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HomeMy WebLinkAboutContract 30651CITY SECRETAR Y CONTRACT NO. /1 Y1 MASTER ECONOMIC DEVELOPMENT AGREEMENT BY AND AMONG CITY OF FORT WORTH, TEXAS, TARRANT COUNTY, TEXAS, LONE STAR LOCAL GOVERNMENT CORPORATION and CABELA'S RETAIL, INC. Effective as of July 1, 2004 639996_5 TABLE OF CONTENTS Page ARTICLE 1. PURPOSE AND INTERPRETATION, 3 1.1. Objectives 3 1.2. Concept and Structure. 3 1.3. Interpretation. 4 1.4. Accounting Terms. 4 1.4. Accounting Terms. 4 1.5. Legal Representation of the Parties. 5 ARTICLE 2. DEFINITIONS 5 ARTICLE 3. DEVELOPMENT AND OPERATION OF THE FACILITY 12 3.1. Overview. 12 3.2. Public Facilities. 12 3.3. Projected Budget 12 3.4. Development and Construction Responsibilities 13 3.5. Other Improvements. 17 3.6. Taxidermy 17 3.7. Covenants and Restrictions 17 ARTICLE 4. THE TIF AND ANNEXATION 17 4.1. TIF Formation 17 4.2. TIF Projects. 18 4.3. Annexation 18 ARTICLE 5. PUBLIC FACILITIES 19 5.1. Conveyance of the Public Facilities. 19 5.2. Management of the Public Museum Facilities. 19 ARTICLE 6. FINANCING 19 6.1. Cost of Construction. 19 6.2. Public Facilities Bonds 20 6.3. Ad Valorem Tax Savings 20 6.4. 380 Grants 21 ARTICLE 7. ADDITIONAL BONDS 22 7.2. Purchase of the Additional Bonds. 23 7.3. Developer's Refusal to Purchase Additional Bonds. 23 ARTICLE 8. GENERAL PROVISIONS APPLICABLE TO ALL BONDS 23 8.1. General Provisions. 23 8.2. Conditions to the Obligations of the LGC to Issue any Bonds 24 8.3. Closing of the Bonds 25 8.4. Separate Obligations of the Developer 25 8.5. Approval of Bond Terms. 25 ARTICLE 9. OPTION TO PURCHASE THE PUBLIC FACILITIES 26 ARTICLE 10. DEVELOPER OBLIGATIONS 26 10.1. Completion of the Facility 26 10.2. Construction Costs 26 10.3. Employment Commitments 26 10.4. Supply and Service Expenditures 27 10.5. Audits 27 10.6. Annual Financial Report 27 10.7. Annual Commitment Reports 27 10.8. Construction Spending Report. 28 10.9. Additional Certified M/WBE Participation 28 ARTICLE 11. ADJUSTMENTS TO THE PUBLIC PARTICIPATION AMOUNT 28 11.1. Failure to Meet Construction Spending Goals 28 11.2. Failure to Meet Employment Goals 28 11.3 Failure to Meet Supply/Service Spending Goals 29 11.4. No Offsets 29 11.5. Adjustment for Present Value. 29 11.6. Maximum Public Participation Amount. 29 ARTICLE 12. OTHER CITY AND COUNTY OBLIGATIONS 29 12.1. Fast -Track Development Approvals. 29 12.2. Advertising and Marketing Grants. 30 12.3. Employee Training Grants 30 12.4. Change in Tax Scheme. 30 ARTICLE 13. SALES AND USE TAX NEXUS RULING 30 ARTICLE 14. TERMINATION, REDUCTION, SUSPENSION OF PAYMENTS 30 ii 14.1. Reasons for Termination. 30 14.2. Termination Date. 31 14.3. Notice of Problems. 31 14.4. Effect of Termination. 31 14.5. Reduction/Suspension of Public Participation Amount. 31 ARTICLE 15. COVENANTS 32 15.1. Covenants of Developer. 32 15.2. Covenants of City and LGC 34 15.3. Further Actions. 34 ARTICLE 16. REPRESENTATIONS AND WARRANTIES 34 16.1. Representations and Warranties of Developer. 34 16.2. Representations and Warranties of City. County and LGC 37 ARTICLE 17. INDEMNIFICATION AND INSURANCE 38 17.1. Indemnity 38 17.2. Indemnification Procedures. 39 17.3. Negligence of Indemnitee. 39 17.4. Developer's Insurance. 40 17.5. Survival; Right to Enforce. 40 ARTICLE 18. MISCELLANEOUS 40 18.1. Term 40 18.2. Article, Section or Other Headings. 40 18.3. Entire Agreement 40 18.4. Amendment. 40 18.5. Successors and Assigns. 40 18.6. Waiver. 41 18.7. Remedies. 41 18.8. Notices. 41 18.9. Applicable Law 42 18.10. Severabilitv.. 42 18.11. No Third -Party Beneficiaries 42 18.12. No Joint Venture. 42 18.13. Counterparts. 42 iii INDEX OF EXHIBITS AND SCHEDULES EXHIBITS Exhibit "A" Site Exhibit "B" TIF Zone Exhibit "C" Category 1 Costs Exhibit "D" Master Declaration Exhibit "E" Management Agreement Exhibit "F" Construction Schedule Exhibit "G" Map of Central City and CDBG Eligible Areas SCHEDULES Schedule 1 Public Infrastructrue Schedule 3.2. Public Museum Facilities Schedule 16.1.10 Environmental Conditions Schedule iv MASTER ECONOMIC DEVELOPMENT AGREEMENT This MASTER ECONOMIC DEVELOPMENT AGREEMENT ("Agreement") is entered into to be effective as of the 1st day of July, 2004 (the "Effective Date"), by and among the CITY OF FORT WORTH, TEXAS (the "City"), a home rule municipal corporation organized under the laws of the State of Texas, TARRANT COUNTY, TEXAS (the "County"), LONE STAR LOCAL GOVERNMENT CORPORATION, a nonprofit corporation organized under Subchapter D of Chapter 431, Texas Transportation Code (the "LGC") and CABELA'S RETAIL, INC., a Nebraska corporation (the "Developer"). RECITALS WHEREAS, the Developer desires to construct a facility of 200,000 square feet, comprised of (i) approximately 135,000 square feet of retail facility specializing in hunting, fishing and outdoor gear ("Retail Facility"), (ii) approximately 41,000 square feet of museum/exhibit areas (the "Public Museum Facilities"), and (iii) the remainder of the facility consisting of common areas and warehouse space ("Common Areas and Warehouse"), all as described below (the Retail Facility, Public Museum Facilities and Common Areas and Warehouse are referred to herein collectively as, the "Facility") all on the site described on Exhibit "A" attached hereto (the "Site"); WHEREAS, the Developer has advised the City and the County that a contributing factor that would induce the Developer to develop the Facility would be the creation of a tax increment reinvestment zone and an agreement with the City to provide a performance -based economic development grant to the Developer to defray a portion of the costs to be incurred by the Developer as a consequence of developing and constructing the Facility; WHEREAS, under the Tax Increment Financing Act, Chapter 311, Texas Tax Code (the "TIF Act"), the City has the power to designate a reinvestment zone to promote development or redevelopment of property within the jurisdiction of the City; WHEREAS, under the TIF Act, the City has the power to utilize tax increment (as defined in the TIF Act) within the reinvestment zone to finance and refinance public works and public improvement projects; WHEREAS, the City has created an Economic and Community Development Department in order to, among other things, oversee economic development programs authorized by Texas law and approved by the City Council, including those authorized by Chapter 380 of the Texas Local Government Code, to promote state and local economic development and to stimulate business and commercial activity in the City; WHEREAS, in accordance with the 2003 Comprehensive Plan adopted by the City Council pursuant to M&C G-13895 on February 25, 2003, the City's economic development programs are based on a model of custom -designed incentives and partnership programs with private businesses on a case -by -case analysis of individual projects to help ensure the growth and diversification of the local economy; 1 WHEREAS, the City Council has found and determined that by entering into this Agreement, the construction and acquisition of the Public Facilities (as defined herein) will further the public interest and welfare, and the potential economic benefits that will accrue to the City under the terms and conditions of this Agreement are consistent with the City's economic development objectives; WHEREAS, the LGC is authorized to accomplish any governmental purpose of the City; WHEREAS, the City and the County have further determined that development of the property within the TIF Zone, as hereinafter defined, will not occur solely through private investment in the reasonably foreseeable future and the property is predominately open and, because of obsolete platting, deterioration of structures or site improvements, or other factors, substantially impairs or arrests the sound growth of the City and County; WHEREAS, the Developer has represented to the City and the County that it would not enter into this Agreement if it failed to obtain a favorable ruling from the State (hereinafter defined) with respect to nexus issues relating to the imposition and collection of sales and use taxes imposed under State law; WHEREAS, the Developer has obtained a favorable letter ruling from the State Comptroller of Public Accounts, a true and correct copy of which is attached to this Agreement, confirming, to the satisfaction of the Developer, that (i) the Developer's activities in the TIF Zone (hereinafter defined) will not cause the Developer's Affiliates, which are mail order and internet sales entities with no physical presence in the State, to be required to collect and remit sales or use taxes on sales to State residents, and (ii) Affiliates of the Developer (e.g., World's Foremost Bank, Cabela's promotions, Inc., et al.) will not have nexus with the State with respect to various sales and use taxes imposed by the State; WHEREAS, the City, the County and the LGC acknowledge that they were advised by the Developer that the Developer would not have located the Facility at the Site without first receiving the favorable nexus ruling; WHEREAS, the City, the County, the LGC and the Developer desire to set forth in this Agreement the terms and conditions of the construction, development and financing of the Facility on the Site; and WHEREAS, the parties recognize that all agreements of the parties hereto and all terms and provisions hereof are subject to the laws of the State of Texas and all rules, regulations and interpretations of any agency or subdivision thereof at any time governing the subject matters hereof. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 2 ARTICLE 1. PURPOSE AND INTERPRETATION 1.1. Obiectives. The Developer is interested in developing a major retail project in the Fort Worth area, and has designated the Site (in the northern portion of the City and the County) as a potential location for such project. The Developer currently owns and operates other retail developments at multiple locations in several states which include facilities for the use and enjoyment of the general public similar to the Public Museum Facilities. The Developer sees an opportunity to establish its presence in this area of the City and the County and to play a significant role in the future development at and in the vicinity of the Site. The City and the County believe that the development of the Facility at the Site will attract additional businesses, development, and investment in the northern portions of the City and the County. The City and the County recognize that development of the Facility at the Site will likely serve as an economic stimulus to this developing area, resulting in significant job growth and increased tax revenue for the City and the County, and that construction of the Public Museum Facilities will provide significant educational opportunities for their citizens. In addition, the City recognizes the Public Museum Facilities may provide opportunities for collaboration with the City's zoological park. Consequently, the City and the County strongly favor the Developer's location of the Facility at the Site. The parties acknowledge that the present infrastructure in the vicinity of the Site is underdeveloped and thus insufficient to support the anticipated development by the Developer. Following development of the Facility at the Site, additional development by other businesses is anticipated to occur on the land surrounding the Site. The City shall form a Tax Increment Financing Reinvestment Zone, the boundaries of which will initially be established as depicted on Exhibit "B" attached hereto (the "TIF Zone"). In order to encourage the Developer to locate the Facility at the Site and to make the area surrounding the Site more attractive to other businesses seeking to establish new facilities near the Site, the Developer has requested that the City and the County fund certain costs associated with development of the Facility at the Site, as well as certain related Public Infrastructure improvements necessary to support the Site, all as described in this Agreement. 1.2. Concert and Structure. Development of the Facility will include the Public Museum Facilities and Public Infrastructure (the Public Museum Facilities and the Public Infrastructure are collectively referred to herein as the "Public Facilities"). Development of the Facility at the Site will result in increased property tax revenues to the City, the County, and other taxing units with jurisdiction at the Site and increased sales tax revenues to the City. To accomplish the objectives listed above, the Developer will be responsible for the development and construction of the Facility at the Site and the related Public Infrastructure. In return, the LGC will finance or reimburse the Developer for the costs of the Public Museum Facilities and certain other public work and improvement projects from the issuance of Bonds by the LGC, which Bonds shall be payable from (i) TIF Revenues (as defined herein) which are generated in the TIF Zone or (ii) 380 Grants made by the City from specified sources, subject to the Developer's compliance with various commitments, or (iii) any combination ofi suh resources, all as hereinafter provided in this Agreement. Subject to the terms of this Agreement, the City's, the County's and the LGC's participation in constructing the Facility and the related Public Infrastructure will include the following components: (i) establishment of a TIF Zone in which 3 the City and the County agree to participate, (ii) issuance by the LGC of bonds or other obligations secured by TIF Revenues, the 380 Grants or any combination of such sources to fund or reimburse the Developer for certain costs of developing and constructing the Facility and the related Public Infrastructure, (iii) the City's ownership of the Public Infrastructure following construction, (iv) the LGC's ownership of the Public Museum Facilities following construction, (v) the LGC's administration of 380 Grants from the City (or the issuance of bonds or other obligations by the LGC secured by such grants), and (vi) issuance of additional bonds by the LGC for the purpose of providing public infrastructure and incentives for other businesses which choose to locate within the TIF Zone. 1.3. Interpretation. In this Agreement, unless a clear contrary intention appears: (a) the singular number includes the plural number and vice versa; (b) reference to any Person includes such Person's successors and assigns but, if applicable, only if such successors and assigns are permitted by this Agreement, and reference to a Person in a particular capacity excludes such Person in any other capacity or individually; (c) reference to any gender includes each other gender; (d) reference to any agreement, document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof; (e) reference in this Agreement to any article, section, appendix, annex, schedule or exhibit means such article or section thereof or appendix, schedule or exhibit thereto; (f) each of the items or agreements identified on the attached Index of Exhibits is deemed part of this Agreement to the same extent as if set forth herein; (g) "hereunder", "hereof', "hereto" and words of similar import shall be deemed references to this Agreement as a whole and not to any particular article, section or other provision thereof; (h) "including" (and with correlative meaning "include") means including without limiting the generality of any description preceding such term; (i) relative to the determination of any period of time, "from" means "from and including" and "to" means "to but excluding;" and (j) reference to any constitutional, statutory or regulatory provision means such provision as it exists on the Effective Date and any amendatory provision thereof or supplemental provision thereto. 1.4. Accounting Terms. Unless expressly otherwise provided, accounting terms shall be construed and interpreted, and accounting determination and computations shall be made, in accordance with GAAP. 4 1.5. Leeal Representation of the Parties. This Agreement was negotiated by the parties hereto with the benefit of legal representation and any rules of construction or interpretation otherwise requiring this Agreement to be construed or interpreted against any party shall not apply to any construction or interpretation hereof or thereof. ARTICLE 2. DEFINITIONS All capitalized terms used in this Agreement shall have the meanings ascribed to them in this Article 2, or as otherwise provided herein. "380 Grants" has the meaning assigned thereto in Section 6.4.1 of this Agreement. "Accrued Management Fee Amount" has the meaning assigned thereto in Article 9 of this Agreement. "Actual Completion Date" means the date on which construction of the Facility is complete and the Facility opens for business to the public. "Actual Total Cost" means the actual total cost of developing and constructing the Facility and the Public Infrastructure upon completion. "Additional Bond Documents" means the Additional Bond Indenture, the Additional Bond Purchase Agreement, and all other documents related to the issuance of the Additional Bonds. "Additional Bond Indenture" means the trust indenture governing the issuance of the Additional Bonds, in form to be mutually agreed upon by the LGC and the Bond Purchaser. "Additional Bond Purchase Agreement" means the bond purchase agreement pursuant to which the Bond Purchaser will purchase the Additional Bonds from the LGC. "Additional Bonds" means up to $5,000,000 of bonds or other obligations which may be issued pursuant to Section 7.1 of this Agreement. "Affiliate" means any person, entity or group of persons or entities which controls the Developer, which the Developer controls or which is under common control with the Developer. As used herein, the term "control" shall mean the possession, directly or indirectly, of the power to direct or cause the direction of management and policies, whether through the ownership of voting securities, by contract or otherwise. "Agreement" means this Master Economic Development Agreement by and among the City, the County, the LGC and the Developer. "Annexed Property" means the real property annexed by the City pursuant to Section 4.3 of this Agreement. "Available City Sales Tax" has the meaning assigned thereto in Section 6.4.1 of this Agreement. 5 "Base Public Participation Amount" means $40,000,000, as set forth in Section 6.1 of this Agreement. "Bond Purchaser" means the Developer or one of its Affiliates. "Bond Trustee" means any trustee for any of the Bonds, as designated in the indenture governing such Bonds. "Bonds" means, collectively, the Public Facilities Bonds, the Additional Bonds, the Commercial Facilities Bonds, and any other obligations issued in accordance with this Agreement. All Bonds shall be subject to the provisions of Article 8 of this Agreement. "Business Day" means a day other than a Saturday, a Sunday, a legal holiday of the City, or a day on which the offices of the City are closed due to an executive order or a Force Majeure event. "Category 1 Costs" means the costs of the Public Facilities which are eligible for payment or reimbursement from tax increment financing under § 311.003 of the Texas Tax Code, and as further described in Section 3.3.2 of this Agreement. "Category 2 Costs" has the meaning assigned thereto in Section 3.3.2 of this Agreement. "Central City Resident" means an individual whose principal place of residence is located in the portions of the City identified as the "Central City" and "CDBG Eligible Areas" in the map attached hereto as Exhibit "G", which is hereby made a part of this Agreement for all purposes. For purposes of this Agreement, a Central City Resident is also a Fort Worth Resident. "CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act of 1980. "Certified M/WBE" means a minority or woman -owned business that has a principal office located in the City and has received certification as either a minority business enterprise (MBE) or a woman business enterprise (WBE) by either the North Texas Regional Certification Agency (NTRCA) or the Texas Department of Transportation (TxDOT), Highway Division. "City" means the City of Fort Worth, Texas. "City Council" means the city council of the City. "Closing Date" has the meaning assigned thereto in Section 8.3 of this Agreement. "Collateral Documents" means all documents and agreements contemplated under or executed pursuant to or in connection with either (i) this Agreement, or (ii) the issuance of any Bonds. 6 "Commercial Facilities Bond Documents" means the Commercial Facilities Bond Indenture, the Commercial Facilities Bond Purchase Agreement, and all other documents related to the issuance of the Commercial Facilities Bonds. "Commercial Facilities Bond Indenture" means the trust indenture governing the issuance of the Commercial Facilities Bonds, in form to be mutually agreed upon by the LGC and the Bond Purchaser. "Commercial Facilities Bond Purchase Agreement" means the bond purchase agreement pursuant to which the Bond Purchaser will purchase the Commercial Facilities Bonds from the LGC. "Commercial Facilities Bonds" means the bonds or other obligations to be issued pursuant to Section 6.4.2 of this Agreement. "Construction Costs" means the Category 1 Costs and Category 2 Costs, which shall in no event be less than $50,000,000. "Construction Indemnitees" has the meaning assigned thereto in Section 3.4.8 of this Agreement. "Construction Schedule" means the schedule governing construction of the Facility and the related Public Infrastructure as set forth on Exhibit "F" attached hereto. "Construction Spending Adjustment" has the meaning assigned thereto in Section 11.1 of this Agreement. "Contractor" has the meaning assigned thereto in Section 3.4.4(a) of this Agreement. "County" means Tarrant County, Texas. "Damages" has the meaning assigned thereto in Section 17.1 of this Agreement. "Determination of Taxability" means (a) the issuance of a published or private ruling or a technical advice memorandum by the Internal Revenue Service in which each of the City, the LGC and the Bond Purchaser has participated or has been given the opportunity to participate, and which ruling or memorandum the City, the LGC and the Bond Purchaser, each in its discretion, does not contest or from which no further right of judicial review or appeal exists, or (b) a final determination, from which no further right of appeal exists, of any court of competent jurisdiction in the United States in a proceeding in which the City, the LGC or the Bond Purchaser has participated or has been a party, or has been given the opportunity to participate or be a party, in either case, to the effect that the interest payable on the tax-exempt Bonds is included in the gross income of the holders thereof for federal income tax purposes, other than a person who is a "substantial user" or a "related person" of such substantial user within the meaning of the IRC. "Developer" means Cabela's Retail, Inc., a Nebraska corporation, and its successors and assigns. 7 "Developer's Funding Commitment" has the meaning assigned thereto in Section 6.1 of this Agreement. "Effective Date" means the date of this Agreement first above written. "Employment Adjustments" has the meaning assigned thereto in Section 11.2 of this Agreement. "Environmental Regulation(s)" means any and all present and future laws, statutes, ordinances, rules, regulations and orders of any Governmental Authority having jurisdiction over the parties hereto or any portion of the Site and pertaining to the protection of human health, Hazardous Substances, pollution, or the environment. "Facility" has the meaning assigned thereto in the Recitals to this Agreement. "Facility Costs" has the meaning assigned thereto in Section 3.3.1 of this Agreement. "Final Projected Category 1 Costs" has the meaning assigned thereto in Section 3.3.2 of this Agreement. "Force Majeure" means an event beyond the reasonable control of a party obligated to perform an act or take some action under this Agreement including, but not limited to, acts of God, earthquake, fire, explosion, war, civil insurrection, acts of the public enemy, acts of civil or military authority, sabotage, terrorism, floods, lightning, hurricanes, tornadoes, blue northers, severe snow storms or utility disruption, strikes, lockouts, major equipment failure or the failure of any major supplier to perform its obligations. "Fort Worth Company" means a business that has a principal office located within the corporate limits of the City. "Fort Worth Resident" means an individual whose principal place of residence is located within the corporate limits of the City. "Full-time Equivalent Job" means a job filled by (i) one (1) individual for a period of not less than forty (40) hours per week or (ii) two (2) or more individuals for a period of not less than forty (40) hours per week in the aggregate. "GAAP" means generally accepted accounting principles. "Governmental Authorities" shall mean any and all jurisdictions, entities, courts, boards, agencies, commissions, offices, divisions, subdivisions, departments, bodies or authorities of any nature whatsoever of any governmental unit (federal, state, county, district, municipality, city or otherwise), whether now or hereafter in existence. "Governmental Licenses" has the meaning assigned thereto in Section 15.1.8 of this Agreement. 8 "Hazardous Substance" means any substance that is defined or listed as a hazardous or toxic substance and which is regulated as such or may form the basis of liability under any present or future Environmental Regulation, or that is otherwise prohibited or subject to investigation or remediation under any present or future Environmental Regulation because of its hazardous, toxic, or dangerous properties, including, without limitation, (i) any substance that is a "hazardous substance" under CERCLA, and (ii) petroleum, natural gas, natural gas liquids, liquefied natural gas, and synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas), only to the extent that the constituents of such synthetic gas are released or threatened to be released into the environment. "Increment" has the meaning assigned to it in Section 311.012 of the Texas Tax Code. "Indemnitees" has the meaning assigned thereto in Section 17.1 of this Agreement. "Indemnitor" has the meaning assigned thereto in Section 3.4.8 of this Agreement. "IRC" means the Internal Revenue Code of 1986, as amended. "Liabilities" the meaning assigned thereto in Section 3.4.8 of this Agreement. "Lone Star Local Government Corporation" or "LGC" means the non-profit corporation established by the City pursuant to Subchapter D of Chapter 431 of the Texas Transportation Code for the purpose of issuing Bonds and administering the 380 Grants. "Management Agreement" means the Public Museum Facilities Management Agreement in substantially the form attached hereto as Exhibit "E". "Master Declaration" means an agreement substantially similar to the form attached hereto as Exhibit "D" which contains covenants and restrictions governing development of the property located within the TIF Zone. "Maximum 380 Grant Amount" has the meaning assigned thereto in Section 6.4.1 of this Agreement. "Maximum Additional Bond Principal Amount" has the meaning assigned thereto in Section 7.1 of this Agreement. "Person" shall mean any natural person, firm, partnership, association, corporation, limited liability company, trust, entity, public body or government or other entity. "Plans and Specifications" means the design and construction plans and specifications for the Facility and related Public Infrastructure as described in Section 3.4.3. "Present Value Adjustments" has the meaning assigned thereto in Section 11.5 of this Agreement. "Public Facilities" has the meaning assigned to it in Section 1.2. 9 "Public Facilities Bond Documents" means the Public Facilities Bond Indenture, the Public Facilities Bond Purchase Agreement, and all other documents related to the issuance of the Public Facilities Bonds. "Public Facilities Bond Indenture" means the trust indenture governing the issuance of the Public Facilities Bonds, in form to be mutually agreed upon by the LGC and the Bond Purchaser. "Public Facilities Bond Principal Amount" has the meaning assigned thereto in Section 6.2.1 of this Agreement. "Public Facilities Bond Proceeds" means the proceeds from the Public Facilities Bonds. "Public Facilities Bond Purchase Agreement" means the bond purchase agreement pursuant to which the Bond Purchaser will purchase the Public Facilities Bonds from the LGC. "Public Facilities Bonds" means bonds or other obligations to be issued pursuant to Section 6.2 of this Agreement. "Public Facilities Contract" has the meaning assigned thereto in Section 3.4.4(a) of this Agreement. "Public Infrastructure" means the streets, roads, water, wastewater and storm drainage, and other public improvements necessary in connection with the Facility as further shown on Schedule 1 attached hereto. "Public Museum Facilities" means those portions of the Facility which shall be constituted as a condominium unit to be owned by the LGC for use by the general public, including museum areas and other public improvements, as described in Section 3.2 of this Agreement and Schedule 3.2 attached hereto. "Public Museum Facilities Option Price" has the meaning assigned thereto in Article 9 of this Agreement. "Public Participation Amount" has the meaning assigned thereto in Section 6.1 of this Agreement. "Public Participation Amount Adjustments" has the meaning assigned thereto in Section 11.6 of this Agreement. "Records" has the meaning assigned thereto in Section 10.5 of this Agreement. "Reimbursable Expenditure" has the meaning assigned thereto in Section 11.4 of this Agreement. "Reimbursement Period" has the meaning assigned thereto in Section 11.4 of this Agreement. 10 "Required Completion Date" has the meaning assigned thereto in Section 10.1 of this Agreement. "Retail Facility" means that portion of the Facility which will be constituted as a condominium unit to be owned and operated by the Developer to specialize in the sale of hunting, fishing and outdoor gear, as described in the Plans and Specifications. "SARA" means the Superfund Amendments and Reauthorization Act of 1986. "Site" has the meaning assigned thereto in the Recitals to this Agreement. "State" means the State of Texas. "Subcontractors" has the meaning assigned thereto in Section 3.4.7 of this Agreement. "Supply/Service Spending Adjustments" has the meaning assigned thereto in Section 11.3 of this Agreement. "Taxable Rate" has the meaning assigned thereto in Section 8.1 of this Agreement. "Tax -Exempt Obligations" has the meaning assigned thereto in Section 5.2 of this Agreement. "Tax Savings Amount" has the meaning assigned thereto in Section 6.3 of this Agreement. "Termination Date" means the termination date of this Agreement, as defined in Section 14.2 of this Agreement. "TIF" or "TIF Zone" means the geographic area adjacent to and including the Site described by metes and bounds in Exhibit "B" hereto, to be designated by the City as a tax increment reinvestment zone eligible for tax increment financing under § 311.003 of the Texas Tax Code pursuant to Article 4 of this Agreement. "TIF Revenues" has the meaning assigned thereto in Section 4.1 of this Agreement. "TIF Term" has the meaning assigned thereto in Section 4.1 of this Agreement. "Tri-Party Agreement" means the agreement among the City, the LGC and the Board of Directors of the TIF Zone with respect to the administration of TIF Revenues and the development of the Public Facilities within the TIF Zone. "Utility Costs" has the meaning assigned thereto in Section 3.5.2 of this Agreement. 11 ARTICLE 3. DEVELOPMENT AND OPERATION OF THE FACILITY 3.1. Overview. Subject to the terms and conditions set forth in this Agreement, (a) the Developer shall acquire the Site and develop and construct the Facility on the Site and the related Public Infrastructure as contemplated in this Article 3, which will be financed in accordance with Article 6, (b) the Public Infrastructure will be conveyed to the City following completion in accordance with Section 3.5.2 and the Public Museum Facilities will be conveyed to the LGC following completion in accordance with Article 5, and (c) the LGC shall contract with the Developer to manage, operate and maintain the Public Museum Facilities in accordance with Article 5. 3.2. Public Facilities. The LGC, the City and the Developer agree that the Public Facilities will be owned by the City or the LGC for the benefit of and use by the general public pursuant to the Management Agreement. and shall be operated in accordance with State law and the rules, regulations and policies of the City for the benefit of the general public pursuant to the Management Agreement. During development and construction, the Developer shall keep separate records and accountings for the portion of the Facility designated as the Public Facilities. To the extent feasible, the construction contracts for the Public Facilities will be structured in order to avoid the payment of sales taxes on the cost of the materials used in construction of the Public Facilities. 3.3. Proiected Budget. 3.3.1. Facility Costs. The "Facility Costs" shall include the following: (a) costs of design and construction of the Facility in accordance with the Plans and Specifications, including without limitation costs of preparing the Site for construction and costs of all work undertaken because of environmental considerations, including any wetlands mitigation or monitoring air and water quality; (b) costs of the services of an architect and general contractors; (c) reasonable costs of legal counsel of the LGC, the City, the County, and the Developer with respect to the negotiation and consummation of this Agreement and the Collateral Documents and representation of the LGC, the City, the County, and the Developer in all other matters relating to the Facility; (d) reasonable fees and expenses of agencies having jurisdiction over the financing of the Facility, financial advisors, financial printers, bond counsel, legal counsel, underwriters, escrow agents, trustees, and other persons incurred in connection with obtaining the financings contemplated in this Agreement; (e) costs of the acquisition of the Site including title work, surveys, inspections, engineering reports, reasonable legal fees and expenses; (f) costs of furnishing and equipping the Facility in accordance with the Plans and Specifications; and 12 (g) any reasonable costs incurred by the Developer, the City or the LGC prior to the Effective Date of this Agreement. 3.3.2. Category 1 Costs and Category 2 Costs. The Developer has proposed and the City and the LGC have approved an estimated budget for the items included as part of the construction and development of the Public Facilities as set forth on "Exhibit C" (the "Category 1 Costs"). All Facility Costs other than the Category 1 Costs are collectively referred to herein as the "Category 2 Costs." Prior to the issuance of any Bonds, (i) the Developer and the LGC shall mutually agree in writing upon the final amount of the Category 1 Costs (the "Final Projected Category 1 Costs"). During development and construction of the Facility, the Developer shall promptly notify the LGC if at any time the Developer has reason to believe that either (i) the actual Category 1 Costs relating to the Facility to be completed by the Developer are reasonably likely to be more than five percent (5%) lower or higher than the Final Projected Category 1 Costs, or (ii) the Construction Costs are reasonably likely to be more than five percent (5%) lower than $50,000,000. In the event that the actual Category 1 Costs are reasonably likely to be more than five percent (5%) higher than the Final Projected Category 1 Costs relating to the Facility to be completed by the Developer, the Developer and the LGC shall mutually determine whether such increased expenditures are valid Category 1 Costs and, if determined that such increases are valid Category 1 Costs, the parties shall revise the Final Projected Category 1 Costs accordingly. In the event that the LGC in its reasonable discretion does not deem the increased costs to be valid Category 1 Costs, the Developer shall be responsible for paying all such increases; provided, however, the LGC may not unreasonably withhold its approval of increased expenditures due to previously unanticipated material shortages, construction requirements or other Force Majeure events which could increase the Category 1 Costs in a manner that could not have been reasonably anticipated by the parties when agreeing on the original Final Projected Category 1 Costs. 3.4. Development and Construction Responsibilities. 3.4.1. Developer's Responsibilities. The Developer shall, at its cost and expense, (i) acquire the Site and (ii) cause the Facility to be constructed and developed on the Site as contemplated in this Agreement. The Developer shall proceed diligently with construction of the Facility and related Public Infrastructure pursuant to the Construction Schedule and shall use reasonable efforts to cause construction to be completed so that the Facility and related Public Infrastructure opens for business to the public no later than the Required Completion Date, subject only to delays caused by Force Majeure events. 3.4.2. Compliance with Law by Developer. The Developer shall conduct all its activities in compliance with all applicable laws, ordinances, rules and regulations of any governmental authority, including without limitation all applicable licenses, permits, building codes, restrictive covenants, zoning and subdivision ordinances and flood disaster and environmental protection laws. The Developer shall, or shall cause the architect, the general contractors and the subcontractors to, obtain all necessary permits, licenses and approvals to construct the Facility in accordance with the Plans and Specifications, and shall provide copies thereof to the LGC. The Developer acknowledges that the City will not waive any fees or related expenses for any permits, 13 licenses or approvals that must be obtained from the City in connection with the construction and operation of the Facility. 3.4.3. Design and Construction of the Facility. The Facility (including the Public Facilities) shall be designed, constructed and equipped in accordance with the Plans and Specifications, in all material respects, which will be prepared by or under the direction of the Developer, and the final form of which will be subject to approval by the City and the LGC within twenty (20) Business Days after submission by the Developer to the City and the LGC, which approval shall not be unreasonably withheld. Once so approved, the Plans and Specifications shall be incorporated as part of this Agreement for all purposes. Unless otherwise required by law, rule, regulation or interpretation by an agency of the State, the Developer will not be required to bid construction contracts for the Facility in accordance with the statutory provisions governing the competitive bidding of construction projects by the City; provided, however, that the Developer shall comply with Section 10.2 of this Agreement with regard to contracting for construction of the Facility. 3.4.4. Obligations Specific to the Public Facilities. (a) Contract for Public Facilities. The Developer will enter into a contract or contracts with third party contractors (each a "Contractor"), to outline and oversee all work on the construction of the Public Facilities (each a "Public Facilities Contract"). A Public Facilities Contract (i) may be separate from contracts that the Developer executes for construction of the portions of the Facility that are not Public Facilities, or (ii) may be contained in contracts for construction of the entire Facility (including the Public Facilities) so long as such contracts contain appropriate terms requiring all parties to maintain separate records and accounting for construction of (x) the Public Facilities and (xx) the other portions of the Facility. Regardless of form, all Public Facilities Contracts must contain indemnification provisions acceptable to the City and the LGC, and shall be subject to the prior written approval of the LGC, which shall not be unreasonably withheld. Upon receiving a copy of any Public Facilities Contract from the Developer, the City or the LGC, as appropriate, shall provide comments (if any) or written approval within ten (10) Business Days after receiving the same. If the LGC or the City do not provide comments or written approval within said period, the City and the LGC shall be deemed to have approved of the Public Facilities Contract, and the Developer shall have the right to execute the same. Each Public Facilities Contract must meet the requirements of this Agreement specifically including, without limitation, those of Sections 3.4.6, 3.4.7 and 3.4.8, as well as the requirements of all Public Facilities Bond Documents. (b) Management of Construction of the Public Facilities. The Developer shall perform the usual and necessary management services incident to projects of the nature and scope of the construction and installation of the Public Facilities. The Developer shall thoroughly inspect the work of all Contractors and all subcontractors undertaking work on the Public Facilities. In addition, the Developer shall use its best efforts to fully and completely settle, by litigation or otherwise, any claims of any Contractor or subcontractor relating to or arising out 14 of the construction and/or installation of the Public Facilities or performance or non-performance under any Public Facilities Contract without involving the LGC. (c) Monthly Certificates Related to Public Facilities. During construction and until the Actual Completion Date, the Developer shall submit monthly certificates, signed by an officer or appointed agent of the Developer and any applicable general contractor, to the City and the LGC that state, as of a date certain: (i) the specific work on the Public Facilities that has been completed since the last monthly report; (ii) the amount of money that the Developer has paid for completion of such work and that the Developer intends to claim as a Category 1 Cost; and (iii) the Developer's calculation of the estimated cost remaining to complete the development and construction of the Public Facilities. Upon receipt of any such certificate, the City and the LGC shall have ten (10) Business Days to notify the Developer in writing of any objection that the City or the LGC may have as to the amount of money that the Developer has paid or as to the Developer's calculation of the estimated cost remaining to complete the construction and installation of the Public Facilities. The grounds for any such objection shall be limited, respectively, to a good faith determination by the City and the LGC that the amount of money paid by or on behalf of the Developer is not sufficiently supported by a respective Public Facilities Contract or does not otherwise qualify as a Category 1 Cost under this Agreement. If the Developer disagrees with such objection, the City and the LGC and the Developer shall diligently work in good faith to resolve the dispute. 3.4.5. Review by City and LGC. The City, the LGC and any authorized designee shall have the right to review and inspect the design and construction of the Public Facilities in order to make sure that such construction is performed and completed in all material respects in accordance with the Plans and Specifications. The Developer shall provide access to the Site during normal business hours for the City, the LGC and any authorized designee to undertake such reviews and inspections. If either the City or the LGC, in its reasonable discretion, determines in good faith that the design and/or the construction of the Public Facilities is not being performed in any material respect in accordance with the Plans and Specifications, then the City or the LGC, after consulting with the Developer, shall have the right to deliver written notice thereof to the Developer, in which event the Developer shall promptly cause each deficiency to be corrected in all material respects in conformity with the Plans and Specifications except in the case of those deficiencies with respect to which the Developer and the City or the LGC have agreed in writing either that the deficiency requires no corrective action or that the deficiency may be corrected over time in accordance with a specific corrective action. In the event that the Developer breaches its covenant in the immediately preceding sentence, then the City or the LGC shall have the right to (A) take any and all actions to remedy such breach, (B) issue written instructions to the architect, the general contractors, and any other person or entity performing design and/or construction work for the Public Facilities to cease construction until such deficiencies are corrected, and/or (C) obtain appropriate injunctive relief to prohibit the Developer, the architect, the general contractors, and any other person or entity performing design and/or construction work for the Public Facilities from proceeding with construction until such deficiencies are corrected. 15 3.4.6. Insurance Requirements. (a) The Developer shall ensure that the general contractors and architect shall, at their sole expense, maintain in effect at all times during the full term of the construction of the Facility, insurance coverages substantially consistent with that required by Developer on other similar projects with insurers licensed to do business in the jurisdiction where the Site is located and reasonably acceptable to the LGC and the Developer. Such insurance shall be written on forms of policies reasonably satisfactory to the LGC and the Developer. (b) The Developer shall provide the City and the LGC with evidence of the insurance coverage required to be maintained under Section 3.4.6(a) above. The Developer shall provide the City and the LGC within ten (10) Business Days of any change in coverage evidence of such changes in coverage. 3.4.7. Release and Waiver. General contractors and all subcontractors ("Subcontractors"), including without limitation all Contractors, architects and engineers, shall release, and shall use best efforts to cause their insurers to release, the City, the LGC, the Developer, and the other Construction Indemnitees (as defined in Section 3.4.8) from any and all claims or causes of action whatsoever which they or their insurers might otherwise possess resulting in or from or in any way connected with any loss covered or which should have been covered by insurance, including the deductible portion thereof, maintained and/or required to be maintained pursuant to this Agreement, the construction contract, the architect agreement, or any other contract or subcontract. 3.4.8. Indemnity. The Developer shall ensure that the following indemnity provision substantially in the form of the following is incorporated in the construction contracts, including without limitation all Public Facilities Contracts, the architect agreement, and all other contracts and subcontracts, as applicable: "To the fullest extent permitted by applicable law, [General Contractors] [Subcontractors] ("Indemnitor") shall indemnify, protect, defend and hold harmless [the LGC], [the City], [the Trustee], [the Developer] and each of their respective agents, employees, affiliated companies, successors and assigns (collectively, "Construction Indemnitees") for, from and against all liabilities, claims, damages, fines, penalties, losses, liens, causes of action, costs, and expenses (including court costs, attorneys' fees and costs of investigation) of any nature, kind or description of any person or entity, directly or indirectly arising out of, caused by, or resulting from (in whole or in part), (1) the services or work performed hereunder, (2) this Agreement, or (3) any act or omission of Indemnitor, anyone directly or indirectly employed by Indemnitor, or anyone that Indemnitor controls or exercises control over (collectively, "Liabilities"). Indemnitor shall promptly advise [the LGC] and [the Developer] in writing of any action, administrative or legal proceeding or investigation as to which this indemnification may apply, and Indemnitor, at its expense, shall assume on behalf of [the LGC] and [the Developer] (and the other Construction Indemnitees) and conduct with due diligence and in good faith the defense thereof with counsel satisfactory to [the 16 LGC] and [the Developer]; provided, however, that [the LGC] and [the Developer] shall each have the right, at their option, to be represented therein by advisory counsel of their own selection and at their own expense. This indemnification shall not be limited to damages, compensation or benefits payable under insurance policies, workers' compensation acts, disability benefit acts or other employees' benefit acts." 3.5. Other Improvements. 3.5.1. Hiehwav Improvements. The Developer, the City, and the County recognize the importance of certain highway improvements being made by the State of Texas, and each agrees to use all reasonable efforts to seek the funding and construction by the Texas Department of Transportation of any access interchanges, road widening and other infrastructure deemed reasonably necessary to allow easy access to the Facility and the other businesses that will locate in the TIF Zone. 3.5.2. Public Infrastructure. After the Developer has completed the Public Infrastructure and the City has determined that the Public Infrastructure meets City standards, the Developer shall convey and the City shall accept dedication of the Public Infrastructure. Upon such dedication and acceptance, the City shall be responsible for maintaining the Public Infrastructure in a manner consistent with similar infrastructure maintained by the City outside of the TIF Zone. 3.6. Taxidermy. The Developer, the City, and the County shall work with any agency of the State of Texas and within their respective jurisdictions, to obtain taxidermy specimens that are owned by said governmental entities which can be donated for permanent placement and display at the Public Museum Facilities at no charge to the City, the County, or the Developer. The LGC and the Developer, at the Developer's expense, shall provide appropriate plaques or otherwise visibly credit the respective donor of each taxidermy specimen that is donated for this purpose and accepted by Developer for display. 3.7. Covenants and Restrictions. Within thirty (30) days following the Effective Date of this Agreement, the Developer and all other owners of the property located within the TIF Zone shall execute and file in the official real property records of Tarrant County, Texas, a Master Declaration of Covenants and Restrictions (the "Master Declaration") in substantially the form attached hereto as Exhibit "D". which contains covenants and restrictions governing development of the property located within the TIF Zone. ARTICLE 4. THE TIF AND ANNEXATION 4.1. TIF Formation. The City will use reasonable efforts consistent with applicable law to form a Tax Increment Financing Reinvestment Zone in accordance with Section 311.005(a)(2) of the Texas Tax Code covering the TIF Zone at the earliest practicable date. The City and County shall participate in the TIF. The City and the County will also attempt to secure the participation of all other eligible taxing units in the TIF; provided, however, that the parties understand and agree that Northwest Independent School District will not participate in the TIF or contribute its Increment. Subject to Section 14.5.1, the City and the 17 County shall contribute into the tax increment fund of the TIF the following percentages of their respective Increment related to the TIF: g_q County Payment Years Percentage Payment Years Percentage 1-15 100% 1-5 80% 16-21 90% 6-10 70% 11-20 50% Any other taxing units which elect to participate in the TIF shall contribute the percent of their Increment that such taxing units agree to contribute. The City anticipates paying to the LGC monies on deposit in the tax increment fund ("TIF Revenues") for the purpose of discharging obligations arising out of the Bonds and other costs, expenses, and obligations incurred by the TIF Zone, the LGC and/or the City under the terms of the Tri-Party Agreement. Unless earlier terminated pursuant to this Agreement, the term of the TIF (the "TIF Term") will expire upon the earlier of (i) subject to the proviso in Section 18.1 hereof, the date on which the Public Participation Amount (as adjusted pursuant to Article 11 of this Agreement) has been reduced to zero, (ii) the date the Public Facilities Bonds have been retired or (iii) December 31, 2025. If, at the expiration of the TIF Term, TIF Revenues exist which are not required to be paid toward satisfaction of the Public Participation Amount, such remaining TIF Revenues will be distributed into the general funds of the City, the County and any other participating taxing unit in the proportion of each unit's contributions to the TIF for the tax year most recently ended. 4.2. TIF Projects. TIF Revenues may be used to reimburse or pay for the Category 1 Costs described in the project and financing plan for the TIF, and as otherwise allowed by Section 311.014 of the Texas Tax Code. The City, the County and the Developer anticipate that various projects described in the project and financing plan for the TIF will benefit the Site and result in lower costs of development of the Site by the Developer than would otherwise occur without the TIF's existence. However, this Agreement does not and shall not be construed to obligate the City or the County to use any City or County funds other than TIF Revenues and the proceeds of Public Facilities Bonds for payment or reimbursement of any public works or public improvements within the TIF Zone or that directly benefit the TIF, whether or not the City or the County would or could be reimbursed from TIF Revenues for such projects. 4.3. Annexation. As soon as reasonably practicable after the Effective Date of this Agreement and prior to the creation of the TIF Zone (or as soon thereafter as practicable), the City shall use all reasonable efforts to annex into the City, to the extent permitted by law, all land included (or to be included) within the TIF Zone which is not already within the corporate limits of the City (the "Annexed Property"). Further, the City will use its good faith efforts to secure appropriate adjustment of any extraterritorial jurisdiction boundaries in order to accomplish efficient development of the land located within the TIF Zone. The Developer and the County shall cooperate and in no way oppose such annexation and adjustment of the City's extraterritorial jurisdiction. 18 ARTICLE 5. PUBLIC FACILITIES 5.1. Conveyance of the Public Facilities. After issuance of the Public Facilities Bonds and upon completion of construction, issuance of a certificate of occupancy, and acceptance by the City or the LGC, as appropriate, the Developer shall convey (i) the Public Infrastructure that is on land owned by Developer to the City as described in Section 3.5.2 and (ii) the Public Museum Facilities to the LGC pursuant to the Management Agreement by a special warranty deed or such other form of deed as agreed by the parties. 5.2. Manaiement of the Public Museum Facilities. It is anticipated that the Public Museum Facilities Bonds will be issued as obligations described in Section 103 of the IRC ("Tax -Exempt Obligations"). The Developer and the LGC shall execute a Management Agreement in substantially the form attached hereto as Exhibit "E", to be effective as of the date of conveyance of the Public Museum Facilities whereby the Developer shall assume responsibility for the maintenance, operation and improvement of the Public Museum Facilities on behalf of the LGC. The parties acknowledge and agree that if, as a condition to the issuance of Tax -Exempt Obligations, the Management Agreement must comply with the qualified management contract guidelines set forth in Revenue Procedure 97-13 released by the Internal Revenue Service, then the form of Management Agreement will be revised to comply with such guidelines. The parties further acknowledge that should the Developer or any Affiliate thereof be treated as a "principal user" of the Public Museum Facilities, then interest on the Public Facilities Bonds, while owned by the Developer or an Affiliate, may not be exempt from federal income taxation. ARTICLE 6. FINANCING 6.1. Cost of Construction. The Developer shall be responsible for all costs of development and construction of the Facilities including without limitation all Facility Costs; provided, however, that the Developer shall be reimbursed for the Category 1 Costs and shall be provided with 380 Grants as provided herein; and provided further, that the total amount reimbursed and provided to the Developer shall not exceed a total maximum principal amount equal to $40,000,000 subject to the terms of this Agreement (the "Base Public Participation Amount"). The Base Public Participation Amount may be adjusted as provided in Article 11 of this Agreement (as adjusted from time to time, the "Public Participation Amount"). The Developer will receive the benefit of the Public Participation Amount through a combination of the following components: (i) the Public Facilities Bonds, (ii) the Tax Savings Amount, and (iii) the 380 Grants (and/or Commercial Facilities Bonds if the LGC elects to issue such bonds), all as described in this Article 6. Except to the extent the City, in its sole discretion, provides additional sources of funds, the Public Participation Amount will be funded solely from, and only to the extent generated by, the sources described in this Article 6. The Public Participation Amount will not include the Additional Bonds described in Article 7 below. Notwithstanding anything to the contrary, the Developer shall be responsible for and shall finance the entire cost of the development and construction of the Facility subject to reimbursement as provided herein. The "Developer's Funding Commitment" shall include any amount by which the Actual Total Cost of developing and constructing the Facility exceeds the amount that the Developer actually receives pursuant to the terms of this Agreement. 19 6.2. Public Facilities Bonds. 6.2.1. Issuance of the Public Facilities Bonds. As part of the Public Participation Amount, the LGC will issue Public Facilities Bonds in an approximate principal amount equal to the Final Projected Category 1 Costs or such other amount agreed upon by the City, the LGC and the Developer based on the estimated cost of the Public Facilities and a reasonable projection of cash flow available to service the Public Facilities Bonds (the "Public Facilities Bond Principal Amount"). In no event may the Public Facilities Bond Principal Amount exceed the Final Projected Category 1 Costs. The Public Facilities Bond Proceeds will be used only for development and construction of the Public Facilities (or reimbursements to the Developer for funds advanced for such purposes). The interest rate on the Public Facilities Bonds shall be fixed at (i) 4.75% per annum if the Public Facilities Bonds are Tax -Exempt Obligations and (ii) 7% per annum if the Public Facilities Bonds are not Tax -Exempt Obligations. The specific terms of the Public Facilities Bonds shall be as mutually approved by the LGC and the Bond Purchaser, and shall be, subject to then prevailing market conditions and applicable laws, payable over a term not to exceed twenty (20) years, all of which will be set forth in greater detail in the Public Facilities Bond Documents. The Public Facilities Bonds will be secured solely by a pledge of (i) the TIP Revenues and (ii) to the extent any such Bonds are issued as Bonds that are not Tax -Exempt Obligations, by 380 Grants. 6.2.2. Purchase of the Public Facilities Bonds. The Developer agrees and warrants that it (or an Affiliate) will purchase all of the Public Facilities Bonds up to an aggregate principal amount equal to the Public Facilities Bond Principal Amount pursuant to the Public Facilities Bond Purchase Agreement. Such purchase by the Bond Purchaser shall be in one or more installments as needed to pay or reimburse the Developer for costs of developing and constructing the Public Facilities. Each installment purchase shall be in cash in an amount equal to the principal amount of that installment of the Public Facilities Bonds. Although the Bond Purchaser will initially purchase and hold the Public Facilities Bonds for its own account, the Bond Purchaser will be permitted to sell the Public Facilities Bonds in accordance with any customary restrictions contained in this Agreement and the Public Facilities Bond Indenture, including, without limitation, that, unless the Public Facilities bonds are rated in one of the three highest rating categories by at least one nationally recognized rating service, such Bonds may be transferred only to qualified institutional buyers. The foregoing notwithstanding, the Bond Purchaser will not sell any Bonds that are issued as Tax - Exempt Obligations unless the Bond Purchaser obtains an opinion of nationally recognized bond counsel that the interest on such Bonds, as of such date, is excludable from "gross income" of the holder for purposes of federal income taxation. 6.3. Ad Valorem Tax Saving. Subject to Sections 3.2, 5.2 and 5.3 of this Agreement, the Public Museum Facilities will be conveyed to the LGC following completion of development and construction. It is anticipated that the Public Museum Facilities will be exempt from ad valorem taxation by virtue of ownership by the LGC. The parties acknowledge and agree that the reduced ad valorem tax liability resulting from the LGC's ownership of the Public Museum Facilities will result in a material benefit to the Developer. Therefore, the City and the LGC will, from time to time, receive a credit against the Public Participation Amount in an amount (the "Tax Savings Amount") equal to the difference between (i) the total amount of all ad valorem taxes that would have been payable with respect to the Public Museum Facilities (but 20 for LGC ownership) to all taxing units during the period of LGC ownership of the Public Museum Facilities, including without limitation those that would have been payable to the City, the County, and the Northwest Independent School District, and (ii) the amount of all ad valorem taxes that the Developer actually pays during the same period, if any. 6.4. 380 Grants. 6.4.1. Source of 380 Grants. The City represents that (i) the current aggregate sales tax rate in the City as of the Effective Date is eight and one -quarter percent (8.25%), of which one percent (1%) is the portion of the City's share that is herein designated as the available share (the "Available City Sales Tax"), and (ii) inventory and personal property taxes are assessed based upon the same tax rate as is utilized to calculate ad valorem taxes on real property. The City shall provide, subject to annual appropriation and to the extent now or hereafter permitted by law, one or more economic development grant(s) pursuant to Chapter 380 of the Texas Local Government Code (the "380 Grants") in an amount equal to sixty-seven percent (67%) of the sum of (i) the Available City Sales Tax revenues received by the City from the Site and (ii) the inventory and personal property taxes collected by the City from the Site. Notwithstanding anything to the contrary, the total amount of the 380 Grants will in no event exceed the Maximum 380 Grant Amount. The "Maximum 380 Grant Amount" shall be the amount necessary to cause the Public Participation Amount (as adjusted from time to time pursuant to Article 11 of this Agreement) to be reduced to zero, subject to the proviso in Section 18.1 hereof, after giving credit for the Tax Savings Amount. The 380 Grants shall be paid, subject to annual appropriation, in twenty-one separate installments, beginning on June 1 in the year after the Actual Completion Date and continuing through June 1 of the year which is twenty-one (21) years after the Actual Completion Date. By way of example, if the Actual Completion Date is June 1, 2005, the first 380 Grant payment will encompass sixty-seven percent (67%) of the sum of the Available City Sales Tax and the inventory and personal property taxes collected by the City from the Site from June 1, 2005 through December 31, 2005, which shall be payable on June 1, 2006, and the last 380 Grant payment will encompass sixty-seven percent (67%) of the sum of the Available City Sales Tax and the inventory and personal property taxes collected by the City from the Site from January 1, 2025 through May 31, 2025, which shall be payable on June 1, 2026; provided, however, the 380 Grants shall terminate earlier in the event that this Agreement has terminated pursuant to its terms. The City, at its sole discretion and subject to the terms of the Commercial Facilities Bond Documents, if any, may make the 380 Grants directly to the Developer or to the LGC for the benefit of the Developer. 6.4.2. Commercial Facilities Bonds. In lieu of or in combination with the 380 Grants, the LGC may elect with consent of the Developer (which will not be unreasonably withheld) to issue bonds ("Commercial Facilities Bonds") pursuant to the laws of the State, which may be secured, in whole or in part, by the 380 Grants. (a) Issuance of the Commercial Facilities Bonds. The Commercial Facilities Bonds may be issued in installments and in one or more series as funds are needed or as the LGC determines at its sole discretion. The total principal amount of the Commercial Facilities Bonds issued during the term of this Agreement shall in no event exceed the Maximum 380 Grant Amount. The 21 structure, maturities, provisions and specific terms of the Commercial Facilities Bonds shall be as mutually approved by the LGC and the Bond Purchaser, and shall be, subject to then prevailing market conditions and applicable laws, payable over a term not to exceed the term of the 380 Grants, all of which will be set forth in greater detail in Commercial Facilities Bond Documents. The Commercial Facilities Bonds will be secured solely by a "subject to appropriation" pledge of the 380 Grants; provided, however, that the LGC, with the City's consent and to the extent permitted by law, including without limitation, the TIF Act, may elect, in its sole discretion, for the Commercial Facilities Bonds to be additionally secured by a pledge of the TIF Revenues. (b) Purchase of the Commercial Facilities Bonds. The Bond Purchaser agrees and warrants that it (or an Affiliate) will purchase all of the Commercial Facilities Bonds pursuant to the Commercial Facilities Bond Purchase Agreement. Such purchase by the Bond Purchaser shall be in one or more installments as needed to pay or reimburse itself for costs of developing and constructing the Facility. Each installment purchase shall be in cash in an amount equal to the principal amount of that installment of the Commercial Facilities Bonds. Although the Bond Purchaser will initially purchase and hold the Commercial Facilities Bonds for its own account, the Bond Purchaser may sell the Commercial Facilities Bonds in accordance with any customary restrictions contained in this Agreement and the Commercial Facilities Bond Indenture, including, without limitation, that, unless the Public Facilities bonds are rated in one of the three Highest rating categories by at least one nationally recognized rating service, such Bonds may be transferred only to qualified institutional buyers. ARTICLE 7. ADDITIONAL BONDS 7.1. Issuance of Additional Bonds. In addition to the Public Participation Amount, the LGC may, at its own instance or upon the Developer's request, issue additional bonds ("Additional Bonds") in an amount mutually agreed upon by the LGC and the Developer, but not to exceed $5,000,000 (the "Maximum Additional Bond Principal Amount"), the proceeds of which may be used to provide assistance or incentives to encourage development within the TIF Zone by businesses other than the Developer. If issued, the Additional Bonds will be subordinate to any outstanding Public Facilities Bonds and to any outstanding Commercial Facilities Bonds. The structure, maturities, provisions and specific terms of the Additional Bonds shall be as mutually approved by the LGC and the Bond Purchaser, and shall be, subject to then prevailing market conditions and applicable laws, payable over a term not to exceed twenty (20) years, all of which will be set forth in greater detail in the Additional Bond Documents. The Additional Bonds may be secured solely by a pledge of the TIF Revenues, by 380 Grants or by a combination of TIF Revenues and 380 Grants; provided, however, that the City or the LGC may elect to provide all or a portion of such Maximum Additional Bond Principal Amount from any other available funds; provided, further, that TIF Revenues may secure Additional Bonds only to the extent that the Additional Bonds so secured are issued to finance public works or public improvements described in the project and financing plan for the TIF Zone. 22 7.2. Purchase of the Additional Bonds. The Bond Purchaser agrees and warrants that if Additional Bonds are issued, in an amount which was mutually agreed upon by Developer in accordance with Section 7.1, the Bond Purchaser will purchase all of the Additional Bonds issued by the LGC up to an aggregate principal amount equal to the Maximum Additional Bond Principal Amount pursuant to the Additional Bond Purchase Agreement. Such purchase by the Bond Purchaser shall be in one or more installments. Each installment purchase shall be in cash in an amount equal to the principal amount of that installment of the Additional Bonds. Although the Bond Purchaser will initially purchase and hold the Additional Bonds for its own account, the Bond Purchaser may sell the Additional Bonds in accordance with any customary restrictions contained in this Agreement and the Additional Bond Indenture, including, without limitation, that, unless the Additional Bonds are rated in one of the three highest rating categories by at least one nationally recognized rating service, such Bonds may be transferred only to qualified institutional buyers. The foregoing notwithstanding, the Bond Purchaser will not sell any Bonds that are issued as Tax -Exempt Obligations unless the Bond Purchaser obtains an opinion of nationally recognized bond counsel that the interest on such Bonds, as of such date, is excludable from "gross income" of the holder for purposes of federal income taxation. 7.3. Bond Purchaser's Refusal to Purchase Additional Bonds. The Developer agrees and acknowledges that if the Bond Purchaser chooses not to commit to purchase the Additional Bonds, the LGC will not be required to issue any Additional Bonds, and the LGC will not be required to fund or provide any economic incentive or benefit to the Developer or any third party in place of the Additional Bonds. Nothing in this Article 7 shall prohibit the LGC from issuing Additional Bonds even if the Bond Purchaser refuses to purchase the Additional Bonds; provided, however any such Additional Bonds shall be subordinate to any outstanding Public Facilities Bonds and any outstanding Commercial Facilities Bonds. ARTICLE 8. GENERAL PROVISIONS APPLICABLE TO ALL BONDS, 8.1. General Provisions. The provisions of this Article 8 are applicable to all Bonds that may at any time be issued pursuant to this Agreement, including the Public Facilities Bonds, the Commercial Facilities Bonds and/or the Additional Bonds. The Bonds will be issued, to the extent permitted by applicable law, as Tax -Exempt Obligations; provided, however, that it is expected that not all of the improvements that comprise the Facility will qualify to be financed with Tax -Exempt Obligations. Tax -Exempt Obligations will earn interest at a rate of four and three-quarters percent (4.75%) per annum, and taxable Bonds will earn interest at a rate of seven percent (7%) per annum (the "Taxable Rate"). To the extent permitted by law, the Bonds will provide for the compounding of interest in the manner provided by Section 1204.005(b) of the Texas Government Code; provided, however, that the net effective interest rate on the Bonds may not exceed the maximum rate of interest permitted under Section 1204.006, Texas Government Code. Any Bonds that are issued as Tax -Exempt Obligations will contain a provision that upon a Determination of Taxability the interest rate shall automatically adjust to the Taxable Rate effective as of the date the Determination of Taxability becomes effective. The parties agree that all revenues pledged to the repayment of the Bonds (except any revenues used to fund the 380 Grants) shall be transferred to a Trustee (to be named in the respective bond indenture) within thirty (30) Business Days after said revenues are received by the LGC. The respective bond indenture will provide that the trustee will then utilize said funds to pay down the respective Bonds on at least an annual basis. If Commercial Facilities Bonds are issued, the Developer and the LGC agree that all funds to be used to fund the 380 Grants shall also be 23 transferred to the trustee named in the Commercial Facilities Bond Indenture within thirty (30) Business Days after said funds are transferred to the LGC or the Developer by the City; provided, however, such transfer shall occur on at least an annual basis. The Bonds (i) will be special, limited obligations of the LGC, (ii) will be non -recourse (no personal liability) to the City or the LGC or their respective members, directors, officers, employees and agents, (iii) will never be secured by or payable from the general credit or taxing power of the City or the LGC and (iv) will be issued in one series and delivered in installments to the Bond Purchaser as reimbursable Facility Costs are incurred. The Bonds will be structured in such a manner that should the revenue sources pledged to the payment of debt service on the Bonds not be sufficient to provide for the timely payment of scheduled debt service, the LGC shall not be deemed to be in default under the terms of the Bonds. 8.2. Conditions to the Obligations of the LGC to Issue any Bonds. The LGC shall have no duty or obligation to issue, or to deliver any installment of, Bonds unless and until the following conditions have either been satisfied or waived in writing by the LGC: 8.2.1. Representations and Warranties; Performance of Obligations. (a) The Developer is not in material default under the terms of this Agreement; (b) The representations and warranties of the Developer set forth in this Agreement and in each certificate, agreement, document or instrument delivered pursuant hereto on or before the relevant Closing Date or in connection with the transactions contemplated hereby on the relevant Closing Date shall be true and correct in all material respects on the date of this Agreement and on the relevant Closing Date as though made on and as of such Closing Date; and (c) The Developer shall have timely performed in all material respects all of the covenants, agreements and obligations hereunder to be performed by the Developer on or prior to the relevant Closing Date, and shall not be in default under this Agreement or any Collateral Document delivered pursuant hereto on or before the relevant Closing Date. 8.2.2. Terms Satisfactory. The form and terms of Bonds and the Collateral Documents shall have been approved by the Board of Directors of the LGC in accordance with Texas law, and all necessary documents shall have been executed by the respective parties. 8.2.3. City Council Approval. The City Council shall have approved the form and terms of the Bonds and their issuance and taken all action required by law to approve such issuance in accordance with State law. 8.2.4. Approvals. All approvals, consents and permits from the Attorney General of the State and other Governmental Authorities shall have been obtained as required by law to issue the Bonds. 8.2.5. Lie al Opinions. Each of the LGC's Co -Bond Counsel and the Developer's legal counsel shall have delivered to the LGC and Bond Purchaser legal 24 opinions containing such opinions and being in such form as the LGC and the Bond Purchaser may reasonably request. 8.2.6. Other Matters. The Developer shall have delivered to the LGC, in form and substance satisfactory to the LGC, such certificates and other evidence as the LGC may reasonably request to confirm the satisfaction of the conditions contained in this Section 8.2 which are within the control of the Developer. 8.2.7. No Material Adverse Change. Since the Effective Date of this Agreement, no material adverse change shall have occurred in the financial condition, assets, liabilities or business prospects of the Developer. 8.2.8. No Iniunction or Restraints. There shall be no temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal restraint or prohibition questioning this Agreement or any obligation contained herein or preventing the collection and payment to the LGC of the revenues to be pledged as security for the Bonds or interfering with the use thereof by the LGC. 8.3. Closing of the Bonds. If and when all conditions set forth in this Agreement have been satisfied or waived in writing, then the delivery of the Bonds shall be closed at the offices of Kelly, Hart & Hallman, 201 Main Street, Suite 2500, at 10:00 A.M., Central Time on the date (the "Closing Date") mutually agreed to by the Developer and the LGC for that series of Bonds. 8.4. Separate Obligations of the Developer. The payment of all indebtedness and obligations incurred by the Developer in connection with the development and construction of the Facility, its operations or the Developer's Funding Commitment or any other activity shall be the sole obligations of the Developer. Neither the City nor the LGC shall not be obligated to pay any indebtedness or obligations of the Developer, and shall only be obligated to furnish a portion of the funds for the financing of the design and construction of the Facility in accordance with the terms and conditions of this Agreement. 8.5. Approval of Bond Terms. The LGC and Bond Purchaser shall mutually agree upon the selection of trustees and other financial consultants in connection with the issuance of any Bonds. All Collateral Documents shall be prepared by the LGC or its designee. The City Council and the Board of Directors of the LGC will not meet to approve the issuance of the Bonds until the interest payment schedule, principal amortization schedule, the terms of the pledged revenues, maturity and prepayment provisions and all other terms of the Bonds have been approved in writing by the Bond Purchaser. The foregoing notwithstanding, the LGC shall be under no obligation to issue the Bonds until such time as the Collateral Documents have been negotiated to the mutual satisfaction of all parties thereto. In addition, the financial terms, issuance and sale of the Bonds shall be subject to the prior approval of the Attorney General of the State of Texas. The City, County, LGC and Developer each acknowledge and agree to work in good faith to ensure that the timeline set forth in the Plans and Specifications for development of the Site and Facility can be met. 25 ARTICLE 9. OPTION TO PURCHASE THE PUBLIC FACILITIES Upon the earlier to occur of (i) July 1, 2026, (ii) the payment or satisfaction of the Public Participation Amount (as adjusted pursuant to Article 11 of this Agreement, (iii) the date the Public Facilities Bonds have been retired, or (iv) the termination of this Agreement, the Developer shall have the option to purchase from the LGC and the LGC shall have the option to require the Developer to purchase from the LGC, the Public Museum Facilities at the Public Museum Facilities Option Price. The "Public Museum Facilities Option Price" shall be equal to the Fair Market Value of the Public Facilities as of the date of the purchase of the Public Museum Facilities, less the amount of the Management Fees accrued and unpaid by the LGC under the Management Agreement on the date of the exercise of the purchase option (the "Accrued Management Fee Amount"); provided, however, that in the event the Accrued Management Fee Amount is greater than the Fair Market Value of the Public Museum Facilities, then the Public Museum Facilities Option Price shall be zero. In no event shall the LGC have any liability to pay any Accrued Management Fees to the Developer or any other party. If the Developer and the LGC cannot agree on the Fair Market Value of the Public Museum Facilities, they shall submit the matter to arbitration under the American Arbitration Association with each party selecting one (1) arbitrator, and each of the arbitrators then selecting a third arbitrator. The parties further agree to be bound by the decision of the arbiter whose number is the middle number. ARTICLE 10. DEVELOPER OBLIGATIONS 10.1. Completion of the Facility. The Developer shall cause construction of the Facility to be completed so that the Facility opens for business to the public no later than December 31, 2006 (the "Required Completion Date"). 10.2. Construction Costs. 10.2.1. Construction Cost Expenditures. As of the Actual Completion Date, the Developer will spend or cause to be spent at least $50,000,000 in Construction Costs for the Facility. 10.2.2. Use of Fort Worth Companies. The Developer will spend at least $8,500,000 in Construction Costs for the Facility with contractors that are Fort Worth Companies. 10.2.3. Use of Certified M/WBEs. The Developer will spend at least $2,500,000 in Construction Costs for the Facility with contractors that are Certified M/WBEs. Dollars spent with a Certified M/WBE that is also a Fort Worth Company will also count towards the calculation made in Section 10.2.2 (so that if, for example, the Developer spends $1,000 with a Certified M/WBE that is also a Fort Worth Company, the Developer will also be credited with having spent $1,000 with a Fort Worth Company). 10.3. Employment Commitments. 10.3.1. Fort Worth Residents. At all times during each calendar year including and following the year in which the Actual Completion Date occurs (through expiration 26 of the TIF Tenn), the Developer will provide at least 60 Full-time Equivalent Jobs on the Site to Fort Worth Residents. 10.3.2. Central City Residents. At all times during each calendar year including and following the year in which the Actual Completion Date occurs (through expiration of the TIF Term), the Developer will provide at least 10 Full-time Equivalent Jobs on the Site to Central City Residents. 10.4. Supply and Service Expenditures. 10.4.1. Fort Worth Companies. Beginning with the calendar year in which the Actual Completion Date occurs and each year thereafter through expiration of the TIF Tenn, the Developer will spend at least $15,000 in local discretionary funds for supplies and services directly provided in connection with the operation of the Facility with Fort Worth Companies. 10.4.2. Certified M/WBEs. Beginning with the calendar year in which the Actual Completion Date occurs and each year thereafter through expiration of the TIF Term, the Developer will spend at least $5,000 in local discretionary funds for supplies and services directly provided in connection with the operation of the Facility with Certified M/WBEs. Dollars spent with a Certified M/WBE that is also a Fort Worth Company will also count towards the calculation made in Section 10.4.1 (so that if, for example, the Developer spends $1,000 with a Certified M/WBE that is also a Fort Worth Company, the Developer will also be credited with having spent $1,000 with a Fort Worth Company). 10.5. Audits. The Developer agrees that the City and the LGC will have the right to audit the financial, business, and employment records of the Developer (and its Affiliates) that relate to the Site and the Facility (collectively "Records") at any time in order to determine compliance with this Agreement. The Developer shall make all Records available to the City and the LGC at the Site or at another location in the City acceptable to both parties following reasonable advance notice by the City and the LGC and shall otherwise cooperate fully with the City and the LGC during any audit. 10.6. Annual Financial Report. No later than February 1 of each year following the year in which the Actual Completion Date occurs, the Developer shall provide a written report to the City and the LGC showing the unpaid Public Participation Amount after giving effect to all adjustments and payments received as called for under this Agreement. Such report shall include such detail and backup information as shall be reasonably requested by the LGC or the City. The City and/or the LGC shall have a period of thirty (30) Business Days to provide a written objection to the calculations of the unpaid Public Participation Amount as determined by the Developer. In the event that the LGC and/or the City do not make such an objection, the determination by the Developer shall be presumed accurate. 10.7. Annual Commitment Reports. No later than February 1 of each year following the calendar year in which the Actual Completion Date occurs, the Developer shall also provide the City with reports that set forth (i) the number of Full-time Equivalent Jobs provided on the Site as of December 1 of the previous calendar year to Fort Worth Residents and to Central City Residents, together with supporting documentation reasonably requested by the City and (ii) the 27 actual number of dollars spent on supplies and services with contractors that are Fort Worth Companies and Certified M/WBEs, together with supporting documentation reasonably requested by the City. 10.8. Construction Spending Report. Within sixty (60) calendar days following the Actual Completion Date, the Developer will provide the City with a report that sets forth the actual number of dollars spent on Construction Costs for the Facility (together with the amounts spent with Fort Worth Companies and with Certified M/WBEs), together with supporting documentation reasonably requested by the City. 10.9. Additional Certified M/WBE Participation. In addition to the goals for use of Certified M/WBEs with respect to Construction Cost spending on the Facility and annual supply and service spending, as outlined in Sections 10.2.3 and 10.4.2, within ninety (90) calendar days following execution of this Agreement, Developer will meet with officials from the City's M/WBE Office to identify other potential opportunities for Developer to utilize Certified M/WBEs for the construction, operation and/or maintenance of the Facility. Developer will not be required to meet with the City's M/WBE Office for this purpose after Developer has been apprised of any such opportunities. Although Developer will make a good faith effort to pursue any opportunities so identified, this Section 10.9 shall not obligate Developer to use Certified M/WBEs beyond the goals set forth in Sections 10.2.3 and 10.4.2 and shall not in any way impact Developer's ability to qualify for, and receive, the Base Public Participation Amount. ARTICLE 11. ADJUSTMENTS TO THE PUBLIC PARTICIPATION AMOUNT 11.1. Failure to Meet Construction Spending Goals. To the extent that the Developer fails to meet either or both of its commitments with regard to Construction Cost spending on the Facility as of the Actual Completion Date, as outlined in Sections 10.2.2 and 10.2.3, then the Base Public Participation Amount shall be reduced by the cumulative dollar amount by which the Developer failed to meet such commitments (the "Construction Spending Adjustment"). In other words, if as of the Actual Completion Date the Developer spent only $7,500,000 in Construction Costs for the Facility with Fort Worth Companies (instead of the minimum of $8,500,000 required by Section 10.2.2) and only $2,000,000 with Certified M/WBEs (instead of the minimum of $2,500,000 required by Section 10.2.3), then the Base Public Participation Amount would be reduced by $1,500,000. 11.2. Failure to Meet Employment Goals. In any year that the Developer fails to meet either or both of its commitments with regard to the provision of Full-time Equivalent Jobs to Fort Worth Residents and Central City Residents, as outlined in Sections 10.3.1 and 10.3.2, then the Base Public Participation Amount (or the Public Participation Amount, as previously adjusted) shall be reduced by $5,000 for each Full-time Equivalent Job below the minimum number of Full-time Equivalent Jobs that the Developer agreed to provide for Fort Worth Residents and Central City Residents, respectively (the "Employment Adjustments"). In other words, if in a given year the Developer provided only 55 Full-time Equivalent Jobs to Fort Worth Residents (instead of the minimum of 60 as required by Section 10.3.1) and only 8 Full- time Equivalent Jobs to Central City Residents (instead of the minimum of 10 as required by Section 10.3.2), then the Base Public Participation Amount (or the Public Participation Amount, as previously adjusted) would be reduced by $35,000. 28 11.3. Failure to Meet Supply/Service Spending Goals. In any year that the Developer fails to meet either or both of its commitments with regard to annual supply and service spending goals with Fort Worth Companies and Certified M/WBEs, as outlined in Sections 10.4.1 and 10.4.2, then the Base Public Participation Amount (or the Public Participation Amount, as previously adjusted) shall be reduced by the cumulative dollar amount by which the Developer failed to meet such commitments (the "Supply/Service Spending Adjustments"). In other words, if in a given year the Developer spent only $10,000 in local discretionary funds for supplies and services directly provided in connection with the operation of the Facility with Fort Worth Companies (instead of the minimum of $15,000 as required by Section 10.4.1) and only $3,000 with Certified M/WBEs (instead of the minimum of $5,000 as required by Section 10.4.2), then the Base Public Participation Amount (or the Public Participation Amount, as previously adjusted) would be reduced by $7,000. 11.4. No Offsets. A deficiency in attainment of any of the commitments set forth in Sections 10.2.2, 10.2.3, 10.3.1, 10.3.2, 10.4.1 and/or 10.4.2 may not be offset by exceeding another of such commitments. 11.5. Adjustment for Present Value. A "Reimbursable Expenditure" is any expenditure after the Effective Date by the Developer of its own funds on either Category 1 Costs or Category 2 Costs (up to a maximum of $40,000,000), which is later reimbursed by the Developer's receipt of funds pursuant to the terms of this Agreement; provided, however, no Category 2 Costs shall be reimbursed from TIF Revenues or from Public Facilities Bond Proceeds. The "Reimbursement Period" for each Reimbursable Expenditure is the time period between (i) the date of that Reimbursable Expenditure by the Developer, and (ii) the date when the Developer is reimbursed for such Reimbursable Expenditure (including reimbursement through the issuance and sale of Bonds to the Bond Purchaser). The parties agree and acknowledge that the intent is for the Developer to be compensated at a rate of four and three fourths percent (4.75%) per annum during the Reimbursement Period for any Reimbursable Expenditure that is a Category 1 Cost and seven percent (7%) per annum during the Reimbursement Period for any Reimbursable Expenditure that is a Category 2 Cost. Therefore, in addition to any other adjustments provided for in this Article 11, the Public Participation Amount shall also from time to time be increased for each Reimbursable Expenditure for its respective Reimbursement Period at an annual rate of four and three fourths percent (4.75%) and seven percent (7%) as the case may be (the "Present Value Adjustments"). 11.6. Maximum Public Participation Amount. The "Public Participation Amount Adjustments" shall collectively include the following: (i) the Construction Spending Adjustment; (ii) the Employment Adjustments; (iii) the Supply/Service Spending Adjustments; and (iv) the Present Value Adjustments. Notwithstanding anything to the contrary, the Public Participation Amount shall in no event exceed the Base Public Participation Amount as adjusted by the Public Participation Amount Adjustments. ARTICLE 12. OTHER CITY AND COUNTY OBLIGATIONS 12.1. Fast -Track Development Apnrovals. The City will use all reasonable efforts to expedite the processes of establishing the TIF, authorizing the Bonds, and obtaining any necessary rights of way or easements for the Public Infrastructure as required by this Agreement. 29 12.2. Advertising and Marketing Grants. The City, the County and the LGC will reasonably cooperate with the Developer to obtain any advertising or marketing grants which might be available to promote the businesses in the TIF Zone. 12.3. Employee Training Grants. The City, the County and the LGC will reasonably cooperate with the Developer in seeking federal or state employee training grants of a maximum amount allowed by law per employee. 12.4. Change in Tax Scheme. The City and the County agree that if the sales tax rate, inventory and personal property tax rate or ad valorem tax rate as described in Section 6.4.1 of this Agreement are ever lowered as a result of a shift in the overall tax scheme utilized by the State and/or County and/or City, then the City and the County severally agree that, to the extent such reduction is offset by an increase in other revenues generated by the Facility to the benefit of the City and/or the County, such other revenues will be utilized to satisfy the City's and/or the County's obligations with respect to the Public Participation Amount to the extent of the deficiency resulting from such reduction. ARTICLE 13. SALES AND USE TAX NEXUS RULING The Developer represents and warrants that it has obtained a favorable ruling from the State with respect to nexus issues. In the event that any department within the State later challenges or revokes said ruling, the City, the County and the LGC agree that the Developer may submit this Agreement as evidence that as of the date of this Agreement the Developer would not have located the Retail Facility in the State without first receiving the favorable nexus ruling. The City, the County and the LGC further agree not to contest the position taken by the Developer in contesting any such challenge or revocation. ARTICLE 14. TERMINATION, REDUCTION, SUSPENSION OF PAYMENTS 14.1. Reasons for Termination. This Agreement may be terminated for any of the following reasons: 14.1.1. By Mutual Consent. By the mutual consent of the City, the County, the LGC and the Developer. 14.1.2. By City, County or LGC. The City, the County or the LGC may terminate this Agreement: (a) Without notice, upon breach of the Developer's obligation under Section 10.1. (b) If the Developer has failed to pay all ad valorem taxes due on the Site and the Facility before they become delinquent and such default has not been cured within thirty (30) days after written notice of said delinquency. (c) Without notice, if the Developer sells, transfers or closes the Retail Facility (other than a temporary closure resulting from a Force Majeure event or a major renovation which can be completed within 90 days); provided, however, 30 that any sale or transfer of the Retail Facility to a party that continues to operate the Retail Facility for the purposes defined in Article 2 shall not be an event for which termination of this Agreement can occur. 14.1.3. By Developer. By the Developer upon thirty (30) days written notice if the Closing Date fails to occur by October 1, 2004, due to no fault of the Developer or Force Majeure event. 14.2. Termination Date. The date of termination of this Agreement the "Termination Date") shall mean the earlier of the expiration of the term of this Agreement pursuant to Section 18.1 or the date on which this Agreement is terminated for any of the reasons listed in Section 14.1 of this Agreement. 14.3. Notice of Problems. Each party will promptly give written notice to the other parties when it becomes aware of the occurrence or failure to occur, or the impending or threatened occurrence or failure to occur, of any fact or event that would cause or constitute, or would be likely to cause or constitute, (a) any of its representations or warranties contained in this Agreement being or becoming untrue or (b) its failure to perform any of its covenants contained in this Agreement. No such notice shall affect the representations or warranties, covenants or conditions of the parties hereunder, or prevent any party from relying on the representations or warranties contained herein. 14.4. Effect of Termination. Upon the termination of this Agreement pursuant to this Article 14, neither the City, the County, the LGC nor the Developer shall have any further duties, obligations or liabilities under this Agreement except for the indemnification and hold harmless agreements set forth herein, and subject to the provisions of Section 14.5 hereof, the Public Participation Amount, including without limitation the principal of and interest accrued on any outstanding Bonds, shall be reduced to zero . 14.5. Reduction/Suspension of Public Participation Amount. 14.5.1. Reduction. In the event the Developer closes the Retail Facility (other than a temporary closure resulting from a Force Majeure event or a major renovation which can be completed within 90 days) at any time during the term of this Agreement, the 380 Grants and all obligations secured by or payable from 380 Grants shall terminate immediately. In the event such closure occurs prior to the tenth (10th) anniversary of the Actual Completion Date, the Increment which comprises TIF Revenues to pay the principal of and interest on the Bonds shall be capped at the value of the Increment created as of the date the Developer closes the Retail Facility. By way of example, if the Retail Facility closes prior to the 10th anniversary of the Actual Completion Date, and if the Increment in the TIF Zone on the date the Retail Facility closes is measured at $70,000,000, then the TIF Revenues used to pay down the Bonds shall be based on an Increment of $70,000,000 for all future years remaining on the Bonds; provided, however, if the Increment subsequently falls below $70,000,000, the TIF Revenues will be based on the actual Increment. In the event the Developer closes the Retail Facility after the tenth (10th) anniversary of the Actual Completion Date, TIF Revenues shall always be calculated based on the Increment created in the TIF Zone for all future years remaining on the Bonds. 31 14.5.2. Suspension. All payments to the Developer of proceeds from 380 Grants under this Agreement shall be suspended during any period in which (i) the Facility or the Site or the operations therein or thereon are not in compliance with all applicable codes, ordinances and regulations of the City or (ii) the Developer is in breach of its obligations under Article 17. ARTICLE 15. COVENANTS 15.1. Covenants of Developer. From the Effective Date of this Agreement until the earlier to occur of (i) the Termination Date, or (ii) the date on which the Public Museum Facilities are conveyed to the Developer by the LGC pursuant to Article 9 of this Agreement, unless the LGC shall otherwise consent in writing: 15.1.1. Certificates and Notices. The Developer shall deliver to the LGC copies of each of the following: (a) Compliance Certificate. As soon as practical, but in any event within thirty (30) days of each anniversary date of this Agreement, the Developer shall deliver to the City a certificate executed by the principal financial officer of the Developer stating that a review of the activities of the Developer during such period has been made under his supervision and that to the best of his knowledge and belief after reasonable and due investigation, (i) the Developer has observed, performed and fulfilled each and every obligation and covenant contained in this Agreement and in each of the Collateral Documents or, if there is any exception to the foregoing, specifying the nature and status thereof; (ii) there exists no event of default or potential default under this Agreement or any of the Collateral Documents as of the date of such certificate or, if any such event shall have occurred, specifying the nature and status thereof; (iii) there is no litigation, mediation or arbitration of the nature described in Section 16.1.6, which is not covered by insurance, pending with respect to the Developer, and if any such litigation, mediation or arbitration is pending, specifying the nature and status thereof; and (iv) no Termination Date has occurred under this Agreement and no default or failure of performance by the Developer has occurred under this Agreement or any of the Collateral Documents, and no party to any such agreement has challenged or denied the validity or enforceability of such agreement or given any notice of default, termination or intent to terminate thereunder, or specifying the nature and status thereof. (b) Notification by Developer. The following notifications: (1) promptly upon receipt of same, a copy of any notice or other instrument received by the Developer which can reasonably be expected to materially adversely affect the Site or the operation of the Facility; (2) promptly upon the Developer's learning thereof, and any determination in, all litigation and all proceedings before any 32 governmental or regulatory agencies which can reasonably be expected to materially adversely affect the Site or the operation of the Facility; (3) promptly upon the occurrence thereof, of any material adverse change in any material fact or circumstance represented or warranted in this Agreement or any of the Collateral Documents agreements, and of any material fact or circumstance which can reasonably be expected to have a material adverse effect on the Site or the operation of the Facility; and (4) within three (3) days after the Developer becomes aware of the occurrence of an event of default or potential default under this Agreement or any of the Collateral Documents. 15.1.2. Operation of Facility. Subject to any contrary terms set forth in this Agreement, the Retail Facility shall at all times following completion of construction and initially opening for business, be operated, maintained and managed directly by the Developer as a retail store in a first class manner and in compliance with all applicable laws, consistent with the operation and management standards for other stores operated by the Developer or an Affiliate. The Developer shall keep in effect at all times all permits, licenses and contractual arrangements as may be necessary to meet the standard of operation described in the foregoing sentence. 15.1.3.Organization. The Developer shall not amend its organizational documents in such a manner (i) as to make it impossible for the Developer to continue to operate the Facility on the Site or (ii) as to materially adversely affect the rights of the City, the County or the LGC hereunder. The Developer shall not dissolve or enter into any plan of liquidation or dissolution. 15.1.4. Business of the Developer. The Developer shall conduct all operations within the Site in compliance with all federal and state laws and City ordinances. The Developer covenants to take such actions as to assure, or to not omit to take such actions the result of which would adversely affect, the treatment of any tax-exempt Bonds issued by the LGC as obligations described in Section 103 of the IRC, the interest on which is excludable from "gross income" of the holder for purposes of federal income taxation. 15.1.5. Compliance with Laws. The Developer shall timely comply in all material respects with all laws, issuances, rules and regulations of any governmental authority applicable to the Developer, including, without limitation, all applicable licenses, permits, building codes, restrictive covenants, zoning and subdivision ordinances and flood disaster and environmental protection laws affecting the Facility or the Site, and, upon the request of the City, deliver to the City evidence thereof. 15.1.6. Inspection of Books and Records. The Developer shall at all times keep complete and accurate books and records and accounts of its transactions, in accordance with GAAP, and permit any representative of the City, the County or the LGC designated in writing, at all reasonable times and with ten (10) Business Days prior notice, to examine and copy the books and records of the Developer pertaining to the operation of 33 the Facility as reasonably necessary in connection with the operation and administration of this Agreement. 15.1.7. Modification. Amendment or Termination of the Collateral Documents. The Developer shall not modify, amend or terminate any of the Collateral Documents, or any of the other contracts or agreements concerning the construction or development of the Facility that are hereafter approved by the City and the LGC without the prior written consent of the City or the LGC and which consent shall not be unreasonably withheld or delayed. 15.1.8. Governmental Licenses. On the date the Facility opens for business to the public, the Developer shall have all material governmental licenses, permits, approvals, authorizations, exemptions, classifications and certificates including, without limitation, all federal, state and local regulatory agency approvals and registrations (collectively, the "Governmental Licenses") necessary to operate the Facility on the Site, and there shall not exist under any Governmental License any default or violation, or event which, with notice or lapse of time or both, would constitute a default or violation, nor shall there be any basis for the assertion of the foregoing. 15.2. Covenants of City and LGC. From the Effective Date of this Agreement until the earlier to occur of (i) the Termination Date or (ii) the date on which the Public Museum Facilities are conveyed to the Developer by the LGC pursuant to Article 9 of this Agreement, unless the Developer shall otherwise consent in writing: 15.2.1. Organization. The LGC shall not change, and the City will not permit the LGC to change, its organizational documents in any manner that would materially adversely affect the Facility or the Developer. 15.2.2. Pledge of Pledged Revenues. The LGC shall pledge all TIF Revenues received from the City for the payment of principal of and interest on the Public Facilities Bonds. 15.2.3. 380 Grants. The City shall consider the funding of the 380 Grants in conjunction with the annual preparation of its budget. 15.3. Further Actions. The City, the County, the LGC and the Developer will do all things reasonably necessary or appropriate to carry out the objectives, terms and provisions of this Agreement and to aid and assist each other in carrying out such objectives, terms and provisions. ARTICLE 16. REPRESENTATIONS AND WARRANTIES 16.1. Representations and Warranties of Developer. The Developer represents and warrants to the City, the LGC and the County, as of the Effective Date and any Closing Date, as follows: 16.1.1. Organization. The Developer is a corporation duly organized, validly existing and in good standing under the laws of the State of Nebraska. The business which the Developer carries on and 4 which it proposes to carry on may lawfully be conducted by the Developer. The Developer is, or prior to the issuance of any Bonds will be, duly authorized to conduct business as a corporation in, and is in good standing under the laws of, Texas and each other jurisdiction in which the nature of its properties or its activities requires such authorization. 16.1.2. Authority. The execution, delivery and performance by the Developer of this Agreement and the Collateral Documents to which the Developer may be a party are within the Developer's powers and have been duly authorized by all necessary action of the Developer. 16.1.3. No Conflicts. Neither the execution and delivery of this Agreement or the Collateral Documents to which the Developer may be a party, nor the consummation of any of the transactions herein or therein contemplated nor compliance with the terms and provisions hereof or thereof will contravene the organizational documents of the Developer or any provision of law, statute, rule or regulation to which the Developer is subject or any judgment, decree, license, order or permit applicable to the Developer, or will conflict or be inconsistent with, or will result in any breach of any of the terms of the covenants, conditions or provisions of, or constitute a delay under, or result in the creation or imposition of a lien upon any of the property or assets of the Developer pursuant to the terms of any indenture, mortgage, deed of trust, agreement or other instrument to which the Developer is a party or, to the knowledge of the Developer, by which the Developer is bound, or to which the Developer is subject. 16.1.4. No Consents. No consent, authorization, approval, order or other action by, and no notice to or filing with, any court or governmental authority or regulatory body or third party is required for the due execution, delivery and performance by the Developer of this Agreement, the Collateral Documents to which the Developer may be a party or the consummation of the transactions contemplated hereby or thereby. 16.1.5. Valid and Binding Obligation. This Agreement is the legal, valid and binding obligation of the Developer, enforceable against the Developer in accordance with its terms except as limited by applicable relief, liquidation, conservatorship, bankruptcy, moratorium, rearrangement, insolvency, reorganization or similar laws affecting the rights or remedies of creditors generally, as in effect from time to time. 16.1.6. No Pending Litigation. There is no action, proceeding, inquiry or investigation, at law or in equity, before any court, arbitrator, governmental or other board or official, pending or to the best knowledge of the Developer threatened against or affecting the Developer or any subsidiaries of the Developer, questioning the validity of any action taken or to be taken by the Developer in connection with the execution, delivery and performance by the Developer of this Agreement or the Collateral Documents to which the Developer may be a party or seeking to prohibit, restrain or enjoin the execution, delivery or performance by the Developer hereof or thereof, wherein an unfavorable decision, ruling or finding (i) would adversely affect the validity or enforceability of, or the authority or ability of the Developer to perform, its obligations under this Agreement or the Collateral Documents to which the Developer may be a party or (ii) would have an adverse effect on the consolidated financial condition or results of operations of the Developer or on the ability of the Developer to conduct its business as 35 presently conducted or as proposed or contemplated to be conducted (including the operation of the Facility). 16.1.7. No Defaults. The Developer is not in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any material agreement or instrument to which the Developer is a party or by which the Developer or any of its property is bound that would have any material adverse effect on the Developer's ability to perform under this Agreement or the Collateral Documents to which the Developer may be a party. 16.1.8. Full Disclosure. The Developer has provided the City, the County and the LGC with all information that the City, the County or the LGC has requested in making its determination as to whether to enter into this Agreement and the Collateral Documents and whether to consummate the transactions contemplated hereby and thereby. Neither this Agreement nor any instrument, document, certificate, written statement, schedule or exhibit attached hereto or made or delivered by the Developer or their respective officers, employees or agents to the City, the County or the LGC in connection with the negotiation of this Agreement or the Collateral Documents contains any untrue statement of a material fact or omits to state any material fact necessary to keep the statements contained herein or therein, in light of the circumstances in which they were made, from being misleading. There is no fact known to the Developer which has specific application to the Developer or its Affiliates and which could adversely effect the execution, delivery or performance of this Agreement or the Collateral Documents which has not been set forth in this Agreement or previously delivered to the City, the County and the LGC. 16.1.9. Necessary Consent. The Developer acknowledges that neither the City, the County nor the LGC is committed or obligated to pay any expenditure incurred with respect to the construction of the Facility except as specifically provided in this Agreement. 16.1.10. Environmental Condition; Indemnification. (a) (i) Except as set forth on Schedule 16.1.10 attached hereto, the Facility and the Site are now and at all times hereafter will continue to be in material compliance with all federal, state and local environmental laws and regulations, including, but not limited to, CERCLA and SARA, and (ii) (A) as of the date hereof, there are no Hazardous Substances (including without limitation, any materials containing asbestos) located on, in or under the Facility or the Site or used in connection therewith (except as may be necessary in connection with any normal and customary use of the Facility, which the Developer warrants will be stored, handled, used and disposed of properly and in accordance with applicable law) and (B) the Developer has duly disclosed to the City in writing the existence, extent and nature of any such hazardous materials, substances, wastes or other environmentally regulated substances, which the Developer is legally authorized and empowered to maintain on, in or under the Facility or the Site or use in connection therewith, and the Developer has obtained or applied for and will maintain all licenses, permits and approvals required with respect thereto, and is in material compliance with all of the terms, conditions and requirements of 36 such licenses, permits and approvals. The Developer covenants and agrees that it will promptly notify the City and the LGC of (i) any material change in the nature or extent of any hazardous materials, substances or wastes maintained on, in or under the Facility or the Site or used in connection therewith and (ii) any material spill, emission, release, discharge, disposal, leakage or dumping of any hazardous materials, substances or wastes onto, in or from the Facility or the Site which is not in compliance with applicable federal, state and local environmental laws and regulations, and will transmit to the City and the LGC copies of any citations, orders, notices or other materials, substances, wastes or other environmentally regulated substances affecting the Facility or the Site. (b) The Developer will indemnify and hold the Indemnitees harmless from and against any and all damages, penalties, fines, claims, liens, suits, liabilities, costs (including clean-up costs), judgments and expenses (including attorneys', consultants' or experts' fees and expenses) of every kind and nature suffered by or asserted against the Indemnitees as a direct or indirect result of any warranty or representation made by the Developer in Section 16.1.10(a) of this Agreement being false or untrue in any material respect, or any requirements under any law, regulation or ordinance, local, state or federal, which requires the elimination or removal of any hazardous materials, substances, wastes or other environmentally regulated substances by the Developer, or any of the Indemnitees or the breach of any covenant of the Developer contained in Section 16.1.10(a) of this Agreement. (c) This Section 16.1.10 will survive the termination of this Agreement. 16.2. Representations and Warranties of City, County and LGC. The City, the County and the LGC severally represent and warrant to the Developer, as of the Effective Date and any Closing Date, as follows: 16.2.1. Authority. The execution, delivery and performance by the City, the County and the LGC of this Agreement and the Collateral Documents, to which they are a party, are within the their respective powers and have been duly authorized by all necessary action. 16.2.2. No Conflicts. Neither the execution and delivery of this Agreement or the Collateral Documents, nor the consummation of any of the transactions herein or therein contemplated nor compliance with the terms and provisions hereof or thereof will contravene the governing documents of the City, the County, or the LGC or any provision of law, statute, rule or regulation to which City, the County, or the LGC to their knowledge is subject or any judgment, decree, license, order or permit applicable to the City, the County, or the LGC or will result in any breach of any of the terms of the covenants, conditions or provisions of, or constitute a delay under or result in the creation or imposition of a lien upon any of the property or assets of the City, the County, or the LGC pursuant to the terms of any indenture, mortgage, deed of trust, agreement or other instrument to which the City, the County, or the LGC is a party or by which the City, the County, or the LGC are bound, or to which the City, the County, or the LGC is subject. 37 16.2.3. Valid and Binding Obligation. This Agreement is a legal, valid and binding obligation of the City, the County, and the LGC, enforceable against the City, the County, and the LGC in accordance with its terms except as limited by applicable relief, liquidation, conservatorship, bankruptcy, moratorium, rearrangement, insolvency, reorganization or similar laws affecting the rights or remedies of creditors generally, as in effect from time to time. 16.2.4. No Pending Litigation. There is no action, proceeding, inquiry or investigation, at law or in equity, before any court, arbitrator, governmental or other board or official, pending or, to the knowledge of the City, the County, or the LGC, threatened against or affecting the City, the County, or the LGC, questioning the validity of any proceeding taken or to be taken by the City, the County, or the LGC in connection with the execution, delivery and performance by the City, the County, or the LGC of this Agreement or the Collateral Documents, to which they are a party, or seeking to prohibit, restrain or enjoin the execution, delivery or performance by the City, the County, or the LGC, hereof or thereof, wherein an unfavorable decision, ruling or finding (a) would adversely affect the validity or enforceability of, or the authority or ability of the City, the County, or the LGC, to perform, their respective obligations under this Agreement or the Collateral Documents to which they are a party. 16.2.5. No Defaults. The City, the County, and the LGC are not in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any material agreement or instrument to which the City, the County, or the LGC is a party or by which the City, the County, or the LGC are bound that would have any material adverse effect on the City's or the County's ability to perform under this Agreement or the Collateral Documents to which they are a party. ARTICLE 17. INDEMNIFICATION AND INSURANCE 17.1. Indemnity. The Developer shall indemnify and hold harmless the LGC, the LGC's officers, directors, employees and agents, the City and the City's council members, employees and agents, the County and the County's commissioners, employees and agents, and any Bond Trustee (collectively, the "Indemnitee" or "Indemnitees") from any and all damages, losses, liabilities (joint or several), payments, obligations, penalties, claims, litigation, demands, defenses, judgments, suits, proceedings, costs, disbursements or expenses (including, without limitation, fees, disbursements and reasonable expenses of attorneys, accountants, and other professional advisors and of expert witnesses and costs of investigation and preparation) of any kind or nature whatsoever (collectively, the "Damages"), directly or indirectly resulting from, relating to or arising out of: (a) the construction, development, maintenance or operation of the Site, the Facility, or the business of the Developer; (b) the formation, organization and operation of the Developer; (c) any breach of or inaccuracy in any representation or warranty of the Developer contained in this Agreement or in any of the Collateral Documents; 38 (d) the offer and/or sale by the LGC of the Bonds or any subsequent sale, assignment, pledge or transfer thereof by the Bond Purchaser; (e) any breach or non-performance, partial or total, by the Developer of any covenant or agreement of the Developer contained in this Agreement or in any of the Collateral Documents; (f) any actual or threatened violation of or non-compliance with, or remedial obligation arising under, any federal or state environmental laws arising from any event, condition, circumstance, activity, practice, incident, action or plan relating in any way to the Site, the Facility, or the business of the Developer; or (g) the Management Agreement. 17.2. Indemnification Procedures. In case any claim shall be brought or, to the knowledge of any Indemnitee, threatened against any Indemnitee in respect of which indemnity may be sought against the Developer, such Indemnified Party shall promptly notify the Developer in writing; provided, however, that any failure to so notify shall not relieve the Developer of its obligations under this Article 17. The Developer shall have the right to assume the investigation and defense of all claims, including the employment of counsel and the payment of all expenses. Each Indemnitee shall have the right to employ separate counsel in any such action and participate in the investigation and defense thereof, but the fees and expenses of such counsel shall be paid by such Indemnitee unless (i) the employment of such counsel has been specifically authorized by the Developer, in writing, (ii) the Developer has failed after receipt of notice of such claim to assume the defense and to employ counsel, or (iii) the named parties to any such action (including any impleaded parties) include both an Indemnitee and the Developer, and the Indemnitee, after consultation with its counsel, reasonably believes that there may be one or more legal defenses available to it which are different from or additional to those available to the Developer (in which case, if such Indemnitee notifies the Developer in writing that it elects to employ separate counsel at the Developer's expense, the Developer shall not have the right to assume the defense of the action on behalf of such Indemnitee; provided, however, that the Developer shall not, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegation or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys for the Indemnitee, which firm shall be designated in writing by the Indemnitees). Each Indemnitee shall cooperate with the Developer in the defense of any action or claim. The Developer shall not be liable for any settlement of any action or claim without the Developer's consent but, if any such action or claim is settled with the consent of the Developer or there be final judgment for the plaintiff in any such action or with respect to any such claim, the Developer shall indemnify and hold harmless the Indemnitees from and against any Damages by reason of such settlement or judgment as provided in Section 17.1 of this Agreement. 17.3. Negligence of Indemnitee. THE INDEMNIFICATION PROVIDED IN THIS ARTICLE 17 SHALL BE APPLICABLE WHETHER OR NOT NEGLIGENCE OF THE INDEMNITEE IS ALLEGED OR PROVEN. THE ONLY CIRCUMSTANCES UNDER WHICH THIS INDEMNITY SHALL NOT APPLY SHALL BE IN CONNECTION WITH LIABILITIES ATTRIBUTABLE TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNITEE. 39 17.4. Developer's Insurance. The Developer shall maintain in effect at all times insurance coverages with limits that are customary for projects and operations of a similar nature. 17.5. Survival; Right to Enforce. The provisions of this Article 17 shall survive the termination of this Agreement. In the event of failure by the Developer to observe the covenants, conditions and agreements contained in this Article 17, any Indemnitee may take any action at law or in equity to collect amounts then due and thereafter to become due, or to enforce performance and observance of any obligation, agreement or covenant of the Developer under this Article 17. The obligations of the Developer under this Article 17 shall not be affected by any assignment or other transfer by the LGC of its rights, titles or interests under this Agreement in connection with any Bonds or any bond purchase agreement and will continue to inure to the benefit of the Indemnitees after any such transfer. The provisions of this Article 17 shall be cumulative with and in addition to any other agreement by the Developer to indemnify any Indemnitee. ARTICLE 18. MISCELLANEOUS 18.1. Term. This Agreement shall terminate without notice upon the earlier to occur of (i) June 1, 2026 or (ii) the date the Public Participation Amount (as adjusted pursuant to Article 11 of this Agreement) has been reduced to zero; provided, however, if at such time as the TIF Term or this Agreement has terminated pursuant to clause (i) of Section 4.1 or clause (ii) of this Section 18.1, respectively, the Public Participation Amount includes unpaid principal on outstanding Public Facilities Bonds, the Public Participation Amount shall not be deemed to have been reduced to zero until such portion has been paid or satisfied through TIF Revenues, Tax Savings Amounts and/or Public Participation Amount Adjustments. By way of illustration, if at the time the Public Participation Amount has been deemed reduced to zero, there remains outstanding $5,000,000 in Public Facilities Bonds, and the Developer has received, after including any Public Participation Amount Adjustments (other than Present Value Adjustments), through 380 Grants, TIF Revenues, Tax Savings Amounts or other funds $38,000,000, neither the TIF Term nor the term of this Agreement shall be deemed terminated pursuant to either of such clauses until the Developer has received the deficiency of $2,000,000 of principal of such Public Facilities Bonds plus any unpaid, accrued interest thereon through TIF Revenues, Tax Savings Amounts and/or additional Public Participation Adjustments. 18.2. Article, Section or Other Heading. Article 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. 18.3. Entire Agreement. This Agreement and the Collateral Documents contain the entire agreement between the parties with respect to the transactions contemplated herein. 18.4. Amendment. This Agreement may only be amended, altered, or revoked by written instrument signed by all parties. 18.5. Successors and Assigns. This Agreement shall be binding on and inure to the benefit of the parties and their respective successors and assigns. Except as specifically provided 40 herein, this Agreement and the Collateral Documents are not assignable without the prior written permission of the other parties hereto. 18.6. Waiver. No term or condition of this Agreement shall be deemed to have been waived, nor shall there be any estoppel to enforce any provision of this Agreement, except by written instrument of the party charged with such waiver or estoppel. 18.7. Remedies. Upon breach by any party of any of the covenants or representations and warranties contained in this Agreement, in addition to any other remedies expressly set forth in this Agreement with respect to such breach, the aggrieved party shall have such remedies as are available in law or equity for breach of contract; provided, however, that no party shall be liable to any other party for incidental or consequential damages. 18.8. Notices. Any notice, statement and/or other communication required and/or permitted to be delivered hereunder shall be in writing and shall be mailed by first-class mail, postage prepaid, or delivered by hand, messenger, telecopy, or reputable overnight carrier, and shall be deemed delivered when received at the addresses of the parties set forth below, or at such other address furnished in writing to the other parties hereto: DEVELOPER: With a copy to: CITY: With a copy to: Cabela's Retail, Inc. One Cabela's Drive Sidney, Nebraska 69160 Attn: President Telephone: (308) 254-5505 Facsimile: (308) 254-4800 Michael M. Hupp, Esq. Koley Jessen P.C. One Pacific Place, Suite 800 1125 South 103rd Street Omaha, Nebraska 68124-1079 Telephone: (402) 390-9500 Facsimile: (402) 390-9005 Director Economic & Community Development Department City of Fort Worth 1000 Throckmorton Fort Worth, Texas 76102 Telephone: (817) 392-6192 Facsimile: (817) 871-6134 City Attorney City of Fort Worth Law Department 1000 Throckmorton Street Fort Worth, Texas 76102 Telephone: (817) 392-7606 Facsimile: (817) 871-8359 41 COUNTY: With a copy to: Mr. G. K. Maenius County Administrator Commissioners Court 100 E. Weatherford Street Fort Worth, Texas 76102 Telephone: (817) 884-1733 Facsimile: (817) 884-1702 Ray Rike, Esq. District Attorneys Office 401 W. Belknap, 9th Floor Fort Worth, TX 76196-0202 Telephone: (817) 884-2423 Facsimile: (817) 884-1675 18.9. Applicable Law. This Agreement is made, and shall be construed and interpreted under the laws of the State of Texas, and venue shall lie in State courts located in Tarrant County, Texas or in the United States District Court for the Northern District of Texas, Fort Worth Division. 18.10. Severability. In the event any provision of this Agreement is illegal, invalid, or unenforceable under present or future laws, then, and in that event, it is the intention of the parties hereto that the remainder of this Agreement shall not be affected thereby, and it is also the intention of the parties to this Agreement that in lieu of each clause or provision that is found to be illegal, invalid, or unenforceable a provision be added to this Agreement which is legal, valid and enforceable and is as similar in terms as possible to the provision found to be illegal, invalid or unenforceable. 18.11. No Third -Party Beneficiaries. The City, the County, and the Developer intend that this Agreement shall not benefit or create any right or cause of action in or on behalf of any third -party beneficiary, or any individual or entity other than the City, the LGC, the County, and the Developer or permitted assignees of such parties, except that the indemnification and hold harmless obligations by the Developer provided for in this Agreement shall inure to the benefit of the Indemnitees. 18.12. No Joint Venture. Nothing contained in this Agreement or the Collateral Documents is intended by the parties to create a partnership or joint venture between the parties, and any implication to the contrary is hereby expressly disavowed. It is understood and agreed that this Agreement does not create a joint enterprise, nor does it appoint either party as an agent of the other for any purpose whatsoever. Except as otherwise specifically provided herein, neither party shall in any way assume any of the liability of the other for acts of the other or obligations of the other. 18.13. 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. 42 EXECUTED to be effective as of the Effective Date. ATTEST: r�1 rA,,t\ev\ City Secretary APPROVED AS TO FORM AND LEGALITY: /,Cttorney C -Z4 , 3 L - k - 0 `f ATTEST: //6/41111 County Clerk iTTEST: \ r ,( Secretary, Boar of Directors CABELA'S RETAIL INC., a Nebraska corporation By: Name: Title: Date: 7 - I CITY OF FORT WORTH, TEXAS By: 76' Mayor Pa le F7sSC A-ch/j Ma✓1ayer (r)I Contract Authorii ation I Date TARRANT COUNTY, TEXAS B County Judge LONE STAR LOCAL GOVERNMENT CORPORAT ON President, Board of Directors 25111_21.5 1, ! ! I lig I i I OFF -SITE STREAM I IMPROVEMENTS 53 BSE PSE - IA; 12'W SCAT STAMM] 'AREA I . • . • mem LD I ,119 0,' /4 (JY4.4 " SEWER LINE 4 RELOCATION efel EXHIBIT A Cabela's Retail Inc. LAKE IMPROVEMENTS (s=).14 ••". - '- SH 170 OFF-SITE STREAM IMPROVEMENTS 069 EXHIBIT A _______„-------- WATER LINE EXTENSION Proposed Site: 49.9 ± Ac. Legend (Acres) Property Within City Limits 817± l" 1 Property Within E.T.J. 164± Total F�T 61.50 g�v -- 981± UVMEF3.:, WO EXHIBIT A LEGAL DESCRIPTION TIF DISTRICT BEING a tract of land situated in the J. Ashford Survey, Abstract Number 1776, the H. Cox Survey, Abstract Number 386, the H. Creed Survey, Abstract Number 1898, the I. Niece Survey, Abstract Number 1160, the A. C. Warren Survey, Abstract Number 1687, the W. Houston Survey, Abstract Number 746, the M.E.P. & P. RR. Survey, Abstract Number 1143, the T. G. Willis Survey, Abstract Number 1682, the S. T. Rhodes Survey, Abstract Number 1868, the G. W. Parker Survey, Abstract Number 1251, and the J. McDonald Survey, Abstract Number 1106, Tarrant County, Texas and being more particularly described by metes and bounds as follows: BEGINNING at the southwest corner of Lot 2, Block 1, Alliance Gateway West Addition, as recorded in Cabinet A, Slide 5817, Plat Records, Tarrant County, Texas, said point being in the existing east right-of-way line of Interstate Highway 35W; THENCE N 00°12'16"E, 152.52 feet along the easterly right-of-way line of said Interstate Highway 35W to the beginning of a curve to the right; • THENCE continuing along the easterly right-of-way Iine of said Interstate Highway 35W and with said curveto the right, through a central angle of 02°40'04", having a radius of 4563.66 feet, the long chord of which bears N 01°36'33"E, 212.47 feet, an arc distance of 212.49 feet; THENCE N 01°12'30"E, 1235.75 feet continuing along the easterly right-of-way line of said Interstate Highway 35W and across State Highway 170, again along the easterly right-of-way line of said Interstate Highway 35W to the beginning of a curve to the right; THENCE continuing along the easterly right-of-way line of said Interstate Highway 35W and with said curve to the right, through a central angle of 02°04'52", having a radius of 11540.73 feet, the long chord of which bears N 00°46'13"W, 419.14 feet, an arc distance of 419.16 feet; THENCE N 01°48'25"W, 133.37 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 88°07'58"E, 6.25 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 01°36'22"W, 199.97 feet continuing along the easterly right-of-way line of said Interstate Highway 35W to the beginning of a curve to the right; THENCE continuing along the easterly right-of-way line of said Interstate Highway 35W and with said curve to the right, through a central angle of 02°24'33 ", having a radius of 9816.25 feet, the long chord of which bears N 00°40'09"W, 412.74 feet, an arc distance of 412.77 feet; C&B Job No. 011900.651 J:VOB\0I 190065\SUR\WP\LEG\EXHIBIT A.doc April 12, 2004 Page 1 of 3 THENCE N 00°15'47"E, 180.44 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 05°09'38"W, 55.38 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 00°16'30"E, 223.28 feet continuing along the easterly right-of-way line of said Interstate Highway 35W to the beginning of a curve to. the right; THENCE continuing along the easterly right-of-way line of said Interstate Highway 35W and with said curve to the right, through a central angle of 009°00'37", having a radius of 6541.97 feet, the long chord of which bears N 05°07'30"E, 1027.73 feet, an arc distance of 1028.79 feet; THENCE N 09°55'51 "E, 134.93 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 10°29'25"E, 622.83 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 11°14'59"E, 930.32 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 17°13'22"E, 186.31 feet across Keller -Haslet Road (County Road 4042), returning to the easterly right-of-way line of said Interstate Highway 35W; THENCE N 11°14'55"E, 884.13 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 12°58'01 "E, 232.01 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 12°58'01 "E, 96,22 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; • THENCE N 11°14'55"E, 131.23 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 08°27'37"E, 162.97 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE S 88°28'S8"E, 28.90.60 feet; THENCE S 00°35'41 "W, 1506.70 feet to the centerline of the aforementioned Keller -Haslet Road; THENCE N 89°43'16"E, 448.16 feet continuing along the centerline of said Keller -Haslet Road; C&B Job No. 011900.651 J:1JOB1011900651SURIWP\LEG\EXHIB1T A.doc April 12, 2004 Page 2 of 3 THENCE S 89°09'14"E, 1147.86 feet continuing along the centerline of said Keller -Haslet Road; THENCE S 87°58'59"E, 1247.61 feet continuing along the centerline of said Keller -Haslet Road; THENCE N 89°31'02"E, 1280.34 feet continuing along the centerline of said Keller -Haslet Road; THENCE S 89°38'23"E, 731.92 feet continuing along the centerline of said Keller -Haslet Road; THENCE S 22°45'57"E, 733.32 feet, crossing State Highway 170, to the centerline of Alta Vista Road (County Road 4053); THENCE S 00°06'23"E, 1286.78 feet along the centerline of Alta Vista Road; THENCE S 00°32'07"W, 80I.35 feet continuing along the centerline of Alta Vista Road; THENCE N 89°27'54"W, 385.35 feet; THENCE S 63°01'27"W, 2495.17 feet; THENCE N 28°03'21 "W, 168.24 feet; THENCE N 44°11'19"W, 955,22 feet; THENCE S 64°19'09"W, 2249.53 feet to the existing west right-of-way line of Old Denton Road (County Road 4048); THENCE S 00°41131 "W, 1910.95 feet along the existing west right-of-way Iine of Old Denton Road; THENCE N 89°39'58"W, 3379.51 feet to the POINT OF BEGINNING and containing 981 acres of land more or less. NOTE: THIS DOCUMENT WAS PREPARED UNDER 22 TAC S663.21, AND DOES NOT REFLECT THE RESULTS OF AN ON THE GROUND SURVEY, AND IS NOT TO BE USED TO CONVEY OR ESTABLISH INTERESTS IN REAL PROPERTY, EXCEPT THOSE RIGHTS AND INTERESTS IMPLIED OR ESTABLISHED BY THE CREATION OR RECONFIGURATION OF THE BOUNDARY OF THE POLITICAL SUBDIVISION FOR WHICH 1T WAS PREPARED. C&B Job No. 011900.651 J:UOB\01190065\SUR\WP1LEG\EXHIBIT A.doc April 12, 2004 Page 3 of 3 EXHIBIT A LEGAL DESCRIPTION TIP DISTRICT CITY OF FORT WORTH, TEXAS ETJ BEING a tract of land.situated in the H. Creed Survey, Abstract Number 1898, and the M.E.P. & P. RR. Survey, Abstract Number 1143, Tarrant County, Texas and being more particularly described by metes and bounds as follows: COMMENCING at the southwest corner of Lot 2, Block 1, Alliance Gateway West Addition, as recorded in Cabinet A, Slide 5817, Plat Records, Tarrant County, Texas, said point being in the existing east right-of-way line of Interstate Highway 35W; THENCE N 00°12' 16"E, 152.52 feet along the easterly right-of-way line of said Interstate Highway 35W to the beginning of a curve to the right; THENCE continuing along the easterly right-of-way line of said Interstate Highway 35W and with said curve to the right, through a central angle of 02°40'04", having a radius of 4563.66 feet, the long chord of which bears N 01°36'33"E, 212.47 feet, an arc distance of 212.49 feet; THENCE N 01°12'30"E, 1235.75 feet continuing along the easterly right-of-way line of said Interstate Highway 35W and across State Highway 170, again along the easterly right-of-way line of said Interstate Highway 35W to the beginning of a curve to the right; THENCE continuing along the easterly right-of-way line of said Interstate Highway 35W and with said curve to the right, through a central angle of 02°04'52", having a radius of 11540.73 feet, the long chord of which bears N 00°46'13"W, 419.14 feet, an arc distance of 419.16 feet; THENCE N 01°48'25"W, 133.37 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 88°07'58"E, 6.25 feet continuing along the easterly right-of-way line of said Interstate Highway 3SW; THENCE N 01°36'22"W, 199.97 feet continuing along the easterly right-of-way line of said Interstate Highway 35W to the beginning of a.curve to the right; THENCE continuing along the easterly right-of-way line of said Interstate Highway 35W and with said curve to the right, through a central angle of 02°24'33", having a radius of 9816.25 feet, the long chord of which bears N 00°40'09"W, 412.74 feet, an arc distance of 412.77 feet; THENCE N 00°15'47"E, 180.44 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; C&B Job No. 011900651 J:UOB101190065\S UR\WP\LEG\etj,doc April 20, 2004 Page I of 3 THENCE N 05°09'38"W, 55.38 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 00°16'30"E, 223.28 feet continuing along the easterly right-of-way line of said Interstate Highway 35W to the beginning of a curve to the right; THENCE continuing along the easterly right-of-way line of said Interstate Highway 35W and with said curve to the right, through a central angle o1009°00'37", having a radius of 6541.97 feet, the long chord of which bears N 05°07'30"E, 1027.73feet, an arc distance of 1028.79 feet; THENCE N 09°55'51 "E, 134.93 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 10°2925"E, 622.83 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 11°14'59"E, 930.32 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 17°13'22"E, 186.31 feet across Keller -Haslet Road (County Road 4042), returning to the easterly right-of-way line of said Interstate Highway 35W; THENCE N 11°14'55"E, 884.13 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 12°58'O1 "E, 232.01 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 12°58'01 "E, 96.22 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 11°14'55"E, 131.23 feet continuing along the easterly right -cif -way line of said Interstate Highway 35W; THENCE N 08°27'37"E, 162.97 feet continuing•along the easterly right-of-way line of said Interstate Highway 35W; THENCE S 88°28'58"E, 2890.60 feet to Old Denton Road; THENCE S 00°35'41 "W, 1485.20 feet along Old Denton Road to Keller -Haslet Road and the POINT OF BEGINNING. THENCE S 89°54'46"W, 2637.53 feet along said Keller -Haslet Road; THENCE S 00°12'58"E, 207.77 feet; C&B Job No. 011900651 J:U0B101190065\SUR\WPILEG\etj.doc April 20, 2004 Page 2 of 3 THENCE S 13°31'06"W, 490.39 feet; THENCE S 09°58'06"W, 368.01 feet to the east line of that certain tract of land described by deed to AIL Investment, L.F., Volume 13130, Page 246, Deed Records, Tarrant County, Texas; THENCE S 00°03'10"W, 1268.60 feet along said east line to the southeast corner of said AIL tract, and also a point in the north line of that certain tract of land described by deed to Hillwood/Freeway Ltd, as recorded in Volume 9527,.page 1011; Deed Records, Tarrant County, Texas now known as AIL Investment, L.P.; THENCE S 00°55'57"E, 366.82 feet along the north line of said Hillwood tract; THENCE N 89°44'38"E, 2666.17 feet continuing along the north line of said Hillwood tract to Old Denton Road; THENCE N 00°16'12"E, 2075.32 feet along Old Denton Road; THENCE N 15°53'57"E, 120.79 feet continuing along said Old Denton Road; THENCE N 25°29'11 "E, 204.78 feet continuing along said Old Denton Road; THENCE N 14°36'14"E, 114.86 feet continuing along said Old Denton Road; THENCE N 01°31'40"E, 165.67 feet continuing along said Old Denton Road to the aforementioned Keller -Haslet Road; THENCE S 89°43'16"W, 20.46 feet along said Keller -Haslet Road; THENCE N 00°35'41"E, 21.50 feet to the POINT OF BEGINNING and containing 164 acres of land more or less. NOTE: THIS DOCUMENT WAS PREPARED UNDER 22 TAC S663.21, AND DOES NOT REFLECT THE RESULTS OF AN ON THE GROUND SURVEY, AND IS NOT TO BE USED TO CONVEY OR ESTABLISH INTERESTS IN REAL PROPERTY, EXCEPT THOSE RIGHTS AND INTERESTS IMPLIED OR ESTABLISHED BY THE CREATION OR RECONFIGURATION OF THE BOUNDARY OF THE POLITICAL SUBDIVISION FOR WHICH IT WAS PREPARED. C&B Job No. 011900651 J:\JOB\0119006.5\SUR\WP\LEG\etj.doc April 20, 2004 Page 3 of 3 EXHIBIT "C" Category 1 Costs Public Improvement Site Development Costs Land Costs for Public Purpose Earthwork Grading Wet Pond/Stormwater Management Landscaping/Hardscape Lake & Stream Environmental Pond & Stream Relocation Mitigation Sewer Relocation Demolition Soft Costs (Architectural/Engineering/Legal/Administration) Streets/Roads Utility Right -of -Way Grading/Paving internal streets/roads/parking Highway Improvements — curb cuts, turning lanes Streets/Roads Traffic Signage/Signalization Utilities Water Lines Sanitary Sewer Relocate Storm Sewer/Drainage Stream Structure Street Lighting Electrical Public Museum Facilities See Schedule 3.2 2541661 EXHIBIT I C Table 1 Tax Increment Reinvestment Zone #10, City of Fort Worth, Texas (Lone Star TIF) Estimated Project Costs Land Cost: Wet Pond/Site Detention $ 419,439 Cabela's Site - Public Purpose $ 1,080,329 $ 1,499,768 Off -Site Development Cost: Highway Improvements -Curb Cuts & Turning Lanes $ 500,000 Streets/Roads - Cabela's Dr. $ 2,125,000 Water Line 16" $ 72,000 Water Line 12" $ 162,500 Engineering Cost $ 200,000 Site Development Cost: Environmental -Pond & Stream Relocate/Mitigate $ 950,000 -Landscape/Hardscape Lake & Stream $ 1,400,000 Demolition $ 80,000 Earthwork/Grading $ 500,000 Stormwater Management $ 80,000 Cabela's Parkway $ 240,000 Sewer Relocate $ 150,000 Engineering Cost $ 152,000 Sitework: Grading $ 200,000 Paving - Internal Streets/Roads Parking Lots - Cars $ 3,000,000 Parking Lots - RV/Trucks $ 420,000 Landscaping $ 800,000 Electrical $ 550,000 Site Utilities $ 800,000 Drainage Stream Structure $ 198,000 Building: Museum/Display Space $ 8,492,227 (Museum, Mountain, Aquarium, Diorama) Public Area $ 960,000 (Confer.Rms, Restrooms, Public Support Space) Retail Space Warehouse $ 3,059,500 $ 3,552,000 $ 5,968,000 $ 9,452,227 Special Features: $ 2,000,000 Statue, Taxidermy, Mural Soft Costs: $ 448,942 Arch/Engineering Cost, Cabela's Administration Finance & Legal: $ 200,000 Additional Public Infrastructure Projects: $ 5,000,000 Interest Expense: $ 26,052,472 Total Estimated TIF Projects $ 57,232,909 Rep Title -f Texas, Inc. GF&2 CR7 FF EXHIBIT DECLARATION OF COVENANTS, RESTRICTIONS AND EASEMENTS FOR ALLIANCE LONE STAR ASSOCIAI01 %..- -,- .e.. t--I -- t --,.. 1 C.' .--:.' ,.... •—: 1 rTlr'Ti ..,,, m ca Tv >4. It ...:- TN) >...• w , 2004 Return toC"‘ CR7 Republic Title of Texas. Inc 2626 Howell Street, 10th Floor Dallas TX 75204..gas 007670.00067:842395.07 TABLE OF CONTENTS ARTICLE I GENERAL Section 1.01 Purpose Section 1.02 Definitions Section 1.03 Property Subject to Declaration Section 1.04 Purpose of Association ARTICLE II DESIGNATION OF LOTS, STREETS AND ZONING Section 2.01 Designation of Lots Section 2.02 Designation of Streets Section 2.03 Zoning ARTICLE III MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION Section 3.01 Membership 8 Section 3.02 Member in Good Standing 8 Section 3.03 Classes of Voting Members 9 Section 3.04 Quorum, Voting and Notices 9 ARTICLE IV ASSESSMENTS Section 4.01 Covenants for Assessments Section 4.02 Regular Assessments Section 4.03 Special Purpose Assessments Section 4.04 Special Member Assessments Section 4.05 Due Date of Assessments 10 10 11 11 12 007670.00067: 8423 95.07 Section 4.06 Personal Obligation for Payment Assessments Section 4.07 Assessment Lien and Foreclosure Section 4.8 Certificate 12 12 13 ARTICLE V ASSOCIATION BOARD OF DIRECTORS Section 5.01 Creation of Board 14 Section 5.02 Use of Assessment Funds 14 Section 5.03 Additional Authorities and Duties of the Association 15 Section 5.04 Affiliated Contracts 17 Section 5.05 Liability Limitations 17 Section 5.06 Insurance 18 ARTICLE VI DEVELOPMENT REVIEW BOARD Section 6.01 Creation of Development Review Board 18 Section 6.02 Function of Development Review Board 18 Section 6.03 Plans and Specifications 19 Section 6.04 Inspections 23 Section 6.05 Interior Alterations 23 Section 6.06 Changes 23 Section 6.07 Limitation of Liability 23 Section 6.08 Certificate of Compliance 24 Section 6.09 Documentation 24 ARTICLE VII DEVELOPMENT COVENANTS 007670.00067: 8423 95.07 Section 7.01 General Section 7.02 Prohibited Uses Section 7.03 Setbacks Section 7.04 Site Circulation Section 7.05 Fire Protection Section 7.06 Parking Section 7.07 Signage Section 7.08 External Illumination Section 7.09 Antennae and Towers Section 7.10 Underground Utilities Section 7.11 Screening Section 7.12 Loading Docks and Areas Section 7.13 Landscaping Section 7.14 Parkway Landscape Areas Section 7.15 Trash and Garbage Section 7.16 Surface Water Flow and Drainage Section 7.17 Environment Section 7.18 Fuel Facilities Section 7.19 Fences Section 7.20 Prohibited Activities Section 7.21 Certain Declarant Uses Section 7.22 Construction Standards 24 25 28 29 30 30 30 30 30 30 31 31 31 31 32 32 32 33 34 34 34 34 007670.00067:842395.07 ARTICLE VIII EASEMENTS Section 8.01 Utility and Service Easements Section 8.02 Other Easements 35 36 ARTICLE IX MAINTENANCE BY OWNERS 36 ARTICLE X GENERAL PROVISIONS Section 10.01 Binding Effect and Duration 37 Section 10.02 Other Persons 37 Section 10.03 Interpretation 37 Section 10.04 Amendments 38 Section 10.05 Enforcement 39 Section 10.06 No Waiver or Obligation to Enforce 39 Section 10.07 Liens/Validity and Severability 39 Section 10.08 Owner/Occupant Records 40 Section 10.09 Notices 40 Section 10.10 Mortgagees 40 Section 10.11 Approvals 40 007670.00067:842395.07 DECLARATION OF COVENANTS, RESTRICTIONS AND EASEMENTS FOR ALLIANCE LONE STAR ASSOCIATION This Declaration of Covenants, Restrictions and Easements for Alliance Lone Star Association is made as of the day of June, 2004, by AIL Investment, L.P., a Texas limited partnership ("Declarant"). Declarant is the owner of certain real property located in Tarrant County, Texas, described in the attached Exhibit A (the "Pronerty") except for portions thereof (a) that have been dedicated or conveyed to governmental entities for public rights -of -way, drainage areas or other public purposes, and (b) that have been conveyed to other Persons (hereinafter defined). Declarant is the developer of the Property. Declarant intends that the Property be developed as a high quality multi -use business and retail community and that the Property be subject to the covenants, restrictions and easements set forth in this Declaration in order to establish a plan for the development, improvement and use of the Property with architectural, landscaping and maintenance controls. Declarant intends to create an entity to have and exercise the rights and duties and to perform on behalf of, and as agent for, the Owners (hereinafter defined) the functions set forth in this Declaration which include, without limitation, the maintenance of certain portions of the Property, the reviewing of plans for improvements to be constructed on the Property and the assessing, collecting and disbursing of assessments provided for herein. NOW, THEREFORE, Declarant adopts, establishes and imposes the following covenants, restrictions, easements, liens and charges upon the Property and declares that the Property and all portions thereof are and shall be held, transferred, sold, conveyed and occupied subject to such covenants, restrictions, easements, liens and charges set forth herein. ARTICLE I GENERAL SECTION 1.01. PURPOSE. The purpose of this Declaration is to promote the orderly development and use of the Property; to encourage the construction of quality -designed Improvements (hereinafter defined) on the Property; to restrict certain uses of the Property; to provide for certain development and maintenance standards; and generally to preserve the aesthetic appearance of the Property and Improvements constructed thereon from time to time. SECTION 1.02. DEFINITIONS. The following words or phrases when used in this Declaration shall have the following meanings: a. "Alliance Airport" shall mean Fort Worth Alliance Airport owned by the City of Fort Worth and located in close proximity to the Property; b. "Assessments" shall have the meaning set forth in Section 4.01 of this Declaration. 1 007670.00067:842395.07 c. "Association" shall mean the non-profit corporation to be created under the laws of the State of Texas under the name "Alliance Lone Star Association" or such other name as is selected by Declarant or its successors. d. "Association Documents" shall mean the Articles of Incorporation and the Bylaws of and the resolutions adopted by the Association. e. "Board" shall mean the Board of Directors of the Association. f. "Building Setback" shall have the meaning set forth in Section 7.03 of this Declaration. g. "City" shall mean the City of Fort Worth, Texas. h. "Common Areas" shall mean: (i) Unpaved Right -of -Way; (ii) Project Identification Signage Areas; (iii) Special Landscape Areas; (iv) creeks, streams, waterways, water courses, drainage areas, detention/retention ponds and other ponds and lakes, and floodplain and floodway within the Property: (1) that are designated in writing by Declarant or the Association, from time to time, as Common Areas; (2) that are required by the City to be provided, improved, constructed, maintained, and/or dedicated (including dedication to the City or to any entity created by Declarant or the Association for the express purpose of accepting such dedication) as a condition to or requirement of development of the Property; and (3) that are not otherwise the responsibility of the City or any Owner; (v) public parks and recreational areas and private parks and recreational areas (excluding golf courses) that are open to use by the Owners within the Property; (vi) any other areas designated as such by a Special Vote of the Class A members; and (vii) any other areas or improvements within the Property: (1) that are designated in writing by Declarant or the Association, from time to time, as Common Areas; (2) that are required by the City to be provided, improved, constructed, maintained, and/or dedicated (including dedication to the City or to any entity created by Declarant or the Association for the express purpose of accepting such 7 007670.00067:842395.07 dedication) as a condition to or requirement of development of the Property including, but not limited to, open space, hike and bike trails, equestrian trails, town edge landscape zones, roadway landscape zones, and roadway median landscaping; and (3) that are not otherwise the responsibility of the City or any Owner. i. "Common Expenses" shall mean any and all expenses incurred by or on behalf of the Association, as agent for the Owners, for the maintenance, repair and operation of the Common Areas, the Landscaping in the Common Areas (to the extent not required to be performed by the Owners) and the Common Facilities, for the provision of the Common Services and as otherwise incurred in accordance with and as authorized in this Declaration. "Maintenance and repair" as used in this Declaration includes not only all labor and materials necessary to keep the Common Areas, the Landscaping in the Common Areas and the Common Facilities in good and neat appearance and in good operating condition, but also all parts and replacement materials necessary to keep such in good appearance and operating condition and shall include, but not be limited to, replacement trees, plants and other vegetation, except that Common Expenses shall not include the replacement of trees or shrubs that die within one year after the installation thereof by Declarant, the replacement of which shall be the responsibility of Declarant. j. "Common Facilities" shall mean all Landscaping, athletic fields and courts, jogging and bike trails, lighting, signage, entry -way features, guard houses, gates and water features (and related equipment) installed in the Common Areas, all equipment of any nature (including, but not limited to, vehicles) used by the Association in connection with the repair, maintenance or operation of the Common Areas and the Landscaping in the Common Areas or the provision of the Common Services, and, to the extent approved by a Special Vote of the Class A Members, other equipment, structures and improvements installed within the Common Areas. k. "Common Services" shall mean such services provided from time to time by Declarant or obtained by the Association on behalf of and for the common benefit of the Owners that have been approved by a Special Vote of the Class A Members. 1. "Conversion Date" shall mean the earlier of (i) the date on which Declarant and all affiliates of Declarant own in the aggregate less than 5% of the acres comprising the Property (exclusive of Streets and Common Areas), or (ii) the date Declarant voluntarily terminates its Class B Member status by recording a written notice of such termination in the Real Property Records of Tarrant County, Texas. Any Person owned or controlled by Declarant, by any partner of Declarant or by any Person owning or controlling any partner of Declarant, shall be considered an "affiliate" of Declarant for the purpose of this definition. m. "Declarant" shall mean AIL Investment, L.P., a Texas limited partnership. and such successors or assigns to whom rights and powers reserved herein to 3 007670.00067:842395.07 Declarant expressly are conveyed or assigned in writing, but shall not include any person or entity merely purchasing one or more Sites, or portions thereof, from Declarant. n. "Declaration" shall mean this Declaration of Covenants, Restrictions and Easements for Alliance Lone Star Association, and all amendments thereto filed for record in the office of the County Clerk of Tarrant County, Texas. o. "Default Rate of Interest" means the lesser of (i) 18% per annum, or (ii) the maximum allowable contract rate of interest under applicable law. p. "Development Guidelines" shall mean those guidelines adopted by the Board pursuant to the provisions of Section 5.03(m) of this Declaration. q. "DRB" shall mean the Development Review Board of the Association. r. "Front Yard Setbacks" shall have the meanings set forth in Section 7.03 of this Declaration. s. "Governmental Entity" shall mean the City, the County of Tarrant, the State of Texas and any agency or department thereof and the United States of America and any agency or department thereof t. "Improvements" shall mean any and all changes to the Property, from initial construction through later construction or maintenance, which are intended to be temporary or permanent in nature (other than changes made during a period of construction which will be removed when the construction period is complete), including, but not limited to, new buildings and structures, changes to building exteriors and exterior roof structures, parking areas, loading areas, vehicle circulation lanes and approaches, private driveways and streets, utility and drainage systems, surface parking areas and parking structures, exterior lighting, sculptures, sidewalks, fences, walls, Landscaping, poles, antennae, ponds, lakes, fountains, swimming pools, tennis or athletic courts, signs, changes in exterior color or shape, glazing or reglazing of exterior windows and any new exterior construction or exterior improvement which may not be included in any of the foregoing. "Improvements" include both original improvements and all later changes and improvements. u. "Landscaping" shall mean plants, including, but not limited to, grass, vines, ground cover, trees, shrubs, flowers, mulch and bulbs; rocks; landscape edging; water features; berms; lighting in landscaped areas; irrigation systems and related landscape improvements and materials. v. "Majority Vote of the Members" shall have the meaning set forth in Section 3.04 of this Declaration. w. "Member" shall have the meaning set forth in Section 3.01 of this Declaration. 4 007670.00067:842395.07 x. "Member in Good Standing' shall have the meaning set forth in Section 3.02 of this Declaration. y. "Non -Member Owners" shall have the meaning set forth in Section 3.01 of this Declaration. z. "Notice of Unpaid Assessments" shall have the meaning set forth in Section 4.07 of this Declaration. aa. "Owner" shall mean each Person (other than the Association) who is a record owner of any parcel of land within the Property, but excluding any Person who holds only a lien in any parcel of land within the Property as security for the performance of an obligation. bb. "Parkway Landscape Area" shall mean a strip of land along each side of median -divided Streets measured from the back of the outside curbing of the pavement on such Street. The exact width of such area (which may vary) shall be as designated by Declarant. cc. "Parkway Landscape Plan" shall mean the plan adopted by Declarant, as such may be amended by Declarant from time to time, specifying the nature, type, scheme, extent and maintenance of Landscaping required to be installed by an Owner of a Site (other than Declarant or the Association) in the Parkway Landscape Area. dd. "Paving Setbacks" shall have the meanings set forth in Section 7.03 of this Declaration. ee. "Person" shall mean any natural person, corporation, partnership, trust or other legal entity. ff. "Project Identification Signage Areas" shall mean those portions of the Property designated by Declarant or the Association from time to time (and owned by Declarant or the Association at such time of designation) as areas in which project signage identifying the development name for the Property or other entry features, structures or Landscaping are or are to be installed. gg. "Property" shall mean the real property described in Exhibit A attached hereto subject to any additions thereto or deletions therefrom as provided in Section 1.03 of this Declaration. hh. "Quorum" shall have the meaning set forth in Section 3.04 of this Declaration. ii. "Regular Assessments" shall have the meaning set forth in Section 4.01 of this Declaration. 5 007670.00067:842395.07 jj. "Side and Rear Yard Setbacks" shall have the meaning set forth in Section 7.03 of this Declaration. kk. "Site" shall mean any single parcel of land within the Property on which Improvements are or are to be constructed. 11. "Special Purpose Assessment" shall have the meaning set forth in Section 4.03 of this Declaration. mm. "Special Landscape Areas" shall mean those areas along or in the vicinity of Streets designated by Declarant (and owned by Declarant or the Association at the time of such designation) in which Declarant installs special Landscaping. nn. "Special Member Assessment" shall have the meaning set forth in Section 4.04 of this Declaration. oo. "Special Vote of the Class A Members" shall have the meaning set forth in Section 3.04 of this Declaration. pp. "Street" shall mean any land located within an easement or a right-of-way in or adjacent to the Property now or at any time hereafter dedicated to any governmental entity for public use as a roadway for motor vehicles. qq. "Unpaved Right -of -Way" shall mean medians in Streets and the portion of a Street between the outside edge of the Street pavement (or curbs if curbs are installed) and the right-of-way line of the Street. Other terms used in this Declaration are defined in various provisions used herein. SECTION 1.03. PROPERTY SUBJECT TO DECLARATION. Declarant, from time to time and without the necessity of the joinder of any other Person, (a) may subject additional land to the provisions of this Declaration provided that such additional land is adjacent to the Property or to a Street adjacent to the Property and the aggregate of all such additional land does not exceed five hundred (500) acres, and (b) may delete from the Property parcels sold to Governmental Entities provided that the aggregate acreage deleted does not exceed fifty (50) acres (exclusive of Streets and Common Areas). Declarant may do so by recording a supplement to this Declaration in the Real Property Records of Tarrant County, Texas. Declarant, in deleting tracts from the Property as permitted in (b) above, (i) shall impose on such deleted tract restrictions requiring development of that tract substantially in accordance with the provisions of Article VII of this Declaration and the Development Guidelines, and (ii) at its election, may provide in documents related to the conveyance of such tract to a Governmental Entity that this Declaration again may become applicable to such deleted parcel if such parcel is conveyed in the future to a Person other than a Governmental Entity, and if such occurs, the parcel that again becomes a part of the Property and subject to this Declaration shall not be included in the computation of the five hundred (500) acres under (a) above. The teini "Property" as used in this 6 007670.00067:842395.07 Declaration shall include any such additional tracts that from time to time are subjected to the provisions of this Declaration as provided above and shall not include any tracts that from time to time are deleted as provided above (subject to the provisions of the preceding sentence). All of the Property and any right, title or interest therein shall be owned, held, leased, sold and/or conveyed by Declarant, and any subsequent Owner, lessee, tenant or other occupant of all or any part thereof, subject to this Declaration and the covenants, restrictions, easements, charges and liens set forth in this Declaration. Each Owner, lessee, tenant or other occupant of any portion of the Property, by the acceptance of a deed, lease or other conveyance or transfer of any interest in the Property or any portion thereof, shall be deemed to have covenanted and agreed to be bound by the provisions of this Declaration. SECTION 1.04. PURPOSE OF THE ASSOCIATION. The Association shall have and exercise the rights and shall perform the functions of the Association for the benefit of, and as agent for, the Owners as set forth in this Declaration. ARTICLE II DESIGNATION OF LOTS. STREETS, AND ZONING SECTION 2.01. DESIGNATION OF LOTS. Declarant shall have the right and power, but not the obligation, to subdivide all or any portion of the Property owned by Declarant, without the necessity of the joinder of any other Person, into subparcels or platted lots. Declarant shall have the further right and power, but only with respect to portions of the Property owned by Declarant and without the necessity of the joinder of any other Person, to withdraw its designation of any part thereof as a lot, to redesignate previously designated areas thereof as a lot having different boundaries and configurations from those previously described and to divide or subdivide a lot into one or more lots. An Owner, other than Declarant, may create platted lots on its Site or modify any existing platted lots on its Site only with the prior written approval of such action by Declarant prior to the Conversion Date or by the Board after the Conversion Date. SECTION 2.02. DESIGNATION OF STREETS. Declarant shall have the right and power, from time to time, to dedicate, designate, reserve, convey fee simple title or grant easements for Streets in portions of the Property owned by Declarant at the time of such action. The provisions of this Declaration shall be subordinate to the rights of the City in such dedicated Streets. No Owner other than Declarant shall have the right to dedicate, designate, reserve, convey fee simple title or grant easements for Streets on any portion of the Property owned by such Owner unless such action is approved in writing by Declarant prior to the Conversion Date or by the Board after the Conversion Date. This provision does not restrict any Owner from installing private roadways for its own use within its own Site in compliance with the provisions of this Declaration. SECTION 2.03. ZONING. Declarant shall have the right and power, from time to time, to change the zoning of any portion of the Property owned by Declarant in such manner as Declarant deems appropriate for the overall development of the Property. No Owner other than Declarant shall apply for any change in zoning of any portion of the Property owned by such 7 007670.00067:842395.07 Owner unless such zoning change is approved in writing by Declarant prior to the Conversion Date or by the Board after the Conversion Date. ARTICLE III MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION SECTION 3.01. MEMBERSHIP. Each and every Owner automatically is a member of the Association ("Member"), except for the following ("Non -Member Owners"): (i) the City shall not be considered as a Member during such time that it owns only Streets, public utility easements, drainage easements or parcels used solely for a fire or police station or public park, unless the City agrees in writing to become a Member of the Association; and (ii) any public utility shall not be considered a Member during such time that it owns only a utility easement or a parcel used solely for a utility sub -station, unless such utility agrees in writing to become a Member of the Association. Membership in the Association is appurtenant to, and cannot be separated from, ownership of a parcel in the Property by an Owner other than a Non -Member Owner. The membership of a Person in the Association shall terminate automatically whenever such Person ceases to be an Owner, except that such termination shall not release or relieve such Person from any liability or obligation arising under this Declaration during his period of ownership. Any transfer of title to any parcel in the Property shall operate automatically to transfer (or, in cases of a transfer by a Non -Member Owner, to vest) membership in the Association appurtenant to such parcel to the new Owner, unless such new Owner is a Non -Member Owner. The term "Owner" as used in Article III and Article IV of this Declaration does not include any Non -Member Owner, except as otherwise specifically provided in Article IV below. SECTION 3.02. MEMBER IN GOOD STANDING. A Member shall be considered to be a "Member in Good Standing" and eligible to vote if such Member: a. Has, at least ten days prior to the taking of any vote by the Association, fully paid all Assessments or other charges levied by the Association, as such Assessments or charges are provided for hereunder; b. Does not have a Notice of Unpaid Assessments filed by the Association against the parcel in the Property owned by such Owner; and c. Has discharged all other obligations to the Association as may be required of Members hereunder or under the Association Documents. The Board shall have sole authority for determining the good standing status of any Member at any time and shall make such determination with respect to all Members prior to a vote being taken by the Association on any matter. The Board shall have the right and authority, in its sole discretion, to waive the ten-day prior payment requirement and require only that such payment be made at any time before such vote is taken if the Board shall determine, in its own judgment, that extenuating circumstances exist which have prevented prior payment. Any Member not conforming with the provisions of this Section 3.02 shall be declared by the Board not to be a 8 007670.00067:842395.07 Member in Good Standing and shall not be entitled to vote on matters before the Association until such time as Member in Good Standing status is attained and so declared by the Board. SECTION 3.03. CLASSES OF VOTING MEMBERS. The Association shall have two classes of voting membership. a. Class A. "Class A Members" shall be all Members including Declarant. Class A Members shall be entitled to one vote for each acre in the Property (exclusive of Streets and Common Areas) owned by such Owners (rounded to the nearest 1/100th of an acre) as of the date of the notice of the meeting at which such vote is to be cast. For the purpose of this Section 3.03 and for any other reason that acreage or other area is necessary to be determined under this Declaration, the Board shall determine the acreage contained in the Property and the acreage or applicable area contained in specific parcels or portions thereof If any parcel is owned by more than one Owner, the number of votes attributable to such parcel shall be the same number of votes as if there were only one Owner of such parcel, and the votes attributable to such parcel may be cast only if all of the Owners owning such parcel, prior to the time of the vote in question, have delivered to the Association a written agreement as to how such votes are to be cast or a written designation of one of such Owners to cast the votes attributable to such parcel. Any Member who is not an individual must designate a representative to act for such Member in Association matters and to cast votes for such Member, such designation to be made in writing to the Board. A Member may delegate its right to vote to any tenant occupying its parcel provided such delegation is made in writing delivered to the Board. b. Class B. The only "Class B Member" shall be Declarant. The Class B Member shall be entitled to a number of votes equal to 101% of the aggregate of all votes eligible to be cast by Class A Members; provided, however, the Class B membership shall cease on the Conversion Date, and Declarant thereafter shall only be a Class A Member for so long as it owns any portion of the Property. SECTION 3.04. QUORUM, VOTING AND NOTICES. Members holding 25% of the aggregate votes entitled to be cast by Class A Members in Good Standing, represented at a meeting of the Members in person or by a legitimate proxy in a form approved by the Board, shall constitute a quorum for voting on matters brought before the Members at meetings called by the Board (a "Quorum"). The vote of Members in Good Standing (considering all Class A Members and the Class B Member as one voting class) holding, in the aggregate, a majority of the votes entitled to be cast by the Members in Good Standing present or voting by legitimate proxy at a called meeting at which a Quorum is present (the "Majority Vote of the Members") shall be the act of the Members. Notice requirements for all actions proposed to be taken by the Association which require a voted approval by the Members shall be given as set forth in the Association Documents, as such may be amended from time to time. The term "Special Vote of the Class A Members" as used herein, means, at the time such vote is to be taken, the written consent of Declarant (until the Conversion Date) plus the vote of Class A Members in Good Standing (including Declarant) holding, in the aggregate two-thirds of the votes eligible to be cast by all Class A Members in Good Standing (including Declarant) present or voting by legitimate proxy at a called meeting at which a Quorum is present. 9 007670.00067:842395.07 ARTICLE IV ASSESSMENTS SECTION 4.01. COVENANTS FOR ASSESSMENTS. Each Owner of a parcel within the Property, by acceptance of a deed or other conveyance or transfer of legal title to the Property or any portion thereof, whether or not it shall be so expressed in any such deed or other conveyance, shall be deemed to have covenanted and agreed to pay to the Association, or to an independent entity or agency which may be designated by the Association to receive such monies, the following assessments ("Assessments"): a. Regular Assessments as provided for in Section 4.02 below; b. Special Purpose Assessments as provided for in Section 4.03 below; and c. Special Member Assessments as provided in Section 4.04 below. All Assessments shall remain the Property of the Owner making such payment and shall be expended by the Association on behalf of the Owners only for the specified purposes provided in this Declaration. No profit, gain or other benefit is to be derived by the Association from the Assessments, but, instead, such funds shall be expended only as agent for the Owners. All services contemplated to be paid from Assessments shall be obtained by the Association on behalf of the Owners. Upon termination of the Association, all Assessments held at that time by the Association shall be allocated and returned to the Owners in the same manner as votes are allocated among Class A members as provided in Section 3.03(a) above. SECTION 4.02. REGULAR ASSESSMENTS. "Regular Assessments" shall be determined, assessed and expended on a calendar year basis, which shall be the fiscal year of the Association; provided, however, that Regular Assessments may be assessed and expended for the partial year from the date of this Declaration through December 31, 2004. Regular Assessments shall be used for the payment of Common Expenses and other expenses incurred by the Association or the Board on behalf of the Owners as authorized in this Declaration (exclusive of the expenses referenced in Section 4.04 below). Regular Assessments from the date of this Declaration through December 31, 2004 shall be set by the Board as the Board deems reasonably necessary to pay applicable expenses for such partial year. Thereafter, for 2005 and each following year while this Declaration is in force, the Board shall set the amount of the Regular Assessments to be levied for the next calendar year, taking into consideration Common Expenses for the then current year (annualized with respect to 2004 expenses), expected increases in such expenses during the next year, a contingency amount (not exceeding 5% of the anticipated expenditures for such next year) and an optional reserve fund contribution (not exceeding 3% of the anticipated expenditures for such next year); provided, however, no reserve fund contribution amount shall be included in Regular Assessments for any year in which the unused balance of the reserve fund equals or exceeds 10% of the other anticipated expenditures for that year. The Regular Assessments for each calendar year beginning with 2005 shall be set by the Board on or 10 007670.00067:842395.07 about November 1 of the preceding year or as soon thereafter as such determination reasonably can be made by the Board. Regular Assessments shall be allocated among all Owners (including Declarant) in the same manner as votes are allocated among Class A Members as provided in Section 3.03(a) above, that is, the percentage of the aggregate Regular Assessments allocated to a particular parcel in the Property shall be a fraction with the numerator equal to the number of Class A Member votes allocable to such parcel and with the denominator equal to the aggregate number of votes for all Class A Members. Should any excess surplus exist at the end of any year, the Board shall reduce the amount required for the next year's Regular Assessments by an amount equal to such surplus. SECTION 4.03. SPECIAL PURPOSE ASSESSMENTS. The Board may, from time to time, levy for the partial year from the date of this Declaration through December 31, 2004 and any calendar year beginning on or after January 1, 2005, applicable to that year (or initial partial year, if applicable) only, a "Special Purpose Assessment" for the purpose of paying any unanticipated expense that normally would have been paid out of Regular Assessments which was not included in that year's budget for Regular Assessments. Such Special Purpose Assessments shall be allocated among Owners (including Declarant) in the same manner as the Regular Assessments are allocated among the Owners. SECTION 4.04. SPECIAL MEMBER ASSESSMENTS. The Board may levy a "Special Member Assessment" on any Member, to the extent any directly related insurance proceeds paid to the Association are not sufficient to pay all such costs, for the purpose of: a. Paying the cost of any damage or loss requiring maintenance, repairs or replacement of Common Areas, Landscaping in the Common Areas, the Special Landscape Areas or in the Parkway Landscape Area or Common Facilities, which damage or loss has been determined by the Board to have been caused, either directly or indirectly, by the acts of such Member, or its agent, employee, occupant or visitor; or b. Reimbursing the Association for any and all direct or indirect costs incurred by the Association with regard to the maintenance, repair or replacement of Landscaping, signs, screening or decorative walls, surface parking areas, ponds, lakes, fountains, pools, exterior lighting or devices, sculptures, utilities, drainage systems, park and recreational facilities and equipment on such Member's parcel or on the Unpaved Right -of -Way contiguous to such parcel, including, but not limited to, the removal of trash, litter and abandoned items, that such Member fails to repair, maintain or replace as required by the provisions of this Declaration, provided such Member fails to correct such deficiency within seven days after written notice thereof is given to such Owner by the Board (or in cases where such deficiency cannot reasonably be corrected within seven days, within a reasonable period of time necessary to correct such deficiency provided that the Owner commences corrective work within such seven-day period and thereafter proceeds diligently to complete such corrective work). The provisions of this Section 4.04 apply also to each Non -Member Owner, and each Non -Member Owner is liable for any Special Member Assessment made against such Non -Member Owner, and, to the fullest extent permitted by law, such Non -Member Owner's 11 007670.00067:842395.07 particular Site is subject to a lien to secure payment of such Special Member Assessment, all as provided in Section 4.06 and Section 4.07 below. SECTION 4.05. DUE DATE OF ASSESSMENTS. The Regular Assessments provided for herein shall be payable annually within 30 days after an invoice is delivered by the Association to an Owner; provided, however, the Board shall have the right to require payment of Regular Assessments at other intervals if it deems such is appropriate (but with payment not required any earlier than 30 days after delivery of the invoice therefor). The due date of any Assessment under Section 4.03 or Section 4.04 shall be fixed in the notice to the Owner or Owners providing for such Assessment, but will not be sooner than 30 days after the date of such notice. SECTION 4.06. PERSONAL OBLIGATION FOR PAYMENT OF ASSESSMENTS. The Assessments provided for herein shall be the personal and corporate debt of the Owner of the portion of the Property with respect to which such Assessment is made. No Owner, for any reason, may exempt itself from liability for Assessments. In the event that any Assessment or part thereof is not paid when due, the Owner or Owners of such property shall be obligated to pay interest on such unpaid Assessment from such due date at the Default Rate of Interest together with all costs and expenses of collection thereof, including, but not limited to, reasonable attorneys' fees. The Board shall have the right to reject any partial payment of any Assessment and demand full payment thereof, or the Board may, in its sole discretion, elect to accept any such partial payment on account only, without in so doing waiving any rights established hereunder with respect to any remaining balance due. The obligation of any Owner to pay an Assessment with respect to a parcel made for any period of time that an Owner owns the parcel shall remain its personal or corporate obligation, as the case may be (notwithstanding any future sale or conveyance of its parcel), and shall not pass to unrelated third -party purchasers of such property or portion thereof unless expressly assumed by such purchaser. However, the lien for any unpaid Assessments shall be unaffected by any sale or assignment of full or partial ownership interest in such property affected thereby, or portion thereof, and shall continue in full force and effect. In the event of full or partial sale of an ownership interest in any portion of the Property, it shall be the obligation of the then Owner of such interest to disclose to any buyer, assignee, title company designated to handle such transaction, fmancing entity or other party to such sale any unpaid Assessments, such notice to be given in writing to all parties to the intended transaction at least 15 days before that date at which such transaction is to be consummated. A copy of such notice shall be sent to the Association at the same time. A former Owner shall not be liable for Assessments made with respect to a parcel after such Person no longer is the Owner of such parcel. SECTION 4.07. ASSESSMENT LIEN AND FORECLOSURE. ALL SUMS ASSESSED IN THE MANNER PROVIDED FOR IN THIS ARTICLE, TOGETHER WITH INTEREST FROM SUCH DUE DATE AT THE DEFAULT RATE OF INTEREST AND THE COSTS OF COLLECTION, INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS' FEES, ARE SECURED BY A CONTLNUING CONTRACTUAL LIEN AND CHARGE ON THE PROPERTY COVERED BY SUCH ASSESSMENT, WHICH SHALL BIND SUCH PROPERTY AND THE OWNER 12 007670.00067:g42395 n7 THEREOF AND ITS HEIRS, SUCCESSORS, DEVISEES, PERSONAL REPRESENTATIVES AND ASSIGNEES. The aforesaid continuing contractual lien shall attach to the Property as of the date of the recording of this Declaration and shall be superior to all liens other than (a) a deed of trust or mortgage constituting a lien on the land of an Owner, (b) any sale and leaseback agreement or lease and subleaseback agreement whereby an Owner sells and simultaneously acquires a possessory interest under a lease from or other agreement with such transferee, and (c) the lien securing real estate taxes; provided, however, the types of liens referenced in (a) and (b) above shall be inferior and subordinate to the lien securing the obligation to pay Assessments to the extent of all unpaid Assessments set forth in any recorded Notice of Unpaid Assessments (as defined below) existing as of the date of such other lien that has not been duly released by the Association. The Association shall have the power to subordinate the aforesaid Assessment lien to any other lien. The exercise of such power shall be entirely discretionary with the Association. Except for a conveyance to a purchaser at a foreclosure sale pursuant to a lien to which the Assessment lien is subordinate as provided above, all parcels within the Property are conveyed to and accepted and held by the Owner thereof subject to the Assessment lien provided for in this Section 4.07. To evidence any unpaid Assessments, the Association may prepare a written notice of unpaid Assessments (the "Notice of Unpaid Assessments") setting forth the amount of the unpaid indebtedness, name of the Owner of the affected property and a description of the affected property. Such notice shall be signed by one of the officers of the Association and shall be recorded in the Real Property Records of the county in which the affected parcel is located. The Association shall record an appropriate release of any recorded Notice of Unpaid Assessments when the amounts referenced therein have been paid. THE LIEN FOR PAYMENT OF ASSESSMENTS MAY BE ENFORCED BY FORECLOSURE OF THE LIEN UPON THE DEFAULTING OWNER'S PROPERTY BY THE ASSOCIATION SUBSEQUENT TO THE RECORDING OF THE NOTICE AS PROVIDED ABOVE EITHER BY JUDICIAL FORECLOSURE OR BY NONJUDICIAL FORECLOSURE THROUGH A PUBLIC SALE IN LIKE MANNER AS A MORTGAGE ON REAL PROPERTY IN ACCORDANCE WITH SECTION 51.002, TEXAS PROPERTY CODE, AS SUCH MAY BE REVISED, AMENDED, SUPPLEMENTED OR REPLACED FROM TIME TO TIME. In addition, the Association may institute suit against the Owner personally to obtain a judgment for unpaid Assessments. In any foreclosure proceeding, whether judicial or nonjudicial, or in any other suit against the Owner, the Owner shall be required to pay the costs, expenses and reasonable attorneys' fees incurred by the Association. The Association shall have the right and power to buy the property at foreclosure or other legal sale and to acquire, hold, lease, mortgage, convey or otherwise deal with the same. Upon the written request of any mortgagee holding a lien on any part of the Property, the Association shall report to said mortgagee any Assessments which are delinquent and unpaid at the time of the report. SECTION 4.08. CERTIFICATE. Upon request by an Owner, the Association shall furnish a certificate setting forth any unpaid Assessments owed by an Owner. 13 007670.00067:842395.07 ARTICLE V ASSOCIATION BOARD OF DIRECTORS SECTION 5.01. CREATION OF BOARD. The Association shall be governed by the Board elected by a Majority Vote of the Members. The size and composition of the Board, its method of election and its duties and authorities shall be as provided in the Association Documents and this Declaration, except that all members of the Board shall be Owners or employees, agents or officers of Owners. The Board shall exist and function solely for the benefit of the Property, the Association and the Members. SECTION 5.02. USE OF ASSESSMENT FUNDS. The Board shall be responsible for the setting, collection and disbursement of Assessments. In general, the Board shall be empowered to cause the Association to take the following actions and to expend Regular Assessment and Special Purpose Assessment funds for the following purposes: a. the payment of the Common Expenses; b. if approved by a Special Vote of the Class A Members, the employment of contractors to maintain and repair Streets and utilities, but only to the extent that the City (or other responsible Governmental Entity) or appropriate utility company fails to do so in a manner deemed appropriate in the judgment of the Board; c. the employment of independent consultants or independent contractors to manage day-to-day operations of the Association; provided, however, neither the directors of the Association nor members of the DRB shall be paid any salary or other compensation for serving in such capacity; d. the employment of legal, accounting, engineering, architectural or other independent professional services, including, but not limited to, any services required to provide architectural review for any plans for the construction of Improvements on a Site; e. the purchase of a policy or policies of insurance insuring the Association, the Board and the DRB against any liability to the public or to the Owners (and/or visitors or occupants) incident to operation of the Association or the DRB; f. the purchase of fidelity bonds as provided hereunder; g• the payment for materials, supplies, services, maintenance, repairs, alterations, insurance, ad valorem and other taxes on property owned by the Association or in which the Association has an easement and general and administrative expenses which, in the opinion of the Board, shall be necessary or proper for the operation or protection of the Association or for the enforcement of this Declaration, including, but not limited to, reasonable expenses of the DRB; and 14 007670.00067:842395.07 h. the payment of costs incurred in the exercise and perfoiunance by the Board or the Association of any of their authorities, duties and rights set forth in this Declaration. In addition to the expending of Regular Assessment and Special Purpose Assessment funds for the aforementioned purposes, the Board also shall be empowered to expend funds collected through Special Member Assessments for those purposes set forth in Article IV of this Declaration. SECTION 5.03. ADDITIONAL AUTHORITIES AND DUTIES OF THE ASSOCIATION. Subject to the provisions of Section 7.01(b) below, the Board shall have the following additional authorities and duties exercisable on behalf of the Association with respect to performance of the rights and obligations of the Association hereunder and the right to expend Assessment funds to pay the costs thereof: a. to enter into agreements or contracts with respect to: (i) insurance coverage for Common Areas and the Common Facilities; (ii) utility consumption and services matters necessary for the operation of the Common Areas and the Common Facilities and the provision and operation of the Common Services; (iii) maintenance, repair and operation of Common Areas, Landscaping in the Common Areas, in the Unpaved Right -of -Way and in the Parkway Landscape Areas and Common Facilities; and (iv) design, engineering and other consultant contracts; b. to determine the Common Services that should be obtained by the Association for the benefit of the Owners, subject to the approval of a Special Vote of the Class A Members; c. to designate Common Areas and Common Facilities not listed in Section 1.02(h) and Section 1.026), subject to the approval of a Special Vote of the Class A Members: d. to designate Project Identification Signage Areas; e. to borrow funds to pay any costs of operation, secured by assignment or pledge of Assessments, as the Board may determine to be necessary and appropriate in accordance with this Declaration; f. to enter into contracts for goods and services or other purposes, maintain one or more bank accounts and generally to have all the powers necessary or incidental as may be required for prudent operation and management of the Association; g• to sue or to defend in any court of law on behalf of the Association; h. to make, or cause to be made, any tax returns, reports or other filings required by federal, state or local governmental authorities; 15 007670.00067:842395.07 i. to make available to each Owner within 90 days after the end of any Association fiscal year a written annual report on financial affairs of the Association for the preceding year, and, upon written request of Members in Good Standing holding two-thirds of the Class A Member votes eligible to be cast by all of the Class A Members in Good Standing, to have such report audited by an independent certified public accountant selected by the Board, which audited report, if required, shall be completed and made available to each Member as soon as practical after a request is received by the Board; provided, however, prior to the Conversion Date, unless Declarant votes in favor of such audit, the cost shall be borne by all Class A Members other than Declarant, and the Association may require that such audit costs be paid in advance; j. to adjust the amount, collect and use any insurance proceeds to repair or replace any damaged or lost property or to reimburse persons or entities entitled to receive reimbursement for injury, damage or losses, and, if said insurance proceeds are insufficient to provide full reimbursement as may be required, the Board may act to collect funds through Special Purpose Assessments or Special Member Assessments, whichever is applicable; k. to enforce the provisions of this Declaration and the Development Guidelines and to enjoin action or seek damages and/or remedial action from any Owner for violation of this Declaration or the Development Guidelines, which right shall include, but is not limited to, the right, but not the obligation, to enter onto any part of the Property to perform obligations of the Owner thereof who has failed to do so in accordance with the provisions of this Declaration or the Development Guidelines; 1. to maintain books and records with respect to all aspects of the operations of the Association and to the levy, collection, receipt, administration, expenditure and disposition of all Assessments and other funds held by the Association in accordance with sound accounting practices (that separately reflect all Association reserve funds), and to peiuuiit any Owner (or a person designated by such Owner in writing) to inspect, copy and audit the same upon reasonable notice during normal business hours at an office of the Association or the Declarant located in Tarrant County, Denton County or Dallas County, Texas; m. to promulgate Development Guidelines (the "Development Guidelines") to serve as a guide for Owners in the planning and construction of Improvements and as a guide for the DRB in reviewing and approving or disapproving plans and specifications for Improvements and to revise such from time to time as the Board, in its discretion, deems appropriate, with copies of revisions to be furnished to all Owners. The Development Guidelines shall not contain any provisions (i) that conflict with the provisions of this Declaration, (ii) that attempt to prohibit uses that comply with Section 7.01(a) below and that are not prohibited by Section 7.02 below, or (iii) that restrict or diminish rights of Owners as specifically provided in this Declaration; n. to appoint members of the DRB as described in Article VI below; 16 007670.00067:842395.07 o. to own fee simple title or an easement interest to the Special Landscape Areas, the Project Identification Signage Areas, the Common Areas and any other areas determined by the Board to be appropriate; p. to promulgate reasonable rules governing the use of the Common Areas, the Common Facilities and the Common Services; and q. to perform such other duties and functions as are necessary to carry out the rights and obligations of the Board and the Association under this Declaration. The Association shall have the right to perform such other functions, and to utilize Assessments to pay the cost -thereof, to the extent that such other functions and services are approved by a Special Vote of the Class A Members. SECTION 5.04. AFFILIATED CONTRACTS. The Board, acting on behalf of the Association, shall have the full power and authority to contract with any Owner, including, without limitation, Declarant, for performance of services which the Association is obligated or authorized to obtain, such contracts to be at competitive rates then prevailing for such services and upon such other terms and conditions, and for such consideration as the Board may deem advisable and in the best interest of the Association provided that the level of service received is consistent with that available from third parties. SECTION 5.05. LIABILITY LIMITATIONS. No Member, director, officer or representative of the Association shall be personally liable for debts or liabilities of the Association. The directors and officers of the Association shall not be liable for any mistake of judgment, whether negligent or otherwise, except for their own individual willful misfeasance or malfeasance, misconduct, bad faith, intentional wrongful acts, approval of actions that violate the provisions of Section 7.01(b) below or as provided in the Association Documents. Such directors and officers shall have no personal liability with respect to any contract or other commitment made by them, in good faith, on behalf of the Association, and the Association, as a Common Expense of the Association, shall indemnify and hold such directors and officers harmless from any and all expense, loss or liability to others on account of any such contract or commitment (to the extent not covered by insurance proceeds). In addition, each director and each officer of the Association shall be indemnified and held harmless by the Association, as a Common Expense of the Association, from any expense, loss or liability to others (to the extent not covered by insurance proceeds) by reason of having served as such director or as such officer and against all expenses, losses and liabilities, including court costs and reasonable attorneys' fees, incurred by or imposed upon such director or officer in connection with any proceeding to which he may be a party or have become involved by reason of being such director or officer at the time such expenses are incurred subject to any provisions regarding indemnity contained in the Association Documents, except in cases wherein the expenses, losses and liabilities arise from a proceeding in which such director or such officer is adjudicated guilty of willful misfeasance or malfeasance, misconduct, bad faith in the performance of his duties or intentional wrongful acts, approval of actions that violate the provisions of Section 7.01(b) below or any act specified in the Association Documents as 17 007670.00067:842395.07 an act for which any limitation of liability set forth in the Association Documents is not applicable (this indemnity does cover liabilities resulting from such director's or officer's negligence). In the event of a settlement of any such proceeding, the indemnification provided hereby shall apply only when the Board approves such settlement and reimbursement as being in the best interests of the Association. Any right to indemnification provided for herein shall not be exclusive of any other rights to which a director or officer, or former director or officer, may be entitled. The Association shall have the right to purchase and maintain, as a Common Expense, directors' and officers' insurance on behalf of any person who is or was a director or officer of the Association against any liability asserted against him and incurred by him in such capacity, or arising out of his status as such. SECTION 5.06. INSURANCE. The Association, acting through the Board, shall have the right to purchase, carry and maintain in force, to the extent such is available (a) liability insurance covering any employees and any and all portions of the Common Areas, and any improvements thereon or appurtenant thereto, and covering the Common Facilities, Common Services and the Parkway Landscape Areas for the interest of the Association, the Board, agents and employees, and of all Members, in such coverage and amounts and with such endorsements as shall be considered by the Board, in its sole discretion, to be reasonable, (b) errors and omissions insurance for the Board, officers of the Association and the DRB and (c) fidelity bonds for all Board members, officers or employees of the Association. The Board shall carry such insurance at such limits of coverage and with financially sound companies licensed to do business in Texas as the Board deems appropriate. Notwithstanding the above, the Association shall carry and maintain, to the extent such coverage is reasonably available as determined by the Board, liability insurance with policy limits of at least $1,000,000 covering occurrences in the Common Areas or as the result of the operation of Common Services or Common Facilities. The Association shall use any net insurance proceeds for the purpose the insurance was intended, including, but not limited to, the repair and/or replacement of any damaged or lost property, whether real or personal. Any unused balance from the proceeds of insurance paid to the Association shall be retained by the Association for use in the payment of Common Expenses. Should insurance proceeds be insufficient to fully reimburse any loss or damage, the Association may levy a Special Purpose Assessment or a Special Member Assessment, whichever is applicable, to cover such deficiency. ARTICLE VI DEVELOPMENT REVIEW BOARD SECTION 6.01. CREATION OF DEVELOPMENT REVIEW BOARD. The Association shall establish and maintain a Development Review Board (the "DRB") consisting of not fewer than three persons appointed by the Board. At least two members of the DRB shall be Owners or employees, agents or officers of Owners. Until the Conversion Date, the appointment of the members of the DRB must be approved by Declarant, and any or all members of such DRB may be removed by the Board or Declarant with or without cause. After the Conversion Date, the Board then shall have the exclusive right and authority at any time, and 18 007670.00067:842395.07 from time to time thereafter, to create and fill vacancies on the DRB and to remove members of the DRB with or without cause. SECTION 6.02. FUNCTION OF DEVELOPMENT REVIEW BOARD. A function of the DRB is to review and approve or disapprove plans and specifications for Improvements proposed to be installed or modified on portions of the Property. NO IMPROVEMENTS SHALL BE ERECTED, CONSTRUCTED, PLACED, ALTERED, REMODELED, DEMOLISHED OR PERMITTED TO REMAIN ON SUCH PORTION OF THE PROPERTY UNTIL PLANS AND SPECIFICATIONS, IN SUCH FORM AND DETAIL AS THE DRB MAY DEEM REASONABLY NECESSARY, SHALL HAVE BEEN SUBMITTED TO THE DRB AND APPROVED BY IT IN WRITING. The vote of a majority of the members of the DRB shall be considered as the act of the DRB. The Board, from time to time, may establish and revise a standard review fee which must be paid by an Owner at the time plans are submitted for review. The DRB shall have the authority to select and employ professional consultants to assist it in discharging its duties if the DRB determines that it does not have sufficient expertise or time to review any submitted plans, the cost of such consultants to be paid by the Owner of the Site for which plans and specifications have been submitted for approval, which cost shall be in addition to the review fee referenced above. The process of reviewing and approving plans and specifications is one which of necessity requires that the DRB is called upon from time to time to make subjective judgments on items for which specific standards or guidelines are not expressly set forth in this Declaration or the Development Guidelines. The DRB is given full power and authority to make any such subjective judgments and to interpret the intent and provisions of this Declaration and the Development Guidelines hi such manner and with such results as the DRB, in its sole discretion, may deem appropriate, and in the absence of final adjudication by a court of competent jurisdiction that the DRB has abused its discretion, such action by the DRB shall be final and conclusive. While the Development Guidelines are intended as a general guide for development within the Property, the DRB shall have the right to grant variances from the Development Guidelines as it, in its sole judgment, deems appropriate; provided, however, such variances may not be used as to allow violations of this Declaration. The DRB shall have the sole discretion to determine whether plans and specifications submitted to it for approval are acceptable, and the DRB or the Association shall be entitled and empowered to enjoin or remove any construction undertaken pursuant to plans and specifications that have not been approved in writing by the DRB. Improvements for which DRB approval is required are to be constructed in accordance with the Development Guidelines in existence as of the date the preliminary plans therefor are submitted to the DRB as required hereunder. Subsequent changes to the Development Guidelines shall not require changes in existing construction or plans previously approved by the DRB. THE RIGHTS AND POWERS OF THE DRB UNDER THIS ARTICLE VI ARE SUBJECT TO THE PROVISIONS OF SECTION 7.01(b) BELOW. SECTION 6.03. PLANS AND SPECIFICATIONS. a. The DRB shall have the right to disapprove any submitted plans that are not in compliance with this Declaration and the Development Guidelines, if they are incomplete or if the DRB determines that such plans are deficient from an engineering or 19 007670.00067:842395.07 design standpoint. The DRB may base its approval or disapproval on, among other things: (1) architectural character of all proposed Improvements, taking into consideration the aesthetic quality of any structures with respect to height, form, proportion, volume, siting, exterior materials and roofing materials (with regard to type, scale, texture, color and durability), proposed quality of workmanship and the appearance of the Improvements from the air; (2) adequacy of Site dimensions for the proposed Improvements; (3) conformity and harmony of external design with Improvements on neighboring Sites and types of operations and uses thereof; (4) relation to topography, grade and finish ground elevations to that of neighboring Sites; (5) effect of the Improvements on aircraft navigation or communication and communication or navigation aids or equipment; (6) screening of mechanical and other installations; (7) functional appropriateness with respect to vehicle handling, pedestrian circulation, siting of buildings (both in relationship to one another and in relationship to buildings, existing or proposed, located on other Sites), drainage, utility service systems and lighting; (8) (9) extent and quality of landscaped areas; exterior signing; or (10) compliance with the purpose and general plan, intent and provisions of this Declaration and the Development Guidelines; The DRB shall be available on a reasonable basis, upon reasonable request of an Owner, to meet with an Owner or its representatives to discuss and answer questions concerning proposed Improvements and their compliance with this Declaration and the Development Guidelines. b. DUE TO THE LOCATION OF THE PROPERTY IN THE VICINITY OF ALLIANCE AIRPORT, IMPROVEMENTS TO BE CONSTRUCTED ON A SITE MAY BE SUBJECT TO GUIDELINES AND REQUIREMENTS OF THE FEDERAL AVIATION ADMINISTRATION. THE DRB SHALL HAVE THE RIGHT TO 20 007670.000F1'sta"zos rn REQUIRE FEDERAL AVIATION ADMINISTRATION APPROVAL OF ANY IMPROVEMENTS. c. The development review process consists of three phases: the Concept Plan Phase, the Preliminary Plans Review and the Final Plans Review. d. The Concept Plan Phase is the opportunity for the DRB to communicate to an Owner any specific development requirements for the Owner's Site and for the Owner to present to the DRB such Owner's concept design for the Improvements proposed to be constructed or installed on its Site. The concept design plan submitted by the Owner shall provide and show all information specified and required in the Development Guidelines. The DRB must approve in writing the Owner's design concept before the DRB will accept the Owner's submission for Preliminary Plans Review. THIS DESIGN CONCEPT PRESENTATION SHALL OCCUR AS EARLY AS POSSIBLE IN THE DESIGN PHASE FOR ANY IMPROVEMENTS. A PRIMARY PURPOSE OF THIS INITIAL PRESENTATION IS TO IDENTIFY ANY GENERAL DESIGN ASPECTS OF THE PROPOSED IMPROVEMENTS THAT ARE UNACCEPTABLE TO THE DRB AT A TIME PRIOR TO THE OWNER HAVING INCURRED SUBSTANTIAL DESIGN AND ENGINEERING COSTS. e. Based on the design concept approved by the DRB, the Owner shall submit to the DRB its preliminary plans for the proposed Improvements on its Site for Preliminary Plans Review by the DRB. Such plans shall provide and show all of the information, drawings and data specified and required in the Development Guidelines and such other information as may be required by the DRB. The DRB must approve in writing the Owner's preliminary plans for such Improvements before the DRB will accept the Owner's submission for Final Plans Review. f. Based upon the preliminary plans approved by the DRB, the Owner shall submit to the DRB its final plans and specifications for the proposed Improvements on its Site for Final Plans Review by the DRB. Such plans and specifications shall be prepared by an architect, professional engineer, landscape architect and land surveyor (as appropriate) registered under Texas law, bearing the signature, seal and certification of such architect, professional engineer, landscape architect and land surveyor and shall provide and show all of the information, drawings and data specified and required in the Development Guidelines and such other information as may be required by the DRB. The plans shall be accompanied by the written certification by the Owner's architect that the Improvements comply with the provisions of the Development Guidelines and this Declaration. If any of the plans or specifications that are submitted do not comply with this Declaration or the Development Guidelines, the Owner's architect, in such certificate, shall specify and explain any noncompliance. g. At the request of an Owner, the DRB shall review plans for phased or "fast -track" construction prior to reviewing plans for the completed construction project. All additional costs of consultants necessary to provide this type of review shall be paid 21 007670.00067:842395.07 by the Owner. Any such request for such approval procedure shall be at the risk of such Owner, because the DRB shall have the right to withhold further approvals or to withdraw its approval of plans previously submitted if later plans for further construction on such Site result in such previously approved Improvements no longer being in substantial compliance with this Declaration or the Development Guidelines or being consistent in all material respect with plans for the Site previously approved by the DRB. In such event, the Owner shall modify any such previously constructed Improvements as may be required by the DRB. h. Approval of plans and specifications shall be based upon a determination by the DRB as to whether or not in its judgment such plans and specifications adequately meet objectives established for the Property with regard to aesthetic quality, as well as meeting the requirements created by this Declaration and the Development Guidelines. The DRB shall notify the Owner of the DRB's disapproval of any portion of the plans or other submissions and shall give the reasons for such disapproval. Approval of any plans and specifications with regard to certain Improvements shall not be deemed a waiver of the DRB's right, in its discretion, to disapprove similar plans and specifications, or any of the features or elements included therein, for any other Improvements or to refrain from granting similar variances. i. If any submission of plans is not complete or does not include all data required by this Declaration or the Development Guidelines, the DRB, within 15 days after such submission, shall notify the Owner of such deficiencies, and such plans shall not be considered to have been submitted until such deficiencies have been corrected. Should the DRB fail to approve or disapprove any concept design plans, preliminary plans or final plans, properly presented by an Owner as provided above, within 20 days after submittal thereof to the DRB in a form and fully complete as required by the DRB and the Development Guidelines, it shall be presumed that the DRB has approved such properly submitted plans and specifications, unless prior to the end of such 20-day period, the DRB shall have notified the Owner submitting such plans and specifications in writing that an additional time period, not to exceed ten days, is needed for further review, after which additional period it shall be presumed that approval has been given absent specific disapproval in writing having been given by the DRB during such additional review period. The DRB in the future may modify, by provisions in the Development Guidelines, the procedure for the submission and review of plans provided the review times set forth above are not materially changed. j. If work is not commenced within 18 months from the date of DRB approval of final plans, then the approval given pursuant to this Article VI shall be deemed revoked by the DRB, unless the DRB extends the time for commencing work. In any event, all work covered by such approval, once commenced, shall be constructed with due diligence and completed as soon as reasonably possible, but must be completed within three years of the commencement thereof, except for such period of time as such completion is rendered impossible or would result in great hardship due to strikes, fires, national emergencies, critical materials shortages or other intervening forces beyond the control of the Owner, unless the DRB extends the time for completion. 22 007670.00067:842395.07 SECTION 6.04. INSPECTIONS. The DRB, or its designees, shall have the right during reasonable business hours to enter upon and inspect any Site or Improvements then under construction to determine whether or not the plans therefor have been approved by the DRB. If the DRB shall determine that such plans have not been approved or that the plans which have been so approved are not being substantially complied with, the DRB may, in its discretion, give the Owner of such Site and Improvements written notice to such effect, and, thereafter, the Board or the DRB, on behalf of the Association, shall be entitled to enjoin further construction and to require the removal or correction of any work in place that does not comply with approved Plans. If any Improvements shall be altered or replaced on any Site otherwise than in substantial conformity with the approved plans therefor, such action shall be deemed to have been undertaken without requisite approval of the DRB and to be in violation of this Declaration; and the Board or the DRB, on behalf of the Association, shall be entitled to take action as permitted under this Declaration with respect thereto. SECTION 6.05. INTERIOR ALTERATIONS. Notwithstanding any other provisions of this Declaration or the Development Guidelines, an Owner may make improvements and alterations within the interior of any building on its Site without first obtairing DRB approval, provided such do not change the exterior appearance of any Improvements. SECTION 6.06. CHANGES. No construction or installation of Improvements on a Site that is inconsistent with, in addition to or materially different from any previously approved plans shall be commenced or permitted until the plans reflecting such change or addition have been submitted to and approved by the DRB in accordance with this Article VI: provided, however, no such approval is required for changes within the interior of any building that do not change exterior appearance. SECTION 6.07. LIMITATION OF LIABILITY. Declarant, the Association, the Board or any of its members and the DRB or any of its members, shall not, individually or in combination, be liable in damages or otherwise to any Person submitting plans or specifications for approval or to any Owner of any portion of the Property, by reason of subjective decisions, mistake in judgment, negligence or nonfeasance arising out of or in connection with he approval or disapproval or failure to approve or to disapprove any plans and specifications submitted; provided, however, this provision does not apply to acts of willful misfeasance or malfeasance, misconduct, bad faith, intentional wrongful acts, the requirement of actions that violate the provisions of Section 7.01(31 below or to any act specified in the Association Documents as an act for which any limitation of liability set forth in the Association Documents is not applicable. Declarant, the Association, the Board or any of its members and the DRB or any of its members shall not, individually or in combination, be liable in damages or otherwise in connection with any construction, design, engineering or defect associated with any Improvement constructed on the Property. APPROVAL OF PLANS AND SPECIFICATIONS BY THE DRB DOES NOT CONSTITUTE ANY WARRANTY OR REPRESENTATION THAT SUCH PLANS AND SPECIFICATIONS COMPLY WITH GOVERNMENTAL REQUIREMENTS OR GOOD AND PRUDENT DESIGN, ENGINEERING AND CONSTRUCTION PRACTICES. IT IS THE SOLE RESPONSIBILITY OF THE OWNER TO 23 Anne, �......." DETERMINE AND SEE THAT ITS PLANS AND SPECIFICATIONS COMPLY WITH SUCH REQUIREMENTS AND PRACTICES. SECTION 6.08. CERTIFICATE OF COMPLIANCE. Upon request by an Owner who has complied with the provisions of this Article VI, the Association shall deliver to such Owner, a written certificate of such compliance in recordable form, and such certificate shall be conclusive evidence of such compliance. SECTION 6.09. DOCUMENTATION. Within 60 days after completion of any Improvements, the Owner of such Site shall provide to the Association as -built site, utility, drainage and landscape plans, plans for irrigation systems in the Parkway Landscape Area on and adjacent to such Site and such other as -built information which may be requested by the Board or the DRB. ARTICLE VII DEVELOPMENT COVENANTS SECTION 7.01. GENERAL. a. No use shall be permitted on the Property which is not allowed under applicable public codes and ordinances either already adopted or as may be adopted by the City or other controlling public authority. Each Owner, occupant or other user of any portion of the Property at all times shall comply with this Declaration and the Development Guidelines and with any and all laws, ordinances, policies, rules, regulations and orders of all federal, state, county and municipal governments or their agencies having jurisdictional control over the Property, specifically including, but not limited to, applicable zoning restrictions placed upon the Property as they exist from time to time and rules and regulations of the Federal Aviation Administration. IN SOME INSTANCES GOVERNMENTAL REQUIREMENTS MAY BE MORE OR LESS RESTRICTIVE THAN THE PROVISIONS OF THIS DECLARATION AND THE DEVELOPMENT GUIDELINES. IN THE EVENT A CONFLICT EXISTS BETWEEN ANY SUCH GOVERNMENTAL REQUIREMENT AND ANY REQUIREMENT OF THIS DECLARATION OR THE DEVELOPMENT GUIDELINES, THE MOST RESTRICTIVE REQUIREMENT SHALL PREVAIL, EXCEPT IN CIRCUMSTANCES WHERE COMPLIANCE WITH A MORE RESTRICTIVE PROVISION OF THE DECLARATION OR THE DEVELOPMENT GUIDELINES WOULD RESULT IN A VIOLATION OF MANDATORY APPLICABLE GOVERNMENTAL REQUIREMENTS, IN WHICH EVENT THOSE GOVERNMENTAL REQUIREMENTS SHALL APPLY. COMPLIANCE WITH MANDATORY GOVERNMENTAL REQUIREMENTS WILL NOT RESULT IN THE BREACH OF THIS DECLARATION OR THE DEVELOPMENT GUIDELINES EVEN THOUGH SUCH COMPLIANCE MAY RESULT IN NON-COMPLIANCE OF PROVISIONS OF THIS DECLARATION OR THE DEVELOPMENT GUIDELINES. WHERE A GOVERNMENTAL REQUIREMENT DOES NOT 24 007670.00067:842395.07 CLEARLY CONFLICT WITH THE PROVISIONS OF THIS DECLARATION OR THE DEVELOPMENT GUIDELINES BUT PERMITS ACTION THAT IS DIFFERENT FROM THAT REQUIRED BY THIS DECLARATION OR THE DEVELOPMENT GUIDELINES, THE PROVISIONS OF THIS DECLARATION AND THE DEVELOPMENT GUIDELINES SHALL PREVAIL. All portions of the Property shall be developed in accordance with this Declaration as such may be amended as herein provided. The provisions of this Article VII set forth certain requirements which, in addition to the other provisions of this Dedaration and the Development Guidelines, shall apply with respect to the development and use of the Property. b. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE PROVISIONS OF THIS DECLARATION OTHER THAN THIS SECTION 7.01(b), THE ASSOCIATION, THE BOARD AND THE DRB SHALL NOT HAVE THE RIGHT OR AUTHORITY TO EXERCISE ANY OF THE POWERS OR RIGHTS GRANTED TO ANY OF THEM IN THIS DECLARATION IN SUCH A MANNER AS TO PROHIBIT THE USE BY ANY OWNER OF ITS SITE FOR ANY USE (a) THAT COMPLIES WITH THE FOREGOING PROVISIONS OF SECTION 7.01(a) ABOVE, AND (b) THAT IS NOT PROHIBITED BY THE PROVISIONS OF SECTION 7.02 BELOW. BY WAY OF EXAMPLE, THE BOARD SHALL NOT ADOPT (INITIALLY OR BY AMENDMENT) DEVELOPMENT GUIDELINES THAT ARE DESIGNED TO PROHIBIT AN OWNER'S USE OF ITS SITE THAT OTHERWISE WOULD BE IN COMPLIANCE WITH THE PROVISIONS OF SECTION 7.01(a) ABOVE AND NOT PROHIBITED BY SECTION 7.02 BELOW. FURTHER, BY WAY OF EXAMPLE, THE DRB SHALL NOT EXERCISE ITS APPROVAL RIGHTS UNDER ARTICLE VI OF THIS DECLARATION IN A MANNER INTENDED TO PROHIBIT AN OWNER'S USE OF ITS SITE THAT OTHERWISE WOULD BE IN COMPLIANCE WITH THE PROVISIONS OF SECTION 7.1(a) ABOVE AND NOT PROHIBITED BY SECTION 7.02 BELOW. THE PROVISIONS OF THIS SECTION 7.01(b), HOWEVER, DO NOT AFFECT (i) THE RIGHT AND AUTHORITY OF THE ASSOCIATION, THE BOARD OR THE DRB TO EXERCISE THEIR RIGHTS AND POWERS SET FORTH IN THIS DECLARATION, OR (ii) THE OBLIGATIONS OF EACH OWNER TO COMPLY FULLY WITH THE PROVISIONS OF THIS DECLARATION, SPECIFICALLY, BY WAY OF EXAMPLE, BUT NOT IN LIMITATION, THE PROVISIONS OF ARTICLES VI AND VII OF THIS DECLARATION NOTWITHSTANDING ANY INCIDENTAL EFFECT OF SUCH COMPLIANCE ON AN OWNER'S USE OF ITS SITE. SECTION 7.02. PROHIBITED USES. Without limiting the generality of Section 7.01 above, the following uses are prohibited on the Property: a. residential uses, including, but not limited to, mobile homes and trailer courts; provided, however, that the following uses are permitted: (i) hotels and motels and (ii) short term RV camper parking (including overnight parking) by customers of outdoor sporting goods retailers whose interior floor area exceeds 200,000 square feet on 25 007670.00067:842395.07 such retailers' site; provided, however, that the ratio of the number of RV camper parking spaces to the number of total parking spaces on such outdoor sporting goods retailers' site shall not exceed two percent (2%) of the total parking spaces on such outdoor sporting goods retailers' site. For example, if the number of total parking spaces on such outdoor sporting goods retailers' site is 100, the number of RV camper parking spaces allowed on that site shall be no more than two (2); b. hospitals; nursing homes; institutions or other facilities providing residential convalescent or rehabilitative care; establishments for the residential in -patient care, treatment or rehabilitation of alcoholic, narcotic or psychiatric patients; residence homes for the aged; and institutions, homes or rehabilitation centers for persons convicted of crimes; provided, however. notwithstanding anything contained herein to the contrary, (i) medical, dental or optical clinics for the examination, consultation or treatment of patients as out -patients, (ii) medical laboratories and research facilities, (iii) establishments for the sale or rental or industrial facilities for the manufacture of medical or optical supplies and equipment; (iv) pharmacies; (v) veterinarian clinics and related facilities; (vi) public safety or emergency medical facilities operated by or in connection with Alliance Airport; and (vii) medical uses incidental to a business conducted at Alliance Airport or on the Property, are permitted; c. junk yard, salvage yard or storage facility for abandoned vehicles, abandoned aircraft or abandoned aircraft or vehicle parts; d. the dumping and incineration of garbage or refuse of any nature, except as the DRB may specifically permit in writing; provided, however, that the use of the commercial sewage station permitted in Section 7.02(m) hereunder is permitted under this Section 7.2(d); e. the smelting of iron, tin, zinc or other ore unless specifically permitted in writing by the DRB; f. sanitary landfill; g. pawn shop; h. sexually -oriented business such as, but not limited to, x rated movie or video sales, theater or rental facility, nude modeling studio, massage parlor, lounge or club featuring nude or semi-nude entertainers or escort service; i. slaughterhouse or facility for the rendering of animal substances or for the skinning or tanning of animal hides; j. drive-in movie theater; k. elementary and secondary education schools; 26 007670.00067:842395.07 1. feed lot for or storage or housing of animals, except that the following uses are permitted: (i) temporary storage of animals in shipment; (ii) grazing of cattle for the purpose of obtaining or maintaining special agricultural ad valorem tax valuations, are permitted; and (iii) dog runs, kennels, and horse corrals for the temporary housing of such animals on an outdoor sporting goods retailers' site whose interior floor area exceeds 200,000 square feet, solely for the convenience of such retailers' customers while shopping at the store; provided, however, that the area allowed for such dog runs, kennels and house corrals shall be limited to: (a) the lesser of 1,600 SF or .3% of the site landscape area for use as dog runs and kennels, and (b) the lesser of 1,750 SF or .3% of the site landscape area for use as horse corrals. The outdoor sporting goods retailer must obtain final approval from the DRB for the location, materials, and screening used in the construction, use and maintenance of such facilities prior to the commencement of construction; m. the storage of sewage, industrial sewage or Hazardous Substances (as hereinafter defined), except that the following uses are permitted: (i) the temporary storage, in compliance with all applicable laws, of substances generated front activities on a Site pending removal from the Site (provided such storage is not a business conducted on the Site but is only incidental to other activities on the Site); (ii) the temporary storage of products used in the conduct of a business of a Site in containers that comply with all applicable laws (provided such storage is not a business conducted on the Site but is only incidental to other activities on the Site); (iii) the construction and use of a commercial sewage station on the Site of an outdoor sporting goods retailer whose interior floor area exceeds 200,000 square feet, such location to allow RV campers to dispose of sewage subject to the codes, restrictions and requirements of the City of Fort Worth; provided, however, that individual parking spaces with hook-ups for water, sewer, and electrical use shall be specifically excluded and prohibited from the uses permitted under this Section 7.02(m). The outdoor sporting goods retailer must obtain final approval from the DRB for the location, materials, equipment and screening used in the construction, use and maintenance of such facilities prior to the commencement of construction; and (iv) as the DRB otherwise may specifically permit in writing; n.. unless otherwise permitted under this Section 7.02(n), outside sales of goods and merchandise. The outside sale, display or storage of motor homes, motor coaches and like vehicles shall be permitted if specifically approved in writing by the DRB. In addition, certain other recreational vehicles and merchandise shall be permitted as set forth in this Section 7.02(n). Outdoor permanent and tent sale area(s) of an outdoor sporting goods retailer whose interior floor area exceeds 200,000 square feet are permitted; provided that, all outside sales area(s) of such retailer shall be limited as follows: (a) permanent outdoor sales areas shall be limited to the sale of (i) kits to build log cabins or similar outdoor structures, (ii) recreational vehicles such as boats, trailers, jet -skis, pop-up campers, four -wheelers and similar recreational vehicles or accessories, (iii) seasonal merchandise displays such as tents, hunting or camping gear, grills and similar merchandise or accessories which are displayed in an organized manner and neat appearance, and (iv) vendors selling food items or merchandise in an organized manner as permitted by law, and the aggregate of all permanent outdoor areas may be no larger 27 007670.00067:842395.07 than the equivalent of thirty percent (30%) of the total building footprint area of the retailer; and (b) periodic tent sales areas shall be limited to the sale of goods and merchandise normally sold inside said retailer's store or in any catalog distributed by an affiliate of said retailer, and the aggregate of all temporary outdoor sales area(s) of such retailer may be no larger than thirteen percent (13%) of the total building footprint area of the retailer. Unless otherwise specifically approved by the DRB, the periodic tent sales area(s) permitted under this Section 7.02(n) are allowed no more than four (4) times per year, and may continue no longer than fourteen (14) days per occurrence. The outdoor sporting goods retailer must obtain final approval from the DRB as to the location of the outside sales areas, materials, equipment and screening used in the construction, use and maintenance of such areas prior to the commencement of construction or use thereof. o. the refining of minerals or hydrocarbons; P. prisons, jails or other detention or correctional facilities; q. bait shop; provided, however, that fishing equipment, lures and bait (including live bait) will be allowed inside the building of an outdoor sporting goods retailer whose interior floor area exceeds 200,000 square feet and inside the periodic tent sales areas expressly permitted in Section 7.02(n) above; r. cemeteries, mortuaries or funeral homes, although the temporary storage of human bodies or body parts during shipment is permitted; s. outdoor concerts unless specifically permitted in writing by the DRB; t. outdoor kennels; provided, however, that outdoor kennels are permitted subject to Section 7.02(1) above; and u. any use that interferes with aircraft navigation or communication, including, but not limited to, any use that would interfere with the operation of a Federal Aviation Administration Category III instrument landing system if such system in fact was operated in connection with Alliance Airport. SECTION 7.03. SETBACKS. a. Except as hereinafter specifically provided, each Site shall be subject to "Front Yard Setbacks" consisting of a "Paving Setback" and a `Building Setback" measured in feet from the right-of-way line of each Street contiguous to such Site (a Site shall have a front yard on each boundary abutting a Street) as follows: Street Westport Parkway All median -divided Streets 1-35 Service Road (within 800 feet Paving Setback Building Setback 20 feet 30 feet 15 feet 50 feet 50 feet 50 feet 28 007670.00067:R4719i rn of Westport Parkway) I-35 Service Road (more than 800 feet from Westport Parkway) SH 170 All other Streets 25 feet 30 feet 20 feet 50 feet 100 feet 50 feet Notwithstanding the Building Setbacks specified above, each front yard Building Setback for any building (other than buildings in which at least 80% of the total building square footage is used for hotel or general office use or aircraft hangers on Sites not adjacent to median divided Streets) to be constructed on a Site that will be greater in height than the width of the above -specified applicable front yard Building Setback shall be increased one foot for each one foot of building height in excess of the width of the above -specified applicable front yard Building Setback up to a maximum required front yard Building Setback of 100 feet. b. Except as hereinafter specifically provided, each Site shall be subject to "Side and Rear Yard Setbacks" on all sides of a Site not abutting a Street consisting of a 25-foot Paving Setback and a 50-foot Building Setback, measured from the applicable boundary lines of the Site. c. No Improvements shall be constructed, installed or planted by an Owner within a Paving Setback or within the Unpaved Right -of -Way on or adjacent to a Site other than Landscaping, sidewalks, underground utility lines and connections (including surface mounted switch gear), driveways crossing such area into the Site, and, but only if such are approved in writing by the DRB, gates and gatehouses, landscape walls, signs, flags, sculpture and other Improvements specifically authorized by the DRB. d. No Improvements shall be constructed, installed or planted on any Site between the Paving Setback and the Building Setback applicable to such Site except for: (i) those Improvements permitted in Section 7.03(c) above; (ii) underground structures; (iii) steps, pedestrian plazas, benches and related hardscape; (iv) planters and retaining walls; (v) fences, screening walls and security walls approved in writing by the DRB; (vi) driveways, porte cocheres and surface parking areas; and (vii) other Improvements specifically authorized by the DRB. 29 007670.00067:842395.07 e. Notwithstanding the setbacks specified above, the DRB shall have the right, with respect to any retail shopping areas or centers developed on the Property, to waive or reduce any applicable Side or Rear Yard Setbacks. SECTION 7.04. SITE CIRCULATION. Declarant intends for the Property to be developed in such a manner to minimize the number of curb cuts on to and median cuts in Streets, all of which curb and median cuts must be approved in writing in advance by the DRB. Driveways on a Site shall be paved with concrete and shall accommodate adequate vehicle stacking so that stacking on Streets of vehicles entering the Site is minimized. Notwithstanding the provisions of Section 7.03 above, the DRB may, in its discretion, permit jointly used driveways along the common side or rear yard boundary lines of two adjacent Sites designed to facilitate vehicular circulation provided other side and rear yard Landscaping is provided on such Sites acceptable to the DRB. Each Owner, in accordance with the provisions of the Development Guidelines, shall install sidewalks on its Site and the Unpaved Right -of -Way of any abutting Street if, as and when required to do so by the City. The design, materials and location of such sidewalks are subject to approval of the DRB. In addition, pedestrian circulation areas around buildings and parking areas shall be installed and landscaped as required by the DRB. SECTION 7.05. FIRE PROTECTION. All buildings shall be designed, constructed and maintained so as to comply fully at all times with any applicable public codes, ordinances, rules, regulations and orders relating to fire protection. All such buildings and their associated ingress and egress from and to Streets and surface parking areas shall be so related to one another and arranged as to permit ease of access for emergency fire vehicles. Designated fire lanes within any Site shall be so located, marked and protected from encroachment as to function effectively at all times. Appropriate signage, subject to DRB approval, shall be installed for such fire lanes as may be required either by any public authority or by the DRB and be kept in readable condition. SECTION 7.06. PARKING. Each Owner must provide on its Site adequate parking areas for employees, the handicapped, visitors and service vehicles. No parking shall be permitted on Streets, on entrance driveways or on internal roads on the Site. All surface parking shall be paved and shall have integral concrete curbs and gutters. To the extent required by the DRB, all surface parking shall be screened to block the ground level view of automobiles below their hood lines and otherwise reduce the visibility of vehicles and parking surfaces from Streets, in a manner satisfactory to the DRB. SECTION 7.07. SIGNAGE. No sign or other advertising device of any nature shall be placed on the Property except as approved by the DRB. No rooftop signs shall be placed on the Property. Declarant or the Association shall have the right to install and maintain standard directional/informational signage and traffic signage in any Unpaved Right -of -Way. No Owner or occupant of a Site shall use the name "Alliance" or the registered "Alliance" logo or mark in the name of any building or project or in any printed advertising or promotional material without the prior written consent of Declarant. 30 007670.00067:842395.07 SECTION 7.08. EXTERNAL ILLUMINATION. Aircraft obstruction lighting and devices on buildings and other Improvements shall be installed by each Owner as required by applicable law or as required by the DRB. External lighting of buildings, drives, parking areas, walks and plazas on a Site, pursuant to plans approved by the DRB, is required; provided. however, that no such external lighting shall interfere with aircraft navigation or operations at Alliance Airport. Standards and requirements for illumination, with respect to fixture type, method of erection, height, material, finish, color and base installation, must be approved by the DRB in its sole discretion. To the extent practical, lighting on a Site shall be from concealed sources unless otherwise approved by the DRB and shall be designed to minimize glare or light flow onto adjacent structures and property. SECTION 7.09. ANTENNAE AND TOWERS. No towers, tower antennae or satellite receiving or transmitting equipment shall be installed on the Property that may interfere with aircraft navigation and communications. SECTION 7.10. UNDERGROUND UTILITIES. Any and all pipes, lines and wires used for the transmission of water, fuel, natural gas, electricity, telephone, television, sewage, sound or any other utilities which are not within a building shall be constructed and maintained underground within the Property unless required to be above ground for technical or environmental reasons and approved by the DRB. However, temporary above -grade utilities may be approved by the DRB for use during construction and until permanent underground service is available to the Site upon written advance approval by the DRB. No well shall be constructed on the Property except by Declarant or the Association on Property owned by Declarant or the Association unless otherwise approved by the Declarant. SECTION 7.11. SCREENING. All towers, tower antennae, satellite receiving and transmitting equipment, roof -mounted equipment, other equipment, outside storage areas and service areas on the Property, and such other items and areas as designated by the DRB, shall be screened to the extent reasonably practical from ground level view. The DRB shall have full power to determine what facilities or areas must be screened and the screening materials and requirements for each. SECTION 7.12. LOADING DOCKS AND AREAS. Each Site shall provide sufficient on -site loading facilities to accommodate site activities, and all loading movements, including, but not limited to, turnarounds, shall be made off of Streets. No materials, supplies or equipment shall be permitted to remain outside of any structure unless screened in a manner satisfactory to the DRB. Loading docks and areas and maneuvering areas shall be located on a Site in accordance with the provisions of the Development Guidelines. The DRB may require screening of loading and maneuvering areas facing an adjacent Site or a Street. SECTION 7.13. LANDSCAPING. Each Owner, contemporaneously with the development of Improvements on a Site, shall install Landscaping on all unimproved areas on its Site in accordance with plans approved by the DRB (other than on land held for expansion purposes as approved by the DRB), except that the Owner shall not be required to install Landscaping in any Parkway Landscape Area on or adjacent to his Site unless Declarant elects not to do so by written notice delivered to such Owner, in which event such Owner shall 31 007670.00067:842395.07 promptly install Landscaping in such Parkway Landscape Area in accordance with the Parkway Landscape Plan that was in effect as of the date the Owner acquired such Site. An Owner shall keep all of such Landscaping in good condition and repair and in a neat and orderly appearance and shall be responsible for all expenses relating to the maintenance, repair or replacement of Landscaping on the Owner's Site and on the Unpaved Right -of -Way adjacent to such Site. Automatic underground irrigation systems must be installed in all landscaped areas on a Site (other than land held for expansion purposes as approved by the DRB) and the adjacent Unpaved Right -of -Way. No changes shall be made to the Landscaping plan for a Site or an adjacent Unpaved Right -of -Way without the prior written approval of the DRB. SECTION 7.14. PARKWAY LANDSCAPE AREAS. Declarant, at its expense, may install Landscaping in any or all Parkway Landscape Areas. The Association shall maintain such Landscaping in the Parkway Landscape Areas until, on a Site by Site basis, the Association, at such time as it deems appropriate, turns such maintenance duties over to the Owner of such Site after such Owner's acquisition thereof. The Association shall notify an Owner not less than ten days prior to the date on which such Owner is to become responsible for such Landscape maintenance. Thereafter, it shall be the responsibility of such Owner, at its expense, to maintain in good condition and repair, in a neat and orderly appearance and in accordance with the Parkway Landscape Plan requirements all of the Landscaping then existing or thereafter installed by Declarant or such Owner in the Parkway Landscape Area on his Site and in the Unpaved Right -of -Way adjacent to his Site. No Landscaping shall be installed in the Parkway Landscape Area except as is permitted in the Parkway Landscape Plan. Declarant may choose initially to install in certain portions of the Parkway Landscape Areas less than the full Landscaping permitted in the Parkway Landscape Plan. Therefore, Declarant, from time to time and at its expense, shall have the right to install additional Landscaping in Parkway Landscaping Areas as permitted in the Parkway Landscaping Plan, subject to the provisions of Section 7.13 above regarding an Owner's obligation to install such Landscaping. SECTION 7.15. TRASH AND GARBAGE. No Site, or part thereof, shall be used or maintained as a dumping ground for rubbish, trash or garbage before, during or after the installation of any Improvements. Trash collection containers shall be situated and enclosed or otherwise screened as required by the DRB as not to be visible from Streets or other adjacent Sites. Each Owner shall observe and comply with any and all requirements established by the DRB in connection with the storage and removal of trash and garbage. If within five days after the issuance of written notice by the Association to an Owner, said Owner shall have failed either to remove any trash, rubble or construction debris, or to exercise reasonable care or conduct to prevent or remedy a dangerous, unclean or unsightly condition, then the Association shall have the authority and right to go on the Site for the purpose of cleaning said Site and/or otherwise correcting said condition, or conditions. SECTION 7.16. SURFACE WATER FLOW AND DRAINAGE. Plans for all dams, lakes, ponds, other "water features" of any kind and general Site drainage must be submitted in advance for DRB approval. Each Owner shall control water runoff drainage from his Site to prevent damage to adjacent tracts, Streets or any other area in the Property. SECTION 7.17. ENVIRONMENT. 32 007670.00067:842395.07 a. No Owner, lessee, tenant, operator or other occupant of the Property or any portion thereof shall handle, store, deposit, use, process, manufacture, dispose of or release or allow any of its agents, employees, contractors or invitees to handle, store, deposit, use, process, manufacture, dispose of or release any Hazardous Substances (hereinafter defined) of any kind from, on, in, under or in the air above any part of the Property, including, but not limited to, any surface waters or groundwater located on the Property, or into public sanitary sewer systems serving the Property without complying with all Environmental Laws (hereinafter defined), including, but not limited to, performing pre-treatment, obtaining permits and giving notices as required by Environmental Laws. "Hazardous Substances" means those substances now or hereafter included within (whether as a result of such substance's inclusion on a list, physical characteristics or otherwise) any of the definitions of "hazardous substances", "hazardous waste", "hazardous materials", "pollutant", "contaminant" or "toxic substance" under, or otherwise regulated by, any Environmental Law; including, but not limited to (i) mixtures containing listed Hazardous Substances and waste generated from the treatment, storage or disposal of Hazardous Substances, (ii) asbestos, (iii) polychlorinated biphenyls, (iv) radioactive materials, and (v) petroleum (including crude oil or any fraction thereof), natural gas, natural gas liquids, liquified natural gas and synthetic gas. "Environmental Laws" shall mean and include all present and future federal, state or local laws, rules, orders, ordinances and regulations pertaining to environmental regulation, or the use, processing, storage, disposal, generation or transportation of Hazardous Substances, or any contamination, cleanup or disclosure related thereto, including, but not limited to, the Solid Waste Disposal Act, TEX. REV. CIV. STAT. ANN. 4477-7, Chapter 26 of the TEX. WATER CODE ANN., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §6901 et seq., the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §9601 et seq., the Federal Water Pollution Control Act, 33 U.S.C. §1251 et seq., and such amendments as may be made to these statutes and such regulations as may be promulgated with respect thereto, including, but not limited to the regulations contained in 40 CFR Part 280. b. Each Owner and each lessee, tenant, occupant and other user of any Site shall be responsible for and shall pay all costs and expenses related to the disposal or release by such Owner, lessee, tenant, occupant or other user of such Site of any Hazardous Substances, sewage or wastes of any kind in, on, under or in the air above the Property, which costs and expenses shall include, but not be limited to, closure, removal, remediation, cleanup, containment and other response costs, injuries to persons, damages to property, legal expenses, and interest paid to any Governmental Entity; provided, however, this covenant does not apply to Hazardous Substances generated on or migrating from other Sites or already existing on the Site in question as of the date of the acquisition of such Site by such Owner. The covenant in the immediately preceding sentence itself does not create any obligation of an Owner or any lessee, tenant, occupant or other user of a Site other than for the payment of the costs and expenses described in such sentence, and no Person has any rights under the covenant in such sentence to enforce any claim for any remedy against such Owner or such lessee. tenant, occupant or 33 007670.00067:842395.07 other user of such Site other than for the payment or recovery of the costs and expenses described in such sentence. c. The provisions of this Section 7.17 do not affect the rights, liabilities or obligations of any Person under Environmental Laws or other applicable laws. Notwithstanding any provision contained in this Declaration to the contrary, the Association shall not have the right to levy any Regular Assessments or Special Purpose Assessments for the purpose of collecting funds from Owners to be used for the payment of closure, removal, remediation, cleanup, containment or other response costs relating to Hazardous Substances in the Common Areas or in any other portions of the Properly; provided, however, this restriction shall not affect the right of the Association to levy Special Member Assessments to collect funds to pay such costs from any Owner who is responsible for the presence of such Hazardous Substances or from or on whose Site such Hazardous Substances were generated, stored or released. SECTION 7.18. FUEL FACILITIES. Fuel storage and dispensing facilities may be installed on a Site only after prior written authorization of the DRB has been obtained. The Owner of the Site on which such facilities are installed shall be fully responsible for insuring that such facilities and their installation comply fully with all applicable laws and regulations, and the provisions of Section 7.17 above shall be applicable to such facilities. SECTION 7.19. FENCES. The use of fences on the Property is permitted only if specifically approved in writing in advance by the DRB. SECTION 7.20. PROHIBITED ACTIVITIES. No dangerous, noxious, offensive or nuisance activities or any activities which violate any applicable laws shall be conducted or permitted to occur by any Owner or its agents, employees, contractors, occupants or invitees on any portion of the Property. No operation or use of any portion of the Property shall be permitted or maintained by any Owner or its agents, employees, contractors, occupants or invitees that causes or produces noise or sound that is objectionable because of its volume, duration, frequency or shrillness, smoke, noxious, toxic or corrosive fumes or gases, obnoxious odors, dust or dirt or unusual fire or explosion hazards. The above prohibitions are in addition to those set forth in Sections 7.01 and 7.02 above. SECTION 7.21. CERTAIN DECLARANT USES. Declarant may conduct their sales and marketing program for the Property from any permanent or temporary sales buildings or trailers and may conduct improvement work and activities on portions of the Property owned by Declarant and do all things reasonably necessary or convenient as required to expeditiously commence, continue and complete such improvement work, including, but not limited to, the provision of temporary buildings (including trailers), temporary storage of construction materials and equipment and the installation of temporary signage of such types, in such sizes and at such locations on portions of the Property owned by Declarant as Declarant deems appropriate. In addition, Declarant shall have the right, at its expense, to install on any Site a standardized sign announcing a future development on such Site, and such sign may remain on such Site following its sale until completion of such development, and if Declarant chooses to do so. the Owner of such Site shall not install another sign for the same purpose. 34 007670.00067:842395.07 SECTION 7.22. CONSTRUCTION STANDARDS. a. Any builder engaged to construct Improvements on any portion of any Site may conduct its construction operations and activities and do all things reasonably necessary as required to expeditiously commence, continue and diligently complete construction of any such Improvements, including the provision of temporary buildings or trailers for administration of work and for the storage of materials and equipment, and the construction of temporary security fences and lighting, except that all construction activities, temporary structure, storage of materials and equipment, all construction -related parking and temporary security fences shall be confined entirely on such Site behind the Paving Setbacks. Topsoil shall be scraped and preserved before laying temporary parking lots. Each Owner is responsible for, and shall cause, through appropriate contractual provisions, all costs of cleaning up any debris or waste improperly disposed of anywhere on the Property. Each Owner and its contractors must maintain an attractive, clean, nuisance -free environment during the period of construction. Declarant shall have the right to reasonably designate points of ingress and egress on the Site and within the Property for construction vehicles, and each Owner of a Site on which Improvements are being constructed shall keep all Streets reasonably cleared of mud and dirt left by construction vehicles entering such Site. Once commenced, all construction on a Site shall be continued with due diligence and good faith until completion. b. Each Owner expressly covenants that it will use its reasonable good faith efforts to prevent adverse impacts (such as, but not limited to, air, soil and water pollution, soil erosion, elimination of trees without replacement or increased runoff rates) to areas outside its Site in any way (negligent or otherwise) resulting from construction, alteration, maintenance, repair, replacement or removal of Improvements to the Site and that it will indemnify and hold harmless the Association, the DRB, Declarant and other Owners from any and all damages resulting therefrom. All possible contaminants must be stored in a containment facility that will not allow such to enter any soils on or off the Site. c. Each Owner shall take such action as is necessary to keep the Property reasonably free from mud, dirt and debris resulting from construction activities on that Owner's Site. Each Owner is responsible for all costs of, and shall cause, through appropriate contractual provisions, the cleaning up any debris or waste improperly disposed of anywhere on the Property. Each Owner and its contractors must maintain an attractive, clean, nuisance -free environment during the period of construction. Declarant shall have the right to reasonably designate points of ingress and egress on the Site and within the Property for construction vehicles, and each Owner of a Site on which Improvements are being constructed shall keep all Streets reasonably cleared of mud and dirt left by construction vehicles entering such Site. Once commenced, all construction on a Site shall be continued with due diligence and good faith until completion. Each Owner shall cause its contractors to comply with the requirements of Declarant or the DRB regarding points of construction access to a Site, cleaning mud and construction debris from Streets, re-establishment of 35 007670.00067:842395.07 parkway Landscaping, keeping mud from washing onto Streets and adjoining Sites and other matters set forth in the Development Guidelines. d. Prior to any excavation on a Site, the Owner will determine and mark the location of and will protect all existing utilities and landscape irrigation lines. Utility lines and landscape irrigation lines are to be located before earth moving or drilling equipment operations are allowed to start near underground utilities or landscape irrigation lines. All backfill will be adequately compacted to prevent future settlement, especially under pavement and other structures. ARTICLE VIII EASEMENTS SECTION 8.01. UTILITY AND SERVICE EASEMENTS. Notwithstanding any provision in this Declaration to the contrary, Declarant reserves for itself and its successors and assigns, an easement for installation, maintenance, repair and removal of underground utilities or other underground services (including, but not limited to, electric power, water, fuel, storm drainage, sewer, industrial sewage, natural gas, telephone, security and other telecommunications systems such as closed-circuit cable television) on all portions of each Site within 25 feet of the right-of-way boundary of Streets (or 20 feet for non -median divided Streets), within five feet from all boundaries of the Site other than those boundaries abutting Streets and within ten feet from all boundaries of a Site other than those boundaries abutting Streets. Full right of ingress and egress shall be had by Declarant at all times over each Site for the installation, operation, maintenance, repair or removal of any such utility or service together with the right to remove any obstruction that may be placed in such easement that would constitute interference with the use of such easement, or with the use, maintenance, operation or installation of such utility or service; provided, however, such activities shall be conducted so as to minimize disruption of other access to and use of a Site by an Owner and its employees and business invitees. An Owner may construct, install or plant in the setback areas affected by these easements those Improvements specifically authorized in Section 7.03 (c) and (d) above, subject to the rights of Declarant in this Section 8.01. Declarant shall have the right to assign and convey, in whole or in part, the easements reserved hereunder to one or more public utility companies, to the Association, to a City or to any other Person. In addition, Declarant reserves a temporary construction and maintenance easement within the easement areas specified above in this Section 8.01 only to such extent and only for such duration as is reasonably necessary for the construction and maintenance of Streets, utilities, drainage facilities and related improvements. Declarant (or its assignee exercising such easement rights) shall repair any Landscaping or pavement damaged by the exercise by Declarant (or its assignee exercising such easement rights) of the rights set forth in this Section 8.01. SECTION 8.02. OTHER EASEMENTS. Declarant and the Association shall have an easement for full right of ingress and egress at all times over and upon the Property for the exercise of rights under this Declaration and for the carrying out by the Association of their other rights, functions, duties and obligations set out in this Declaration. Any such entry by Declarant 36 007670.00067:842395.07 or the Association upon the Property shall be made with as minimum inconvenience to the affected Owner as practical. ARTICLE IX MAINTENANCE BY OWNERS Each Owner shall have the duty and responsibility, at its sole cost and expense, to keep its Site and all Unpaved Right -of -Way adjacent to the Site and, subject to ordinary wear, tear and deterioration, buildings and Improvements thereon in a well -maintained, safe, clean, neat, orderly and attractive condition at all times, except as such may be maintained by the Association as provided in Section 7.14 above. Such maintenance includes, but is not limited to, the following: prompt removal of all litter, trash, refuse and wastes; lawn mowing; tree and shrub care; watering; other Landscaping maintenance; keeping exterior lighting and mechanical facilities in working order; keeping lawn and garden areas, driveways and private roads in good repair; keeping all signs in good repair; complying with all government, health and police requirements; repairing exterior damage to Improvements; and striping of parking areas and repainting of Improvements. An Owner shall maintain the Unpaved Right -of -Way adjacent to its Site and the front yard Paving Setback area on that site on such schedule and in such manner as is specified by the DRB in an effort to maintain a reasonably consistent appearance of all Unpaved Right -of -Way and front yard Paving Setback areas in the Property. The Association shall have the right to perform any action required of an Owner or its contractors under Section 7.22 above and to perform any maintenance, repair or replacement of Landscaping, signs, screening or decorative walls, surface parking areas, ponds, lakes, fountains, pools, exterior lighting, sculptures, utilities, drainage systems, lighting and park and recreational facilities and equipment on a Site or the adjacent Unpaved Right -of -Way upon the failure of the Owner to do so with such failure continuing for seven days after written notice thereof is given by the Association to such Owner (or after such longer notice period as may be allowed by the DRB due to the nature of such deficiency). ARTICLE X GENERAL PROVISIONS SECTION 10.01. BINDING EFFECT AND DURATION. The covenants and restrictions of this Declaration shall run with and bind the Property, shall be binding on all Owners and shall inure to the benefit of and be enforceable by Declarant, the Association and the Owners and their respective heirs, executors, legal representatives, successors and assigns, and shall be and remain in effect for a period of 50 years from and after the date of the recording of this Declaration, after which time this Declaration shall automatically be extended for three successive periods of ten years each, unless after such 50 years an instrument executed and duly acknowledged by Owners owning, in the aggregate, at least a majority of the gross acreage (exclusive of acreage in the Streets and Common Areas) in the Property has been recorded in the Real Property Records of Tarrant County, Texas, abolishing this Declaration. 37 00 7670.00067:842395.07 SECTION 10.02. OTHER PERSONS. The covenants and restrictions contained in Articles VI, VII, VIII and IX of this Declaration shall be binding upon and enforceable against not only the Owners but also all lessees, tenants or other occupants of a Site. SECTION 10.03. INTERPRETATION. In all cases, the provisions set forth or provided for in this Declaration shall be construed together and given that interpretation or construction which, in the opinion of the Board, will best effect the intent of Declarant's general plan of development as reflected in this Declaration. The Board shall have the right, power and authority to determine all questions arising under or in connection with this Declaration and to construe and interpret their provisions, and any determination, construction or interpretation made by the Board, in the absence of an adjudication by a court of competent jurisdiction that such action was an abuse of discretion, shall be binding on the Owners. The provisions of this Declaration shall be given full force and effect notwithstanding the existence of any zoning ordinance or building codes which are less restrictive. The effective date of this Declaration shall be the date of its filing for record in the office of the County Clerks of Tarrant County, Texas. The captions of each Article and Section hereof as to the contents of each Article and Section are inserted only for convenience and are in no way to be construed as defining, limiting, extending or otherwise modifying or adding to the particular Article or Section to which they refer. The singular wherever used herein shall be construed to mean the plural when applicable and vice versa, and the use herein of any gender shall mean any other gender when applicable. The exhibits referred to herein and attached hereto are made a part hereof by reference. This Declaration shall be construed under and in accordance with the laws of the State of Texas. SECTION 10.04. AMENDMENTS. Except as otherwise provided in this Section 10.04, this Declaration, or any provisions hereof, may be terminated, amended or vacated as to any portion of the Property only by a document duly executed and acknowledged by Owners owning, in the aggregate, at least a majority of the gross acreage contained in the Property (exclusive of acreage in Streets and Common Areas); provided, however, (a) that, until the Conversion Date, no such termination, amendment or vacation shall be effective without the written approval of Declarant; (b) Declarant, without the joinder of any other party, shall have the absolute right to make minor changes or amendments to this Declaration to correct or clarify errors, omissions, mistakes or ambiguities contained herein, and (c) Declarant shall have the right to supplement this Declaration for the inclusion of additional property cr for the deletion of property as provided in Section 1.03 above. No such termination, amendment, supplement or vacation shall be effective until a written instrument setting forth the terms thereof has been executed by the parties by whom approval is required as set forth above and recorded in the Real Property Records of Tarrant County, Texas. Notwithstanding the above, no amendments shall be made to the following provisions of this Declaration unless such have been first approved by a Special Vote of the Class A Members as evidenced by a certification of the Secretary of the Association on any such amendment document: (a) changing the definition of Common Areas, Common Facilities, Common Services, Conversion Date or Default Rate; 38 007670.00067:842395.07 (b) increasing the number of acres that can be made subject to this Declaration solely by Declarant as provided in Section 1.03(a) or that can be deleted from the Property solely by Declarant as provided in Section 1.03(b): (c) changing the provisions requiring membership in the Association as provided in Section 3.01; (d) changing the allocation of voting rights as provided in Section 3.03; (e) changing the definition of a Quorum as provided in Section 3.04; (f) changing the type of and basis for allocation of Assessments as provided in Sections 4.01, 4.02, 4.03, 4.04, and 4.05; (g) changing the limits on the Association reserve fund amount and annual contribution as provided in Section 4.02; (h) changing the provisions regarding the subordination of the lien for Assessments as provided in Section 4.07; (i) 0) Section 5.04; changing the Members' audit rights as provided in Section 5.03(i): changing the provisions regarding affiliated contracts as provided in (k) changing the provisions regarding the limitations of the rights and powers of the Association, the Board and the DRB as provided in Section 7.01(b); (1) changing the list of prohibited uses as provided in Section 7.02; (m) changing the setbacks as provided in Section 7.03 (subject to the above provision regarding setbacks applicable to additional property subjected to this Declaration as provided in Section 1.03 above; (n) changing the provisions of Section 7.17(b); (o) expanding the reserved easements as provided in Section 8.01; (p) changing the extent of the Association's rights to enter a Site to perform maintenance as provided in Article IX; or (q) changing this Section 10.04. SECTION 10.05. ENFORCEMENT. Declarant, the Association and the Owners (and any lessees, tenants or other occupants of an Owner's Site) shall have the right, but not the obligation, to enforce the covenants and restrictions set out in this Declaration. Enforcement 39 007670.00067:842395.07 may be made by any proceedings at law or in equity against any Person violating or attempting to violate any part of this Declaration, as such may be amended, either to restrain or enjoin violations or to recover damages. Damages shall not be deemed adequate compensation for any breach or violation of any provision of this Declaration, and Declarant, the Association and each Owner (and any lessees, tenants or other occupants of an Owner's Site) shall be entitled to relief by way of injunction, as well as any other remedy either at law or in equity. With respect to any litigation hereunder, the prevailing party shall be entitled to recover reasonable attorneys' fees and court costs from the non -prevailing party. The rights, powers and remedies provided in this Declaration shall be cumulative and not restrictive of other remedies at law or in equity, and the exercise by a Person of any particular right, power or remedy shall not be deemed an election of remedies or to preclude such Person's resort to other rights, powers or remedies available to it. SECTION 10.06. NO WAIVER OR OBLIGATION TO ENFORCE. No delay or failure on the part of Declarant, the Association or any other aggrieved party to invoke any available right, power or remedy in respect to a breach of this Declaration shall be held to be a waiver by that party of (or estop that party from asserting) any right, power or remedy available to it upon the recurrence or continuance of said breach or the occurrence of a different breach. Declarant and the Association, or its officers or directors, shall not be under any obligation to take any action to enforce the terms of this Declaration. SECTION 10.07. LIENS/VALIDITY AND SEVERABILITY. Violation of or failure to comply with this Declaration shall not affect the validity of any mortgage, lien or other similar security instrument which may then be existing on any Site. Invalidation of any one or more of the provisions of this Declaration, or any portions thereof, by a judgment or court order shall not affect any of the other provisions or covenants herein contained, which shall remain in full force and effect. In the event any portion of this Declaration conflicts with mandatory provisions of any ordinance or regulation promulgated by any appropriate governmental authority, then such governmental requirement shall control. SECTION 10.08. OWNER/OCCUPANT RECORDS. Except for those Owners who purchase portions of the Property from Declarant or Hillwood Development Company, LLC ("Hillwood") or its affiliate, any person, on becoming an Owner of a parcel within the Property, shall furnish the Board a true and correct copy of the recorded instrument of conveyance vesting such ownership in said Owner. Each Owner shall furnish to the Association the name of a contact person with such Owner and a street address for receiving notices from the Association. Each Owner shall notify the Association of the name and address of all lessees of long-term ground leases or long-term build -to -suit leases (meaning leases with combined primary and renewal terms exceeding five years) affecting the Owner's Site. It shall be the responsibility of the Owner (and a non -Owner occupant of a Site, if any) to keep such information current and to advise the Association of any changes. SECTION 10.09. NOTICES. Any notice required to be given to Declarant, the Association or any Owner under the provisions of this Declaration shall be deemed to have been properly delivered when actually delivered by hand -delivery or three days after it is deposited in the United States Mail, postage prepaid. certified or registered mail. return receipt requested, addressed, (a) for notice to an Owner to the address of the Owner as shown on the records of the 40 007670.00067:842395.07 Association at the time of such mailing, and (b) for notice to Declarant or the Association to 13600 Heritage Parkway, Suite 200, Fort Worth, Texas 76177, or at such other address specified by Declarant by a document recorded for such purpose in the Real Property Records of Tarrant County, Texas. Notices to be given to an Owner of a Site also shall be given to any lessee of that Site of whom Declarant and the Association has been given notice as provided in Section 10.08 above, such notices to be given in the manner specified in this Section 10.09. SECTION 10.10. MORTGAGEES. The holder of a mortgage of any interest in a Site shall be furnished with written notification from the Association of any default by the respective Owner or lessee of that Site in the performance of obligations set forth in this Declaration provided that the Association has theretofore been furnished, in writing, with the correct name and address of such mortgage holder and a request to receive such notification, and cure by said mortgage holder within the times herein provided for performance by Owner or a lessee of such default shall be accepted. No default by an Owner or a lessee of a Site under any provision of this Declaration shall affect any existing lien or mortgage on that Site. A mortgagee shall not be liable for Assessments made with respect to a parcel during any period its only interest in the parcel is that of mortgagee. SECTION 10.11. APPROVALS. No approval by the Declarant, the Board or the DRB pursuant to the provisions hereof shall be effective unless in writing, except otherwise expressly provided herein. 41 007670.00067:842395.07 IN WITNESS WHEREOF, Declarant has caused this Declaration to be executed as of the 1,5 Taday of June, 2004. AIL INVESTMENT, L.P. a Texas limited partnership By: Hillwood Alliance Management, L.P, a Texas limited partnership, its general partner By: Hillwood Alliance GP, LLC, LLC, a Texas limited liability company, it eneral partner By: /; Its: M. Thomas Mason Executive Vice President 42 007670.00067:842395.07 THE STATE OF TEXAS COUNTY OF DALLAS This instrument was acknowledged before me on this t D day of Tv etc., 2004 by -rh.o , T e v u. Posidew-- of Hillwood Alliance GP, LLC, a Texas limited liability company, in its capacity as general partner of Hillwood Alliance Management, L.P., a Texas limited partnership, general partner of AIL Investment, L.P., a Texas limited partnership, on behalf of said partnership. GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS II) DAY OF 56,e,2004. PA�v a PewL Notary Public jh and for the State of Texas �, ROBYN H BEARD , NOTARY PUBLIC STATEOFTEXAS .1 CONNISSION EXPIRES: �%� DECEMBER 16, 2004 44 007670.00067:842395.07 i EXHIBIT A Description of the Property 1 007670.00067:842395.07 g'4 to N :;" :•.):t pep \91? N ItV0 • • • - • \ OLD UE141-01.4 D» ' ).. \ FtiTu4 NORTHNOrHAcj s J L . I ' • - • 1- _ " • _ • • _ • • • _ • - _ • • _ -- • - -- • - ' • • ...• —.• -44f 981 Ac. Tract Lone Star Association Inc. BEING a tract'of land situated in the J. Ashford Survey, Abstract Number 1776, the H. Cox Survey, Abstract Number 386, the H. Creed Survey, Abstract Number 1898, the I. Niece Survey, Abstract Number 1160, the A. C. Warren Survey, Abstract Number 1687, the W. Houston Survey, Abstract Number 746, the M.E.P. & P. RR. Survey, Abstract Number 1143, the T. G. Willis Survey, Abstract Number 1682, the S. T, Rhodes Survey, Abstract Number 1868, the G. W. Parker Survey, Abstract Number 1251, and the J. McDonald Survey, Abstract Number 1106, Tarrant County, Texas and being more particularly described by metes and bounds as follows: BEGINNING at the southwest corner of Lot 2, Block 1, Alliance Gateway West Addition, as recorded in Cabinet A, Slide 5817, Plat Records, Tarrant County, Texas, said point being in the existing east right-of-way line of Interstate Highway 35W; THENCE N 00°12'16"E, 152.52 feet along the easterly right-of-way line of said Interstate Highway 35W to the beginning of a curve to the right; THENCE continuing along the easterly right-of-way line of said Interstate Highway 35W and with said curve to the right, through a central angle of 02°40'04", having a radius of 4563.66 feet, the long chord of which bears N 01°36'33 "E, 212.47 feet, an arc distance of 212.49 feet; THENCE N 01°12'30"E, 1235.75 feet continuing along the easterly right-of-way line of said Interstate Highway 35W and across State Highway 170, again along the easterly right-of-way line of said Interstate Highway 35W to the beginning of a curve to the right; THENCE continuing along the easterly right-of-way line of said Interstate Highway 35W and with said curve to the right, through a central angle of 02°04'52", having a radius of 11540.73 feet, the long chord of which bears N 00°46'13"W, 419.14 feet, an arc distance of 419.16 feet; THENCE N 01°48'25"W, 133.37 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 88°07'58"E, 6.25 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 01°36'22"W, 199.97 feet continuing along the easterly right-of-way line of said Interstate Highway 35W to the beginning of a curve to the right; THENCE continuing along the easterly right-of-way line of said Interstate Highway 35W and with said curve to the right, through a central angle of 02°24'33", having a radius of 9816.25 feet, the long chord of which bears N 00°40'09"W, 412.74 feet, an arc distance of 412.77 feet; C&B Job No. 01 1900.651 .1-J0B\01190065\\SUR\\WP\LEGEXHIBIT A.doc April 12, 2004 Page 2 of 15 Lone Star Association Inc. THENCE N 00°15'47"E, 180.44 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 05°09'38"W, 55.38 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 00°16'30"E, 223.28 feet continuing along the easterly right-of-way line of said Interstate Highway 35W to the beginning of a curve to the right; THENCE continuing along the easterly right-of-way line of said Interstate Highway 35W and with said curve to the right, through a central angle of 009°00'37", having a radius of 6541.97 feet, the long chord of which bears N 05°07'30"E, 1027.73 feet, an arc distance of 1028.79 feet; THENCE N 09°55'51"E, 134.93 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 10°29'25"E, 622.83 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 11°14'59"E, 930.32 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 17°13'22"E, 186.31 feet across Keller -Haslet Road (County Road 4042), returning to the easterly right-of-way line of said Interstate Highway 35W; THENCE N 11°14'55"E, 884.13 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 12°58'01 "E, 232.01 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 12°58'O 1 "E, 96.22 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 11°14'55"E, 131.23 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 08°27'37"E, 162.97 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE S 88°28'58"E, 2890.60 feet; THENCE S 00°35'41"W, 1506.70 feet to the centerline of the aforementioned Keller -Haslet Road; THENCE N 89°43'16"E, 448.1.6 feet continuing along the centerline of said Keller -Haslet Road; C&B Job No. 011900.651 J: JOB\01 190065',SUR,WP\LEG\EX}imIT A.doc April 12, 2004 Page 3 of 15 Lone Star Association Inc. THENCE S 89°09'14"E, 1147.86 feet continuing along the centerline of said Keller -Haslet Road; THENCE S 87°58'59"E, 1247.61 feet continuing along the centerline of said Keller -Haslet Road; THENCE N 89°31'02"E, 1280.34 feet continuing along the centerline of said Keller -Haslet Road; THENCE S 89°38'23"E, 731.92 feet continuing along the centerline of said Keller -Haslet Road; THENCE S 22°45'57"E, 733.32 feet, crossing State Highway 170, to the centerline of Alta Vista Road (County Road 4053); THENCE S 00°06'23"E, 1286.78 feet along the centerline of Alta Vista Road; THENCE S 00°32'07"W, 801.35 feet continuing along the centerline of Alta Vista Road; THENCE N 89°27'54"W, 385.35 feet THENCE S 63°01'27"W, 2495.17 feet; THENCE N 28°03'21 "W, 168.24 feet; THENCE N 44°11' 19"W, 955.22 feet; THENCE S 64°19'09"W, 2249.53 feet to the existing west right-of-way line of Old Denton Road (County Road 4048); THENCE S 00°41'31 "W, 1910.95 feet along the existing west right-of-way line of Old Denton Road; THENCE N 89°39'58"W, 3379.51 feet to the POINT OF BEGINNING and containing 981 acres of land more or less. NOTE: THIS DOCUMENT WAS PREPARED UNDER 22 TAC S663.21, AND DOES NOT REFLECT THE RESULTS OF AN ON THE GROUND SURVEY, AND IS NOT TO BE USED TO CONVEY OR ESTABLISH INTERESTS IN REAL PROPERTY, EXCEPT THOSE RIGHTS AND INTERESTS IMPLIED OR ESTABLISHED BY THE CREATION OR RECONFIGURATION OF THE BOUNDARY OF THE POLITICAL SUBDIVISION FOR WHICH IT WAS PREPARED. C&B Job No. 011900.651 J:\JOB\01 190065\SUR\WP\LEG\EXHIBIT A.doc April 12. 2004 Page 4 of 15 SAVE AND EXCEPT: HAMPTON INN LEGAL DESCRIPTION BEING A TRACT OF LAND SITUATED IN THE A.C. WARREN SURVEY, 1687, TARRANT COUNTY, TEXAS, AND BEING A PORTION OF THAT DESCRIBED BY DEED TO HILLWOOD/2470, LTD. AND RECORDED IN 377, DEED RECORDS, TARRANT COUNTY, TEXAS, AND BEING MORE DESCRIBED BY.METES AND BOUNDS AS FOLLOWS: Lone Star Association Inc. ABSTRACT NUMBER TRACT OF AS VOLUME 9279, PAGE PARTICULARLY COMMENCING AT 1/2 INCH IRON ROD FOUND AT THE SOUTHEAST CORNER OF SAID HILLWOOD/2470, LTD. TRACT; THENCE N 00^45'51"E, 585.84 FEET WITH THE EAST LINE OF SAID HILLWOOD/2470, LTD TRACT AND THE WEST LINE OF THAT TRACT. OF LAND AS DESCRIBED BY DEED TO J. FRED DAVIS AND JEAN C. DAVIS, RECORDED IN VOLUME 5466 PAGE 195, OF SAID DEED RECORDS; - THENCE N 89"18'0.0"W, 15.05 FEET TO A 5/6 INCH IRON ROD WITH PLASTIC CAP STAMPED "CARTER & BURGESS" SET FOR THE POINT OF BEGINNING; THENCE N 89"16'00"W, 218.88 FEET TO A 5/8 INCH IRON ROD WITH PLASTIC CAP STAMPED "CARTER & BURGESS" SET AT THE BEGINNING OF CURVE TO THE LEFT; THENCE WITH SAID CURVE TO THE LEFT, AN ARC DISTANCE OF 89.73 FEET, THROUGH A CENTRAL ANGLE OF 45^00'00", HAVING A RADIUS OF 114.24 FEET, THE LONG CHORD OF WHICH BEARS N 21"48'00"W, 87.44 FEET TO A 5/6 INCH IRON ROD WITH PLASTIC CAP STAMPED "CARTER & BURGESS" SET; THENCE N 44"18'00"W, 133.20 FEET TO A 5/6 INCH IRON ROD WITH PLASTIC CAP STAMPED "CARTER & BURGESS" SET AT THE BEGINNING OF A CURVE TO THE LEFT; THENCE WITH SAID CURVE TO THE LEFT, AN ARC DISTANCE OF40.62 FEET, THROUGH A CENTRAL ANGLE OF 35"00'0O", HAVING A RADIUS OF 66.5 FEET, THE LONG CHORD OF WHICH BEARS N 61"'48'00"W, 39.99 FEET TO A 5/6 INCH IRON ROD WITH PLASTIC CAP STAMPED "CARTER & BURGESS" SET; THENCE N 79"18'00"W, 7.06 FEET TO A 5/8 INCH IRON ROD WITH PLASTIC CAP STAMPED "CARTER & BURGESS" SET; THENCE N 11^14'55"E, 116.00 FEET TO A 5/8 INCH IRON ROD WITH PLASTIC CAP STAMPED "CARTER & BURGESS" SET; THENCE N 68"43'44"E, 67.18 FEET TO A 5/8 INCH IRON ROD WITH PLASTIC CAP STAMPED "CARTER & BURGESS" SET AT THE BEGINNING OF A CURVE TO THE RIGHT; THENCE WITH SAID CURVE TO THE RIGHT, AN ARC DISTANCE 0F42.41 FEET, THROUGH A CENTRAL ANGLE OF 31"58'16", HAVING•A RADIUS OF 76.00 FEET, THE LONG CHORD OF WHICH BEARS N 84"42'52"W, 41.86 FEET TO A 5/6 INCH IRON ROD WITH PLASTIC CAP STAMPED "CARTER & BURGESS" SET; THENCE S 79"18'00"E, 57.62 FEET TO A 5/8 INCH IRON ROD WITH PLASTIC.CAP STAMPED "CARTER & BURGESS" SET AT THE BEGINNING OF A CURVE TO THE LEFT; THENCE -WITH SAID CURVE TO CENTRAL ANGLE OF 12"00'00' WHICH BEARS S 85"18'00"E, STAMPED "CARTER & BURGESS' THE LEFT, AN ARC DISTANCE HAVING A RADIUS OF 66.5 13.90 FEET TO A 5/8 INCH ' SET; OF13.93 FEET, THROUGH A FEET, THE LONG CHORD OF IRON ROD WITH PLASTIC CAP Page 5 of 15 Lone Star Association Inc. THENCE N 88'42'00"E, 84.45 FEET TO A 5/8 INCH IRON ROD WITH PLASTIC CAP STAMPED "CARTER & BURGESS" SET AT THE BEGINNING OF A CURVE TO THE RIGHT; THENCE WITH SAID CURVE TO THE RIGHT, AN ARC DISTANCE OF54.14 FEET, THROUGH A CENTRAL ANGLE OF 47'00'00", HAVING A RADIUS OF 66.00 FEET, THE LONG CHORD OF WHICH BEARS S 67-48'00"E, 52.63 FEET TO A 5/8 INCH IRON ROD WITH PLASTIC CAP STAMPED "CARTER & BURGESS"- SET.; THENCE S 44'1B'00"E, 53.97 FEET .TO A 5/8 INCH IRON ROD WITH PLASTIC CAP STAMPED "CARTER & BURGESS" SET AT THE BEGINNING OF A,CURVE,TO THE RIGHT; • THENCE WITH SAID CURVE TO THE RIGHT, AN ARC DISTANCE OF13.71 FEET, THROUGH A. CENTRAL ANGLE OF 16'21'50", HAVING A RADIUS OF 48.00 FEET, THE LONG CHORD OF WHICH BEARS S 07"28'55"E, 13.66 FEET TO A 5/8 INCH IRON ROD WITH PLASTIC CAP STAMPED "CARTER & BURGESS" SET; THENCE S 00"42'00"W, 117.51 FEET TO THE POINT OF BEGINNING AND CONTAINING 101,845 SQUARE FEET OR 2.338 ACRES OF LAND MORE OR LESS. NOTE: THIS DOCUMENT WAS PREPARED UNDER 22 TAC S663.2.1, AND DOES NOT REFLECT THE RESULTS OF AN ON THE GROUND SURVEY, AND IS NOT TO BE USED TO CONVEY OR ESTABLISH INTERESTS IN REAL PROPERTY, EXCEPT THOSE RIGHTS AND INTERESTS IMPLIED OR ESTABLISHED BY THE CREATION OR RECONFIGURATION OF THE BOUNDARY OF THE POLITICAL SUBDIVISION FOR WHICH IT WAS PREPARED. Page 6of15 SAVE AND EXCEPT: MARRIOTT INN Lone Star Association Inc. LEGAL DESCRIPTION BEING a tract of land situated in the A,C. Warren Survey, Abstract No. 1687, Tarrant County, Texas and being all of that tract of land as described by deed to Alliance Hotel II, Ltd.and recorded in Volume 13010, Page 431, County Records, Tarrant County, Texas, said tract of land being more particularly described by metes and bounds as follows: BEGINNING at the southeast corner of said Alliance Hotel II, Ltd. tract, said point being the northeast corner of a Temporary Access Easement as recorded in Volume 13010, Page 433, said County Records; THENCE along the southerly line of said Alliance Hotel II, Ltd. Tract and the northerly line of said Temporary Access Easement, the following bearings and distances : N 89°51'27' W, 114.68 feet to a 5/8 inch iron rod with cap stamped "Carter & Burgess" found, the beginning of a curve to the right; 121.32 feet along the arc of said curve to the right through a central angle of 07°01'17", a radius of 990.00 feet and a long chord of N 86°20'48"W, 121.25 feet to a 5/8 inch iron rod with cap stamped "Carter & Burgess" found, the beginning of a reverse curve to the left; • 74.75 feet along the arc of said reverse curve to the left through a central angle of 07°01'17", a radius of 610.00 feet and a long chord of N 86°20'48"W, 74.71 feet to a 5/8 inch iron rod with cap stamped "Carter & Burgess" found; N 89°5I'27"W, 1.65 feet to a 5/8 inch iron rod with cap stamped "Carter & Burgess" found; THENCE N 00°42'00"E, 171.79 feet to a 5/8 inch iron rod with cap stamped "Carter & Burgess?' found, the beginning of a curve to the right; tHENCE 126.08 feet along the arc of said curve to the rightthrough a central angle of 44°27'19", a radius of 162.50 feet and a long chord of N 22°55'40"E, 122.94 feet to a 5/8 inch iron rod with cap stamped "Carter & Burgess" found, the beginning of a reverse curve to the left; THENCE 8729 feet along the arc of said reverse curve to the left through a central angle of 44°27'19", a radius of 112.50 feet and a long chord of N 22°55'40"E, 85.11 feet to a 5/8 inch iron rod with cap stamped "Carter & Burgess" found; THENCE S 8918'00"E, 233.73 feet to a 5/8 inch iron rod with cap stamped "Carter & Burgess" found in the westerly line of J. Fred Davis and Jean C. Davis tract as recorded in Volume 5466, Page 195, said County Records; THENCE S 00°45'51 "W, 373.35 feet along said westerly line to the POINT OF BEGINNING and containing 2.500 acres of land, more or less. NOTE: THIS DOCUMENT WAS PREPARED UNDER 22 TAC S663.21, AND DOES NOT REFLECT THE RESULTS OF AN ON THE GROUND SURVEY, AND IS NOT TO BE USED TO CONVEY OR ESTABLISH INTERESTS IN REAL PROPERTY, EXCEPT THOSE RIGHTS AND INTERESTS IMPLIED OR ESTABLISHED BY THE CREATION OR. RECONFIGURATION OF THE BOUNDARY OF THE POLITICAL SUBDIVISION FOR WHICH IT WAS PREPARED. C&B Job No 971513010 June 9, 2004 J:IARCH1VE12000_ARC\010303 101SUR\WP\LEG\303V10AB.LGL Page 7 of 15 TEXAS BANK SAVE AND EXCEPT: PROPERTY DESCRIPTION Lone Star Association Inc. BEING a tract of land situated in the Thomas Walden Survey, Abstract Number 1921, Tarrant County, Texas and being a portion of that certain 1.042 acre tract of land described by deed to AIL Investment, L.P., as recorded in Volume 14315, Page. 66, Deed Records, Tarrant County, Texas and a portion of that certain 32.648 acre tract of land described by deed to AIL Investment, L.P., as recorded in Volume 13130, Page 246, Deed Records, Tarrant County, Texas and being more particularly described by metes and bounds as follows: COMMENCING at the northeast corner of said 1.042 acre tract, said point being in the existing south right-of-way line of Westport Parkway; THENCE N 89°51'11 "W, 121.76 feet along the north line of said 1.042 acre tract of land and along said existing south right-of-way line to a 5/8 inch iron rod with plastic cap stamped "Carter & Burgess" set for the POINT OF BEGINNING. THENCE S 00°08'33 "W, 327.35 feet to a 5/8 inch iron rod with plastic cap stamped "Carter & Burgess" set; THENCE N 78°45'06"W, 205.65 feet to a 5/8 inch iron rod with plasticcap stamped "Carter & Burgess" set in the east right-of-way line of Interstate Highway 35 W (a variable width right-of- way); . THENCE N l 1°14'29"E, 225,00 feet along the east right-of-way line of said Highway 35W to a 5/8 inch iron rod with plastic cap stamped "Carter & Burgess" set; THENCE N 50°25'55"E, 104.79 feet continuing along said east right-of-way line to a 5/8 inch iron rod with plastic cap stamped "Carter & Burgess" set; THENCE S 89°51'11 "E, 77.87 feet to the POINT OF BEGINNING and containing 51,682 square feet or 1.186 acres of land more or less, of which 0.186 acres Iie within the proposed right-of-way of Westport Parkway,leaving an net area of 1.000 acres of land, more or less. NOTE: THIS DOCUMENT WAS PREPARED UNDER 22 TRC S663.21, AND DOES NOT REFLECT THE RESULTS OF AN ON THE GROUND SURVEY, AND I.S NOT TO BE USED TO CONVEY OR ESTABLISH INTERESTS IN REAL PROPERTY, EXCEPT THOSE RIGHTS AND INTERESTS IMPLIED OR ESTABLISHED BY THE CREATION OR RECONFIGURATION OF THE BOUNDARY OF THE POLITICAL SUBDIVISION FOR WHICH IT WAS PREPARED. C&B Job No. 01339001 S#AC J:`JOB\01339001\SUR\WP\LEG`3390 bnl.doc June 09, 2004 Page 8 of 15 SAVE AND EXCEPT: PILOT TRAVEL CENTER LEGAL DESCRIPTION Lone Star Association Inc. Being a tract of land situated in the H.Cox Survey, Abstract Number 386, Tarrant County, Texas, and being a portion,•of that tract of land as described to ALL Investment, L.P. as recorded in Volume 13588, Page 195, county records, Tarrant County Texas,formerly known as Hiliwood/Freeway, Ltd. as recorded in Volume 9381, Page 66, said county records, and being more particularly described by metes and bounds as follows: BEGINNING at Txdot monument found at the intersection of the east right-of-way line of Interstate Highway 35-W (a variable width right-of-way) and the south right-of-way line of State Highway No. 170 (a variable width right-of-way) and the beginning of a curve to the left; THENCE 673.50 feet along the arc of said curve to the left, and with said right-of-way line, through a central angle of 13 22'36", having a radius of 2884.79 feet, and long chord which bears N 83 05'26"E, 671.97 feet to a 5/8 inch iron rod with yellow cap stamped "Carter & Burgess" set; THENCE S 11 52'14"E, 474.95 feet leaving said right-of-way line to a 5/8 inch iron rod with yellow cap stamped "Carter & Burgess" set; THENCE N 89 36'19"W, 40.00 feet to a % inch iron rod found; THENCE S 44 10'16"W, 310.09 feet to a 5/8 inch iron rod with yellow cap stamped "Carter & Burgess" set; THENCE S 00 28'45"W, 260.00 feet to a 5/8 inch iron rod with yellow cap stamped "Carter & Burgess" set; THENCE S 44 07'29"W, 110.00 feet to a 5/8 inch iron rod with yellow cap stamped "Carter & Burgess" set in the north line of that tract of land as described by deed to American Realty Trust, Inc. as recorded in Volume 12642, Page 1388, said county records, from which a'/A inch iron rod found -bears S 15 39'26"W, 1.52 feet; THENCE N 89 40' 15"W, with the north line of said American Realty Trust, Inc tract at 528.74 feet passing the northeast corner of that tract of land as described by deed to Hillwood/31, Ltd. as recorded in Volume 9906, Page 147, said county records, in all 841.01 feet to a 5/8 inch iron rod with yellow cap stamped "Carter & Burgess" set in the east right-of-way line of Interstate Highway 35-W. (a variable width right-of-way) and at the northwest corner of said Hillwood/31, Ltd. tract; THENCE N 00 14'19"E, 151.22 feet with said right-of-way line to a Txdot monument found at the beginning of a curve to the right; C&B Job No. 010061010 S#FW- 7 Y {DATEIOctober 11,1999} J:\JOB\01006101\SUR\WP\LEG\061V01BNIGL Page 9 of 15 Lone Star Association Inc. THENCE 212.74 feet along the arc of said curve to the right, continuing with said right-of-way line, through a central angle of 02 40'15", having a radius of 4563.66 feet, and a long chord which bears N 01 36'28"E, 212.72 feet to a Txdot monument found; THENCE N 02 54'45"E, 78.32 feet continuing with said right-of-way line to a 5/8 inch iron rod with yellow cap stamped "Carter & Burgess" set; THENCE S 87 28'20"E, 89.39 feet leaving said right-of-way line to a 5/8 inch iron rod with yellow cap stamped "Carter & Burgess" set; THENCE N 73 23'42"E, 94.82 feet to a 5/8 inch iron rod with yellow cap stamped "Carter & Burgess" set; THENCE S 87 13'37"E, 161.52 feet to a 5/8 inch iron rod with yellow cap stamped "Carter & Burgess" set; THENCE N 49 09'17"E; 36.90 feet line to a 5/8 inch iron rod with yellow cap stamped "Carter & Burgess" set; THENCE N 02 47'12"E, 152.00 feet to a 5/8 inch iron rod with yellow cap stamped "Carter & Burgess" set; THENCE N 87 12'48"W, 120.92 feet to a 5/8 inch iron rod with yellow cap stamped "Carter & Burgess" set; THENCE N 51 40'42"W, 135.90 feet to a 5/8 inch iron rod with yellow cap stamped "Carter & Burgess" set in the east right-of-way line of Interstate Highway 35-W (a variable width right-of- way); THENCE 333.56 feet along the arc of said curve to the right, with said right-of-way line, through a central angle of 21 18'28", having a radius of 896.93 feet, and a long chord which bears N 49 11'59"E, 331.64 feet to the POINT OF BEGINNING and containing 841,004 square feet or 19.307 acres of land more or less. NOTE: THIS DOCUMENT WAS PREPARED UNDER 22 TAC S663,21 , AND DOES NOT REFLECT THE RESULTS OF AN ON THE GROUND SURVEY, AND IS NOT TO BE USED TO CONVEY OR ESTABLISH INTERESTS IN REAL PROPERTY, EXCEPT THOSE RIGHTS AND INTERESTS IMPLIED OR ESTABLISHED BY THE CREATION OR RECONFIGURATION OF THE BOUNDARY OF THE POLITICAL SUBDIVISION FOR WHICH IT WAS PREPARED. C&B Job No. 010061010 S#FW-7Y {DATEIOctober 11,1999} J:UOB\01006101\SUR\WPILEG\061 V01BN.LGL Page 10 of 15 SAVE AND EXCEPT: FORT WORTH 109 L.P. LEGAL DESCRIPTION Lone Star Association Inc. Being a tract of land situated in the W. Houston Survey, Abstract Number 746, Tarrant County, Texas, a being a part of that tract of land as described by deed to FW Fort Worth 109 L.P. as recorded in Volume 16822, Page 229, County Records, Tarrant County, Texas and being more particularly described by metes and bounds as follows: BEGINNING at a %2 inch iron rod found at the northeast corner of said FW Fort Worth 109 L.P. tract, said iron rod also being the northwest corner of Tract 3 of that tract of land as described by deed to Ail Investments, L.P. as recorded in Volume 9527, Page 1011, County Records, Tan -ant County, Texas and the south line of Tract 2 of said Ail Investments, L.P. tract; THENCE S 00°06'45"E, 566.71 feet with the east line of said FW Fort Worth 109 L.P. tract and the west line of said Ail Investments, L.P. tract to the north line of that tract of land as described by deed to Texas Electric Service Company as recorded in Volume 10290, Page 2143, County Records, Tarrant County, Texas; THENCE S 64°19'09"W, 1696.12 feet leaving said east line of said FW Fort Worth 109 L.P. tract and the west line of said Ail Investments, L.P. with the north line of said Texas Electric Service Company tract to the west line of said FW Fort Worth 109 L.P. tract and also being in Old Denton Road; THENCE N 00°05'53"W, 235.12 feet to a P.K Nail set in the south right-of-way line of State Highway No. 170; THENCE S 89°17'33"E, 56.07 feet with said south right-of-way line to a 5/8 inch iron rod with yellow cap stamped "Carter & Burgess" set at the beginning of a curve to the right; THENCE 225.19 feet along the arc of said curve to the right, and with said south right-of-way line, through a central angle of 13°01'57", having a radius of 990.00 feet, and a long chord which bears N 07°13'06"E, 224.70 feet; THENCE N 13°43'14"E, 125.39 feet continuing with said south right-of-way line to a 5/8 inch iron rod with yellow cap stamped "Carter & Burgess" set at the beginning of a curve to the left; THENCE 158.32 feet along the arc of said curve to the left, continuing with said south right-of- way line, through a central angle of 08°10'20", having a radius of 1110.00 feet, and a long chord which bears N 09°38'04"E, 158.19 feet to a 5/8 inch iron rod with yellow cap stamped "Carter & Burgess" set in the north line of said FW Fort Worth 109 L.P. tract, said iron rod also being in the south line of Tract 2 of said Ail Investments, L.P. tract; C&B Job No. 011180.014 J:\JOB\01367801\SUR\WP\LEG,3678_BN2.doc June 10, 2004 Page 11 of 15 Lone Star Association Inc. THENCE N 67°47'04"E, 1498.60 feet with the north line of said FW Fort Worth 109 L.P. tract and the south line of Tract 2 of said Ail Investments, L.P. tract to the POINT OF BEGINNING and containing 908,626 square feet or 20.859 acres of land more or less. "This document was prepared under 22 TAC 663.21, does not reflect the results of an on the ground survey, and is not to be used to convey or establish interests in real property except those rights and interests implied or established by the creation or reconfiguration of the boundary of the political subdivision for which it was prepared." C&B Job No. 011180.014 J:`JOB\01367801\SLR\WP\LEG\3678 BN2.doc June 10, 2004 Page 12 of 15 SAVE AND EXCEPT: FORT WORTH E.T.J. LEGAL DESCRIPTION (-11Y OF FORT WORTH, TEXAS ETJ Lone Star Association Inc. BEING a tract of land situated in the H. Creed Survey, Abstract Number 1898, and the M.E.P. & P. RR. Survey, Abstract Number 1143, Tarrant County, Texas and being more particularly described by metes and bounds as follows: COMMENCING at the southwest corner of Lat 2, Block 1, Alliance Gateway West Addition, as recorded in Cabinet A, Slide 5817, Plat Records, Tarrant County, Texas, said point being in the existing east right-of-way line of Interstate Highway 35W; THENCE N 00°12'16"E, 152.52 feet along the easterly right-of-way line of said Interstate Highway 35W to the beginning of a curve to the right; THENCE continuing along the easterly right-of-way line of said Interstate Highway 35W and with said curve to the right, through a central angle of 02°40'04", having a radius of 4563.66 feet, the long chord of which bears N 01°36'33"E, 212.47 feet, an arc distance of 212.49 feet; THENCE N 01°12'30"E, 1235.75 feet continuing along the easterly right-of-way Line of said Interstate Highway 35W and across State Highway 170, again along the easterly right-of-way line of said Interstate Highway 35W to the beginningof a curve to the right; THENCE continuing along the easterly right-of-way line of said Interstate Highway 35W and with said curve to the right, through a central angle of 02°04'52", having a radius of 11540.73 feet, the long chord of which bears N 00°46'13"W, 419.14 feet, an arc distance of 419.16 feet; THENCE N 0.1°48'25"W, 133.37 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 88°07'58"E, 6.25 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 01°36'22"W, 199.97 feet continuing along the easterly right-of-way line of said Interstate Highway 35W to the beginning of a curve -to the right; THENCE continuing along the easterly right-of-way line of said Interstate Highway 35W and with said curve to the right, through a central angle of 02°24'33", having a radius of 9816.25 feet, the long chord of which bears N 00°40'09"W, 412.74 feet, an arc distance of 412.77 feet; THENCE N 00°15'47"E, 180.44 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; C&B Job No. 011900651 I:`JOB\01190065`,SURIWP\LEG\ETJREV . doc June 10, 2004 Page 13 of 15 Lone Star Association Inc. THENCE N 05°09'38"W, 55.38 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 00°16'30"E, 223.28 feet continuing along the easterly right-of-way line of said Interstate Highway 35W to the beginning of a curve to the right; THENCE continuing along the easterly right-of-way line of said Interstate Highway 35W and with said curve to the right, through a central angle of 009°00'37", having a radius of 6541.97 feet, the long chord of which bears N 05°07'30"E, 1027.73 feet, an arc distance of 1028.79 feet; THENCE N 09°55'51"E, 134.93 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 10°29'25"E, 622.83 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 11 ° 14'59"E, 930.32 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 17°13'22"E, 186.31 feet across Keller -Haslet Road (County Road 4042), returning to the easterly right-of-way line of said Interstate Highway 35W; THENCE N 11°14'55"E, 884.13 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 12°58'01 "E, 232.01 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 12°58'01 "E, 96.22 feet continuing along the easterly.right-of-way line of said Interstate Highway 35W; THENCE N 11°14'55"E, 131.23 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE N 08°27'37"E, 162.97 feet continuing along the easterly right-of-way line of said Interstate Highway 35W; THENCE S 88°28'S8"E, 2890.60 feet to Old Denton Road; THENCE S 00°35'41 "W, 1485.20 feet along Old Denton Road to Keller -Haslet Road and the PONT OF BEGINNING. THENCE S 89°54'46"W, 2637.53 feet along said Keller -Haslet Road; THENCE S 00°12'58"E, 207.77 feet; C&B Job No. 011900651 J:\JOB\0i 190065\SUR\WP\LEG\ETJREV.doc June 10, 2004 Page 14 of 15 Lone Star Association Inc. THENCE S 13°31'06"W, 490.39 feet; THENCE S 09°58'06"W, 368.01 feet to the east line of that certain tract of land described by deed to AIL Investment, L.P., Volume 13130, Page 246, Deed Records, Tarrant County, Texas; THENCE S 00°03'10"W, 321.76 feet along said east line to the northwest corner of that tract of land described in deed to Michael D. Stephens, Etux, recorded in Volume 7514, Page 357 of said Deed Records; THENCE N 89°42'03"E, 664.41 feet along the north line of said Stephens tract; THENCE S 00°02'10"E, at 658.1 feet the southeast corner of said Stephens tract and the northeast corner of that tract of land described in to Marvin C. Hicks, Etux recorded in Volume 9326, Page 1786 of said Deed Records, at 987.4 feet the southeast corner of said Hicks tract and the northeast corner of that tract of land described in deed to Tony J. Kimbro, Etux recorded in Volume 7619, Page 1085 of said Deed records, in all a distance of 1314.12 to the north line of said Hillwood tract; • THENCE N 89°44'38"E, 2006.03 feet continuing along the north line of said Hillwood tract to Old Denton Road; THENCE N 00° 16'12"E, 2075.32 feet along Old Denton Road; THENCE N 15°53'57"E, 120.79 feet continuing along said Old Denton Road; THENCE N 25°29'11 "E, 204.78 feet continuing along said Old Denton Road; THENCE N 14°36'14"E, 114.86 feet continuing along said Old Denton Road; THENCE N 01°31'40"E, 165.67 feet continuing along said Old Denton Road to the aforementioned Keller -Haslet Road; THENCE S 89°43'16"W, 20.46 feet along said Keller -Haslet Road; THENCE N 00°35'41 "E, 21.50 feet to the POINT OF BEGINNING and containing 144 acres of land more or less. June l0, 2004 NOTE: THIS DOCUMENT WAS PREPARED UNDER 22 TAC S663.21, AND DOES NOT REFLECT THE RESULTS OF AN ON THE GROUND SURVEY, AND IS NOT TO BE USED TO CONVEY OR ESTABLISH INTERESTS IN REAL PROPERTY, EXCEPT THOSE RIGHTS AND INTERESTS IMPLIED OR ESTABLISHED BY THE CREATION OR RECONFIGURATION OF THE BOUNDARY OF THE POLITICAL SUBDIVISION FOR WHICH IT WAS PREPARED. C&B Job No. 011900651 J:UOB\01190065\SUR\WP\LEG\ETJREV.doc June 10, 2004 Page 15 of 15 SAVE AND EXCEPT: All that Property currently located in the public right-of-way of State Highway 170, approximately 116.2 acres. REPUBLIC TITLE OF TEXAS INC 2626 HOWELL STREET 10TH FL DALLAS TX 75204 Submitter: REPUBLIC TITLE OF TEXAS SUZANNE HENDERSON TARRANT COUNTY CLERK TARRANT COUNTY COURTHOUSE 100 WEST WEATHERFORD FORT WORTH, TX 76196-0401 DO NOT DESTROY WARNING - THIS IS PART OF THE OFFICIAL RECORD. Filed For Registration: 06/11/2004 10:22 AM Document No.: D204181428 WD 66 PGS IIIII IIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIII (III D204181428 $142.00 ANY PROVISION WHICH RESTRICTS THE SALE, RENTAL OR USE OF THE DESCRIBED REAL PROPERTY BECAUSE OF COLOR OR RACE IS INVALID AND UNENFORCEABLE UNDER FEDERAL LAW. Exhibit "E" MANAGEMENT AGREEMENT THIS MANAGEMENT AGREEMENT (the "Agreement") is dated as of , 2004, by and between Cabela's Retail, Inc., a Nebraska corporation ("Cabela's"), the Lone Star Local Government Corporation, a non-profit corporation organized under Subchapter D of Chapter 431, Texas Transportation Code ("LGC") and the Board of Directors of the Cabela's Fort Worth Condominium Association (the "Board") on behalf of the Cabela's Forth Worth Condominium Association (the "Association"). WITNESSETH: WHEREAS, Cabela's shall construct an approximately 200,000 square foot building and prepare for certain other development in the City of Forth Worth, County of Tarrant, State of Texas (the "Project"); WHEREAS, as part of the Project, Cabela's has declared a certain portion of the Project to be a condominium (the "Condominium") in accordance with the Texas Uniform Condominium Act, [citation], and all amendments thereto (the "Act"); WHEREAS, a portion of the Condominium shall be dedicated for use as a wildlife public museum and exhibition center (the "Museum") and conveyed by Cabela's to the LGC; WHEREAS, the Condominium is governed by the Association in accordance with the Declaration of Condominium and Bylaws described herein; and WHEREAS, the parties hereto desire to enter into this Agreement to make certain conveyances, appointments and elections, all in accordance with the Act, the Bylaws and the Declaration of Condominium. NOW, THEREFORE, in consideration of the mutual promises and conditions set forth in this Agreement, the parties hereby agree as follows: 1. Definitions. As used in this Agreement, the following terms shall have the following meanings: "Accrued Management Compensation" shall have the meaning given thereto in Section 8 hereof. "Act" shall mean the Act defined in the recitals. "Association" shall mean the Cabela's Forth Worth Condominium Association as further defined in the Declaration of Condominium. "Board" shall mean the Board of Directors of the Association as further defined in the Declaration of Condominium. "Bonds" shall have the same meaning as defined in the Master Economic Development Agreement, by and among the City of Forth Worth, Texas, Tarrant County Texas, the Lone Star Local Government Corporation and Cabela's Retail, Inc. 251720 1 1 "Bylaws" shall mean the bylaws of the Association. "Closing" shall have the meaning given thereto in Section 9 hereof. "Code" means the Internal Revenue Code of 1986, as amended. "Condominium" shaii mean the Condominium defined in the recitals and further described in the Declaration of Condominium. "Declaration of Condominium" shall have the meaning given thereto in Section 2 hereof. "LGC" means the Lone Star Local Government Corporation. "Legal Requirements" shall have the meaning given thereto in Section 7 hereof. "Management Compensation" shall have the meaning given thereto in Section 8 hereof. "Managing Agent" means Cabela's Retail, Inc., a Nebraska corporation. "Museum" means the Museum described in the recitals hereof and also described as Unit 1 in the Declaration of Condominium. "Project" means the Project described in the recitals hereof. "Purchase Price" shall have the meaning given thereto in Section 9 hereof. "Related Person" means a "related party" within the meaning of Section 1.150-1(b) of regulations promulgated under the Code. "Retail Center" means the Cabela's retail store described as Unit 2 in the Declaration of Condominium. 2. Appointment of Unit 2 Board Members. Prior to execution of this Agreement, Cabela's executed that certain Declaration of Condominium of Cabela's Forth Worth Condominium in the City of Forth Worth, County of Tarrant, State of Texas (the "Declaration of Condominium"), whereby Unit 1 of the Condominium shall constitute the Museum and Unit 2 of the Condominium shall constitute the Retail Center. In accordance with Section 3.1 of the Declaration of Condominium, Cabela's hereby appoints two (2) members to the Board, and those two members are and Tim Holland. 3. Conveyance of Unit 1. Concurrently with the execution of this Agreement, Cabela's shall execute the special warranty deed as set forth on Exhibit "A" attached hereto and incorporated herein by this reference (the "Deed") and the bill of sale and assignment as set forth on Exhibit "B" attached hereto and incorporated herein by this reference (the "Bill of Sale"). Upon execution and delivery of the Deed and Bill of Sale, Unit 1 of the Condominium shall be conveyed to the LGC, along with all Museum Pieces (as defined in the Bill of Sale) located in Unit 1. For purposes of this Agreement, all references to Unit 1 shall hereinafter also include the Museum Pieces. As partial consideration for the conveyance of Unit 1, the LGC shall issue the Bonds for the benefit of Cabela's. LGC hereby agrees to maintain ownership of Unit 1 in accordance with this Agreement, the Declaration of Condominium and the Bylaws. 251720 1 2 4. Appointment of Unit 1 Board Member. In accordance with Section 3.1 of the Declaration of Condominium, LGC hereby appoints one (1) member to the Board, and that member is 5. Election of Officers. In accordance with Section 4.2 of the Bylaws, the Board hereby elects the following individuals to serve as officers of the Association: President Vice President Tim Holland Secretary Tim Holland Treasurer 6. Appointment of Manaaina Aaent. In accordance with Section 3.6 of the Bylaws, the Board hereby appoints Cabela's Retail, Inc., a Nebraska corporation, as the Managing Agent for the Condominium. Cabela's Retail, Inc., a Nebraska corporation, hereby accepts appointment as the Managing Agent of the Condominium, all in accordance with the terms and conditions set forth in this Agreement, the Declaration of Condominium and Bylaws. 7. Duties of Managing Agent. The Managing Agent shall be responsible for managing the Condominium, including the Museum, and all of its assets and services with the same degree and skill as employed by other managers of comparable facilities in compliance in all material respects with all rules, regulations and policies of all applicable governmental and administrative laws, statutes, ordinances, licenses, rules, regulations and like requirements (collectively, the "Legal Requirements"). In order to carry out its responsibilities as set forth in this Agreement, the Managing Agent is specifically authorized, but not limited, to perform the following duties: a. The Managing Agent will cause the Retail Center, Museum and all portions of the Condominium to be maintained and repaired in accordance with all applicable Legal Requirements, including but not limited to cleaning, painting, decorating, plumbing, carpentry, grounds care, and other maintenance and repair work as may be deemed reasonably necessary. The Managing Agent is authorized to purchase all materials, equipment, tools, appliances, supplies and services reasonably necessary for the proper maintenance and repair of all areas of the Condominium during the term of this Agreement. Except as otherwise expressly set forth in Section 8, the Managing Agent shall be required to expend its own funds for all purposes hereunder and in connection herewith. b. The Managing Agent shall at all times keep and maintain full, true and accurate books of accounts to fully reflect all expenditures made for the benefit of the Condominium under this Agreement, which books and records shall be open to inspection by authorized representatives of the Association at all reasonable times during the term of this Agreement and for as long as necessary in case of termination hereof and in such detail and for such time periods as may be required by the Bylaws, Declaration of Condominium and all applicable Legal Requirements. c. Operate the Museum so that it is open to the public, without charge, at least 40 hours per week and, in all events, the Museum shall be open to the public without charge at the same time as the Retail Center is open to the public for business. 251720.1 3 d. The Managing Agent shall employ such persons, consultants and agents as shall be necessary to maintain the Condominium in a condition substantially equivalent to the condition of similar property owned or operated by Cabela's in Dundee, Michigan and Kansas City, Kansas. All employees who work at the Museum shall be employees solely of the Managing Agent and under no circumstances shall such persons be employees of the Association. All such personnel will be hired, supervised and discharged by the Managing Agent. The Managing Agent shall accept full and exclusive responsibility and liability for computing and paying all federal and state payroll taxes and for contributions for unemployment insurance, Social Security (FICA) and other benefits imposed or assessed under any provision of any law or regulation, federal or state, and which are measured by salaries, wages or other remuneration paid or payable to such employees engaged in any work in connection with the Museum, this Agreement or incidental thereto. The Managing Agent agrees to save the Association harmless from all claims for penalties, interests or costs which may be made or assessed under any law or any rules or regulations thereunder with respect to employees working at or in connection with the Museum. e. The Managing Agent shall perform all duties set forth in Sections 3.5(a-g) of the Bylaws. f. The Managing Agent shall perform its duties in accordance with all terms and conditions set forth in this Agreement, the Bylaws and the Declaration of Condominium. 8. Compensation for Manaaina Aaent. In exchange for performing the duties set forth in this Agreement, Managing Agent shall be entitled to its actual costs and expenses arising out of the operation, maintenance and repair of the Condominium, including the personnel costs associated therewith (the "Management Compensation"); provided, however, the Management Compensation assessed against the owner of Unit 1 (including a portion of Exterior Expenses, as defined in the Declaration of Condominium) shall be deferred until such time as Cabela's purchases Unit 1 from the LGC in accordance with Section 9 below. The Management Compensation shall, at the end of each calendar year, accrue annual compounded interest at a fixed rate of two percent (2%) over the then -current 20 year Treasury rates. The amount at any particular time of all such accrued Management Compensation and interest thereon shall be referred to herein as the "Accrued Management Compensation." 9. Purchase Option for Unit 1: Purchase Price. At the option of Cabela's, the LGC hereby agrees to sell, convey and transfer all of its right, title and interest in and to Unit 1 to Cabela's or its assigns (i) twenty (20) years after the execution of this Agreement, (ii) upon the payoff of the Bonds or (iii) at any time upon mutual agreement by Cabela's and the LGC. The purchase price for Unit 1 (the "Purchase Price") shall be the fair market value of the Museum (the "FMV") on the date Cabela's exercises its option in accordance with this Section 9 (the "Option Date"). The FMV shall be determined by a "qualified appraiser" (as defined below) mutually agreed upon by Cabela's and the LGC; provided, however, if the parties do not agree as to the identify of the qualified appraiser within thirty (30) days after Cabela's exercises its option to purchase Unit 1, then each party shall choose a qualified appraiser to determine the FMV and each qualified appraiser shall submit their determination of FMV to the other (together with the information forming the basis for such determination) within seventy-five (75) days after the Option Date. Each party will pay all fees for the qualified appraiser that it hires. In the event that each party hires a qualified appraiser, and the appraisers cannot agree upon a FMV within fifteen (15) days after they exchange information, then the two (2) qualified appraisers shall 251720.1 4 jointly select a third qualified appraiser. Within thirty (30) days after the appointment of the third qualified appraiser, the third qualified appraiser shall select one of the two initially submitted appraisals as the FMV and such selection shall be binding upon the parties. The fee of any third qualified appraiser shall be paid by the party whose determination of FMV was not selected by the third qualified appraiser. For purposes of this Agreement, the term "qualified appraiser" shall mean an appraiser who is independent, licensed and has at least ten (10) years experience appraising commercial properties in the State of Texas. The Purchase Price shall be subject to any adjustments and prorations as are customary in a transfer of goods, and Cabela's shall be allowed to take as a credit against the Purchase Price in an amount equal to the Accrued Management Compensation plus other amounts then due and owing by the LGC to the Association. In the event that the Accrued Management Compensation plus any other amounts due and owing by the LGC to the Association exceeds the Purchase Price, Cabela's (as the sole member of the Association after the purchase of Unit 1 from the LGC) shall waive any requirement for the LGC to pay any such excess amounts to the Association. The Option Notice shall specify the closing date for such purchase (the "Closing") and contain the Managing Agent's calculation of the Accrued Management Compensation plus all other amounts then due and owing by the LGC to the Association. At the Closing, the LGC shall convey Unit 1 to Cabela's or its assigns by special warranty deed and bill of sale in a form substantially similar to those set forth on Exhibits "A" and "B" hereto and, upon said conveyance, all of LGC's right, title and interest to Unit 1 shall cease. 10. Term of Agreement. This Agreement shall terminate upon the sale of Unit 1 to Cabela's in accordance with Section 9 of this Agreement. 11. Indemnification. a. The Association shall indemnify and save harmless the Managing Agent from and against any and all liabilities, claims, damages, costs and expenses (including reasonable attorney's fees) to which the Managing Agent may become subject by reason or arising out of the timely performance of its duties within the scope of this Agreement; provided, however, no such right of indemnity shall exist with respect to any liabilities, claims, damages, costs or expenses which may be incurred by Managing Agent by reason of its willful misconduct, bad faith or gross negligence in the conduct of its duties or breach by Managing Agent of any of the duties or obligations to be performed by Managing Agent under this Agreement. b. The Association shall indemnify and save harmless the Managing Agent from any and all liabilities, claims, damages, costs and expenses to which Managing Agent may become subject by reason of or arising out of the willful misconduct, bad faith or gross negligence of the Association. c. The Managing Agent will give the Association the benefit of its best judgment and efforts in rendering the services required pursuant to this Agreement. The Managing Agent shall be liable for its willful misconduct in the conduct of its duties and the Managing Agent shall indemnify and save harmless the Association from and against any and all liabilities, claims, damages, costs and expenses (including reasonable attorneys' fees) to which the Association may become subject by reason of or arising out of the willful misconduct of the Managing Agent, its officers, directors, Managing Agents or employees or the default or violation by Managing Agent of any of its obligations under this Agreement. 251720.1 5 d. The Managing Agent shall maintain at all times during the term of this Agreement all fire, extended coverage and general liability insurance on the Condominium in an amount adequate to cover the cost of replacement of any and all items located on or in the Condominium in the event of loss and to protect the Association, the Board, Cabela's and the LGC and their officers, agents and employees against any loss, liability or expense from personal injury, death, property damage or otherwise arising or occurring upon or in connection with the Condominium. The LGC shall be named as an additional insured under such policy or policies, and certificates of insurance showing compliance with the foregoing requirements shall be furnished by the Managing Agent to the LGC. Such certificates shall state that policies will not be cancelled or altered without at least thirty (30) days prior written notice to the LGC. Cabela's shall defend, indemnify and save harmless the LGC from any and all liabilities, claims, suits, damages, costs and expenses of any nature or kind to which the LGC may become subject as a result of its ownership of the Condominium or involvement in the Project; provided, however, the LGC, its officers, agents and employees shall not be held harmless for any damages arising out of the willful misconduct, bad faith or gross negligence of the LGC, its officers, agents and employees. Insurance proceeds actually paid to the LGC as an additional insured under the policies described above shall be credited against any amounts owing by Cabela's to the LGC hereunder; provided, however, except for any such proceed amounts utilized to offset amounts owing by Cabela's to the LGC, the LGC shall utilize such proceeds to replace and repair any damages that occurred to the Condominium which led to the claim resulting in the payment of such proceeds to the LGC. e. Promptly upon becoming aware of any claim or matter (an "Indemnified Claim") as to which one party has been indemnified by the other party hereunder, the indemnified party shall give the other party written notice of the Indemnified Claim. The other party shall have fifteen (15) days from receipt of such notice (or such shorter period as may be reasonable under the circumstance) to elect to defend the indemnified party's interests relative to the Indemnified Claim; provided, however, that in the event the other party does not elect within such period to assume said defense, the indemnified party shall be free to do so without in any manner reducing, altering or impairing the other party's obligations relative to the Indemnified Claim by reason of the foregoing provisions of this Section. If the other party assumes and diligently pursues the defense of the Indemnified Claim, neither party shall enter into any settlement or compromise of same without the other party's prior written consent, which shall not be unreasonably withheld. 12. Notices. Any notice which either party may desire to give to the other or which may be required under the terms hereof shall be sufficient if delivered personally, or if sent by United States mail, postage prepaid and registered or certified, return receipt requested, addressed as follows: 251720 I 6 If to the Association: If to the Managing Agent: With a copy to: Cabela's Forth Worth Condominium Association Attention: Cabela's Retail, Inc. One Cabela Drive Sidney, Nebraska 69160 Attention: Dennis Highby, President Koley Jessen P.C. One Pacific Place, Suite 800 1125 South 1 03rd Street Omaha, Nebraska 68124 Attention: Michael M. Hupp or such other address as may be furnished in writing as aforesaid. The date of giving any such notice or demand shall be (i) the date of personal delivery, if service is so effected, or (ii) the date three business days after the same is deposited in the United States mail as provided above. 13. Assignment. Managing Agent may not assign its rights, duties and obligations under this Agreement without the prior written consent of the Board. No permitted assignment under this Section 13 shall relieve the assignor of its duties and obligations under this Agreement prior to such assignment. Subject to the foregoing, this Agreement and every provision hereof shall bind, apply to and inure to the benefit of the parties hereto and their respective permitted successors and assigns. 14. Miscellaneous. a. This Agreement shall inure to the benefit of and constitute a binding obligation upon the parties hereto and their respective permitted successors and assigns. b. This Agreement, the Declaration of Condominium and Bylaws constitutes the entire agreement between the Association and the Managing Agent with respect to the management and operation of the Condominium, including the Museum, and no change will be valid unless made by supplemental written agreement, executed and approved by the proper parties. c. If any term, provision or condition contained in this Agreement shall, in any extent, be held to be invalid, illegal or unenforceable in any respect, the remainder of this Agreement (or the application of such term, provision or condition to persons or circumstances other than those in respect of which it is invalid, illegal or unenforceable) shall not be affected thereby, and each and every other term, provision and condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 251720 1 7 d. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall constitute but one and the same instrument. e. The captions or headings in this Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provisions of this Agreement. f. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. [The remainder of this page intentionally left blank.] 25 1720. I 8 IN WITNESS WHEREOF, the undersigned hereby sign, and each acknowledge that he/she/it is duly authorized to sign this Agreement on the date first above written. CABELA'S RETAIL, INC., DIRECTORS OF THE CABELA'S FORTH a Nebraska corporation WORTH CONDOMINIUM ASSOCIATION: By Dennis Highby, President LONE STAR LOCAL GOVERNMENT Tim Holland CORPORATION By Its CABELA'S RETAIL, INC., a Nebraska corporation, as OPERATOR By Dennis Highby, President 251720 I 9 Exhibit "A" SPECIAL WARRANTY DEED THIS DEED is made this day of , 2004, by Cabela's Retail, Inc., a Nebraska corporation, whose mailing address is One Cabela Drive, Sidney, Nebraska 69160 (the "Grantor"), for the benefit of the Lone Star Local Government Corporation, whose mailing address is (the "Grantee"). WITNESSETH, THAT THE SAID GRANTOR, in consideration for the issuance of certain bonds, all as further described in that certain Management Agreement entered into by the parties (and others) and dated concurrently herewith, and other good and valuable consideration, the receipt whereof is hereby acknowledged, does by these presents, grant and convey unto Grantee, its successors and assigns, the following described real estate situated in the County of Tarrant, State of Texas: Unit 1, CABELA'S FORTH WORTH CONDOMINIUM, as created by the Declaration of Condominium of Cabela's Forth Worth Condominium in the City of Forth Worth, County of Tarrant, State of Texas and recorded in the Office of the Recorder of Deeds of Tarrant County in Deed Book at Page as Document No. and the Plan thereof recorded in the Office of the Recorder of Deeds of Tarrant County in Deed Book at Page as Document No. , together with an interest in certain common elements described therein, but subject to terms, provisions, conditions, limitations and easements of CABELA'S FORTH WORTH CONDOMINIUM, City of Forth Worth, County of Tarrant, State of Texas. Grantor covenants with Grantee that Grantor; 1. is lawfully seised of such real estate and that it is free from encumbrance, except covenants, easements and restrictions of record; all regular taxes and special assessments, except those levied or assessed subsequent to the date hereof; 2. has legal power and lawful authority to convey the same, 3. warrants and will defend title to the real estate against the lawful claims of all persons claiming the same or any part thereof by, through, or under Grantor. CABELA'S RETAIL, INC., Grantor By: 251720.1 1 Dennis Highby, President STATE OF NEBRASKA ) SS. COUNTY OF CHEYENNE On this day of , 2004 before me, a notary public in and for said county and state, personally came Dennis Highby, President of Cabela's Retail, Inc., a Nebraska corporation, known to me to be the identical person who signed the foregoing Quitclaim Deed and acknowledged the execution thereof to be his voluntary act and deed. WITNESS my hand and notarial seal in said county and state, the day and year last above written. Notary Public 251720.1 2 Exhibit "B" BILL OF SALE AND ASSIGNMENT THIS BILL OF SALE AND ASSIGNMENT shall be effective as of , 2004, and is made from Cabela's Retail, Inc., a Nebraska corporation (hereinafter "Assignor") to the Lone Star Local Government Corporation (hereinafter "Assignee"). WITNESSETH: WHEREAS, Assignor has agreed to transfer to Assignee Unit 1 of the Cabela's Forth Worth Condominium in the City of Forth Worth, County of Tarrant, State of Texas (hereinafter "Unit 1"), pursuant to that certain Management Agreement entered into by the parties (and others) and dated concurrently herewith (the "Management Agreement"); WHEREAS, Unit 1 shall be used as a museum by Assignee, and the transfer of Unit 1 to Assignee shall include certain taxidermy, antlers and/or racks, and certain other items to be utilized by the Assignee in said museum, and all as further described on Exhibit "A" attached hereto and incorporated herein by this reference (the "Museum Pieces"); and WHEREAS, Assignee has agreed to purchase Unit 1 and the Museum Pieces under the terms and conditions set forth in the Management Agreement. NOW THEREFORE, in consideration of the terms and conditions set forth in the Condominium Agreement, Assignor does hereby grant, bargain, sell, convey, set over, transfer, assign, deliver and contribute to Assignee all its right, title and interest in and to the Museum Pieces. Assignor covenants and agrees with Assignee, its successors and assigns, that Assignor owns the Museum Pieces free and clear of any and all liens and encumbrances and that Assignor has a good right to sell, assign and defend said Museum Pieces to Assignee, and that Assignor will warrant and defend said Museum Pieces to Assignee, its successors and assigns, against the lawful claims of all persons whomsoever. Assignor agrees and covenants, from time to time on or after the date hereof, upon the reasonable request of Assignee, to execute and deliver to Assignee such further documents and/or instruments of assignment, conveyance, transfer and confirmation and to take such action as may be necessary in order to more effectively convey and transfer the Museum Pieces conveyed hereby to, and vest and confirm title to the Museum Pieces in, Assignee. The execution and delivery of any such additional documents and/or instruments shall not affect the validity of this Bill of Sale and Assignment. [The remainder of this page intentionally left blank.] 251720.1 3 IN WITNESS WHEREOF, Assignor has executed and delivered this Bill of Sale and Assignment as of the date first listed above. EXECUTED BY: AGREED BY: CABELA'S RETAIL, INC., Assignor LONE STAR LOCAL GOVERNMENT CORPORATION, Assignee By: Dennis Highby, President 251720.1 4 By: Its: EXHIBIT I F Cabela`s Retail Expansion EXHIBIT "F" Fort Worth / Alliance, Texas CARELA`S CONSTRUCTION SCHEDULE ID T ask Name Duration Start Finish 2004 2005 8 Dec Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Site Selection and Due udhgence 5 05 mons Fri 12/12/03 Fn 4/30/04 1 Fngmeenng and Development Plans 7 05 mons Fn t/23/04 Fri 8/6/04 Zoning, Permits and Approvals 12 8 mons Fri 1/23/04 Fri t/14/05 B ▪ Bid and Award Packages 6 75 mons Mon 5/10/04 Fri 11/12/04 4 - Site Development (Grading & Utd) 7 4 mons Mon 6/14/04 Wed 1/5/05 —a Site Work (Lake. Mil Pavmgl 8.2 mons Tue 8/31/04 Fri 4/15/05 r 4 Building Construction 10 mons Mon 7/19104 Fri 4/22/05 15 16 24 Retail Set -rip 1 25 mons Mon 4/4/05 Fri 5/6/05 16 Soft Opening 0 05 mons Mon 5/9/05 Mon 5/9/05 a ?n Grand Opening 0 05 mons Tue 5/31/05 Tue 5/31/05 Protect r abelas Ft Worth Schedule Date Wed //,04 Task Progress Summary External Tasks Deadline Split Milestone ♦ Project Summary ' External Milestone , Page 1 Printed. Wed 7/7/04 10.21 AM i Legend 61 Zip Codes dill Central City CDBG Area I r-I City Limit 2 1 0 2 Miles EXHIBIT G 131 , a76148 L � 76137 Schedule 1 Lone Star TIF Public Infrastructure Land Cost: Wet Pond/Site Detention Cabela's Site - Public Purpose Cabela's Site - Retail Purpose $419,439 $1, 080, 329 Off -Site Development Cost: Highway Improvements - Curb Cuts & Turning Lanes $500,000 Streets/Roads - Cabela's Dr. $2,125,000 Water Line 16" $72,000 Water Line 12" $162,500 Engineering Cost $200,000 Site Development Cost: Environmental -Pond & Stream Relocate/Mitigate $950,000 -Landscape/Hardscape Lake & Stream $1,400,000 Demolition $80,000 Earthwork/Grading $500,000 Stormwater Management $80,000 Cabela's Parkway $240,000 Sewer Relocate $150,000 Engineering Cost $152,000 Sitework: Grading $200,000 Paving - Internal Streets/Roads Parking Lots - Cars $3,000,000 RV/Trucks $420,000 Landscaping $800,000 Electrical $550,000 Site Utilities $800,000 Drainage Stream Structure $198,000 Building: Museum/Display Space $8,492,227 (Museum, Mountain,Aquarium, Diorama) Public Area $960,000 (Confer. Rms, Restrooms,Public Support Space) Retail Space Warehouse Furniture, Fixtures & Equipment: Furniture & Fixtures Security MIS/Communications Signage - Interior Exterior Material Handling Racking Special Features: Statue Taxidermy Murals Soft Cost: Arch/Engineering Cost Reimbursable Cabela's Administration $0 $2,000,000 $448,942 Finance & Legal: $200,000 Total Estimated Project Improvements $26,180,437 I I New Cabela's Retail Facility I Estimate Of Potential Development Cost Potential Site: Fort Worth, Texas Potential Store Size: 225,000 SF Potential Site Size: 50 Acres Description Quantity Land Cost: Wet Pond/Site Detention Cabela's Site - Public Purpose I Cabela's Site - Retail Purpose Off -Site Development Cost: Highway_Improvements - Curb Cuts & Turning Lanes Streets/Roads - Cabela's Dr. Water Line 16" Water Line 12" Engineering Cost Site Development Cost: Environmental I -Pond & Stream Relocate/Mitigate - Landscape/Hardscaoe Lake & Stream I Demolition Earthwork/Gradirw Stomrrrater Management Cabela's Parkway Sewer Relocate Engineering Cost Sitework: Grading Paving - Internal Streets/Roads Parking Lots- Cars RV/Trucks Landscaping Electrical Ste Utilitles Drainage Stream Structure 49.90 5.750 14.810 29.340 1 1 2.500 1,200 2,500 1 1 UM Acres Acres Acres Acres LS Allow LF LF LF LS LS 1 LS 1 LS 1 LS 50 Ames 1 Allow 800 LF 1 LS 1 Allow 50 Acres 1 Allow 2,000 120 1 1 1 380 �Buikling: 229,638 Museum/Display Space 41,055 (Museum, Mountain.Aouarium,Diorama) IPub5c Area 23,988 I (Confer. Rots, Restrooms, Public Support Space) 1 Retail Space 135,833 I I Warehouse 28.762 I I Furniture, Fixtures & Eguipment: 229,838 Fumiture & Fixtures I Security I MIS/Communications Signage - Interior Exterior I Material Handing I Racking (Special Features: (Statue Taxidermy I IMurals I 1 (Soft Cost: Arch/Engkneering Cost Reimbursable ICabela's Administration 1 Finance & Legal 1 229,638 EA FA LS LS LS LF SF SF SF SF SF SF LS SF LS Total I Unit Price $72,945.90 $72,945.90 $72,945.90 $500,000.00 $850.00 $80.00 $85.00 $200,000.00 $950,000.00 $1,400,000.00 S200,000.00 $25.000.00 $200,000.00 $750.00 $150,000.00 $380,000.00 $500,000.00 $1,500.00 $3,500.00 $800,000.00 $550,000.00 $800,000.00 $550.00 $208.85 $174.00 $147.00 $63.00 7-May-04 Sub -Totals S0 $419,439 $1,080,329 $2,140,233 S0 SO $500,000 $2,125,000 $72,000 $162,500 $200,000 $0 $0 $950,000 $1,400,000 $200,000 $1,250,000 $200,000 $600,000 $ 150,000 $380,000 $0 $0 $500,000 $0 $3,000,000 $420,000 $800,000 $550,000 $800,000 $198,000 $0 $0 $8,492,227 $4,173,912 $0 $ 19,967,451 $1,812,006 Totals $3,640,001 $3,059,500 $5,130,000 $6,268,000 $34,445,596 $26.00 $5,970,588 $5,970,588 S0 $0 $0 $0 $0 $0 S0 S0 $0 S0 $2,500,000.00 $2,500,000 $2,500,000 $0 $0 $0 $0 $8.50 $1,951,923 $1,951,923 $0 $0 $0 So $0 $200,000.00 $200,000 $200,000 $0 S0 $0 $0 $0 $0 $0 $0 S0 SO $01 $01 $01 $01 $01 $63,165,607I $63,165,608 Source of funds RE TIP Grand 380 Tax Exempt % Taxable % + $419,439 $1,080,329 100% 100% $1,374,472 $500,000 100% $2,125,000 100% $72,000 100% $162,500 100% $200,000 100% $950,000 100% $ 1,400,000 100% $80,000 40% $500,000 40% $80,000 40% $240,000 40% $ 150,000 100% $152,000 40% $200,000 40% $3,000,000 100% $420,000 100% $800,000 100% $550,000 100% $800,000 100% $198,000 100% $8,492,227 100% $960.000 23% $2,000,000 $448,942 $200,000 80% 23% 100% 84% $120,000 60% $750.000 60% $120,000 60% $360,000 80% $228,000 80% $300,000 60% $3,213,912 $0 77.00% 0.00% 0% $500.0001 20% $1,502,981 77% Cabela's $765,761 $19,967,451 $1,812,006 $5,970,588 $26,180,4361 41% $8,469,365 % 36% 100% 100% 100% 13% $28,515,8061 45%1663,165,6081 1 Ft Worth dev cost TIF 380 grant ver 4 As 1 6/4/2004 SCHEDULE 3.2 PUBLIC MUSEUM FACILITIES Real Estate (a pro -rated portion of the Facility) Building Space Museum Mountain Aquarium Diorama Display Areas Public Support space Conference Rooms Restrooms Common Areas Fixtures Furniture Equipment Security MIS/Communications Signage - Interior Exterior Material Handling Racking Special Features Statue Taxidermy Memorabilia Murals Soft Costs Architectural/Engineering Costs Legal Fees Reimbursable Administration Costs 254171 1 Schedule 16.1.10 Environmental Conditions Attached to this Schedule 16.1.10 are pages 18-19 from that certain Phase I Environmental Site Assessment which was performed on the approximate 49.9 acre tract, located on the northeast corner of Alliance Gateway and Interstate 35 West, Fort Worth, Tarrant County, Texas, Project No. 95047018A and dated April 8, 2004, which was prepared for Cabela's Incorporated. Please note that although only pages 18-19 are attached to this Schedule 16.1.10, Developer hereby incorporates all information contained in the Phase I into this disclosure. 252033.1 Approximate 48 Acre Tract Project No. 95047018A April 8, 2004 8.0 FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS 8.1 Findings anci Conclusions The site is located on the northeast corner of Alliance Gateway and Interstate 35 West (I- 35W) in Fort Worth, Tarrant County, Texas. A cursory summary of findings is provided below. However, details were not included or fully developed in this section, and the report must be read in its entirety for a cornprehensive understanding of the items contained herein. • The approximate 48-acre site primarily consists of pasture land with a residence, a barn and two sheds. The site has also been improved with barbed wire fences and a corral associated with the on -site cattle ranching activities. A pond is located in the center of the site and a creek traverses the site from south to north. According to Mr. Dub Blessing (site resident), the on -site residence was constructed prior to 1960, and the site is equipped with two water wells and two septic systems. The water wells are approximately 600 feet deep, and the water was tested for potability approximately four or five years ago. Mr. Blessing reported that other than a marshy area over the septic tank associated with the house, he has not had any problems with the on -site wells or septic systems. Mr. Blessing was not aware of any environmental concerns associated with the site. A parts washer was identified in the on -site barn during the site reconnaissance. According to Mr. Blessing, he has not used the parts washer in four or five years. The parts washer is located on a concrete floor and no evidence of staining, releases or floor drains was noted in the vicinity of the parts washer. Mr. Blessing stated that he has not discarded any parts washer solvents, motor oil or other chemicals on -site, and that any waste chemicals generated on -site were recycled at off -site locations. Based on observations during the site reconnaissance, the on -site parts washer does not appear to constitute a recognized environmental condition (REC) in connection with the site at this time. Numerous containers of typical chemicals (including hydraulic oil, antifreeze, kerosene, gas cans, pesticides, paint, weed killer, etc.) and several old car or tractor batteries were observed in the on -site barn and sheds. The on -site chemicals and batteries should be removed from the site and disposed in accordance with state and local regulations. • Based on the historical review, the site has consisted of pasture land developed with a residence on the western portion of the site from at least 1942 to 1964. The residence on the western portion of the site was removed prior to 1976, and the existing residence located on the eastern portion of the site was constructed between 1956 and 1964. The barn and sheds associated with the eastern residence were constructed between 1964 and 1976. 18 • Approximate 48 Acre Tract Project No. 95047018A April 8, 2004 Surrounding properties consisted of undeveloped pasture land from at least 1942 until I- 35W was constructed approximately 150 feet west of the site between 1964 and 1976. I- 35W was widened and abutted the site to the west in 1995. Alliance Gateway was constructed abutting the site to the south between 1984 and 1995. A Pilot service station (discussed further in subsequent paragraphs) was constructed approximately 500 feet south of the site in 2000, and a Rental Service Corp. facility was • constructed approximately 550 feet northwest of the site between 1999 and 2001. • The regulatory review identified one (1) Texas Commission on Environmental Quality (TCEQ) PST facility within the specified search radii. The identified regulated facility, Pilot service station, is located approximately 500 feet south (across Alliance Gateway) and topographically cross -gradient relative to the site. Based on a review of the regulatory databases, seven (7) 20,000-gallon double -walled fiberglass reinforced plastic USTs containing gasoline and diesel were installed at the Pilot facility on October 10, 2000. The USTs are equipped with interstitial monitoring equipment, and the Pilot station was not listed as an LPST facility. Based on its distance from the site, recent construction topographic cross -gradient position and non-LPST status, the Pilot service station PST facility does not appear to constitute an REC in connection with the site at this time. 8.2 Recommendations • Based on the scooe of services and limitations of this assessment, HBC/Terracon did not identify recognized environmental conditions (RECs) in connection with the site, which in our opinion, require additional investigation at this time. If the on -site water wells are to be used in the future, the well water should be analyzed for potability. If the on -site wells are not to be used in the future, they should be plugged and abandoned in accordance with state and local regulations. If the on -site septic systems are not to be used in the future, they should be removed in accordance with state and local regulations. HBC/Terracon recommends that the on -site chemicals and batteries be removed and disposed in accordance with state and local regulations. M&C Review Page 1 of 3 CITY COUNCIL AGENDA COUNCIL ACTION: Approved on 6/8/2004 Official site of the City of Fort Worth, Texas F0WORTH DATE: 6/8/2004 REFERENCE NO.: C-20113 LOG NAME: 17CABELA CODE: C TYPE: NON -CONSENT PUBLIC HEARING: NO SUBJECT: Authorize Execution of Master Economic Development Agreement with Cabela's Retail, Inc. RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute the attached Master Economic Development Agreement with Cabela's Retail, Inc. (Cabela's). DISCUSSION: On April 13, 2004, the City Council approved M&C G-14336, authorizing execution of a Memorandum of Understanding (MOU) with Cabela's. This MOU outlined basic terms and conditions of an economic development program that was being negotiated with Cabela's in return for Cabela's agreement to construct a retail facility of approximately 200,000 square feet for the sale of hunting, fishing and outdoor gear at a location in Fort Worth near the intersection of SH 170 and I-35W. This area is located in COUNCIL DISTRICT 2. It is anticipated that this facility will attract approximately 6 million visitors to the area annually and generate approximately $67.5 million in sales during the first year of operations. In order to provide the necessary incentives for Cabela's to locate this facility in the City, City Staff and Cabela's officials have negotiated the attached Master Economic Development Agreement (Agreement) that incorporates the general terms and conditions of the MOU. Under the Agreement, Cabela's will expend at least $50 million in construction costs toward the facility, of which $8.5 million will be spent with companies that are located in Fort Worth and $2.5 million will be spent with certified M/WBE companies that are located in Fort Worth. Cabela's has also committed to provide full-time equivalent employment at the facility to at least 60 Fort Worth residents and at least 10 Central City residents. In addition, Cabela's has committed to spend at least $15,000 per year in local discretionary funds with companies that are located in Fort Worth and at least $5,000 per year in such funds with certified M/WBE companies that are located in Fort Worth. In accordance with the Agreement, the City will designate a tax increment reinvestment zone, or TIF, that includes the Cabela's site. The TIF will be approximately 817 acres in size. Approximately 164 additional acres of land in the vicinity of the TIF, which are currently located in the City's extraterritorial jurisdiction, are expected to be voluntarily annexed later this year. After that occurs, the City Council will be asked to consider expanding the TIF to include this additional land. The TIF will have a 21-year term, expiring on December 31, 2025. The City will contribute tax increment to the TIF annually in the following percentages: in 2005 through 2019, 100%; and in 2020 through 2025, 90°10. The City will also request that other taxing units with jurisdiction in the TIF contribute increment to the TIF as well. http://apps.cfwnet.org/council_packet/mc_review.asp?ID=2300&councildate=6/8/2004 2/14/2011 M&C Review Page 2 of 3 Cabela's will construct certain public infrastructure in the TIF as well as exhibition and museum space in its facility that will be owned by a Local Government Corporation (LGC) created by the City. The Agreement calls for the LGC to issue bonds to finance this infrastructure and public space and for Cabela's to buy all such bonds. The bonds will be secured solely by TIF revenues and, to the extent permitted, 380 Grants pledged to Cabela's by the City, as explained below. The LGC will contract with the TIF's board of directors to pay TIF revenues to the LGC to retire the bonds. Tax-exempt bonds will earn interest at a rate of 4.75% per annum and taxable bonds will earn interest at a rate of 7% per annum. The TIF may also agree to fund certain addtional public infrastructure in the TIF that is not related to the Cabela's site. Additionally, as part of the economic incentive package provided under the Agreement, the City will pay Cabela's annual economic development program grants authorized by Chapter 380 of the Texas Local Government Code (380 Grants). The amount of each annual grant will be equal to (i) 67% of the City's 1% sales tax received from sales generated on the Cabela's site and (ii) 67% of the City's ad valorem tax on personal property and inventory located on the Cabela's site. The purpose of the 380 Grants is to help defray Cabela's costs in constructing improvements on the Cabela's site, including its facility, that are not eligible for TIF funding or that cannot be reimbursed fully through TIF funding alone. Pursuant to the Agreement, the maximum incentive that Cabela's will be eligible to receive from both TIF financing, 380 Grants and tax exemptions received as a result of the tax exempt status of the public exhibition and museum spaces is $40 million present value (exclusive of interest earned on the bonds and interest paid for any reimbursed expenditures not financed through bonds). This maximum incentive amount is subject to reduction if Cabela's fails to meet its construction spending goals, its annual employment goals and/or its annual supply and service spending goals. Based on current projections and the assumption that Cabela's will meet all of its local commitments under the Agreement, the following sources of revenue, reflected at net present value, are anticipated to form the basis for Cabela's receipt of the incentive: TIF $26,315,000 1% Sales Tax (380) $ 7,820,000 Personal Property/Inventory Tax (380) $ 1,285,000 Value of Tax Exemptions $ 4,580,000 $40,000,000 The Agreement will expire on the earlier of (i) the date as of which Cabela's has received its full incentive pursuant to and in accordance with the Agreement or (ii) June 1, 2026, regardless of whether Cabela's has received its full incentive at such time. The City will have the right to terminate http://apps.cfwnet.org/council packet/mc_review.asp?ID=2300&councildate=6/8/2004 2/14/2011 M&C Review Page 3 of 3 this Agreement if Cabela's does not open the facility for business by December 31, 2006; or if Cabela's fails to pay any of its City taxes; or if Cabela's sells or transfers the facility to another entity and the facility is then used for a purpose other than as a retail store for hunting, fishing and outdoor gear. If Cabela's closes the facility for any reason, the City will no longer be obligated to pay Cabela's any 380 Grants. In addition, if the closure occurs within the first 10 years of opening, the City's obligation to contribute increment to the TIF will be capped at the amount of the City's contribution in the year of the closure. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that this action will require no direct expenditure from City funds in the current fiscal year. TO Fund/Account/Centers FROM Fund/Account/Centers Submitted for City Manaaer's Office by: Reid Rector (6266) Oriainatina Department Head: Tom Higgins (6192) Additional Information Contact: Peter Vaky (7601) ATTACHMENTS Digital`pdf http://apps.cfwnet. org/council_packet/mc_review. asp?ID=2300&councildate=6/8/2004 2/14/2011