarrant County, Texas. Said parcel of land is also described as being 5.552 acres of land located in the W.R. EAVES SURVEY, Abstract No. 500, Tarrant County, Texas, and being a portion cf a tract of land conveyed to Soutnlake Joint Venture, according to the deed recorded in Volume 7675, Page 1133 of tne Deed Records of Tarrant County, Texas, and als.o being a portion of a tract of land conveyed to Pat Sheehey, et ux., Eileen Sheehey, according to the deed recorded in Volume 6150, Page 882 of the Deed Records of Tarrant County, Te><as. Said 5.552 acres of land being more particularly described by metes and bounds as follows. BEGINNING at a 1/2" iron rod in the South boundary line of said Southlake Joint Venture Tract, lying N89°54'56"E 748.93 feet from the Southwest corner thereof; THENCE N38°33'26"W 109.08 feet departing said South boundary line of the Southlake Joint Venture Tract to a ii2T' ir-on r-od; THENCE N51°26'34"E 20.00 feet to a 1/2" iron rod; THENCE N38°33'26"W 205.00 feet to a 1/2" iron rod; THENCE S51 °26'34"W 45.00 feet to a 1/2" iron rod; THENCE N38°33'26"W 200.00 feet to a 1/2" iron rod; THENCE N06°26'34"E 60.00 feet to a 1/2" iron rod; THENCE N38°33'26"W 179. 72 feet to a 1/2" iron rod in the South boundary line of tne tract of land conveyed to the State of TeKas for Southlake Boulevard (FM Road No. 1709) by the deed recorded in Volume 9614, Page 1726 of the Deed Records of Tarrant County .. Texas; THENCE N51°25'41"E 259.90 feet along said South boundary line to a 1/2" iron rod; THENCE S38°33'26"E 202.21 feet departing said South boundary line to a 1/2" iron rod; THENCE N51 °26'34"E 80.00 feet to a 1/2" iron rod; THENCE S38"33'26"E 220.00 feet to a 1/2" iron rod; THENCE S51°26'34"W 80.00 feet to a 1/2" iron rod; THENCE S38°33'26"E 205,00 feet to a 1/2" iron rod; THENCE N51°26'34"E 20.00 feet to a 1/2" iron rod; THENCE S38°33'26"E at 137, 17 feet. passing a 1/2" iron rod in the South boundary line of the afore•aid Southlake Joint Venture Tract, also being the North boundary line of the aforesaid Sheehey Tract, and in all 190.00 feet to a 11r• iron rod; THENCE S51°26'34"W 195.50 feet to a 1/2" iron rod; THEl'-ICE S89°54'56"W at 121.61 feet passing a 5/8" iron rod In the West boundary line of said Sheehey Tract, also being the mo,.t Southerly Southeast corner of the aforesaid Southlake Joint Venture Tract, and In .II 130.06 feet to THE PLACE OF BEGINNING, containing 5.552 acres (241,833 square feet) of land . 09734 OS I l .. .. -.-. ._ ____________ , ______ =-~~·=-=--=~-----------· -.. -.,, *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 35 Of 38 • • !H • • • )•I:' .I l .1 •' r• \ ) . 1 • ,1\h • j ' •1 SCHEDULE 3 Legal Description Parcel 3 Being all of Lot 3, Block 1, SOUTHLAKE CROSS ING, Phase I, an addition to the City of Southlake, Tarrant County, Texas, according to the plat thereof recorded in Cabinet A, Slide 251, Plat Records of Tarrant County, Tei:r,a31, as amende,;!._~by__ the Amended Plat thereof recorded in Cabinet IT.. , Slide c-<0_ 5 , Plat Records of Tarrant County, Texas. Said parcel of land is also described as being 0. 786 acres of land located in the W.R. EAVES SURVEY, Abstract No. 500, Tarrant County, Texas, and being a portion of the tract of land conveyed to Southlake Joint Venture by the deed recorded in Volume 7675, Page 1133 of the Deed Records of Tarrant County, Te><.as. Said 0. 786 acres of land being more particularly described by metes and bounds. as follows. , BEGINNING at a point lying N89°54'56"E 217 .44 feet and N00°18'47"W 274.01 feet from the Southwest corner of said Southlake Joint Venture Tract. Said POINT OF BEGINNING also lying in the East boundary line of the tract of land conveyed to The State of Texas for Davis Boulevard (FM Road No. 1938) by the deed recorded in Volume 9614, Page 1745 of the Deed Records of Tarrant County, Texas; THENCE along the East boundary Hne of said State of Texas Tract, ~s fo-Jlc,ws~ 1. N00°18'47''W 177 .34 feet to a 1/2" iron rod; 2. N25°39'23"E 117 .41 feet to a 1/2" iron rod at the intersection of the South boundary line of the tract of land conveyed to The State of Texas for Southlake Boulevard (FM Road No. 1709} by the deed recorded in Volume 9614, Page 1726 of the Deed Records of Tarrant County, Texas; THENCE N51°25'41"E 48.42 feet along said South boundary line to a 1/2" iron rod; THENCE S38°33'26"E 179. 72 feet departing said South line of said State of Texas. Tract to a 1/2" iron rod;. THENCE S06°26'34"W 14. 97 feet to a 1/2" iron rod; THENCE S51°25'41"W 253.33 feet to THE PLACE OF BEGINNING, containing 0. 786 acres (34,223 squar-e feet) of land. 09734 0512 .. t *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 36 Of 38 •: p : ·1 •I ;1,: t; • t' ' •: • • SCHEDULE 4 Legal Description Parcel 4 BEING 14.580 acres of land located in the W.R. EAVES SURVEY, Abstract No~ 500,. Tarrant County, Texas, and being a portion of a tract of land conveyed to Southlake Joint Venture,. according to the deed r-ecorded in Volume 7675, Page 1133 of the Deed Records of Tarrant County, Te><as, and a portion of the tract of land conveyed to Pat Sheehey, _ et ux., Eileen Sheehey,. according to the deed recorded in Volume 6150, Page 882 of the Deed Records of Tarrant County, Texas. Said 14.580 acres of land being more particularly described by metes and bounds,. as follows. BEGINNING at a 5/8" iron rod found in the East boundary line of said Southlake Joint Venture Tract, at the intersection with the South boundary line of the tract of land conveyed to Till> State of Te><as for Southlake Boulevard (FM Road No. 1709) by the deed recorded in Volume 9614, Page 1726 of the Deed Records of Tarrant County, Texas, lying S03°37'47"E 47.29 feet from the Northeast cor""ner of said Southlake Joint Venture Tract; THENCE S03°37'47"E 1228.16 feet along said East boundary line to a 3/4" iron rod found at the Northeast corner of aforesaid Sheehey Tract, and being the most Easterly Southeast corner of aforesaid Southlake Joint Venture Tract; THENCE N89°53'24"W 317.07 feet along the North boundary iine of said Sheehey Tract, being the South boundary line of said Southlake Joint Venture Tract, to a 1/2'' iron rod set; THENCE S51°26'34"W 65.98 foet severing said Sheehey Tract to a 1/2" iron rod; THENCE N38°33'26"W at 52.83 feet passing a point lying in the North boundary line of said Sheehey Tract, and in all 190.00 feet to a 1/2" iron rod; THENCE S51°26'34"W 20.00 feet to a 1/2" iron rod; THENCE N38°33'26"W 205.00 feet to a 1/2" iron rod; THENCE N51°26'34"E 80.00 feet to a 1/2" iron rod; THENCE N38°33'26"W 220,00 feet to a 1/2" iron rod; THENCE S51 °26'34"W 80.00 feet to a 1/2" iron rod; THENCE N38°33'26"W 202.21 feet to a 1/2" iron rod in the aforesaid South boundary line of Southlake Boulevard; THENCE along said South boundary line of Southlake Boulevard, as follows: 1. N51°25'41"E 816.98 feet to a found 5/8" iron rod at the beginning of a curve to the R.ight; 2. NORTHEASTERLY 219.97 feet along said curve to the Right, having a radius of 2799. 79 feet, a central angle of 04°30'05" and a chord bearing N53°40'44"E 219.91 feet to THE PLACE OF BEGINNING, containing 14.580 acres (635,117 square feet) of land. 09734 0513 ~,J 11111111 .. _________________ . ~··---·•··~-- ' ' *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 37 Of 38 i •1 I I •. ' , .. 'f H\ .i ,, •• r\ ... , ,iih • i .,, ··~ "' -. Legal Deacr~ptioa. Peri.e:ter Accesa Drive BEil'll a 40 foot wide strip of land located in the W.R. EAVES SURVEY, Abstract No. 500, Tarrant County, Texas, and being a portlon of the tract of land conveyed to Southlake .Joint Venture, according to the deed recorded in Volt.me 7675, Page ll3J of the Deed Records of Tarrant County, Texas, and a portion of that tract of land conveyed to Pat Sheehey, et. ux., Eileen Sheehey, according to the deed recorded in Volume 6150, Page 882 of the Deed Records of Tarrant County, Texas. Said 40 foot wide strip of land being more particularly described by metes and oounds, as follows. Co,,.HENCI/'11 at a point in the East line of the aforesaid Southlake .Joint venture Tract with its intersection with the South right-of-way line of Southlake Boulevard (FM Road No. 1709), es conveyed to the State of Texas by the deed recorded in Volume 9614, Page 1726 of the Deed Records of Tarrant County, Texas; THENCE SOUTHWESTERLY 11,61 feet along a curve to the Left, having a radius of 2799.79 feet, a central angle of 00° 14' 16" and a chord bearing S 55° 48' 39" W ll.61 feet to THE PLACE DF ££GINNING of this 40 foot wide strip of land; THENCE THENCE S 03° 37' 47" E s 51° 26' 34" w 975.42 feet to a point for a corner; 638.68 feet to a point for a corner; THENCE: S 89° 54' 56" W 658.10 feet to a point in the East line of Davis Boulevard /FM Road No. 1938), as conveyed to the state of Texas by the deed recorded in Vol<nie 9614, Page 1745 of the Deed Records of Tarrant County, Texas; THENCE N oo• 18' 47" w 40.0D feet along the East line of said Devis Boulevard { FM Road No. 1938) to a paint; N 89° 54' 56" E N 51° 26' 34" E 644.30 feet to a point for a corner; 603.87 feet to a point for a corner; THENCE N 03• 37' 47" W 930.38 feet to a point in the South right-of-way line of aforesaid Southlake Boulevard /FM Road No. 1709}; THENCE NORTHEASTERLY 46. 74 feet along radius of 2799.79 feet, a central angle of N 55• 12' 49" E 46. 74 feet to THE PLACE CF (89,018 square feet) or land. .. a curve to the Right, having a 00° 57' 24" and a chord bearing BEGINNING, containing 2.044 acres 0973ij 0514 Hlllli,-----------------~o~---~·-• i i I t *ACS/TRC* TARRANT Doc: 000172369 Date: 10/17/1989 Vol: 0009734 Page: 00478 Page: 38 Of 38 • I\ • • • • H • • • ! l-W I I • I I H • • • • 1~ • ; . • ,, • ~,, "• • • -~f 'i I ~• ' ' i" D189172369 HEXTER F'AIR 1307 PACIFIC AVE DALLAS~ TX 75202 ARN ING-THIS IS PART OF THE OFFICIAL RECORD--D O NOT DESTROY FILED --TARR ANT COUNTY TEXAS SU 2 ANNE HENDER SD N --COUNTY CLERK O F F I C I A L R E C E I P T T 0: HEXTER FAIR RECEIPT NO 190014198 REGISTER DR91 PRINTED DATE TIME 10/17/89 16;29 lNSTRUMCNT FEECD -1 D189172369 WD T O T A L DOCUMENTS: 01 -,- BY, .. AMOUNT 75.00 FILED TIME 891017 l<'>:2S F E E S: 75.00 ANY PROVISION Wt-llCH rxESTRICYS THE SALE Rl::NTAL OR USE CK 1010 OF THE DESCRIBED REAL PROPER1'Y BECAUSE OF COLOR OR RACE IS INVALID AND UNF0RCEABLE UNDER FEDt::RAL LAW . 0515 ., l I ·1 I I - I I I ! I