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Item 10CCity of Southlake, Texas MEMORANDUM February 1, 2006 TO: Shana Yelverton, City Manager FROM: Greg Last, Director of Economic Development SUBJECT: Resolution 06 -003 of the City of Southlake, Texas, approving the terms and conditions of a program to promote economic development and stimulate business and commercial activity in the City and approving the form of certain declarations and restrictive covenants affecting property the City anticipates accepting as a public park; authorizing the Mayor to execute an agreement with Carroll /1709, LTD., a Texas limited partnership, by Carroll /1709 One, L.C. a Texas limited liability company, its General Partner, for such purposes; and providing an effective date. Action Requested: Approval of a Chapter 380 Economic Development Program Agreement for the Shops of Southlake development Background Information: The Shops of Southlake is a Cencor Realty Services development of approximately 230,000 sf of retail which includes a 65,100 sf Central Market specialty grocer. The primary anchor, Central Market, has been the most often requested retailer during my tenure at Southlake. The Shops development concept reflects attentiveness to design and complimentary characteristics to the renowned Southlake Town Square development. The City Council has expressed an interest in working with the developer to create a landmark feature and amenity area within the development and together have identified an area for a potential public park. Negotiations have lead to a variety of economic programs which are included in the Chapter 380 Agreement and summarized as follows: A. Reimbursement to the developer for the cost of constructing an off -site sidewalk from the southwest corner of the property, southerly along the east edge of S. Carroll to connect with Westmont Drive. This reimbursement shall not exceed thirteen thousand dollars ($13,000) and shall be paid upon construction by the Developer and acceptance by the City. B. A waiver of all costs of water necessary to water the southernmost bufferyard for a period beginning with plant material installation and expiring one (1) year from the date of issuance of a Certificate of Occupancy for the first tenant. (Approx. cost of $3,000) C. A payment of six thousand dollars ($6,000) to the developer from the City's Tree Fund upon installation by the Developer and acceptance by the City of canopy trees in the southernmost bufferyard in accordance with approved plans. D. Acceptance of approximately 32,402 sf of land as a public park, tentatively named Central Park (pending Council approval). On September 12, 2005, Park Board recommended approval of the dedication for park land. E. Waiver of the Park Dedication Fee in the amount of $34,800. F. Participation with the developer in the development of the Central Park amenity and landmark fountain feature with the following qualifications: • The City will participate in the cost of "Park Improvements" at a ratio of 3:1 ($3 City for each $1 Developer) not to exceed a total City cost of six hundred thousand dollars ($600,000). • Eligible costs for participation are inclusive of consultant "soft costs" not in excess of one hundred thousand dollars ($100,000). • Final approval of the Central Park amenities and landmark feature subject to approval by City Council. • Developer shall up front the costs of constructing all improvements. • The City of Southlake shall reimburse the developer as noted above upon completion and acceptance of the improvements. G. Execution of a "Declaration of Easements and Covenants" regarding various aspects of Central Park to include: reciprocal access, park patron parking, maintenance of a view corridor to Central Market and provisions regarding parking capacity. Financial Considerations: Depending on the final tenant selections for this development, it is estimated that the Shops of Southlake will generate over $lM per year in total tax revenues to the City. Funding for these items would be at the discretion of Council with eligible sources being the General Fund, Strategic Initiatives Fund, or Park Dedication Fees as available and the Tree Fund. Citizen Input/ Board Review: The Southlake Parks and Recreation Board on September 12, 2005 recommended approval of the dedication of approximately 32,402 sf of land as a public park as shown on the concept plan for the Shops of Southlake development. Legal Review: The City Attorney's office has been involved in the negotiation and writing of this Chapter 380 agreement throughout the process. Alternatives: - Approval of the agreements as submitted. - Approval with amendments per the Council direction. - Denial of the agreement. Supporting Documents: Chapter 380 Agreement which includes the Declaration of Easements and Restrictive Covenants as Exhibit `D'. Staff Recommendation: Approval of the Chapter 380 Economic Development Program Agreement as submitted. RESOLUTION NO. 06 -003 A RESOLUTION OF THE CITY OF SOUTHLAKE, TEXAS, APPROVING THE TERMS AND CONDITIONS OF A PROGRAM TO PROMOTE ECONOMIC DEVELOPMENT AND STIMULATE BUSINESS AND COMMERCIAL ACTIVITY IN THE CITY AND APPROVING THE FORM OF CERTAIN DECLARATIONS AND RESTRICTIVE COVENANTS AFFECTING PROPERTY THE CITY ANTICIPATES ACCEPTING AS A PUBLIC PARK; AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH CARROLL /1709, LTD., A TEXAS LIMITED PARTNERSHIP, BY CARROLL /1709 ONE, L.C. A TEXAS LIMITED LIABILITY COMPANY, ITS GENERAL PARTNER FOR SUCH PURPOSES; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Chapter 3 80 of the Texas Local Government Code authorizes municipalities to establish and provide for the administration of programs that promote economic development and stimulate business and commercial activity in the city; and WHEREAS, the City Council has been presented with a proposed agreement by and between the City of Southlake and Carroll /1709, LTD., a Texas limited partnership, by Carroll / 1709 One, L.C. a Texas limited liability company, its General Partner, a copy of which is attached hereto as Exhibit "A" and incorporated herein by reference (hereinafter called the "Agreement "); and WHEREAS, as part of the proposed agreement, the City anticipates accepting the dedication of certain property as a public park and accepting an agreement for parking and access easements and certain restrictive covenants affecting the anticipated public park and the surrounding development; and now wishes to approve the form of the proposed Declaration of Easements and Restrictive Covenants; and WHEREAS, upon full review and consideration of the Agreement and all matters attendant and related thereto, the City Council is of the opinion that the Agreement will assist in implementing a program whereby economic development will be promoted and business and commercial activity will be stimulated in the City. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SOUTHLAKE, TEXAS, THAT: SECTION 1. The City Council finds that the terms of the Agreement will promote economic development and stimulate business and commercial activity in the City and otherwise meet the criteria of Section 380.001 of the Texas Local Government Code. Resolution 06 -003 adopting The Shops of Southlake 380 Agreement — February 1, 2006 Draft - Page 1 of 3 SECTION 2. The City Council hereby adopts an economic development program whereby the City of Southlake will make economic development program payments to Carroll /1709, LTD., a Texas limited partnership, by Carroll / 1709 One, L.C. a Texas limited liability company, its General Partner, and take other specified actions, in accordance with the terms outlined in the Agreement. SECTION 3. The terms and conditions of the Agreement, having been reviewed by the City Council of the City of Southlake and found to be acceptable and in the best interest of the City and its citizens, are hereby approved. SECTION 4. The Mayor is hereby authorized to execute the Agreement and all other documents in connection therewith on behalf of the City substantially according to the terms and conditions set forth in the Agreement. SECTION 5. This Resolution shall become effective from and after its passage. PASSED AND APPROVED this the day of 1 2006. Andrew Wambsganss, Mayor ATTEST: City Secretary Resolution 06 -003 adopting The Shops of Southlake 380 Agreement — February 1, 2006 Draft - Page 2 of 3 EXHIBIT A Chapter 380 AGREEMENT Resolution 06 -003 adopting The Shops of Southlake 380 Agreement — February 1, 2006 Draft - Page 3 of 3 ECONOMIC DEVELOPMENT PROGRAM AGREEMENT (Chapter 380 Agreement) This Economic Development Program Agreement (this "Agreement ") is made and entered into by and between the City of Southlake, Texas (the "City "), and Carroll /1709, Ltd., a Texas limited partnership, organized under the laws of Texas (the "Developer "). WITNESSETH: WHEREAS, on January 17, 2006, the City adopted Resolution No. 06 -003 establishing an Economic Development Program pursuant to Section 380.001 of the Texas Local Government Code ( "Section 380.001 ") and authorizing this Agreement as part of the Economic Development Program established by City Council Resolution (the "Program "); and WHEREAS, the Developer desires to participate in the Program by entering into this Agreement; and WHEREAS, the City Council of the City of Southlake (the City Council) finds and determines that this Agreement will effectuate the purposes set forth in the Program, and that the Developer's performance of its obligations herein will promote local economic development and stimulate business and commercial activity in the City; NOW, THEREFORE, in consideration of the mutual benefits and Premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Authorization The City has concluded that this Agreement is authorized by Section 380.001 and is authorized by Resolution of the City Council. 2. Definitions The following definitions shall apply to the terms used in this Agreement: " Valorem Tax Revenues means, with respect to any particular year, the revenues the City receives from the ad valorem property taxes for such year. "Citv" means the City of Southlake, Texas. " Commercial Space means space utilized for commercial, retail and office uses under the City's Zoning Ordinance. The Shops of Southlake 380 Agreement - February 1, 2006 DRAFT - Page 1 of 18 " Developer Affiliate means any Person directly or indirectly controlling or controlled by, the Developer, or any Person controlling or controlled by the same Person who is controlling or is controlled by the Developer. As used in this definition," the term "control" means, directly or indirectly, ownership or the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise. " Effective Date means the date that all parties have executed this Agreement. " Eligible Costs means the cost of constructing the Park Improvements, inspection fees, and consulting design fees not to exceed one hundred thousand and no /100 dollars ($100,000); provided however, that no fees or expenses incurred by or paid to the Developer or Developer Affiliate shall be eligible for payments as provided in this paragraph. " Force Maieure means any acts of God or the public enemy, war, riot, civil commotion, insurrection, governmental or defacto governmental action, except actions taken by the City pursuant to or permitted by the terms of this Agreement, and except actions taken as a result of acts or omissions of Developer), fire, explosion or flood, and strikes. " Park " means approximately 32,402 square feet of land labeled as Central Park and conceptually shown on Exhibit B attached hereto. " Park Improvements means paving, irrigation system and independent water meter, turf, fountain, benches, shrubs, trees, fountains, sculpture, lighting, trash receptacles, signage, and similar improvements within the public park as described in Section 4 hereof. " Park Improvement Grant means an amount equal to $3 for every $1 of Eligible Costs, not to exceed six hundred thousand and no /100 dollars ($600,000), to be paid by City to Developer as Program Payments, in accordance with Section 5 hereof. " Person " means an individual or a corporation, partnership, trust, estate, unincorporated organization, association, or other entity. " Premises " means that certain tract of real property located in Tarrant County, Texas, as more particularly described on Exhibit A herein. " Program " has the meaning set forth in the recitals to this Agreement. " Program Payment means a payment of the Park Improvement Grant made by the City to Developer pursuant to Section 5 of this Agreement. " Project " means the construction of approximately 215,000 square feet of commercial space in general accordance with the concept plan representation shown on Exhibit B herein, as approved by City Council. The Shops of Southlake 380 Agreement - February 1, 2006 DRAFT - Page 2 of 18 " Related Park Improvements means the Sidewalk, the Southern Buffer tree plantings and irrigation zone design and temporary water meter connection, as described in Section 4 hereof. " Retail Shell Space shall mean space with the exterior envelope constructed but not finished on the inside and not ready for occupancy. " Section 380.001 has the meaning set forth in the recitals to this Agreement. " Sidewalk " means a four (4') foot wide concrete sidewalk from the Southernmost property line of the Premises, at a point connecting to a sidewalk on the Premises, to continue south to connect with Westmont Drive entering Oak Tree Estates. " Southern Buffer means that general area labeled and delineated as the Southern Buffer in Exhibit B attached hereto. " Term " has the meaning set forth in Section 3 of this Agreement. 3. Term This Agreement shall be effective as of the date of execution by all parties and shall terminate upon completion of the Program Payments, save and except the City's obligation noted in Section 5.c regarding provisions for watering the Southern Buffer, unless earlier terminated pursuant to Section 8 . 4. Developer Covenants In consideration of the City's incentives under this Agreement, the Developer agrees to: a. Plat Execute a final plat approved by the City providing for the dedication of an independently platted lot (i.e. Lot 4) encompassing approximately 32,402 square feet as shown and labeled as Central Park on Exhibit B as a public park and dedicate the lot to the City by Special Warranty deed (the "Deed "), in the form attached as Exhibit C hereof, conveying fee simple title to the C ity. b. Design Subject to Section 4.c.ii below, the Park Improvements shall be constructed in accordance with the plans and specifications approved by the City Council on February 7, 2006. C. Construction Construct and install, at its cost, all Park Improvements and Related Park Improvements in accordance with the design approved by the City and in compliance with all applicable laws and ordinances, and the following requirements: Developer expressly represents that the bids for the Park The Shops of Southlake 380 Agreement - February 1, 2006 DRAFT - Page 3 of 18 Improvements which have previously been presented to the City were obtained through an arms - length bidding process, that the low bidder was determined by the Developer to be qualified applying reasonable commercial standards generally accepted in the development industry, that the low bidder was selected to perform the work, that the low bidder has no affiliation or common ownership with the Developer or any Developer Affiliate or upstream owners, and that the Developer did not seek or accept any concessions from the low bidder or any other bidder on any other contract, project, or work, including but not limited to the Project generally, in its negotiation and /or bid process with the bidders for the Park Improvements. Any change orders requested during construction must be first approved in writing by the City, such approval not to be unreasonably withheld, conditioned and /or delayed. The City Manager or her designee shall have authority to approve change orders that cumulatively do not exceed twenty five thousand and no /100 dollars ($25,000). All increases in costs due to change orders shall be subject to the City / Developer cost participation ratio of 3:1 and associated obligation for reimbursement. d. Tree Planting Acquire trees of a type and size reasonably agreed by and between the City and the Developer and cause the trees to be planted in accordance with recognized horticultural standards in the Southern Buffer and properly maintain the trees in perpetuity in accordance with such standards; e. Irrigation System Install an automatic irrigation system and temporary water meter isolating the entire Southern Buffer in accordance with City Codes and operate the system in accordance with the recommendations of the City's Landscape Administrator for the Term of this Agreement; Sidewalk Construct the Sidewalk concurrently with sidewalks within the Project; g. Easement Prior to beginning construction, execute and record a declaration of easement and restrictive covenants accepted by all parties subject to such declaration for the Premises, granting the City an access and parking easement on the Premises; The form and content shall be in conformance with Exhibit D attached hereto and made a part hereof for all purposes; h. Construct the Project in compliance with all applicable laws and ordinances; Central Market Lease Developer represents that it has an existing Memorandum Lease Agreement with HEB Grocery Company, LP ( "HEB) permitting HEB to open and operate a Central Market specialized grocery store on approximately 65,000 square feet of the Premises, that such lease is for a term in excess of three years, and that Developer has not and will not The Shops of Southlake 380 Agreement - February 1, 2006 DRAFT - Page 4 of 18 release HEB from such Lease during the first three years of such term after the City pays the Park Improvement Grant provided for in section 5.a.iii herein. Submit to City, as a condition of payment of any incentive, reasonably detailed evidence of payment of the Eligible Costs for such incentive; this shall include invoices, lien releases from the contractor for each element of construction and other information reasonably requested by the City; and k. Comply with any and all remaining terms and provisions herein. 5. City's Development Program Incentives Subject to Developer's performance of its obligations as required by this Agreement, and subject to the provisions of this Section, to promote local economic development pursuant to the Economic Development Program established by Resolution No. 06 -003, the City shall grant Developer the following incentives: a. The Park Improvement Grant. The City agrees to accept the dedication of an independently platted lot encompassing approximately 32,402 square feet shown as Central Park on the attached Exhibit B as a public park. Upon acceptance by the City, said dedication and Park Improvements shall be deemed to satisfy the full obligation of the park dedication requirements of the City's subdivision ordinance and shall constitute satisfaction of that requirement (including without limitation, satisfaction of any and all park fees and /or other similar fees). Upon acceptance of the Deed, City shall assume all costs for maintenance of the Park; If the plat is filed in the County Plat Records prior to construction, the City hereby agrees to grant the Developer and its contractors full access to the Park for purposes of constructing Park Improvements; and iii. The City, upon completion and acceptance of the Park Improvements, upon Developer's compliance with Section 4 herein, and confirmation by the City that the Developer has constructed a minimum of 80,000 square feet of Retail Shell Space exclusive of Central Market's approximate 65,000 square feet, shall make a lump sum Program Payment of the Park Improvement Grant to the Developer. b. Tree Grant City shall pay Developer a Tree Grant reimbursing it for trees of a size and species reasonably agreed to by the City and the Developer upon their installation in the Southern Buffer and inspection and approval by the City. City shall make a one -time payment to the Developer in an amount The Shops of Southlake 380 Agreement - February 1, 2006 DRAFT - Page 5 of 18 equal to Developer's cost, not to exceed six thousand and no /100 ($6,000) dollars; C. Southern Buffer Watering City agrees to provide water for the Southern Buffer for a period to begin upon the installation of plant materials, hydro mulch and /or sod, and to end one year from the issuance of the first Certificate of Occupancy issued within the Project. City agrees to provide Developer a temporary water meter (the "Buffer Sub - meter ") at no cost, for its installation isolating the Southern Buffer from the rest of the irrigation system for the Project. The Developer's master water bill shall be reduced monthly by the amount identified by the Buffer Sub - meter. The City shall have no responsibility to provide such water until the Developer installs a permanent underground irrigation system, and the City shall have no other responsibilities, including irrigation system materials or installation, or any vehicular watering systems. City agrees to remove, at is sole cost and expense, the temporary meter and provide reconnection of the irrigation lines upon completion of this incentive period; d. Sidewalk The City shall, upon acceptance of the Sidewalk, reimburse Developer for the cost of construction of the Sidewalk, not to exceed Thirteen Thousand and no /100 Dollars ($13,000); and e. Condition Precedent Notwithstanding any other provisions hereof, City shall not be obligated to make any Program Payment or other payment or grant pursuant to this Agreement unless and until: (1) the Developer is in compliance with the provisions of this Agreement in all material respects and (2) the Ad Valorem Tax Revenues for the City for the year in which the payment is due equal or exceed $10,000,000. 6. Covenants Running with the Land The Developer's covenants, restrictions, burdens, and charges set forth in this Agreement shall exist at all times as long as this Agreement is in effect, and shall be covenants running with the land, binding upon all parties having any right, title or interest in any portion of all the Property. Developer agrees that the City may file a copy of this Agreement in the deed records of Tarrant County, Texas, for the purpose of providing notice regarding these covenants. 7. Default and Termination a. Default If either party should fail to comply with the terms of this Agreement, the party shall have 30 days after delivery of written notice of such default from the other party to cure such default. If the noncompliance is not cured within that period, the non - defaulting party may terminate this Agreement by written notice and shall have no further obligation to the other party, provided that the City shall grant Developer an extension of 30 days to cure the default if Developer demonstrates, to the reasonable satisfaction of the City Council The Shops of Southlake 380 Agreement - February 1, 2006 DRAFT - Page 6 of 18 that: the default cannot be cured by the payment of monies and (2) cannot be reasonably cured within 30 days and (3) that Developer is diligently pursuing cure. Notwithstanding the foregoing, in the event either party fails to pay the other party any monetary amounts owing under this Agreement when due, and such failure continues for a period of 30 days after delivery of written notice of such default, then such outstanding amounts shall accrue interest from the date owing until paid at the rate of seven and one half percent (7.5 %) per annum. C. Automatic Termination If the Developer has not received a certificate of occupancy for at least 140,000 square feet of commercial space on the Premises inclusive of an HEB Central Market grocery store or other reasonably comparable "specialty grocer" or major retail anchor, by June 30, 2007, this Agreement shall terminate and the City shall have no obligation hereunder. If requested by the City, Weaver & Tidwell or such other independent accounting firm mutually agreeable to the City and the Developer (the "Auditor ") shall audit the Eligible Costs associated with the Park Improvements, and shall determine whether the Developer has properly calculated the Eligible Costs. The conclusion of the Auditor shall be final, binding and conclusive on the City and the Developer and the City's payments shall be adjusted in accordance therewith. 9. Indemnification a. DEVELOPER EXPRESSLY AGREES TO FULLY AND COMPLETELY DEFEND, INDEMNIFY, AND HOLD HARMLESS THE CITY, AND ITS OFFICERS, AND EMPLOYEES, AGAINST ANY AND ALL CLAIMS, LAWSUITS, LIABILITIES, JUDGMENTS, COSTS, AND EXPENSES FOR PERSONAL INJURY (INCLUDING DEATH), PROPERTY DAMAGE OR OTHER HARM, DAMAGES OR LIABILITY FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, SUFFERED BY ANY PERSON OR PERSONS, THAT MAY ARISE OUT OF OR BE OCCASIONED BY ANY NEGLIGENT, GROSSLY NEGLIGENT, WRONGFUL, OR STRICTLY LIABLE ACT OR OMISSION OF THE DEVELOPER OR ITS AGENTS, EMPLOYEES, OR CONTRACTORS, ARISING OUT IN THE PERFORMANCE OF THIS CONTRACT, REGARDLESS OF WHETHER OR NOT THE NEGLIGENCE, GROSS NEGLIGENCE, WRONGFUL ACT, OR FAULT OF THE CITY OR ITS OFFICERS, AGENTS, OR EMPLOYEES, CONTRIBUTES IN ANYWAY TO THE DAMAGE, INJURY, OR OTHER HARM. THE REQUIREMENT OF THE DEVELOPER TO DEFEND THE CITY ALSO UNCONDITIONALLY APPLIES REGARDLESS OF WHETHER OR NOT THE NEGLIGENCE OR FAULT (BUT NOT GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OF THE CITY OR ITS OFFICERS, AGENTS, OR EMPLOYEES CONTRIBUTES IN ANY WAY TO THE DAMAGE, INJURY, OR OTHER The Shops of Southlake 380 Agreement - February 1, 2006 DRAFT - Page 7 of 18 HARM. Nothing in this paragraph may be construed as waiving any immunity available to the City under state law. This provision is solely for the benefit of the Developer and the City and is not intended to create or grant any rights, contractual or otherwise, in or to any other Person. b. No Joint Venture The parties agree that the terms hereof are not intended to and shall not be deemed to create a partnership or joint venture among the parties. The City, its elected officials, directors, employees and agents do not assume any responsibility to any third party in connection with the Developer's construction or operation of the Project. 10. Miscellaneous Matters a. Section or Other Headings Section or other headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. b. Attorneys Fees The prevailing party in the adjudication of any proceeding relating to this Agreement shall be authorized to recover its reasonable and necessary attorney's fees pursuant to Section 271.159 of the Texas Local Government Code. C. Entire Agreement This Agreement contains the entire agreement between the parties with respect to the transactions contemplated herein. d. Amendment This Agreement may only be amended, altered, or revoked by written instrument signed by the Developer and the City. e. Successors and Assigns This Agreement shall be binding on and inure to the benefit of the parties, their respective successors and assigns. The Developer may assign all or part of its rights and obligations hereunder (a) to any Developer Affiliate effective upon written notice to the City, or (b) to any Person other than a Developer Affiliate with the prior written approval of the C ity. Notice Any notice and /or statement required and permitted to be delivered shall be deemed delivered by hand delivery, depositing same in the United States mail, certified with return receipt requested, postage prepaid, addressed to the appropriate party at the following addresses, or at such other addresses provided by the parties in writing: Developer: c/o Cencor Realty Services 3102 Maple Ave., Ste. 500 Dallas, TX 75201 Attention: David C. Palmer With a copy to: Jenkens & Gilchrist, P.C. The Shops of Southlake 380 Agreement - February 1, 2006 DRAFT - Page 8 of 18 1445 Ross Avenue, Suite 3200 Dallas, Texas 75202 Attention: Mark R. Vowell, Esq. City: Mayor City of Southlake 1400 Main Street, Suite 460 Southlake, Texas 76092 With a copy to: Taylor, Olson, Adkins, Sralla & Elam, L.L.P. 6000 Western Place, Suite 200 1 -30 at Bryant -Irvin Road Fort Worth, Texas 76107 Attention: Debra Drayovitch g. Interpretation Regardless of the actual drafter of this Agreement, this Agreement shall, in the event of any dispute over its meaning or application, be interpreted fairly and reasonably, and neither more strongly for or against any party. h. Applicable Law and Venue This Agreement is made, and shall be construed and interpreted under the laws of the State of Texas and is fully performable in Tarrant County, Texas, and venue of any dispute relating to this Agreement shall lie in Tarrant County, Texas. Counterparts This Agreement may be executed in multiple counterparts, each of which shall be considered an original, but all of which shall constitute one instrument. Limitation on Liability Developer agrees that City shall not be liable to Developer or any other party for any special or consequential damages, direct or indirect, punitive damages, interest, or cost of court or expenses related to litigation other than reasonable and necessary attorney's fees, as provided in subsection b. hereof for any act of default by City under this Agreement. k. Representations The Developer represents and warrants to the City that it has the requisite authority to enter into this Agreement. 11. Right to Offset City may, at its option, offset any amounts due and payable to Developer under this Agreement against any debt (including taxes) lawfully due to City from Developer and which are delinquent under applicable law or by agreement, regardless of whether the amount due arises pursuant to the terms of this Agreement or otherwise and regardless of whether or not the debt due to City has been reduced to judgment by a court, provided that The Shops of Southlake 380 Agreement - February 1, 2006 DRAFT - Page 9 of 18 if Developer is in good faith challenging the validity of any debt, in accordance with applicable laws, the City may not offset unless and until such challenge is finally resolved. 12. Rough Proportionality Developer agrees that all property dedicated to the City and all public facilities constructed pursuant to this Agreement are reasonably necessary to serve the Project and are roughly proportional to the need generated by the subdivision for such land and facilities. Developer acknowledges its right to seek a variance to the dedication and /or construction requirements and that it has voluntarily chosen not to pursue such remedies and waives any claim for a taking of property, or any other constitutional or statutory claim, that it may have under either the Texas or United States Constitutions or statutes. THE CITY OF SOUTHLAKE Andrew Wambsganss, Mayor ATTEST: CITY SECRETARY DEVELOPER Carroll /1709, Ltd., a Texas limited partnership By: Carroll /1709 One, L.C., a Texas limited liability company, its General Partner APPROVED AS TO FORM: CITY ATTORNEY Herbert D. Weitzman, Manager The Shops of Southlake 380 Agreement - February 1. 2006 DRAFT - Page 10 of 18 THE STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, on this day personally appeared Andrew Wambsganss, Mayor of the CITY OF SOUTHLAKE, a municipal corporation, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he was duly authorized to perform the same by appropriate resolution of the City Council of the City of Southlake and that he executed the same as the act of the said City for the purposes and consideration therein expressed and in the capacity therein stated.. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of 2006. Notary Public in and for the State of Texas Notary's Printed Name My Commission Expires: The Shops of Southlake 380 Agreement - February 1. 2006 DRAFT - Page 11 of 18 THE STATE OF TEXAS § COUNTY OF DALLAS § BEFORE ME, the undersigned authority, on this day personally appeared Herbert D. Weitzman, Manager of Carroll /1709 One, L.C., a Texas limited liability company, the General Partner of Carroll /1709, Ltd., a Texas limited partnership, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that said instrument was signed on behalf of said entities, in the capacities therein stated, and said Herbert D. Weitzman acknowledged said instrument to be his free act and deed. GIVEN UNDER MY HAND AND SEAL OF OFFICE in said County and State this day of , 2006. Notary Public in and for the State of Texas Notary's Printed Name My Commission Expires: The Shops of Southlake 380 Agreement - February 1. 2006 DRAFT - Page 12 of 18 EXHIBIT A Description of Premises OWNER'S CERTIFICATE STATE OF TEXAS COUNTY OF DALLAS WHEREAS, SOUTH CARROLL /1709, LTD., is the owner of all that certain lot, tract or parcel of land situated in the City of Southlake, Tarrant County, Texas, and being ❑ part of a 29.516 acre tract of land conveyed from W.E. Dalton and wife Dorothy L. Dalton, to South Corrof1/1709, LTD. By deed recorded in Volume 13242 of Page 76 of the Deed Records of Tarrant County, Texas, and being more particularly described by metes and bounds as Follows; BEGINNING at ❑ 1/2" iron rod found in the South right of way line of East Southlake Boulevard (130 foot right of way) for the Northeast corner of said 29.516 acre tract and also being the Northwest corner of Lot 1R in Block 1 of Garbutt Addition, an addition to the City of Southlake, Texas, according to the plot thereof recorded in Cabinet 'A', Slide 9210, of the Plat Records of Tarrant County, Texas; THENCE South 0' 13' 20" West along the West line of said Lot 1 R in Block 1 of the Garbutt Addition for a distance of 959.70 feet to a 1/2" iron rod found for the the Southeast corner of said 29.515 acre tract and also being the Southwest corner of said Lot 1 R in Block 1 of the Garbutt Addition, and being in the North line of Lot 8 in Block 1 of Oak Hill Estates, an addition to the City of Southlake, Texas, according to the plot thereof recorded in Cabinet "A" at Slide 2122 of the Plot Records of Tarrant County, Texas; THENCE North 88' 36' 13" West (Basis of Bearings per deed recorded in Volume 13242 at Page 75 of the Deed Records of Tarrant County, Texas) along the North line of said Oak Hill Estates Addition for a distance of 1317.16 feet to ❑ 5/8" iron rod found in the East right of way line of South Carroll Avenue (54 foot right of way); THENCE North 0' 03' 09" West along he East right of way fine of South Carroll Avenue for a distance of 462.54 feet to a 5/8" iron rod set for corner, said point being the beginning of a curve to the left having a central angle of 0 49' 42" with a radius of 835.00 feet and a chord bearing North 02' 57' 58" West at a distance of 84.90 feet; THENCE Northwesterly along said curve to the left and continuing along the East right of way line of said South Carroll Avenue for a distance of 84,94 feet to a 5/8" iron rod set for corner and being the beginning of a curve to the right having ❑ central angle of 03' 45' 22" with a radius of 765.00 feet and ❑ chord bearing North 44' 00' 08" West at a distance of 50.14 feet; THENCE Northwesterly along said curve to the left and continuing to follow along the East right of way line of said South Carroll Avenue for a distance of 50A5 feet to a 5/8" iron rod set for corner; THENCE North 0' 03' 09" West and continuing along the East right of way line of said South Carroll Avenue for a distance of 352.01 feet to a 5/8" iron rod set for the cutoff line for the aforesaid East 5outhoke Boulevard; THENCE North 45' 38' 51" Eost along said cutoff line for East Southlake Boulevard for ❑ distance of 13.96 feet to ❑ 5/8" iron rod set for corner in the South right of way line of Eost 5outhoke Boulevard; THENCE South 88' 37' 53" East along the South right DI way line of said East Southlake Boulevard for ❑ distance of 1315.52 feet to the POINT OF BEGINNING AND CONTAINING 29.1276 ACRES OF LAND, more or less. The Shops of Southlake 380 Agreement - February 1, 2006 DRAFT - Page 13 of 18 EXHIBIT B Concept Plan and Southern Buffer Wt) s ML.AKt • rt;xws - . -- - - fi,a rr sn� rNr,t da�r� Po �A 1 =� t _ � r Central f Rw ' ! I Park Parke lav Area , gyp r 'w,'� M t"- z ` $+1 44 c c4+F' t lit aw tsa yw a' aav wr w �+v _ G!`�iVl�+idlvyl <Y 7 i -i itiLY t Hcwerr Roa V9V. cwrw mw v . o.. 1wnal sny �•- -- ;F uvs ■,wee grmfr. „eu c, numv n�aaw + my + � r 9FTNY lYYJ000/ -- - Southern Buffer The Shops of Southlake 380 Agreement - February 1, 2006 DRAFT - Page 14 of 18 EXHIBIT C Special Warranty Deed for Park Date: 1 200 _ Grantor: Carroll /1709, Ltd. 3102 Maple Ave., Suite 500 Dallas, TX 75201 Dallas County, Texas Grantee: The City of Southlake, Texas, A Municipal Corporation 1400 Main Street Southlake, Tarrant County, Texas 76028 Consideration: Ten dollars and no /100 and other valuable consideration Property (including any improvements): Being Block _, Lot _, The Shops of Southlake Addition, an addition to the City of Southlake, Tarrant County, Texas, pursuant to the Plat approved by the City of Southlake for Case No. ZA05- 7 2005 [NOTE: Description to be adjusted at time of conveyance] Reservations from and Exceptions to Conveyance and Warranty: See Exhibit `A' attached hereto and made a part hereof for all purposes. Grantor, for the consideration and subject to the reservations from and exceptions to conveyance and warranty set forth on Exhibit `A' attached hereto, conveys to Grantee the Property, together with all and singular the rights and appurtenances thereto in any wise belonging, to have and to hold it to Grantee, Grantee's successors and assigns, and to warrant and forever defend all and singular the Property to Grantee and Grantee's successors and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof, except as to the reservations from the exception to conveyance and warranty, when the claim is by, through or under Grantor, but not otherwise. When the context requires, singular nouns and pronouns include the plural. The Shops of Southlake 380 Agreement - February 1, 2006 DRAFT - Page 15 of 18 GRANTOR: Carroll /1709, Ltd., a Texas limited partnership By: Carroll /1709 One, L.C., a Texas limited liability company, its General Partner Herbert D. Weitzman, Manager THE STATE OF TEXAS § COUNTY OF DALLAS § BEFORE ME, the undersigned authority, on this day personally appeared Herbert D. Weitzman, Manager of Carroll /1709 One, L.C., a Texas limited liability company, the General Partner of Carroll /1709, Ltd., a Texas limited partnership, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that said instrument was signed on behalf of said entities, in the capacities therein stated, and said Herbert D. Weitzman acknowledged said instrument to be his free act and deed. GIVEN UNDER MY HAND AND SEAL OF OFFICE in said County and State this day of , 2006. Notary Public in and for the State of Texas Notary's Printed Name My Commission Expires: AFTER RECORDING RETURN TO: Ms. Lori Farwell City Secretary City of Southlake 1400 Main Street, Suite 270 Southlake, Texas 76092 The Shops of Southlake 380 Agreement - February 1, 2006 DRAFT - Page 16 of 18 EXHIBIT "A" TO SPECIAL WARRANTY DEED Permitted Exceptions 1. Reservation of all rights and interest in and to all oil, gas and other minerals in and under the property as described in Deed executed by Walter J. Rusek to M.L. Dalton and W.E. Dalton, dated September 5, 1980, filed September 8, 1980, recorded in Volume 6992, Page 719, Deed Records, Tarrant County, Texas, as noted on survey by David Petree, R.P.L. S. 1890, dated January 7, 2005, last revised July 14, 2005, last revised September 7, 2005. 2. City of Southlake Permanent Waterline Easement executed by and between W.E. Dalton and Dorothy H. Dalton and the City of Southlake, dated February 19, 1997, filed March 26, 1997, recorded in Volume 12712, Page 1651, Deed Records, Tarrant County, Texas, as shown on survey by David Petree, R.P.L. S. 1890, dated January 7, 2005, last revised July 14, 2005, last revised September 7, 2005. 3. Airport Zoning Ordinance dated December 16, 1971, a certified copy of which is recorded in 7349 / 1106, Real Property Records of Tarrant County, Texas. 4. Terms, conditions and stipulations contained in Reciprocal Easement executed by and between Cambridge- Southlake Partners, L.P. and South Carroll /1709, Ltd., dated January 20, 2004, filed February 4, 2004, recorded in County Clerk's File No. 37687, Deed Records, Tarrant County, Texas, as noted on survey by David Petree, R.P.L. S. 1890, dated January 7, 2005, last revised July 14, 2005, last revised September 7, 2005. 5. 20 foot Drainage Easement, created by Reciprocal Easement Agreement recorded under Clerk's File No. 204037687, Deed Records, Tarrant County, Texas, along the East line as shown on survey by David Petree, R.P.L. S. 1890, dated January 7, 2005, last revised July 14, 2005, last revised September 7, 2005. 6. Cable TV Box and lines, Southwest corner, as shown on survey by David Petree, R.P.L. S. 1890, dated January 7, 2005, last revised July 14, 2005, last revised September 7, 2005. 7. Signal Box, West, as shown on survey by David Petree, R.P.L.S. 1890, dated January 7, 2005, last revised July 14, 2005, last revised September 7, 2005. 8. Memorandum of Lease executed by and between Carroll /1709/, Ltd., and HEB Grocery Company, L.P. dated December 7, 2005, filed December 8, 2005, recorded under Clerk's File No. D205365361, Deed Records, Tarrant County, Texas The Shops of Southlake 380 Agreement - February 1, 2006 DRAFT - Page 17 of 18 EXHIBIT D Declaration of Easement and Restrictive Covenants The Shops of Southlake 380 Agreement - February 1, 2006 DRAFT - Page 18 of 18 DECLARATION OF EASEMENTS AND RESTRICTIVE COVENANTS STATE OF TEXAS § COUNTY OF TARRANT § This Declaration of Easements and Restrictive Covenants (this " Declaration ") is made as of the day of 2006, by and between CARROLL /1709, LTD., a Texas limited partnership ( " Declarant '), and HEB GROCERY COMPANY, LP ( " HEB "). 1. RECITALS 1.1 Shopping Center Declarant is the owner in fee simple of certain real property located in the City of Southlake, County of Tarrant, State of Texas, which is more particularly described in Exhibit "A" attached hereto and made a part hereof for all purposes (the " Shopper Center A concept plan (the " Concept Plan ") reflecting Declarant's proposed development of the Shopping Center is attached hereto as Exhibit "B" and incorporated herein for all purposes. 1.2 Purpose Declarant desires to establish, for its own benefit and the benefit of HEB so long as HEB is Party, and for the benefit of future owners of the Shopping Center (with all such parties together with Declarant sometimes singularly referred to as " and collectively as " Parties "), and their respective successors, assigns, tenants, employees and invitees, mutual, reciprocal, non - exclusive easements over and across the Shopping Center in accordance with the terms, provisions and conditions of this Declaration. In addition, Declarant desires to establish for the benefit of Declarant and HEB, and their respective successors and assigns, certain restrictions encumbering the Shopping Center as provided hereinbelow. In the event that the Park (as defined in Section 4.1 below) is dedicated to the City of Southlake (the " City "), the City shall be deemed to be a Party hereunder. 1.3 HEB HEB is currently a tenant of the Shopping Center pursuant to that certain Lease Agreement (the " HEB Lease "), dated December 7, 2005, executed by and between Declarant and HEB pursuant to which HEB has leased from Declarant the "HEB Leased Premises" depicted on the Concept Plan. So long as the HEB Lease continues in full force and effect, HEB shall be deemed to be a Party hereunder. NOW, THEREFORE, Declarant, as fee simple owner of the Shopping Center, for itself, its heirs, executors, successors and assigns, declares as follows: 2. ACCESS AND PARKING 2.1 Access Easement Declarant hereby establishes and grants for the benefit of the Parties and their respective tenants, licensees, concessionaires, successors and assigns, and the customers and business invitees of such above - mentioned persons, a perpetual non - exclusive 1 DALLAS4 742009v7 67591 -00002 access easement allowing free and unobstructed pedestrian and vehicular passage over all access and entrance drives (except service drives exclusively serving a tenant's loading area or drive - through area), sidewalks and parking areas which from time to time are located within the Shopping Center, it being intended that the Shopping Center shall be operated as an integrated shopping center, undivided by ramps or obstructions to the free flow of traffic. 2.2 Parking Easement Subject to the limitations set forth in Section 4 below, Declarant hereby establishes and grants for the benefit of the Parties and their respective tenants, licensees, successors and assigns, and the customers and business invitees of such above - mentioned persons, a perpetual non - exclusive parking easement over all parking areas within the Shopping Center, as they may exist from time to time. Pursuant to the terms of the HEB Lease, Declarant shall provide not less than five (5) parking spaces for each one thousand (1,000) square feet of leaseable space in the Shopping Center for retail use, and eight (8) parking spaces for each one thousand (1,000) square feet of floor area for restaurant use. In addition, each Party (except for HEB) must independently satisfy any governmental parking requirements applicable to the Shopping Center with respect to the portion of the Shopping Center owned by such Party. 2.3 Rules and Regulations Declarant hereby reserves the right to establish rules and regulations concerning the use of the easement areas described in Sections 2.1 and 2.2 above, including, without limitation, the right to establish employee and valet parking areas for use by any one or more of the occupants of the Shopping Center (provided that no employee or valet parking areas shall be established within the Park Parking Area shown on the Concept Plan), subject to the HEB Lease so long as the HEB Lease remains in effect; provided however that such rules and regulations shall not be binding upon HEB unless provided for in the HEB Lease or otherwise consented to by HEB in its sole discretion. Declarant hereby further reserves the right to temporarily restrict or prohibit access or parking, or both, within the Shopping Center whenever necessary for the completion of construction or repairs or whenever necessary, in the reasonable judgment of Declarant, to prevent the accrual of prescriptive rights of usage in favor of the public; provided, however, that the foregoing rights shall not violate or be inconsistent with the rights granted to HEB under the HEB Lease. 3. MAINTENANCE AND TAXES, INDEMNIFICATION 3.1 Maintenance and Taxes Each Parry shall maintain the improvements on its portion of the Shopping Center in good condition and repair, clean and free of rubbish and other hazards, including, without limitation, repaving, resurfacing, patching and restriping, as needed. Likewise, ad valorem taxes and assessments, and similar requirements or incidentals of ownership, shall be borne by the Parry owning the Shopping Center or portion thereof to which such ad valorem taxes or assessments attach; and nothing herein shall (i) require that any Parry be responsible for any accidents, injury, loss or damage occurring on the property of another Party, or (ii) impose any specific obligation or requirement with respect to the ownership, operation or maintenance of the portion owned by such Parry, except as expressly set forth in this Declaration. Notwithstanding the foregoing, the obligations of HEB with respect to maintenance and ad valorem taxes are set forth in the HEB Lease, and to the extent of any inconsistency between the HEB Lease and the terms of this Agreement, the terms of the HEB Lease shall control. 2 DALLAS4 742009v7 67591 -00002 3.2 Indemnification Each Party hereby indemnifies and agrees to hold any other Party harmless from any and all liability, damage, expense, causes of action, suits, claims or judgments, including reasonable attorneys' fees, arising from any injury to person or property occurring on the portion of the Shopping Center owned by such indemnifying Party except if caused by the negligent act of another Party. 3.3 No Waiver of Governmental Immunity Notwithstanding any provision contained herein to the contrary, including the provisions regarding indemnification, nothing contained in this Declaration shall be construed as a waiver by the City of any governmental immunity, limitation of liability, limitation on the amount of liability, or other protection provided by state law. 4. PUBLIC PARK RESTRICTIONS 4.1 Public Park Declarant hereby establishes the following restrictive covenants with respect to the real property described in Exhibit "C" attached hereto and identified as the "Public Park" on the Concept Plan (the " Park ") for the benefit of Declarant and HEB and their respective successors and assigns: (a) The use of the Park shall be limited to either a landscaped green area or public park; (b) It is imperative that an adequate view corridor be maintained from Southlake Boulevard to the HEB Leased Premises for NEB's commercial success. All Parties understand that the Park includes amenities such as benches, tables and shade umbrellas, shrubbery, accent trees, canopy trees, and a fountain which as designed as set forth in the attached Exhibit "D" provide enhancement while maintaining an adequate view corridor to HEB. Any additional Park improvements (not including replacements consistent with the original improvements approved by Declarant and HEB) that: (1) exceed a height of three feet (3') from natural ground of the developed Park, or (2) create a 20% or greater visual blockage at a height between eighteen inches (18 ") and three feet (3') from natural ground, shall be subject to the prior written consent of Declarant and HEB so long as HEB is a Party; (c) The Party owning fee title to the Park shall maintain the Park and any Park Improvements in good condition and repair in the manner required by Section 3.1 above; (d) It is imperative that adequate parking be maintained in front of and in proximity to the HEB Leased Premises while also accommodating visitors to the public Park. In the event that the Park is dedicated to the City, (i) the City shall make reasonable efforts to encourage Park patrons to utilize parking areas in proximity to the Park and labeled as the "Park Parking Area" on the Concept Plan, and (ii) the City, through its departments and other administrative processes, shall refrain from issuing permits or reservations for any public gathering at the Park which would reasonably necessitate parking for more than sixty (60) vehicles without written consent of the Declarant and HEB so long as HEB is a Party. In the event of any public gathering 3 DALLAS4 742009v7 67591 -00002 which results in the use of more than sixty (60) parking spaces by visitors to the Park, Declarant and HEB shall have the right to limit the use of any parking areas within the Shopping Center by Park visitors and invitees to the Park Parking Area as shown on the Concept Plan by posting signs, utilizing private security personnel, and /or towing vehicles of Park visitors which are parked outside of the Park Parking Area, provided Declarant complies with City ordinances regulating towing of vehicles on private property. Declarant and HEB shall also have the right to monitor usage of parking spaces by visitors to the Park and to enforce the parking limits set forth above pursuant to the preceding sentence and Section 5.2 below. (e) In the event that the Park is not dedicated to the City, then the use of the Park and the Park Parking Area shall be governed and controlled by the applicable terms, provisions and conditions of the HEB Lease. 5. DEFAULT 5.1 Occurrence of Default It shall constitute a default and breach of this Agreement by the non - performing Parry (the " Defaulting Party "), if such Party shall fail to perform any of the covenants, conditions or obligations in this Agreement within thirty (30) days after the issuance of a written notice by another Party (the " Nondefaulting Party ") specifying the nature of the default claim, unless such Defaulting Party has commenced to cure such default within the thirty day period described above and diligently prosecutes such cure to completion. Notwithstanding the foregoing, Declarant (or HEB as applicable) shall not be required to give notice and opportunity to cure prior to exercising any of its remedies set forth in Section 4.1(d) above. 5.2 Rights of Nondefaulting Party (a) Each Nondefaulting Party shall have the right to prosecute any proceedings at law or in equity against any Defaulting Party hereto, or any other person, violating or attempting to violate or default upon any of the provisions contained in this Agreement, and shall have the right to pursue injunctive relief and damages. Any proceedings shall include the right to restrain by injunction any violation or threatened violation by another of any of the terms, covenants or conditions of this Agreement, or to obtain a decree to compel performance of any such terms, covenants or conditions. All of the remedies permitted or available to a party under this Agreement or at law or equity shall be cumulative and not alternative, and election of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or available right or remedy. The Parties hereby confirm and agree that so long as a HEB is a Party, HEB shall have right to exercise the rights and remedies of Declarant under Section 4.1(d) above in accordance with the terms and provisions of the HEB lease. (b) If because of a default by a Defaulting Party, as described in Section 5.1 above, a Nondefaulting Party employs an attorney to enforce the rights of the Nondefaulting Party, then the Defaulting Parry shall reimburse the Nondefaulting Party for the reasonable attorneys fees incurred by the Nondefaulting Party. in DALLAS4 742009v7 67591 -00002 6. MISCELLANEOUS 6.1 No Joint Venture or Agency It is expressly understood and agreed that the provisions of this Declaration shall never be deemed or construed to cause the owners of the respective tracts within the Shopping Center to be considered as partners or j oint venturers. Each Party shall be considered a separate owning entity, and no Party shall have the right to act as agent for another Party unless expressly authorized to do so by written instrument signed by the authorizing Party. 6.2 Binding Effect The terms of this Declaration shall run with the land and shall be binding upon and inure to the benefit of the successors and assigns of Declarant who become the owners of all or any portion of the Shopping Center. 6.3 Amendment This Declaration may be changed, modified or amended only by written instrument (a) executed by Declarant and BEB so long as HEB is a Party hereunder, and (b) recorded in the Official Records of Tarrant County, Texas; provided, however, that no change, modification or amendment shall impose any materially greater obligations on, or materially impair any right of, a Party (including the City if the City becomes a Party) without the written consent of such Party which consent may not be unreasonably withheld, conditioned or delayed. 6.4 Governing Law and Jurisdiction This Declaration shall be governed by and interpreted under the laws of the State of Texas. This Declaration is to be performed in Tarrant County, Texas. 6.5 Estoppel Certificate Upon written request from time to time of a Party, each Party will issue to a prospective mortgagee of such other Party or to a prospective successor Party to such other Party, an estoppel certificate stating: (i) whether the Party to whom the request has been directed knows of any default by the requesting Party under this Declaration; (ii) whether to its knowledge this Declaration has been assigned, modified or amended in any way (or if it has, then stating the nature thereof); and (iii) that to the Party's knowledge this Declaration as of that date is in full force and effect. Such statement shall act as a waiver of any claim by the Parry furnishing it to the extent such claim is based upon facts contrary to those asserted in the statement and to the extent the claim is asserted against a bona fide mortgagee or purchaser for value without knowledge of facts to the contrary of those contained in the statement, and who has acted in reasonable reliance upon the statement. 6.6 Notices All notices, demands, statements and requests required or permitted to be given under this Declaration must be in writing and shall be deemed to have been properly given or served whether received or not, by depositing the same in the United States mail, postage prepaid and registered or certified mail, return receipt requested, at the address set forth below. The current address for notice to Declarant is as follows: 5 DALLAS4 742009v7 67591 -00002 To Declarant: Carroll /1709, Ltd. 3102 Maple Avenue, Suite 500 Dallas, Texas 75201 Attention: Director of Property Management with a copy by regular mail to: Mark R. Vowell, Esq. Jenkens & Gilchrist, P.C. 1445 Ross Avenue, Suite 3700 Dallas, Texas 75202 -2799 To HEB: HEB Grocery Company, LP 646 South Main Avenue San Antonio, Texas 78205 Attention: Senior Vice President of Real Estate with a copy by regular mail to: Stephen L. Golden, Esq. Akin Gump Strauss Hauer & Feld LLP 300 Convent Street Suite 1500 San Antonio, TX 78205 -3732 All notices, demands and requests shall, except as hereinafter set forth, be effective upon the earlier of: (i) actual receipt or (ii) being deposited in the United States mail in accordance with the provisions hereof. Rejection or other refusal to accept, or the inability to deliver because of change of address of which no notice was given, shall be deemed to be receipt of the notice, demand or request. Any Party shall have the right from time to time and at any time, upon at least ten (10) days' prior written notice thereof in accordance with provisions hereof, to change its respective address and to specify any other address within the United States of America; provided, however, notwithstanding anything herein contained to the contrary, in order for the notice of address change to be effective it must actually be received. In the event that the Park is dedicated to the City, then all notices to the City shall be sent to the following address: City of Southlake 1400 Main Street, Suite 270 Southlake, Texas 76092 6.7 Singular and Plural Whenever required by the context of this Declaration, the singular shall include the plural, and vice versa, and the masculine shall include the feminine and neuter genders, and vice versa. 6.8 Not a Public Dedication Nothing herein contained shall be deemed to be a gift or dedication of any portion of the Shopping Center to the general public, or for the general public or for any public use or purpose whatsoever; it being the intention and understanding of the on DALLAS4 742009v7 67591 -00002 Parties hereto that this Declaration shall be strictly limited to and for the purposes herein expressed solely for the benefit of the Parties hereto. The Declarant intends to dedicate the Park to the City; however, unless and until the Park is dedicated to the City as evidenced by a conveyance deed of the Park to the City recorded in the Real Property Records of Tarrant County, Texas, and acceptance by the City of such dedication, there shall be no public dedication of the Park. 6.9 Severabili1y Invalidation of any of the provisions contained in this Declaration, or of the application thereof to any Parry by judgment or court order shall in no way affect any of the other provisions hereof or the application thereof to any other Parry and the same shall remain in full force and effect. 6.10 Captions The captions preceding the text of each paragraph and subparagraph hereof are included only for convenience of reference and shall be disregarded in the construction and interpretation of this Declaration. hereof. 6.11 Time Time is of the essence under this Declaration and each and every provision 6.12 Declarant Rights The rights of 'Declarant" under this Declaration are personal to Carroll /1709, Ltd. In the event Carroll /1709, Ltd. conveys all of its remaining interest in the Shopping Center to a third -parry, then Carroll /1709, Ltd., may assign its rights as 'Declarant" to any other Parry upon recording an instrument evidencing such assignment and specifically referring to this Declaration in the Official Records of Tarrant County, Texas. 6.13 No Merger Unless otherwise clearly indicated to the contrary in a written, recorded document executed by all of the Parties, there shall in no event be a merger of the dominant and servient estates in the Shopping Center by virtue of the present or future ownership of any portion of said estates being vested in the same person or entity, but instead it is intended that the easements and servitudes created pursuant to the terms of this Declaration shall not be extinguished thereby and that said dominant and servient estates shall be kept separate. [Signatures on following page.] 7 DALLAS4 742009v7 67591 -00002 IN WITNESS WHEREOF, the parties hereto have executed this Declaration as of the date first set forth above. 0 DECLARANT: CARROLL /1709, LTD., a Texas limited partnership By: Carroll 1709 One, L.C., a Texas limited liability company, its general partner 'I Herbert D. Weitzman, Manager HEB GROCERY COMPANY, LP, a Texas limited partnership Todd A. Piland, Senior Vice President CITY: CITY OF SOUTHLAKE, TEXAS Mayor IM DALLAS4 742009v7 67591 -00002 STATE OF TEXAS ) COUNTY OF DALLAS ) This instrument was acknowledged before me on the day of 2006, by Herbert D. Weitzman, Manager of CARROLL 1709 ONE, L.C., a Texas limited liability company, in its capacity as general partner of CARROLL /1709, LTD., a Texas limited partnership, on behalf of said limited liability company and limited partnership. Notary Public, State of My Commission Expires: (SEAL) STATE OF TEXAS ) COUNTY OF BEXAR ) This instrument was acknowledged before me on the day of , 2006, by Todd A. Piland, Senior Vice President of HEB GROCERY COMPANY, LP, a Texas limited partnership, on behalf of said limited partnership. Notary Public, State of My Commission Expires: (SEAL) 7 DALLAS4 742009v7 67591 -00002 STATE OF TEXAS COUNTY OF This instrument was acknowledged before me on the day of , 2006, by , Mayor of CITY OF SOUTBL.AKE, TEXAS, a home rule city, on behalf of said home rule city. Notary Public, State of My Commission Expires: (SEAL) 10 DALLAS4 742009v7 67591 -00002 EXHIBIT "A" BEING all that certain lot, tract or parcel of land situated in the City of Southlake, Tarrant County, Texas, and being a part of a 29.516 acre tract of land conveyed from W.E. Dalton and wife Dorothy L. Dalton, to South Carroll /1709, LTD. by deed recorded in Volume 13242 at Page 76 of the Deed Records of Tarrant County, Texas, and being more particularly described by metes and bounds as follows; BEGINNING at a 1/2" iron rod found in the South right of way line of East Southlake Boulevard (130 foot right of way) for the Northeast corner of said 29.516 acre tract and also being the Northwest corner of Lot IA in Block 1 of Gorbutt Addition, an addition to the City of Southlake, Texas, according to the plat thereof recorded in Cabinet A at Slide 9210 of the Plat Records of Tarrant County, Texas, a Replat of Lot 1 in Block 1 of Gorbutt Addition, an addition to the City of Southlake, Texas, according to the plat thereof recorded in Volume 388 -156 at Page 12 of the Plat Records of Tarrant County, Texas; THENCE South 00° 13'20" West along the West line of said Lot IA in Block 1 of the Gorbutt Addition for a distance of 959.70 feet to a 1/2" iron rod found for the Southeast corner of said 29.516 acre tract and also being the Southwest corner of said Lot IA in Block 1 of the Gorbutt Addition, and being in the North line of Lot 13 in Block 1 of Oak Tree Estates, an addition to the City of Southlake, Texas, according to the plat thereof recorded in Cabinet "A" at Slide 2122 of the Plat Records of Tarrant County, Texas; THENCE North 88° 36' 13" West (Basis of Bearings per deed recorded in Volume 13242 at Page 76 of the Deed Records of Tarrant County, Texas) along the North line of said Oak Tree Estates Addition for a distance of 1317.16 feet to a 5/8" iron rod found in the East right of way line of South Carroll Avenue (54 foot right of way) as established by a 0.4022 acre dedication deed to the City of Southlake, Texas, recorded in Document Number D201028629 of the Deed Records of Tarrant County, Texas; THENCE North 00° 03'09" West along said East right of way line of South Carroll Avenue for a distance of 462.54 feet to a 5/8" iron rod set for corner, said point being the beginning of a curve to the left having a central angle of 05° 49' 42" with a radius of 835.00 feet and a chord bearing North 02° 58' 00" West at a distance of 84.90 feet; THENCE Northwesterly along said curve to the left and continuing along the East right of way line of said South Carroll Avenue for a distance of 84.94 feet to a 5/8" iron rod set for corner and being the beginning of a curve to the right having a central angle of 03° 45' 20" with a radius of 765.00 feet and a chord bearing North 03° 57' 04" West at a distance of 50.13 feet; THENCE Northwesterly along said curve to the right and continuing to follow along the East right of way line of said South Carroll Avenue for a distance of 50.14 feet to a 5/8" iron rod set for corner; 11 DALLAS4 742009v7 67591 -00002 THENCE North 00° 03' 09" West and continuing along the East right of way line of said South Carroll Avenue for a distance of 352.01 feet to a 5/8" iron rod set for the cutoff line for the aforesaid East Southlake Boulevard; THENCE North 45° 38' 51" East along said cutoff line for East Southlake Boulevard for a distance of 13.96 feet to a 5/8" iron rod set for corner in the South right of way line of East Southlake Boulevard; THENCE South 88° 37' 53" East along the South right of way line of said East Southlake Boulevard for a distance of 1319.52 feet to the POINT OF BEGINNING AND CONTAINING 29.1281 ACRES OF LAND, more or less. 12 DALLAS4 742009v7 67591 -00002 EXHIBIT "B" Concept Plan W e i w 4 ' 4 . 4 i cars? 3011 TNfA f E06[£yAPp 9 — rrcf ..�. lm ,e• m Central '4M{ 1NIIt ` ; Park Parking P.rea� .• -� � -r (r al�p mp cq& o 40 P ' •� 4 a ! %a 4% 449 44 4V lot 1 4l 'f � Y •- �° (fb . r , Southern Buffer 13 DALLAS4 742009v7 67591 -00002 EXHIBIT "C" Legal Description of Park 14 DALLAS4 742009v7 67591 -00002 EXHIBIT "D" Park Design Plans [To be attached prior to recording consistent with design specifications approved by City Council on February 7, 20061 15 D ALL ASS} 742009v7 67591 -00002