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Contract 38860
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NO ENCROACHMENT ENT AGREE ENT STATE, OF' TEXAS § COUNTY OF TARRANT THIS AGREEMENT is made and entered into by and between the City of Fort Worth, a municipal corporation f Tarrant County, Texas, acting herein by and through its duly authorized Planning and Development Department Director, hereinafter referred to as the 'City", and 'ar l l e C re s s West 7th., LP, a Delaware limited partnership acting herein by and through its duly authorized general partner er hereinafter referred to as "Grantee", Owner of the property located at 1 2872', Crockett Property' Fort , TX 761 7 1 T' rr fir^ ii For and in consideration of the payment by Grantee of the fee set out below and the true and faithful performance of the multual covenants herein contained, City hereby grants to Grantee permission to construct/ install and/or 1 allow to remain, Improvement(s) ( that encroaches upon, uses and/or occupies portions of the space under, on and/or above the streets, allays, �J ✓i , �� j, rpr�'Uf1 00n✓�6/riY� i old is ,/%``�Drry✓j°"N�o-. 1 �r r: / ,p a� �� ✓iii ii/��i�il/b Jldll� I /4&1J r< ,, „' i V j, 'r�'/Gk�d TI)Y.o. [f f � P f sidewalks and other public rights-of-way, such Improvement(s) are described as follows See Attached Signage Package The location and description of said Improvement and the encroachment is more particularly described in Exhibit "A", attached hereto, incorporated herein and made a part hereof for all purposes. 2. All construction, maintenance and operation in connection with such Improvement, use and occupancy shall be performed in strict compliance with this Agreement and the charter, ordinances and codes of the City and in accordance with the directions of the Director of Transportation and Public Works of city, or his duly authorized representative. All plans and specifications thereof shall be subject to the prior written approval of the Director of Transportation and Public Works, or his duly authorized representative, but such approval shall not v relieve Grantee of responsibility and liability for concept, design and computation in preparation of such plans and specifications. 2 5:. C' 3. Upon completion of construction and installation of said Improvement and thereafter, there shall be no encroachments in, under, on or above the surface area of the streets, alleys, sidewalks and other public rights-of-way involved, except as described herein and shown on the hereinabove referred to Exhibit "A". 4. Grantee, at no expense to the City, shall make proper provisions for the relocation and installation of any existing or future utilities affected by such encroachment use and occupancy, including the securing of approval and consent from the utility companies and the appropriate agencies of the state and its political subdivisions. In the event that any installation, reinstallation, relocation or repair of any existing or future utility or improvements owned by, constructed by or on behalf of the public or at public expense is made more costly by virtue of the construction, maintenance or existence of such encroachment and use, Grantee shall pay to City an additional amount equal to such additional cost as determined by the Director of Transportation and Public Works of the City, or his duly authorized representative, 5. r City may enter and utilize the referenced areas at any time for the purpose of installing or maintaining improvements necessary for the health, safety and welfare of the public or for any other public purpose. In this regard, Grantee understands and agrees that City shall bear no responsibility or liability for 3 f damage or disruption of improvements installed by Grantee or its successors, but City will make reasonable efforts to minimize such damage. 8. In order to defray all costs of inspection and supervision which City has incurred or will incur as a result of the construction, maintenance, inspection or management of the encroachments and uses provided for by this Agreement, Grantee agrees to pay to city at the time this Agreement is executed a fee in the sum of one Hundred Seventy Dollars $ 17 0 • o 0). 7. The term of this Agreement shall be for thirty years, commencing on the date this Agreement is executed by the City of Fort worth. 8. Upon termination of this Agreement, Grantee shall, at the option of city and at no expense to City, restore the public right-of-way and remove the Improvement encroaching into the public right-of-way, to a condition acceptable to the director of Transportation and Public Works, or his duly authorized representative, and in accordance with then existing City specifications. It is understood and agreed to by Grantee that if this Agreement terminates and Grantee fails to remove the Improvement, owner hereby gives City permission to remove the Improvement and any supporting structures and assess a lien on the Property for the costs expended by the City to remove such Improvement. y 4 s'. 9. It is further understood and agreed upon between the parties hereto that the public rights-of-way, alleys, sidewalks ("public right-of-way") to be used and encroached upon as described herein, are held by city as trustee for the public; that City exercises such powers over the public right-of way as have been delegated to it by the constitution of the state of Texas or by the Legislature; and that city cannot contract away its duty and its legislative power to control the public right-of-way for the use and benefit of the public. It is accordingly agreed that if the governing body of city may at any time during the term hereof determine in its sole discretion to use or cause or permit the right of way to be used for any other public purpose, including but not being limited to underground, surface of overhead communication, drainage, sanitary sewerage, transmission of natural or electricity, or any other public purpose, whether presently contemplated or not, that this Agreement shall automatically terminate. 0. Grantee understands and agrees that the granting of any encroachment hereunder is not meant to convey to Grantee any right to use or occupy property in which a third party may have an interest, and Grantee agrees that it will obtain all necessary permission before occupying such property. �r 5 F 1 s Grantee agrees to comply fully with all applicable federal, state and local laws, statutes, ordinances, codes or regulations in connection with the construction, operation and maintenance of said Improvement, encroachment and uses. 12. Grantee agrees to pay promptly when due all fees, taxes or rentals provided for by this Agreement or by any federal, state or local statute, law or regulation. 13. Grantee covenants and agrees that it shall operate hereunder as an independent contractor as to all rights and privileges granted hereunder and not as an officer, agent, servant or employee of city and Grantee shall have exclusive control of and the exclusive right to control the details of its operations, and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, licensees and invitees. The doctrine of respondent superior shall not apply as between city and Grantee, its officers, agents, servants, employees, contractors and subcontractors, and nothing herein shall be construed as creating a partnership or joint enterprise between City and Grantee. 14. GRANTEE COVENANTS AND AGREES TO INDEMNIFY, AND DOES HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS 6 r r. OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY DAMAGE OR LOSS AND/OR PERSONAL INJURY, INCLUDING DEATH, To ANY AND ALL PERSONS, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, THE CONSTRUCTION, MAINTENANCE, OCCUPANCY, USE, EXISTENCE OR LOCATION OF SAID IMPROVEMENT AND ENCROACHMENT AND USES GRANTED HEREUNDER, WHETHER OR NOT CAUSED, IN WHOLE OR IN PART, BY ALLEGED NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES OR INVITEES OF THE CITY; AND GRANTEE HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY FOR SUCH CLAIMS OR SUITS. GRANTEE SHALL LIKEWISE ASSUME ALL LIABILITY AND RESPONSIBILITY AND SHALL INDEMNIFY CITY FOR ANY AND ALL INJURY OR DAMAGE To CITY PROPERTY ARISING OUT OF OR IN CONNECTION WITH ANY AND ALL ACTS OR OMISSIONS OF GRANTEE, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, INVITEES, OR TRESPASSERS, 15. While this Agreement is in effect, Grantee agrees to furnish City with a F Certificate of Insurance, naming City as certificate holder, as proof that it has secured and paid for a policy of public liability insurance covering all public risks related to the proposed use and occupancy of public property as located and described in Exhibit "A". The amounts of such insurance shall be not less than the following: $1,000,000 Commercial General Liability with the understanding of and agreement by Grantee that such insurance amounts shall be revised upward at city's option and that Grantee shall so revise such amounts immediately following notice to Grantee of such requirement. Such insurance policy shall provide that it cannot be canceled or amended without at least ten (10) days prior written notice to the Building official of the city of Fort Worth. A copy of such certificate of Insurance is attached as attached as Exhibit "B". Grantee agrees to submit a similar certificate of Insurance annually to city on the anniversary date of the execution of this Agreement. Grantee agrees, binds and obligates itself, its successors and assigns, to maintain and keep in force such public liability insurance at all times during the term of this Agreement and until the removal of all encroachments and the cleaning and restoration of the city streets. All insurance coverage required herein shall include coverage of all Grantee's contractors. 16. Grantee agrees to deposit with the city when this Agreement is executed f a sufficient sum of money to be used to pay necessary fees to record this Consent Agreement in its entirety in the deed records of Tarrant county, Texas. i'. After being recorded, the original shall be returned to the City Secretary of the City of Fort Worth, Texas f 17. s ,F 4' In any action brought by the City for the enforcement of the obligations of Grantee, City shall be entitled to recover interest and reasonable attorney's fees. 18. "Grantee may not assign or otherwise transfer any of its rights or obligations under this contract unless specifically authorized in writing by the City, which authorization shall not be unreasonably withheld; provided, however, that Grantee may make such an assignment of its rights if in connection with the sale, lease or mortgaging of the Property without the prior written consent of City,provided, that upon such assignment, Grantee shall notify City within sixty(60) days of said assignment. If the City fails to receive notice of the assignment within sixty(60) days such assignment shall be void and Grantee shall remain liable to City for any failure to perform hereunder by the assignee, and this provision shall thereafter be applicable to Grantee and such assignee." 19. THE PARTIES AGREE THAT THE DUTIES AND OBLIGATION CONTAINED IN PARAGRAPH 8 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. 20. f This Agreement shall be binding upon the parties hereto, their successors and assigns. 5 l s 5 5: 5- K H i N u� EXECUTED this day of City Grantee (Business Name) Cite of Fort Worth y�. By. etc Block Sus Tanis, Name: Dire ° Title: Planning and Development ATTEST: Approved As To Form And Legality n City Secret6ry Assistant City Attorney NO M&C REQUIRM nr.. romxamr�v�rmwmraw Ma.��nmmw��,a.ar re..a�.m� ,m.nz rrr�-am..m.�,ewu��z� re��vn���ra��r�r;.Fd�w,,;uvm�rcum�,.a.. i 1 1 (I I 1 ...,,;`./ J 9 1% k0 o� �� dJy�/��P(�I a fi 'E�i`!fir�t'��,biGr rJ✓'r /�x�r n J,y 10 I 1 l' t CARLYLE/CYPRESS WEST 7TH, LP, a Delaware limited partnership By: Carlyle/Cypress West?""GP, LLC, a Delaware limited liability company By: Carlyle/Cypress Retail 1,LP, a Delaware limited partnership By: Cypress Equities, LLC, a Texas,limited liability company, 0, '0: its general p� ler 00,00-111, By0-100 BY(aWParrs Vice President/CFO STATE O F TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Susan Alanis, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed, as the act and deed of the.City of Fort worth, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of V'-� I 20L6 Notary Ablic in and for the State of Texas tipy p� ANGELA ESTRADA N��ti�s ■+�fr,r Notary Public,state of Texas My commission Expires �►;r ni;�;��� August 21,2011 HEs1 r STATE OF TEXAS § DALLAS COUNTY OF T=ARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the Brian Parro, Nice President/CFO State of Texas, on this day personally appeared , ot Cypress Equities, LLC known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed, as the act and deed of Cypress Equities, LLC, the general , and in the capacity therein * partner of Carlyle Cypress Retail I, L. P. , the sole member stated. of Carlyle/Cypress West 7th GP, LLC, the general partner of Carlyle/Cypress West 7th, L. P. 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IkHtRAL LASLIl`Y 1 r�,tr R 3 1.ODD ,G g t�CK4 k1L, I IL=LIAI:II"r� '' R� 5 o,oa ra X11;".wmv=®LAA;j,L mozcj52?g. • 'rA�(Awk MEI ELM 2rooc.400 03n A ORE WE LJoII m-u--s I".a k k ALTON04CELAbLITY CN-Ain 14 r I!V I]k11LE 11yrr a A r;.T&M AIM-.1 1%27 KI k 101 24/2 0 09 L0/2 t/20 09 dU11 f 1l 1!:;A—.06 , (Pff It # X HtwfkuICU ' rSmL Y IItJ:mY X I'.Jw�koAj iud [row jo:s Avr'J • F'�A�•Y L>GLI�� � GAWELIAB111Y Aby Aul 0 L] :.yl'1liEILT1iaN � 'AJWU Ln a 1;x0 FAV115MEAAUAEIUrr 25,000,Da0 W. $ R I► 1? :JF ma, 'NOR KERO Oi>Eii po o Al loll J1kI 9WLWCAS'uAIYLrff .Wr F%0PJI;TOPLIPA tT%EU9=1Y 7. ELI..EACF AWuyv 1 4 aQ a 3? �rwrl;��zlLL:lsm x:us 10124/20 C e .10/24/2009 t f Oda,002 Ci.aWok.,r•-PIN ftY RIT I Z non 00� .................... trt� 1 R UNIX IFMM#*OP OW-1 00a WCAVO 4 LVEN ICL9mm, apoldd AXii !§Y EM00RSMAnff-iKCIAL ARrM3;k3Mr. cERT1FX nE J40LuikR C,ANCEL1ATIION SIICL&C ANT Gr-mF AVOW. nf•UMBEC MOUC459 BE CANOELiew vj:ro j! Y"g 12z ty I&f Ivgvt WQ th ad1RAn mm QhW THOW-OF, Yt'Ih 104U&U 11AWAI M WLL CIiICAVOH To AWL 2000 9mtbC]a '=tuu Stcmct 1 "AT0 vm MN FgmoE To 7HE UER1'1FEATE HOuxKmAm a-.v ne IrER,muv F =t rt,,h. 76202 fOULLLI1~YG as 20 sJKCI.IrPINc.NO 01ILWA11a4 OR 1.LU1UTY OF AMY W4 Lil'1.W vtm t►8u I rsAummQn ptoritummy sk6olrocs. Atl I tlt zio IQpneffamLane Aza, Far I a f *ACORc COWMORATION VN$ Ikt�Ikr��►rZl�'w�al'M er Exhibit B . Wa CERTIFICATE (West 7 , Ft.Worth,Texas The undersigned Vice President and CFO of Cypress ;equities, LL C, a Texas limited liability company "CyRress f lea*ties" , the general partner of Carlyle Cypress Retail I, L.P., a Delaware limited partnership (the " tnr r hi p"), the managing member of Carlyle/Cypress West 7th, L LC, a Delaware limited liability company(the" anv" , does hereby certify that. 1. Attached hereto as Exhibit"A"'is a true,correct and complete copy of the Limited Liability Company Agreement of the Company, and such Limited Liability Company Agreement has not been altered or amended and is in full force and effect. 2. Attached;hereto as Exhibit "B" is a is a true and correct copy of the provisions of the First Amended and Restated Limited Partnership Agreement of the Partnership (the "Tartnersh ree en. ") appointing the "Cypress General Partner" to be the "Developer, General Partner"thereunder. The Cypress General Partner continues to be the Developer general Partner and the Partnership Agreement has not been altered or amended and is in full force and effect, 3. Attached hereto as Exhibit 11C11 is a truce and correct complete copy of the ith the P rovisions of the Amended and Restated Regulations of Cypress Equities deali members, management and officers thereof, and such Regulations have net been altered or amended and are in full force and effect, w s 4. The Company is a l rr ited liability company whose business and affairs are managed by its sole member Carlyle/Cypress Retail f, L.P., whose general partner is Cypress � Equities. The following persons have been duly elected, have been drily qualified, and on the date hereof are officers or, authorized representatives of Cypress Equities, holding, the respective J offices set opposite their names, and the signatures set opposite their names are their respective genuine signatures: � l Name Title SiEQature l Christopher C. Maguire President and CEO e- Bn'an Parro vice President and CPO l i I I i Each of the persons named above has been duly authorized to execute all the contracts, certificates, agreements, and other documents to be executed and delivered by the Company in connection with the Project. IN WITNESS WHEREOF, I have signe d this Certi s to this day of June,20094 Brian Parrot' Vice President and CFO of Cypress Equities, LLLC, a Texas limited liability company STATE OF TEXAS § COUNTY OF DALLAS § This instrument was acknowledged before me on June 2009, by Brian Parro, the Vice President and CFO of Cypress Equities, LLC, a Texas limited liability company, on behalf of such limited partnership. c � Notary fuUi CS ignatu e (SEAL) Printed/Typed Name. e t lee &.,o r My Commission Expires: May 316 2010 Commission Number: EXHIBIT A [attached] `s LIMITER LIABILITY COMPANY AGRIEEMENT DP CARLYLEICYPRESS NEST 7TH LLC This Limited Liabili Company YL THE' P y Agreement A ee " ARL EICYPRES S "EST 7 , LLC C6�comyanv"), rn errt � o f �s entered into by C�•1 Iel Y,L.P. as the sale member of Cons an �' Cypress Retail Company C'Member")effective as of December�� ......� 200610 Member hereby forms a limited liability ca Delaware Limited . . ty mpany pursuant to and in accordance with ted Liability Company Act, as amended from time hereby the e to time j iA�t" and hereh agrees as follows: y . 1• �a�e= The name of the limited liability CARLYLElCYP12. fH �1�ty company foarrned hereb is ES S WEST , LLC. �' 2. Pu ose. Company is farmed for the object ' business to be and purpose °f� and the nature of th conducted and promoted by Compan is engaging m�, e which limited liability �' g Y lawful act or activity for ty ompans es may b e formed under the Act and en i Y activities necessary or incidental to the foregoing. angn any and all 3. Re is tered..Office. The address of the registered ster of Delaware is coo � ed office of Company� the State Capitol Services, Inc., 615 South Dupont Highway, Delaware 19901. ys �3over, County of Kent 4. &epjstered Agent. The name and address of the registered agent of Corn service of process on Compan in the State of . pang far y Delaware �s Capitol Services Inc. 6 Dupont Highway,Dover, County f Kent, � 15 South ty t,Delaware I���1. 6. Members. The Warne and the ` business address of the solo Member are Carlyle/Cypress Retail I, L.P., 1001 Pennsylvania Avenue, as fallow y ue, �.w., Suite 22� �ouch D.C. 20004. , Washington, 6. Povuers. The business and affairs of Company Shall be managed b Member shall have the power to do an and all acts y Member. y s necessary or convenient to or for the furtherance of the aces descri P� bed herein, including all powers, statute • possessed by members under the laws of the State of statutory or otherwise, Delaware. Nlembet shall have the authority to bind Company. t}ionty 7. Dissolution. Company shall dissolve, and its affairs shall be wound u upon first to occur of the following: & December 1 205 (b) P P the the wntten consent of Member or the entry of a decree o f judicial dissolution under Section �c� l$ 802 of the Act. 8. Ca&A.1 Contributions, Member er has contributed S 14� in cash and n property, to Company. j o other 9. Additional Contributioi Member �`s required to make an additional capital contribution to Company, Y anal Dales 1242610M ■ 10. Aitocation of Profits and Losses. allocated to Mem Company,s profits and losses shad Member. be 11• distributions. Distributions shad be made to Member er at �e tunes and in aggregate amounts determined by Member. the 12. A-U-Ign-Ments. Member may assign its l t + EXHIBIT~B [attached] } y. 5: a f y FIRST AMENDED AND RESTATED LIMITED PARTNERSHIP A(;REEMENT OF CARLY LE/CYPRESS RETAIL I L.P. This Limited Partnership . by and a r'non the p ree g meat �s entered into as of g e following parties: , 20071 CARLYLF RETAIL I GP, LLC, a Delaware limited -a b•ir ty company,,y► as the initial Carlyle General Partner; CYPRESS EQUITIES, LLC, a Texas limited llab�l• • general partner (the I ty n a Partner"); ccrnpanY� as a es Ge . � CARLYLE RETAIL Tr LLC, a Delaware l• - l�rn�ted partner a limited liability company, as . and CARLYLE REALTY PARTNERS III (CANADIAN),Y' a Delaware limited L.P. a Partnership,, as a limited partner (collectively f=Ljml ed Partners ); and the arl 1 CYPRESS MULTI-STATE DEVELOPMENT,l�T► L•P•► a Texas lfrnited Partnership, as a limited partner (the Q�presLjimited aCtner ), RECITALS: A. The Carlyle Partner '. y s and the Cypress Partners are • Limited Partnership Agreement pa rites to a certain g t of Carlyle/Cypress Retail I L. September 23, 2003, as amended (the "Cr' i P. dated as of alAremna.) purs parties fanned a Jaunt venture to Jointly cant to which the J y acquire, o�rvn, dev construct, operate and sell retail properties elo redevelop► conditions set forth therein. p es, upon and subject to the rth therein, terms and B. The Carlyle Partners ners and the Cypress Partners . benefit,.have agreed to amend the Original or their mutual ginal Agreement- and to restate . Agreement as so amended so the,Original that the amended" and res tated ts ted agreement incorporates in a single document the Original Agreement and the arnendnents thereto. C. Accordingly, Carlyle Y and Cypress agree that the fell . the amended and restated agreement between awing constitutes Restated Li them and that such Amend d Partnership Agreement replaces In ed and Agreement= p its entirety the Original g al NOW, THEREFORE, in consideration onsideration of the premises an covenants of the parties hereto, and for at d the mutual the receipt er good and valuable considerations pt and sufficiency of which are hereby erat�ons, hereby agree as follows: Y aclnawledged, the artier Y 9 ovs: p hereto 5153826.4 03148999 X t 8 ARTICLE 1 29EINITI-ONS Section 1.1 Ln� '❑ ,�■ As use r • have the fallow` d in this Agreement, the followi Ong meanings: fig terms shall means the Delaware Revised be amended from ed Uniform Limited Partnership • vm time to tune, Act, as may "Add1:t10MLQWt.a 1 co rib s" • has the meaning ascribed to i . -.-�. t i n pan ..Adl osted 1 cco nt" means, with respect to a Part Project, such Partner's capital Account as a Partner and for each same is specially f the end of each fiscal ear, P ly computed to reflect the adjustments r � ► as the taken into account in � required or permitted to be applying Regulations Section 1.704-.1 b •- ad,�ustrr�ents for Partners C �C�}����Cdr C!ncludin hip Minimum Gain and Partner Nonreca g Gain). ur'se Debt Minimum .■Ad u tit Deficit" rneal75 Project the deficit . fvr each Partner and for each Project, it balance, if any, in that Partner`s Adjusted ch J capital Account. €A f`lia means, with respect to an indirect) through p Y Person, another Person direct[ Y► ought one or more intermediaries, controlling,, y or common control with the Pe g. controlled bY,r,or under Person in ouest�vn, The term "control'' as � preceding sentence means with r used �n the to ex •► respect to a Person that is a corporation erase, directly or indirectly, more than 25% of the r corporation, the right the shares of the control) voting rights attributable to controlled corporation, and, with respect to a P corporation., the ossessian i p erson that is not a p , d directly or indirectly, of the power to the direction of the management or policies direct or cause S pol�cres of the controlled Person. limiting the foregoing: without likw (AJ any Person which ' Affiliate is an Affiliate of Roger Staubach or Staubach company for or in which Christopher The indirect) is ' per �. Maguire directly or _. y involved in the ownership, management, . or planning in a - g t, administration, strategy la g any material respect, whether as an owner 9Y Partner, member, advisor con shareholder, consultant nt, officer, employee, contra . or otherwise and/or from which Christopher contractor investor receives f � Maguire directly or indirectly fees or other compensation, however denorninat t Y to be an Affiliate of the Cypress ed► shall be deemed yp ss Partners; (Y) any Person which I's an Affiliate of Roger Staubae Staubach Company for or in which h or The . .. Christopher C. Maguire direct) or end erectly has the power to direct or cause the Y dtrectron of the rnar�a eme or policies of the controlled person ' g fit �n any material respect shall be deemed to be an Affiliate of the c ress Partners, Yp 5153826.4 03148999 2 t cuaaLUUQv rr �dv c s" has the meaning ascribed to it ` 6.3, in Section es Gener Pa er" has the a meaning ascribed to it in the introductory ess t. "ted Pzri ner" mean • Texas limited s Cypress Multi-State Development partnership, and its permitted successors-and . A nt, �.P,, a nd assigns, "C D re 9.a.2 art . s" means the coil ' Partner and the ective reference to the CYP�-ess �.imi Cypress General Partner and their respective ted and assigns. P e permitted successors 11De§M2jJ.Qa21ta1 Contribution,, mea ns f • . 1g°�o of the total a or each Project an an'�ount equal t mount available to be funded under the Constr g ❑ respect to such Project, which shall be deemed tion roan with Partnership nned to have been contributed t P y the Carlyle General Partner for each Project ° the Carlyle General Partner's initial* -� as °f 'the date flf the Capital Contribution far such Project, - "ref ul a ontr`bution" has the meaning n ng ascribed to �- •t �n Section 6.4. "2e a_ Costs" means for each Project incurred or lust � any and all losses, costs or damages sustained by the Partnership as a result of the fallur and deliver such Project including e t❑ timely complete Project,, ding without limitation (x) late fees to or for the prospective tenants of the Project., o r co payable leases of � • rent abatements under the Property, and CZ) Lost Rent under an the Y leases) of the Project. Telin u nt Pa n " has the meaning ascribed to it in Section ,' evel Gen a er' m ears initially the CYPress General Partn such person as succeeds to the interests er, or is of the Cypress General Partner Developer General Partner. as the T ev to men Bud et" means$ the budget designated as the final deveiapment budget for each Project prepared pursuant to the Program Agreement and approved bY"Carlyie and Cypress settin g forth all estimated ex enditu d income anticipated in connection with the acquisition con struction nd development of th e applicable Project and operation - - - ownership throw h Stabili P and of the Project g anon. � "Develo ent l=ee" means for each Project an amount equail to four (4%) of the difference between (x) ur perce the budgeted Bard Costs as shown Development Budget far such Project, less (y) the oven �n the . amount of actual Hard savings, if any, in excess of �.0% of the budgeted Hard Costs 9 d C❑sts. "Encumbra _e'� has the meaning ascribed to it in Section M 9.�. 5153826.4 03148999 6 multiple with respect to its Ca . pital Contributions for such Project e projected equity multiple set forth ihe Business Dian n t Qual to the . (C) Any sale or disposition • Partner shall of any Project to an Affiliat ll requ ire the consent of The Cypress General l e of any Carlyle General Pa Yp er partner and the Partner. (8) Notwithstanding the applicable pP Business Plan or Develo Budget, decision m making authority with respect to the financing l3 ent any Venture shall be vested p ing cif any Project b F sted in the Carlyle General Partner, subject Y conditions and limitations: In the eve ] to the following Loan are included event that the terms and lender of a Go • uded In the Fnitial Investment Package or the rstruction . Materials [as those terms g Other Due diligence are defined in the Program Agreement u . Final Approval for afro Project .�� upon granting d j pursuant to the Program Agreement Carl le deemed to have approved the lender and term Y shall be therein. The D s of the Construction Loan des . Developer General Partner shall be permitted crian Construction Loan approved p t° proceed to close an pp oved deemed approved) by Carlyle Provided Y Carlyle shall in any event have the right � � vided that (x) evidencing t to approve any and all documents g or securing such construction Loan, which documents Carlyle will receive copies of all I is shall Provide that p notices to the borrower thereunder, a (y) i event that Carlyle identifies an available Construction � and in the structivn loan on terms more favor to the Venture that can be consummated in the time able acquisition of the Project, Carl available for the closing of the Carlyle may cause the Venture Construction Loa to substitute the Loan proposed by Carlyle for the Construction nstruction Loan r • approved by Carlyle. eviouly (b) Dev er Gener@ a tagr The Partners hereby appoint the C General Partner as the initial Developer General Pa ]�Aress Partner shall Partner, The t]eveloper General ll have the responsibility and authority for the redevelopment, co � y development, . p construction, renovation, leasing and operation' of the Projects, and each of them, in each case subject to and in compliance with the . Business Plans, Project Operating applicable r p g Budgets, Plans and Development Bud where (1) Carlyle s approval is required under this gets except all Pa - q is Agreer�nent, the approval Partners is required under this Agreement (3) the a pP 1 of.. Partners approval of an of the is expressly required by a non-wa ivable provision y otherwise rovide , of applicable law, or(4)p d under this Agreement, The duties of th Partner shat( Include l"3e�reloper General e but shall not be limited to: .] Asset managing th e Project, enforcing on behalf of the applicable Venture of any and all leases of an portion o - the Property M Y P n f any Project, and assistin P Y anager for each Project in managing the Project a 9 compliance of the Project Project ensuring the Project with applicable law; (2) Maintaining all required 4 R ed or appropriate insurance coverage in connection with the operation of the P g for or Project"ct; (3) Preparing and maintaining financial records with r Partnership and each Project as required b i espect to the Q y this Agreement; 5153826.4 03148999 17 T ■ - (4) complying with, and cousin th to comply with all 9 e Partnership and each Venture r of the terms and provisions of any Construction Loan; and (5) Implementing, and causing each g Project to be developed and operated in accords _ nce with, the applicable Business Planr Develo Plans and Project Operating Budget, as required pent Budget, behalf of the Pa g � � w ed by this Agreement, and signing rtnership all documents required in connection wi g 9 on nth the foregoing. [c} Carl a Nia'or Decisions. Except • Rt as otherwise spec�frcaliy rovided herein, in discharging the limited duties and out R General Partner orny delegated to the Developer er pursuant to Section 4.1(b), no action shall be taken,expended, or obligation incurred b the Developer e'n sum . Partnership regarding Y per general Partner- or the R 9 ding the matters described below (the "QUY1 unless it has been approved (or is deemed to r D �sr } have been approved b Partners: Y the Carlyle (1) regarding any Construction Loan or other f• material assets of the Partnership i a financing of any . p r any Venture, or any lease of an onion any Project that does not meet the leasing parameters oft Y R of Development $u � � he Business Plan or R Budget or modification of any lease of an Project Y Project to the extent such modification is contemplated by or does not conflict with the parameters specified in the Business Plan for the ease however, the Project approved by Carlyle); e DeVeloper General Partner may make l y incidental sales, exchanges, conveyances, or transfers of Venture personalty or fixtures in t business= he ordinary course of (2) making of an expenditure or i for the Pa y R � incurrence'in any obligation b or Partnership or any Venture which is not provided Y Bud - P d d far �n a Development Budget or Project Operating Budget or otherwise permitted R applicable M R w to be incurred under the RP Management gement Agreement other than increased Insurance utility costs and debt service payments;• howeve costs, takes, R Y • r, �f emergency repairs to an Project are necessary to avoid imminent danger of Injury t Y individual t g j ry o such Project or to an he Developer General Partner may make such ex e - necessary to alleviate such nditures as may be ch situation even f such expenditures are n or exceed the amount provided for in a P Operating provided far, . , .Project Dperat�ng Budget and shall promptly notify the Carlyle Partners of the event ivin t g g rise ° such repairs and the actions taken with respect thereto; [3} taking of any legal action exc ept initiating action to collect rentals and other amounts payable to any Venture under leas occupancy agreements off es and other g affecting any Project or to dispossess an in default in its obl' p, Y occupant who is gctons to such Venture and defending against to • insubstantial liability claims for which the a Want claims and Partnership or any denture may be liable; torneys for the Partnership provided, however, that the selection of at Y or an subject to the approval y Venture shall in any case be sub ,� pp l of the Carlyle Partners• l: 5153826.4 03148999 18 EXHIBIT C [attached] . . 1 AMMNDED AND RESTATED REGULA.T 0NS OF CYPRESS EQUI S,LLC These Amended acid Restated Regulations (this "A eelme�� �� , , nt ) dated as of Sul (the "Effective Date ), of Cypress Equities,' LLC a Y I, �D�� Eq , r Texas meted liability ("CoMRanf), are ex e6uted and a eed to for o o d - tY company agreed g and valuable consideration b Christopher C. Maguire, as a Member ("Maeuire"), and The Staubach Y pher „ Company, a `�`exas co Member C�T� �- rporatuon, as a ARTICLE Y DEFTMTIONS Section Id Definitions. As used in this Agreement, the fa3lowing terms have the following meanings: f "AAA."has the meaning given that terra in Section 103 "Act"means the.Texas Linited Liability Com an Act . P y and any successor statute, as amended from time to tune. r "Adjusted Ca f tal Account Deficit"means with re spect to any Member for any taxable year,'the deficit balance, if any, in such Member's Capital�p Account as of the end of such taxable year, after mncreasing sudh Capital Account b an amounts that • . � � ' � �t Such Member�� actually obligated or deemed obligated to restore as described m the enultimate p sentences of Treasury Regulation Section 1.704-2(g)(2) and Treasury Regulation Section 1-.704-2(i)(5), such Capital ,Acc and reducing p ount by any amounts described in Treasury Regulation I(�)(2)(ii)(d)(4)1 and . . , gu Sec#�on 1.7�4- [6). The definition of Adjusted Capital Accc unt Deficit s intended to comply with the provisions of T Regulation Section 1.70 .. . ��[. �[ri}[�� and shall be interpreted consistently therewith. "Affiliate" means, with re ect to an Person an sP • y y other person who, di way be taken into account.in computing, any Member's Capital kce . . � _ Mint or share of 1°ro fi is .Losses or other items or distributions under any provision of this A ee P �' ment. Section 5.4 Member Aeknowledemeni. The Members agree to be bound by provisions of this ARTICLE V in reporting their share of Company inn c e tax purposes. P Y o�xx�o and Toss for income Section 5.5 Distributions. Distributable Cash shall be distributed at least quarterly in following order of priority: ' (a) first, to the Class B Member(s), in proportion to and to the extent of the amount riecessary so that, with respect to each Class B Member, the • Distributable Cash distributed cumulative amount of ed to the Class B Member(s) pursuant to this Section twelve percent 12%© of the Cvm 5.5(A equals pangs Gross Quarterly Revenues for- a B �DD�• and Periods since July I, ('b) thereafter, at the discretion of the Board, to the Class A Member(s), proportionately in accordance with their respective Glass A Percentage g Interests. Section 5.6 MLithholdinj!. If, pursuant to (a) any rovisioan P of the Code or the Treasury Regulations*or(b) any comparable state law, the Compare r . Company is required to withhold any tax with respect to a Member's distributive share of Company income . credit e Company Barn, loss, deduction or t, pany shall withhold the required amount and pay the sanne over to the taxing authorities as required by the Code, the Treasury Regulations or state lam . The mount withheld will be deducted from the amount that would otherwise be distributed to • . a that Members but will b e treated as though it had been distributed to the Member with respect to w hich the Company is required_to withhold. ARTICLE of MANAGEMENT; NIEETINGS i�ENMPTC � AT]IDl1l' Section 6.1 Man a emen#. Tie ewers o f the Company s ' P P Y hall be exercls ed by or under the authority of, and the business and affairs of the Company shall be Mans • Managed by, the collective board (the "Board's) of its managers (the "Manners") the c onsent of any Member or any other Person, except to the extent the consent of an Member is y required (a) by law or (b) pursuant-to this Agreement. The sole current Manager of the Company an . y ms Chn stvpher C. Maguire. The number of Managers constituting the Board shall • . g g be determined from time to time by a Majority in Interest. Notwithstanding the foregoing, the powers of the Board may be expressly delegated to another Person by resolution of the Board or ass • et forth in a written agreement approved by the Board. In addition to the power and authorl ty expressly conferred by this Agreement upon the Board, the Board may exercise all such powers of the Company and do all such lawful acts and things as are not directed or required to be exercised or done by the Members by the Act, the Articles or this Agreement. Section 6.2 Removah vacancies. A Manager may be . . . � � y ze�ovetl at any tune, with or without cause, by a Majority in Interest. A Majority in Interest shall have the right to fill an*y 12 DALLAS 1379377x7 Cypress Equities: Regulatiflris i + compensation for service. Managers shall b • g e reimbursed by the . CoMpan fort h e2 r reasonable out-of-pocket expenses incurred b them in conjunction with attending Meetings o f the Boaz d.T P on request b y the Board, any Manager s eekin g reinbursenent shall Provide, reasonable supporting verification to the Board for all expenditures fo r vhich requested. any reimbursement is Section 6.10 Actin • u without Meetix , Any action which May required by law, the Articles, or this A 3'' be taken, or which is Agreement to be taken, at a �eetin of the - Managers ar any conuni flee thereo f may b e g, Members, y taken without a meeting and with • consent in writing, setting forth the action so take have'been out a vote if a Members, Managers n, shall have been signed b �he • •gers or coi�ttee members, as the case ma ben Y requisite this Agreement,the Articles or ' a ecssary under the terms of the Act. The consent maybe in one or� as each required Member, Manager or committee re counterparts so long ee nie�ber signs once of the counts signed consent shall be delivered to the CEO for rpa�s. The placement in the�tunute hooks of The designation of any con�ttee,and the dele delegation the Company g of authority to it shall not operate ` the Managers of any responsibility imposed upon P to t°relieve P P them by law. Section 6.11 T.Lle hone and Similar Meetva s. The Board rna • hold a meeting by means of conferee �' participate in and _ conference telephone or solar rarnmtm,zca means of which all Persons Participating meeting equ;pment b P p ting in the meeting can hear each o •y such meeting shall constitute attend Cher. Participation m ante and presence in person at such . Person participates in the meeting or meetzug, except where a g the express purpose of objecting to business an the ground that the ni g the transaction of an eeting is not lawfully called or canvenod, �' Section 6.I Z officers of the Co m au . The Beard may elect one ar mor to serve as officers "officers" of the Company.. officer e mdxviduals . _ , P y Any sa elected shall have and duties and shall serve upon the +conditions and for such a the powers h terms as may be determined Board. The Members may, an time, by the Y, , y leas, remove any Officer of the Coin � from . . such-. Nothing contained in this Section 6, P �' ore lus position as 12 shall be construed as creating . providing any Officer with an contractual g or otherwise Y or other fights or otherwise im a sin Company with regard to any of its Officers whose r - P g �'duty an the relatlonslup with the Co times be terminable at will. P y shall at all The following individuals have been elected to the offices set forth o osite the` to serve until the earlier of such individual's death, ace PP lr names � p ty,removal,or resignation office, as follows. gnataon from such 1�Tame Glee Christopher C.Maguire President,CEO Brian Parro Vice President CPO Section 6.13 Lndemnification; Reimbursement of ExiDenLesL.Insurance (a) To the fullest extent rnu e ` p tted by the Act (as the same exists or hereafter be amended, but in the case of an such amend may Y easel, only to the extent that such amendment permits the Company to provide b • y p broader inder�f cation ri is than said permitted the Company to provide prior r aid law y P p to such arnendment�: �1� the Co m • p ang shall M` emiu fy 15 DALLAS 1379377V7- Cypress Equities: Regulations