Exhibit 10.4
THIRD AMENDMENT TO LEASE AGREEMENT
THIS THIRD AMENDMENT TO LEASE AGREEMENT (this "Amendment") is made
and entered into this 27th day of September, 2004 (the "Effective Date"), by and
between TEXAS CORPORATE PROPERTIES, L.P., a Texas limited partnership
("Landlord"), and XXXXX HOSPITALS LIMITED, a Texas limited partnership
("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into that certain Lease
Agreement dated as of May 14, 1998 (the "Original Lease"), with respect to the
lease of the office building commonly referred to as Galleria North, Tower I
(the "Building");
WHEREAS, the Original Lease was amended by that certain First
Amendment to Lease Agreement, dated December 7, 2000 (the "First Amendment"),
and that certain Second Amendment to Lease Agreement, dated December 12, 2002
(the "Second Amendment") (the Original Lease as amended by the First Amendment
and the Second Amendment shall hereafter be referred to as the "Lease");
WHEREAS, the parties to the REA (as defined in the Lease) have
agreed to enter into that certain proposed Amended and Restated Construction,
Operation and Reciprocal Easement Agreement (the "Amended REA") attached hereto
as Exhibit A; and
WHEREAS, Landlord and Tenant mutually desire to amend the Lease to
modify certain provisions of the Lease as set forth herein but not otherwise.
NOW THEREFORE, for and in consideration of Ten and No/Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged and confessed, Landlord and Tenant, intending
to be and being legally bound, do hereby agree as follows:
1. Defined Terms.
All capitalized terms utilized herein and not defined herein shall
have the meanings ascribed thereto in the Lease.
2. Amended REA.
(a) As of the Effective Date, Tenant hereby approves the Amended REA
substantially in the form attached hereto as Exhibit A, together with any
immaterial changes made thereto, and authorizes Landlord to enter into, and
record, the Amended REA with any immaterial changes thereto.
(b) As of the Effective Date, the Lease shall be amended such that
any reference in the Lease to the "Initial REA" shall mean the Amended REA.
Further, Section 11.4 of the Lease shall be amended by deleting the definition
of "REA" in its entirety and substituting the following definition therefor:
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""REA" shall mean that Amended and Restated Construction, Operation
and Reciprocal Easement Agreement, dated September 27, 2004, and as
further amended from time to time."
3. Flag Option.
(a) As of the Effective Date, Section 3.5 of the Lease shall be
amended to include the following Section 3.5(f):
"(f) For so long as the Condition is satisfied, Tenant is
hereby granted the option (the "Flag Option") to use the eastern
most flag pole located on the Access Tract (the "East Pole") for
purposes of flying a flag (the "Logo Flag") bearing the name and/or
logo of Tenant or of an Affiliate of Tenant. Tenant must furnish
Landlord with written notice of its intent to exercise the Flag
Option (the "Flag Notice"). The Flag Notice shall include a sample
of the proposed Logo Flag's material and design details, which are
subject to the reasonable approval of the Common Area Manager (as
defined in the REA) pursuant to Section 12.4 of the REA. When the
Logo Flag is approved, Tenant shall be responsible for any and all
costs associated with (i) obtaining the Logo Flag, (ii) installing
and approving the Logo Flag, (iii) changing the Logo Flag to the
extent permitted hereunder after the initial installation thereof,
and (iv) any maintenance and replacements required to keep the Logo
Flag in a Class A condition, which maintenance and replacement shall
be made at the Common Area Manager's sole discretion. Pursuant to
the REA, the Common Area Manager is responsible for raising and
lowering the Logo Flag on a daily basis. In no event shall Landlord
be responsible for any breach by the Common Area Manager of its
obligations under the REA; however, Landlord shall exercise
reasonable efforts to enforce the Common Area Manager's obligations
under the REA with respect to the Logo Flag. Tenant shall be
obligated to pay any sums owed under the REA with respect to the
Logo Flag (or any changes thereto) or the exercise of the Logo Flag
Option within twenty (20) days of receipt of an invoice therefor
from Landlord (which invoice shall include the invoice provided to
Landlord by the Common Area Manager).
At such time as the Condition is no longer satisfied, Landlord shall
be permitted to remove and/or replace (at Landlord's sole cost and
expense) the Logo Flag."
(b) As of the Effective Date, the first paragraph of Section 3.5(d)
of the Lease shall apply to the new Section 3.5(f). Further, the first paragraph
of Section 3.5(d) of the Lease shall be amended to include the words (i) "and
Logo Flag" after the words "Signs" in the third to the last line thereof, and
(ii) "or the Affiliate of the Permitted Affiliate" after the words "Permitted
Affiliate" in the third to the last line thereof.
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4. Brokerage Commissions.
Landlord and Tenant hereby represent and warrant to each other that
no commission is due and payable to any broker or other leasing agent in
connection with this Agreement as a result of its own dealings with any such
broker or leasing agent, and Landlord and Tenant hereby agree to indemnify and
hold each other harmless from and against all loss, damage, cost and expense
(including reasonable attorneys' fees) suffered by the other party as a result
of a breach of the foregoing representation and warranty.
5. Full Force and Effect.
In the event any of the terms of the Lease conflict with the terms
of this Amendment, the terms of this Amendment shall control. Except as amended
hereby, all terms and conditions of the Lease shall remain in full force and
effect, and Landlord and Tenant hereby ratify and confirm the Lease as amended
hereby. The Lease, as amended herein, constitutes the entire agreement between
the parties hereto and no further modification of the Lease shall be binding
unless evidenced by an agreement in writing signed by Landlord and Tenant.
[END OF PAGE; SIGNATURE PAGE FOLLOWS]
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EXECUTED on the day and year set forth above.
LANDLORD:
TEXAS CORPORATE PROPERTIES, L.P.,
a Texas limited partnership
By: Texas Corporate Properties GP, LLC, its
general partner
By: Xxxxx Corporate Properties, LLC, its
sole member
By: /s/ Xxxxxx Xxxxx
-----------------------
Xxxxxx Xxxxx
Chief Executive Officer
TENANT:
XXXXX HOSPITALS LIMITED, a Texas limited
partnership
By: Xxxxx HealthSystem Hospitals, Inc., a
Delaware corporation
By: /s/ Xxxxxxx X. Xxxx
-------------------
Xxxxxxx X. Xxxx
Vice President
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ACKNOWLEDGMENT OF GUARANTOR
The undersigned hereby acknowledges the matters contained in this
Letter Amendment and agrees that the undersigned's obligations under the
Guaranty (as defined in the Lease) executed in connection with the Lease are in
full force and effect and shall not be impaired or otherwise adversely affected
as a result thereof. All references in the Guaranty shall refer to the Lease as
amended by this Letter Amendment. Guarantor hereby reaffirms its Guaranty for
the Lease as amended hereby.
GUARANTOR:
XXXXX HEALTHCARE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
------------------------
Xxxxxxx X. Xxxxxx
Executive Vice President
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EXHIBIT A
AMENDED AND RESTATED CONSTRUCTION, OPERATION
AND RECIPROCAL EASEMENT AGREEMENT
A-1
AMENDED AND RESTATED
CONSTRUCTION, OPERATION
AND
RECIPROCAL EASEMENT AGREEMENT
FOR
GALLERIA NORTH
DALLAS, TEXAS
SEPTEMBER 27, 2004
TABLE OF CONTENTS
ARTICLE I DEFINITIONS................................................2
ARTICLE II EXHIBITS..................................................21
ARTICLE III DESIGN AND CONSTRUCTION OF IMPROVEMENTS...................22
Section 3.1 Plot Plan and Plans.......................................22
Section 3.2 Design and Construction of Common Improvements............26
Section 3.3 Construction of Improvements Other Than Common
Improvements..............................................26
Section 3.4 Payment and Reimbursement Obligations for Common
Improvements..............................................27
Section 3.5 Time for Completion.......................................27
Section 3.6 Liens.....................................................28
Section 3.7 As-Built Survey...........................................29
Section 3.8 Construction Easements....................................29
ARTICLE IV ACCESS EASEMENTS AND ACCESS IMPROVEMENTS..................30
Section 4.1 Operation of Access Improvements..........................30
Section 4.2 Access Easements..........................................30
Section 4.3 Hours of Operation........................................31
ARTICLE V OPERATIONS OF THE PARKING DECK............................32
Section 5.1 Operation of the Parking Deck as a Unit...................32
Section 5.2 Parking Deck Operation....................................36
Section 5.3 "Pooled" Parking..........................................38
Section 5.4 Fees for Parking Deck Spaces..............................42
Section 5.5 Parking Ratios............................................43
Section 5.6 Allocation of Spaces......................................45
Section 5.7 Responsibilities Regarding Parking Deck...................48
Section 5.8 Hours of Operation........................................49
Section 5.9 Easements for Use of the Parking Deck.....................50
Section 5.10 Parking Deck Rules........................................52
Section 5.11 Expansion of Parking Deck.................................52
Section 5.12 Use By Adjacent Owners....................................60
Section 5.13 Decisions on Behalf of Parking Deck Owners................61
ARTICLE VI OPERATION OF THE LOADING DOCK.............................61
Section 6.1 Operation of the Loading Dock and Loading Dock Access
Area......................................................61
Section 6.2 Responsibilities Regarding Loading Dock and Loading
Dock Access Area..........................................62
Section 6.3 Hours of Operation........................................63
Section 6.4 Loading Dock Easements....................................63
Section 6.5 Loading Dock Access Easement..............................64
ARTICLE VII ROOF TERRACE..............................................65
Section 7.1 Operation of Roof Terrace.................................65
Section 7.2 Responsibilities Regarding Roof Terrace...................65
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Section 7.3 Hours of Operation........................................66
Section 7.4 Roof Terrace Easements....................................66
ARTICLE VIII SKYBRIDGE, CANOPY, AND BUILDING ACCESS....................67
Section 8.1 Tower II Skybridge Easements..............................67
Section 8.2 Tower II Access Easements.................................68
Section 8.3 Tower I Access Easements..................................69
Section 8.4 Hotel/Condo Improvements Access Easements.................70
Section 8.5 Parking Deck Access Easements.............................71
Section 8.6 Parking Deck Attachment Easements.........................72
Section 8.7 Security Equipment Easements..............................73
Section 8.8 Heating and Cooling.......................................74
Section 8.9 Hotel/Tower I Canopy......................................75
Section 8.10 Use and Operation of Tower II Skybridge and Building
Access Easements..........................................75
ARTICLE IX SHARING OF EXPENSES.......................................77
Section 9.1 Access Easement Expenses..................................77
Section 9.2 Parking Deck Expenses.....................................78
Section 9.3 Loading Dock Expenses.....................................78
Section 9.4 Tower II Skybridge Expenses...............................78
Section 9.5 Hotel/Tower I Canopy Expenses.............................78
Section 9.6 Roof Terrace Expenses.....................................78
Section 9.7 Calculation and Payment of Expenses.......................79
Section 9.8 Allocation of Certain Expenses............................82
ARTICLE X COMMUNICATIONS EQUIPMENT..................................83
Section 10.1 Roof-Top Communication Equipment..........................83
Section 10.2 Parking Deck Roof-Top.....................................83
Section 10.3 Tower II Skybridge Utility Lines..........................86
Section 10.4 Common Conduit............................................87
ARTICLE XI RESTRICTIONS..............................................87
Section 11.1 Height Restrictions.......................................87
Section 11.2 Hotel/Condo Improvements Use Restriction..................88
Section 11.3 Prohibited Uses and Other Limitations.....................89
Section 11.4 Required Ownership........................................93
Section 11.5 Parking, Service and Delivery.............................93
Section 11.6 Zoning Changes or Violations..............................94
Section 11.7 Set Back Lines............................................94
Section 11.8 Landscaping...............................................94
ARTICLE XII SIGNAGE...................................................95
Section 12.1 Rights to Install Signs...................................95
Section 12.2 Requirements as to Signs..................................97
Section 12.3 Prohibited Signs..........................................97
Section 12.4 Rights to Install Flags on Existing Access Tract
Flagpoles.................................................98
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ARTICLE XIII MAINTENANCE, REPAIR AND RESTORATION.......................99
Section 13.1 Maintenance of Improvements...............................99
Section 13.2 Damage or Destruction of Improvements....................100
Section 13.3 Clearing Debris From Razed Improvements..................100
Section 13.4 Damage or Destruction of the Common Improvements.........101
Section 13.5 Duty to Complete Rebuilding..............................102
Section 13.6 Maintaining Common Footings and/or Common Foundations....102
ARTICLE XIV INSURANCE................................................103
Section 14.1 Duty to Carry Property Insurance and Waiver of
Subrogation..............................................103
Section 14.2 General Requirements for Property Policies...............104
Section 14.3 Use of Policy Proceeds...................................105
Section 14.4 Duty to Carry Liability Insurance........................106
Section 14.5 General Requirements for Liability Policies..............106
Section 14.6 Indemnification by Owners................................107
Section 14.7 Joint Property and Liability Insurance...................107
Section 14.8 Blanket Policies.........................................108
Section 14.9 Certificate of Insurance.................................108
Section 14.10 Adjustment of Coverages..................................109
ARTICLE XV REAL ESTATE TAXES........................................109
Section 15.1 Payment of Taxes.........................................109
Section 15.2 Contesting Taxes.........................................109
Section 15.3 Failure to Pay Taxes.....................................110
Section 15.4 Common Improvements Assessments..........................110
ARTICLE XVI EASEMENTS................................................110
Section 16.1 General..................................................110
Section 16.2 No Dedication of Easements and Benefit to Permittees.....112
Section 16.3 Utility Easements........................................112
Section 16.4 Easement for Encroachments...............................113
Section 16.5 Rights to Temporarily Close..............................114
Section 16.6 Title....................................................114
Section 16.7 Term.....................................................115
Section 16.8 Street Widenings.........................................115
ARTICLE XVII CONDOMINIUM ASSOCIATION..................................115
Section 17.1 Creation.................................................115
Section 17.2 Effect on Hotel/Condo Owner..............................116
Section 17.3 Obligations of the Association...........................117
Section 17.4 Covenant of Unit Owners..................................117
ARTICLE XVIII REMEDIES.................................................118
Section 18.1 Default..................................................118
ARTICLE XIX NOTICES..................................................124
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Section 19.1 Notice to Owners.........................................124
Section 19.2 Notice to Mortgagee......................................126
ARTICLE XX ASSIGNMENT, TRANSFER AND MORTGAGE, LIMITATION OF
LIABILITY................................................127
Section 20.1 Party Not Released Except as Provided Herein.............127
Section 20.2 Possessory Party Remains Responsible.....................128
Section 20.3 Rights of Parties........................................128
Section 20.4 Priority of REA..........................................129
Section 20.5 Ground Leases............................................129
Section 20.6 Limitation of Liability..................................130
ARTICLE XXI EMINENT DOMAIN...........................................130
Section 21.1 Condemnation of Common Areas.............................130
Section 21.2 Condemnation of Other Improvements.......................131
Section 21.3 Award....................................................132
Section 21.4 Notice of Proposed Condemnation..........................132
ARTICLE XXII ALTERATIONS AND ADDITIONS TO IMPROVEMENTS................133
Section 22.1 Alterations..............................................133
Section 22.2 Approval.................................................133
ARTICLE XXIII PERMITS..................................................135
ARTICLE XXIV ARBITRATION..............................................136
Section 24.1 Arbitration..............................................136
ARTICLE XXV MISCELLANEOUS............................................137
Section 25.1 Term of this REA.........................................137
Section 25.2 Amendments and Modifications.............................138
Section 25.3 Exhibits.................................................138
Section 25.4 References to Articles, Sections and Subsections.........138
Section 25.5 Table of Contents and Captions...........................139
Section 25.6 Locative Adverbs.........................................139
Section 25.7 REA for Exclusive Benefit of Parties.....................139
Section 25.8 Waiver of Default........................................139
Section 25.9 No Partnership, Joint Venture or Principal-Agent
Relationship.............................................140
Section 25.10 Estoppel Certificates....................................140
Section 25.11 Successors...............................................140
Section 25.12 Governing Laws...........................................140
Section 25.13 Remedies Cumulative......................................140
Section 25.14 Covenants Run With the Land..............................141
Section 25.15 Default Shall Not Permit Termination of REA..............141
Section 25.16 Counterparts.............................................141
Section 25.17 Condition to Right of Entry..............................142
Section 25.18 Security.................................................142
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ARTICLE XXVI CONSENTS.................................................143
Section 26.1 Consent..................................................143
ARTICLE XXVII UNAVOIDABLE DELAYS.......................................144
ARTICLE XXVIII MANAGEMENT REPLACEMENT ELECTION..........................144
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AMENDED AND RESTATED
CONSTRUCTION, OPERATION AND
RECIPROCAL EASEMENT AGREEMENT
THIS AMENDED AND RESTATED CONSTRUCTION, OPERATION AND RECIPROCAL
EASEMENT AGREEMENT (hereinafter referred to as the "REA") is made and entered
into as of the 27th day of September, 2004, by and among Texas Corporate
Properties, L.P., ("Tower I Owner"), Xxxxx Xxxxxx Hotel Limited Partnership
("Hotel/Condo Owner"), and RREEF Galleria North Tower II, L.P. ("Tower II
Owner").
RECITALS
1. Tower I Owner is the lessee under a Ground Lease of Tower I Tract,
which Tower I Tract includes the Loading Dock Tract, and the Loading Dock Access
Area, all located as shown on the Plot Plan. Tower I Owner also is the lessee
under a Ground Lease of the Access Tract. Tower I Owner also is the owner in fee
simple of the Tollway Sign Tract.
2. Tower II Owner owns in fee simple the Tower II Tract, located as shown
on the Plot Plan.
3. Hotel/Condo Owner owns in fee simple the Hotel/Condo Tract, located as
shown on the Plot Plan.
4. Tower I Owner is the Lessee under a Ground Lease of the Tower I
Undivided Interest, and Tower II Owner and Hotel/Condo Owner own the remaining
Undivided Interests in the Parking Tract and the Parking Deck.
5. The Tower I Tract, Tower II Tract, Parking Tract, and the Hotel/Condo
Tract are collectively the "Site."
6. Tower I Owner, Tower II Owner, and Hotel/Condo Owner desire to develop
their respective Tracts into an integrated project.
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7. Tower I Owner, Xxxxxx Xxxxx Land, L.P., predecessor in interest to
Tower II Owner, and Hotel/Condo Owner entered into that certain Construction,
Operation and Reciprocal Easement Agreement dated May 14, 1998, and recorded in
Deed Book 98096, Page 02722 of the deed records of Dallas County, Texas as
amended by that certain First Amendment to Construction, Operation and
Reciprocal Easement Agreement dated December 7, 2000, and recorded in Deed Book
2001027, Page 02992 of the Deed Records of Dallas County, Texas (the "Original
Agreement").
8. Tower I Owner, Tower II Owner and Hotel/Condo Owner desire to amend and
restate the Original Agreement as set forth herein.
NOW, THEREFORE, for good and valuable consideration, including the mutual
promises, covenants and agreements herein contained, Tower I Owner, Tower II
Owner, and Hotel/Condo Owner hereby amend and restate the Original Agreement in
its entirety to read as follows:
ARTICLE I
DEFINITIONS
As used in this REA, the following terms shall have the following
meanings:
Access Improvements Pavement, concrete, curbs, landscaping,
plaza, directional signage, striping,
lighting, utilities and other improvements
to be constructed or installed on the Access
Tract from time to time.
Access Tract Expenses The costs and expenses of owning,
maintaining, repairing, rebuilding,
improving, insuring and operating the Access
Tract, including Taxes allocable to the
Access Tract and any personal property used
in connection therewith; all costs of
repairing and replacing any equipment and
security devices; utilities; General and
Administrative Expenses allocable to the
Access Tract; costs of licenses and permits;
legal and accounting fees; costs of
complying with all applicable laws; capital
improvement costs and reserves therefor;
costs of lawsuits and judgments or awards
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arising there from not covered by insurance;
and such other costs and expenses as may be
incurred in connection with the Access Tract.
Access Road The portion of the Access Tract that is
adjacent to the south side and west side of
the Hotel/Condo Tract, which provides
vehicular and pedestrian access onto and off
of the Site and into and out of the Parking
Deck, which is shown on the Plot Plan, and
which is described in Exhibit K.
Access Tract That certain parcel or tract of land located
in Dallas, Texas and more particularly
described in Exhibit E attached hereto.
Affiliate Any Person controlled by, controlling or
under common control with an Owner.
"Control", as used in this definition means
actual direction or power to direct the
affairs of the controlled Person and no
Person shall be deemed in control of another
simply by virtue of being a director,
officer or holder of voting securities of
any entity. A Person shall be presumed to
control any partnership of which he or it is
a general partner or of which any Person
controlled by, controlling or under common
control with him or it is a general partner.
Allocable Share The share of Parking Deck Spaces allocated
to each of Tower I Owner, Tower II Owner,
and Hotel/Condo Owner under Section 5.6 from
time to time.
Applicable Tower Area The areas described on Exhibit P for
designation for use as Designated Visitor
Spaces pursuant to Section 5.3(e).
Arbitrable Disputes Any dispute arising under this REA which is
subject to arbitration under Article XXIV
hereof.
Association A condominium association created to govern
the operation of any Condo created on the
Hotel/Condo Tract in accordance with
Article XVII.
Building Improvements Those Improvements consisting of office
buildings or hotels, excluding the Common
Improvements, skybridges, garages, parking
areas, plazas, landscaping, pavement, and
other surface Improvements.
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Building Tenants Tenants and/or subtenants of leased space in
Building Improvements, as defined in
Section 10.2(e).
Common Area Manager Tower I Owner unless and until the Manager
Replacement Election is exercised pursuant
to Article XXVIII, in which event the Common
Area Manager shall be determined pursuant to
Article XXVIII.
Common Improvements One or more of the Parking Deck, Loading
Dock, Loading Dock Access Areas, Access
Improvements, Tower II Skybridge, Roof
Terrace and the Hotel/Tower I Canopy.
Common Improvement Plans The final architectural plans for the Common
Improvements, a list of which plans is
attached hereto as Exhibit J-1.
Condemnation The temporary or permanent taking of all or
any part of the Site or the possession
thereof under the power of eminent domain;
or the voluntary sale or conveyance of all
or any part of the Site in lieu of any
eminent domain provided that such portion of
the Site is then under the actual or
imminent threat of eminent domain.
Condemnation Date The date on which title to property is
acquired by the condemning authority or the
date possession of any condemned property is
actually surrendered to the condemning
authority, whichever is later.
Condo The Building Improvements from time to time
located on the Hotel/Condo Tract, if such
Building Improvements constitute a
condominium project.
Condo Shared Spaces The twenty (20) Parking Spaces on the roof
of the Parking Deck shared by Tower I Owner,
Tower II Owner and, as long as the
Hotel/Condo Improvements are a Condo,
Hotel/Condo Owner. Tower I Owner and
Tower II Owner each have the right to
allocate and use ten (10) of the Parking
Deck Spaces during Normal Business Hours
and, as long as the Hotel Condo/Improvements
are a Condo, Hotel/Condo Owner has the right
to allocate and use the twenty (20) Parking
Deck Spaces after Normal Business Hours, all
in accordance with Article V of this REA.
The Condo Shared Spaces are located as shown
on Exhibit P.
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Connecting Conduit The conduit run installed from the main
telephone room on the basement level of
Tower I to the main telephone room on Level
1 of Tower II, as defined in Section 10.4.
Connecting Points Walls and other points of attachment between
the Tower II Skybridge, the Tower I Canopy,
the Hotel/Condo Canopy, or the Hotel/Tower I
Canopy and other Improvements to which the
Tower II Skybridge, the Tower I Canopy, the
Hotel/Condo Canopy, or the Hotel/Tower I
Canopy attaches, and connecting elements of
the Tower II Skybridge, the Tower I Canopy,
the Hotel/Condo Canopy, or the Hotel/Tower I
Canopy and Improvements, as set forth in the
Plans.
Designated Visitor Spaces The Visitor Parking Spaces designated solely
for use by Tower I Permittees and Tower II
Permittees pursuant to Section 5.3(e).
Developer Xxxxx Interests Limited Partnership, its
successors and assigns.
Easement Any easement granted under this REA.
Expenses Parking Deck Expenses, Loading Dock
Expenses, Tower II Skybridge Expenses,
Hotel/Tower I Canopy Expenses, Roof Terrace
Expenses, and/or Access Tract Expenses.
First Class Standards A quality that is equal to or in excess of
the quality of first class major office and
hotel projects located in the North Dallas
Area. Tower I Owner and Tower II Owner
agree that, as of the date hereof, the
following office projects are office
projects complying with First Class
Standards: One Galleria Tower, 00000 Xxxx
Xxxx, Xxxxxx, Xxxxx 00000; Two Galleria
Tower, 00000 Xxxx Xxxx, Xxxxxx, Xxxxx 00000;
Lincoln Centre, 5400, 5420, and 0000 XXX
Xxxxxxx, Xxxxxx, Xxxxx 00000; Providence
Tower, 0000 Xxxxxx Xxxxxx Xxxx, Xxxxxx,
Xxxxx 00000; Oryx Energy Center, 00000 Xxxx
Xxxx, Xxxxxx, Xxxxx 00000; Spectrum Center,
0000 Xxxxxxxx Xxxxx, Xxxxxx, Xxxxx 00000;
and the Colonnade, 15301, 15303, and 00000
Xxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000; Tower I
Owner, Tower II Owner and Hotel/Condo Owner
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agree that, as of the date hereof, the
following hotel projects are hotel projects
complying with the First Class Standards:
Galleria Dallas Westin Hotel, 00000 Xxxxxx,
Xxxxxxx, Xxxxxx, Xxxxx 00000; Doubletree
Hotel at Lincoln Center, 0000 XXX Xxxxxxx,
Xxxxxx, Xxxxx 00000; and the
Intercontinental Hotel, 00000 Xxxxxx
Xxxxxxx, Xxxxxx, Xxxxx 00000. Tower I
Owner, Tower II Owner, and Hotel/Condo Owner
agree that, as of the date hereof, the
following condominium projects are
condominium projects complying with First
Class Standards: The Mayfair, 0000 Xxx
Xxxxxxx, Xxxxxx, Xxxxx 00000, The Vendome,
0000 Xxxxxx Xxxxx, Xxxxxx, Xxxxx 00000, and
The Plaza on Turtle Creek, 0000 Xxxxxxxxx,
Xxxxxx, Xxxxx 00000. Tower I Owner,
Tower II Owner and Hotel/Condo Owner agree
that the condominium projects known as the
Hilton Suites Galleria and the Verona in
Dallas, Texas do not comply with First Class
Standards.
Four Diamond Hotel A Hotel having a "Four Diamond" rating by
the American Automobile Association, Lodging
Listing Requirements and Diamond Rating
Guidelines, or a comparable rating by any
successor organization to the American
Automobile Association.
GAAP Generally accepted accounting principles
consistently applied.
General and Administrative An amount equal to the applicable costs
Expenses incurred to reimburse Common Area Manager
for its overhead and administrative expense
incurred in connection with administering
the performance of its duties under this REA
in connection with the construction,
management, operation, and maintenance of
the Common Improvements, plus a cost
recovery charge equal to three percent (3%)
of such costs (excluding salaries of Common
Area Manager employees, taxes and insurance).
Governmental Agencies Those governmental authorities having
jurisdiction over the Site and Improvements
from time to time located thereon.
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Gross Area The actual number of square feet of all
enclosed floors in any Building Improvements
(other than Common Improvements) located on
any Tract, including basement space,
subterranean areas, and mezzanine space,
said square footage measured from the
exterior faces on the exterior lines of the
exterior walls (including basement walls)
except party and interior common walls, as
to which the center thereof instead of the
exterior faces shall be used. Until
Building Improvements are constructed on a
Tract, the Gross Area of Building
Improvements on a Tract shall be deemed to
be 384,000 square feet on the Tower I Tract,
307,000 square feet on the Tower II Tract,
and 160,000 square feet on the Hotel/Condo
Tract. The Gross Area of Building
Improvements on a Tract shall, upon
completion of construction, be the greater
of the actual Gross Area of such Building
Improvements or the Gross Area set forth in
the preceding sentence. As of the date
hereof, the Gross Area of Tower I is 398,623
square feet and the Gross Area of Tower II
is 320,164 square feet. Once Building
Improvements are constructed on a Tract,
then, if the Building Improvements are not
restored after a casualty or condemnation,
until such restoration, such Tract shall be
deemed to have Building Improvements located
on it having a Gross Area equal to the
greater of the Gross Area such Building
Improvements had prior to such casualty or
condemnation or the Gross Area set forth in
the second sentence of this definition.
Gross Area Ratios For each of Tower I Owner, Tower II Owner,
and Hotel/Condo Owner, the ratio obtained by
dividing the Gross Area of the Building
Improvements on the Tower I Tract, the
Tower II Tract, or the Hotel/Condo Tract, as
the case may be, by the sum of the Gross
Area of the Building Improvements on all of
the Tower I Tract, Tower II Tract, and the
Hotel/Condo Tract; provided however that if
the Gross Area Ratios are being determined
for fewer than all of the Owners as to a
particular matter, then such ratio shall be
determined by dividing the Gross Area of the
Building Improvements on the Tract of each
Owner involved by the sum of the Gross Area
of the Building Improvements on the Tracts
of all of the Owners involved.
-7-
Ground Lease Any ground lease covering a Tract or an
Undivided Interest.
Holidays New Year's Day, Memorial Day, Independence
Day, Labor Day, Thanksgiving Day and the day
thereafter, and Christmas Day. If, in the
case of any of the foregoing holidays, a
different day shall be observed than the
respective foregoing day, then the day that
constitutes the day observed by national
banks in Dallas, Texas on account of such
holiday shall constitute the holiday under
this REA.
Hotel The Building Improvements from time to time
located on the Hotel/Condo Tract if such
Building Improvements constitute a hotel.
Hotel/Condo Access Control Area The portion of the Parking Deck shown as
such on the Plot Plan.
Hotel/Condo Canopy The canopy that Hotel/Condo Owner may elect
to construct on the north side of the
Hotel/Condo Improvements and connecting the
north side of the Hotel/Condo Improvements
and the south side of the Parking Deck, all
of which canopy will be located on the
Hotel/Condo Tract, including over the
Hotel/Condo Grade Xxxxx Xxxxxxxx.
Xxxxx/Xxxxx Xxxxx Xxxxx Xxxxxxxx The pedestrian entrance into the south side
of the Parking Deck located at grade level
on the north side of the Hotel/Condo Tract
to be located upon final approval of the
Hotel/Condo Plans by Tower I Owner and
Tower II Owner.
Hotel/Condo Improvements The Hotel or the Condo, as applicable.
Hotel/Condo Owner The Owner of the Hotel/Condo Tract from time
to time.
Hotel/Condo Plans The plans for the Hotel/Condo Improvements
prepared and approved in accordance with
this REA.
Hotel/Condo Spaces The Parking Deck Spaces designated for
exclusive use by the Hotel/Condo Owner and
its Permittees in accordance with this REA,
located as designated on the Plans, which
shall be equal to the Hotel/Condo Tract's
Allocable Share minus the Shared Spaces.
-8-
Hotel Shared Spaces The twenty-four (24) Parking Deck Spaces
shared by Tower I Owner, Tower II Owner and,
as long as the Hotel/Condo Improvements are
a Hotel, Hotel/Condo Owner. Tower I Owner
and Tower II Owner each have the right to
allocate and use twelve (12) Parking Deck
Spaces during Normal Business Hours and, as
long as the Hotel/Condo Improvements are a
Hotel, Hotel/Condo Owner has the right to
allocate and use the twenty-four (24)
Parking Deck Spaces after Normal Business
Hours, all in accordance with Article V of
this REA. The Hotel Shared Spaces are
located as shown on the Plans.
Hotel/Tower I Canopy If the Hotel/Condo Improvements constitute a
Hotel, the canopy that will be constructed
over the Access Road and will extend from
the east side of Tower I to the west side of
the Hotel (but not the Condo), a portion of
which canopy will be located on the Tower I
Tract and a portion of which canopy will be
located on the Hotel/Condo Tract.
Hotel/Tower I Canopy Expenses The costs and expenses of owning,
maintaining, repairing, improving, insuring,
rebuilding, removing and operating the
Hotel/Tower I Canopy, and Taxes allocable to
the Hotel/ Tower I Canopy, and any personal
property used in connection therewith; all
costs of repairing and replacing any
equipment and security devices; utilities;
General and Administrative Expenses
allocable to the Hotel/Tower I Canopy; costs
of licenses and permits; legal and
accounting fees; costs of complying with all
applicable laws; capital improvement costs
and reserves therefor; costs of lawsuits and
judgments or awards arising therefrom not
covered by insurance; and such other costs
and expenses as may be incurred in
connection with the Hotel/Tower I Canopy.
Hotel/Condo Tract That certain parcel or tract of land located
in Dallas, Texas and more particularly
described in Exhibit C attached hereto.
Hotel/Condo Undivided Interest The ten and thirty-seven hundredths percent
(10.37%) undivided interest in the Parking
Tract and the Parking Deck owned by the
Hotel/Condo Owner.
Improvements Any building or other improvements,
constructed, or to be constructed, on a
Tract.
-9-
Insured Casualty Any peril against which insurance is
required as provided in Section 14.2(c) of
this REA.
Interest Interest computed at the rate then being
announced or published by the New York City
office of the JPMorgan Chase Bank, National
Association, or its successors, as its
"prime" rate at the time the expenditure on
which the interest is being computed was
made plus 300 basis points or the then
applicable maximum rate permitted to be
charged by the laws of Texas, whichever is
lower.
Loading Dock The Improvements from time to time located
on the Loading Dock Tract, excluding any
portion of the Tower II Skybridge located on
or over the Loading Dock Tract.
Loading Dock Access Area The area adjacent to the Loading Dock Tract
located underneath the Tower II Skybridge,
and part of the Tower I Tract, as shown on
the Plot Plan, excluding any portion of the
Tower II Skybridge located on or over the
Loading Dock Access Area.
Loading Dock Expenses The costs and expenses of owning,
maintaining, repairing, rebuilding,
improving, insuring, and operating the
Loading Dock and the Loading Dock Access
Area, including Taxes allocable to the
Loading Dock Tract and the Loading Dock
Access Area, any Improvements thereon and
any personal property used in connection
therewith; all costs of repairing and
replacing any equipment and security
devices; utilities; General and
Administrative Expenses allocable to the
Loading Dock Tract and Loading Dock Access
Area; costs of licenses and permits; legal
and accounting fees; costs of complying with
all applicable laws; capital improvement
costs and reserves therefor; costs of
lawsuits and judgments or awards arising
therefrom not covered by insurance; and such
other costs and expenses as may be incurred
in connection with the Loading Dock Tract
and the Loading Dock Access Area and any
Improvements thereon.
Loading Dock Rules The rules and regulations, as the same may
be amended from time to time, promulgated
pursuant to Section 6.1 hereof.
-10-
Loading Dock Tract That certain parcel or tract of land in
Dallas, Texas, which is part of the Tower I
Tract, is shown on the Plot Plan, and is
described on Exhibit L.
Management Condition The following condition: The tenant under
the Xxxxx Lease and its Affiliates, in the
aggregate, lease less than fifty percent
(50%) of the Net Rentable Area (as defined
in the Xxxxx Lease) in Tower I or such
tenant is in monetary default under the
Xxxxx Lease with respect to monthly
scheduled rent payments beyond notice and
cure periods.
Material Changes Material changes to Plans or Improvements,
as defined in Section 3.1(e).
Mortgage A mortgage, deed of trust, deed to secure
debt or other similar instrument securing
the repayment of a debt and which encumbers
all or any part of a Tract; provided,
however, that such term shall not include
judgment liens.
Mortgagee The mortgagee or beneficiary of a Mortgage.
Net Rentable Area The area or areas of space within Building
Improvements determined as follows: (i) Net
Rentable Area in the case of a full floor
leased to a single tenant is determined by
measuring from the inside surface of the
outer pane of glass and extensions of the
plane thereof in non-glass areas to the
inside surface of the opposite outer pane of
glass and extensions of the plane thereof in
non-glass areas and shall include all areas
enclosed by such surfaces, excluding only
Service Areas (defined below) and General
Common Areas (defined below), plus an
allocation of the square footage of the
General Common Areas, and (ii) Net Rentable
Area in the case of a floor leased to more
than one tenant (i.e., a multi-tenant floor)
shall include the total square footage of
all floor areas enclosed by the inside
surface of the outer pane of glass and
extensions of the plane thereof in non-glass
areas and by demising walls (measured from
the midpoint of demising walls), excluding
only Service Areas and General Common Areas,
plus an allocation of the square footage of
the Common Areas (defined below) and the
General Common Areas. In determining Net
Rentable Area pursuant to (i) and (ii)
above, no deduction from Net Rentable Area
-11-
shall be made for columns or projections
necessary to the Building Improvements.
"Service Areas" shall mean the total square
footage within vertical penetrations such as
(and measured from the midpoint of the walls
enclosing) Building Improvements stairs,
elevator shafts, fire towers, flues, vents,
stacks, vertical pipe shafts, and vertical
ducts; however, structural columns are not
included in Service Areas. Areas for the
specific use of a tenant or installed at the
request of a tenant such as special stairs
or elevators are not included within the
definition of Service Areas. "General
Common Areas" shall mean the total square
footage within (and measured from the
midpoint of the walls enclosing or from the
inside surface of the outer pane of glass
enclosing, or extensions of the plane
thereof in non-glass areas) the Building
Improvements' elevator machine rooms, main
mechanical rooms, loading dock facilities,
telephone switch rooms, main electrical
rooms, public lobbies (including the main
floor lobby of the Building Improvements),
engineering, security, postal and main
cleaning areas, and other areas not leased
or held for lease within the Building
Improvements but which are necessary or
desirable for the proper utilization of the
Building Improvements or to provide
customary services to the Building
Improvements. It is understood and agreed
that all or part of the loading facilities
may not be located within the Building
Improvements, but shall be included in a
part of the General Common Areas. The
allocation of the square footage of the
General Common Areas to a particular leased
premises shall be equal to the total square
footage of the General Common Areas
multiplied by a fraction, the numerator of
which is the Net Rentable Area of such
leased premises (excluding the allocation of
General Common Areas) and the denominator of
which is the total of all Net Rentable Area
of space leased or held for lease as office
space or retail space in the Building
Improvement (excluding the allocation of the
General Common Areas). "Common Areas" shall
mean the total square footage of all areas
within (and measured from the midpoint of
the walls enclosing or from the inside
surface of the outer pane of glass
enclosing, or extensions of the plane
thereof in non-glass areas) public
corridors, elevator foyers, rest rooms,
-12-
mechanical rooms, janitor closets,
telephone, electrical and equipment rooms,
and other similar facilities for the use of
all tenants on the floor on which a
particular leased premises is located. The
allocation of the square footage of the
Common Areas to a particular leased premises
shall be equal to the total square footage
of the Common Areas on said floor multiplied
by a fraction, the numerator of which is the
Net Rentable Area of the portion of a
particular leased premises (excluding the
allocations of General Common Areas and
Common Areas) located on said floor and the
denominator of which is the total of all Net
Rentable Area on said floor (excluding the
allocation of General Common Areas and
Common Areas). Until Building Improvements
are constructed on the Tower I Tract or the
Tower II Tract, the Net Rentable Area of
Building Improvements on the Tower I Tract
or the Tower II Tract shall be deemed to be
377,991 square feet of Net Rentable Area on
the Tower I Tract, and 305,385 square feet
of Net Rentable Area on the Tower II Tract.
The Net Rentable Area of Building
Improvements on a Tract shall, upon
completion of construction, be the greater
of the actual Net Rentable Area of such
Building Improvements or the Net Rentable
Area of such Building Improvements or the
Net Rentable Area set forth in the preceding
sentence. As of the date hereof, the Net
Rentable Area of Tower I is 379,518 square
feet and the Net Rentable Area of Tower II
is 306,244 square feet. Once Building
Improvements are constructed on the Tower I
Tract or the Tower II Tract, then, if the
Building Improvements are not restored after
a casualty or condemnation, until such
restoration, such Tract shall be deemed to
have Building Improvements located on it
having a Net Rentable Area equal to the
greater of the actual Net Rentable Area of
such Building Improvements prior to such
casualty or condemnation or the Net Rentable
Area set forth in second preceding sentence
hereof.
Normal Business Hours 7:00 A.M. to 6:00 P.M., weekdays, 8:00 A.M.
to 1:00 P.M. Saturdays, excluding Holidays
and Sundays, but which may be changed
pursuant to Section 8.10(a).
North Dallas Area The area of suburban Dallas, Texas located
within a two (2) mile radius of the
intersection of the Dallas North Tollway and
LBJ Freeway (Interstate 635).
-13-
Notice Each notice, demand, request, consent,
approval, disapproval or designation which
an Owner is required or desires to give or
make or communicate to one or more other
Owners pursuant to this REA.
Other Tower Owner Tower II Owner during such time as Tower I
Owner is the Common Area Manager and Tower I
Owner during such time as Tower II Owner is
the Common Area Manager.
Owner or Owners The Person which is from time to time the
record owner of fee simple title to any
Tract or Undivided Interest or the record
lessee under any Ground Lease; provided,
however, that such term shall not include
any Mortgagee or trustee who may hold a lien
against any such Tract or Undivided Interest
or leasehold interest under a Ground Lease
pursuant to a Mortgage unless and until such
Mortgagee shall acquire record fee simple
title or record leasehold title to any such
Tract or Undivided Interest through
foreclosure, deed in lieu of foreclosure, or
otherwise. A reference to "Owners" shall
mean all Owners.
Parking Deck Those certain Improvements constructed on
the Parking Tract in accordance with the
Plans and for use as a parking facility for
the parking of motor vehicles, as such
Improvements may from time to time be
expanded in accordance with this REA. The
Parking Deck has five (5) above grade levels
and two (2) below grade levels. The Parking
Deck shall not include any portion of any
parking garages not located on or under the
Parking Tract. The Tower I Parking Garage
shall not be part of the Parking Deck.
Parking Deck Expenses The costs and expenses of owning,
maintaining, repairing, rebuilding,
improving, insuring, and operating the
Parking Deck, including Taxes on the Parking
Tract and the Parking Deck and any personal
property used in connection therewith; all
fees, salary, benefits and other
compensation paid to an operator; all costs
of repairing and replacing any equipment or
security devices; utilities; General and
Administrative Expenses allocable to the
Parking Tract; costs of licenses and
permits; legal and accounting fees; costs of
-14-
complying with all applicable laws; capital
improvement costs and reserves; the costs of
lawsuits and judgments or awards arising
therefrom, not covered by insurance; and
such other costs and expenses as may be
incurred in connection with the Parking
Tract and Parking Deck.
Parking Deck Owners Tower I Owner, Tower II Owner, and
Hotel/Condo Owner, their successors and
assigns, as Owners of the Undivided
Interests.
Parking Deck Rules The rules and regulations, as the same may
be amended from time to time, promulgated
pursuant to Section 5.10.
Parking Deck Spaces One or more paved and striped areas designed
for the parking of motor vehicles and
located within the Parking Deck, located as
shown on the Common Improvement Plans.
Parking Tract That certain parcel or tract of land located
in Dallas, Texas and more particularly
described in Exhibit D attached hereto.
Permittees The Owners and any tenant, sub-tenant or
other authorized occupant of any portion of
the Improvements located on the Tracts and
their respective officers, directors,
employees, agents, partners, contractors,
customers, visitors, invitees, guests,
licensees and concessionaires.
Person or Persons Individuals, partnerships, associations,
corporations and any other forms of
organization, or one or more of them, as the
context may require.
Plans The Hotel/Condo Plans and the Common
Improvement Plans.
Plot Plan That certain plan attached hereto as Exhibit
H.
Project Architect A duly licensed architect selected by Common
Area Manager with the approval of Other
Tower Owner.
Project Auditor A nationally recognized independent
accounting firm selected by Common Area
Manager and approved by Other Tower Owner.
-15-
REA This Amended and Restated Construction,
Operation and Reciprocal Easement Agreement
as same may be amended from time to time as
herein provided.
Roof Terrace The elevated terrace located on the second
(2nd) level of Tower I in the area
identified as such on Exhibit N attached
hereto.
Roof Terrace Expenses The costs and expenses of owning,
maintaining, repairing, rebuilding,
improving, insuring and operating the Roof
Terrace, including all costs of landscaping;
all costs of repairing and replacing any
equipment and security devices; utilities;
General and Administrative Expenses
allocable to the Roof Terrace; costs of
licenses and permits; legal and accounting
fees; costs of complying with all applicable
laws; capital improvement costs and reserves
therefor; costs of lawsuits and judgments or
awards arising therefrom not covered by
insurance; and such other costs and expenses
as may be incurred in connection with the
Roof Terrace (but excluding the costs of
day-to-day cleaning resulting solely from
use of such area for take-out food dining
for any restaurant or other food service
operation located in Tower I, including
without limitation, cleaning tables and
chairs and removing all wet and dry garbage
throughout the day).
Shared Spaces The Hotel Shared Spaces or the Condo Shared
Spaces, as applicable.
Site The tract of land described on Exhibit I
attached hereto.
Space Ratio For each of Tower I Owner, Tower II Owner,
and Hotel/Condo Owner, the ratio obtained by
dividing the Allocable Share of each of the
Tower I Owner, Tower II Owner or the
Hotel/Condo Owner, as the case may be, by
the sum of the Allocable Shares of all of
the Tower I Owner, the Tower II Owner, and
the Hotel/Condo Owner.
Substantial Completion or The Improvement in question is completed in
Substantially Completed accordance with plans and specifications for
the same, except for details of
construction, decoration or mechanical
adjustment that, in the aggregate, are minor
in character and do not, either by their
nature or because of the repair or
completion work necessary, materially
interfere with the intended use or enjoyment
-16-
of the applicable Improvement, and it would
be reasonable under the circumstances for
such Improvement to be made available for
its intended use and any such details will
be completed with no unreasonable
interference to such use in due course after
such Substantial Completion thereof. The
Common Improvements, except for the
Hotel/Tower I Canopy, are Substantially
Complete.
Taxes All taxes, assessments, use and occupancy
taxes, water and sewer charges, rates and
rents, excises, levies, license and sales
and permit fees and taxes and other charges
by public authority, including any
Governmental Agency, general and special,
ordinary and extraordinary, foreseen and
unforeseen, of any kind and nature
whatsoever, which shall or may be assessed,
levied, charged, confirmed or imposed by any
public authority upon or accrue or become
due or payable out of or on account of or
become a lien on a Tract or any part thereof
or any Improvements now or hereafter located
thereon, the appurtenances thereto or the
sidewalks, streets or vaults adjacent
thereto, or any personal property located
therein, or the rent and income received by
or for any use or occupation of the
Improvements, and such franchises, licenses
and permits as may be appurtenant to the use
of the Improvements, or any documents to
which any Owner is a party, creating or
transferring an interest or estate in the
Site or any part thereof payable to any
governmental body; provided, however, that
"Taxes" shall not include any federal,
state, county or municipal income, franchise
or transfer taxes assessed against any
Owner; provided that if the present method
of taxation or assessment shall be so
changed that the whole or any part of the
taxes, assessments, levies, impositions or
charges now levied, assessed or imposed on
real estate and the Improvements thereon
shall be discontinued and as a substitute
therefor, or in lieu of or in addition
thereto, taxes, assessments, levies,
impositions or charges shall be levied,
assessed, or imposed, wholly or partially,
as a capital levy or otherwise on the
revenues derived from the operation of the
real estate and/or Improvements, then such
substitute or additional taxes, assessments,
levies, impositions or charges shall be
included in "Taxes".
-17-
Xxxxx Lease The Office Lease Agreement, dated May 14,
1998, executed by Tower I Owner and Xxxxx
Hospitals Limited, as amended from time to
time, pertaining to Tower I.
Term The period of time that this REA shall
remain in effect, as provided in
Section 25.1 hereof.
Terrace Rules The rules and regulations, as the same may
be amended from time to time, promulgated
pursuant to Section 7.1 hereof.
Tollway Sign Tract That certain parcel of land located in
Dallas, Texas and more particularly
described on Exhibit O attached hereto.
Total Parking Deck Spaces All Parking Deck Spaces located in the
Parking Deck.
Tower I The Building Improvements from time to time
located on the Tower I Tract.
Tower II The Building Improvements from time to time
located on the Tower II Tract.
Tower I Access Control Area The portions of the Parking Deck shown as
such on the Plot Plan.
Tower II Access Control Area The portions of the Parking Deck shown as
such on the Plot Plan.
Tower I Canopy The canopy that Tower I Owner may elect to
construct on the north side of Tower I and
connecting the north side of Tower I and the
south side of the Parking Deck, all of which
canopy will be located on the Tower I Tract,
including over the Tower I Grade Level
Entrance.
Tower I Communications Area The area located on the top floor of the
Parking Deck as shown on the Plot Plan.
Tower II Communications Area The area located on the top floor of the
Parking Deck as shown on the Plot Plan.
-00-
Xxxxx X Xxxxx Xxxxx Xxxxxxxx The pedestrian entrance into the south side
of the Parking Deck located at grade level
on the north side of the Tower I Tract,
located as shown on the Plot Plan.
Tower I Owner The Owner of the Tower I Tract from time to
time.
Tower II Owner The Owner of the Tower II Tract from time to
time.
Tower I Parking Garage The parking areas located on the Tower I
Tract, under Tower I, which parking areas
are not located on the Parking Tract and are
not part of the Parking Deck.
Tower I Reserved Spaces The Parking Deck Spaces designated for the
exclusive use by the Tower I Owner and its
Permittees in accordance with this REA,
located as designated on the Plans, which
shall not exceed an amount equal to fifteen
percent (15%) of the Allocable Share for
Tower I Owner set forth in Section 5.6 as it
may be increased pursuant to Section 5.11.
Tower II Reserved Spaces The Parking Deck Spaces designated for the
exclusive use by the Tower II Owner and its
Permittees in accordance with this REA,
located as designated on the Plans, which
shall not exceed an amount equal to fifteen
percent (15%) of the Allocable Share for
Tower II Owner set forth in Section 5.6 as
it may be increased pursuant to Section 5.11.
Tower II Skybridge The skybridge constructed from Tower II to
the Parking Deck, connecting Tower I,
Tower II, and the Parking Deck, which
skybridge is located on the Tower I Tract.
Tower II Skybridge Expenses The costs and expenses of owning,
maintaining, repairing, rebuilding,
improving, insuring, and operating the
Tower II Skybridge, including Taxes
allocable to the Tower II Skybridge and any
personal property used in connection
therewith; all costs of repairing and
replacing any equipment and security
devices; utilities; General and
Administrative Expenses allocable to the
Tower II Skybridge; costs of licenses and
permits; legal and accounting fees; costs of
complying with all applicable laws; capital
improvement costs and reserves therefor;
costs of lawsuits and judgments or awards
arising therefrom not covered by insurance;
and such other costs and expenses as may be
incurred in connection with the Tower II
Skybridge.
-19-
Tower I Tract That certain parcel or tract of land located
in Dallas, Texas and more particularly
described in Exhibit A attached hereto.
Tower II Tract That certain parcel or tract of land located
in Dallas, Texas and more particularly
described in Exhibit B attached hereto.
Tract or Tracts One or more of the Tower I Tract, Tower II
Tract, Parking Tract, Access Tract, and/or
the Hotel/Condo Tract.
Tower I Undivided Interest The forty-seven and seventeen hundredths
percent (47.17%) undivided interest in the
Parking Tract and the Parking Deck owned or
leased under a Ground Lease to Tower I Owner.
Tower II Undivided Interest The forty-two and forty-six hundredths
percent (42.46%) undivided interest in the
Parking Tract and the Parking Deck owned by
the Tower II Owner.
Unavoidable Delays Delays resulting from those events or
occurrences referred to in Article XXVII
hereof.
Undivided Interests The Hotel/Condo Undivided Interest, Tower I
Undivided Interest, and/or the Tower II
Undivided Interest.
Uninsured Casualty Any peril against which insurance is not
required under the provisions of
Section 14.2(c) of this REA.
Visitor Parking Spaces The approximately one hundred sixty (160)
Parking Deck Spaces, but not less than one
hundred twenty (120) Parking Deck Spaces,
and the parking spaces located from time to
time on the Access Tract designated as
visitor parking spaces in accordance with
this REA, located as shown on the Plans.
Zoning Ordinance The zoning ordinance or ordinances
applicable to the Site as of the date hereof
and as amended from time to time with the
consent of Tower I Owner and Tower II Owner
in accordance with the terms of this REA.
-20-
ARTICLE II
EXHIBITS
Attached hereto and forming a part of this REA are the following exhibits:
Exhibit A Tower I Tract
Exhibit B Tower II Tract
Exhibit C Hotel/Condo Tract
Exhibit D Parking Tract
Exhibit E Access Tract
Exhibit F Signage Criteria
Exhibit G Allocation Methodology
Exhibit H Plot Plan
Exhibit I Site
Exhibit J-1 Common Improvements Plans
Exhibit J-2 Intentionally Deleted
Exhibit J-3 Intentionally Deleted
Exhibit K Access Road
Exhibit L Loading Dock Tract
Exhibit M Intentionally Deleted
Exhibit N Roof Terrace
Exhibit O Tollway Sign Tract
Exhibit P Designated Visitor Spaces and Condo Shared Spaces
Exhibit Q Tollway Monument Sign
Schedule I Initial Parking Deck Rules
Schedule II Initial Loading Dock Rules
-21-
ARTICLE III
DESIGN AND CONSTRUCTION OF IMPROVEMENTS
Section 3.1 Plot Plan and Plans
(a) The Plot Plan shows the location and configuration of the Tracts
and the Improvements the Owners have constructed and intend to construct on the
Tracts.
(b) The plans for the Hotel/Tower I Canopy require the approval of
the Tower I Owner in its sole discretion.
(c) The Hotel/Condo Plans, whether for the Hotel or the Condo, do
not yet exist and must be prepared and approved in accordance with this REA.
(d) The Hotel/Condo Plans shall consist of preliminary plans and
specifications or drawings showing, in general terms, (i) the general design of
the Hotel/Condo Improvements, (ii) the color and composition of the elements and
the appearance of the exterior of the Hotel/Condo Improvements, including all
stone, glass, and other materials, (iii) the overall quality parameters of the
exterior elements of the Hotel/Condo Improvements, (iv) the configuration and
plan for location of the Hotel/Condo Improvements on the Hotel/Condo Tract and
access thereto, (v) exterior elevations of the Hotel/Condo Improvements, (vi)
the design and appearance of the Hotel/Condo Canopy, (vii) if the Hotel/Condo
Improvements are a Hotel, the size and number of hotel guest rooms, bars,
restaurants and meeting rooms in the Hotel/Condo Improvements, and (viii) if the
Hotel/Condo Improvements are a Condo, the size, number and configuration, of the
condominium units, the public areas, the security walls around the Hotel/Condo
Improvements, including the Hotel/Condo Spaces, if applicable, and the
recreational areas of the condominium project. The Hotel/Condo Improvements
shall, if they are a Hotel, (i) have a minimum of one hundred seventy (170)
guest rooms, but not more than a maximum of two hundred fifty (250) guest rooms,
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(ii) shall not have a Gross Area in excess of two hundred thousand (200,000)
square feet, (iii) have not more than one (1) restaurant and one (1) lounge, and
(iv) shall not exceed one hundred ninety-five (195) feet above grade. The
Hotel/Condo Improvements shall, if they are a Condo, (i) not exceed two hundred
thirteen (213) feet above grade, (ii) shall not have a Gross Area in excess of
two hundred forty thousand (240,000) square feet, (iii) shall not have more than
one hundred forty (140) units, and (iv) shall offer to the Unit Owners access to
satellite dishes on the roof of the Condo (located, configured, and screened in
a manner approved by Tower I Owner and Tower II Owner) and prohibit satellite
dishes in any Units or attached to or located on any portion of a Condo,
including any Unit, porch or balcony. The Hotel/Condo Plans must be approved by
Tower I Owner and Tower II Owner, and, once the Hotel/Condo Plans have been
approved by Tower I Owner and Tower II Owner, no Material Changes to the
Hotel/Condo Plans may be made without the approval of Tower I Owner and Tower II
Owner.
(e) For purposes hereof, and for purposes of Article XXII, Material
Changes shall be limited to changes in:
(i) Net Rentable Area (increases or decreases) of office
buildings by ten percent (10%) or more;
(ii) the number of Hotel guest rooms (increases or decreases)
by twenty percent (20%) or more;
(iii) the square footage (increases or decreases) of Hotel
guest rooms by five percent (5%) or more;
(iv) design and location of signage, except to the extent
permitted in the signage criteria attached hereto as Exhibit F;
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(v) design, location, number, entrances to, and other aspects
of the Loading Dock;
(vi) building set backs;
(vii) height and exterior elevations;
(viii) location and configuration of Common Improvements;
(ix) quality of materials;
(x) composition of the exterior elements and materials
(including roofs);
(xi) number and size (increases or decreases) of restaurants,
lounges, ballrooms, meeting rooms, concession areas and other
facilities other than guest rooms in the Hotel;
(xii) the Gross Area (increases or decreases) of the Condo by
ten percent (10%) or more;
(xiii) the number (increase or decrease) of Condo units by ten
percent (10%) or more;
(xiv) the average square footage (increases or decreases) of
Condo units by ten percent (10%) or more;
(xv) the number, location, and configuration of security walls
and fences, recreational areas, and other public areas of a Condo;
(xvi) location of Improvements on a Tract; and
(xvii) number (increases or decreases) of Parking Deck Spaces,
except as permitted in Section 5.11.
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(f) Any approval required under this Section 3.1 shall be given or
withheld within ten (10) days after submission to the applicable Owner of the
request for such approval in writing together with information sufficient to
make an informed decision. The failure of an Owner to respond to an initial
request within such ten (10) day period shall be deemed disapproval of such
request; provided that if a second request is made in writing regarding the same
subject matter, then the failure to respond within five (5) days shall be deemed
approval of such request.
(g) Approvals required under this Section 3.1 may be given or
withheld in the sole discretion of the Owner from whom such approval is
required, provided that such approval shall not be unreasonably withheld if the
Improvements that were the subject of such approval, or any Improvements will
after the implementation of a Material Change requiring approval, comply with
First Class Standards and will be architecturally harmonious with the other
Improvements on the Site. Notwithstanding the foregoing provisions of this
Section 3.1(g), without the consent of Tower I Owner, which may be given or
withheld in its sole discretion, (i) Tower II Owner shall not increase the
height of Tower II above 14 stories, (ii) Hotel/Condo Owner shall not increase
the number of hotel guest rooms to more than two hundred fifty (250), decrease
the number of hotel guest rooms to less than one hundred seventy (170), or
decrease the width of hotel guest rooms to less than thirteen and one-half
(13.5) feet, (iii) Hotel/Condo Owner shall not increase the height of the Hotel
above one hundred ninety-five (195) feet above grade, (iv) Hotel/Condo Owner
shall not increase the height of the Condo above two hundred thirteen (213) feet
above grade, and (v) Hotel/Condo Owner shall not increase the Gross Area of the
Condo in excess of two hundred forty thousand (240,000) square feet.
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Section 3.2 Design and Construction of Common Improvements
(a) The Common Improvements, exclusive of the Hotel/Tower I Canopy,
have been constructed as of the date hereof.
(b) TOWER I OWNER HAS MADE NO, AND SHALL MAKE NO, WARRANTIES,
EXPRESS OR IMPLIED, WITH RESPECT TO THE CONSTRUCTION OF THE COMMON IMPROVEMENTS,
ALL IMPLIED WARRANTIES WITH RESPECT THERETO, INCLUDING THOSE OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY NEGATED AND WAIVED. WITHOUT
LIMITING THE FOREGOING, TOWER I OWNER SHALL NOT BE RESPONSIBLE FOR ANY FAILURE
OF THE COMMON IMPROVEMENTS. TOWER I OWNER SHALL NOT BE OBLIGATED TO, AND DOES
NOT, MAKE ANY WARRANTIES AND COVENANTS WITH RESPECT TO THE COMMON IMPROVEMENTS
NOR SHALL TOWER I OWNER BE OBLIGATED FOR ANY OF THE WARRANTIES FROM THE PROJECT
CONTRACTOR.
Section 3.3 Construction of Improvements Other Than Common
Improvements
If and when constructed, the Hotel/Condo Improvements, the
Connecting Points on the Hotel/Condo Tract, and the connections of the
Hotel/Condo Improvements driveway entrances to the Access Road as shown on the
Plot Plan shall be constructed in accordance with the Hotel/Condo Plans and in a
good and workmanlike manner, using first-class materials, in accordance with all
applicable laws, ordinances, rules and regulations of all Governmental Agencies,
and in accordance with the terms and conditions of this REA.
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Section 3.4 Payment and Reimbursement Obligations for Common
Improvements
The Common Improvements (other than the Hotel/Tower I Canopy)
completed as of the date hereof have been paid for by the Owners as provided
below (and the costs of the Hotel/Tower I Canopy shall be paid for by the Owners
as provided below) and no Owner owes any other Owner for the costs of the
initial construction of the Common Improvements:
Improvement Hotel/Condo Owner Tower II Owner Tower I Owner
Constructed Percentage of Cost Percentage of Cost Percentage of Cost
----------- ------------------ ------------------ ------------------
Hotel/Tower I Canopy Gross Area Ratio 0% Gross Area Ratio
Tower II Skybridge 0% 100% 0%
Access Improvements Gross Area Ratio Gross Area Ratio Gross Area Ratio
Loading Dock 0% Gross Area Ratio Gross Area Ratio
Loading Dock Access 0% Gross Area Ratio Gross Area Ratio
Area
Parking Deck Space Ratio Space Ratio Space Ratio
Roof Terrace 0% Gross Area Ratio Gross Area Ratio
Section 3.5 Time for Completion
(a) Construction of the Hotel/Condo Improvements shall be
Substantially Completed by the Hotel/Condo Owner in accordance with the
Hotel/Condo Plans within twenty-four (24) months after the commencement of
construction of the Hotel/Condo Improvements on the Hotel/Condo Tract. For
purposes of this Section 3.5(a), commencement of construction shall not occur
until a construction contract has been fully executed and delivered by the
Hotel/Condo Owner and contractor and excavation of the Hotel/Condo Tract has
begun for the Hotel/Condo Improvements pursuant to such contract. Surveying,
clearing and grubbing, landscaping, or other preliminary work shall not be
considered the commencement of construction.
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(b) Substantial Completion shall be evidenced by the issuance of a
permanent or final certificate of occupancy (or equivalent thereof). The time
for completion shall be extended by the period of any Unavoidable Delays.
(c) If Hotel/Condo Owner fails to complete construction of its
Improvements within the twenty-four (24) month period set forth above, then
after the receipt of written notice from any other Owner of such failure, it
shall either (i) raze such partially completed Improvements and landscape the
Hotel/Condo Tract in accordance with Section 13.3 within sixty (60) days
thereafter, or (ii) complete such Improvements within six (6) months thereafter.
If Hotel/Condo Owner fails to complete such Improvements or raze such partially
completed Improvements within such periods of time, then the non-defaulting
Owners shall not have the right to complete such partially completed
Improvements, raze such partially completed Improvements, or exercise any other
self-help remedies pursuant to Section 18.1, but shall have the right, as their
sole and exclusive remedy, to seek specific performance of such obligations.
Section 3.6 Liens
In the event any mechanic's lien or other statutory lien shall be
filed against a Tract or the Tract of any other Owner by reason of work, labor,
services, or materials supplied to or at the request of an Owner on its Tract or
the Tract of any other Owner, such Owner shall pay and discharge the same of
record within thirty (30) days after the filing thereof, subject also to the
provisions of the following sentence, or cause such lien to be discharged of
record by bonding or otherwise. Each such Owner shall have the right to contest
the validity, amount or applicability of any such liens by appropriate legal
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proceedings, and so long as it shall have caused said lien to be discharged of
record by bonding or otherwise, or shall furnish bond or indemnity as
hereinafter provided, and be prosecuting such contest in good faith, the
requirement that it pay and discharge such liens within said 30-day period shall
not be applicable; provided, however, that in the event such lien has not been
discharged of record, such Owner shall, within thirty (30) days after the filing
thereof, bond or indemnify against such liens in amount and form satisfactory to
induce the title insurance company which insured title to the respective Tract
to each of the Owners to insure over such liens, without showing any title
exception by reason of such liens and such Owner shall indemnify and save
harmless the other Owners hereto from all loss, damage, liability, expense or
claim whatsoever (including reasonable attorneys' fees and other costs of
defending against the foregoing) resulting from the assertion of any such liens.
In the event such legal proceedings shall be finally concluded (so that no
further appeal may be taken) adversely to the Owner contesting such liens, such
Owner shall within five (5) days thereafter cause the lien(s) to be discharged
of record.
Section 3.7 As-Built Survey
Tower I Owner has caused an "as-built" survey of the Common
Improvements and of the Tracts affected thereby to be prepared and delivered to
each Owner.
Section 3.8 Construction Easements
Each Owner hereby grants to the other Owners, their successors and
assigns, a temporary right, privilege and easement to enter upon their
respective Tracts from time to time, including for purposes of restoration or
alteration as permitted or required under this REA, to the extent necessary to
construct, alter, and repair the Common Improvements. Each Owner, its successors
and assigns, shall have the right to permit its contractors and subcontractors,
agents and employees to use the Easement herein granted for the aforesaid
purposes. In addition, each Owner agrees to carry out its construction
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obligations hereunder with as little interference as reasonably possible with
the construction activities of the other Owners and all Owners agree to
cooperate with each other in scheduling and performing such construction work so
as to accomplish such construction work for all of the Owners in as expeditious
a manner as possible. Hotel/Condo Owner shall have no right to use the Access
Tract or the Parking Tract for any purpose related to the construction of the
Hotel/Condo Improvements and all development and/or construction staging for any
Hotel/Condo Improvements shall be located on the Hotel/Condo Tract.
ARTICLE IV
ACCESS EASEMENTS AND ACCESS IMPROVEMENTS
Section 4.1 Operation of Access Improvements
Tower I Owner is the Owner of the Access Tract. Tower I Owner, Tower
II Owner, and Hotel/Condo Owner recognize the mutual benefit and necessity of
operating the Access Improvements so that Permittees of the Tower I Owner,
Hotel/Condo Owner, and Tower II Owner have the right to use the Access
Improvements. Therefore, Tower I Owner hereby covenants and agrees that, for as
long as the Easements granted pursuant to Section 4.2 remain in effect, the
Access Improvements shall be operated as one integrated unit in accordance with
the terms of this REA.
Section 4.2 Access Easements
(a) Subject to the provisions of this REA, Tower I Owner hereby
grants to Tower II Owner for the benefit of Tower II Owner and the Tower II
Tract, Hotel/Condo Owner for the benefit of Hotel/Condo Owner and the
Hotel/Condo Tract, and Parking Deck Owners for the benefit of Parking Deck
Owners and the Parking Tract, non-exclusive easements on, over, and across the
Access Tract for:
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(i) ingress to and egress from its Tract to and from the other
Tracts and public thoroughfares over the Access Tracts and the
Access Improvements as shown on the Plans; and
(ii) circulation, passage and accommodation of pedestrians and
vehicles to and from the Parking Deck and their respective Tracts.
(b) Tower I Owner shall have the right, from time to time, with the
consent of Tower II Owner, to make changes in the Access Improvements, and in
the location or design thereof, as long as the orderly flow of vehicular or
pedestrian traffic is not adversely affected and the Easements granted under
this Section are available to the other Owners. Hotel/Condo Owner shall have no
right to approve changes to the Access Tract or Access Tract Improvements as
long as Hotel/Condo Owner has access over the Access Road to the Hotel/Condo
Spaces. Common Area Manager shall make all alterations and improvements to the
Access Improvements required by law, the cost of which shall be an Access Tract
Expense.
(c) The Easements granted by this Section shall be perpetual.
Section 4.3 Hours of Operation
Subject to Section 16.5, the Access Improvements shall be open and
available for use twenty-four (24) hours a day, seven (7) days a week, fifty-two
(52) weeks a year for as long as the Easements for use of the Access Tract
remain in effect.
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ARTICLE V
OPERATIONS OF THE PARKING DECK
Section 5.1 Operation of the Parking Deck as a Unit.
(a) Tower I Owner is the Owner of the Tower I Undivided Interest,
Tower II Owner is the Owner of the Tower II Undivided Interest, and Hotel/Condo
Owner is the Owner of the Hotel/Condo Undivided Interest in the Parking Tract
and Parking Deck. The Parking Deck shall be operated as one integrated unit in
accordance with the terms of this REA and such Parking Deck Rules as may be
adopted and amended from time to time in accordance with Section 5.10.
(b) No barricades, curbs, gates or other obstacles shall be erected
which block or prohibit the free flow of traffic along the entrances, exits,
ramps and driveways within the Parking Deck; provided, however, that nothing
herein shall prohibit (i) the erection of such curbs and other control or safety
improvements or devices which may be necessary to control and direct pedestrian
and vehicular traffic within the Parking Deck; (ii) the erection of such toll
booths and/or entrance and exit gates as are required to limit access to the
Parking Deck to authorized Permittees and to collect parking fees from those
entering and/or exiting the Parking Deck; (iii) such temporary closing of
portions of the Parking Deck as may be necessary for the construction of
additional Parking Deck Spaces in accordance with Section 5.11; and (iv) if the
Hotel/Condo Improvements constitute a Condo, Hotel/Condo Owner from erecting
fences or other security barriers securing the Hotel/Condo Spaces approved by
Tower I Owner and Tower II Owner so that only Condo unit owners may have access
to the Hotel/Condo Spaces.
(c) Notwithstanding the foregoing, as long as Hotel/Condo Owner has
access to and from, and use of, the Hotel/Condo Spaces, Tower I Owner and Tower
II Owner shall have the right to alter the Parking Deck, access thereto, and the
operation thereof, including the Parking Deck Rules, with the approval of both
Tower I Owner and Tower II Owner, but without Hotel/Condo Owner's approval.
Common Area Manager shall to make all alterations and improvements to the
Parking Deck required by law, the costs of which shall be a Parking Deck
Expense.
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(d) Except as provided in Sections 5.1(b), 5.1(c), 5.2(c), 5.9(d),
and 5.11, no Parking Deck Owner shall have the right to make any changes in the
Parking Deck or in the location or design of the Parking Deck.
(e) No Parking Deck Spaces shall be designated or assigned for the
exclusive use of any Owners or their Permittees except (i) the Hotel/Condo
Spaces shall, at Hotel/Condo Owner's sole cost and expense, be designated or
marked by signage indicating that such Parking Deck Spaces are for exclusive use
by the Permittees of the Hotel/Condo Improvements; (ii) the Tower I Reserved
Spaces shall, at Tower I Owner's sole cost and expense, be designated or marked
by signage indicating that such Parking Deck Spaces are for exclusive use of the
Permittees of Tower I; (iii) the Tower II Reserved Spaces shall, at Tower II
Owner's sole cost and expense, be designated or marked by signage indicating
that such Parking Deck Spaces are for exclusive use of the Permittees of Tower
II; (iv) the Visitor Parking Spaces in the Parking Deck shall, as a Parking Deck
Expense, be designated or marked by signage indicating that such Parking Deck
Spaces are for the exclusive use of visitors to Tower I and Tower II subject to
Sections 5.3(b) and 5.3(e); (v) the Hotel Shared Spaces shall, at Hotel/Condo
Owner's sole cost and expense, be designated or marked by signage installed by
Common Area Manager indicating that such Parking Deck Spaces are for the
exclusive use of Permittees of Tower I Owner and Tower II Owner during Normal
Business Hours and, only if the Hotel/Condo Improvements constitute a Hotel, of
Permittees of Hotel/Condo Owner after Normal Business Hours; (vi) the Condo
Shared Spaces shall, at Hotel/Condo Owner's sole cost and expense, be designated
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or marked by signage installed by Common Area Manager indicating that such
Parking Deck Spaces are for the exclusive use of Permittees of Tower I Owner and
Tower II Owner during Normal Business Hours and, only if the Hotel/Condo
Improvements constitute a Condo, of Permittees of Hotel/Condo Owner after Normal
Business Hours; and (vii) as Tower I Owner and Tower II Owner may agree, each
acting in its sole discretion, as to any Parking Deck Spaces other than the
Hotel/Condo Spaces.
(f) Tower I Owner shall have the right to increase (but not above
the limit set forth in the definition of Tower I Reserved Spaces) and decrease
the number of Tower I Reserved Spaces from time to time, and to rearrange the
location of the Tower I Reserved Spaces within the area designated on the Plans
for the Tower I Reserved Spaces, but not to change or relocate the area
designated on the Plans for the Tower I Reserved Spaces. Tower II Owner shall
have the right to increase (but not above the limit set forth in the definition
of Tower II Reserved Spaces) and to decrease the number of Tower II Reserved
Spaces and to rearrange the location of the Tower II Reserved Spaces within the
area designated on the Plans for the Tower II Reserved Spaces, but not to change
or relocate the area designated on the Plans for the Tower II Reserved Spaces.
The Hotel/Condo Spaces and the Shared Spaces shall not be relocated without the
consent of all Parking Deck Owners, each acting in their sole discretion.
(g) Except to the extent the Tower I Owner increases or reduces the
Tower I Reserved Spaces, or the Tower II Owner increases or reduces the Tower II
Reserved Spaces, the Tower I Reserved Spaces, the Tower II Reserved Spaces, and
the Visitor Parking Spaces shall not be relocated without the consent of the
Tower I Owner and Tower II Owner, each acting in its sole discretion.
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Hotel/Condo Owner shall have no right to approve the relocation of the Tower I
Reserved Spaces, Tower II Reserved Spaces, or the Visitor Parking Spaces, as
long as Hotel/Condo Owner and its Permittees have access to and from, and use
of, the Hotel/Condo Spaces. Common Area Manager shall, with the consent of Other
Tower Owner, in its sole discretion, and without the consent of Hotel/Condo
Owner, have the right, from time to time, to increase, reduce, or relocate, the
Visitor Parking Spaces, but may not eliminate the Visitor Parking Spaces without
Hotel/Condo Owner's consent as long as the Hotel/Condo Improvements constitute a
Hotel and Hotel/Condo Owner is using Visitor Parking Spaces pursuant to Section
5.3(b) (and must reinstate any eliminated Visitor Parking Spaces if after such
elimination the Hotel/Condo Improvements constitute a Hotel and Hotel/Condo
Owner thereafter desires or intends to use such Visitor Parking Spaces pursuant
to Section 5.3(b)) unless Tower I Owner and Tower II Owner make other Parking
Deck Spaces available to Hotel/Condo Owner for such use.
(h) Either Tower I Owner or Tower II Owner may, at its expense,
construct and install additional Visitor Parking Spaces on the Access Tract
subject to the approval of the other Owner. The Owner desiring to install such
Visitor Parking Spaces must submit such request in writing to the other Owner
together with plans and specifications for such spaces (including the proposed
location) and bids from at least three (3) contractors for such work. The other
Owner shall respond to any such request with an approval or disapproval within
fourteen (14) days of receipt of the request, failing which the request shall be
deemed disapproved. If such request is approved by the other Owner, the Owner
desiring the spaces shall install such Visitor Parking Spaces in accordance with
the approved plans and specifications therefor, and the cost of such
installation shall be shared equally by Tower I Owner and Tower II Owner.
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Section 5.2 Parking Deck Operation
(a) Throughout the Term of this REA, the Parking Deck shall be
operated and maintained by Common Area Manager on behalf of, and at the expense
of, the Parking Deck Owners. Common Area Manager shall have the authority to
delegate its authority, employ a parking operator, lease the Parking Deck to a
parking operator or lessee, and execute such contracts as may from time to time
be approved by the Parking Deck Owners. Either the Tower I Owner or the Tower II
Owner shall have the right, in its reasonable discretion, to require the
termination of a parking operator's contract or lessee's lease. If either the
Tower I Owner or the Tower II Owner elect to require termination of a parking
operator, such Owner must submit to the other Owner prior to the effective date
of such termination, a list of four (4) reputable replacement parking operators
that operate other projects complying with First Class Standards. The Owner that
did not terminate the parking operator or lessee and receives such list of
replacement parking operators shall select the replacement parking operator or
lessee. Common Area Manager shall then enter into a replacement contract or
lease with such replacement parking operator or lessee on terms mutually
approved by Tower I Owner and Tower II Owner. Developer, or any affiliate of
Developer, shall be the initial operator or lessee, shall automatically be
deemed approved as a parking operator by both Tower I Owner and Tower II Owner,
and may be removed only as a result of willful misconduct, gross negligence, or
intentional breach of its parking lease or agreement.
(b) If either Tower I Owner or Tower II Owner is advised by its
counsel or accountants that its share of revenues to be received from the
Parking Deck will be, or may be deemed to be, unrelated business taxable income
within the meaning of the United States Internal Revenue Code, then Tower I
Owner or Tower II Owner shall have the right to require that the Parking Deck be
leased to a parking operator or lessee and this REA shall be amended in a manner
satisfactory to both Tower I Owner and Tower II Owner, each acting reasonably to
cause such revenue not to be unrelated business taxable income; provided that
such lease shall, to the extent possible, provide substantially the same
economic and other rights and benefits intended to be provided by this Article
V.
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(c) Hotel/Condo Owner shall have the right, from time to time, to
elect to exclude the operation of the Hotel/Condo Spaces from Common Area
Manager's, or any parking operator's or lessee's, responsibility under Section
5.2(a), in which case Hotel/Condo Owner shall operate the Hotel/Condo Spaces at
its own cost and expense, but Common Area Manager shall, as a Parking Deck
Expense, continue to be obligated to maintain and repair the Hotel/Condo Spaces.
If Hotel/Condo Owner elects to operate the Hotel/Condo Spaces itself, then (i)
Hotel/Condo Owner shall pay all of the costs of its own operation of the
Hotel/Condo Spaces, (ii) Hotel/Condo Owner may, if the Hotel/Condo Improvements
constitute a Condo, erect fences or other security barriers securing the
Hotel/Condo Spaces approved by Tower I Owner and Tower II Owner so that only
Condo unit owners may have access to the Hotel/Condo Spaces, and (iii)
Hotel/Condo Owner's share of Parking Deck Expenses shall be adjusted equitably
by Common Area Manager to take into account Hotel/Condo Owner's operation of the
Hotel/Condo Spaces, but still shall include, at a minimum, all Taxes and
utilities included in Parking Deck Expenses.
(d) Each of Tower I Owner and Tower II Owner shall be responsible to
issue parking cards for access to the Parking Deck to its Permittees at its sole
cost and expense.
(e) Hotel/Condo Owner shall have the right to use the Hotel/Condo
Spaces for the parking of Hotel/Condo Owner's contractors' passenger vehicles,
sports utility vehicles and small (i.e. pickup) trucks during construction of
the Hotel/Condo Improvements; provided Hotel/Condo Owner keeps the Hotel/Condo
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Spaces clean and free of debris and does not use the Hotel/Condo Spaces for any
other purpose without the approval of Tower I Owner and Tower II Owner, each
acting in its sole discretion, including for storage, staging, the parking of
large trucks or other construction vehicles (other than passenger vehicles,
sports utility vehicles, and small trucks).
Section 5.3 "Pooled" Parking
(a) Except for the Hotel/Condo Spaces, Tower I Reserved Spaces,
Tower II Reserved Spaces, Shared Spaces, and Visitor Parking Spaces (including
the Designated Visitor Spaces [defined below]) in the Parking Deck, (a) no
Parking Deck Spaces shall be designated or assigned for the exclusive use of any
Permittee without the prior written consent of Tower I Owner and Tower II Owner,
each acting in their sole discretion (b) all Parking Deck Spaces shall be
undesignated and available to all Permittees of Tower I Owner and Tower II Owner
on a first-come, first-serve basis, and (c) no Owner, except the Owner of the
Hotel/Condo Tract as to the Hotel/Condo Spaces, the Owner of the Tower I Tract
as to the Tower I Reserved Spaces, the Owner of the Tower II Tract as to the
Tower II Reserved Spaces, and Tower I Owner, Tower II Owner and Hotel/Condo
Owner as to the Shared Spaces shall have the right to exclusive possession of
any Parking Deck Spaces, it being the intent of the Owners that all Parking Deck
Spaces, except the Hotel/Condo Spaces, Tower I Reserved Spaces, Tower II
Reserved Spaces, Shared Spaces, and Visitor Parking Spaces (including the
Designated Visitor Spaces) in the Parking Deck, shall be pooled for the use of
all Permittees of Tower I Owner and Tower II Owner; provided that Tower I Owner
and Tower II Owner shall have the right, without Hotel/Condo Owner's approval,
to designate Parking Deck Spaces, other than the Hotel/Condo Spaces and the
Shared Spaces, for exclusive use, with the approval of both Tower I Owner and
Tower II Owner, each acting in its sole discretion.
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(b) During Normal Business Hours, Hotel/Condo Owner shall have no
right to use any Parking Deck Spaces, including the Visitor Parking Spaces,
other than the Hotel/Condo Spaces. After Normal Business Hours, only for as long
as the Hotel/Condo Improvements are a Hotel, Hotel/Condo Owner shall be
entitled, at no cost, to use on a non-exclusive basis (i) the Hotel Shared
Spaces for purposes of providing valet parking to Hotel/Condo Owner Permittees,
and (ii) Visitor Parking Spaces (excluding the Designated Visitor Spaces) in the
Parking Deck that are then available from time to time solely for purposes of
providing Hotel Permittees parking for functions occurring at the Hotel (but not
for overnight guests), provided all such use of Hotel Shared Spaces and Visitor
Parking Spaces (excluding the Designated Visitor Spaces) must terminate by 7:00
a.m. on weekdays and by 8:00 a.m. on Saturdays. After Normal Business Hours,
only for so long as the Hotel/Condo Improvements are a Condo, Hotel/Condo Owner
shall be entitled, at no cost, to use on a nonexclusive basis the Condo Shared
Spaces for purposes of providing valet parking to Hotel/Condo Owner Permittees,
provided all such use of Condo Shared Spaces must terminate by 7:00 a.m. on
weekdays and by 8:00 a.m. on Saturdays. Hotel/Condo Owner shall be responsible
for implementing the valet parking for the use of the Hotel Shared Spaces or the
Condo Shared Spaces, as applicable, at Hotel/Condo Owner's sole cost and
expense. Hotel/Condo Owner shall reasonably cooperate with Common Area Manager
to establish a system to enable Common Area Manager to monitor the use of such
spaces. If Hotel/Condo Owner violates the provisions of this subsection (b) as
to the use of the Shared Spaces for valet purposes more than three (3) times in
any twelve (12) month period and each such time Tower I Owner or Tower II Owner
furnishes written notice to Hotel/Condo Owner detailing such violation, then
Tower I Owner or Tower II Owner shall have the right to require that Tower I
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Owner implement additional security to monitor the use of the Shared Spaces and
the cost of the additional security shall be Hotel/Condo Owner's sole
responsibility. Hotel/Condo Owner shall be obligated to pay for such additional
security no more frequently than monthly within ten (10) days of receipt of an
invoice therefor from Common Area Manager. Thereafter, if the Hotel/Condo Owner
does not violate the provisions of this subsection (b) for a period of six (6)
months, Hotel/Condo Owner shall have the right, which right shall be exercised
by furnishing written notice to Tower I Owner and Tower II Owner, to cause
Common Area Manager to terminate the additional security (however, the
provisions of the two (2) immediately preceding sentences shall apply to any
subsequent violations).
(c) During Normal Business Hours, each of Tower I Owner and Tower II
Owner shall be entitled, at no cost, to use on a non-exclusive basis twelve (12)
of the Hotel Shared Spaces for purposes of providing parking spaces to Tower I
Permittees and Tower II Permittees provided all such use shall terminate by 6:00
p.m. on weekdays, other than Holidays. During Normal Business Hours, each of
Tower I Owner and Tower II Owner shall be entitled, at no cost, to use on a
non-exclusive basis ten (10) of the Condo Shared Spaces for purposes of
providing parking spaces to Tower I Permittees and Tower II Permittees provided
all such use shall terminate by 7:00 p.m. on weekdays, other than Holidays.
(d) The spaces located under Tower I in the Tower I Parking Garage
shall not be Parking Deck Spaces, shall not be part of the Parking Deck, and
shall be used only by Permittees of Tower I Owner.
(e) Notwithstanding the provisions of Section 5.1(e), Tower I Owner
and Tower II Owner shall each have the right to designate up to an aggregate of
ten (10) of the Visitor Parking Spaces for use solely by designated Permittees
of Tower I and Tower II, respectively (each such space so designated by Tower I
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Owner and/or Tower II Owner, a "Designated Visitor Space"). Tower I Owner and
Tower II Owner shall each only be permitted to designate Designated Visitor
Spaces in the locations identified for each respective Tower on Exhibit P
attached hereto and made a part hereof (the permitted location as applicable for
Tower I or Tower II, as applicable, is hereinafter referred to as the
"Applicable Tower Area"); however, Tower I Owner and Tower II Owner shall each
have the right to change the location of the Applicable Tower Area for its
Tower, subject to the prior written consent of Tower II Owner and Tower I Owner,
respectively. Such designation of a particular Designated Visitor Space in the
Applicable Tower Area shall be made by the Owner designating the space
furnishing notice to Tower I Owner of the name of the Permittee to be placed on
the sign on the Designated Visitor Space and the location of the Designated
Visitor Space in the Applicable Tower Area at least thirty (30) days prior to
the date such Owner desires the designation of the applicable Designated Visitor
Space to be effective. Common Area Manager shall install signs on the Designated
Visitor Spaces (all of which signs will utilize consistent graphics and
materials) at the cost of the Owner designating the space. The Owner which
designates a particular Designated Visitor Space shall be entitled to charge a
fee for such Designated Visitor Space and to retain such fee consistent with
Sections 5.4(b) and (c) below. Common Area Manager agrees to exercise reasonable
efforts to monitor Designated Visitor Spaces to determine whether such spaces
are being used by the designated Permittees and to tow or otherwise remove the
vehicles in violation of this Section 5.3(e) as a Parking Deck Expense.
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Section 5.4 Fees for Parking Deck Spaces
(a) Tower I Owner and Tower II Owner shall mutually determine the
fees for hourly or daily parking of visitors using the Visitor Parking Spaces
(excluding the Designated Visitor Spaces). The fee schedule adopted by the Tower
I Owner and the Tower II Owner shall be competitive with the fees being charged
by comparable parking facilities located in the North Dallas Area and shall be
revised from time to time as the Tower I Owner and Tower II Owner mutually deem
appropriate.
(b) Each Owner shall have the right to grant to any Permittee (other
than hourly or daily parking) the right to park in Parking Deck Spaces it has
the right to allocate and use at a fee determined by such Owner.
(c) All fees shall be collected by the applicable Owner who has the
right to allocate and use such Parking Deck Spaces; provided that Common Area
Manager shall collect daily or hourly parking fees from the Visitor Parking
Spaces (excluding the Designated Visitor Spaces), except the Permittees of
Hotel/Condo Owner pursuant to Section 5.3(b)(ii). Common Area Manager shall
apply such daily or hourly parking fees to Parking Deck Expenses.
(d) For as long as (i) the Hotel/Condo Improvements are a Hotel, and
Hotel/Condo Owner has the right to use the Hotel Shared Spaces and Visitor
Parking Spaces, or, (ii) the Hotel/Condo Improvements are a Condo, and
Hotel/Condo Owner has the right to use the Condo Shared Spaces, Hotel/Condo
Owner shall not be required to pay any charge for use of the Shared Spaces or
the Visitor Parking Spaces (excluding the Designated Visitor Spaces) after
Normal Business Hours pursuant to Section 5.3(b); provided Hotel/Condo Owner or
its Permittees shall pay to Common Area Manager the fees then being charged for
the use of Visitor Parking Spaces (excluding the Designated Visitor Spaces) for
any Visitor Parking Spaces used by Hotel/Condo Owner or its Permittees after
7:00 a.m. on weekdays and 8:00 a.m. on Saturday in violation of Section 5.3(b).
In addition, Common Area Manager shall have the right, at Hotel/Condo Owner's
cost and expense, to tow, or otherwise remove, vehicles parked in violation of
Section 5.3(b). If the Hotel/Condo Improvements are a Condo, Hotel/Condo Owner
and its Permittees shall have no right to use Hotel Shared Spaces or Visitor
Parking Spaces.
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Section 5.5 Parking Ratios
(a) The following minimum parking ratios shall be maintained with
respect to construction of any Improvements on the Site:
(i) at least three and two-tenths (3.2) parking spaces for
each one thousand (1,000) square feet of Net Rentable Area contained
in any office building constructed on the Tower II Tract;
(ii) at least three and fifteen-hundredths (3.15) parking
spaces for each one thousand (1,000) square feet of Net Rentable
Area contained in any office building constructed in the Tower I
Tract;
(iii) at least one (1) parking space for each hotel guest room
contained in any hotel(s) constructed on the Hotel/Condo Tract, up
to a maximum of two hundred forty (240) parking spaces
notwithstanding that the Hotel may contain more than two hundred
forty (240) hotel guest rooms; and
(iv) up to a maximum of two hundred forty (240) parking spaces
if the Hotel/Condo Improvements are a Condo.
(b) The Parking Deck, subject to Section 5.11 hereof, contains
approximately two thousand three hundred (2,300) Parking Deck Spaces and the
Tower I Parking Garage contains seventy (70) spaces, which together satisfy all
municipal parking requirements applicable to the Site and the anticipated
Improvements as long as (i) Tower I contains no more than 379,518 square feet of
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Net Rentable Area, (ii) Tower II contains no more than 306,244 square feet of
Net Rentable Area, and (iii) either the Hotel contains no more than two hundred
fifty (250) guest rooms, or the Condo contains no more than one hundred forty
(140) units. For purposes of satisfying such municipal parking requirements, the
requirements of the Zoning Ordinance, and the foregoing ratios, (i) the Visitor
Parking Spaces located in the Parking Deck are allocated to the Tower I Tract
and the Tower II Tract based on the relative Net Rentable Area of Tower I and
Tower II, and (ii) the Hotel Shared Spaces will be allocated to both (A)
twenty-four (24) to the Hotel/Condo Tract (for as long as the Hotel/Condo
Improvements constitute a Hotel) and (B) twelve (12) each to the Tower I Tract
and the Tower II Tract, and (iii) the Condo Shared Spaces will be allocated to
both (A) twenty (20) to the Hotel/Condo Tract (for as long as the Hotel/Condo
Improvements constitute a Condo) and (B) ten (10) each to the Tower I Tract and
the Tower II Tract, with the result that the Hotel/Condo Tract will be deemed to
have obtained required parking space ratios based on the after Normal Business
Hour use of the Shared Spaces pursuant to Section 5.3(b), and the Tower I Tract
and the Tower II Tract shall be deemed to have obtained required parking space
ratios based on the Normal Business Hour use by each of Tower I Owner and Tower
II Owner of the applicable number of the Shared Spaces pursuant to Section
5.3(c).
(c) To the extent that the foregoing parking ratio requirements
cannot be met on the Site or any Owner's Allocable Share of spaces pursuant to
Section 5.6 is not sufficient to meet the foregoing parking ratio requirements
on the Site because of variations from the limitations described in Section
5.5(b), or changes in the kinds of Improvements, the Owner or Owners who propose
construction or alteration of any Improvements which will cause the aforesaid
limitations to be exceeded or who has an insufficient Allocable Share of Parking
Deck Spaces shall obtain off-Site parking sufficient to meet such requirements,
to the extent permitted by applicable law.
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Section 5.6 Allocation of Spaces
(a) Except as otherwise expressly provided herein to the contrary,
no Owner shall make commitments of Parking Deck Spaces in excess of its
Allocable Share of Parking Deck Spaces, except that (i) Hotel/Condo Owner may
allocate and make commitments for the Shared Spaces only after Normal Business
Hours in accordance with Section 5.3(b)(i), (ii) Tower II Owner may allocate and
make commitments for twelve (12) of the Hotel Shared Spaces or ten (10) of the
Condo Shared Spaces, as applicable, during Normal Business Hours in accordance
with Section 5.3(c), (iii) Tower I Owner may allocate and make commitments for
twelve (12) of the Hotel Shared Spaces or ten (10) of the Condo Shared Space, as
applicable, during Normal Business Hours in accordance with Section 5.3(c), and
(iv) Hotel/Condo Owner may, if the Hotel/Condo Improvements constitute a Hotel,
allocate and make commitments for Visitor Parking Spaces (excluding the
Designated Visitor Spaces) after Normal Business Hours in accordance with
Section 5.3(b)(ii). The Allocable Share of the Hotel/Condo Owner exceeds the
number of Hotel/Condo Spaces by the number of the Shared Spaces. Hotel/Condo
Owner may allocate and make commitments only for the Hotel/Condo Spaces during
or after Normal Business Hours. The Allocable Share of the Tower II Owner does
not include any of the Shared Spaces. The Allocable Share of the Tower I Owner
does not include any of the Shared Spaces. The Allocable Shares are, subject to
Section 5.11 hereof, as follows: (i) Tower I Owner's Allocable Share shall be
equal to three and fifteen-hundredths (3.15) Parking Deck Spaces for each one
thousand (1,000) square feet of Net Rentable Area contained in Tower I minus the
number of parking spaces in the Tower I Parking Garage, minus twelve (12) of the
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Hotel Shared Spaces if the Hotel/Condo Improvements constitute a Hotel or ten
(10) of the Condo Shared Spaces if the Hotel/Condo Improvements constitute a
Condo, and minus eight (8) surface Visitor Parking Spaces; (ii) Tower II Owner's
Allocable Share shall be equal to three and two-tenths (3.2) Parking Deck Spaces
for each one thousand (1,000) square feet of Net Rentable Area contained in
Tower II, minus twelve (12) of the Hotel Shared Spaces if the Hotel/Condo
Improvements constitute a Hotel or ten (10) of the Condo Shared Spaces if the
Hotel/Condo Improvements constitute a Condo, and minus eight (8) surface Visitor
Parking Spaces; (iii) Hotel/Condo Owner's Allocable Share shall, if the
Hotel/Condo Improvements constitute a Hotel, be equal to one (1) Parking Deck
Space for each guest room contained in the Hotel/Condo Improvements, not to
exceed two hundred forty (240); (iv) Hotel/Condo Owner's Allocable Share shall,
if the Hotel/Condo Improvements constitute a Condo, be equal to two hundred
forty (240) parking spaces; and (v) any Parking Deck Spaces remaining after the
allocations set forth in clauses (i), (ii), and (iii) shall be allocated between
Tower I Owner and Tower II Owner in proportion to the relative Net Rentable
Areas of Tower I and Tower II and the Allocable Share of Tower I Owner and Tower
II Owner shall be increased by such Parking Deck Spaces allocated as provided in
this clause (v); provided that no Owner's Allocable Share shall be increased as
a result of such Owner's construction of Improvements in excess of the size
limitations set forth in Section 5.5(b). Upon the completion of Hotel/Condo
Improvements, the Owners will execute an agreement specifying the Allocable
Shares of Parking Deck Spaces.
(b) Notwithstanding the foregoing, each of Tower I Owner and Tower
II shall be entitled to "oversell" their respective Allocable Shares of Parking
Deck Spaces (other than Tower I Reserved Spaces and Tower II Reserved Spaces) by
up to eighteen percent (18%) of such Allocable Shares or such higher percentage
as may be agreed upon by Tower I Owner and Tower II Owner, each acting in their
sole discretion. Hotel/Condo Owner shall not have the right to oversell any
Parking Deck Spaces, including the Hotel/Condo Spaces.
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(c) If any Owner (hereinafter called the "Defaulting Owner") makes
commitments for Parking Deck Spaces in excess of its Allocable Share thereof as
set forth above (subject to Sections 5.3(b), 5.3(c), and 5.6(b)), then, such
Defaulting Owner, at its sole cost and expense, shall cancel any
over-commitments immediately. Any commitments for Parking Deck Spaces by a
Parking Deck Owner in excess of its Allocable Share (subject to Sections 5.3(b),
5.3(c), and 5.6(b)) thereof as set forth herein shall be void ab initio as
against the other Parking Deck Owners and such commitments shall be canceled
seriatim until the total number of commitments by the Defaulting Owner is
reduced to a number equal to or less than its Allocable Share (subject to
Sections 5.3(b), 5.3(c), and 5.6(b)) of Parking Deck Spaces as hereinabove
provided.
(d) In the event of Condemnation resulting in the permanent loss of
any Parking Deck Spaces, the Allocable Share of Parking Deck Spaces of each
Parking Deck Owner shall be reduced in proportion to their respective Allocable
Shares by the number of lost Parking Deck Spaces so that each Owner shall have
the same proportionate share of available Parking Deck Spaces remaining after
such Condemnation as it had immediately prior to such Condemnation.
(e) To the extent permitted by applicable law, any Owner shall be
entitled to construct off-Site parking and make commitments of such parking as
it deems appropriate and nothing herein shall limit or restrict the granting of
any commitments as to such off-Site parking.
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(f) Any Owner whose employees park in the Parking Deck shall be
required to use part of such Owner's Allocable Share of Parking Deck Spaces for
such employees subject to Sections 5.3(b) and 5.3(c). In particular, and without
limitation, Hotel/Condo Owner's employees must, if they park in the Parking
Deck, park in the Hotel/Condo Spaces, subject to Section 5.3(b).
(g) Upon the request of any Parking Deck Owner, each Parking Deck
Owner shall deliver to the other Parking Deck Owners a list of all Permittees
(other than Hotel guests) to whom it has issued parking permits and/or access
cards to the Parking Deck, together with a list of such Permittees' (other than
Hotel guests) license tags. Without limiting the foregoing, if the Hotel/Condo
Improvements constitute a Condo, Hotel/Condo Owner shall provide to Common Area
Manager from time to time a list of the parking permits and/or access cards
issued with respect to the Permittees of the Condo. In addition, each Parking
Deck Owner may request from Common Area Manager from time to time a list of the
parking permits and/or access cards actually used from time to time to the
extent Common Area Manager has such information available to it.
(h) If, due to alterations or improvements required by law, any
Parking Deck Spaces become unavailable, either temporarily or permanently, then
the Allocable Shares of all Parking Deck Owners shall be reduced in proportion
to their respective Allocable Shares by the number of the unavailable Parking
Deck Spaces for the period of such unavailability.
Section 5.7 Responsibilities Regarding Parking Deck
(a) Common Area Manager shall perform, or cause the applicable
parking operator or lessee to perform, the following services on behalf of the
Parking Deck Owners (the costs of which shall be Parking Deck Expenses):
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(i) enforce the Parking Deck Rules;
(ii) maintain the Parking Deck in good condition and repair in
such manner as will maintain the appearance of the Parking Deck in
accordance with First Class Standards, normal wear and tear
excepted;
(iii) reimburse Tower I Owner for the insurance obtained by
Tower I Owner pursuant to Section 5.7(b) below;
(iv) supervise the operator or lessee of the Parking Deck;
(v) pay Parking Deck Expenses from the funds provided by the
Parking Deck Owners;
(vi) remove all papers, debris, filth and refuse and wash or
thoroughly sweep all paved areas; and
(vii) clean and maintain lighting fixtures and relamp as
needed.
(b) Tower I Owner shall maintain in effect such hazard, liability,
garage keeper's, workers' compensation and other insurance policies as required
pursuant to Section 14.7 below, the cost of which shall be a Parking Deck
Expense. Common Area Manager shall reimburse Tower I Owner for the cost of any
such insurance within thirty (30) days of receipt of any invoice therefor from
Tower I Owner.
Section 5.8 Hours of Operation.
Except as permitted in Section 5.1 and Section 16.5, the Parking
Deck shall be kept open twenty-four (24) hours a day, seven (7) days a week,
fifty-two (52) weeks a year throughout the Term of this REA. The below grade
levels of the Parking Deck shall be kept lighted twenty-four (24) hours a day,
seven (7) days a week, fifty-two (52) weeks a year throughout the Term of this
REA. The above grade levels of the Parking Deck shall be lighted after dusk,
provided that, after Normal Business Hours, such lighting shall be reduced to a
level consistent with First Class Standards for parking garages after normal
business hours, seven (7) days a week, fifty-two (52) weeks a year, throughout
the Term of the REA.
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Section 5.9 Easements for Use of the Parking Deck.
(a) Subject to the provisions of this REA, each Parking Deck Owner
hereby grants to the Tower I Owner, Tower II Owner, and Hotel/Condo Owner for
their benefit and the benefit of each of their respective Tracts, non-exclusive
easements in the Parking Deck for:
(i) ingress to and egress from such Owner's Tract; and
(ii) circulation, passage and parking of vehicles; and
(iii) circulation, passage and accommodation of pedestrians.
(b) In addition, each Parking Deck Owner hereby grants to (i)
Hotel/Condo Owner an exclusive easement to use (A) the Hotel/Condo Spaces at all
times, and, (B) the Shared Spaces after Normal Business Hours, for parking of
vehicles and non-exclusive easements to use the ramps, driveways and walkways on
the Parking Tract for the purposes of pedestrian and vehicular ingress to and
egress from the Hotel/Condo Spaces; (ii) Tower II Owner an exclusive easement to
use the Tower II Reserved Spaces at all times, and twelve (12) of the Shared
Spaces if the Hotel/Condo Improvements constitute a Hotel or ten (10) Condo
Shared Spaces if the Hotel/Condo Improvements constitute a Condo, during Normal
Business Hours, for parking of vehicles and non-exclusive easements to use the
ramps, driveways, and walkways on the Parking Deck for the purposes of
pedestrian and vehicular ingress to and egress from the Tower II Reserved
Spaces; and (iii) Tower I Owner an exclusive easement to use the Tower I
Reserved Spaces at all times, and twelve (12) of the Hotel Shared Spaces during
Normal Business Hours, for parking of vehicles and non-exclusive easements to
use the ramps, driveways, and walkways on the Parking Tract for the purposes of
pedestrian and vehicular ingress and egress from Tower I Reserved Spaces.
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(c) Subject to the provisions of this REA, the Parking Deck Owners
hereby grant to Tower I Owner a non-exclusive easement through the Parking Deck
and use of the ramps, driveways and walkways on the Parking Tract for purposes
of pedestrian and vehicular ingress to and egress from, and circulation,
passage, and accommodation of vehicles and pedestrians to and from the parking
areas located in the Tower I Parking Garage under Tower I and the Parking Deck.
(d) Except as otherwise provided in this REA, including Sections
5.1(b), 5.1(c), 5.2(c), and 5.11, (i) no changes shall be made in the Parking
Deck or in the location or design of the Parking Deck; and (ii) no curbs,
fences, walls, planters, guard rails or other obstruction shall be erected or
permitted to remain on the Parking Deck if such would adversely affect the
orderly flow of vehicular and pedestrian traffic; provided, however, that
nothing herein shall prevent (A) Common Area Manager, or the applicable parking
operator from erecting and maintaining toll booths, gates and other control
devices at the entrances and exits to the Parking Deck, including a gate between
the Parking Deck and the Tower I Parking Garage, to insure the use thereof by
authorized Permittees and the collection of fees due for use of the Parking
Deck; and (B) if the Hotel/Condo Improvements constitute a Condo, the
Hotel/Condo Owner from erecting and maintaining fences and security barriers
approved by Tower I Owner and Tower II Owner in accordance with Sections 5.1(b)
and 5.2(c).
(e) The Easements granted under this Section shall be perpetual.
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Section 5.10 Parking Deck Rules
The Parking Deck shall be operated in accordance with such uniform,
non-discriminatory rules and regulations as may be adopted from time to time by
the Parking Deck Owners ("Parking Deck Rules"). The initial Parking Deck Rules
approved by the Owners are attached hereto as Schedule I.
Section 5.11 Expansion of Parking Deck
(a) The Parking Deck has five (5) above grade levels and two (2)
below grade levels, with the fifth (5th) level partially completed. The Parking
Deck Owners hereby grant to Tower I Owner for the benefit of Tower I Owner and
the Tower I Tract the right and non-exclusive easement necessary to add one (1)
level to the Parking Deck during the Term of this REA. The Parking Deck Owners
hereby grant to Tower II Owner for the benefit of Tower II Owner and the Tower
II Tract the right and non-exclusive easement necessary to complete the fifth
(5th) level of the Parking Deck, and add one (1) level to the Parking Deck
during the term of this REA. The Hotel/Condo Owner shall not have any right to
add Parking Deck Spaces to the Parking Deck. The foregoing rights shall be
exercised, if at all, in accordance with the following terms and conditions:
(i) Any additional Parking Deck Spaces added to the Parking
Deck ("Additional Improvements") shall be located in the air space
above the Parking Deck and shall be substantially architecturally
identical to the above-grade levels of the Parking Deck existing at
the time such Parking Deck Spaces are added.
(ii) Any ramp or ramps contained in such additional levels of
parking shall be of substantially identical design and located
vertically above the existing ramps then existing in the Parking
Deck.
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(iii) As and when any such additional levels of parking are
added to the Parking Deck and opened for operation, same shall be
and hereby are made a part of the Parking Deck and shall be operated
and maintained as part of the Parking Deck in accordance with the
terms and provisions of this REA.
(iv) The Allocable Share of Parking Deck Spaces of the Owner
that has constructed such additional parking shall increase by the
number of the Parking Deck Spaces added as a result of the expansion
of the Parking Deck. The Tower I Reserved Spaces and the Tower II
Reserved Spaces shall also be proportionately increased if the
Allocable Share of the Tower I Owner or the Tower II Owner, as the
case may be, is increased, but such additional Tower I Reserved
Spaces and Tower II Reserved Spaces shall be located in the
Additional Improvements in a location approved by Tower I Owner and
Tower II Owner, each acting in its sole discretion. Each Owner's
share of Parking Deck Expenses shall be recalculated to an amount
for each Owner obtained by dividing each such Owner's Allocable
Share of Parking Deck Spaces (as increased for the Owner who has
constructed additional Parking Deck Spaces) by the total number of
Parking Deck Spaces (as increased by the number of Parking Deck
Spaces so added).
(v) The Owner who proposes to construct any Additional
Improvements shall, prior to commencing construction of any
Additional Improvements:
(1) Submit to the Parking Deck Owners a certificate in form
and substance satisfactory to such Owners from an
architect or engineer satisfactory to such Owners
certifying that the Additional Improvements can be
structurally supported by the existing columns, pillars
and/or caissons ("Support Structures") located on the
Parking Tract or that such Support Structures can be
augmented, enlarged or supplemented in such a manner as
to safely provide the requisite support for the
Additional Improvements without loss (except temporarily
during construction or unless replaced by the addition
of new Parking Deck Spaces) of any Parking Deck Spaces
in the Parking Deck;
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(2) Submit to the Parking Deck Owners plans and
specifications for the Additional Improvements prepared
by a licensed architect and licensed engineer;
(3) Obtain all requisite building permits and licenses from
all Governmental Agencies and keep same in full force
and effect throughout the period of construction of the
Additional Improvements;
(4) Give the Parking Deck Owners at least sixty (60) days'
prior written notice of such Owner's intention to
commence construction of the Additional Improvements;
and
(5) Obtain and submit to the Parking Deck Owners a
guaranteed maximum price construction contract and such
payment and performance bonds or other instruments as
such Owners may reasonably require to assure the
completion of the Additional Improvements free from any
suppliers', mechanics' laborers', materialmen's or other
statutory liens.
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(vi) If an Owner exercises the right and Easement to construct
any Additional Improvements in the air space herein provided, the
Owner who proposes to construct such Additional Improvements shall
indemnify and hold the Parking Deck Owners, their successors and
assigns, harmless from all costs, expenses, liabilities, obligations
and damages arising out of, related to or connected with the
construction of the Additional Improvements and, without limiting
the generality of the foregoing, such Owner shall promptly pay or
cause to be removed of record any and all liens filed against the
Parking Tract, the Parking Deck or the Additional Improvements
resulting from, relating to or arising out of construction,
maintenance or operation of the Additional Improvements. Such Owner
shall provide Parking Deck Owners with such evidence (including,
without limitation, evidence of insurance coverages) of its ability
to discharge its obligations hereunder as Parking Deck Owners may
reasonably require prior to commencing construction of the
Additional Improvements.
(vii) If, as a result of the exercise by an Owner of the right
and easement to construct any Additional Improvements, other
alterations or improvements are required to the Parking Deck or any
other Improvements, such alterations or improvements must be
approved by the affected Owners, and the Owner constructing the
Additional Improvements shall pay all costs associated with all such
alterations and improvements.
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(viii) Any Additional Improvements shall be part of the
Parking Deck, owned by the Parking Deck Owners in the same Undivided
Interests, shall be maintained, insured, restored or razed in
accordance with the provisions of this REA.
(ix) The Taxes applicable to Additional Improvements shall be
added to and paid as Parking Deck Expenses.
(x) The vertical clearance between the top surface of the
uppermost level of the Parking Deck and the bottom surface of the
lowermost level of any additional levels of parking added shall be
substantially identical to the vertical clearance between the bottom
surface of the uppermost level of the Parking Deck and the top
surface of the next lower level of the Parking Deck and a like
vertical clearance shall be maintained between all levels of
additional parking added in the air space above the Parking Deck.
(xi) If Additional Improvements are constructed, the Owner
constructing same shall remove the lighting fixtures then located on
the uppermost floor of the Parking Deck and install in lieu thereof
lighting fixtures on all new levels of the expanded garage,
including the uppermost level of the Parking Deck, substantially
identical to the lighting used on the other floors of the Parking
Deck.
(xii) If Additional Improvements are constructed, the Owner
who constructs same shall have the right to use the uppermost level
of the Parking Deck (or of any additional parking levels added
thereto as herein provided) for staging reasonably necessary for
construction of the Additional Improvements; provided, however, that
such Owner shall (A) diligently pursue completion of such portion of
the Additional Improvements as may be needed to provide a staging
area for the balance thereof, and (B) promptly relocate its staging
area to the Additional Improvements as soon as space for such
operations is available therein so as to minimize disruption of the
use and operation of the Parking Deck.
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(xiii) Notwithstanding the foregoing, the Owner's right to use
the uppermost level or any other portion of the Parking Deck (as
same may be expanded) for construction staging shall be contingent
upon such Owner (A) reducing the number of Parking Deck Spaces that
it or its Permittees uses or has the right to allocate by the number
of Parking Deck spaces so lost, (B) by providing off-site parking
sufficient to its Permittees to replace during staging any Parking
Deck Spaces lost as a result of such staging, and (C) if the spaces
so lost exceed the number of Parking Deck Spaces that it or its
Permittees uses or has the right to allocate, by providing off-site
parking satisfactory to the Owners, to replace the Parking Deck
Spaces so lost as a result of such staging to the extent such lost
Parking Deck Spaces actually were being used.
(xiv) If a zoning variance is required to increase the height
of the Parking Deck or allow relief from the current set back
requirements applicable to additional levels of the Parking Deck,
Tower I Owner and Tower II Owner shall not unreasonably withhold
their approval of such zoning variance and will cooperate with each
other to obtain any such zoning variance. Any other zoning variance
will require the approval of Tower I Owner and Tower II Owner, which
may be given or withheld in their sole discretion. Hotel/Condo Owner
shall have no right to approve or disapprove any zoning increase
necessary to expand the Parking Deck.
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(xv) Tower I Owner may, at its option and in its sole
discretion, assign to Tower II Owner, without the consent of the
Parking Deck Owners, the right and easement granted to Tower I Owner
to construct the one (1) additional level to the Parking Deck. Tower
II Owner may, at its option and in its sole discretion, assign to
Tower I Owner, without the consent of the Parking Deck Owners, the
right and easement granted to Tower II Owner to complete the fifth
(5th) level of the Parking Deck and to construct the one (1)
additional level to the Parking Deck.
(xvi) During and after the term of the Xxxxx Lease, Tower II
Owner shall have the right, without Tower I Owner's consent, to
complete the fifth (5th) level of the Parking Deck. During the term
of the Xxxxx Lease, Tower II Owner shall not exercise its right to
add one (1) additional floor to the Parking Deck without Tower I
Owner's consent, which may be given or withheld in its sole
discretion, if, but only if, the consent of the tenant is required
in order for Tower I Owner to consent to such addition. After the
expiration or termination of the Xxxxx Lease, or at any time that
the tenant under the Xxxxx Lease does not have the right to approve
such addition, Tower II Owner shall have the right, without Tower I
Owner's consent, to add such one (1) additional floor to the Parking
Deck. Tower I Owner shall not amend, modify, or waive the Xxxxx
Lease as it relates to the right to construct additional floors for
the Parking Deck without Tower II Owner's written consent, which may
be given or withheld in its sole discretion.
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(b) Parking Deck Owners hereby grant to the Owner electing to
construct Additional Improvements, the perpetual, exclusive right, privilege and
easement to use the Support Structures contained in or within the Parking Deck
for structural support for the Additional Improvements and an exclusive easement
to connect the Support Structures for the Additional Improvements to the Support
Structures for the Parking Deck.
(c) The Parking Deck Owners hereby grant to the Owner electing to
construct Additional Improvements, a perpetual, exclusive right, privilege and
easement to extend the stairways and elevator shafts ("Shafts") serving the
Parking Deck so that said Shafts serve such additional levels of parking as may
be added above the Parking Deck.
(d) Subject to the provisions of this REA, the Parking Deck Owners
hereby grant to the Owner electing to construct Additional Improvements, the
nonexclusive perpetual right, privilege and easement to use for pedestrian and
vehicular access, ingress, egress and regress the driveways, walkways and ramps
located in the Parking Deck from time to time for purposes of access in and out
of any additional levels of parking included in the Additional Improvements and
the non-exclusive, perpetual easement to use any and all stairways and elevators
located in the Parking Deck from time to time for purposes of pedestrian access,
ingress, egress and regress in and out of any additional levels of parking
included in the Additional Improvements.
(e) The Parking Deck Owners hereby grant to the Owner electing to
construct Additional Improvements, the nonexclusive, perpetual right and
easement to install, maintain, relocate, repair and replace usual utility
facilities, such as, but not limited to, conduits, pipes and/or wires for water,
electricity, gas, telephone, storm and sanitary sewers over, through and under
the Parking Tract and the Parking Deck as are reasonably required to provide
utility services to the Additional Improvements, including the right to
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penetrate floors, walls, and other structural improvements; provided, however,
that the Parking Deck Owners shall have the right to approve the location of all
utility lines penetrating the Parking Deck, and provided further, however, that
Parking Deck Spaces, traffic ways and pedestrian doorways and stairways shall
not be blocked without the prior written consent of the Parking Deck Owners.
Notwithstanding the foregoing, anyone exercising the rights created hereby shall
(i) give sixty (60) days' prior written notice of the intent to exercise such
right to the then Parking Deck Owners, (ii) repair any damage to the Site and/or
any Improvements resulting from such exercise, (iii) indemnify and hold harmless
the Parking Deck Owners against claims, liabilities and expenses (including
reasonable attorneys' fees) resulting from the exercise of such right, and (iv)
in the event of the relocation or abandonment of the pipes, lines, conduits,
etc. installed as a result of such exercise, remove such old or abandoned pipes,
lines, conduits, etc., and restore the Parking Deck and/or Parking Tract to its
condition prior to such exercise, reasonable wear and tear excepted.
(f) The Easements granted under this Section to construct Additional
Improvements shall terminate upon the expiration of the Term of this REA. The
Easements to maintain and operate the Additional Improvements shall be
perpetual.
Section 5.12 Use By Adjacent Owners
The Parking Deck Owners hereby grant to the owner of the land
adjacent to, and south of, the Site rights to use up to thirty (30) Visitor
Parking Spaces located in the Parking Deck on Saturdays only for as long as
required for such site to comply with applicable legal requirements. Any fees
charged to such users to recover actual cost of such use shall be applied to
Parking Deck Expenses. If required to do so for such site to comply with
applicable legal requirements, a curb cut may be constructed to allow for the
passage of motor vehicles from such site to the Parking Deck.
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Section 5.13 Decisions on Behalf of Parking Deck Owners
Decisions required of the Parking Deck Owners under this REA,
including Article V, Article VIII, or any other Article of this REA, shall be
made by all of the Parking Deck Owners, provided that, as long as Hotel/Condo
Owner has access to and from, and use of, the Hotel/Condo Spaces, and the result
of the decision to be made will not materially and adversely affect the access
to and from, and use of, the Hotel/Condo Spaces, decisions required of the
Parking Deck Owners, including decisions to be made with respect to expansion of
the Parking Deck pursuant to Section 5.11, shall be made by only Tower I Owner
and Tower II Owner.
ARTICLE VI
OPERATION OF THE LOADING DOCK
Section 6.1 Operation of the Loading Dock and Loading Dock Access
Area
Throughout the term of this REA, the Loading Dock and the entrances
and exits and turning bay serving the Loading Dock and the Loading Dock Access
Area shown on the Plans shall be maintained and operated for the nonexclusive,
joint use of the Tower I Owner and Tower II Owner, and their respective
Permittees. Hotel/Condo Owner and its Permittees shall have no right to use the
Loading Dock Tract, the Loading Dock, or Loading Dock Access Area. Use of the
Loading Dock, the entrances, exits and turning bay, and the Loading Dock Access
Area shall be in accordance with the terms of this REA and such uniform,
nondiscriminatory rules and regulations ("Loading Dock Rules") as may be adopted
and amended from time to time by the Tower I Owner with the consent of the Tower
II Owner. The initial Loading Dock Rules approved by the Tower I Owner and the
Tower II Owner are attached hereto as Schedule II. Without limiting the Loading
Dock Rules, each of Tower I Owner and Tower II Owner agree to make use of the
Loading Dock and the Loading Dock Access Area in a reasonable manner without
unreasonably interfering with the use of the Loading Dock or Loading Dock Access
Area by the other Owner.
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Section 6.2 Responsibilities Regarding Loading Dock and Loading Dock
Access Area
(a) Common Area Manager shall perform the following services on
behalf of Tower I Owner and Tower II Owner (the costs of which shall be Loading
Dock Expenses):
(i) enforce the Loading Dock Rules;
(ii) maintain the Loading Dock in good condition and repair in
a First Class Standards condition and in such manner as will
maintain the appearance of the Loading Dock in substantially the
same condition as when it is initially completed, normal wear and
tear excepted;
(iii) reimburse Tower I Owner for the insurance obtained by
Tower I Owner pursuant to Section 6.2(b) below;
(iv) pay Loading Dock Expenses from the funds provided by
Tower II Owner and Tower I Owner;
(v) remove all papers, debris, filth, and refuse and wash or
thoroughly sweep all paved areas; and
(vi) clean and maintain lighting fixtures and relamp as
needed.
(b) Tower I Owner shall maintain in effect such hazard, liability,
workers' compensation and other insurance policies as Tower I Owner, with the
consent of Tower II Owner, may require, the cost of which shall be a Loading
Dock Expense. Common Area Manager shall reimburse Tower I Owner for the cost of
any such insurance within thirty (30) days of receipt of an invoice therefor
from Tower I Owner.
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Section 6.3 Hours of Operation
Subject to Section 16.5, the entrances, exits, and turning bay
serving the Loading Dock and the Loading Dock Access Area shall be open and
available for use twenty-four (24) hours a day, seven (7) days a week, fifty-two
(52) weeks a year.
Section 6.4 Loading Dock Easements
(a) Subject to the provisions of this REA and the Loading Dock
Rules, Tower I Owner hereby grants to Tower II Owner for the benefit of Tower II
Owner and the Tower II Tract non-exclusive easements over and across the Loading
Dock, and the entrances, exits and turning bays located on the Loading Dock
Tract for ingress and egress to and from the Loading Dock.
(b) Except as otherwise provided in this REA, or as approved by
Tower I Owner and Tower II Owner, (i) no changes shall be made in the Loading
Dock entrances, exits or turning bays or in the location or design thereof; and
(ii) no curbs, fences, walls, planters, guard rails or other obstruction shall
be erected or permitted to remain on the Loading Dock entrances, exits, or
turning bays if such would adversely affect the orderly flow of vehicular and
pedestrian traffic and access to and use of the Loading Dock; provided, however,
that nothing herein shall prevent the erection and maintenance by Common Area
Manager, with the consent of Other Tower Owner, of gates or other control
devices at the entrances and exits to the Loading Dock to insure the use thereof
by authorized Permittees. Common Area Manager shall make all alterations and
improvements to the Loading Dock required by law, the costs of which shall be a
Loading Dock Expense.
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(c) The Easements granted under this Section shall be perpetual.
Section 6.5 Loading Dock Access Easement
(a) Subject to the provisions of this REA and the Loading Dock
Rules, Tower I Owner hereby grants to Tower II Owner for the benefit of Tower II
Owner and Tower II Tract, non-exclusive easements over and access to those
portions of the Loading Dock Access Area for ingress to and egress from the
Loading Dock.
(b) Except as provided in this REA, or as approved by Tower I Owner
and Tower II Owner, (i) no changes shall be made in the Loading Dock Access
Area; and (ii) no curbs, fences, walls, planters, guard rails or other
obstruction shall be erected or permitted to remain on the Loading Dock Access
Area if such would adversely affect Tower II Owner's use thereof for the
intended purposes thereof; provided, however, that nothing herein shall prevent
the erection and maintenance by Common Area Manager, with the consent of Other
Tower Owner, of gates or other control devices at the entrances and exits to the
Loading Dock Access Areas to insure the use thereof by authorized Permittees.
(c) Subject to Section 16.5, the Loading Dock Access Area shall be
open and available for use twenty-four hours a day, seven (7) days a week,
fifty-two (52) weeks a year.
(d) The Easements granted under this Section shall be perpetual.
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ARTICLE VII
ROOF TERRACE
Section 7.1 Operation of Roof Terrace
Throughout the term of this REA, the Roof Terrace and the entrance
thereto from Tower I shall be maintained and operated for the non-exclusive
joint use of Tower I Owner and Tower II Owner, and their respective Permittees.
Hotel/Condo Owner and its Permittees shall have no right to use the Roof
Terrace. Use of the Roof Terrace shall be in accordance with the terms of this
REA and such reasonable uniform, nondiscriminating rules and regulations
("Terrace Rules") as may be adopted by Common Area Manager with the consent of
Other Tower Owner. Without limiting the Terrace Rules, each of Tower I Owner and
Tower II Owner agree to make use of the Roof Terrace in a reasonable manner
without unreasonably interfering with the use of the Roof Terrace by the other
Owner.
Section 7.2 Responsibilities Regarding Roof Terrace
(a) Common Area Manager shall perform the following services on
behalf of Tower I Owner and Tower II Owner (the costs of which shall be Roof
Terrace Expenses except to the extent specifically excluded from the definition
thereof):
(i) enforce the Terrace Rules;
(ii) maintain the Roof Terrace in good condition and repair in
a First Class Standards condition and in such manner as will
maintain the appearance of the Roof Terrace in substantially the
same condition as when it is initially completed, normal wear and
tear excepted;
(iii) reimburse Tower I Owner for the insurance obtained by
Tower I Owner pursuant to Section 7.2(b) below;
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(iv) pay Roof Terrace Expenses from the funds provided by
Tower II Owner and Tower I Owner;
(v) remove all papers, debris, filth, and refuse (including
wet and dry garbage), clean tables and chairs, and wash or
thoroughly sweep all paved areas; and
(vi) clean and maintain lighting fixtures and relamp as
needed.
(b) Tower I Owner shall maintain in effect such hazard, liability,
workers' compensation and other insurance policies as Tower I Owner, with the
consent of Tower II Owner, may from time to time require, the cost of which
shall be a Roof Terrace Expense. Common Area Manager shall reimburse Tower I
Owner for the cost of any such insurance within thirty (30) days of receipt of
an invoice therefor from Tower I Owner.
Section 7.3 Hours of Operation
Subject to Section 16.5, the entrances to the Roof Terrace shall be
open and available for use during Normal Business Hours. Tower I Owner shall
have the right to limit access to the Roof Terrace during Normal Business Hours
in accordance with such reasonable security and restricted access measures as it
desires as long as the access required under Section 7.4 is permitted.
Section 7.4 Roof Terrace Easements
(a) Subject to the provisions of this REA and the Terrace Rules,
Tower I Owner hereby grants to Tower II Owner for the benefit of Tower II Owner
and the Tower II Tract non-exclusive easements over and across the Roof Terrace,
and the entrances and exits thereto, for ingress and egress to and from the Roof
Terrace and for use of the Roof Terrace in accordance with the Terrace Rules.
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(b) Except as otherwise provided in this REA, or as approved by
Tower I Owner and Tower II Owner, (i) no changes shall be made to the Roof
Terrace or in the location or design thereof; and (ii) no fences, walls, guard
rails or other obstruction shall be erected or permitted to remain on the Roof
Terrace if such would adversely affect the access to and use of the Roof
Terrace; provided, however, that nothing herein shall prevent the erection and
maintenance by Tower I Owner, with the consent of the Tower II Owner, of control
devices at the entrances and exits to the Roof Terrace to insure the use thereof
by authorized Permittees (the cost of which shall be a Roof Terrace Expense and
reimbursed to Tower I Owner by Common Area Manager within thirty (30) days of
receipt an invoice therefor from Tower I Owner). Common Area Manager shall make
all alterations and improvements to the Roof Terrace required by law, the costs
of which shall be a Roof Terrace Expense.
(c) The Easements granted under this Section shall be perpetual.
ARTICLE VIII
SKYBRIDGE, CANOPY, AND BUILDING ACCESS
Section 8.1 Tower II Skybridge Easements
(a) Subject to the provisions of this REA, Tower I Owner hereby
grants to Tower II Owner for the benefit of Tower II Owner and the Tower II
Tract, non-exclusive easements over, through, and across the Tower II Skybridge
for:
(i) ingress to and egress from the Tower II Tract, Tower II,
Tower I Tract, Tower I, Parking Tract, and the Parking Deck; and
(ii) circulation, passage and accommodation of pedestrians to
and from Tower II, Tower II Tract, Tower I, Tower I Tract, the
Parking Deck and the Parking Tract.
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(b) Subject to the provisions of this REA, Tower II Owner hereby
grants to Tower I Owner for the benefit of Tower I Owner and the Tower I Tract,
non-exclusive easements for purposes of furnishing connection to Connecting
Points located on the Tower II Tract, the encroachment of connecting elements
between the Tower II Skybridge and Tower II, and the maintenance, repair and
replacement of such Connecting Points and connecting elements.
(c) Except as otherwise provided in this REA, (i) no changes shall
be made in the Tower II Skybridge or in the location or design of the Tower II
Skybridge; and (ii) no curbs, fences, walls, planters, guard rails, or other
obstruction not shown on the Plans shall be erected or permitted to remain on
the Tower II Tract, the Tower I Tract, or between the Tower II Tract, and the
Tower I Tract if such would adversely affect the orderly flow of pedestrian
traffic through the Tower II Skybridge. Common Area Manager shall make all
alterations and improvements required by law to the Tower II Skybridge, the
costs of which shall be a Tower II Skybridge Expense.
(d) The Easements granted by this Section shall be perpetual.
Section 8.2 Tower II Access Easements
(a) Subject to the provisions of this REA, Tower II Owner hereby
grants to Tower I Owner for the benefit of Tower I Owner and the Tower I Tract,
non-exclusive easements over, through, and across the public areas located on
the exterior grade level of Tower II Tract and the first and second floors of
Tower II, including elevators and stairwells, existing from time to time for:
(i) ingress to and egress from the Tower II Skybridge, Tower
II Tract, and Tower II; and
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(ii) circulation, passage and accommodation of pedestrians to
and from Tower II, Tower II Tract, and the Tower II Skybridge.
(b) Tower II Owner shall have the right, from time to time, to make
changes in Tower II and the Tower II Tract, and the location and design of
access ways through Tower II and the Tower II Tract, as long as access through
the exterior grade level of Tower II Tract and the first and second floors of
Tower II is provided as required under this Section.
(c) The Easements granted by this Section shall terminate upon the
expiration of the Term of this REA.
Section 8.3 Tower I Access Easements
(a) Subject to the provisions of this REA, Tower I Owner hereby
grants to Tower II Owner for the benefit of Tower II Owner and the Tower II
Tract, non-exclusive easements over, through, and across the public areas
located on the exterior grade level of Tower I Tract and the first and second
floors of Tower I, including elevators and stairwells, existing from time to
time for:
(i) ingress to and egress from the Tower I Tract, Tower I, and
the Tower II Skybridge; and
(ii) circulation, passage and accommodation of pedestrians to
and from Tower I, Tower I Tract, and the Tower II Skybridge.
(b) Tower I Owner shall have the right, from time to time, to make
changes in Tower I and the Tower I Tract, and the location and design of access
ways through Tower I and the Tower I Tract, as long as access through the
exterior grade level of Tower I Tract and the first and second floors of Tower I
is provided as required under this Section.
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(c) The Easements granted by this Section shall terminate upon the
expiration of the Term of this REA.
Section 8.4 Hotel/Condo Improvements Access Easements
(a) Subject to the provisions of this REA, if the Hotel/Condo
Improvements constitute a Hotel, Hotel/Condo Owner hereby grants to Tower I
Owner for the benefit of Tower I Owner and the Tower I Tract, and Tower II Owner
for the benefit of Tower II Owner and the Tower II Tract, non-exclusive
easements over, through, and across the public areas located on the exterior
grade level of the Hotel/Condo Tract and the first floor of the Hotel, existing
from time to time for:
(i) ingress to and egress from the Hotel, Hotel/Condo Tract,
the Parking Tract, the Parking Deck, and the Tower I Tract; and
(ii) circulation, passage, and accommodation of pedestrians to
and from the Hotel, Hotel/Condo Tract, the Parking Tract, Parking
Deck, and Tower I Tract.
(b) Hotel/Condo Owner shall have the right, from time to time, to
make changes in the Hotel and the Hotel/Condo Tract, and the location and design
of access ways through the Hotel and the Hotel/Condo Tract, as long as access
through the exterior grade level of the Hotel/Condo Tract and the first floor of
the Hotel is provided as required under this Section.
(c) If the Hotel/Condo Improvements constitute a Condo, Hotel/Condo
Owner does not grant any of the foregoing easements for access through the Condo
or over the Hotel/Condo Tract.
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(d) Enjoyment of the Easements granted by this Section shall
commence on the date the Hotel is Substantially Completed.
(e) The Easements granted by this Section shall terminate upon the
expiration of the Term of this REA.
Section 8.5 Parking Deck Access Easements
(a) Subject to the provisions of this REA, Parking Deck Owners
hereby grant to Tower I Owner for the benefit of Tower I Owner and the Tower I
Tract, Tower II Owner for the benefit of Tower II Owner and the Tower II Tract,
and to Hotel/Condo Owner for the benefit of Hotel/Condo Owner and the
Hotel/Condo Tract, non-exclusive easements over, through, and across the public
areas of the Parking Deck and the exterior grade level of the Parking Tract,
including elevators and stairwells, existing from time to time for:
(i) ingress to and egress from the Parking Tract, Parking
Deck, Tower I Tract, Tower II Skybridge and Hotel/Condo Tract; and
(ii) circulation, passage, and accommodation of pedestrians to
and from the Parking Deck, Parking Tract, Tower I Tract, Tower II
Skybridge and Hotel/Condo Tract.
(b) Subject to the provisions of this REA, Parking Deck Owners
hereby grant to Tower I Owner for the benefit of Tower I Owner and the Tower I
Tract, a non-exclusive easement for pedestrian access, ingress to and egress
from the Parking Deck at grade level at the Tower I Grade Level Entrance.
(c) Subject to the provisions of this REA, Parking Deck Owners
hereby grant to Hotel/Condo Owner for the benefit of Hotel/Condo Owner and the
Hotel/Condo Tract, a non-exclusive easement for pedestrian access, ingress to
and egress from the Parking Deck at grade level at the Hotel/Condo Grade Level
Entrance.
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(d) Subject to Article V, Parking Deck Owners shall have the right,
from time to time, to make changes in the Parking Deck and Parking Tract, and
the location and design of access ways through the Parking Deck and Parking
Tract, as long as access through the Parking Deck and the exterior grade level
of the Parking Tract is provided as required under this Section.
(e) The Easements granted by this Section shall be perpetual.
Section 8.6 Parking Deck Attachment Easements
(a) Subject to the provisions of this REA, Parking Deck Owners
hereby grant to Tower I Owner for the benefit of Tower I Owner and the Tower I
Tract, non-exclusive easements for purposes of furnishing connection to the
Connecting Points located on the Parking Tract, the encroachment of connecting
elements between the Tower I Canopy and the Parking Deck, and the maintenance,
repair, and replacement of such Connecting Points and connecting elements.
(b) Subject to the provisions of this REA, the Parking Deck Owners
hereby grant to Hotel/Condo Owner for the benefit of Hotel/Condo Owner and the
Hotel/Condo Tract, non-exclusive easements for purposes of furnishing connection
to Connecting Points located on the Parking Tract, the encroachment of
connecting elements between the Hotel/Condo Canopy at grade level and the
Parking Deck, and the maintenance, repair and replacement of such Connecting
Points and connecting elements.
(c) Subject to the provisions of this REA, the Parking Deck Owners
hereby grant to Tower I Owner for the benefit of Tower I Owner and the Tower I
Tract, non-exclusive easements for purposes of furnishing connection to
Connecting Points located on the Parking Tract, the encroachment of connecting
elements between the Tower II Skybridge and the Parking Deck, and the
maintenance, repair and replacement of such Connecting Points and connecting
elements.
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(d) The Easements granted by this Section shall be perpetual.
Section 8.7 Security Equipment Easements
(a) Subject to the provisions of this REA, the Parking Deck Owners
hereby grant to Tower I Owner for the benefit of Tower I Owner and the Tower I
Tract in the Tower I Access Control Area, Tower II Owner for the benefit of
Tower II Owner and the Tower II Tract in the Tower II Access Control Area, and,
for as long as the Hotel/Condo Improvements constitute a Hotel, Hotel/Condo
Owner for the benefit of Hotel/Condo Owner and the Hotel/Condo Tract in
Hotel/Condo Access Control Area, non-exclusive easements for the installation,
maintenance, repair and replacement, at the cost and expense of the applicable
grantee, of security devices for the operation of doors and other access control
devices to enter the Tower II Skybridge and the Hotel/Condo Improvements after
Normal Business Hours and the installation and use of access control cameras and
similar or related equipment.
(b) The applicable grantee shall prepare plans and specifications
showing the exact locations of such security devices and detailing all other
specific information with respect thereto, which plans and specifications shall
be approved by Parking Deck Owners, which approval shall not be unreasonably
withheld. The applicable grantee shall use due care in the exercise of its
rights granted under this Section. The applicable grantee shall promptly repair,
replace or restore any and all Improvements damaged or destroyed by such grantee
in connection with the exercise of such rights. If Tower I Owner and Tower II
Owner mutually agree to do so, each acting reasonably, Tower I Owner and Tower
II Owner may install and operate one access control system used to control
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access into the Tower II Skybridge from the Parking Deck so that one access
control system used by Permittees of both Tower I Owner and Tower II Owner will
be used. If Tower I Owner and Tower II Owner fail to so agree, each shall be
entitled to install and operate its own access control system, each of Tower I
Owner and Tower II Owner having the right to approve, which approval shall not
be unreasonably withheld, the access control system of the other in so far as
such access control system affects entrances to the Tower II Skybridge. In all
events, any such access control system must comply with all applicable laws.
(c) Except as otherwise provided in this REA, the Parking Deck
Owners shall have the right to make changes in the Parking Deck, including the
areas described in Section 8.7(a), as long as Tower I Owner, Tower II Owner and
Hotel/Condo Owner have access to and use of areas in the Parking Deck for the
purposes described in Section 8.7(a) above.
(d) The Easements granted by this Section shall be perpetual.
Section 8.8 Heating and Cooling
(a) Tower I and Tower II shall be designed and operated so as not to
unduly drain conditioned air from or discharge or return conditioned air to the
Tower II Skybridge.
(b) The Tower II Skybridge shall be reasonably lighted and
comfortably air-conditioned and heated in a manner deemed reasonable by Tower I
Owner and Tower II Owner. The Tower II Skybridge will be heated and cooled
either by a separate system that heats and cools only the Tower II Skybridge or
by a heating and cooling system that is part of either the Tower I heating and
cooling system or the Tower II heating and cooling system, but not both, with
the costs of heating and cooling the Tower II Skybridge to be shared as provided
in Article IX.
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Section 8.9 Hotel/Tower I Canopy
(a) Subject to the provisions of this REA, for as long as the
Hotel/Condo Improvements constitute a Hotel, and only if both Tower I Owner and
Hotel/Condo Owner consent to and approve the construction of the Hotel/Tower I
Canopy, Tower I Owner grants to Hotel/Condo Owner for the benefit of Hotel/Condo
Owner and the Hotel/Condo Tract, and the Hotel/Condo Owner grants to Tower I
Owner for the benefit of Tower I Owner and the Tower I Tract, non-exclusive
easements to connect the Tower I Owner's portion of the Hotel/Tower I Canopy and
the Hotel/Condo Owner's portion of the Hotel/Tower I Canopy.
(b) The Hotel/Tower I Canopy will be removed by Tower I Owner and
Hotel/Condo Owner, each paying one-half of such removal costs, at the election
of Tower I Owner only, in its sole discretion, if at any time the Hotel/Condo
Improvements ceases to operate as a hotel, is damaged or destroyed and not
restored, or ceases to be a hotel operating in accordance with First Class
Standards as a Four Diamond Hotel.
(c) The Easements granted by this Section shall terminate upon the
expiration of the Term of this REA.
Section 8.10 Use and Operation of Tower II Skybridge and Building
Access Easements
(a) Each Tower I Owner and Tower II Owner shall control the opening
and closing of entrances from Building Improvements on its Tract into the Tower
II Skybridge and the Connecting Points, provided that both Tower I Owner and
Tower II Owner shall provide free, continuous, uninterrupted pedestrian access
through the Tower II Skybridge and the Connecting Points located on their
respective Tracts during Normal Business Hours; provided, however, that either
of Tower I Owner or Tower II Owner may, at its sole option, elect to close its
Building Improvements on Saturdays and treat all day Saturdays as after Normal
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Business Hours. No changes shall be made in any Connecting Points by the Owner
thereof that would affect the use, operation, and attachment of a Skybridge.
Normal Business Hours may be changed only with the approval of Tower I Owner and
Tower II Owner, which approval may be given or withheld in their sole
discretion.
(b) The Improvements through which the access easements granted
under Sections 8.2, 8.3, and 8.4 shall not be required to be open except during
Normal Business Hours; provided, however, that either Tower I Owner or Tower II
Owner may, at its sole option, elect to close its Building Improvements all day
on Saturdays and treat all day Saturdays as after Normal Business Hours.
Consequently, after Normal Business Hours, (i) Tower I Owner and its Permittees
shall have access to the Tower II Skybridge and the Parking Deck, but not Tower
II; (ii) the Tower II Owner and its Permittees shall have access to the Tower II
Skybridge and the Parking Deck, but not Tower I; and (iii) only the Hotel/Condo
Owner and the Permittees will have access through the Hotel. The Parking Deck
shall be open in accordance with Section 5.8 during and after Normal Business
Hours.
(c) After Normal Business Hours, the Tower II Skybridge and the
Hotel shall be operated in accordance with such reasonable security and
restricted access measures as approved by Tower I Owner and Tower II Owner as to
the Tower II Skybridge, and the Hotel/Condo Owner as to the Hotel.
(d) Tower I Owner and Tower II Owner shall establish and/or modify
and enforce reasonable rules and regulations pertaining to safety, cleanliness,
security and traffic control within the Tower II Skybridge and Connecting Points
located on the Tower I Tract, Tower II Tract, or the Parking Tract.
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(e) Hotel/Condo Owner shall have the right to establish and/or
modify and enforce reasonable rules and regulations pertaining to safety,
cleanliness, security and traffic control within the Hotel.
(f) Each of Tower I Owner and Tower II Owner shall have the right to
limit access through its Improvements during Normal Business Hours in accordance
with such reasonable security and restricted access measures as it desires as
long as the access required under Section 8.3 as to Tower I and under Section
8.2 as to Tower II is provided. For example, and without limiting the foregoing,
each of Tower I Owner and Tower II Owner may close off stairwells to public
access as long as elevators are available, and may restrict elevator access to
the first two (2) floors of its Improvements to Permittees of the applicable
Easement as opposed to occupants of its Improvements.
(g) Each of Tower I Owner and Tower II Owner shall be responsible
for issuing to its Permittees access cards or codes for access after Normal
Business Hours to the Tower II Skybridge and its Improvements at its sole cost
and expense.
ARTICLE IX
SHARING OF EXPENSES
Section 9.1 Access Easement Expenses
For as long as the Easements for use of the Access Tract and Access
Improvements remain in effect pursuant to Section 4.2, Access Tract Expenses
shall be shared by the Tower I Owner, Tower II Owner, and Hotel/Condo Owner in
accordance with their then applicable Gross Area Ratios.
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Section 9.2 Parking Deck Expenses
For as long as the Easements to use the Parking Deck remain in
effect pursuant to Section 5.9, Parking Deck Expenses shall be shared by the
Tower I Owner, Tower II Owner, and the Hotel/Condo Owner in accordance with
their then applicable Space Ratios.
Section 9.3 Loading Dock Expenses
For as long as the Easements for use of the Loading Dock and Loading
Dock Access Areas remain in effect pursuant to Section 6.4 and Section 6.5,
Loading Dock Expenses shall be shared by Tower I Owner and Tower II Owner in
proportion to their then applicable Gross Area Ratios.
Section 9.4 Tower II Skybridge Expenses.
For as long as the Easements for the use of the Tower II Skybridge
remain in effect pursuant to Section 8.1, Tower II Skybridge Expenses shall be
shared eighty percent (80%) by Tower II Owner and twenty percent (20%) by Tower
I Owner.
Section 9.5 Hotel/Tower I Canopy Expenses.
For as long as the Hotel/Tower I Canopy remains in use pursuant to
Section 8.9, Canopy Expenses shall be shared by Tower I Owner and Hotel/Condo
Owner in proportion to their then applicable Gross Area Ratios.
Section 9.6 Roof Terrace Expenses.
For as long as the Easement to use the Roof Terrace remains in
effect pursuant to Section 7.4, Roof Terrace Expenses shall be shared by Tower I
Owner and Tower II Owner in accordance with their then applicable Gross Area
Ratios.
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Section 9.7 Calculation and Payment of Expenses.
(a) Common Area Manager shall keep accurate, complete books and
records of all receipts and disbursements related to the ownership, operation,
repair, insurance and maintenance of the Parking Deck, Roof Terrace, Access
Tract, Loading Dock, Loading Dock Access Area, Hotel/Tower I Canopy, and Tower
II Skybridge. Such books and records shall be available for inspection and
copying by the Owners during Normal Business Hours. Any Owner shall have the
right, upon thirty (30) days prior written notice, to inspect and audit the
books and records applicable to Expenses such Owner is obligated to pay under
this REA, provided that no more than one (1) such inspection shall be conducted
during any calendar year unless, but only to the extent, a tenant in either
Tower I or Tower II has a right to require such audit without regard to the
foregoing limitation. The Owners shall continue to be obligated to make their
payments of Expenses required hereunder without offset or deduction
notwithstanding the ongoing conduct of an audit or inspection. The cost of each
inspection shall be paid by the Owner requesting such inspection or audit;
provided that if such audit reveals that a particular Expense has been
overstated by more than ten percent (10%), Common Area Manager shall pay the
cost of such audit. Expenses shall be adjusted based upon such audit, to the
extent the results of such audit have been approved by the Owners obligated to
pay the applicable Expenses. If the Owners obligated to pay the applicable
Expenses cannot agree on the results of such audit, then Expenses will be
adjusted based upon the resolution of any dispute pertaining to such Expenses in
accordance with the arbitration process set forth in Article XXIV.
(b) The Owners obligated to pay an Expense shall pay such Expense
monthly, in an amount equal to such Owner's share of the actual Expenses
incurred prior to such month and not already paid, unless Tower I Owner and
Tower II Owner agree that an Expense shall be paid monthly equal to one twelfth
(1/12) of the estimate by Common Area Manager of the annual Expense approved by
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Other Tower Owner, which estimate Common Area Manager may change from time to
time, before, after, or during the applicable year (with the consent of Other
Tower Owner), but no more than two (2) times in any one calendar year..
(c) By September 1 of each year during the term of this REA, Common
Area Manager shall prepare and distribute to each Owner preliminary operating
and capital budgets for the Expenses which such Owner is obligated to pay,
including capital expenditures and reserves established by Common Area Manager,
for the maintenance, repair and replacement of the Parking Tract, Parking Deck,
Roof Terrace, Access Tract, Access Improvements, Loading Dock, Loading Dock
Access Area, Tower II Skybridge and Hotel/Tower I Canopy, as the case may be,
for the following year. Common Area Manager agrees to provide specific
information relating to budgeted items reasonably requested by an Owner. By
November 1 of each year during the term of this REA, Common Area Manager shall,
after consultation with Other Tower Owner, deliver its recommended budgets for
the following year to the other Owners. The budgets for the Parking Tract,
Parking Deck, Access Tract, Access Improvements, the Roof Terrace, Loading Dock
Tract, Loading Dock, Loading Dock Access Areas, and Tower II Skybridge shall
require the approval of Tower I Owner and Tower II Owner; and the budgets for
the Hotel/Tower I Canopy shall require the approval of Tower I Owner and
Hotel/Condo Owner; provided however that Taxes, utility costs, costs of
complying with laws, including all capital improvements required to do so,
insurance costs, and other costs beyond Common Area Manager's control shall not
require approval; and provided that no Owner shall have the right to object to
an Expense that is necessary to satisfy Common Area Manager's obligations under
this REA to operate, maintain or repair an Improvement in accordance with First
Class Standards. An Owner entitled to approve a budget, must respond with its
approval or disapproval and a description of the particular items disapproved
and the reasons for any disapproval within thirty (30) days after its receipt of
any such budget, the failure to respond within such thirty (30) day period being
deemed to be approval. An Owner entitled to approve a budget may approve some
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budget items and may disapprove other budget items. If an entire budget is
disapproved in accordance with the foregoing, then the prior year's budget,
increased by ten percent (10%), shall be used until a new budget is approved as
required hereunder. If some budget items are approved and some budget items are
disapproved, then the approved budget items shall be instituted, and for those
budget items disapproved, the disapproved budget items contained in the prior
year's budget, increased by ten percent (10%), shall be used until the
disapproved budget items are approved or deemed approved as required hereunder.
If any budgeted items are timely disapproved, Common Area Manager shall resubmit
a budget for such disapproved items within ten (10) days of receipt of such
disapproval, and any Owner entitled to approve such resubmitted budget item must
approve or disapprove (with a description of the reasons for such disapproval)
such item within ten (10) days of receipt of the resubmitted budgeted item
(failing which such resubmitted budget item shall be deemed approved) and the
process in this sentence shall continue until the entire budget has been
approved or deemed approved by the Owners entitled to approve the budget
pursuant to this subsection (c).
(d) Within ninety (90) days after the end of each calendar year
during the Term, an audit shall be performed by the Project Auditor to determine
Expenses for the preceding calendar year. Any underpayment of Expenses by an
Owner shall be paid by such Owner within thirty (30) days following receipt by
each Owner of the aforesaid audit. Any overpayment of Expenses by an Owner
shall, at the option of the Common Area Manager, either be credited to the next
occurring payments of such Expenses or be paid by Common Area Manager to the
applicable Owner within thirty (30) days following receipt of the aforesaid
audit. The cost of invoices, administration, accounting and audit of a
particular Expense shall be included within such Expense.
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(e) Each invoice shall be due and payable within thirty (30) days
following the receipt thereof. Any invoice not paid when due shall bear Interest
from the date until paid.
Section 9.8 Allocation of Certain Expenses
Common Area Manager shall reasonably allocate Taxes, insurance
premiums, and other Expenses for the Tower I Tract and the Access Tract to the
Access Tract, Loading Dock Tract, Loading Dock Access Area, Roof Terrace, Tower
II Skybridge, and Hotel/Tower I Canopy. Taxes and insurance premiums shall be
allocated in accordance with the methodology set forth in Exhibit G; provided,
however, if the applicable taxing authorities separately allocate the Taxes
amongst the portions of the Tower I Tract set forth on Exhibit G, for purposes
of this Article IX the Taxes will be allocated in accordance with the taxing
authority allocations in lieu of the allocations in Exhibit G. Other Expenses
shall be allocated based on Common Area Manager 's reasonable judgment or, if
available, based on allocations made by providers of services that are included
within such Expenses. The methodology set forth in Exhibit G shall be applicable
throughout the Term of this REA. Within sixty (60) days after Substantial
Completion of Tower I, Parking Deck and other Common Improvements, and no more
often than one (1) time every five (5) years thereafter any Owner may request
that the values of the various components of the methodology set forth in
Exhibit G be determined, the methodology set forth in Exhibit G applied to such
values, and revised allocations, if applicable, be calculated.
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ARTICLE X
COMMUNICATIONS EQUIPMENT
Section 10.1 Roof-Top Communication Equipment
Each of Tower I Owner, Tower II Owner, and Hotel/Condo Owner shall
have the right to place roof top communication equipment, such as antennas,
microwave and satellite dishes and the like, on top of their respective Building
Improvements if such equipment is not visible from grade level on the Site or is
screened in accordance with First Class Standards, in a manner approved by Tower
I Owner and Tower II Owner, and in compliance with all applicable laws and in a
manner that does not interfere with the function of such equipment.
Section 10.2 Parking Deck Roof-Top.
(a) Subject to the provisions of this REA, the Parking Deck Owners
hereby grant to Tower I Owner for the benefit of Tower I Owner and the Tower I
Tract, non-exclusive easements in the Tower I Communications Area, to install,
maintain and operate roof-top communications equipment.
(b) Subject to the provisions of this REA, the Parking Deck Owners
hereby grant to Tower II Owner for the benefit of Tower II Owner and the Tower
II Tract, non-exclusive easements in the Tower II Communications Area, to
install, maintain and operate roof-top communications equipment.
(c) Subject to the provisions of this REA, the Parking Deck Owners
hereby grant to Tower I Owner for the benefit of Tower I Owner and the Tower I
Tract, and to Tower II Owner for the benefit of Tower II Owner and the Tower II
Tract, non-exclusive easements in, over, and across the Parking Tract for
purposes of installing wires, cables and conduit between the Tower II Skybridge
and the Tower I Communications Area and the Tower II Communications Area in
locations reasonably selected by Parking Deck Owners. The location of such
wires, cables and conduits may be relocated from time to time as the Parking
Deck Owners may reasonably require as long as the right to install and operate
such wires, cables, and conduits is available.
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(d) If the Parking Deck is expanded pursuant to Section 5.11, the
Tower I Communications Area and the Tower II Communications Area shall be
relocated to the level of the Parking Deck that, as a result of such increase or
reduction, will be the top floor of the Parking Deck, in a location comparable
to the location shown on the Plot Plan. Any such relocation shall be at the cost
and expense of the Owner causing such reduction or expansion.
(e) Tower I Owner and Tower II Owner shall prepare plans and
specifications showing the exact locations of all such equipment, wires, cables
and conduit, which plans and specifications shall be approved by the Parking
Deck Owners, which approval shall not be unreasonably withheld. Tower I Owner
and Tower II Owner shall use due care in the exercise of their rights granted
under this Section. Tower I Owner and Tower II Owner shall promptly repair,
replace or restore any and all Improvements damaged or destroyed by it in
connection with the exercise of such rights.
(f) Each Tower I Owner and Tower II Owner shall pay all costs
associated with its installation, operation, utilization, replacement,
maintenance and/or removal of such roof-top communications equipment, wires,
cable and conduit. The roof-top communications equipment, wires, cable and
conduit must be (i) designed, installed and operated in complete compliance with
all laws, (ii) installed and operated so as not to adversely affect or impact
structural, mechanical, electrical, elevator, or other systems of or serving the
Parking Deck and so as not to cause injury to persons or property, and (iii)
screened from view in accordance with First Class Standards and in a manner
reasonably approved by the Parking Deck Owners.
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(g) Subject to the Parking Deck Rules, Tower I Owner's and Tower II
Owner's contractors shall have reasonable access to the roof-top communications
equipment, wires, cable and conduit for purposes of operating, servicing,
repairing or otherwise maintaining said equipment.
(h) EACH OF TOWER I OWNER AND TOWER II OWNER HEREBY INDEMNIFIES AND
HOLDS THE PARKING DECK OWNERS HARMLESS FROM ALL COSTS AND EXPENSES (INCLUDING
REASONABLE ATTORNEYS' FEES AND COSTS OF SUIT), LOSSES, DAMAGES OR LIABILITIES
ARISING OUT OF THE DESIGN, INSTALLATION, OPERATION, MAINTENANCE, USE, AND
REMOVAL BY TOWER I OWNER OR TOWER II OWNER, AS THE CASE MAY BE, OF THE ROOF-TOP
COMMUNICATIONS EQUIPMENT, WIRES, CABLE AND CONDUIT.
(i) The Parking Deck Owners make no representation whether the Tower
I Communications Area or the Tower II Communications Area can be used for
purposes of installing and operating communications equipment. Tower I Owner and
Tower II Owner shall be responsible for obtaining and maintaining any necessary
permits, licenses, approvals or permissions from all applicable Governmental
Agencies.
(j) The Easements granted by this Section shall be perpetual.
(k) Tower I Owner with respect to the Tower I Tract and Tower II
Owner with respect to the Tower II Tract shall each have the right to sublease
or sublicense to any tenant or subtenant of leased space in the Building
Improvements ("Building Tenants") of their respective Tracts their respective
rights under this Section 10.2 provided that (A) either (i) the Building Tenants
execute lease or license agreements required by the Parking Deck Owners from
time to time, or (ii) such Building Tenants execute lease or license agreements
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with the Tower I Owner or Tower II Owner, as applicable, which incorporate
provisions required by the Parking Deck Owners from time to time, (B) such
rights granted to such Building Tenants are subject to he terms of this Section
10.2, (C) such Building Tenants utilize such telecommunication equipment in
connection with the conduct of business in the leased space and not for
sublicensing to entities not located in and conducting business in the leased
space, and (D) such Building Tenants comply with the telecommunications
equipment rules and regulations promulgated from time to time by the Parking
Deck Owners, including technical specifications contained therein.
Section 10.3 Tower II Skybridge Utility Lines
(a) Subject to the provisions of this REA, Tower I Owner hereby
grants to Tower II Owner for the benefit of Tower II Owner and the Tower II
Tract, non-exclusive easements to install, maintain, repair and replace wires,
lines, and cables in, upon and through "conduit runs" located above the ceiling
or below the floor of the Tower II Skybridge in order to provide security or
telecommunications connections between Tower II, the Tower II Skybridge, and the
Parking Deck.
(b) Tower I Owner reserves the right to approve the location of any
such wires, lines or cables within the Tower II Skybridge. The installation,
maintenance, repair and replacement of wires, lines and cables in the Tower II
Skybridge shall be performed by contractors reasonably acceptable to Tower I
Owner and under Tower I Owner's supervision.
(c) The Easements granted by this Section shall be perpetual.
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Section 10.4 Common Conduit
A "conduit run" has been installed form the main telephone room in
the basement level of Tower I to the main telephone room on Level 1 of Tower II
("Connecting Conduit"), which Connecting Conduit contains four (4), four-inch
conduits. Tower I Owner and Tower II Owner together shall have the right to
grant to Permittees of Tower I and Tower II a revocable license to install
communication lines in such Connecting Conduit so that the Permittee in Tower I
and/or Tower II can connect its communication equipment with the communication
equipment of the Permittee in Tower II and/or Tower I subject to the following
restrictions:
(i) Each Permittee desiring to utilize the Connecting Conduit
executes a license agreement evidencing such right which is in form
and substance satisfactory to Tower I Owner and Tower II Owner; and
(ii) at the time such Permittees desire to install such
communication lines, Tower I Owner and Tower II Owner determine in
their sole discretion that there is sufficient capacity in the
Connecting Conduit to accommodate such line.
ARTICLE XI
RESTRICTIONS
Section 11.1 Height Restrictions
(a) The Improvements constructed on the Tower I Tract shall meet
First Class Standards and shall not exceed two hundred ninety (290) feet above
grade level.
(b) The Improvements constructed on the Tower II Tract shall meet
First Class Standards and shall not exceed two hundred forty-five (245) feet
above grade level.
(c) If the Hotel/Condo Improvements constitute a Hotel, the
Improvements constructed on the Hotel/Condo Tract shall meet First Class
Standards and shall not exceed fifty (50) feet above grade level on the portion
of the Hotel/Condo Tract shown on the Plot Plan as the "North Portion"; and one
hundred ninety-five (195) feet above grade level on the portion of the
Hotel/Condo Tract shown on the Plot Plan as the "South Portion."
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(d) If the Hotel/Condo Improvements constitute a Condo, the
Improvements constructed on the Hotel/Condo Tract shall meet First Class
Standards, shall not exceed two hundred thirteen (213) feet above grade level.
(e) The foregoing height restrictions shall expire on the expiration
or earlier termination of the term of this REA.
Section 11.2 Hotel/Condo Improvements Use Restriction
(a) Improvements constructed on the Hotel/Condo Tract may be
constructed, used and developed during the Term of this REA only for purposes of
operating either (i) a Four Diamond Hotel or better quality hotel that meets
First Class Standards containing at least one hundred seventy (170) guest rooms
(and 000,000 xxxxxx xxxx xx Xxxxx Xxxx) but not more than two hundred fifty
(250) guest rooms (and 000,000 xxxxxx xxxx xx Xxxxx Xxxx) and not more than one
(1) restaurant and one (1) lounge, with the service entrance for the Hotel to be
located on the northeast corner of the Hotel/Condo Tract and screened in a
manner that meets First Class Standards and is approved by Tower I Owner and
Tower II Owner, or (ii) a Condo meeting First Class Standards not exceeding
240,000 square feet of Gross Area, not exceeding in height two hundred thirteen
(213) feet above grade level, with the main entrance on the east side of the
Hotel/Condo Tract, and with a service entrance and loading dock for the Condo
located in the northeast corner of the Hotel/Condo Tract with service and
loading dock entrances only on Xxxx Road, and for no other purpose. Hotel use
shall include ancillary retail, restaurants, and bars customarily associated
with hotels.
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Section 11.3 Prohibited Uses and Other Limitations
(a) No Owner shall permit anything within such Owner's reasonable
control to be done or kept in any Improvements or on its Tract which would
violate any applicable law, including any zoning ordinance relating to use of
the Site, including the Zoning Ordinance. In the event of a conflict between any
restrictions contained herein and the zoning ordinances of the City of Dallas,
Texas which are applicable to the Site, the more restrictive shall apply.
(b) All utility lines serving any Tract shall be underground.
(c) No promotion, entertainment, amusement, amplification of sounds,
fireworks, search lights, advertising, display, storage of materials, or sales
activities shall take place on any portion of the exterior of the Site or on any
Common Improvements except that, (i) for as long as the Hotel/Condo Improvements
constitute a Hotel, Hotel/Condo Owner may advertise and engage in sales
activities consistent with a Four Diamond Hotel complying with First Class
Standards, (ii) for as long as the Hotel/Condo Improvements constitute a Condo,
then while under construction, Hotel/Condo Owner may place a sales trailer on
the Hotel/Condo Tract, and (iii) Tower I Owner may place on the Tower I Tract,
Tower II Owner may place on the Tower II Tract, and Tower I Owner and Tower II
Owner each may place on the Access Tract reasonable and customary leasing signs
that comply with the signage criteria attached hereto as Exhibit F.
(d) No dangerous or unsafe uses such as handling, storing or
otherwise dealing with explosives shall take place on the Site.
(e) No use or activity shall be conducted on the Site or any portion
thereof if the same results in or constitutes a nuisance to other Owners or
neighboring property owners, including, without limitation, any nuisance
resulting from vibration, sound, electro-mechanical disturbance and radiation,
air or water pollution, dust or emission of toxic or odorous nontoxic matter.
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(f) No noxious or offensive activity shall be conducted on the Site
or any portion thereof.
(g) Except for temporary events (occurring no more than three (3)
times per calendar year and existing for no longer than four (4) days in each
case) involving the use of tents approved by the Owners, no temporary structure,
tent, shack or barn of any kind shall be erected or placed upon the Site or any
portion thereof, provided, however, temporary construction offices may be
maintained, provided such construction offices are removed within sixty (60)
days after completion of construction. In addition, construction and development
operations and activities may be conducted on the Site and, in connection
therewith, all things reasonably necessary or convenient in order to most
expeditiously commence, continue and complete such construction and development
operations (specifically including, but not limited to, construction and
maintenance of temporary buildings and trailers for storage of construction
materials and equipment and open storage of uncovered building materials and
equipment) shall be done.
(h) No barricades, walls, fences or other obstructions shall be
erected on or between the Tracts, except as shown on the Plans or as otherwise
approved by Tower I Owner and Tower II Owner.
(i) No use or operation will be made, conducted or permitted on or
with respect to all or any portion of the Site which use or operation is
inconsistent with First Class Standards. Without limiting the foregoing, the
following uses are prohibited on the Site:
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(i) any "second hand" store, Army, Navy, or government
"surplus" store;
(ii) any mobile home or trailer court, labor camp, junk yard,
stock yard, or animal raising;
(iii) any dumping, disposal, incineration, reduction of
garbage or refuse;
(iv) any fire or bankruptcy sale or auction house operation;
(v) any automobile sales, leasing or display, or repair
facilities;
(vi) any bowling alley, billiard parlor, theatre, skating rink
or other amusement arcade, game room, or amusement center;
(vii) any veterinary hospital or pet store;
(viii) any mortuary or funeral parlor;
(ix) any adult bookstore or other facility primarily engaged
in the sale of pornographic or obscene material; (x) any bar,
tavern, dance hall or other establishment (including, if applicable,
a restaurant) whose annual gross revenues from the sale of alcoholic
beverages exceeds sixty percent (60%) of gross revenues arising out
of or resulting from such business or as may be permitted by law,
whichever is more restrictive, except for bars in the Hotel for as
long as the Hotel/Condo Improvements are used as a Hotel;
(xi) any car, trailer or truck rental facility;
(xii) any hospital, physician's office, clinic or other health
care facility for the onsite treatment of patients;
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(xiii) any car wash (other than a car wash located in the
Parking Deck and approved by the Parking Deck Owners);
(xiv) any massage parlor;
(xv) any off-track betting parlor;
(xvi) any sewage treatment plants;
(xvii) any electrical substations;
(xviii) any refining of petroleum or of its products;
(xix) any smelting of iron, tin, zinc or other substances;
(xx) any drilling for and/or removal of oil, gas, or other
hydrocarbon or other substances;
(xxi) any industrial use;
(xxii) any commercial excavation of building or construction
materials (but not excavation in connection with the construction of
improvements);
(xxiii) any storage or long term parking (in excess of 24
hours) of campers, boats, trailers or motor homes; or
(xxiv) any raising, breeding or keeping of any animals,
livestock or poultry (other than the use of seeing eye dogs and, if
the Hotel/Condo Improvements constitute a Condo, household pets).
(j) No Owner shall have any right to extend streets or alleys
through its Tract, except that each Owner shall be entitled to connect to and
have access to any public thoroughfare abutting its Tract to the extent
permitted by applicable law and each Owner shall be entitled to connect to and
have access to the Access Tract in the locations shown on the Plans and the Plot
Plan.
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Section 11.4 Required Ownership
(a) Tower I Owner cannot transfer the Tower I Tract, Access Tract,
the Tollway Sign Tract, or Tower I Undivided Interest except to a transferee
that acquires all of the Tower I Tract, Access Tract, the Tollway Sign Tract,
and the Tower I Undivided Interest so that all of the Tower I Tract, Access
Tract, Tower I Undivided Interest, and Tollway Sign Tract are always owned by
one Owner.
(b) Tower II Owner cannot transfer the Tower II Tract or Tower II
Undivided Interest except to a transferee that acquires all of Tower II Tract
and the Tower II Undivided Interest so that all of the Tower II Tract and Tower
II Undivided Interest are always owned by one Owner.
(c) Subject to Article XVII, which permits the creation of a
condominium ownership of Units, Hotel/Condo Owner cannot transfer the
Hotel/Condo Undivided Interest or the Hotel/Condo Tract except to a transferee
that acquires all of the Hotel/Condo Tract and the Hotel/Condo Undivided
Interest so that all of the Hotel/Condo Tract and Hotel/Condo Undivided Interest
are always owned by one Owner.
(d) For purposes of this Section 11.4, a transfer shall include any
pledge, transfer, conveyance, Ground Lease, agreement to convey or any other
transfer of any kind.
Section 11.5 Parking, Service and Delivery
All delivery and service vehicles shall enter the Site by way of the
Loading Dock Tract as to Tower I and Tower II, and by way of the service area
and/or loading dock with entrances only on Xxxx Road for the Hotel/Condo
Improvements as to the Hotel/Condo Improvements. Delivery and service vehicles
shall not be permitted to enter the Site by way of the Access Tract. Except for
the Visitor Parking Spaces located from time to time on the Access Tract, no
parking shall be permitted anywhere on the Site except in the Parking Deck and,
temporarily while loading and unloading, on the Loading Dock Tract or the
service area for the Hotel/Condo Improvements.
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Section 11.6 Zoning Changes or Violations
(a) No Owner shall make any alteration or allow any use of their
respective Tracts, or take or fail to take any action which action or failure
would violate any zoning ordinances applicable to the Site, including the Zoning
Ordinance.
(b) All applications for variations in any zoning ordinances
applicable to the Site, including the Zoning Ordinance, shall require consent of
Tower I Owner and Tower II Owner, each acting in their sole discretion, except
as provided in Section 5.11(a). Hotel/Condo Owner shall have no right to approve
or disapprove any zoning change or variance unless the use of the Hotel/Condo
Improvements and the use of the Hotel/Condo Spaces is materially adversely
affected thereby.
Section 11.7 Set Back Lines
The Site shall not be subject to any set back restrictions on the
Parking Tract except as may be imposed by applicable law.
Section 11.8 Landscaping
All areas of a Tract and any areas between a Tract and an adjacent
right-of-way not otherwise improved shall be landscaped in accordance with the
Plans or as otherwise consistent with the quality, quantity, condition and types
of landscaping generally used in connection with First Class Standards. All
sprinkler systems shall be underground.
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ARTICLE XII
SIGNAGE
Section 12.1 Rights to Install Signs
(a) All signs erected on the Site shall be consistent with signs
customarily erected on, or in connection with, First Class Standards.
(b) To the extent permitted by applicable law, Tower I Owner shall
have the right to erect two (2) monument signs in the locations on the Tower I
Tract (but not on the Access Tract) designated on the Plot Plan and three (3)
facade mounted signs on the exterior face of Tower I.
(c) To the extent permitted by applicable law, Tower II Owner shall
have the right to erect two (2) monument signs in the locations on the Tower II
Tract (but not on the Access Tract) designated on the Plot Plan and three (3)
facade mounted signs on the exterior face of Tower II.
(d) To the extent permitted by applicable law, Hotel/Condo Owner
shall have the right to erect (i) one (1) monument sign in the location on the
Hotel/Condo Tract (but not on the Access Tract) designated on the Plot Plan if
the Hotel/Condo Improvements are either a Hotel or a Condo, and (ii) only if the
Hotel/Condo Improvements are a Hotel three (3) facade mounted signs on the
exterior face of the Hotel/Condo Improvements.
(e) Common Area Manager shall install one (1) monument sign on the
Access Tract in the location on the Plot Plan. The monument sign shall be
divided in half vertically, with Tower I Owner being entitled to use the north
one-half, and Tower II being entitled to use the south one-half, of such
monument sign. Each of Tower I Owner and Tower II Owner shall have the right to
require the names of three (3) occupants of its Improvements be listed on such
monument sign in the order and by use of graphics approved by Tower I Owner as
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to its one-half and approved by Tower II Owner as to its one-half. Tower I Owner
shall pay one-half of the cost of constructing and maintaining such monument
sign and all of the costs of installing and maintaining Tower I Owner's signage
thereon. Tower II Owner shall pay one-half of the cost of constructing and
maintaining such monument sign and all of the costs of installing and
maintaining Tower II Owner's signage thereon.
(f) Each Owner shall have the right to place directional signage or
informational signage on its Tract approved by Tower I Owner and Tower II Owner.
(g) To the extent permitted by applicable law, Common Area Manager
shall install and maintain one (1) monument sign on the Tollway Sign Tract which
will identify the complex name on the top of the sign. Tower I Owner shall be
entitled to locate two names of occupants of its Improvements on the two slots
on the sign immediately below the complex name, Tower II Owner shall be entitled
to locate two names of occupants of its Improvements on the two slots
immediately below Tower I Owner's slots and Hotel/Condo Owner shall be entitled
to locate on the bottom slot immediately below Tower II Owner's slots, either
(i) the name of the Hotel franchise if the Hotel/Condo Improvements are a Hotel,
or (ii) the name of the Condo if the Hotel/Condo Improvements are a Condo.
(h) Tower I Owner shall pay forty percent (40%) of the cost of
constructing, maintaining and operating (including lighting costs) such monument
sign on the Tollway Sign Tract and all of the costs of installing and
maintaining Tower I Owner's signage thereon. Tower II Owner shall pay forty
percent (40%) of the cost of constructing, maintaining and operating (including
lighting costs) such monument sign on the Tollway Sign Tract and all of the
costs of installing and maintaining Tower II Owner's signage thereon.
Hotel/Condo Owner shall pay twenty percent (20%) of the cost of constructing,
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maintaining and operating (including lighting costs) such monument sign on the
Tollway Sign Tract and all of the costs of installing and maintaining
Hotel/Condo Owner's signage thereon. Common Area Manager shall submit invoices
to Other Tower Owner and Hotel/Condo Owner for any costs incurred by Common Area
Manager with respect to the monument sign on the Tollway Sign Tract, and Other
Tower Owner and Hotel/Condo Owner agree to pay the amount so invoiced within
thirty (30) days of receipt of each such invoice.
Section 12.2 Requirements as to Signs
(a) All signs must comply with all applicable laws.
(b) All signs must comply with sign criteria attached hereto as
Exhibit F.
(c) Each monument sign described in Sections 12.1(b) and 12.1(c)
above shall identify no more than four (4) occupants of the Improvements owned
by the Owner of such sign. The monument sign identified in Section 12.1(d) shall
identify only the Hotel/Condo Improvements and, if the Hotel/Condo Improvements
constitute a Hotel, any restaurant operating in the Hotel/Condo Improvements.
Section 12.3 Prohibited Signs
(a) Except as provided in Section 12.1, no signs, except that Tower
I Owner may place on the Tower I Tract, Tower II Owner may place on the Tower II
Tract, and Tower Owner and Tower II Owner each may place on the Access Tract
reasonable and customary leasing signs in accordance with Exhibit F attached
hereto, shall be permitted on the Site without the approval of Tower I Owner and
Tower II Owner.
(b) No pylon signs, advertising signs of any kind, nature, or
description, flashing, moving, hanging, painted, rooftop or paper signs, and no
banners or streamers of any kind, nature or description shall be permitted on
the Site, except that Tower I Owner may place on the Tower I Tract, Tower II
Owner may place on the Tower II Tract, and Tower I Owner and Tower II Owner each
may place on the Access Tract reasonable and customary leasing signs in
accordance with Exhibit F attached hereto.
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Section 12.4 Rights to Install Flags on Existing Access Tract
Flagpoles
To the extent the Flag Condition (defined below) is met, the
Applicable Owner (defined below) may deliver a request in writing ("Flag
Notice") to the Common Area Manager noting intent to permit the tenant causing
the Flag Condition to be satisfied to locate a flag with its name and/or logo or
the name and/or logo of its affiliate ("Logo Flag") on the Applicable Pole
(defined below). The Flag Notice shall include a sample of the proposed Logo
Flag's material as well as details on the Logo Flag's design for the Common Area
Manager's approval, which approval shall not be unreasonably withheld. If the
Condition continues to be satisfied and the Applicable Tenant (defined below)
desires to change the name and/or logo on the Logo Flag to a name and/or logo
permitted under this Section 12.4 or to change the Logo Flag material or design,
the Applicable Owner must again submit a Flag Notice to the Common Area Manager
with the details of the change for the approval of the Common Area Manager,
which approval shall not be unreasonably withheld. The Applicable Owner shall be
obligated to obtain and pay for the cost of the Logo Flag (and any changes
thereto) approved by Common Area Manager. The Common Area Manager will be
responsible for raising and lowering each Logo Flag on a daily basis. The
Applicable Owner will be responsible for any and all costs associated with
installing and approving the Logo Flag (and any changes thereto) as well as any
and all costs associated with any maintenance and replacements required to keep
the Logo Flag in a Class A condition. Maintenance and replacement of any Logo
Flag will be made at the Common Area Manager's sole discretion. The Applicable
Owner shall pay such costs within thirty (30) days of receipt of an invoice
therefor from Common Area Manager.
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As used herein, "Flag Condition" shall mean (x) as to Tower I, a
tenant in Tower I leases at least fifty-one percent (51%) of the Net Rentable
Area in Tower I, and (y) as to Tower II, a tenant in Tower II leases at least
fifty-one percent (51%) of Tower II.
As used herein, "Applicable Owner" shall mean the Owner of the
Improvements which satisfies the Flag Condition.
As used herein, "Applicable Pole" shall mean (x) as to Tower I, the
eastern most flagpole on the Access Tract, and (y) as to Tower II, the western
most flagpole on the Access Tract.
ARTICLE XIII
MAINTENANCE, REPAIR AND RESTORATION
Section 13.1 Maintenance of Improvements
Except as herein expressly otherwise provided, including Section
13.5, each Owner shall keep and maintain or cause to be kept and maintained the
Improvements as may exist from time to time on its Tract, including all Common
Improvements, in a good and safe state of repair and in a clean and orderly
condition, in a condition complying with First Class Standards, except that (a)
Common Area Manager shall, subject to the payment of Parking Deck Expenses by
the Parking Deck Owners, maintain the Parking Deck in accordance with such
standards, (b) Tower I Owner shall maintain any roof-top communications
equipment, access control equipment, wires, cables and conduit installed by it
in the Parking Deck and Tower II Skybridge in accordance with such standards,
(c) Tower II Owner shall maintain any roof-top communications equipment, access
control equipment, wires, cables and conduit installed by it in the Parking Deck
and Tower II Skybridge in accordance with such standards, (d) Hotel/Condo Owner
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shall maintain any access control equipment, wires, cables and conduit installed
by it in the Parking Deck in accordance with such standards. With respect to the
exterior maintenance and maintenance of Common Improvements, the Owners shall
cooperate to coordinate their efforts to attempt to provide a uniform and
consistent maintenance program, such cooperation to include seasonal
decorations, landscaping, lighting of public areas, and other similar
activities.
Section 13.2 Damage or Destruction of Improvements
Each Owner hereby agrees that in the event of the damage or
destruction of all or any part of the Improvements on its Tract during the Term
of this REA from an Insured Casualty (or a peril for which such Owner has in
fact in force a policy of insurance, to the extent of proceeds actually
received), such Owner shall either (a) promptly commence reconstruction of such
Improvements and diligently prosecute such reconstruction to completion or (b)
raze such Improvements in accordance with Section 13.3 hereof, except as
otherwise provided in this Article XIII.
Section 13.3 Clearing Debris From Razed Improvements
To the extent an Owner is not expressly required to restore all or a
portion of its Improvements damaged or destroyed by casualty and does not elect
to restore such damaged or destroyed Improvements, such Owner shall, subject to
the provisions of Section 13.4, raze the portions thereof which are not restored
or rehabilitated, clear away all debris and take all other action (including
landscaping) required by good construction practice so that the area which had
been occupied by the razed building or portions thereof will be attractive;
provided, however, this provision shall not prevent such Owner from subsequently
building on the Tract subject to the terms of this REA, including Article XI.
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Section 13.4 Damage or Destruction of the Common Improvements
In the event of damage to or destruction of all or any part of the
Common Improvements during the Term of this REA, notwithstanding Section 13.2
and Section 13.3, the Owner of such Common Improvements, using the insurance
proceeds available therefor, shall promptly cause reconstruction of such Common
Improvements to commence and shall diligently cause such reconstruction to be
completed; provided however, that (i) Tower I Owner shall not be obligated to
restore the Tower II Skybridge, the Loading Dock, Tower II Owner's access to the
Loading Dock, or the Roof Terrace if Tower II is razed; (ii) Tower I Owner shall
not be obligated to restore the Roof Terrace if Tower I is razed; and (iii)
Tower I Owner and Hotel/Condo Owner shall not be obligated to restore the
Hotel/Tower I Canopy if either Tower I or the Hotel is razed. Notwithstanding
the foregoing, and subject to Section 13.5, the Tower I Owner shall, subject to
reimbursement from the Owners of the applicable Tracts as described below, be
the sole Owner to reconstruct and restore the Parking Deck, Tower II Skybridge,
Hotel/Tower I Canopy, Access Improvements, the Loading Dock, and the Loading
Dock Access Area, and the Roof Terrace, even though a portion of such
Improvements may be located on Tracts other than Tracts owned by the Tower I
Owner; provided, however, that (x) Tower I Owner shall not be obligated to
commence any such restoration unless and until Tower I Owner receives evidence
that it will be reimbursed for such restoration and (y) in no event shall Tower
I Owner restore any Common Improvement which an Owner properly elects not to be
restored pursuant to subsections (i), (ii), or (iii) in the immediately
preceding sentence. If there are no insurance proceeds, or if the insurance
proceeds available are insufficient to fully restore such Improvements, the
costs of such restoration in excess of available insurance proceeds shall be
invoiced and paid by the Owners in the same percentages set forth in Section 3.4
as to the initial construction of the particular Improvement. Such
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reconstruction shall be performed in substantial compliance with the original
plans and specifications for the portion of such Improvements damaged and in a
good and workmanlike manner, using first-class materials and in accordance with
all applicable laws, ordinances, rules and regulations of all Governmental
Agencies, and in accordance with the terms and conditions of this REA. Upon
completion of any such repair and restoration, any remaining insurance proceeds
paid by reason of such damage shall be refunded to the Owners in the percentages
set forth in Section 3.4 as to the initial construction of the particular
Improvement.
Section 13.5 Duty to Complete Rebuilding
The Owners agree to use due diligence in order to cause any
Improvements which an Owner is required or elects to repair, replace or rebuild
pursuant to this Article XIII to be completed and ready for occupancy as soon as
reasonably possible but in no event later than twelve (12) months as to the
Parking Deck and twenty-four (24) months as to all other Improvements after such
damage or destruction occurs; provided, however, that said twelve (12) or
twenty-four (24) month period shall be subject to extension by reason of
Unavoidable Delays, said extension to be for the period of such Unavoidable
Delays.
Section 13.6 Maintaining Common Footings and/or Common Foundations
Notwithstanding the provisions of Section 13.2 and 13.3 of this REA,
each Owner severally covenants that if all or any part of its Improvements is
removed or destroyed at a time when it is not required to restore and does not
elect to restore the same under this REA, it will leave in place any foundations
and footings (or portions thereof) not removed or destroyed if, immediately
before such removal or destruction, such foundations or footings (or portions
thereof) were shared jointly between such Owner and any other Owner. Each Owner
shall be obligated to leave the foundations and footings in place only for so
long as the Improvements of the other Owners which share such foundations or
footings (or portions thereof) shall stand (as originally constructed or as
replaced under this REA) or shall be in the process of being restored or
replaced.
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ARTICLE XIV
INSURANCE
Section 14.1 Duty to Carry Property Insurance and Waiver of
Subrogation
(a) Except as otherwise provided in Section 14.8 hereof to the
contrary, from and after the commencement of each Owners' construction of the
Improvements on its Tract or Tracts, such Owner shall carry (or cause to be
carried) an "all risk" policy of insurance coverage as described in Section 14.2
of this REA on the Improvements, including Common Improvements, located on its
Tract.
(b) EACH OWNER HEREBY MUTUALLY WAIVES, FOR ITSELF AND ITS INSURANCE
CARRIER, EACH AND EVERY CLAIM WHICH ARISES, OR MAY ARISE IN ITS FAVOR AGAINST
ANY OTHER OWNER DURING THE TERM OF THIS REA FOR ANY AND ALL LOSS OF, OR DAMAGE
TO, ANY OF ITS PROPERTY LOCATED WITHIN OR UPON, OR CONSTITUTING A PART OF, THE
SITE, WHICH LOSS OR DAMAGE IS COVERED OR WOULD BE COVERED BY VALID AND
COLLECTIBLE "ALL RISK" INSURANCE POLICIES THEN AVAILABLE, EVEN IF SUCH CLAIMS
RESULT FROM THE NEGLIGENCE OF SUCH OTHER OWNER.
(c) Each Owner shall notify its insurer of the waiver set forth in
Section 14.1(b) and shall require its insurer to waive such insurer's
subrogation rights under such "all risk" policies as to each other Owner.
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Section 14.2 General Requirements for Property Policies
All policies carried under Section 14.1:
(a) shall be carried with financially responsible insurance
companies qualified to write such insurance and having a Best's financial rating
of at least Class X, and policyholder rating of at least A;
(b) shall be in an amount not less than one hundred percent (100%)
of the actual replacement cost of the Improvements (including any Common
Improvements) being insured (excluding the cost of the foundation, excavations
and footings below the lowest level floor and paving) (and as to boiler and
machinery coverage shall be in an amount not less than $5,000,000 per accident);
(c) shall insure against the loss or damage from causes that are
from time to time included as covered risks under standard insurance industry
practices in Dallas applicable to multi-use office, hotel, condominium, and
commercial projects such as that being developed on the Site within the
classification of "all risk" coverage (with additions to such coverage to be
made within two (2) years after they become standard coverage risks);
(d) shall provide by endorsement, or otherwise, coverage for the
cost of razing the Improvements being insured in the event the Owner thereof
elects not to restore any damaged Improvements;
(e) during the course of any construction, restoration or
replacement of any Improvements on its Tract or on any other Owner's Tract, each
Owner performing or causing the performance of any such work shall maintain
"Builders' Risk" insurance on a non-reporting, completed value basis or extend
its "all risk" insurance provided for herein during any restoration or
replacement, and if any such work is performed on a Tract or Tracts owned by any
other Owner or Owners, same shall be named as additional named insureds under
each such policy of insurance only as to construction occurring on such other
Tract; and
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(f) all such insurance may, at the option of the Owner obtaining it, contain a
loss deductible provision of no more than $100,000, and each Owner shall be a
self-insurer to the extent of any loss deductible provision.
Section 14.3 Use of Policy Proceeds
Insurance proceeds paid to an Owner, or its Mortgagee, or both, by
reason of damage to or destruction of its Improvements shall first be used only
by such Owner to restore or raze such damaged or destroyed property to the
extent required by Article XIII hereof. Any loss covered by insurance required
pursuant to the provisions of Section 14.1 or 14.2 hereof shall be adjusted with
the insured, and the insurance proceeds shall be deposited by the insurance
company in a bank or trust company reasonably satisfactory to each of the Owners
hereto (a first Mortgagee of the Owner's Tract on which the loss occurred being
satisfactory), to be held in trust and disbursed as the work of restoration or
razing progresses.
All amounts collected and paid to such depository on any such "all
risk" policies shall be made available to the insured Owner for the
reconstruction, repair or razing of Improvements damaged or destroyed and shall
be paid out by the depository from time to time as the work of rebuilding,
reconstruction, repair or razing shall progress, upon certificate of a licensed
architect who may be the architect or the insured Owner, showing the application
of the amount paid for such repairs, rebuilding, reconstruction or razing. The
depository shall not be obligated to advance any such amounts unless and until
the depository receive evidence satisfactory to the depository that the amount
necessary to provide for reconstruction or repair of the property so destroyed
or damaged according to the plans adopted therefor is available. If the cost of
reconstruction or repair exceeds the proceeds received upon such policies, the
depository shall not be obligated to make any such advances until the Owners
provide the deficiency in accordance with Article XIII. The insured shall pay to
the depository all reasonable fees for its services as such.
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Section 14.4 Duty to Carry Liability Insurance
Each Owner shall maintain (or cause to be maintained) commercial
general liability insurance having a single limit coverage of not less than
$5,000,000 for bodily injury and property damage, provided that after the
Hotel/Condo Improvements are constructed, and for as long as the Hotel/Condo
Improvements constitute a Hotel, such amount shall be increased to between
$25,000,000 to $50,000,000 as to the Hotel/Condo Improvements, the actual amount
to be subject to the reasonable approval of Tower I Owner and Tower II Owner
(based upon the financial strength of the Hotel/Condo Owner). In addition, such
insurance shall be maintained by each Owner performing or causing to be
performed any construction, restoration or replacement of any Improvements on
any other Owner's Tract during the course of such construction, restoration or
replacement.
Section 14.5 General Requirements for Liability Policies
All policies carried under Section 14.4:
(a) shall be carried with financially responsible insurance
companies qualified to write such insurance and having a Best's financial rating
of at least Class X, and policyholder rating of at least A;
(b) shall insure against claims for bodily injury or death and
property damage occasioned by occurrence on such Owner's Tract;
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(c) shall provide that the same may not be canceled or reduced in
amount or coverage or permitted to lapse without at least thirty (30) days' (ten
(10) days' as to non-payment of premiums) prior written notice being given by
the insurer to each of the other Owners;
(d) shall name each of the other Owners as an additional insured
therewith, but as to each Owner's policy only to the extent of such Owner's
indemnity obligations described in Section 14.6;
(e) shall provide for a waiver of subrogation as to each of the
other Owners;
(f) shall contain a severability of interest or cross-liability
provision;
(g) shall be occurrence based;
(h) shall provide independent contractor's coverage; and
(i) shall provide contractual liability coverage.
Section 14.6 Indemnification by Owners
Subject to Section 14.1(b) hereof, each Owner agrees to defend,
indemnify and save the other Owners harmless against and from all claims, loss,
damages, costs and expenses, including reasonable attorney's fees, because of
bodily injury or death of persons or destruction of property resulting from or
arising out of such Owner's construction on and use, occupancy or possession of
its Tract or any other Owner's Tract except to the extent caused by the acts or
omissions of any of the other Owners.
Section 14.7 Joint Property and Liability Insurance
Notwithstanding the other provisions of this Article XIV, the Tower
I Owner shall obtain and maintain for all the Parking Deck Owners "all risk"
coverage property insurance as described in Section 14.2 of this REA with
respect to the Parking Deck and a commercial general liability insurance policy
issued by a financially responsible insurance company qualified to write such
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insurance and having a Best's financial rating of at least Class X, and
policyholder rating of at least A, insuring, protecting and indemnifying the
Parking Deck Owners from and against all claims, judgment or demands for death
or injury to persons and damage to property arising out of the use of the
Parking Deck and naming each Parking Deck Owner as an additional insured. Limits
of liability for such insurance shall be set by the Parking Deck Owners and
shall not be less than single limit coverage of $5,000,000 for bodily injury,
death, property damage. Tower I Owner shall deliver to each Parking Deck Owner
duplicate originals of the insurance policies issued by the insurance company,
together with an additional insured endorsement naming each such Owner,
including an agreement by such insurance company to notify the insured Owners
not less than thirty (30) days (ten (10) days as to non-payment of premiums)
prior to cancellation, modification or lapse of such insurance.
Section 14.8 Blanket Policies
Each Owner shall have the right, at its option, to comply with and
satisfy its obligations under this Article by means of any so-called blanket
policy or policies of insurance covering this and other locations of such Owner,
provided that such policy or policies by the terms thereof shall allocate to the
building and liabilities to be insured hereunder an amount not less than the
amount of insurance required to be carried pursuant to this Article XIV and
shall not diminish the obligations of the particular Owner to carry insurance,
so that the proceeds from such insurance shall be an amount not less than the
amount of proceeds that would be available if the Owner were insured under a
policy applicable only to the applicable Tract.
Section 14.9 Certificate of Insurance
Each Owner shall, on the request of another Owner, promptly furnish
the requesting Owner a certificate and an additional insured endorsement
evidencing the former Owner's compliance with the insurance coverage
requirements of this Article. Each certificate of insurance shall stipulate
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therein that the insurance evidence thereby shall not be materially reduced,
canceled or not renewed unless thirty (30) days' (ten (10) days as to
non-payment of premiums) prior written notice shall have been given by the
insurer to all other Owners. Unless notified of cancellation of a policy, no
Owner shall be required during any given 365-day period to honor more than one
such request from each other Owner. Upon request, any Owner shall permit any
other Owner or its representative to inspect and copy any insurance policy
required under this Article. Such inspection shall be at the place of business
of the Owner requested to produce such policy or policies.
Section 14.10 Adjustment of Coverages
All limits of coverage required hereunder shall be adjusted
throughout the Term to limits then applicable for comparable projects.
ARTICLE XV
REAL ESTATE TAXES
Section 15.1 Payment of Taxes
Each Owner shall pay (or cause to be paid) before delinquency all
Taxes levied on its Tract and the Improvements situated thereon, including any
Common Improvements.
Section 15.2 Contesting Taxes
Each Owner may, at its own cost and after notice to the other Owners
of its intention to contest Taxes, by appropriate proceedings contest the
validity, applicability and/or the amount of any Taxes applicable to its Tract
and Improvements and applicable to the Parking Tract and the Parking Deck.
Nothing in this Article requires an Owner to pay any Taxes as long as it
contests the validity, applicability or the amount thereof in good faith and so
long as it does not allow the affected Tract to be forfeited or be placed in
jeopardy of being forfeited to the imposer of such Taxes as a result of its
non-payment.
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Section 15.3 Failure to Pay Taxes
If an Owner fails to comply with this Article, any one or more other
Owners may, on five (5) days' prior written notice to the Owner in default, pay
the Taxes in question and shall be entitled to reimbursement from the defaulting
Owner for the sums so expended with Interest thereon from the date of advance
until paid within thirty (30) days after such Owner's payment of such Taxes.
Section 15.4 Common Improvements Assessments
The Parking Tract, Tower I Tract, Tower II Tract, and the
Hotel/Condo Tract shall each be separately assessed by the Governmental Agency
or Governmental Agencies having taxing jurisdiction over same. The Taxes on the
Parking Deck shall be a Parking Deck Expense, the Taxes allocable to the Loading
Dock and Loading Dock Access Area shall be a Loading Dock Expense, the Taxes
allocable to the Tower II Skybridge shall be a Tower II Skybridge Expense, the
Taxes allocable to the Access Tract shall be an Access Tract Expense, and the
Taxes allocable to the Hotel/Tower I Canopy shall be a Canopy Expense payable as
provided in Section IX hereof.
ARTICLE XVI
EASEMENTS
Section 16.1 General
(a) The grant of an Easement by an Owner shall bind and burden its
Tract (and its Undivided Interest therein) which shall, for the purpose of this
REA, be deemed to be the servient tenement (but where only a portion of the
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Tract is bound and burdened by the Easement, only that portion shall be deemed
to be the servient tenement), and shall survive the total or partial destruction
of the subject matter of the Easement and shall run with the land.
(b) The grant of an Easement to an Owner shall benefit its Tract
(and its Undivided Interest therein) which shall, for the purpose of this REA,
be deemed to be the dominant tenement (but where only a portion of the Tract is
so benefited, only that portion shall be deemed to be the dominant tenement).
(c) Unless provided otherwise, all Easements granted herein are
non-exclusive and in common with the Owner of the servient tenement, and
irrevocable, and for the benefit of each of the Owners of the dominant tenement.
Any Easement provided or reserved under this REA which is designated as
non-exclusive shall permit the Owner of the servient tenement to utilize such
Easement areas for its own purposes and/or grant other easements or interests
therein which are not inconsistent with that of the dominant tenement hereunder
or with this REA.
(d) The grant of an Easement shall run to the benefit of the Owner
that is the grantee of such Easement and the grantee of such Easement, its
successors and assigns as Owner of the Tract (and Undivided Interest therein) so
benefited by such Easement, shall have the right to allow its Permittees to use
such Easement.
(e) All Easements granted hereunder shall exist by virtue of this
REA, without the necessity or confirmation by any additional document. No
Easement may be terminated except by written instrument signed by the Owner that
is a grantee of such Easement and such Owner's Mortgagees. Upon the termination
of any Easement (in whole or in part) or its release (in whole or in part) in
respect of all or any part of any Tract (and Undivided Interest therein), the
same shall be deemed to have been terminated or released without the necessity
of confirmation by any other document. However, upon the request of any other
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Owner and at such requesting Owner's expense, each Owner will sign and
acknowledge a document memorializing the existence (including the location and
any conditions) the termination (in whole or in part), or the release (in whole
or in part), as the case may be, of any Easement, if the form and substance of
the document is reasonably acceptable to each Owner.
Section 16.2 No Dedication of Easements and Benefit to Permittees
Nothing contained in this REA, including the grant of any or all
Easements herein provided, shall be deemed to constitute a dedication of any
Tract or any portion or portions thereof to any governmental body or agency or
to the general public, or construed to create any rights in or for the benefit
of any Persons other than the Owners, it being the intention of the Owners that
this REA shall be strictly limited to and for the purposes herein expressed. The
Owner of any Tract may, however, extend the benefits of the Easements created by
this REA to its Permittees provided such Permittees shall observe and obey
applicable rules and comply with this REA. No Permittee, other than heirs,
successors, and assigns of the applicable Owner that is the grantee of an
Easement, shall acquire any rights in, to or under any Easement.
Section 16.3 Utility Easements
Nothing contained in this REA shall be deemed to prohibit or limit
the right of any Owner to (i) grant Easements to any governmental unit, public
body and/or utility company for the construction, installation, operation,
maintenance, repair, relocation, modification, extension or alteration of
sanitary sewers, storm drainage systems, fire protection installations, gas,
water, electric power and lighting and telephone lines, mains and trunks in,
under or access its Tract, so long as such utility lines are installed
underground and in such a manner as to not unreasonably interfere with the use
and operation of any of the Common Improvements or any other Easements, rights
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or privileges hereunder, or (ii) transfer or assign to any public body and/or
utility company any of the Easements on its Tract granted to the other Owners
hereunder, without the necessity of the payment of any compensation to the
grantee of such Easement. In addition, Tower II Owner hereby grants to Tower I
Owner for the benefit of Tower I Owner and the Tower I Tract a non-exclusive
easement to maintain water meters and electric meters on the Tower II Tract in
public utility easements or in another location to be reasonably approved by
Tower II Owner; and Tower I Owner hereby grants to Tower II Owner for the
benefit of Tower II Owner and the Tower II Tract a non-exclusive easement to
maintain water meters and electric meters on the Tower I Tract in public utility
easements or in another location to be reasonably approved by Tower I Owner.
Section 16.4 Easement for Encroachments
While it is the intention of the Owners to confine their
Improvements to the limits of their respective Tracts, it is recognized that
this result is not always achieved in a multi-ownership complex. Accordingly,
each Owner hereby grants to the others a non-exclusive easement permitting the
maintenance of balconies, canopies, decorative facia, footings, roofs, building
and other overhangs, awnings, alarm bells, utility vaults, staircases, exterior
light fixtures, pillars and other like projections and encroachments over,
across and under the Owner's Tract to the extent that such projections and
encroachments, not to exceed three feet (3') in any case, unless otherwise shown
on the as-built survey described in Section 3.7 or on the Plans, shall exist
after completion of all construction or reconstruction (if any part is damaged
or destroyed and then rebuilt). It is understood that the provisions of this
Section 16.4 shall survive the termination of this REA and shall continue
thereafter so long as any Owner's Improvements (or any replacement thereof
constructed during the Term of this REA) stands.
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If the Improvements on any Tract, following construction, encroach
on a portion of the Tract of another Owner, the Owner across whose Tract such
Improvements encroach, hereby grants to the Owner whose Improvements encroach a
non-exclusive easement for so long as such Improvements (or any replacement
thereof constructed during the Term of this REA) stands, permitting the
construction and maintenance of such Improvements on such portion of the
servient tenement; provided, however, that any such encroachment shall not
extend more than three feet (3'), unless otherwise shown on the Plans.
Section 16.5 Rights to Temporarily Close
Each Owner whose Tract is subject to an Easement reserves the right
to close off the Tract or any Improvements on the Tract temporarily for (a) such
reasonable periods of time as may be legally necessary to avoid the possibility
of dedicating the same for public use or to prevent the acquisition or creation
of prescriptive rights by anyone; and (b) such reasonable periods of time as may
be reasonably necessary for cleaning, repair, alteration, improvement or
maintenance; provided, however, before closing off any part thereof as provided
above, such Owner shall give notice to each Owner whose Tract benefits from such
Easement of its intention to do so and shall coordinate its closing with the
activities of each of such other Owners so that no unreasonable interference
with the operation of the applicable Easement occurs.
Section 16.6 Title
The grantor of an Easement hereby binds itself, its successors and
assigns to WARRANT and FOREVER DEFEND all and singular the Easement unto the
grantee of such Easement, its successors, heirs and assigns, against every
person whomsoever lawfully claiming or to claim the same or any part thereof,
by, through, or under such grantor but not otherwise.
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Section 16.7 Term
Unless specifically otherwise provided in this REA, the Easements
granted in this REA shall be perpetual and shall not terminate upon the
expiration or earlier termination of this REA.
Section 16.8 Street Widenings
Nothing contained in this REA shall be deemed to prohibit conveying
portions of the Parking Deck Tract or the Hotel/Condo Tract abutting Xxxx Road
for purposes of widening Xxxx Road, as shown on the Plot Plan.
ARTICLE XVII
CONDOMINIUM ASSOCIATION
Section 17.1 Creation
Tower I Owner and Tower II Owner hereby acknowledge that Hotel/Condo
Owner may, if the Hotel/Condo Improvements constitute a Condo, in the future
submit the Hotel/Condo Tract to the condominium form of ownership so that
individual units in the Condo are owned separately and the Association, acting
through its duly appointed officers is created to govern the operation of such
condominium. Hotel/Condo Owner shall give Tower I Owner and Tower II Owner
written notice at least sixty (60) days prior to submitting the Hotel/Condo
Tract to the condominium form of ownership (which notice shall include the
notice address for the Association). Tower I Owner and Tower II Owner shall have
the right to review and approve all documents creating the condominium,
including, without limitation, the declaration of condominium and articles and
bylaws for the Association and any and all amendments thereto from time to time
which relate to the obligations of Hotel/Condo Owner, the Association or the
Unit Owners under this REA prior to the execution and recordation thereof solely
to confirm that such documents comply with the terms of this Article XVII and
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Article XVIII and do not violate the terms of this REA (such documents as
amended from time to time are hereinafter referred to as the "Condo Documents").
The Condo Documents must include all obligations and agreements of the
Hotel/Condo Owner, the Association and the Unit Owners contained in this REA. No
Condo Documents shall be executed or recorded until such approval is obtained.
Section 17.2 Effect on Hotel/Condo Owner.
(a) If Hotel/Condo Owner elects to submit the Hotel/Condo Tract to
the condominium form of ownership, all payments required to be made by
Hotel/Condo Owner hereunder shall be the obligation of the Association, and
shall in turn be allocated by the Association to the owners of condominium units
(each, a "Unit") in the Condo (each such owner, a "Unit Owner") in accordance
with the Association's method of allocating common expenses pursuant to the
Condo Documents. All remedies set forth in this REA with respect to default in
the payment of any such amounts shall apply to the entire Hotel/Condo Tract and
all Improvements thereon, including, without limitation, the Condo and all Units
therein.
(b) After the submission of the Hotel/Condo Tract to the condominium
form of ownership, all obligations of Hotel/Condo Owner under this REA
(including, without limitation, obligations under Article IX) shall be the
obligations of the Association, and Tower I Owner and Tower II Owner shall have
the right to direct all communication regarding such obligations solely to the
Association in lieu of the Unit Owners. Furthermore, any approvals of
Hotel/Condo Owner required under this REA shall be granted by the President (or
Vice President in the President's absence) of the Association. Tower I Owner and
Tower II Owner shall be entitled to rely on any approval granted by the
President or Vice President of the Association as approval of the applicable
item by Hotel/Condo Owner, and no further approvals (including, without
limitation, approvals by individual Unit Owners) shall be required.
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Section 17.3 Obligations of the Association.
(a) The Association shall include all amounts owed by Hotel/Condo
Owner under this REA in any year during the Term in its annual budget for such
year as part of the common expenses of the condominium and all such amounts owed
shall be assessed to the Unit Owners by the Association and each Unit Owner
shall be personally liable for payment thereof. The Association shall be
responsible to collect all such amounts as part of the common expenses of the
condominium from the Unit Owners and shall remit amounts due to Tower I Owner
and Tower II Owner under this REA to Tower I Owner and Tower II Owner prior to
applying any amounts collected from the Unit Owners to other expenses of, or
other assessments due to, the Association, regardless of any contrary intent
expressed by any Unit Owner.
(b) The Association shall provide to Tower I Owner and Tower II
Owner, on a quarterly basis (and at more frequent intervals upon Tower I Owner's
and Tower II Owner request), a list of all Unit Owners, which shall include with
respect to each Unit Owner (i) its address, (ii) the Unit(s) owned by such Unit
Owner, (iii) the parking card identification number(s) for such Unit Owner, and
(iv) the percentage share of common expenses assessed by the Association to such
Unit Owner; provided, however, if any of items (i) through (iv) above are
included in the Condo Documents, the Association need only provide such
information if the information has changed from that listed in the Condo
Documents.
Section 17.4 Covenant of Unit Owners
Each Unit Owner by acceptance of a deed to its Unit shall be deemed
to have covenanted and agreed as follows (whether or not the deed specifically
so states):
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(a) the Unit Owner agrees to pay when due all amounts imposed or
assessed against his or her Unit by the Association pursuant to the terms of
this REA;
(b) the amounts imposed upon or assessed under this REA shall be
secured by a continuing lien upon the Unit Owner's Unit pursuant to Section
18(c) hereof;
(c) all amounts paid by the Unit Owners to the Association for
common expenses shall be first applied to all amounts owed pursuant to this REA
until such amounts have been paid in full and may only thereafter be applied by
the Association to other amounts owed to the Association which also constitute
common expenses, each Unit Owner acknowledging that the rights to amounts owed
pursuant to this REA and remedies under this REA for non-payment of such amounts
are superior to the rights of others entitled to payment for common expenses and
the remedies for non-payment thereof; and
(d) the Unit Owner confirms and recognizes the authority of the
President and Vice President of the Association to grant any approvals required
under this REA on such Unit Owner's behalf.
The foregoing covenants shall be included in the Condo Documents.
ARTICLE XVIII
REMEDIES
Section 18.1 Default
(a) If any Owner, or the Association, as applicable ("Defaulting
Party") should fail to perform any of the obligations to be performed by it
pursuant to this REA, including construction or restoration of Common
Improvements, but excluding the construction of Improvements that are not Common
Improvements, or fail to make any required payment hereunder, and such default
is not cured within thirty (30) days after (or if the default is of such
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character as reasonably to require more than thirty (30) days to cure and the
Defaulting Party shall fail to commence to cure the same within such period or
shall fail to use reasonable diligence in curing such default thereafter) any
other Owner adversely affected thereby ("Affected Party") shall have served
notice of such failure upon the Defaulting Party and the other Owners or if the
failure of the Defaulting Party relates to a matter which in the Affected
Party's judgment reasonably exercised is of an emergency nature and such failure
shall remain uncured for a period of forty-eight (48) hours after the Affected
Party shall have served upon the Defaulting Party notice of such failure (or
such shorter time and even after oral notice if the nature of the emergency
shall so dictate), then the Affected Party (or if more than one other Party
shall be so affected, the Affected Party first serving such notice) may at its
option, and in its sole discretion as to the necessity therefor, perform any
such obligation, or make any such payment, unless the Affected Party's remedies
are expressly limited in this REA. If the Affected Party first serving notice
shall fail to commence performance of such covenant or make such payment within
thirty (30) days after the expiration of the above specified period allowing the
Defaulting Party to cure such default, any such other Affected Party shall be
entitled to cure the Defaulting Party's default with the same effect as though
it had first served such notice.
(b) If any Affected Party so performed any of the Defaulting Party's
obligations hereunder, the full amount of the cost and expense incurred or the
payment so made or the damage so sustained, as the case may be, shall
immediately be owing by the Defaulting Party to the Affected Party and the
Defaulting Party shall repay to the Affected Party upon demand the full amount
thereof with Interest from the date of payment.
(c) (i) The Affected Party is hereby granted a lien upon the
Tract or Tracts of the Defaulting Party in the amount of any such
payment, together with Interest thereon, not paid within thirty (30)
days after demand is made, and said lien may been enforced by
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judicial foreclosure proceedings against the Defaulting Party's
Tract or Tracts in accordance with then applicable Texas law. The
Affected Party shall have the right to file with the appropriate
governmental office or offices a memorandum of lien, lis pendens or
other notice or notices as may be required by law to give notice of
such lien and the amount thereof, said notice or notices to be filed
after the expiration of said 30-day period.
(ii) Notwithstanding the foregoing or any other provision of
this Section 18.1(c), in no event shall the foreclosure or any other
enforcement of the lien created by Section 18.1(c)(i) result in a
termination of any lease with respect to space in Improvements
located on any Tract.
(iii) For any period which is not during the Subordination
Period (as defined in Section 18.1(c)(iv) below), the lien granted
in this Section 18(c) shall be prior to and superior to any other
liens or encumbrances on the Defaulting Party's Tract or Tracts and
all Improvements thereon, including any liens arising or attaching
before, on and/or after (subject to Section 18.1(c)(iv) below) the
date on which notice of such lien and the amount thereof is filed
with the appropriate governmental office or offices. Additionally,
during the Subordination Period, the lien granted in this Section
18(c) shall be prior to and superior to any other liens or
encumbrances on the Defaulting Party's Tract or Tracts and all
Improvements thereon (including any liens arising or attaching
before, on and/or after [subject to Section 18.1(c)(iv) below] the
date on which notice of such lien and the amount thereof is filed
with the appropriate governmental office or offices) if (i) the
Defaulting Party is Tower I Owner, or Tower II Owner, and (ii) the
Affected Party is Tower I Owner or Tower II Owner.
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(iv) If a Condo is constructed on the Hotel/Condo Tract and
the Condo has been submitted to a condominium form of ownership,
during the period such Condo continues to be operated as a
condominium on the Hotel/Condo Tract (the "Subordination Period"),
the lien granted to the Affected Party by Section 18.1(c)(i) above
shall become subordinate to any lien held by a third party holder of
a bona fide first lien Mortgage encumbering (x) the Hotel/Condo
Owner's Tract and/or the Improvements located thereon (including,
without limitation, any Unit in the Condo) arising during the
Subordination Period, and (y) the Tower I Tract and/or the Tower II
Tract and any Improvements located thereon only if the Affected
Party is the Hotel/Condo Owner, during the Subordination Period;
provided, however, that any Mortgagee holding a first lien Mortgage
described above when in possession or any receiver, and in the event
of a foreclosure, any purchaser at a foreclosure sale, and any such
Mortgagee acquiring a deed in lieu of foreclosure, and all persons
claiming by, through or under such purchaser or Mortgagee, shall
hold title subject to the liability and lien of any payment
hereunder coming due after (but not prior to) such foreclosure (or
conveyance in lieu of foreclosure). Throughout the Term of this REA,
the lien granted in Section 18.1(c)(i) shall be prior to and
superior to any other liens or encumbrances on the Defaulting
Party's Tract or Tracts and all Improvements located thereon arising
or attaching before, on and/or after the date on which notice of
such lien and the amount thereof is filed with the appropriate
governmental office or offices (subject to the first sentence of
this Section 18.1(c)(iv)).
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Notwithstanding the foregoing, if a Condo is constructed on the
Hotel/Condo Tract, the Condo has been submitted to the condominium
form of ownership and Tower I Owner or the Tower II Owner is the
Affected Party, Tower I Owner or the Tower II Owner shall, upon
written request from the applicable Unit Owner(s) or the
Association, exclude any Unit(s) owned by Unit Owner(s) who pay
directly to Tower I Owner or the Tower II Owner their prorata share
(as determined by the most recent common expense allocations
delivered to Common Area Manager by the Association) of any unpaid
amount which is the subject of the applicable default (whether or
not such amount has been assessed by or paid to the Association by
such Unit Owner) (any such Unit for which such sums are paid in full
directly to Tower I Owner or the Tower II Owner is hereinafter
referred to as an "Excluded Unit") from any foreclosure proceeding
related to the applicable default. Furthermore, if the Affected
Party has filed with the appropriate governmental office or offices
a memorandum of lien, lis pendens or other notice or notices as may
be required by law to give notice of such lien and the amount
thereof in accordance with Section 18.1(c)(i), upon written request
from a Unit Owner of an Excluded Unit or the Association, Tower I
Owner or the Tower II Owner shall deliver a release of any such
memorandum of lien, lis pendens or notices for the Excluded Unit,
but no such release shall diminish the effectiveness of this REA as
to the Excluded Unit or the availability of any default remedy
granted in this REA with respect to the Excluded Unit for any
subsequent default hereunder, or release the Association from the
defaulted obligation.
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(d) The holder of a Mortgage on all or any portion of a Tract shall
have the right to be subrogated to the position of the holder of any lien
arising pursuant to this Article XVIII affecting the property secured by its
Mortgage upon payment of the amount secured by such lien.
(e) The option given in this Article is for the sole protection of
the Affected Party and its existence shall not release the Defaulting Party from
the obligation to perform the terms, provisions, covenants and conditions herein
provided to be performed by it or deprive the Affected Party of any legal rights
which it may have by reason of any such default except as may be otherwise
provided in this REA.
(f) In addition to (and not in lieu of) the foregoing remedies, in
the event the Association or any Unit Owner fails to pay any portion of any
monetary sum due hereunder within any applicable cure period described above, to
the maximum extent permitted by law, Common Area Manager shall have the right in
its sole and absolute discretion to disable all Parking Deck access cards issued
to Unit Owners and prohibit access to the Hotel/Condo Spaces and the Shared
Spaces by the Association and all Unit Owners (even those Unit Owners who have
paid their prorata share of such monetary sum to the Association or Common Area
Manager) until all outstanding sums due under this REA are paid in full by the
Association and/or the Unit Owners, which action shall not serve to release the
Association and/or Unit Owners from any past due amounts or any amounts not yet
assessed under this REA. Hotel/Condo Owner and/or the Association, if in
existence, hereby agree to jointly and severally indemnify, defend and hold
Common Area Manager harmless from and against any and all claims, loss, damages,
costs and expenses, including reasonable attorneys' fees, incurred by Common
Area Manager due to Common Area Manager 's exercise of its rights under this
Section 18.1(f).
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(g) In addition to the remedies provided above, the Owners shall
have the right to obtain injunctive or other legal or equitable relief as may be
available at law or in equity.
ARTICLE XIX
NOTICES
Section 19.1 Notice to Owners
Each notice, demand, request, consent, approval, disapproval or
designation (all of which are herein referred to as a "Notice") that an Owner is
required or desires to give or make or communicate to any other Owner shall be
in writing and shall be given or delivered:
In the case of Xxxxx Corporate Properties LLC
Tower I Owner to: c/o Hines Interests Limited Partnership
0000 Xxxx Xxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
and with a copy to: Xxxxx Xxxxx L.L.P.
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
and with a copy to: Xxxxx Interests Limited Partnership
One Galleria Tower
00000 Xxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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and with a copy to: Xxxxx Xxxxx L.L.P.
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
in the case of Hotel/Condo Owner: Xxxxx Xxxxxx Hotel Limited Partnership
c/o Hines Interests Limited Partnership
0000 Xxxx Xxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: X. Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
and with a copy to: Xxxxx Interests Limited Partnership
One Galleria Tower
00000 Xxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
and with a copy to: Xxxxx Xxxxx L.L.P.
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
in the case of Tower II Owner to: RREEF Dallas
0000 Xxxxxx Xxx, Xxxxx 000
Xxxxxxxxxx, Xxxxx 00000
Attn: Galleria North Tower II
District Manager
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
and with a copy to: Norton X'Xxxxx
RREEF Portfolio Management Group
Vice President
000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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sent by certified United States Mail, return receipt requested, telecopy, or by
Federal Express (or other national overnight delivery service) or other courier
service. Notices sent via certified United States Mail shall be deemed received
two (2) business days after being deposited in a regularly maintained receptacle
for the United States Mail. Notices sent via telecopy shall be deemed received
upon receipt (provided transmission and receipt thereof is during Normal
Business Hours on business days, otherwise, such telecopied notices shall be
deemed received on the next business day) by the sender of electronic
confirmation of the transmission thereof. Any other notice shall be deemed given
upon receipt or refusal thereof. Any Owner shall have the right to change its
address to which notices shall thereafter be sent and the party to whose
attention such notice shall be directed by giving the other party notice fifteen
(15) days prior written notice thereof in accordance with the provisions of this
Section 19.1. Additionally, each Owner may designate up to three (3) additional
addresses to which copies of all notices shall be sent.
Section 19.2 Notice to Mortgagee
Each Owner giving a notice of default under this REA shall send, in
accordance with Section 19.1, a copy of such notice to any holder of a Mortgage
on the Tract and/or Improvements of the Owner so notified, provided such holder
or its mortgagor shall have sent the Owner giving the notice of default a notice
informing it of the existence of such Mortgage and the name of the person or
officer and the address to which copies of the notices of defaults are to be
sent, and such holder and any other Person named as recipient of notice pursuant
to Section 19.1 above shall be permitted to cure any such default not later than
sixty (60) days after a copy of the notice of default shall have been sent to
such holder or other notice recipient, provided that in the case of a default
which cannot with diligence be remedied within such period of sixty (60) days
that if it has commenced within the sixty (60) days and is proceeding with
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diligence to remedy such default, then such holder or other notice recipient
shall have such additional period as may be necessary to remedy such default
with diligence and continuity. Initiation of foreclosure proceedings against a
defaulting Owner shall constitute "diligence" by a Mortgagee hereunder so long
as such foreclosure proceedings are continuously pursued. The foregoing
requirements to give notice of default to a Mortgagee and allow such Mortgagee
an opportunity to cure such default shall not preclude the exercise of self-help
remedies by a non-defaulting Owner under Section 18.1 in the event of an
emergency.
ARTICLE XX
ASSIGNMENT, TRANSFER AND MORTGAGE, LIMITATION OF LIABILITY
Section 20.1 Party Not Released Except as Provided Herein
(a) A transfer or conveyance by any Owner of its entire Tract or
assignment of this REA shall be deemed to release such Owner from all further
liability arising under this REA in respect of any period after the last to
occur of (x) the date of such transfer or conveyance, and (y) the date such
Owner shall no longer have a possessory interest in its Tract, either as owner
or lessee in possession.
(b) If any of the Tracts are sold or otherwise transferred, such
transfers shall be subject to this REA and the transferees, including the lessor
under a Ground Lease reacquiring possession upon termination of such Ground
Lease, shall be bound by its transferor's obligations hereunder as fully as if
such transferees were originally parties hereto, and such obligations shall run
with and be binding upon the Tracts and be binding upon all subsequent owners
thereof, including any claims or liens arising under this REA against a prior
Owner of a Tract which shall continue as to any transferee of such Tract.
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Section 20.2 Possessory Party Remains Responsible
Notwithstanding anything to the contrary herein contained, if any
Owner shall (i) convey its Tract and assign its interest under this REA in
connection with a sale and leaseback or lease and sublease back, and it shall
simultaneously become vested with a leasehold estate or similar possessory
interest in its Tract by virtue of a lease made by the grantee or lessee, as the
case may be, or (ii) shall convey its Tract or its interest therein by way of a
Mortgage and retain its possessory interest in its Tract, then, in neither of
such events shall the assignee of this REA under such sale and leaseback or
lease and sublease back, or the Mortgagee under any such Mortgage, be deemed to
be an Owner or to have assumed or be bound by any of such Owner's obligations
hereunder for so long as such Owner shall retain such possessory interest, and
such obligations and the status as an Owner hereunder shall continue to remain
solely those of such Owner so long as such Owner retains such possessory
interest and performance by such Owner of any act required to be performed under
this REA by it or fulfillment of any condition of this REA by such Owner shall
be deemed the performance of such act or the fulfillment of such condition and
shall be acceptable to the Owners with the same force and effect as if performed
or fulfilled by such assignee, lessor, or Mortgagee.
Section 20.3 Rights of Parties
Notwithstanding anything to the contrary contained in this REA, but
subject to Section 11.4, each Owner may Mortgage its Tract or its interest
therein and/or sell and leaseback or lease and sublease back its Tract or its
interest therein, and, in connection with any such transaction, assign its
interest in this REA. If any such Mortgage is foreclosed or a deed delivered in
lieu of foreclosure, or if any Owner shall have entered into a sale and
leaseback or a lease and sublease back transaction involving its Tract and any
such Owner is the lessee or sublessee thereunder and such lessee or sublessee
shall be deprived of possession of such Tract by reason of its failure to comply
with the terms of such leaseback or sublease back, any person or entity who has
acquired, or shall thereafter acquire, title to such Tract or a leasehold estate
therein shall hold the same subject to all other terms, provisions, covenants,
conditions and restrictions contained in this REA.
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Section 20.4 Priority of REA
This REA and the rights, interests, liens, and Easements created
hereunder shall be prior and superior to any Mortgage or other lien upon or
against any Owner's Tract or Tracts other than such liens as by law have
priority over the lien and operation of this REA.
Section 20.5 Ground Leases
If any Owner of fee simple title to a Tract has entered into, or
shall enter into, a Ground Lease of its entire Tract (or Undivided Interest
therein) and other interests in accordance with Section 11.4, then the lessee
under such Ground Lease shall be deemed to be the Owner of such Tract (or
Undivided Interest therein) and to have assumed or be bound by any and all of
such Owner's obligations hereunder for so long as such lessee shall be the
lessee under such Ground Lease, and such obligations and the status as an Owner
hereunder shall continue to remain solely those of such lessee so long as such
lessee shall be the lessee under such Ground Lease. The lessor under any such
Ground Lease shall not be the Owner of the applicable Tract (or Undivided
Interest therein), and shall not have any of the rights or obligations of an
Owner hereunder until such time as the Ground Lease terminates or expires. Upon
such termination of expiration of such Ground Lease, the lessor thereunder shall
become the Owner of the applicable Tract (or Undivided Interest therein) subject
to and bound by the terms of this REA.
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Section 20.6 Limitation of Liability
No Owner or its partners, venturers, employees, shareholders,
affiliates, officers, directors, agents, representatives, agents, advisors, or
consultants shall have any personal liability for its or their failure to
perform any covenant, term or condition of this REA, it being expressly agreed
that any money judgment recovered against any Owner shall be satisfied only out
of, and the sole and exclusive recourse of any Owner damaged as a result of such
default shall be against, the right, title and interest of such Owner in the
Tract involved and the Improvements thereon including the proceeds of sale
received upon execution of such judgment thereon against the right, title and
interest of such Owner in the Tract involved and the Improvements thereon and
the rents or other income or revenue from such property receivable by such Owner
or the consideration received by such Owner from the sale or other disposition
(including a Condemnation) of all or any part of such Owner's right, title and
interest in the Tract involved and Improvements thereon or the insurance
proceeds received by such Owner respecting any casualty affecting the
Improvements.
ARTICLE XXI
EMINENT DOMAIN
Section 21.1 Condemnation of Common Areas.
Except as expressly provided herein to the contrary, if any part of
the Common Improvements shall be taken by Condemnation during the Term of this
REA, then the Owner on whose Tract or Tracts such portion of the Common
Improvements is located shall, at its own cost and expense and without regard to
the amount of the Condemnation proceeds awarded, restore or replace the same to
the extent they can be restored or replaced as nearly as possible to its
condition immediately prior to such taking and shall restore or replace any
entrances, exits, ramps, driveways, stairs or other Improvements as may be
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necessary to permit the continued use and operation of the remaining portion of
the Common Improvements. If, as a result of such Condemnation, any Easement is
extinguished or materially impaired, then changes shall be made to provide
easements comparable, to the extent commercially practicable under the
circumstances, to the Easement created or reserved under this REA. If the
Condemnation proceeds are insufficient, the costs of restoration in excess of
such Condemnation proceeds shall be paid by the Owners in the percentages set
forth in Section 3.4, as to the initial construction of the particular
Improvement. If, upon completion of any such repair and restoration, there are
any remaining Condemnation proceeds, any such remaining Condemnation proceeds
shall be refunded to the Owners in the percentages set forth in Section 3.4 as
to the initial construction of the particular Improvement. Such restoration or
replacement shall be performed in accordance with the provision of this REA, and
shall be completed with diligence but in no event later than the date which is
twelve (12) months as to the Parking Deck and twenty-four (24) months as to all
other Improvements after the Condemnation Date; provided, however, that said
twelve (12) month and twenty-four (24) month period shall be subject to
extension by reason of Unavoidable Delays, said extension to be for the period
of such Unavoidable Delays.
Section 21.2 Condemnation of Other Improvements
If any Improvements on a Tract shall be taken by Condemnation, the
Owner of such Tract shall, promptly restore or replace such Improvements so as
to constitute a complete architectural unit to the extent required under Section
21.1, or, if not required to restore under Section 21.1, then such Owner shall,
if it elects not to restore, promptly comply with the requirements of Section
13.3 hereof as to such Improvements.
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Section 21.3 Award
(a) In the event a Tract or any part thereof is taken by
Condemnation, each Owner, including any Owners who hold Easements in the
Condemned Tract, shall, subject to Section 21.3(b), be entitled to claim and
collect from the condemning authority and recover out of the Condemnation award
the damages to its own Tract resulting from the taking of the condemned portion
of the other Tract.
(b) The entire award made for a taking by Condemnation of any
Improvements shall be applied first, before being devoted to any other purpose,
to restoration or razing of the Improvements to the extent required by this
Article XXI.
(c) In the event of an award to any Owner in excess of Five Hundred
Thousand Dollars ($500,000.00), the proceeds thereof shall be deposited in a
bank or trust company reasonably satisfactory to each of the Owners (a first
Mortgagee of the Owner's Tract which was taken by Condemnation being
satisfactory) and shall be held and re-advanced in accordance with the procedure
set forth in Section 14.3.
Section 21.4 Notice of Proposed Condemnation
If any Owner (the "condemnee") shall receive official notice from a
condemning authority ("condemnor") of a proposed condemnation of any of the
condemnee's Tract, such Owner shall inform the other Owners of such fact, and
when known, of the portion or portions of its Tract to be so condemned and the
date upon which it is anticipated that the condemnee will be required to
surrender possession thereof to the condemnor. No Owner shall execute or deliver
any conveyance affecting any Common Improvements in lieu of Condemnation without
the prior written consent of Tower I Owner and Tower II Owner, each acting in
their sole discretion.
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ARTICLE XXII
ALTERATIONS AND ADDITIONS TO IMPROVEMENTS
Section 22.1 Alterations
Each Owner shall have the right to make, at its own cost and
expense, such alterations to its Improvements (other than Common Improvements)
as it may desire so long as the same are in accordance with this REA, including
Article XI and this Article XXII, and so long as the same will not (a) result in
a condition having a materially adverse effect on the use and enjoyment of the
Common Improvements as shown on the Plans or provided for in this REA, (b)
impair the structural integrity and soundness of the Improvements in question,
(c) use a different exterior material than existed before or result in a
substantially different exterior appearance, (d) increase materially the cost of
maintenance of another Owner's Improvements or the Common Improvements, (e)
render performance of any covenant hereunder on the part of such Owner
impossible, (f) adversely affect the orderly flow of pedestrian and vehicular
traffic on the Site or render any Tract less accessible to such traffic, or (g)
reduce the capacity of the Parking Deck below the ratio required to be
maintained in order to meet the requirements of this REA. In addition, any
Material Changes to the Hotel/Condo Improvements must be approved by Tower I
Owner and Tower II Owner; any Material Changes to Tower I must be approved by
Tower II Owner; and any Material Changes to Tower II must be approved by Tower I
Owner.
Section 22.2 Approval
The Owner (the "Developing Owner") who proposes to make Material
Changes to such Improvements shall reimburse the other Owners their reasonable
expenses of reviewing and approving the plans for such Improvements within
thirty (30) days following receipt of invoices therefor. At the time the
Developing Owner submits the plans as hereinabove required, it also shall submit
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engineering reports from structural engineers licensed by the State of Texas
demonstrating that the new Improvements can be built without material structural
damage to the Common Improvements. Any approval required under this Article XXII
shall be given or withheld within ten (10) days after submission to the
applicable Owner of the request for such approval in writing together with
information sufficient to make an informed decision. The failure of an Owner to
respond to an initial request within such ten (10) day period shall be deemed
disapproval of such request; provided that if a second request is made regarding
the same subject matter, then the failure to respond within five (5) days shall
be deemed approval of such request. Approvals required under this Article XXII
may be given or withheld in the sole discretion of the Owner from whom such
approval is required, provided that such approval shall not be unreasonably
withheld if the applicable Improvements, after the implementation of such
alterations, will comply with First Class Standards and will be architecturally
harmonious with the other Improvements on the Site. Any such Improvements shall
be constructed in substantial accordance with the plans therefor as approved by
the Owners required to approve them hereunder and in good and workmanlike
manner, using first-class materials in accordance with First Class Standards, in
accordance with all applicable laws, ordinances, rules and regulations
(including, without limitation, building codes) of all Governmental Agencies,
and otherwise in accordance with the terms and conditions of this REA. Without
limiting the generality of the foregoing, no such Improvement shall be
constructed in such manner as will cause any then existing Improvement to be in
violation of applicable building codes. The Developing Owner shall indemnify and
hold the other Owners harmless from all claims, damages, liabilities,
responsibilities, costs and expenses (including reasonable attorneys' fees)
arising out of, related to or in any manner connected with the construction of
the new Improvements including, without limitation, the cost of repairing any
damage to any existing Improvements, including the Common Improvements,
resulting from the construction of such new Improvements.
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ARTICLE XXIII
PERMITS
Any easements, franchises, grants of air rights, conveyances of fee
simple title to property within the current rights of way of public streets
adjoining the Site or other permits, (said easements, franchises, grants of air
rights, conveyances and permits being hereinafter referred to collectively as
the "Appurtenances") now held by or hereafter acquired or obtained by any of the
Owners from Governmental Agencies in connection with the construction of
Improvements, including the Common Improvements, located on the Site shall be,
and hereby are made, subject to this REA and all of the terms and provisions
hereof. For purposes of this REA, said Appurtenances shall be deemed to be part
of the Tract of the Owner acquiring or obtaining same, and, as part of said
Tract, shall be subject to the Easements and other rights and burdens granted
and created herein including, without limitation, the Easements granted in this
REA. The Owner which holds or is the owner of any Appurtenance shall be solely
responsible for any fees or taxes payable with respect thereto except to the
extent that such fees or taxes are includable in Expenses. In the event of
expiration (without renewal), termination, revocation, condemnation or other
loss of any Appurtenance, the provisions of Article XXI of this REA shall govern
entitlement to any award or other compensation, if any, resulting therefrom.
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ARTICLE XXIV
ARBITRATION
Section 24.1 Arbitration
(a) Any Owner may require that any dispute under this REA be
submitted to arbitration pursuant to this Section 24.1. All arbitrations shall
occur at a location in Dallas, Texas chosen by the arbitrators and shall be
conducted pursuant to the Arbitration Rules for the Real Estate Industry
(effective on May 1, 1994, and as subsequently amended) of the American
Arbitration Association (or the successor organization, or if no such successor
organization exists, then from an organization composed of persons of similar
professional qualifications). To the extent the provisions of this Section 24.1
vary from or are inconsistent with the Arbitration Rules for the Real Estate
Industry (effective on May 1, 1994, and as subsequently amended) of the American
Arbitration Association or any other arbitration tribunal, the provisions of
this Section 24.1 shall govern. All arbitrations will be governed by the
provisions of this Section 24.1, the Arbitration Rules for the Real Estate
Industry (effective on May 1, 1994, and as subsequently amended) of the American
Arbitration Association (to the extent not inconsistent with this Section 24.1),
and the laws of the State of Texas (to the extent not inconsistent with any of
the foregoing). The party desiring such arbitration shall give notice to that
effect to the other party and simultaneously therewith also shall give notice to
the director (the "Director") of the Dallas, Texas regional office of the
American Arbitration Association (or the successor organization, or if no such
successor organization exists, then from an organization composed of persons of
similar professional qualifications), requesting such organization to select, as
soon as possible but in any event within the next thirty (30) days, three
neutral arbitrators with, if reasonably possible, recognized expertise in the
subject matter of the arbitration. At the request of any party, the arbitrators
shall authorize the service of subpoenas for the production of documents or
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attendance of witnesses. Within thirty (30) days after their appointment, the
arbitrators so chosen shall hold a hearing at which each party may submit
evidence, be heard and cross-examine witnesses, with each party having at least
ten (10) days' advance notice of the hearing. The hearing shall be conducted
such that each Owner shall have reasonably adequate time to present oral
evidence or argument, but either party may present whatever written evidence it
deems appropriate prior to the hearing (with copies of any such written evidence
being sent to the other party). In the event of the failure, refusal or
inability of any arbitrator to act, a new arbitrator shall be appointed in his
stead, which appointment shall be made in the same manner as hereinbefore
provided. The decision of the arbitrators so chosen shall be given within a
period of thirty (30) days after the conclusion of such hearing and shall be
accompanied by conclusions of law and findings of fact. The decision in which
any two arbitrators so appointed and acting hereunder concur shall in all cases
be binding and conclusive upon the parties and shall be the basis for a judgment
entered in any court of competent jurisdiction. The fees and expenses of
arbitration under this Section 24.1 shall be apportioned to the Owners in such a
manner as decided by the arbitrators. The Owners may at any time by mutual
written agreement discontinue arbitration proceedings and themselves agree upon
any such matter submitted to arbitration.
ARTICLE XXV
MISCELLANEOUS
Section 25.1 Term of this REA
This REA and the obligations hereunder shall continue, and shall
remain binding from the date hereof until December 31, 2097 (the "Termination
Date"); provided, however, that the Easements created in this REA (and the cost
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sharing obligations pertaining thereto) which are perpetual shall survive in
perpetuity. Notwithstanding the foregoing, in the event it is determined that
this REA, or any provision thereof, is governed by or subject to the rule
against perpetuities or any other rule of law limiting the term or duration
hereof, then this REA, or such provision, as the case may be, shall terminate on
the earlier of (i) December 31, 2097, or (ii) the date on which twenty (20)
years after the date of death of the last surviving child living as of the date
of this REA of any of the partners as of the date of this REA of Xxxxx Xxxxx
L.L.P., a Texas limited liability partnership; or (iii) the longest period
permitted pursuant to such rule of law.
Section 25.2 Amendments and Modifications
This REA may be amended, modified or terminated by the Owners and
their respective Mortgagees, without the consent or approval of any other
Person(s) including, without limitation, any tenants occupying any Improvements,
each acting in their sole discretion. Any amendment or modification hereof, in
order to become effective, shall be made by written instrument in recordable
form executed by each of the Owners, each acting in their sole discretion.
Section 25.3 Exhibits
Each reference herein to an Exhibit refers to the applicable Exhibit
that is attached to this REA. All such Exhibits constitute a part of this REA
and by this Section are expressly made a part hereof.
Section 25.4 References to Articles, Sections and Subsections
All references herein to a given Article, Section, subsection or
subparagraph refer to the Article, Section, subsection or subparagraph of this
REA.
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Section 25.5 Table of Contents and Captions
The table of contents and captions of this REA are inserted only as
a matter of convenience and for reference. They do not define, limit or describe
the scope or intent of this REA and they shall not affect the interpretation
hereof.
Section 25.6 Locative Adverbs
The locative adverbs "herein," "hereunder," "hereto," "hereby,"
"hereinafter," and like words wherever the same appear herein, mean and refer to
this REA in its entirety and not to any specific Article, Section or subsection
or hereof.
Section 25.7 REA for Exclusive Benefit of Parties
The provisions of this REA are for the exclusive benefit of the
Owners, their successors and assigns, and not for the benefit of any Person not
an Owner. This REA shall not be deemed to have conferred any rights upon any
third person.
Section 25.8 Waiver of Default
A waiver of any default by an Owner must be in writing and no such
waiver shall be implied from any omission by an Owner to take any action in
respect of such default. No express written waiver of any default shall affect
any default or cover any period of time other than the default and period of
time specified in such express waiver. One or more written waivers of any
default in the performance of any provisions of this REA shall not be deemed to
be a waiver of any subsequent default in the performance of the same provisions
or any other term or provisions contained herein. The consent or approval by an
Owner to or of any act or request by another Owner requiring consent or approval
shall not be deemed to waive or render unnecessary the consent or approval to or
of any subsequent similar act or requests.
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Section 25.9 No Partnership, Joint Venture or Principal-Agent
Relationship
Neither anything in this REA nor any acts of the Owner shall be
deemed by the Owners, or by any third person, to create the relationship of
principal and agent, or of partnership, or of joint venture, or of any
association between the Owners, and no provisions of this REA are intended to
create or constitute any Person a third party beneficiary thereof.
Section 25.10 Estoppel Certificates
Any Owner shall, from time to time, upon not less than ten (10)
business days' notice from any other Owner, execute and deliver to such other
Owner a certificate in recordable form stating, if such be the case, that this
REA is unmodified and, to the best of its knowledge, this REA is in full force
and effect, as modified, and stating the modification and stating whether or
not, to the best of its knowledge, the Owner requesting such certificate is in
default in any respect under this REA, and if in default, specifying such
default and any amounts owed to or by it under the terms of this REA.
Section 25.11 Successors
This REA shall be binding upon and inure to the benefit of the
respective successors and assigns of the Owners.
Section 25.12 Governing Laws
This REA shall be construed and governed in accordance with the laws
of the State of Texas.
Section 25.13 Remedies Cumulative
Unless otherwise expressly provided herein, all rights, privileges
and remedies afforded the Owners by this REA shall be deemed cumulative and the
exercise of any one of such remedies shall not be deemed to be a waiver of any
other right, remedy or privilege provided for herein or by law or in equity.
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Section 25.14 Covenants Run With the Land
It is intended that the covenants, grants, easements, agreements,
promises and duties of each Owner as set forth in this REA, shall be construed
as covenants and not as conditions, and that, to the fullest extent legally
possible, all such covenants shall run with and be enforceable against both the
covenantor and the land or constitute equitable servitudes between the Tract of
the respective covenantor, as the servient tenement, and the Tract of the
respective covenantee, as the dominant tenement. Unless the content indicates
otherwise, every covenant, easement, agreement and promise of each Owner as set
forth in this REA shall be deemed a covenant, easement, agreement and promise
made for the joint and several benefit of the other Owners and every duty of
each Owner as set forth in this REA shall be deemed to run to and for the joint
and several benefit of the other Owners.
Section 25.15 Default Shall Not Permit Termination of REA
No default under this REA shall entitle any Owner to cancel or
otherwise rescind this REA, provided, however, that this limitation shall not
affect any other rights or remedies that the Owners may have by reason of any
default under this REA.
Section 25.16 Counterparts
This REA may be signed in several counterparts, each of which shall
be deemed an original, and all such counterparts shall constitute one and the
same instrument. The signature of an Owner to any counterpart may be removed and
attached to any other counterpart. Any counterpart to which is attached the
signatures of all Owners shall constitute an original of this REA.
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Section 25.17 Condition to Right of Entry
Whenever any Owner is granted pursuant to this REA a right of entry
over, upon or under another Owner's Tract for the purpose of constructing,
repairing or maintaining any Improvements, Common Improvements, or any other
improvements of any nature, such right of entry is hereby expressly conditioned
upon the entering Owner minimizing to the fullest reasonable extent consistent
with its right of entry any interference with the use and enjoyment of the Tract
entered by the Owner of such Tract or any other Person who may have rights
therein.
Section 25.18 Security
ANY ACCESS CONTROL MEASURES PROVIDED BY AN OWNER MAY NOT BE TREATED
BY ANY OTHER OWNER AS A GUARANTEE AGAINST CRIME. ALL OWNERS WAIVE ANY GUARANTY
OR WARRANTY, EXPRESSED OR IMPLIED, WITH RESPECT TO ACCESS CONTROL AT THE SITE,
OR THAT ANY CONTROL MEASURES WILL PREVENT OCCURRENCES OR CONSEQUENCES OF
CRIMINAL ACTIVITY. ANY MECHANICAL ACCESS CONTROL DEVICES CAN BE RENDERED
INOPERATIVE AT ANY TIME. NO OWNER IS RESPONSIBLE FOR A TEMPORARY FAILURE OF SUCH
DEVICES. IF SUCH DEVICES ARE IN NEED OF REPAIR, ALL OWNERS WAIVE ALL WARRANTIES,
EXPRESSED OR IMPLIED, WITH RESPECT TO REPAIR OF SUCH DEVICES. INSTALLATION OR
USE OF ANY ACCESS CONTROL MEASURE DOES NOT CONSTITUTE A VOLUNTARY UNDERTAKING OR
AGREEMENT BY ANY OWNER TO PROVIDE ACCESS CONTROL TO ANY OTHER OWNER. AN OWNER
MAY MODIFY, REDUCE OR ELIMINATE THE USE OF ANY ACCESS CONTROL MEASURE AT ANY
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TIME WITHOUT NOTICE TO ANY OTHER OWNER. NO OWNER OR ITS AGENTS, EMPLOYEES OR
REPRESENTATIVES ARE LIABLE IN ANY WAY FOR ANY DISRUPTION IN THE OPERATION OR
PERFORMANCE OF ANY ACCESS CONTROL MEASURE. NO OWNER MAKES, AND ALL OWNERS WAIVE,
ANY GUARANTY OR WARRANTY THAT THE PRESENCE OF ANY ACCESS CONTROL MEASURE AT THE
SITE IN ANY WAY INCREASES THE PERSONAL ACCESS CONTROL OF ANY OWNER OR ITS
PROPERTY. NO OWNER IS LIABLE TO ANY OTHER OWNER FOR ANY INJURY, DAMAGE OR LOSS
WHATSOEVER WHICH IS CAUSED (A) AS A RESULT OF ANY PROBLEM, DEFECT, MALFUNCTION
OR THE FAILURE OF THE PERFORMANCE OF ANY ACCESS CONTROL MEASURE OR (B) BY ANY
PERSON ENGAGING IN CRIMINAL ACTIVITY.
ARTICLE XXVI
CONSENTS
Section 26.1 Consent
(a) Except to the extent the consent of an Owner or Mortgagee is
expressly permitted to be given or withheld in its sole discretion, the consent
or approval required of an Owner and its Mortgagee may not be unreasonably
withheld, delayed or conditioned, provided the approval of any and all
amendments to this REA may be given or withheld by each Owner in its sole
discretion.
Any consent or approval required hereunder shall be given or
withheld within thirty (30) days after the request therefor in writing, unless a
different period of time is expressly provided for herein. A failure of an Owner
to respond to a request for approval or consent within such thirty (30) day
period or other period expressly provided for shall be deemed a disapproval and
a refusal to consent except as otherwise expressly provided herein.
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ARTICLE XXVII
UNAVOIDABLE DELAYS
Notwithstanding anything contained in this REA and regardless of
whether or not any specific reference in this REA is made to this Article XXVII,
each Owner shall be excused from performing any obligation under this REA and
any delay in the performance of any obligation under this REA shall be excused,
if and so long as the performance of the obligation is prevented or delayed by
acts of God, fire, earthquake, floods, explosion, actions of the elements, war,
riots, mob violence, inability to procure labor, equipment, facilities,
materials or supplies in the open market, failure of transportation, strikes,
lockouts, actions of labor unions, condemnation, court orders, laws, regulations
or orders of governmental or military authorities or any other cause, whether
similar or dissimilar to the foregoing, not within the reasonable control of
such Owner (other than lack of or inability to fulfill its monetary commitments
and obligations under this REA).
ARTICLE XXVIII
MANAGEMENT REPLACEMENT ELECTION
(a) If the Management Condition is satisfied, then Tower II Owner
shall have the right (during the continuance of the satisfaction of the
Management Condition) to elect to replace Tower I Owner as the Common Area
Manager by furnishing written notice to Tower Owner and Hotel/Condo Owner of
such election at least thirty (30) days prior to the commencement of the
following calendar year (in which event such replacement shall be effective on
the first (1st) day of the following calendar year).
(b) If Tower II Owner makes the election to replace Tower I Owner as
the Common Area Manager, Tower II Owner shall be the Common Area Manager for at
least three (3) calendar years. Effective as of the beginning of such fourth
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(4th) calendar year, Tower I Owner may elect to replace Tower II Owner as the
Common Area Manager by furnishing written notice to Tower II Owner and
Hotel/Condo Owner at least thirty (30) days prior to the first (1st) day of such
fourth calendar year, or if Tower I Owner desires to make such election for a
later calendar year, at least thirty (30) days prior to the first (1st) day of
the calendar year in which such election is to be effective (in which event such
replacement shall be effective on the first (1st) day of the calendar year
following such notice).
(c) Once Tower II Owner has properly elected to replace Tower I
Owner as the Common Area Manager pursuant to subsection (a) above, each of Tower
I Owner and Tower II Owner shall alternatively have the right to elect to
replace the other Owner as the Common Area Manager provided the other Owner
serves as Common Area Manager for at least three (3) calendar years. The
election must always be made at least thirty (30) days prior to the first (1st)
day of the calendar year such replacement is to be effective (and such notice
may be furnished prior to the expiration of the three (3) year service period so
long as the replacement is not effective until after the expiration of the three
(3) year service period). In no event shall Hotel/Condo Owner have the right to
be the Common Area Manager. The right to replace the Common Area Manager under
this Article XXVIII is herein referred to as the "Manager Replacement Election."
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EXECUTED as of the date first above written.
TOWER I OWNER:
TEXAS CORPORATE PROPERTIES, L.P.
By: Texas Corporate Properties GP, LLC, its
general partner
By: Xxxxx Corporate Properties, LLC, its
sole member
By: __________________________
Name: ________________________
Title: _______________________
TOWER II OWNER:
RREEF GALLERIA NORTH TOWER II, L.P.
By: RREEF America REIT Corp. EE
By: __________________________
Name: ________________________
Title: _______________________
HOTEL/CONDO OWNER:
XXXXX XXXXXX HOTEL LIMITED PARTNERSHIP
By: Xxxxxx Xxxxx Hotel Management, LLC, its
general partner
By: Xxxxx Interests Limited Partnership,
its sole member
By: Xxxxx Holdings, Inc., general
partner
By: __________________________
Name: ________________________
Title: _______________________
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The undersigned lessors under all existing Ground Leases of any of the
Tracts hereby execute this REA for purposes of agreeing that (a) during the term
of any Ground Lease, the lessee under the Ground Lease shall be the Owner of the
applicable Tract under this REA for all purposes and the lessor under any such
Ground Lease shall have no rights or obligations hereunder, and (b) upon
termination or expiration of any such Ground Lease, the lessor under the Ground
Lease shall become the Owner of such Tract subject to and bound by the terms of
this REA.
TOWER I:
HCP LAND, L.P.
By: Xxxxx BTS Partners Limited Partnership,
general partner
By: Xxxxx BTS GP LLC, general partner
By: Xxxxx Interests Limited Partnership,
sole member
By: Xxxxx Holdings, Inc.,
general partner
By: __________________________
Name: ________________________
Title: _______________________
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STATE OF ________ ss.
ss.
COUNTY OF _______ ss.
BEFORE ME, the undersigned, a notary public in and for the State of Texas,
on this day personally appeared X. Xxxxxx Xxxxxxx, Executive Vice President of
Xxxxx Holding, Inc., as the general partner in Xxxxx Interests Limited
Partnership, as the sole member on Xxxxx BTS GP LLC, as the general partner in
Xxxxx BTS Partners Limited Partnership, as the general partner in HCP Land,
L.P., and, [being known to me] [alternative: being proved to me on the oath of
__________ or through __________________ (describe identity card or other
document of identification)], as the person whose name is subscribed to the
foregoing instrument, he acknowledged to me that he executed the same for the
purpose and consideration therein expressed and on behalf of said corporation,
limited liability companies and said limited partnerships.
[NOTARY SEAL] _______________________________________________
Notary Public, State of _______________________
Name: _________________________________________
My Commission Expires:_________________________
STATE OF ________ ss.
ss.
COUNTY OF _______ ss.
BEFORE ME, the undersigned, a notary public in and for the State of Texas,
on this day personally appeared Xxxxxx Xxxxx, the Chief Executive Officer of
Xxxxx Corporate Properties, LLC, as the sole member in Texas Corporate
Properties GP, LLC, as the general partner in Texas Corporate Properties, L.P.,
and, [being known to me] [alternative: being proved to me on the oath of
_____________ or through _________________(describe identity card or other
document of identification)], as the person whose name is subscribed to the
foregoing instrument, he acknowledged to me that he executed the same for the
purpose and consideration therein expressed and on behalf of said limited
liability companies and said limited partnership.
Given under my hand and seal of office this ______ day of _______________,
2004.
[NOTARY SEAL] _______________________________________________
Notary Public, State of _______________________
Name: _________________________________________
My Commission Expires:_________________________
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STATE OF ________ ss.
ss.
COUNTY OF _______ ss.
BEFORE ME, the undersigned, a notary public in and for the State of Texas,
on this day personally appeared RREEF America REIT Corp., EE, a Maryland
corporation and general partner of RREEF Galleria North Tower II, L.P., a Texas
limited partnership, and, [being known to me] [alternative: being proved to me
on the oath of _________________ or through ________________ (describe identity
card or other document of identification)], as the person whose name is
subscribed to the foregoing instrument, he/she acknowledged to me that he/she
executed the same for the purpose and consideration therein expressed and on
behalf of said corporation, limited liability company and limited partnerships.
Given under my hand and seal of office this ______ day of _______________,
2004.
[NOTARY SEAL] _______________________________________________
Notary Public, State of _______________________
Name: _________________________________________
My Commission Expires:_________________________
STATE OF ________ ss.
ss.
COUNTY OF _______ ss.
BEFORE ME, the undersigned, a notary public in and for the State of Texas,
on this day personally appeared X. Xxxxxx Xxxxxxx, Executive Vice President of
Hines Holding, Inc., as the general partner in Xxxxx Interests Limited
Partnership, as the sole member in Xxxxx Xxxxxx Hotel Management, LLC, as the
general partner of Xxxxx Xxxxxx Hotel Limited Partnership, and, [being known to
me] [alternative: being proved to me on the oath of _____________________ or
through ______________________ (describe identity card or other document of
identification)], as the person whose name is subscribed to the foregoing
instrument, he acknowledged to me that he executed the same for the purpose and
consideration therein expressed and on behalf of said corporation, limited
liability companies and said limited partnerships.
Given under my hand and seal of office this ______ day of _______________,
2004.
[NOTARY SEAL] _______________________________________________
Notary Public, State of _______________________
Name: _________________________________________
My Commission Expires:_________________________
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EXHIBIT A
TOWER I TRACT
Xxx 0
XXXXXXX X-0
XXX 0
A 2.8022 acre tract of land situated in the Xxxx Xxxx Survey, Abstract No. 1584,
in City of Dallas, Block No. 7004, said tract being part of a 7.183 acre tract
conveyed to Xxxxx Hospitals Limited by deed recorded in Volume 98006, Page 0000,
Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx, and part of a 8.626 acre tract conveyed to
Hines Group II Limited Partnership by deed recorded in Volume 91086, Page 0000,
Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx, and being situated in the City of Dallas,
Dallas County, Texas and being more particularly described as follows:
BEGINNING at a 1/2" iron rod with yellow plastic cap stamped "RLG" set in the
east right-of-way line of Xxxxxx Drive (56.00 feet wide), said point being South
00(degree)18'49" East a distance of 224.97 feet from a chisel xxxx found at the
northwest corner of said Xxxxx Hospitals Limited tract, said chisel xxxx being
in the center line of a City of Dallas Trafficway Easement recorded in Volume
91199, Page 1041 and Volume 91199, Page 0000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx
for Southern Boulevard;
THENCE North 89(degree)41'11" East for a distance of 469.40 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE South 00(degree)18'49" East for a distance of 267.67 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE North 89(degree)41'11" East for a distance of 151.76 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set in the west right-of-way line of
Xxxx Road (a variable right-of-way);
THENCE South 00(degree)01'01" East with the said westerly right-of-way line of
Xxxx Road for a distance of 54.00 feet to a 1/2" iron rod with yellow plastic
cap stamped "RLG" set for xxxxx;
THENCE South 89(degree)41'11" West for a distance of 430.43 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE North 00(degree)18'49" West for a distance of 174.58 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE South 89(degree)41'11" West for a distance of 63.78 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE North 00(degree)18'49" West for a distance of 30.51 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE South 89(degree)41'11" West for a distance of 126.66 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set on the said east right-of-way line
of Xxxxxx Drive;
THENCE North 00(degree)18'49" West with the said east right-of-way line of
Xxxxxx Drive for a distance of 116.58 feet to the POINT OF BEGINNING and
containing 122,066 square feet or 2.8022 acres of land more or less.
EXHIBIT X
XXXXX XX XXXXX
Xxx 0
XXXXXXX X-0
LOT 2
A 1.0513 acre tract of land situated in the Xxxx Xxxx Survey, Abstract No. 1584,
in City of Dallas, Block No. 7004, said tract being part of a 7.183 acre tract
conveyed to Xxxxx Hospitals Limited by deed recorded in Volume 98006, Page 0000,
Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx, and part of a 8.626 acre tract conveyed to
Hines Group II Limited Partnership by deed recorded in Volume 91086, Page 0000,
Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx, and being situated in the City of Dallas,
Dallas County, Texas and being more particularly described as follows:
BEGINNING at a 1/2" iron rod with yellow plastic cap stamped "RLG" set for
corner in the east right-of-way line of Xxxxxx Drive (56.00 feet wide), said
point being South 00(degree)18'49" East a distance of 341.55 feet from the
northwest corner of said tract conveyed to Xxxxx Hospitals Limited, said rod
being in the center line of a City of Dallas Trafficway Easement recorded in
Volume 91199, Page 1041 and Volume 91199, Page 0000, Xxxx Xxxxxxx, Xxxxxx
Xxxxxx, Xxxxx for Southern Boulevard;
THENCE North 89(degree)41'11" East for a distance of 126.66 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE South 00(degree)18'49" East for a distance of 30.51 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE North 89(degree)41'11" East for a distance of 63.78 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE South 00(degree)18'49" East for a distance of 220.18 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE, South 89(degree)41'11" West for a distance of 190.44 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set on the said easterly right-of-way
line of Xxxxxx Drive;
THENCE North 00(degree)18'49" West with the said easterly right-of-way line of
Xxxxxx Drive for a distance of 250.69 feet to the POINT OF BEGINNING and
containing 45,796 square feet or 1.0513 acres of land, more or less.
EXHIBIT C
HOTEL/CONDO TRACT
Xxx 0
XXXXXXX X-0
XXX 0
A 0.9368 acre tract of land situated in the Xxxx Xxxx Survey, Abstract No. 1584,
in City of Dallas, Block No. 7004, said tract being part of a 7.183 acre tract
conveyed to Xxxxx Hospitals Limited by deed recorded in Volume 98006, Page 0000,
Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx, and being situated in the City of Dallas,
Dallas County, Texas, being more particularly described as follows:
BEGINNING at a 1/2" iron rod with yellow plastic cap stamped "RLG" set for
corner in the west right-of-way line of Xxxx Road (a variable right-of-way),
said rod being South 00(degree)01'01" East a distance of 226.27 feet from the
northeast corner said tract conveyed to Xxxxx Hospitals Limited;
THENCE South 00(degree)01'01" East with the said west right-of-way line of Xxxx
Road for a distance of 267.67 feet to a 1/2" iron rod with yellow plastic cap
stamped "RLG" set for corner;
THENCE South 89(degree)41'11" West for a distance of 151.76 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE North 00(degree)18'49" West for a distance of 267.67 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE North 89(degree)41'11" East for a distance of 153.14 feet to the POINT OF
BEGINNING and containing 40,806 square feet or 0.9368 acres of land more or
less.
XXXXXXX X
XXXXXXX XXXXX
Xxx 0
XXXXXXX X-0
LOT 4
A 3.2420 acre tract of land situated in the Xxxx Xxxx Survey, Abstract No. 1584,
in City of Dallas, Block No. 7004, said tract being part of a 7.183 acre tract
conveyed to Xxxxx Hospitals Limited by deed recorded in Volume 98006, Page 0000,
Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx, and being situated in the City of Dallas,
Dallas County, Texas, more particularly described as follows:
BEGINNING at a chisel xxxx found at the northwest corner of said tract conveyed
to Xxxxx Hospitals Limited, said chisel xxxx being the center line of a City of
Dallas Trafficway Easement recorded in Volume 91199, Page 1041 and Volume 91199,
Page 0000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx for Southern Boulevard, said
chisel xxxx also being located in a Boundary Line Agreement recorded in Volume
86212, Page 0000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx:
THENCE North 89(degree)14'45" East with the north line of said tract conveyed to
Xxxxx Hospitals Limited and along said Boundary Line Agreement for a distance of
360.43 feet to a chisel xxxx found for an angle point;
THENCE South 89(degree)59'31" East continuing with the north line of said tract
conveyed to Xxxxx Hospitals Limited and along a Boundary Line Agreement recorded
in Volume 80147, Page 0000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx for a distance of
263.30 feet to a 3 1/4" brass disk set for the northeast corner of said tract
conveyed to Xxxxx Hospitals Limited from which a 5/8" iron rod found bears South
00(degree)01'01" East a distance of 0.36 feet, said disk being in the west
right-of-way line of Xxxx Road (a variable right-of-way);
THENCE South 00(degree)01'01" East with the said west right-of-way line of Xxxx
Road for a distance of 226.27 feet to a 1/2" iron rod with yellow plastic cap
stamped "RLG" set for corner;
THENCE South 89(degree)41'11" West for a distance of 622.54 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner in the east
right-of-way line of said Xxxxxx Drive;
THENCE North 00(degree)18'49" West with the said east right-of-way line of
Xxxxxx Drive for a distance of 224.97 feet to the POINT OF BEGINNING and
containing 141,220 square feet or 3.2420 acres of land more or less.
EXHIBIT E
ACCESS TRACT
EXHIBIT X-0
XXXXXX XXXXX (XXXXXX XXXX)
A 1.1160 acre tract of land situated in the Xxxx Xxxx Survey, Abstract No. 1584,
in City of Dallas, Block No. 7004, said tract being part of a 7.183 acre tract
conveyed to Xxxxx Hospitals Limited by deed recorded in Volume 98006, Page 0000,
Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx, and part of a 8.626 acre tract conveyed to
Hines Group II Limited Partnership by deed recorded in Volume 91086, Page 0000,
Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx, and being situated in the City of Dallas,
Dallas County, Texas, more particularly described as follows:
BEGINNING at a 1/2" iron rod with yellow plastic cap stamped "RLG" set for
corner in the west right-of-way line of Xxxx Road (a variable right-of-way),
said rod being South 00(degree)01'01" East a distance of 493.94 feet from the
northeast corner of said tract conveyed to Xxxxx Hospitals Limited;
THENCE South 00(degree)01'01" East with the said west right-of-way line of Xxxx
Road for a distance of 54.00 feet to a 1/2" iron rod with yellow plastic cap
stamped "RLG" set for corner;
THENCE South 89(degree)41'11" West for a distance of 430.43 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE North 00(degree)18'49" West for a distance of 128.28 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE North 89(degree)41'11" East for a distance of 254.96 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE North 00(degree)18'49" West for a distance of 193.38 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE North 89(degree)41'11" East for a distance of 24.00 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE South 00(degree)18'49" East for a distance of 267.67 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE North 89(degree)41'11" East for a distance of 151.76 feet to the POINT OF
BEGINNING and containing 48,614 square feet or 1.1160 acres of land more or
less.
EXHIBIT F
SIGNAGE CRITERIA
General Criteria
The following design criteria applies to all permanent signage.
Acceptable Materials:
Stone, precast concrete or metal. Letters may be of translucent white plastic or
metal. Temporary or moveable marquis lettering is prohibited.
Lighting for monument signage:
Monument signage will be designed to be visible at night, but not excessively
bright. Acceptable methods of illumination are (a) a ground mounted flood
light(s) in front of the sign or (b) back lit translucent plastic letters cut as
stencils within a metal panel background or (c) raised solid letters back lit
with concealed neon, or (d) some combination of (a), (b) or (c). All lighting or
back lit letters will be white light. There will be only one method of
illumination for monument signs, to be designed by the Project Architect and
graphics consultant, and it shall be applied uniformly to all monument signs.
Prohibitions:
Profane, lewd, racist or offensive content of any kind is prohibited. Temporary
banners, or temporary signage for special events or temporary activity is
prohibited.
Advertising (except for tenant names and leasing contact information, as
described herein) is prohibited. No blinking lights or strobe lights are
permitted.
No pylon signs are permitted.
No part of any building mounted signage may extend above the roof line of the
building.
Access Tract Monument Sign
The Project Architect together with its graphics consultant and landscape
architect will design a monument sign to be shared by Tower I Owner and Tower II
Owner, as described in Section 12.1(e). The monument sign will be
architecturally compatible with the buildings on the Site. Tower I Owner and
Tower II Owner both have the right to approve the final design of the monument
sign. In the unlikely event that both parties cannot agree upon the final design
then, provided the design meets all of the criteria set forth herein, the
Project Architect may arbitrate the final design.
Specific criteria will be as follows:
Size:
-----
Height: Not to exceed 8'-0"
Width: Not to exceed 12'-0"
Thickness: Not to exceed 2'-0"
EXHIBIT F-1
Content:
--------
o Galleria North logotype
o Street Address
o Approximately one half of the sign will contain the Tower I building name
and not more than four tenant names.
o Approximately one half of the sign will contain the Tower II building name
and not more than four tenant names.
Building Monument Signs
All parties agree that the Project Architect together with its graphics
consultant and landscape architect will design a prototypical monument sign to
be used by all parties at the locations indicated on the Plot Plan. The monument
sign design will be architecturally compatible with the buildings on the Site.
All parties may approve the final design of the monument sign. In the unlikely
event that all parties cannot agree upon the final design then, provided the
design meets all of the criteria set forth below, the Project Architect may
arbitrate the final design. Signs may deviate from the design criteria only with
approval from all parties.
The design criteria will be as follows
Size:
-----
Height: Not to exceed 4'-6"
Width: Not to exceed 12'-0"
Thickness: Not to exceed 2'-0"
Content:
--------
The first (top) line of each sign shall be the building name. With respect to
the building name, the size, location on the sign, color, font and method of
lighting will be prescribed by the graphics consultant and will be identical for
all monument signs. Building names are as follows:
For Tower I: Galleria North Tower One
For Tower II: Galleria North Tower Two
For Hotel/Condo Improvements: [the name of the Hotel, to be determined]
The graphics consultant will specify the area within the face of the sign which
may contain additional content, leaving appropriate margins between the edges of
the sign and the building name. For each of the office towers, additional
signage content may include the names of not more than four (4) building tenants
per sign. The font style for tenant's names may be in the logotype of the
tenant's company. For the Hotel/Condo Improvements, additional content may
include the name of not more than one (1) restaurants or bars within the
Hotel/Condo Improvements. In no event shall the height of the letters of
additional content exceed 80% of the height of the letters used in the building
name. The graphics consultant may recommend other restrictions or regulations on
signage content, font, proportion etc. and, if approved by all parties, will
become part of the signage restrictions.
EXHIBIT F-2
Provided it meets all design criteria, in lieu of one tenant's name on any
monument sign the owner may elect to provide the following text:
Leasing Information: [Name, telephone number]
Tenant Signage on Buildings
Permissible signage areas for Tower I, Tower II and Tower III (if applicable)
are illustrated on the attached diagrams.
Lighting for building signage:
Signage will be designed to be visible at night. Acceptable methods of
illumination are (a) building-mounted flood light(s) or (b) metal channel
letters with black lit translucent plastic face or (c) raised solid letters back
lit with concealed neon, or (d) some combination of (a), (b) or (c). All
lighting or back lit letters will be white light.
Monument Sign on Tollway Sign Tract
The design of the monument sign is attached to this REA as Exhibit Q. Any
changes to the design must be approved by Tower I Owner, Tower II Owner and
Hotel/Condo Owner. In the event all parties cannot agree upon the changes,
provided the changes comply with all criteria set forth herein, the Project
Architect may arbitrate the changes.
Specific criteria will be as follows:
Size:
-----
Height: Not to exceed 30' from grade (16' of which is the sign face and the
remainder of which is the sign base)
Width: Not to exceed 15'
Thickness: Not to exceed 2'
Content:
--------
o Galleria North logotype
o Compliance with Sections 12.1 (g) and (h).
The font style for tenants' names may be in the logotype of the tenant's
company. In no event may the height of the letters exceed 2'. The graphics
consultant may recommend other restrictions or regulations on signage content,
font, proportion, etc., and, if approved by all parties, will become part of the
signage restrictions.
Leasing Sign on Tower I Tract, Tower II Tract or the Access Tract
Tower I Owner and Tower II Owner have the right pursuant to Section 12.3(a) to
install a temporary leasing sign on the Access Tract. Also, Tower I Owner may
place a temporary leasing sign on the Tower I Tract and Tower II Owner may place
a temporary leasing sign on the Tower II Tract. Each temporary sign must be made
of painted Grade A wood or metal and must be consistent with the Class A nature
of the Project. The temporary leasing sign must be reasonable and customary as
to design and leasing information presented on the sign.
EXHIBIT F-3
Specific criteria will be as follows:
Size:
-----
Height: Not to exceed 8'
Width: Not to exceed 8'
Thickness: Not to exceed 1'
The temporary leasing sign may not be more than 40 square feet in the aggregate.
Content:
--------
o Leasing Contact Information
o Square Footage Amounts
o Compliance with Section 12.3 (a)
To the extent both Tower I Owner and Tower II Owner desire to place a temporary
leasing sign on the Access Tract at the same time, either: 1) Tower I Owner and
Tower II Owner must share the sign and the cost of the sign in a manner agreed
to by Tower I Owner and Tower II Owner, or 2) each of Tower I Owner and Tower II
Owner must place their respective temporary leasing sign on their respective
Tract and no temporary leasing sign may be installed on the Access Tract.
EXHIBIT F-4
EXHIBIT G
ALLOCATION METHODOLOGY
EXHIBIT G-1
Tax Allocation for Tower I Tract
Schedule of Values
1 2 3 4 5
Land
Land Area Value Land Improvement Total
Portion of Tower I Trace (SF) per SF Value Value Value
----------------------------------------------------------------------------------------------
Access Trace 48,620 $17.85 $ 67,867 $ 824,000 $ 1,691,867
Loading Dock Tract 14,766 $15.62 230,645 48,000 278,645
Tower II Skybridge Trace 2,000 $15.62 31,240 112,000 143,240
Tower I Building, Level B1 56,693 $15.62 885,545 29,347,000 30,232,545
and Site Work ------- ---------- ----------- -----------
Total Tower I Tract 122,079 $2,015,297 $30,331,000 $32,346,297
6 7
Parties
Tax Responsible
Allocation Insurance for Payment Allocation
Portion of Tower I Trace Percentage Allocation of Tax Methodology
-------------------------------------------------------------------------------------------
Access Trace 5.2% 2.7% Tower I Owner, Gross Area Ratio
Tower II Owner
and Hotel Owner
Loading Dock Tract 0.9% 0.2% Tower I Owner and Gross Area Ratio
Tower II
Tower II Skybridge Trace 0.4% 0.4% Tower II Owner 100% to Tower II
Tower I Building, Level B1 93.5% 96.7% Tower I Owner 100% to Tower I
and Site Work ----- -----
Total Tower I Tract 100.0% 100.0%
Notes:
----------
Column 1: All land areas are based on land surveys by X.X. Xxxxxxx
Engineers, except (i) the Tower II Skybridge Tract which is
estimated and (ii) Tower I Building and Grounds" which is the
remainder of the Tower I Tract area less the total area of the
Access Tract, Loading Dock Tract and Tower II Skybridge Tract.
Column 2: Land value per gross square foot. Initial values are based on
Xxxxx'x actual cost of the land. Initial value of the Access Tract
is calculated w the weighted average of the DAP land cost (20,170 SF
at $21.00/SF) and the Xxxxx land cost (28,450 SF at $15.62/SF).
Column 3. Total value of land only for the described tract Calculated
initially as Column 1 multiplied by column 2.
Column 4: Total value of all improvements within the described tract.
Initial values based on cost estimates prepared by the General
Contractor.
Column 5: Sum of Column 3 and Column 4.
Column 6: Calculated as the value of Column 5 divided by the sum of Column 5.
Column 7: Calculated as the value of Column 4 divided by the sum of Column 4.
EXHIBIT H
PLOT PLAN
EXHIBIT X-0
XXXXXXX X XXXX XXXX
[XXXXXXX XX XXXX XXXX: PART 1]
EXHIBIT H PLOT PLAN
[GRAPHIC OF PLOT PLAN: PART 2]
EXHIBIT H PLOT PLAN
[GRAPHIC OF PLOT PLAN: PART 3]
EXHIBIT I
SITE
EXHIBIT I-1
OFFICE TRACT
A 8.0323 acre tract of land situated in the Xxxx Xxxx Survey, Abstract No. 1584,
in City of Dallas, Block No. 7004, said tract being part of a 7.183 acre tract
conveyed to Xxxxx Hospitals Limited by deed recorded in Volume 98006, Page 0000,
Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx, and part of a 8.626 acre tract conveyed to
Xxxxx Group II Limited Partnership by deed recorded in Volume 91086, Page 0000,
Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx, and being situated in the City of Dallas,
Dallas County, Texas, more particularly described as follows:
BEGINNING at a chisel xxxx found in east right-of-way line of Xxxxxx Drive
(56.00 feet wide), said chisel xxxx being the northwest corner of said tract
conveyed to Xxxxx Hospitals Limited, said chisel xxxx being the center line of a
City of Dallas Traffic way Easement recorded in Volume 91199, Page 1041 and in
Volume 91199, Page 0000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx for Southern
Boulevard, said chisel xxxx also being in a Boundary Line Agreement recorded in
Volume 86212, Page 0000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx;
THENCE North 89(degree)14'45" East with the north line of said tract conveyed to
Xxxxx Hospital Limited and along said Boundary Line Agreement for a distance of
360.43 feet to a chisel xxxx found for an angle point;
THENCE South 89(degree)59'31" East with the said north line of said tract
conveyed to Xxxxx Hospital Limited and along a Boundary Line Agreement recorded
in Volume 80147, Page 0000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx for a distance of
263.30 feet to a 3 1/4" brass disk set in the west right-of-way line of Xxxx
Road (a variable right-of-way) from which a 5/8" iron rod found bears South
00(degree)01'01" East a distance of 0.36 feet, said disk being the northeast
corner of said tract conveyed to Xxxxx Hospitals Limited;
THENCE South 00(degree)01'01" East with the said west right-of-way line of Xxxx
Road for a distance of 547.94 feet to a 1/2" iron rod with yellow plastic cap
stamped RLG" set for corner;
THENCE South 89(degree)41'H" West for a distance of 430.43 feet to a 1/2" iron
rod with yellow plastic cap stamped RLG" set for corner;
THENCE South 00(degree)18'49" East for a distance of 45.60 feet to a 1/2" iron
rod with yellow plastic cap stamped' RLG" set for corner;
THENCE South 89(degree)41'11" West for a distance of 190.44 feet to a 1/2" iron
rod with yellow plastic cap stamped' RLG" set in the said east right-of-way line
of Xxxxxx Drive;
THENCE North 00(degree)18'49" West with the said east right-of-way line of
Xxxxxx Drive for a distance of 592.24 feet to the POINT OF BEGINNING and
containing 349,888 square feet or 8.0323 acres of land more or less.
EXHIBIT J-1
COMMON IMPROVEMENT PLANS
EXHIBIT J-1-1
EXHIBITS TO RECIPROCAL EASEMENT AGREEMENT ("REA")
GALLERIA NORTH, DALLAS, TEXAS
EXHIBIT X-x COMMON IMPROVEMENTS PLANS
SHEET NO. DRAWING TITLE PREPARED BY DATE OF DRAWING LAST REVISION
--------- ------------- ----------- --------------- -------------
AO.l SHEET INDEX HP+P April 29, 1998 May 1, 1998
PARKING GARAGE
--------------
A8.1 PARKING GARAGE- B2 HP+P April 29, 1998 May 12, 1998
LEVEL PLAN
A8.2 PARKING GARAGE- Bl HP+P April 29, 1998 May 12, 1998
LEVEL PLAN
A8.3 PARKING GARAGE- HP+P April 29,1998 May 12,1998
GROUND LEVEL
A8.4 PARKING GARAGE- HP+P April 29, 1998 May 12, 1998
SECOND LEVEL
A8.5 PARKING GARAGE- 3RD HP+P April 29,1998 May 12, 1998
LEVEL
A8.6 PARKING GARAGE- 4TH HP+P April 29,1998 May 12, 1998
LEVEL
A8.7 PARKING GARAGE- 5TH HP+P April 29,1998 May 12, 1998
LEVEL
A8.9 PARKING GARAGE- HP+P April 1, 1998 May 12, 1998
ELEVATIONS
LANDSCAPING
-----------
L1.01 LAYOUT & MATERIALS Xxxxxx Xxxxx 17,1998 May 1, 1998
PLAN Associates
L1.02 LAYOUT & MATERIALS Xxxxxx Xxxxx 17, 1998 May 1, 1998
PLAN Associates
L1.03 COURTYARD LAYOUT & Xxxxxx Xxxxx 17,1998 May 1, 1998
MATERIALS PLAN Associates
L2.01 GRADING PLAN Xxxxxx Xxxxx 17,1998 May 1, 1998
Associates
L2.02 GRADING PLAN Xxxxxx Xxxxx 17,1998 May 1, 1998
Associates
L3.01 PLANTING PLAN Xxxxxx Xxxxx 17,1998 May 1, 1998
Associates
L3.02 PLANTING PLAN Xxxxxx Xxxxx 17,1998 May 1, 1998
Associates
L3.03 PLANTING PLAN Xxxxxx March 31, 1998 May 1, 1998
Associates
L5.01 DETAILS Xxxxxx Xxxxx 17,1998 May 1, 1998
Associates
L5.02 DETAILS Xxxxxx Xxxxx 17, 1998 May 1, 1998
Associates
L5.03 DETAILS Xxxxxx Xxxxx 17,1998 May 1, 1998
Associates
EXHIBIT J-2
INTENTIONALLY DELETED
EXHIBIT J-2-2
EXHIBIT J-3
INTENTIONALLY DELETED
EXHIBIT J-3-1
EXHIBIT K
ACCESS ROAD
EXHIBIT K-1
ACCESS ROAD TRACT
A 0.2443 acre tract of land situated in the Xxxx Xxxx Survey, Abstract No. 1584,
in City of Dallas, Block No. 7004, said tract being part of a 7.183 acre tract
conveyed to Xxxxx Hospitals Limited by deed recorded in Volume 98006, Page 0000,
Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx, and part of a 8.626 acre tract conveyed to
Xxxxx Group II Limited Partnership by deed recorded in Volume 91086, Page 0000,
Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx, and being situated in the City of Dallas,
Dallas County, Texas, more particularly described as follows:
BEGINNING at a 1/2" iron rod with yellow plastic cap stamped "RLG" set for
corner in the west right-of-way line of Xxxx Road (a variable right-of-way),
said rod being South 00(degree)01'01" East a distance of 493.94 feet from the
northeast corner of said tract conveyed to Xxxxx Hospitals Limited;
THENCE South 00(degree)01'01" East with the said west right-of-way line of Xxxx
Road for a distance of 24.00 feet to a chisel xxxx set for corner;
THENCE South 89(degree)41'11" West for a distance of 175.63 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE North 00(degree)18'49" West for a distance of 291.67 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE North 89(degree)41'11" East for a distance of 24.00 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE South 00(degree)18'49" East for a distance of 267.67 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE North 89(degree)41'11" East for a distance of 151.76 feet to the POINT OF
BEGINNING and containing 10,641 square feet or 0.2443 acres of land more or
less.
EXHIBIT L
LOADING DOCK TRACT
EXHIBIT L-1
LOADING DOCK TRACT
A 0.3390 acre tract of land situated in the Xxxx Xxxx Survey, Abstract No. 1584,
in City of Dallas, Block No. 7004, said tract being part of a 7.183 acre tract
conveyed to Xxxxx Hospitals Limited by deed recorded in Volume 98006, Page 0000,
Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx, and being situated in the City of Dallas,
Dallas County, Texas, more particularly described as follows:
BEGINNING at a 1/2" iron rod with yellow plastic cap stamped "RLG" set for
corner in the east right-of-way line of Xxxxxx Drive (56.00 feet wide), said rod
being South 00(degree)18'49" East a distance of 224.97 feet from the northwest
corner of said tract conveyed to Xxxxx Hospitals Limited, and being in the
center line of a City of Dallas Traffic way Easement recorded in Volume 91199,
Page 1041 and Volume 91199, Page 0000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx for
Southern Boulevard;
THENCE North 89(degree)41'11" East for a distance of 126.66 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE South 00(degree)18'49" East for a distance of 116.58 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE South 89(degree)41'11" West a distance of 126.66 feet to a 1/2" iron rod
with yellow plastic cap stamped "RLG" set for corner in the said east
right-of-way line of Xxxxxx Drive;
THENCE North 00(degree)18'49" West with the said east right-of-way line of
Xxxxxx Drive for a distance of 116.58 feet to the POINT OF BEGINNING and
containing 14,766 square feet or 0.3390 acres of land more or less.
EXHIBIT M
INTENTIONALLY DELETED
EXHIBIT M-1
EXHIBIT N
ROOF TERRACE
EXHIBIT N-1
EXHIBIT N
ROOF TERRACE IDENTIFICATION
[GRAPHIC OF ROOF TERRACE]
EXHIBIT O
TOLLWAY SIGN TRACT
A 525 square foot tract of land situated in the Xxxx Xxxx Survey, Abstract No.
1584, in City of Dallas, Block No. 7005, said tract being all of that land
described as Parcel Number One in deed to Xxxxxx Joint Venture as recorded in
Volume 95027, Page 0000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx, and being situated
in the City of Dallas, Dallas County, Texas and being more particularly
described as follows:
BEGINNING at a chisel xxxx set for corner at the intersection of the easterly
right-of-way line of Dallas North Tollway (a variable width right-of-way) with
the north line of a 9.5 foot traffic way easement as recorded in Volume 91199,
Page 0000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx;
THENCE North 00(degree)11'43" West along the east line of said Dallas North
Tollway for a distance of 15.00 feet to a chisel xxxx set for corner;
THENCE North 89(degree)54'10" East, departing the east line of said Dallas North
Tollway, for a distance of 35.00 feet to a 1/2" iron rod with yellow plastic cap
stamped "RLG" set for corner;
THENCE South 00(degree)11'43" East for a distance of 15.00 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner in the north line of
said 9.5 foot traffic way easement;
THENCE South 89(degree)54'10" West along the north line of said 9.5 foot traffic
way easement for a distance of 35.00 feet to the POINT OF BEGINNING and
containing 525 square feet or 0.0121 acres, more or less.
EXHIBIT O-1
EXHIBIT P
DESIGNATED VISITOR SPACES AND CONDO SHARED SPACES
EXHIBIT P-1
EXHIBIT P
[GRAPHIC OF DESIGNATED VISITOR SPACES]
EXHIBIT P
[GRAPHIC OF CONDO SHARED SPACES]
EXHIBIT Q
TOLLWAY MONUMENT SIGN
EXHIBIT Q-1
[GRAPHIC OF TOLLWAY MONUMENT SIGN]
SCHEDULE I
INITIAL PARKING DECK RULES
Galleria North Office Tower Garage serves the parking needs for Office Tower
tenants, their employees and visitors. To ensure equitable fulfillment of each
user's parking requirements, each contract Xxxxxx is requested to cooperate in
enforcement of the Garage Rules and Regulations.
o All full time, part time and temporary employees of Galleria North must
fill out a Parking Request Form with complete vehicle descriptions, on the
first day of employment. These forms can be delivered to the management
office in Xxxxx 0, Xxxxx 000.
o If an employee has amended vehicle information, a new Parking Request Form
must be filled out and should specify what changes need to be made.
o All full time, part time and temporary employees of Galleria North are to
park past the control access gates in the Parking Garage. All parking
outside of the gates is visitor parking only.
o Access cards are not transferable and may only be used by its assigned
person.
o When entering or exiting the Garage, please allow the gate arm to fully
cycle before proceeding forward with your vehicle. Failure to do so may
disrupt the normal gate sequencing causing it to lower and possibly damage
your vehicle and the gate.
o Do Not Tailgate (This means do not follow the car immediately ahead of you
through the gate). Damage caused by tailgating will not be the
responsibility of the Garage Operator.
o The access card must be used on each entry to the parking facility.
o If a vehicle is being driven temporarily by a contract xxxxxx, the
temporary vehicle must also be parked in contract parking.
o Protect the card from direct exposure to sunlight and/or heat as it may
damage the card.
o If your card has been lost or stolen, you must report and replace it
immediately.
o Cards, which have been lost or damaged, can be replaced, or additional
cards can be issued for $5.50 (includes tax) per access card. Cost is
subject to change and is based on actual supplier cost.
o Contract parkers must park their vehicle within the designated contract
area beyond the access gates during the hours of 5 a.m. and 6 p.m. There
are no exceptions for parking in the visitor area during business.
o Employee's vehicles found outside designated parking areas will be put on
notice.
o Vehicles receiving multiple notices will be towed at the owner's expense
o Vehicles are not to be left on property overnight. Any vehicle identified
as being on property in excess of twenty-four (24) hours, without written
approval, will be subject to tow at owner's expense.
o Always park between the lines designating parking spaces. Do not park at
the end of the aisles, in drive lanes, or in any other non-striped area.
o "HEAD-IN" parking only. Do not back into a parking space. Do not "Pull
Through" to the next row of parking spaces.
o Please do not dump ashtrays or other trash in the Garage.
o Be sure to lock your vehicle and remove all valuables.
Sch. I-1
o Security escorts to and from the Garage can be arranged by contacting the
Management Office.
o Management reserves the right, without formal notice, to void and/or
remove permits from permit holders who are in default of lease terms or in
violation of parking rules and regulations.
o Please direct all inquires regarding the Parking Rules and Regulations to
Galleria North Management Office or through the Tenant Contact for your
company or department.
Management reserves the right to rescind any of these regulations and to make
such other and further regulations as, in its reasonable judgments, shall, from
time to time, be required for the success, safety, protection, care and
cleanliness of the Garage, the operator thereof, the preservation of good order
therein and the protection and comfort of the Parkers and pedestrians. Such
rules and regulations, when made and written notice is given to Xxxxxx, shall be
binding upon them in like manner as if originally herein prescribed.
SCHEDULE II
INITIAL LOADING DOCK RULES
The Galleria North Office Tower Dock serves the delivery needs for Office Tower
tenants, their employees and visitors. To ensure equitable fulfillment of each
user's requirements, each delivering vendor is requested to cooperate in
enforcement of the Dock Rules and Regulations.
o Parking is permitted while loading or unloading only.
o Items left on the Dock will be discarded at the owner's expense.
o Engines are to be turned off while parked at the Dock.
o Violators will be towered at the owner's expense.
o Vehicles are not to be left on property overnight. Any vehicle identified
as being on property in excess of twenty-four (24) hours, without written
approval, will be subject to tow at owner's expense.
o Always park between the lines designating parking spaces. Do not park in
any other non-striped area.
o Please do not dump ashtrays or other trash on the Dock.
o Be sure to lock your vehicle and secure all valuables. Vehicle owner
assumes all liability and risk associated with using the Dock.
o Please direct all inquiries regarding the Dock Rules and Regulations to
the Galleria North Management Office or through the Tenant Contact for
your company or department.
Management reserves the right to rescind any of these regulations and to make
such other and further regulations as, in its reasonable judgments, shall, from
time to time, be required for the success, safety, protection, care and
cleanliness of the Dock, the operator thereof, the preservation of good order
therein and the protection and comfort of the users and pedestrians. Such rules
and regulations, when made and written notice is given to users, shall be
binding upon them in like manner as if originally herein prescribe
Sch. II-1
