Item 6B Kimball Park CCRs DECLARATION OF COVENANTS, RESTRICTIONS, AND
EASEMENTS
16667137x.8
TABLE OF CONTENTS
Page
DECLARATION OF COVENANTS, RESTRICTIONS,AND EASEMENTS .......................... 1
DECLARATION OF COVENANTS, RESTRICTIONS,AND EASEMENTS .......................... 1
ARTICLE I. DEFINITIONS ......................................................................................................... 1
ARTICLE IL PROPERTY SUBJECT TO THIS DECLARATION............................................. 6
Section1. Properties. .................................................................................................. 6
Section 2. Additions to the Properties; Certain Amendments. ................................... 6
ARTICLE III. MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION;
BOARD OF DIRECTORS.............................................................................. 7
Section 1. Classes of Membership.............................................................................. 7
Section2. Voting Rights............................................................................................. 7
Section 3. Board of Directors...................................................................................... 7
Section 4. Multiple Ownership................................................................................... 7
Section 5. Notice of Change of Ownership. ............................................................... 7
ARTICLE IV. PROPERTY RIGHTS IN THE COMMON PROPERTIES.................................. 8
Section 1. Members' Easements of Enjoyment.......................................................... 8
Section 2. Additional Common Properties. ................................................................ 8
Section 3. Uses of Common Properties and Common Area....................................... 8
Section 4. Extent of Members' Rights........................................................................ 8
Section 5. Administration. .......................................................................................... 8
ARTICLE V. DEVELOPMENT OF PROJECT........................................................................... 9
Section 1. Reciprocal Easements. ............................................................................... 9
Section 2. Reservation of Easements........................................................................ 10
Section3. Platting..................................................................................................... 10
Section 4. Cessation of Construction........................................................................ 11
Section 6. Monument Sign Easements...................................................................... 11
ARTICLE VI. COVENANT FOR MAINTENANCE ASSESSMENTS.................................... 13
Section 1. Creation of the Lien and Personal Obligation.......................................... 13
Section 2. Purposes of the Assessment..................................................................... 13
Section3. Assessments............................................................................................. 14
Section 4. Due Dates, List of Assessments............................................................... 15
i
16667137x.8
TABLE OF CONTENTS
(continued)
Page
Section 5. Effect of Nonpayment of Assessment...................................................... 15
Section 6. Statement of Unpaid Assessments........................................................... 16
Section 7. Liability Limitations. ............................................................................... 16
Section 8. Estoppel by the Association..................................................................... 16
Section 9. Report of Delinquent Assessments.......................................................... 16
Section 10. Exempt Property. ..................................................................................... 16
ARTICLE VII. ARCHITECTURAL CONTROL....................................................................... 17
Section 1. Architectural Control Committee. ........................................................... 17
Section 2. Architectural Control. .............................................................................. 17
Section3. Exteriors...................................................................................................20
Section4. Signs......................................................................................................... 20
Section 5. Liability of ACC. ..................................................................................... 21
Section 6. Exempt Improvements.............................................................................21
ARTICLE VIII. MAINTENANCE ............................................................................................. 22
Section 1. Maintenance of Common Properties and Common Area........................22
Section 2. Maintenance of LandscapLng...................................................................22
Section 3. Disrepair of Lots. .....................................................................................22
Section 4. Access at Reasonable Hours....................................................................23
ARTICLE IX. INSURANCE.......................................................................................................23
Section 1. Maintenance of Insurance........................................................................23
Section 2. Additional Insurance................................................................................ 24
ARTICLE X. USE OF PROPERTY............................................................................................24
Section1. Use. ..........................................................................................................24
Section 2. Prohibited Vehicles.................................................................................. 27
Section 3. Height Restriction on Lot 2......................................................................28
Section 4. Limitation on Lodging Uses. ................................................................... 28
Section 5. Environmental Indemnification. ..............................................................28
ARTICLE XI. GENERAL PROVISIONS.................................................................................. 28
Section 1. Beneficiaries of Easements, Rights and Privileges..................................28
Section 2. Duration and Amendment........................................................................29
ii
16667137x.8
TABLE OF CONTENTS
(continued)
Page
Section3. Notices. .................................................................................................... 30
Section4. Severability. ............................................................................................. 30
Section5. Enforcement............................................................................................. 30
Section6. Texas Law................................................................................................ 30
Section 7. Liability of Association and ACC............................................................ 30
Section 8. Effective Date. ......................................................................................... 30
Section 9. Existing Improvements............................................................................ 30
Section10. Counterparts............................................................................................. 30
Section 11. No Implied Dedication............................................................................. 31
Section12. Zoning...................................................................................................... 31
Section 13. No Warranty of Enforceability. ............................................................... 31
ARTICLE XII. ENFORCEMENT............................................................................................... 31
Section 1. Failure to Comply. ................................................................................... 31
Section2. Fines......................................................................................................... 31
(a) Notice....................................................................................................... 32
(b) Meeting. ................................................................................................... 32
(c) Amounts................................................................................................... 32
(i) First non-compliance or violation, a fine not in excess of One
Hundred Dollars ($100.00);..................................................................... 32
(ii) Second non-compliance or violation, a fine not in excess of Five
Hundred Dollars ($500.00)...................................................................... 32
(iii) Third and subsequent non-compliances, or a violation or violations
which are of a continuing nature, a fine not in excess of One
Thousand Dollars ($1,000.00). ................................................................ 32
Fines shall be a lien on all Properties of the applicable Owner....................................... 32
(d) Payment of Fines...................................................................................... 32
(e) Non Exclusive Remedy............................................................................ 32
ARTICLE XIII. EXHIBITS......................................................................................................... 32
Section1. Exhibits.................................................................................................... 32
iii
16667137x.8
DECLARATION OF COVENANTS, RESTRICTIONS, AND
EASEMENTS
THIS DECLARATION OF COVENANTS, RESTRICTIONS AND EASEMENTS
(together with any and all supplements, amendments or modifications hereof in accordance
herewith, hereinafter referred to as this "Declaration'), is made as of , 2014 (the
"Effective Date"),by MDP Southlake, LLC, a Texas limited liability company ("Declarant").
WHEREAS, Declarant is the owner of all that certain real property described in Article II
of this Declaration; and
WHEREAS, Declarant desires to provide for the preservation of the values and amenities
in the Development (as hereinafter defined) and for the maintenance of the Common Properties
and Common Area (as hereinafter defined), and, to this end, desires to subject the Properties (as
hereinafter defined) to the covenants, restrictions, easements, charges and liens hereinafter set
forth, each and all of which is and are for the benefit of the Properties and each Owner (as
hereinafter defined) of a portion thereof, and
WHEREAS, it is desirable for the efficient preservation of the values and amenities in the
Development to create an entity to which will be delegated and assigned the powers of
maintaining and administering the Common Properties and Common Area and administering and
enforcing the covenants and restrictions, and collecting and disbursing the assessments and
charges, hereinafter created; and
WHEREAS, Southlake Kimball Owners Association, Inc. has been organized for the
purpose of exercising the aforesaid functions.
NOW, THEREFORE, Declarant, for itself, its respective successors and assigns, declares
that the Properties are and shall be owned, held, transferred, sold, conveyed and occupied subject
to the covenants, restrictions, easements, charges and liens (sometimes hereinafter collectively
referred to as "covenants and restrictions")hereinafter set forth.
ARTICLE 1.
DEFINITIONS
The following words, when used in this Declaration, shall, unless the context otherwise
prohibits, have the meanings set forth below:
(a) "Annual Budget" shall have the meaning specified in Section 3(a) of
Article VI.
(b) "Architectural Control Committee" or "ACC" shall mean the
permanent committee of the Association established by Article VII of this Declaration.
(c) "Architectural Guidelines" shall consist (i) all of the provisions of this
Declaration limiting the development and use of the Properties and (ii) the criteria as to
design, materials, finishes and external appearance adopted by the ACC from time to
16667137x.8
time pursuant to this Declaration, in each case to the extent such provisions or criteria are
applicable to a particular Improvement.
(d) "Articles of Incorporation" shall mean the articles of incorporation of the
Association, as the same may be amended, modified, supplemented or replaced from time
to time in accordance with its terms.
(e) "Association' shall mean Southlake Kimball Owners Association, Inc., an
existing or soon to be formed corporation.
(f) "Board of Directors" shall mean the board of directors of the
Association.
(g) "Bylaws" shall mean the bylaws of the Association, as the same may be
amended, modified, supplemented or replaced from time to time in accordance with its
terms.
(h) "Citibank" shall mean Citibank, NA., New York, New York, and its
successors; provided, that if at any time Citibank or its successors do not exist, the term
"Citibank" shall refer to such reasonably comparable substitute financial institution
selected by Declarant.
(i) "City" shall mean the City of Southlake, Texas.
0) "Class A Members" shall mean the Persons described in Section 16) of
Article III.
(k) "Class B Member" shall mean the Person described in Section l(ii) of
Article III.
(1) "Class C Member" shall mean the Person described in Section 1(iii) of
Article III.
(m) "Common Area" shall mean (i) land devoted to the common use and
enjoyment of all Owners (either in fee or by easement but, in the case of an easement,
only to the extent provided under the terms of the easement) which are now or hereafter
declared by the Declarant and accepted by the Association as Common Area, including
any Signage Areas , (ii) land purchased by the Association as Common Area, and
(iii)land adjoining the Development which the Association is obligated to maintain by
contract, easement or similar requirement or which the Board of Directors, by unanimous
vote, determines should be maintained by the Association for the benefit of the
Development.
(n) "Common Properties" shall mean (i) the Infrastructure Work, (ii)
other Improvements devoted to the common use and enjoyment of all Owners which are
now or hereafter declared by the Declarant and accepted by the Association as Common
Properties, (iii) Improvements purchased by the Association as Common Properties, and
(iv) Improvements located on property adjoining the Development which the Association
2
16667137x.8
is obligated to maintain by contract, easement or similar requirement or which the Board
of Directors, by unanimous vote, determines should be maintained by the Association for
the benefit of the Development.
(o) "Declarant" shall mean the Declarant defined above as of the date of this
Declaration, and from time to time hereafter shall mean, with respect to all or any portion
of the Properties, any Person to whom the then existing Declarant expressly in writing
assigns its rights and delegates its obligations under this Declaration, whether in whole or
in part.
(p) "Declarant Affiliate" shall mean any entity which controls, is controlled
by, or is under common control with, Declarant.
(q) "Declarant Termination Time" shall "mean the earlier of (i) such time
as Declarant owns no more than one Lot, (ii) such time as all the Lots have been platted
of record and the Improvements initially contemplated for each Lot have been
substantially completed and at least partially occupied for their intended use, or (iii)
December 31, 2017. .
(r) "Development" shall mean the Properties and all Improvements thereon.
(s) "Directors" shall mean the individuals comprising the Board of Directors
from time to time.
(t) "Effective Date" shall have the meaning specified in the first paragraph of
this Declaration.
(u) "Force Majeure Delays" shall have the meaning specified in Section 4 of
Article V.
(v) "Grading and Drainage Plan' shall mean plans and specifications
showing in detail all grading and drainage of a Lot, prepared by a licensed engineer
approved in writing by the ACC.
(w) "Hazardous Substances" shall mean all hazardous waste, hazardous
substances, extremely hazardous substances, hazardous consignments, hazardous
materials and toxic substances,whether solids, liquids or gases, as each of these terms are
defined under any applicable federal or state statutes and regulations relating to
preservation or protection of the environment, including but not limited to, (i) the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. § 9601 et seq., (ii)the Hazardous Materials Transportation Act, as
amended, 40 U.S.C. § 1801 et seq., (iii) the Resource, Conservation and Recovery Act of
1976, as amended, 42 U.S.C. § 6901 et seq., (iv) the Clean Water Act, as amended,
33 U.S.C. § 1251 et seq., (v) the Toxic Substances Control Act of 1976, as amended,
15 U.S.C. § 7401 et seq., (vii) any so-called "superfund" or "superlien" law or (viii) any
other federal, state or local statute, law, ordinance, code, rule, regulation, order, decree or
regulation relating to or imposing liability or standards of conduct concerning the
generation, storage, handling, treatment, disposal, transportation or processing of waste
3
16667137x.8
or other substances or materials. Hazardous Substances also include polychlorinated
biphenyl (commonly known as PCB's), asbestos, radon, urea formaldehyde, petroleum
products (including gasoline and fuel oil), solvents, sludge, ash, containers with
Hazardous Substances residue and spent solutions from manufacturing processes.
(x) "Hotel" shall mean the hotel to be constructed and operated on the Hotel
Lot.
(y) "Hotel Lot" shall mean the Lot described on Exhibit B attached hereto
and hereby made a part hereof, which has been approved for the construction of a hotel.
(z) "Hotel Owner" shall mean the owner in fee of the Hotel Lot.
(aa) "Improvement" shall mean any building, structure, parking area, loading
area, tracks, fence, wall, hedge, landscaping, pylon, pole, driveway, sign, exterior
illumination, permanent installations of exterior statues, sculptures or other works of art
and any future exterior construction or exterior improvement which may not be included
in any of the foregoing.
(bb) "Infrastructure Work" shall have the meaning specified in Section 7 of
Article V.
(cc) "Initial Hotel Improvements" shall mean the construction of the Hotel
on the Hotel Lot, including all parking areas, driveways, walkways, landscaping and
ancillary improvements, as approved by the City in the SP-2 Zoning for the Hotel.
(dd) "Invitees" shall mean any licensees, customers, agents, employees, guests,
and contractors of(i) Declarant, (ii) any Owner, or(iii) any tenant.
(ee) "Landscaping Plan" shall include a plan for landscaping a Lot prepared
by a licensed professional landscape architect approved in writing by the ACC.
(ff) "Landscaping Work" shall mean the installation of all plantings and
improvements contained in a Landscaping Plan.
(gg) "Landscape Maintenance" shall include the repair, maintenance and
replacement of all Landscaping Work necessary from time to time to maintain
Landscaping Work in good condition, including without limitation Landscaping Work on
any Right of Way Landscape Areas (hereafter defined). Landscape Maintenance shall
include, without limitation, that all lawn areas shall be timely mowed and edged as
needed to keep an even, well groomed appearance and shall be watered and fertilized at
such times and in such quantities as required to keep the grass alive and attractive, and
shall be kept free of weeds.
(hh) "Laws" shall mean any and all:
(i) Constitutions, statutes, ordinances, rules, regulations, orders,
rulings or decrees of the United States or of the state, county or any municipality
4
16667137x.8
in which the Property is located, or any authority, agency, division, district, court
or other authority thereof,
(ii) Agreements with or covenants or commitments to any government
agency or other authority which are binding upon any Property (including,
without limitation, any requirements or conditions for the use or enjoyment of any
license, permit, approval, authorization or consent legally required for the
operation of such Property), and
(iii) Recorded covenants, conditions and restrictions affecting any
Property.
(ii) "Lot" shall mean each platted of record parcel of land located within the
Properties; provided, however, if such parcel of land is thereafter divided into separate
platted parcels in any manner, the term "Lot" shall mean and refer to each such separate
parcel of land. The term "Lot" shall include any platted of record parcel of land with
Improvements otherwise constituting a Lot, but shall not include any of the Common
Area subdivided as a separate parcel and which does not include any other property or
any of the Properties not yet platted of record.
0j) "Maximum Director Number" shall mean five.
(kk) "Member" shall mean, as at any given time, all those Persons who hold
membership interests in the Association, as such interests are set forth in Section 1 of
Article III.
(11) "Officers" shall mean the President, any Vice President, the Secretary,
any Assistant Secretary, the Treasurer, any Assistant Treasurer and any other officer of
the Association.
(mm) "Owner" shall mean the record owner of fee simple title to any Lot.
Every record owner shall be treated for all purposes as a single Owner for each Lot
owned, irrespective of whether such ownership is joint, in common, or tenancy by the
entirety. Where such ownership is joint, in common, or tenancy by the entirety, any vote
to which such record owners are entitled shall be in accordance with Article III, Section 4
hereof.
(nn) "Person' shall mean any individual, sole proprietorship, partnership,joint
venture, trust, unincorporated organization, association, corporation, institution, other
entity or governmental board, body, agency or official.
(oo) "Prime Rate" shall mean the annual base interest rate from time to time
announced (regardless of whether or not actually charged) by Citibank. Any change in
the Prime Rate resulting from a change in the base interest rate announced by Citibank
shall be effective as of the effective date of such change by Citibank. The base interest
rate from time to time announced by Citibank may not be the lowest rate charged by
Citibank to its customers.
5
16667137x.8
(pp) "Properties" shall mean the real property which is or becomes subject to
this Declaration, including all of the property described in Exhibit A hereto, and
"Property" shall mean any of the Properties.
(qq) "Prorata Share" shall mean, with respect to any Lot, a fraction, the
numerator of which shall be the number of Square Feet in such Lot, and the denominator
of which shall be the number of Square Feet in all of the Lots at the time in question.
(rr) "Recording Office" shall mean the Office of the County Clerk of Tarrant
County, Texas.
(ss) "Right of Way Landscape Areas" shall have the meaning specified in
Section 2 of Article VIII.
(tt) "Rules and Regulations" shall mean the rules and regulations established
by the Board of Directors in accordance with the Bylaws as supplemented, amended or
modified from time to time.
(uu) "Signage Areas" shall mean the areas established pursuant to Section 6 of
Article V for the installation and maintenance of common signage.
(vv) "Square Feet" shall mean the gross square feet of a Lot, exclusive of any
Common Area contained therein.
(ww) "Supplemental Declaration' shall mean any permitted supplement,
amendment or modification of this Declaration.
ARTICLE II.
PROPERTY SUBJECT TO THIS DECLARATION
Section 1. Properties. The real property that initially shall be subject to this
Declaration consists of that certain real property situated in Tarrant County, Texas, more
particularly described on Exhibit A attached hereto and made a part hereof.
Section 2. Additions to the Properties, Certain Amendments. With the unanimous
approval of Members and the concurrence and joinder of the owner of such additional property,
the Association shall have the right at any time and from time to time to subject to this
Declaration any additional property. Any such addition authorized under this Section 2 shall be
effected by recording in the Recording Office of Supplemental Declaration(s) with respect to the
property to be added, executed by the Association and the owner of such property, extending the
covenants, restrictions, easements, benefits, charges and liens of this Declaration to such
additional property.
6
16667137x.8
ARTICLE III.
MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION;
BOARD OF DIRECTORS
Section 1. Classes of Membership. The Association shall have three (3) classes of
membership interests:
(i) Class A Members: Each Lot Owner (including, but not limited to,
the Hotel Owner) shall become a Member (and a Class A Member) upon
acquiring fee simple title to a Lot and shall remain a Member (and a Class A
Member) so long (but only so long) as it continues to hold fee simple title to a
Lot.
(ii) Class B Member: The Declarant shall be the Class B Member
until (but only until) the Declarant Termination Time, at which date there shall no
longer be a Class B Member. Nothing herein shall prevent Declarant from also
being a Class A Member, in its capacity as the Owner of any Lot(s).
(iii) Class C Member: The Hotel Owner shall be the Class C Member
so long as (and only so long as) the Hotel Lot is being developed or used
primarily for a hotel.
Section 2. Voting Rights. Each Member shall have one (1) vote for each Square Foot
in the Lot(s) owned by that Member. No vote shall be assigned to any fraction of a Square Foot.
No Member may split or divide its votes on any motion, resolution, ballot or other question.
Declarant shall not, in its capacity as a Class B Member, have any votes, but shall have the rights
and powers of Declarant as set forth in this Declaration or the Bylaws until (but only until) the
Declarant Termination Time. The Class C Member shall have the right to vote with the Class A
Members on any matter requiring a majority or greater vote of the Class A Members.
Section 3. Board of Directors. The number of Directors shall be no less than three
and no more than the Maximum Director Number. Declarant shall be entitled to designate two
Directors until the Declarant Termination Time. The Class C Member shall have the right to
designate one Director, as well as the right (in its capacity as a Class A Member) to vote in
electing those Directors selected pursuant to the following sentence. Except as provided above
in this Section 3, the Directors shall be elected by a majority vote the Class A Members,
provided that cumulative voting for each Directors shall not be permitted.
Section 4. Multiple Ownership. Where more than one Person shall be at any time the
Owner of a Lot, the votes attributed to such Lot shall be exercised as such Owners mutually
determine and must be cast as a block. In the event that such Owners are unable to agree among
themselves as to how their vote or votes shall be cast, they shall lose their right to vote on the
matter in question.
Section 5. Notice of Change of Ownership. Any Owner who sells a Lot shall
promptly notify the Association, providing the name and address of the new Owner, who shall
upon acquiring fee simple title to such Lot become the Member with respect thereto, in place of
the selling Owner.
7
16667137x.8
ARTICLE IV.
PROPERTY RIGHTS IN THE COMMON PROPERTIES
Section 1. Members' Easements of Enjoyment. Subject to the provisions of
Section 4 of this Article IV, and other limitations set forth herein, every Member shall have a
non-exclusive right and easement of enjoyment in and to the Common Areas and the Common
Properties and such easements shall be appurtenant to, and shall pass with, the title to every Lot.
Section 2. Additional Common Properties. Without the unanimous approval of the
Board of Directors, the Association shall not designate, acquire or accept additional property as
part of the Common Properties except in connection with the addition to the Development of any
additional Property as contemplated by Article II, Section 2 of this Declaration, and then only to
the extent that the additional property to be designated, acquired or accepted as part of the
Common Properties are similar in nature to the initial Common Properties.
Section 3. Uses of Common Properties and Common Area. Subject to their
compliance with the provisions of this Declaration and with the Rules and Regulations and to the
rights, if any, of the public in the dedicated rights of way and/or easements, Members and their
bona fide tenants and Invitees shall have the right to use the Common Properties, the Common
Area and the other rights of way and/or easements provided for in this Declaration or otherwise
dedicated to public use in accordance with this Declaration; provided, however, that a tenant
must have a written lease with the applicable Member that complies with the provisions of this
Declaration and the Rules and Regulations and not otherwise be in violation of this Declaration
or the Rules and Regulations, including, without limitation, as to the maintenance of the portion
of the Properties covered by the tenant's lease.
Section 4. Extent of Members' Rights. The rights and easements of enjoyment
created hereby shall be subject to the following:
(a) The right of the Association to suspend the enjoyment rights of any
Member in and to the Common Properties, except for legal access, for any period during
which any assessments owed by any such Member remain delinquent for more than thirty
(30) days (unless subject to a good faith dispute) or for a material infraction by any such
Member of this Declaration or the Rules and Regulations for any period during which
said infraction remains uncured.
(b) The right of the Association to grant and reserve easements and rights of
way in, through, under, over and across the Common Area, for the installation,
maintenance and inspection of lines and appurtenances for public or private water, sewer
drainage, telecommunications, electric and other utilities for the Development or portions
thereof as provided in Section 2 of Article V.
(c) The requirement that each Member shall use its rights and easements of
enjoyment in a manner that does not materially interfere with any other Member's right
and easement of enjoyment.
Section 5. Administration. The governance and administration of the Association
shall be in accordance with the Bylaws and the Articles of Incorporation; provided,however, that
8
16667137x.8
in the case of any apparent conflict between this Declaration and the Bylaws, this Declaration
shall govern.
ARTICLE V.
DEVELOPMENT OF PROJECT
Section 1. Reciprocal Easements. Each Owner and the Association do hereby
establish and create for the benefit of the Association and for all Owners, and do hereby give,
grant, and convey to each of the aforementioned, the following non-exclusive easements,
licenses, rights and privileges within the Property held by such Owner:
(a) Right-of-way for ingress and egress by vehicles or on foot, in, through,
over, under and across the streets, roads, driveways, parking areas and walks (limited to
use by non-vehicles where applicable) within the Common Area, as they now exist or
may be built or relocated in the future, including (but not limited to) access to a public
street. Prior to completion of the Infrastructure Work, such right-of-way shall include the
right of pedestrian and vehicular access to such Owner's Property over temporary
driveways and entry ways, including those as such Owner may construct if no others are
available to provide such access.
(b) Rights to connect with, maintain, and make use of utility lines, wires,
pipes, conduits, cable television lines, telephone lines and equipment, sewers and
drainage lines which may from time to time constitute Common Properties (the "Utility
Facilities"), but only to the extent capacity has been allocated to the Owner in question
by the applicable utility, if any, and (except with respect to the Initial Hotel
Improvements) by the ACC. In the event any of the Utility Facilities should require
modification as a result of any new or additional development, the Owner undertaking
such development shall, as a condition to exercising the rights granted under this
Section 1(b), pay all costs, charges and fees associated with completing construction of
such modification.
(c) The right to reasonably utilize the parking lots and parking spaces on each
Property that may, in the discretion of the Owner of such Parcel, exist from time to time
for transient surface parking of vehicles, but only to the extent that the utilizing Owner
needs parking in addition to that is or could be available on its own Property (the
"Shared Parking Easements"). The Shared Parking Easements shall also include
vehicular and pedestrian rights of ingress and egress over and within marked driveways
and walkways to the extent reasonably incidental to such parking. With respect to the
Shared Parking Easements:
(i) Each Owner may from time to time reconfigure, restripe, and
otherwise modify the parking lots and parking spaces on its own Property as it
may in its sole discretion determine necessary or desirable, as long as the same
comply with all applicable Laws.
(ii) Notwithstanding the above, each Owner may from time to time
designate up to 75% of the parking spaces on its Property as its Exclusive Parking
9
16667137x.8
Area(herein so called), in which case (i) such Exclusive Parking Area shall not be
subject to the Shared Parking Easements and other Owners and Properties shall
not have any right to utilize the parking spaces and driveways within such
Exclusive Parking Area, (ii) the applicable Owner may designate and enforce
such Exclusive Parking Area by such means as it shall determine appropriate in
its sole discretion, including fencing, gates, striping, signage, parking attendants,
towing and such other similar enforcement mechanisms, subject to the terms of
this Declaration, and (iii) the remaining 25% of the parking spaces on its Property
shall in all events remain subject to the Shared Parking Easements. Before any
such Exclusive Parking Area shall be established, enforceable and recognized
hereunder, (A) the Owner in question must first give Declarant at least 30 days
advance written notice, and Declarant shall have the right to review and approve
the proposed Exclusive Parking Area (such approval not to be unreasonably
withheld and to be deemed granted unless Declarant, within 30 days after
receiving such notice, gives the Owner in question written notice of disapproval
detailing the reasons therefore); provided, however, that it shall not be
unreasonable for an Owner to propose an Exclusive Parking Area consisting of
the 75% of parking spaces on its Property closest to the entrances for its primary
Improvements located on its Property); and (B) to the extent any applicable
governmental authority requires any changes or modifications to a proposed
Exclusive Parking Area or any requirements in connection with the manner and
means of implementing and maintaining the same, then the same shall be
implemented and complied with by the applicable Owner of the Property, subject
however to such Owner's right to contest any such requirement.
Section 2. Reservation of Easements. The Association reserves the right, subject to
the approval of the Owner of each affected Property, which approval shall not be unreasonably
withheld or delayed, to grant and reserve easements and rights-of-way in, through, under, over
and across the Properties for the installation, maintenance and inspection of lines and
appurtenances for public or private water, sewer, drainage, cable television, electric and other
utilities and for any other materials or services which the Association reasonably deems
necessary for the completion of such work. The Association shall restore the Properties affected
by any such work described in this Section 2 promptly upon completion of such work. The
Association also reserves the right to install, connect with and make use of, and to the extent of
their available capacity allow Owners to connect with and make use of, the utility lines, wires,
pipes, conduits, cable television, sewers and drainage lines within the Common Area or which
may from time to time be in or along the streets and roads within the Development.
Section 3. Platting. No plat or re-plat of the Development or any portion thereof
shall be filed with the City or recorded in the Recording Offices that has not first been approved
by Declarant, with Declarant's approval shown in writing, signed by Declarant, on the face of the
plat. No Lot may be subdivided, nor any Lots combined, and Lot boundary lines may not be
moved or eliminated, unless the Association in its discretion approves such action, in writing, in
advance. If any Lot combination is permitted, the Lots involved shall continue to be treated as
separate individual Lots under this Declaration for all other purposes, including voting in the
Association and assessing and collecting Assessments.
10
16667137x.8
Section 4. Cessation of Construction. No excavation of or upon any Lot shall be
made except in conjunction with construction of an Improvement. When such Improvement is
completed, all exposed openings shall be backfilled, graded and returned to original landscaped
condition. Once commenced, construction of an Improvement shall be diligently pursued to
completion, except for delays due to adverse weather conditions or other causes beyond the
reasonable control of the Owner ("Force Majeure Delays"), and shall conform to construction
plans, drawings, and specifications therefor approved in writing by the ACC. Such construction
may not be left in a partly finished condition any longer than is reasonable necessary. In the
event construction of any Improvement on a Lot is not diligently pursued to completion prior to
the enclosure of such Improvement, and such failure to enclose such Improvement is not
remedied within ninety (90) days after the Association has given written notice thereof to the
Owner of such Lot, the Owner, upon written demand of the Association shall raze and remove
the unenclosed Improvement not enclosed, grade the Lot to the reasonable satisfaction of the
ACC and landscape the Lot in compliance with the requirements of this Declaration. In the
event the Owner fails to raze the Improvements on such Lot within sixty (60) days of the date of
the demand to raze the Improvements from the Board of Directors, the Board of Directors shall
have the right, but not the obligation, to enter the Lot and either raze or complete the
Improvement on said Lot. The amount incurred by the Board of Directors to raze or complete
the Improvement, together with interest thereon at the Prime Rate, shall, upon completion,
become an assessment against such Lot subject to the provisions of this Declaration. In the event
construction of any Improvement is not diligently pursued to completion after the Improvement
is enclosed, the Owner, upon written demand of the Board of Directors, shall landscape the Lot
in compliance with the requirements hereof. In the event the Owner fails to landscape the Lot
within sixty (60) days of the date of the demand of the Board of Directors to landscape the Lot,
the Board of Directors shall have the right, but not obligation, to enter said Lot and landscape the
Lot in accordance with landscape plans approved pursuant to this Declaration. The amount
incurred by the Board of Directors to landscape said Lot shall become an assessment against
such Lot subject to the provisions of this Declaration.
Section 5. Monument Sign Easements. The Association shall designate Signage
Areas in which it will install and maintain monument signs for the benefit of the Lots.
(Currently it is anticipated there will be two such monument signs.) The Board of Directors shall
determine (a) the plans, specifications, and final location of such signs, (b) the location, size, and
ranking of sign panels thereon (and the location upon which each Owner will place its signage
thereon, (c) whether an Owner will be permitted to put signage on one or both signs), and (d)
other rules and regulations to be applicable to such signs; provided, however, that in any event(i)
the Hotel Owner shall have the right to a panel on each of the two signs and (ii) each sign panel
for the Hotel Lot shall be no smaller than the largest other sign panel on the monument sign in
question. Notwithstanding the foregoing or anything to the contrary contained herein, at least
one monument sign shall be located at the main vehicular entry way into the Development from
the Highway 114 frontage road (the "Entry Monument Sign") and the final location of the
Entry Monument Sign shall be subject to the Hotel Owner's reasonable approval. The Entry
Monument Sign may also identify other businesses and uses within the Properties so long as the
design is subject to the Hotel Owner's reasonable approval and the Hotel Owner has the right to
determine where the name of the Hotel is located on the Entry Monument Sign. Each Owner and
the Association hereby establish perpetual easements within the Signage Areas benefitting the
Lots, for the use and maintain of signage in accordance with this Section.
II
16667137x.8
Section 6. Completion of Infrastructure Work.
(a) No later than the date (the "Infrastructure Work Commencement
Date") that is thirty (30) days after the Effective Date Declarant shall commence actual
construction and installation of the following infrastructure for the Property (the
"Infrastructure Work"):
(i) the entrances to the Properties from Highway 114 frontage road
(the "114 Entry") and North Kimball Avenue, including curbs, sidewalks,
parapet walls and decorative elements, in accordance with the plans and
specifications attached hereto as Exhibit E-1.
(ii) All interior streets and sidewalks, including curbs, in accordance
with the plans and specifications attached hereto as Exhibit E-1.
(iii) All underground utility trunk lines, cables, pipes and related
facilities (electricity,water, sewer, gas and telecommunications) to the boundaries
of the respective Lots, in accordance with the plans and specifications attached
hereto as Exhibit E-2.
(iv) All common area landscaping and hardscaping, including grading,
irrigation systems, paving and lighting, in accordance with the plans and
specifications attached hereto as Exhibit E-3 and Exhibit E-4.
Subject only to Force Majeure Delay, Declarant shall complete all the Infrastructure
Work, in accordance with the applicable plans and specifications, City conditions for
approval of the development of the Properties and applicable Laws by no later than the
date (the "Infrastructure Work Completion Date") that is one hundred fifty (150) days
after the Effective Date, subject only to "punch list" work not interfering with the
contemplated uses of the Infrastructure Work.
(b) If Declarant fails to commence actual construction and installation of the
Infrastructure Work by the Infrastructure Work Commencement Date or to complete the
Infrastructure Work by the Infrastructure Work Completion Date, or if Declarant having
commenced the Infrastructure Work permits any material delay in or cessation of such
work (other than Force Majeure Delay), Hotel Owner may give Declarant written notice
of such failure. If, within ten days after receiving such notice, Declarant does not (as the
case may be) commence, resume and diligently proceed with, or complete the
Infrastructure Work, Hotel Owner may then take over the Infrastructure Work (or, in its
sole discretion, so much thereof as Hotel Owner deems appropriate for the development,
improvement and use of the Hotel Lot), and commence, resume or complete the same at
Declarant's cost. Declarant hereby:
(i) grants Hotel Owner such licenses to go over and upon the
Properties, and a power of attorney (coupled with Hotel Owner's interest in the
Properties) to direct the contractors, engineers and other professionals and
consultants engaged by Hotel Owner to perform the Infrastructure Work, and to
enter into new contracts and agreements in Declarant's name, as Hotel Owner in
12
16667137x.8
good faith determines is necessary or advisable to complete the Infrastructure
Work.
(ii) authorizes Hotel Owner to deal with the City, utility companies
and other third parties as Hotel Owner in good faith determines is necessary or
advisable to complete the Infrastructure Work.
(iii) agrees to hold harmless, indemnify and defend Hotel Owner, its
members, manager, officers, agents and contractors, from any claims, liabilities,
actions, judgments and related expenses incurred as a result of Hotel Owner's
exercising its rights under this Section 7(b), except to the extent incurred by
reason of the indemnified party's gross negligence or willful misconduct.
(c) Within ten days after written demand therefor, Declarant shall reimburse
Hotel Owner for each cost and expense paid by Declarant in the exercise of its rights
under Section 7(c) of this Article V, including without limitation all payments to
Declarant's engineers, contractors and consultants, to the City or to any utility company,
together with interest thereon at the rate specified in Section 5 of Article 6 and (if not
reimbursed when due) a late fee in the amount specified in Section 5 of Article 6.
(d) Declarant's obligation to reimburse Hotel Owner under Section 7(c)o
this Article V shall be the personal and individual debt of Declarant. Hotel Owner may
bring an action at law against Declarant to recover any or all amounts owed it by
Declarant under Section 7(c) of this Article V, may file and foreclose (judicially or
non judicially) a lien against any or all of the Properties then owned by Declarant (or its
successor), or may do both. In any action, including any arbitration, administrative
hearing or court proceeding and appeals thereof, Hotel Owner shall be entitled to recover
its costs, expenses and reasonable attorneys' fees, which items shall be secured by liens
created or reserved under this Section 7(d).
ARTICLE VI.
COVENANT FOR MAINTENANCE ASSESSMENTS
Section 1. Creation of the Lien and Personal Obligation. Declarant, for each Lot
owned by it within the Properties, hereby covenants, and each Owner of any Lot, by acceptance
of a deed therefor, whether or not it shall be expressed in any such deed or other conveyance,
shall be deemed to covenant and agree, to pay to the Association such annual and special
Association assessments as are fixed by the Board of Directors and assessed to the Member in
accordance with this Declaration and the Bylaws.
Section 2. Purposes of the Assessment. The assessments levied by the Association
shall be used exclusively for:
(a) The improvement, repair, landscaping and maintenance of Common
Properties and Common Area, including, without limitation, (i) insurance relating to the
Common Properties and Common Area, (ii) the cost of labor, equipment and materials
relating to the Common Properties and Common Area, (iii) construction, repair,
landscaping and maintenance of the Common Properties and Common Area, and(iv) fees
13
16667137x.8
for security, services, management and supervision relating to the Development as a
whole (and not to individual Properties) (including without limitation a reasonable and
customary periodic management and administrative fee paid to Declarant, until the
Declarant Termination Time,not to exceed in any period ten percent (10%) of the Annual
Budget (exclusive of such fees) allocable to such period (provided, however, that in no
event shall any assessments be levied to pay the costs of the Infrastructure Work, which
shall be solely the responsibility of Declarant);
(b) Payment of utility bills attributable to the Common Properties and
Common Area;
(c) Construction, repair and maintenance of Utility Facilities and other lines
and appurtenances for water, sewer, drainage, electric, telephone and other utilities that
constitute Common Properties and streets, roads, driveways, parking areas and walks that
constitute Common Properties; and
(d) Paying the reasonable administrative costs of the Association.
Section 3. Assessments.
(a) The Board of Directors shall, from time to time, but no less frequently
than annually, approve by majority vote a budget for the operation of the Association and
the maintenance (including routine repairs and replacements of Improvements and
equipment) of the Common Properties and Common Area(including the establishment of
reserves for the future payment of expenses and costs with respect thereto) and any
modifications to such budget (the "Annual Budget"); provided, however, prior to the
Declarant Termination Time each Annual Budget (and each modification thereto) shall
also require the approval of the Hotel Owner, which approval shall not be unreasonably
withheld. The Association shall from time to time (but no more frequently than monthly)
regularly assess each Member its Prorata Share of the amounts then required by the
Association to pay costs and expenses approved in the Annual Budget.
(b) The Association may also, by majority vote of the Board of Directors from
time to time impose a separate, special assessment to cover extraordinary costs, expenses
or obligations of the Association, including (i) nonrecurring expenses relating to the
proper operation, management and the administration of the Association, (ii)
nonrecurring expenses relating to the proper construction, repair, maintenance, care,
alteration, improvement, or reconstruction of specific Lots (including the Improvements
thereon) in the manner specified in this Declaration, (iii) unusual or non-recurring
expenses of any other kind, related to the Association or the performance or satisfaction
of any obligations of the Association under this Declaration and (iv) the establishment of
reserves for the future payment of any such expenses and costs, to the extent the reserves
under the Annual Budget(s) are insufficient to pay such expenses and costs; provided,
however, any such special assessment shall also require the approval of the Hotel Owner;
and each Member shall also be responsible for its Prorata Share of any such special
assessment, unless the Board of Directors by majority vote (and with the consent of any
14
16667137x.8
Member which would then bear a disproportionate amount of such assessment and the
approval of the Hotel Owner) determines to authorize a non-prorata basis.
(c) Notwithstanding any other provision of this Declaration, however, prior to
the Declarant Termination Time Declarant may, in its discretion, assess against Property
not yet platted of record any amounts that would otherwise be included in a regular or
special assessment of the Members.
Section 4. Due Dates; List of Assessments. All assessments shall be payable in cash,
by cashier's check, or other immediately available funds. All assessments shall be payable
quarterly, in advance, or on such other basis as is ordered by the Board of Directors. The Board
of Directors shall fix the date of each assessment. The Board of Directors shall also cause the
Association to maintain a roster of the Lots, and assessments applicable thereto, which shall be
kept in the office of the Association and be open to inspection by any Member.
Section 5. Effect of Nonpayment of Assessment.
(a) If any assessment is not paid when due, then such assessment shall
become delinquent and (together with interest at the rate of five percent(5%) per annum
in excess of the Prime Rate, or such lesser rate to which interest may be limited by law),
any late charge imposed pursuant to subsection (b) of this Section 5 and all costs incurred
by the Association, including reasonable attorneys' fees relating to collection of
delinquent accounts) shall be secured by a continuing lien on the Member's Lot, against
which such charges are made and shall also be the personal obligation of the Owner of
such Lot at the time when such charges are made. Such lien shall be prior to all other
liens except (i) tax liens, and (ii) the liens of a first mortgage or deed of trust. Such
assessment lien is hereby subordinated to the liens of a first mortgage or deed of trust.
Such lien and encumbrance in favor of the Association may be enforced by any means
available at law or in equity, including, without limitation, a non judicial foreclosure sale
of the Lot of a defaulting Owner conducted in accordance with the provisions of Chapter
51 of the Texas Property Code, with the Declarant having the power to appoint a trustee
to conduct such a sale. The Declarant, the Association, or any Owner may be the
purchaser at such foreclosure sale.
(b) Where assessments from a Member are not received within thirty (30)
days following the due date, the Association, to the extent permitted by law, shall be
entitled to charge a late fee of five percent(5%) of the delinquent amount or $25,
whichever is greater, for each such late payment.
(c) The assessments provided for herein shall be the personal and individual
debt of the Owner of the Lot covered by such assessment. The Association may bring an
action at law against the Member or former Member personally obligated to pay an
assessment, may file and foreclose (judicially or non judicially) a lien against the Lot
covered by such assessment, or may do both. In any action, including any arbitration,
administrative hearing or court proceeding and appeals thereof, the Association shall be
entitled to recover its costs, expenses and reasonable attorneys' fees, which items shall be
secured by the liens created or reserved under this Article VI.
15
16667137x.8
(d) In the event the holder of a mortgage or deed of trust securing a first lien
shall acquire title to any Lot by foreclosure or deed-in-lieu of foreclosure of such
mortgage or deed of trust, the unpaid assessments against the Lot, which accrued prior to
the acquisition of title by such mortgagee or lienholder, shall cease to be a lien but shall
remain the personal obligation of the Owner of the Lot against which they were assessed;
provided, that assessments made after the acquisition of title by the mortgagee or
lienholder shall, if delinquent, be secured by a lien created pursuant to Section 5 of this
Article VI.
Section 6. Statement of Unpaid Assessments. Upon the written request of a Member
or its mortgagee, the Association shall furnish a written statement of the unpaid charges then due
from such Member as shown on the Books of the Association. A reasonable, uniform charge
may be made by the Association for the issuance of such a statement, which charge the
Association may require to be paid to the Association prior to the issuance of such statement.
Section 7. Liability Limitations. Neither the Members nor their respective partners,
members, officers, directors, employees, agents or attorneys, nor the officers, directors,
employees, agents or attorneys of the Association, shall be personally liable for the debts
contracted for or otherwise incurred by the Association or for the acts or omissions of the
Association. Neither the Members nor the Association nor their respective partners, members,
officers, directors, employees, agents or attorneys shall be liable for any damages, including,
without limitation, incidental, consequential or punitive damages or lost profits, (i) for failure to
inspect any Lot, the Improvements thereon or the Common Properties or the Common Area or
for failure to secure, repair or maintain same, or (ii) occasioned by any act or omission by the
Association relating to the repair or maintenance of any Lot, the Improvements thereon or the
Common Properties or the Common Area.
Section 8. Estoppel by the Association. Within thirty (30) days of a written request
by an Owner, but not more frequently than four (4) times in any calendar year, the Association
shall send to such Owner (and/or its mortgagee or potential purchaser) a letter stating (a) the
amount of the last annual assessment levied by the Association against such Owner, (b)the
amount of any special assessment levied by the Association against that Owner for the prior
two (2) calendar years, (c) the extent, if any, that such Owner is delinquent in payment of
assessments against its Lot(s), and (d)whether the Association knows that Owner is in violation
of the provisions of this Declaration, including, but not limited to, this Declaration's
requirements for submission of applications and plans and specifications to the ACC for
approval by the ACC pursuant to this Declaration. A reasonable, uniform charge may be made
by the Association for the issuance of such letters, which charge shall be paid to the Association
prior to the Association issuing such letter.
Section 9. Report of Delinquent Assessments. The Association shall, at the written
request of the mortgagee of a Lot,report any delinquent assessments due from the Owner of such
Lot.
Section 10. Exempt Property. All Common Areas and all property dedicated to and
accepted by the City or another governmental authority shall be exempt from the assessments
created herein.
16
16667137x.8
ARTICLE VII.
ARCHITECTURAL CONTROL
Section 1. Architectural Control Committee. The ACC shall be a permanent
committee of the Association consisting of not less than three (3) members (and not more than
five (5) members) appointed or replaced by the Board of Directors from time to time as the
Board of Directors deem necessary; provided that at all times at least one (1) member of the
ACC shall be the designee of the Hotel Owner and at all times prior to the Declarant Termination
Time at least two (2) members of the ACC shall be the designees of Declarant. Initially, the
ACC shall have three (3) members, and the Board of Directors may increase the number of ACC
members to not more than five (5) members by majority vote of the Board of Directors, The
ACC shall meet at such times as its business may require. A quorum shall consist of a majority
of the members of the ACC. All matters within the authority of the ACC shall be decided by a
majority of the members of the ACC in attendance at the applicable meeting, unless otherwise
provided herein. At any time, the Declarant may delegate and assign to the Board of Directors all
or any part of the Declarant's power and right to designate two members of the ACC. In the
event of the death, incapacity or resignation of a member of the ACC, the successor for such
member shall be appointed by the Person (i.e., the Declarant, the Hotel Owner or the Board of
Directors, as applicable),who appointed the former member.
Section 2. Architectural Control.
(a) Except as otherwise expressly provided in this Declaration, no
Improvement shall be constructed or installed on any Lot and no addition, change or
alteration shall be made of any Lot, or the exterior of any Improvement thereon, without
the prior written approval by the ACC (which approval, unless such Improvement is
would violate the Architectural Guidelines, shall not be unreasonably withheld).
(b) The ACC shall unanimously adopt uniform criteria for the design,
materials, finishes and external appearance of Improvements, with the objective of
ensuring a harmonious appearance within the Development (giving due weight to
maintaining such harmony with the Initial Hotel Improvements). If the ACC is unable to
agree unanimously on such criteria, the Board of Directors shall adopt the same.
(c) Prior to commencing on any Property an Improvement that is subject to
ACC approval under subsection (a) of this Section 2, the Owner such Property shall
submit an application to the ACC for approval of such Improvement, which shall include
all the following (except where inapplicable or waived by the ACC in writing):
(i) Two(2) complete sets of plans and specifications for the
Improvement.
(ii) A statement regarding the proposed use of the Improvement.
(iii) A grading plan showing existing contour grades (in one-foot
contour intervals), finished spot grades, building finished floor elevation, and
showing the location of all improvements, structures, walks, curbs, patios,
driveways, fences and walls. Existing and finished grades shall be shown at lot
17
16667137x.8
corners and at corners of proposed improvements. Lot drainage provisions,
including any storm sewer locations, shall be indicated as well as cut and fill
details if any changes occur in the finished lot contour at any exterior boundary of
the plat.
(iv) A site plan showing the location of all exterior elements of the
Improvements, including (as applicable) all structures, walks, curbs, patios,
driveways, fences, walls, signs, lighting (including fixture types), parking areas
(with number and size of parking spaces), trash receptacles, fire lanes, site ingress
and egress, exterior doors, exterior glass or windows and any other opening in the
Improvement.
(v) A soil report.
(vi) A structural design.
(vii) A roof drainage plan.
(viii) All exterior elevations.
(ix) All exterior materials, textures and shapes.
(x) Sizes, shapes, locations and color and materials for paint and other
finishes for the exterior elements of the Improvement.
(xi) A landscaping plan, including walkways, fences, walls, elevation
changes, water features; vegetation and ground cover. Plans shall include plant
material list, spacing and sizes.
(xii) An irrigation plan showing area coverages and manufacturer's
name and equipment type.
(xiii) Utility connections, utility easements, location or any above
ground equipment and proposed screening. Utilities are defined as telephone, gas
electrical, sanitary sewer,water, storm sewer.
(xiv) Exterior illumination, including location and fixture type.
(xv) Signs (including any building marketing and tenant identification
signs, sizes, shapes, locations and materials).
(xvi) A detailed list of all requested waivers or variances.
(xvii) Such other information as may be requested by the ACC.
The Committee may at its sole discretion permit plans and specifications to be submitted
in scheduled phases and may, but shall not be required to, give conditional or partial
approvals to plans or specifications; provided, however, no permitted delay in the
18
16667137x.8
submission of plans or specifications and no conditional or partial approval shall in any
way obligate the ACC to any subsequent or additional approval, waiver or variance. The
ACC shall take action not later than thirty (30) days from when it has received all
required information.
(d) In making its decision, the ACC shall, in addition to applying the
Architectural Guidelines as required herein, consider, among other things, (i) the general
adequacy of site dimensions, (ii) conformity and harmony of the exterior design and of
location with structures with neighboring structures and sites as well as within the
Development and (iii) conformity to both the specific and general intent of the covenants
and restrictions set forth herein. Without limitation, the ACC will be deemed to be acting
reasonably for purposes of this Declaration if it withholds its approval of an Improvement
for any of the following reasons:
i. Such Improvement would violate the Architectural Guidelines;
ii. The external design, elevation, appearance, location or color scheme
for the proposed Improvements are not consistent in architectural style,
materials and other aesthetic character with other Improvements in the
area of the proposed Improvements;
iii. The plans and specifications submitted for such Improvement are
incomplete; or
iv. The design, appearance or location of any Landscaping Plan is not
appropriate or the resulting landscaping would require extraordinary
maintenance or care.
(e) If the application or plans and specifications are incomplete or otherwise
inadequate, the ACC may reject them as being inadequate or may approve or disapprove
a part conditionally or unconditionally, and reject the balance. If the ACC rejects or
disapproves an application and/or plans and specifications in whole or in part, it shall
provide the applicant the reason with reasonable specificity for such rejection or
disapproval. In case of a dispute about whether the ACC responded within thirty (30)
days after receiving an application, the person submitting the application and/or plans and
specifications shall have the burden of proving that such application was complete and
when the last required item was submitted.
(f) Without limitation of any other rights of the ACC, the ACC may in its sole
discretion allow variances from the Architectural Guidelines in order to overcome
practical difficulties and prevent unnecessary hardships in their application, but without
good cause, the ACC shall not as to any Improvement requiring its approval waive any
material requirement in the Architectural Guidelines and, in any event, the ACC shall not
approve any proposed Improvement that would violate applicable Law or, without the
consent of all the Members, would violate any provision of this Declaration. In
determining whether to grant any variance, the ACC shall also consider whether such
variance will (or will not) be materially detrimental or injurious to other Lots or
19
16667137x.8
Improvements or materially inconsistent with the intent and purposes of this Declaration.
If the ACC grants or denies a variance in any situation, the ACC shall nonetheless retain,
and does not waive, the right to make a different decision in any other situation,
regardless of the degree to which one situation may be similar (or even identical) to the
other.
(g) Within ten (10) days from any approval or disapproval by the ACC, any
interested party, or any member of the ACC, may appeal the decision by filing a written
notice with the Board of Directors. The Board of Directors shall consider such appeal at
its next meeting and the decision of the Board of Directors shall be final.
Section 3. Exteriors. Except for the Initial Hotel Improvements, all colors of
materials on the building exteriors must be approved by the ACC. All exterior wall surfaces of
any building shall be masonry, brick, painted tilt-wall or concrete aggregate construction, its
equivalent or better, and no exterior wall surface of any building shall be covered with sheet or
corrugated aluminum, asbestos, iron, wood or steel, provided, however, that such items may be
utilized as an accent treatment (1) in the Initial Hotel Improvements or (2) if approved by the
ACC. All fans, vents, cooling towers, skylights, and any equipment located on the roof of any
Improvements shall be effectively screened from public view or painted to match the exterior
facade (if approved by the ACC). All containers and other facilities for trash disposal must be
located and screened in a manner approved by the ACC.
Section 4. Stens.
(a) All signs shall be of a size and nature to preserve the quality and
atmosphere of the Properties and, unless otherwise approved in writing by the ACC,
signs may not (i)be installed to project above the roof line of a building or be located in
front of a building setback line; (ii)be of unusual size or shape when compared to the
Improvements situated on the Lot on which such sign is located; (iii)be located in or
painted on any window; and (iv) contain or utilize any flashing, blinking, intermittent or
moving light or source of illumination; provided, however, that any such sign or signs
may be illuminated internally or with floodlights if (1) part the Initial Hotel
Improvements or (2) prior written approval for such illumination is obtained from the
ACC. Except for the Initial Hotel Improvements, all signs, either temporary or
permanent, whether free standing or affixed to any structure,must be approved in writing
by the ACC prior to installation.
(b) The ACC may approve a building standard sign program in writing. If the
ACC approves a building standard sign program in writing, signs installed in strict
conformance with the requirements of such approved program will not be required to
have separate approval.
(c) Temporary signs shall be permitted during construction or when a Lot is
offered for sale or lease provided that the written approval of the ACC first is obtained.
Such a temporary sign on the Hotel Lot during the construction of the Initial Hotel
Improvements shall not require ACC approval.
20
16667137x.8
Section 5. Liability of ACC. Neither the Association, the Board of Directors, the
Officers or any Member, nor any of their respective partners, members, officers, directors,
employees, agents or attorneys, nor any member of the ACC shall be liable in damages
(including,without limitation, incidental, consequential or punitive damages or lost profits)
to any Owner or any other person by reason of negligence, mistake in judgment, failure to
point out or correct deficiencies in any application, plans or other materials, or any other
misfeasance, malfeasance or non-feasance in connection with the approval or disapproval
of any Improvement. No approval by the ACC of any Improvement shall be construed as a
determination by the ACC or the Association that such Improvement complies with applicable
Laws or as a representation or warranty, expressed or implied, of any kind to any party and no
party may act in reliance thereon, with respect to the suitability, structural integrity or any other
aspect of such Improvement. Anyone submitting applications or plans or any other matter for
approval by the ACC, by submitting of same, and any Owner of any part of the Properties, by
acquiring title to same, waives any right to seek damages (including, without limitation,
incidental, consequential or punitive damages) from the Association, the Board of Directors, any
Officer, any Member, the ACC or any of the other parties described above in this Section 3,
arising out of the ACC's or the Board of Directors' approval or disapproval of any application
and/or plans and agrees that the only remedy for any alleged misfeasance, malfeasance or
nonfeasance on the part of the ACC or the Association shall be to seek injunctive or other
equitable relief. Further, anyone submitting applications or plans or any other matter for
approval by the ACC (and any party on whose behalf said applications and/or plans are
submitted, including, without limitation, the Owner of the Lot for which said applications and/or
plans are submitted), by submitting the same, agrees to indemnify, defend and hold harmless the
Association, the Board of Directors, the Officers, the Members, the ACC and all other parties
described above in this Section 3 from and against any cost, claim, damage, penalty, fine,
expense or liability whatsoever, including attorneys' fees and court costs at all judicial levels,
arising out of or in connection with any approval of such applications or plans or other matter.
Section 6. Exempt Improvements. Notwithstanding any other provision of this
Declaration, the following Improvements shall not require approval by the ACC or otherwise by
the Association:
(a) The Initial Hotel Improvements (including any repair or replacement of
such Improvements that are damaged or destroyed, to the extent such repair or
replacement is to return the Initial Hotel Improvements substantially to the same
condition and appearance as before such damage or destruction).
(b) The repair or replacement of any other Improvements originally
constructed in accordance with this Declaration that are damaged or destroyed, to the
extent such repair or replacement is to return such Improvements substantially to the
same condition and appearance as before such damage or destruction.
(c) The alteration of any Improvement originally constructed in accordance
with this Declaration (including the Initial Hotel Improvements) mandated by applicable
Law, except as to the aspects of the design, appearance, location and specifications for
such Improvement that are not so mandated.
21
16667137x.8
(d) Any alteration or addition to an Improvement originally constructed in
accordance with this Declaration (including the Initial Hotel Improvements) that is
entirely within the interior of such Improvement or is otherwise not visible from any part
of the Development (including from within buildings on other Lots), or from adjoining
public streets and sidewalks.
ARTICLE VIII.
MAINTENANCE
Section 1. Maintenance of Common Properties and Common Area. The Association
shall landscape, operate, manage, insure, repair and replace all of the Common Properties and
Common Area so as to maintain them in a clean,neat, attractive and generally first rate condition
that is at least as good as that maintained by other,reasonably comparable mixed use office/hotel
projects in the vicinity of the Development, subject to any limitations imposed by the Annual
Budget then in effect. No Owner(s) shall maintain, landscape, operate, repair or replace all or
any portion of the Common Properties or the Common Area without the prior approval of the
Board of Directors.
Section 2. Maintenance of Landscapes.
(a) It is contemplated that, as part of the ACC's approval of the initial major
Improvements on a Lot, the Owner of such Lot shall install approved landscaping within
rights of way of streets or roadways contiguous with a Lot or within a strip area in such
Lot adjacent to such rights of way (collectively, the "Right of Way Landscape Areas").
After completion of the initial Landscaping Work in any Right of Way Landscape Area
by the Owner of the Lot in question, the Association shall assume responsibility for
Landscape Maintenance within such Right of Way Landscape Areas, unless the
Association determines, with the consent of such Owner, that such Landscape
Maintenance shall be performed in whole or in part, by such Owner. Any costs incurred
by the Association or an Owner for such Landscape Maintenance within a Right of Way
Landscape Area after completion of the initial Landscaping Work shall be an expense of
the Association (unless, where an Owner is performing such Landscape Maintenance, the
Association and such Owner agree that some or all of such expense shall be borne and
paid solely by such Owner).
(b) Except as otherwise provided in subsection (a) of this Section 2, each
Owner shall be responsible for the performance of Landscape Maintenance on such
Owner's Lot(s). All trees, shrubs, plants and ground covers shall be timely and properly
trimmed (including the removal of deadwood therefrom) according to their plant culture
and the landscape design and shall be watered and fertilized at such times and in such
quantities as required to keep them alive and attractive. Any dead tree, shrub, plant or
ground cover shall be removed and replaced immediately. All bed areas shall be kept
free of weeds and cultivated periodically as needed.
Section 3. Disrepair of Lots.
22
16667137x.8
(a) Each Owner shall maintain its Lot and Improvements in good, neat and
clean repair and overall appearance. For the purposes of this Section, the maintenance of
a Lot and its Improvements shall require maintenance of such Lot, its landscaping and the
exterior facade of the building or other structure thereon (including painting or
re-staining) in a manner consistent with the standard of maintenance generally adopted in
the Development at large. Subject to obtaining any requisite ACC approval, nothing in
this Declaration shall prevent any Owner from expending its own money to maintain,
landscape, operate, manage, insure, repair or replace any of its Lot(s) and/or its
Improvements in accordance with this Declaration.
(b) In the event the Owner of any Lot in the Development shall fail to
maintain its Lot and Improvements as required by this Declaration and the Rules and
Regulations, the Association shall have the right, but not the obligation, through its
agents, contractors and employees, and after ten days advance written notice to such
Owner and opportunity for such Owner to make such necessary repairs or maintenance,
to enter upon said Lot to maintain and restore the Lot and the Improvements erected on
such Lot.
(c) The cost of any maintenance performed by the Association pursuant to
this Section 2 shall be reimbursed by the applicable Owner, together with interest and any
administrative charge imposed pursuant to the following sentence, and until reimbursed
all such amounts shall be secured by a lien against such Owner's Lot on the same terms
as the liens created or reserved in Article VI of this Declaration. The Association may
impose and collect an administrative charge not to exceed twenty-five percent(25%) of
the cost of maintenance performed by the Association.
Section 4. Access at Reasonable Hours. For the purpose solely of performing the
maintenance required or authorized by this Article VIII, the Association, through its duly
authorized agents, contractors and employees, shall have the right, on reasonable notice, to enter
upon any Lot during reasonable business hours. Notwithstanding the foregoing, in an emergency
situation, no notice need be given and entry may be made at any time. Neither the Association
nor its agents, contractors or employees shall be deemed guilty of a trespass in properly
performing the activities authorized in this Article VIII.
ARTICLE IX.
INSURANCE
Section 1. Maintenance of Insurance. The Association shall obtain and maintain the
following types of insurance:
(a) Comprehensive general liability and public liability insurance covering the
Common Properties and Common Area and activities of the Association, in amounts and
with endorsements reasonable and customary for common interest development
associations of comparable projects in the vicinity of the Development, insuring the
Association, each Member, each Director, each Officer, each ACC member, and their
respective partners, members, officers, directors, employees, agents and attorneys.
23
16667137x.8
(b) Casualty insurance insuring the Common Properties for their full
replacement values.
(c) If the Association has any employees, workmen's compensation insurance
that satisfies the requirements of applicable Law and employers liability insurance in an
amount equal to at least$1,000,000 per occurrence.
(d) Directors' and officers' liability insurance, fidelity insurance and other
insurance to protect the Association, the Members, the ACC members, the Board of
Directors, the Officers, and property of the Association, in scope and amounts reasonable
and customary for common interest development associations of comparable projects in
the vicinity of the Development.
Section 2. Additional Insurance. The Association may require each Owner to obtain
and maintain liability insurance, naming the Association, the Directors and the Officers as
additional insureds, for such Owner's Lot(s) and Improvements in such amounts and in such
types as the Association may reasonably determine is necessary and advisable in light of risks of
liability to the Association associated with such Lot(s) or activities being conducted thereon, and
to provide the Association with suitable evidence thereof. An Owner may satisfy any such
requirement by having the Association, the Directors and the Officers named as additional
insureds on liability policies (including "master" or "blanket' policies otherwise carried by such
Owner with respect to its Lot(s) and Improvements.
ARTICLE X.
USE OF PROPERTY
Section 1. Use. Uses of the Properties shall be limited to upscale residential, multi-
family residential, general and medical office, retail (including restaurants and wellness) and a
hotel, and uses reasonably incidental and appropriate to such specified uses, and such uses shall
be subject to the Rules and Regulations and to the restrictions and requirements of this
Declaration. Without limiting the generality of the foregoing:
(a) No individual Lot water supply system shall be permitted in the
Development.
(b) No individual Lot sewage disposal shall be permitted in the Development.
(c) Without the prior written approval of the ACC, and except for the Initial
Hotel Improvements, no building or appurtenance, including, but not limited to, water
towers, standpipes, penthouses, elevators or elevator equipment, stairways, ventilation
fans, or similar equipment required to operate and maintain any building, fire or parapet
walls, skylights, tanks, cooling or other towers, wireless radio or television masts or
antennas, shall exceed a height equal to two times the distance from the front building
line of the street right-of-way. The maximum building height in this calculation shall be
measured as if the first floor slab elevation were the same as the top of the curb elevation
at the midpoint of the lot along the front yard of the Lot.
24
16667137x.8
(d) Except for special street lighting and other aerial facilities which may be
required pursuant to applicable Laws, no aerial utility facilities of any type (except
meters, risers, service pedestals, transformers and other surface installations necessary to
maintain or operate appropriate underground facilities) shall be erected or installed on the
Properties and all utility service facilities (including, but not limited to, water, sewer, gas,
electricity and telephone) shall be buried underground unless otherwise required pursuant
to applicable Laws by any governmental authority or the applicable utility company. To
the extent reasonably practicable, all utility meters, equipment, air conditioning
compressors, air conditioning and heating units and similar items must be visually
screened and located in areas not visible from other portions of the Properties or
Improvements.
(e) Except for the Initial Hotel Improvements, no more than percent of
the area contained within any Lot may be covered by buildings without the prior written
approval of the ACC.
(f) Subject to Section 5 of Article V, each Lot shall provide at least the
number of parking spaces required for the Improvements on and use of such Lot by any
governmental authority pursuant to applicable Law, but unless the ACC approves a
lesser amount of parking, the parking spaces provided within each Lot shall not be less
than the following: (i) one space for each square feet of gross floor area
contained with Improvements utilized for hotel uses; (ii) one space for each
square feet of gross floor area contained within Improvements utilized for
restaurant uses; (iii) one space for each square feet of gross floor area contained
within Improvements utilized for office use; (iv) one space for each square feet of
gross floor area contained within Improvements utilized for retail use and (v) the number
of spaces per gross floor area established from time to time by the ACC for uses other
than those enumerated in clauses (i), (ii), (iii) and (iv). No parking shall be permitted in
any street, alley or other parking right-of-way. All parking facilities shall be constructed
of concrete and shall include curbs and gutters. Unless prohibited by applicable Law,
parking facilities may be situated in the front of Improvements but not within the required
building set back areas adjacent to public rights-of-way. Any parking facility located
adjacent to public rights-of-way shall be screened from view from streets by at least a
two foot high undulating landscaped earthen berm and screen which shall be included in
the Landscaping Plan for the applicable Lot. Parking of fleet vehicles and trailers shall
be limited to the portion of each Lot that does not face a roadway or street, and shall be
screened if required by the ACC.
(g) Except for the Initial Hotel Improvements, areas of a Lot not otherwise
improved shall be landscaped in accordance with a Landscaping Plan approved by the
ACC. Each Landscaping Plan shall include and provide for: (i) drawings and
specifications for landscape installation and maintenance with respect to lawns, shrubs,
decorative plantings and trees and the size and location thereof, (ii) an automatic
controlled underground sprinkling irrigation system (unless otherwise approved by the
ACC, each Lot shall have and contain an automatic underground water sprinkler system
for the purpose of providing sufficient water to preserve and maintain the Landscaping in
a healthy and attractive condition, all irrigation systems shall be designed to have
25
16667137x.8
overlapping coverage, and all irrigation system controller devices must be equipped with
a rain sensor); (iii) screening of all storage, loading and unloading areas; (iv) landscaping
or other appropriate screening dividing incompatible land uses; (v) lighting of site
amenities and exterior areas, including entry fountain, signage walls, landscaping at the
individual Lot entries and the building and motor vehicular parking areas and all other
areas where light is to be used; (vi) landscaping within the Right of Way Landscape
Areas required by the ACC or the City; (vii) landscaping of a minimum of 10 percent of
the area in front of all buildings; (viii)landscaping of the entire area (which shall not be
less than 10 feet in width) between parking areas and/or buildings and the back of the
street curbline on street frontage, which shall include at least one tree of not less than 3"
caliper for each 50 feet along such street frontage with a minimum of 10'0" on center and
a maximum of 100'0" on center with the remainder of such area being covered with
suitable lawn grasses, ground covers, ornamental plantings or other suitable landscaping
treatment ; (ix) landscaped earthen berm of at least three feet in height screening all
loading and dock areas from view from streets or other rights-of-way; (x)undulating
landscaped earthen berm of at least two feet in height with 3'0" high hedges screening
any parking facility located within applicable building setback areas from view from
streets, provided that 3'0" high hedges may be used alone without such berms if such
berms cannot be completed due to site grading constraints, (xi) the preservation of
existing trees to the extent reasonably practicable and (xii) all other matters reasonably
required by the ACC to be included in the Landscaping Plan. Except for the Initial Hotel
Improvements, all Landscaping Work shall be completed within 30 days after the date of
substantial completion of the first building located on a Lot.
(h) Unless approved in writing by the ACC, loading docks and/or loading
doors and receiving areas shall not face any roads or streets. Where such docks, doors or
receiving areas are permitted, they shall be screened from view from streets or other
rights-of-way by a living screen consisting of live plant materials and undulating
landscaped earthen berm at least three feet in height which shall be included in the
Landscaping Plan for the applicable Lot. The Initial Hotel Improvements, however, shall
not be subject to this subsection (h).
(i) Except for the Initial Hotel Improvements, a Lot shall be graded and
drained in accordance with a Grading and Drainage Plan approved in writing by the ACC
which must provide for positive drainage of the applicable Lot without detrimental
effects on adjacent Lots, respecting all drainage area divides and collection systems
established by the ACC, without the utilization of any open drainage ditches and with all
site grading resulting toward a street or to an on-site closed conduit storm sewer system.
0) Except for the Initial Hotel Improvements, and subject to Force Majeure
Delays, initial construction of any Improvements shall be pursued with all due diligence
and, in any event, all such construction (including construction of the Initial Hotel
Improvements, once commenced) shall be completed within twelve (12) months after
commencement of construction (subject, prior to the Declarant Termination Time, to
extension for not more than an additional twelve (12) months in the reasonable discretion
of Declarant). Each Owner must provide trash bins for construction debris and provide
for erosion control during construction. All areas under construction shall be maintained
26
16667137x.8
in a clean, safe condition, and debris, trash, and rubble shall be stored in appropriate
containers and removed from the Lot no less frequently than each five (5) days.
(k) All driveways serving a Lot:
(i) shall have a minimum radius of twenty feet(20') and a maximum
width of forty feet(40').
(ii) if opening onto a streets with a median, shall be centered on the
center of the median opening unless it is offset by one hundred feet(100') or
more.
(iii) shall be paved with concrete having strength and durability equal
to, or better than, five inch (5") thick, 3,000 p.s.i. concrete.
No Lot shall have more than two curb cuts onto each adjacent street.
(iv) Containment structures, such as impervious curbing and retaining
walls, must be provided in all areas where Hazardous Substances are used or
stored. Such containment structures must be adequate to retain the entire contents
of any container(s) located therein. No ponds, lagoons, impoundments, reservoirs
or earthen works may be installed or constructed on any Lot for storage,
containment or disposal of any materials or wastes. Any underground storage
tanks used or installed on any Lot must be designed, installed and operated in
accordance with applicable Laws.
(v) No above-ground storage tanks or mechanical or manufacturing
equipment shall be e visible from any street or an adjoining Lot without the prior
written approval of the ACC.
(vi) No disposal, treatment, use, handling or storage of Hazardous
Substances shall be performed or permitted within the Properties, except storage,
use, handling and treatment as part of a use permitted hereunder and in
accordance with all applicable Laws and the other terms and conditions of this
Declaration).
(vii) No oil drilling, oil development operation, oil refining, quarrying
or mining operations of any kind, no oil wells, tanks, tunnels, mineral excavations
or shafts, and no derrick or other structure designed for use in quarrying or boring
for oil, natural gas or other minerals, shall be erected, maintained or permitted on
any Lot.
Section 2. Prohibited Vehicles. No"Prohibited Vehicle" shall be parked or stored (in
excess of 24 hours) on any of the Common Area.
(a) For purposes of this Section, a"Prohibited Vehicle" shall be:
27
16667137x.8
(i) a recreational vehicle (RV), including a camper, mobile and motor
home, all-terrain vehicle (ATV or ATC) or dune buggy;
(ii) a bus of any type;
(iii) a trailer of any type, except semi-trailers;
(iv) a boat; or
(v) a derelict vehicle, including a vehicle with no current license plate
or a vehicle incapable of self-propulsion.
Notwithstanding this Section 2, however, any Hotel guest shall be permitted to park
Prohibited Vehicles within the parking areas on the Hotel Lot while a guest at the Hotel.
(b) No vehicle, whether a Prohibited Vehicle or otherwise, shall be parked on
any lawn, landscaped area, non-dedicated private roadway or other portion of the
Properties which is not specifically designed and intended for the parking of vehicles.
(c) Except as may be required in order to remove such vehicle, and except for
"jump starting," replacement of flat or damaged tires or other such "emergency" repairs,
no repair of motor vehicles shall be made in any roadway, driveway or parking area.
Section 3. Height Restriction on Lot 2. No building erected on Lot 2, as identified on
Exhibit D attached hereto and hereby made a part hereto, shall exceed either one story or
feet in height(including any roof equipment, structures or parapets).
Section 4. Limitation on Lodging Uses. Except within the Hotel Lot, no hotel, motel
or other transient lodging uses shall be permitted within the Properties.
Section 5. Environmental Indemnification. Each Owner shall indemnify, defend and
hold harmless the Association, the Board of Directors, the ACC, the Officers, and all other
Owners from any costs, changes, liabilities, losses, expenses, claims or causes of action
(including reasonable attorneys' fees) relating to the disposal, treatment, use, handling or storage
of Hazardous Substances on such Owner's Lot(s).
ARTICLE XI.
GENERAL PROVISIONS
Section 1. Beneficiaries of Easements, Rights and Privileges. The easements,
licenses, rights and privileges established, created and granted by this Declaration shall be for the
benefit of, and restricted solely to, the Association and the Owners of Lots. Any Owner may
also grant the benefit of any such easement, license, right or privilege to its tenants and Invitees
for the duration of their tenancies or visits, subject in the case of the Common Properties and
Common Area to the Rules and Regulations. This provision is not intended, nor shall it be
construed as, creating any rights in or for the benefit of the general public.
28
16667137x.8
Section 2. Duration and Amendment.
(a) The covenants and restrictions of this Declaration shall run with and bind
the Properties and shall inure to the benefit of and be enforceable by the Declarant, the
Association, any Member or any Owner, and their respective legal representatives, heirs,
successors and assigns, until December 31, 2099, after which time said covenants and
restrictions shall be automatically extended for successive periods of ten(10) years each
unless an instrument signed by Members holding not less than fifty-one percent(51%) of
the votes of the Association is filed of record and recorded in the Recording Office
changing or terminating said covenants and restrictions in whole or in part at least one
year before the then scheduled termination date.
(b) Notwithstanding the foregoing, the easements, licenses, rights and
privileges established and created with respect to the Properties by Articles IV and V
shall be perpetual, shall run with the Properties and shall survive any destruction,
reconstruction and relocation of the physical structures, unless (i) said provisions are
abrogated by the unanimous written consent of all the Owners, or (ii) any of said
easements, licenses, rights or privileges are abandoned for a continuous period of
twenty-four(24) months, in which event the easement, license, right or privilege in
question shall automatically terminate.
(c) Except as specifically prohibited herein, this Declaration may be amended
only by an instrument signed by all Owners or by an instrument signed by the President
of the Association with authorization given by the Board of Directors by a unanimous
vote. Any amendment must be filed of record and recorded in the Recording Office to be
effective. Notwithstanding any of the foregoing, no provision of this Declaration may be
amended if such provision is, at the time of the proposed amendment, required to be
included in this Declaration by any applicable Law.
(d) All of the rights, powers and reservations of Declarant herein contained
shall terminate upon the Declarant Termination Time.
(e) Before the Declarant Termination Time, any and all of the rights, powers
and reservations of Declarant herein contained may be assigned by Declarant to an
Owner that acquires more than thirty-five percent of the Properties and will assume any
or all of the duties of Declarant hereunder concurrently with such acquisition. To be
effective, such assignment must be in writing and specifically refer to the rights, powers
and reservations of the Declarant hereunder which are being assigned. Upon acceptance
of such assignment by any such person or entity, said assignee shall, to the extent of such
assignment, assume Declarant's duties hereunder and shall have the same rights and
powers and be subject to the same obligations and duties as are given to and assumed by
Declarant herein. Upon such assignment, and to the extent thereof, Declarant shall be
relieved from all liabilities, obligations and duties hereunder from and after the date of
such assignment. The term "Declarant", as used herein, includes all such assignees and
their heirs, successor and assigns.
29
16667137x.8
Section 3. Notices. Any notice required to be sent to any Member or Owner under
the provisions of this Declaration shall be in writing and shall be deemed to have been properly
given and received when mailed, postage prepaid, or delivered by a reputable, recognized courier
service, to the last known address of the person on the records of the Association at the time of
such mailing. Notice will be sufficient with respect to any Lot if given to Person then shown as
the Owner of such Lot on the Association's records even though ownership of the related Lot
may have in fact changed. Any notice shall be deemed given and received if mailed or delivered
as provided in the preceding sentence, notwithstanding the failure of the intended recipient
thereof to accept,pick up or give receipt for same.
Section 4. Severability. If any provision of this Declaration is in conflict with
applicable Laws, such provision shall be so construed, if practicable, to achieve its apparent
intent in a manner consistent with such Laws. Invalidation of any of the covenants, limitations
or provisions of this Declaration by judgment or court order shall in no way affect any of the
remaining provisions thereto or of that provision under other circumstances, and the same shall
continue in full force and effect.
Section 5. Enforcement. The Association shall be entitled to recover the costs of
enforcing the provisions of this Declaration and the Rules and Regulations against any Owner, or
its tenant or occupant, including, without limitation, reasonable attorneys' fees and the costs of
legal action at all levels and stages, including appellate proceedings, actually incurred by the
Association in connection therewith. Such costs shall be a lien against all Property of the
applicable Owner. Such lien is hereby subordinated to the lien of any first mortgage or deed of
trust on such Property.
Section 6. Texas Law. In construing this Declaration, and with respect to any action
hereunder, the laws of the State of Texas shall apply.
Section 7. Liability of Association and ACC. Any liability of the Association or the
ACC which may arise under or in connection with this Declaration, the Common Properties or
Common Area, the Properties and/or the Development, or any activity of the Association or the
ACC shall be a liability of the Association and not the personal liability of any Member or any
officer, director, employee or agent of the Association, or any member of the ACC.
Section 8. Effective Date. This Declaration shall be effective upon its recordation in
the Recording Office.
Section 9. Existing Improvements. Notwithstanding any provision of this
Declaration to the contrary, all Improvements existing on the Properties at the time that this
Declaration is recorded in the Recording Office shall be deemed to be approved by the ACC and
in compliance with the covenants and restrictions set forth herein.
Section 10. Counterparts. This Declaration maybe executed in multiple counterparts,
each of which may be executed by one or more parties and shall be considered an original and all
of which together shall constitute one document.
30
16667137x.8
Section 11. No Implied Dedication. No easement or right of way shown on an exhibit
to this Declaration is made available for use because of this Declaration unless otherwise
specifically provided herein.
Section 12. Zoning. Prior to the Declarant Termination Time, no Owner shall
(without the prior written approval of Declarant) initiate, pursue or cooperate in any effort (a) to
change the zoning of any portion of the Properties or the Development which is in effect as of
the date hereof, or (b) to obtain any variance from or exception to such zoning and in no event
shall any Owner initiate, pursue or cooperate in any such zoning change, variance or exception
for a proposed use of any of portion of the Properties that would violate the use limitations in this
Declaration or the Rules and Regulations. Notwithstanding anything herein to the contrary,
including the preceding sentence, Declarant reserves the right to apply for a change in (or
variance from) the use and zoning of any portion of the Properties owned by Declarant without
the approval or consent of the Board of Directors, so long as such changed use and zoning is
consistent with the uses permitted by this Declaration and would not violate the Rules and
Regulations.
Section 13. No Warranty of Enforceability. While the Declarant has no reason to
believe any of the restrictive covenants or other terms or provisions contained in this Declaration
are or may be invalid or unenforceable for any reason or to any extent, Declarant makes no
warranty as to the present or future validity or enforceability of any such restrictive covenants.
Any Owner acquiring a Lot in the Development in reliance on one or more of such restrictive
covenants, terms or provisions shall assume all risks of the validity and enforceability thereof
and, by acquiring the Lot, agrees to hold Declarant, the Association, the Board of Directors, the
Officers and the ACC harmless therefrom. The Declarant, the Association, the Board of
Directors, the Officers and the ACC shall not be responsible for the acts or omissions of any
individual, entity or other Owners.
ARTICLE XII.
ENFORCEMENT
Section 1. Failure to Comply. Failure of an Owner or tenant or other occupant of any
Lot to comply with such covenants, restrictions, terms, provisions or the Rules and Regulations
shall be grounds for immediate action which may include, without limitation, an action to
recover sums due for damages, injunctive relief, enforcement of other rights or remedies set forth
in this Declaration or otherwise available at law, in equity or otherwise, or any combination
thereof. As provided in Section 3(a) of Article IV, the Association shall also have the right to
suspend rights of defaulting Owners to use Common Properties and Common Areas, except for
legal access. All rights and remedies of the Association under this Declaration shall be
cumulative, and the exercise or nonexercise of any of same shall not be deemed a waiver of that
right, or any other right.
Section 2. Fines. In addition to all other remedies, with the unanimous approval of
the Board of Directors, a fine or fines may be imposed upon an Owner for failure of an Owner to
comply with any of the aforesaid covenants, restrictions, terms and provisions or the Rules and
Regulations, provided the following procedures are followed.
31
16667137x.8
(a) Notice. The Association shall notify the Owner in writing of the alleged
infraction or infractions. Included in the notice shall be the date, time and place of a
meeting of the Board of Directors, at which time the Owner may present reasons why a
fine(s) should not be imposed. At least ten (10) days'prior written notice of such meeting
shall be given.
(b) Meeting. The alleged noncompliance shall be presented to the Board of
Directors, after which the Board of Directors shall hear reasons why a fine(s) should not
be imposed. A written decision of the Board of Directors shall be submitted to the
Owner by not later than fifteen (15) days after the Board of Directors' meeting. The
Owner shall have a right to be represented by counsel and to cross examine witnesses.
(c) Amounts. Fines may not be greater than as follows:
(i) First non-compliance or violation, a fine not in excess of One Hundred
Dollars ($100.00);
(ii) Second non-compliance or violation, a fine not in excess of Five Hundred
Dollars ($500.00).
(iii) Third and subsequent non-compliances, or a violation or violations which
are of a continuing nature, a fine not in excess of One Thousand Dollars
($1,000.00).
Fines shall be a lien on all Properties of the applicable Owner. Such lien is hereby subordinated
to the liens of a first mortgage or deed of trust.
(d) Payment of Fines. Fines shall be paid not later than fifteen (15) days after notice
to the applicable Owner of the imposition or assessment thereof.
(e) Non Exclusive Remedy. Fines shall not be construed to be the exclusive remedy
of the Association for failure to comply with any of the aforesaid covenants, restrictions,
terms and provisions or the Rules and Regulations, and shall exist in addition to all other
rights and remedies to which the Association may otherwise be entitled to recover by law
from such Owner.
ARTICLE XIII.
EXHIBITS
Section 1. Exhibits. Each of the following, attached Exhibits is hereby incorporated
herein, as an integral part of this Declaration:
Exhibit A Description of the Properties
Exhibit B Description of Hotel Lot
Exhibit C Interim Hotel Parking Area
Exhibit D Description of Lot 2
Exhibit E Plans for Infrastructure Work
Exhibit E-1 Site Plan (including entryways and streets)
32
16667137x.8
Exhibit E-2 Utility Installations
Exhibit E-3 Landscaping Plan
Exhibit E-4 Hardscaping Plan
IN WITNESS WHEREOF, Declarant has caused this Declaration to be executed and
recorded as of the date first above written.
DECLARANT: MDP Southlake, LLC,
a Texas limited liability company
By:
Name:
Title:
33
16667137x.8
ACKNOWLEDGMENT
STATE OF §
COUNTY OF §
THIS INSTRUMENT was acknowledged before me on the day of , 2014,
by of MDP Southlake, LLC, a Texas limited
liability company.
My Commission Expires: Notary Public in and for the State of
Printed Name of Notary
16667137x.8
[Add Exhibits]
A-1
16667137x.8