ORDINANCE NO. 11, 867
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, PROVIDING FOR THE EXTENSION OF CERTAIN BOUNDARY LIMITS OF THE CITY OF BAYTOWN, TEXAS, FOR A LIMITED PURPOSE ONLY TO INCLUDE APPROXIMATELY 935 ACRES OF LAND IN THE CITY' S EXTRATERRITORIAL JURISDICTION, GENERALLY LOCATED EAST AND WEST OF TEXAS STATE HIGHWAY 99 AND NEEDLEPOINT ROAD (FM 23 54) APPROXIMATELY 1, 900 FEET SOUTH OF INTERSTATE 10 IN CHAMBERS COUNTY, TEXAS, WHICH SAID TERRITORIES LIE ADJACENT TO AND ADJOIN THE PRESENT BOUNDARY LIMITS FOR THE CITY OF BAYTOWN, TEXAS; AND PROVIDING FOR THE PUBLICATION AND EFFECTIVE DATE THEREOF.
WHEREAS, there being no request for an " on- site" hearing, two public hearings before the City Council of the City of Baytown, Texas, where all interested persons were provided with an opportunity to be heard on the proposed limited purpose annexation of the property described in Section 1 of this ordinance, h were held, during the City Council meetings on the 26` day of January, 2012, in the City Council Chamber of the City Hall of the City of Baytown, Texas, which date is not more than forty ( 40) nor less than twenty ( 20) days prior to the institution of annexation proceedings; and
WHEREAS, notices of such public hearings were published in a newspaper having general circulation in the City of Baytown, Texas, and in the below described territories on the 6"' day of January, 2012, which date is not more than twenty (20) nor less than ten ( 10) days prior to the dates ofthe public hearings; and
WHEREAS, a notice of such public hearings was posted on the City of Baytown' s website on the 6`' day of January, 2012, which date is not more than twenty ( 20) nor less than ten ( 10) days prior to the date of the public hearings and remained posted until the date of the applicable hearings; and
WHEREAS, the total corporate area of the City of Baytown, Texas, on the 1 st day ofJanuary, 2012, was 37. 5 square miles; and
WHEREAS, the population of the City of Baytown, Texas, is approximately 72, 876 inhabitants; and
WHEREAS, the below described territories lie within the extraterritorial jurisdiction of the City of Baytown, Texas; and
WHEREAS, the below described territories lie adjacent to and adjoin the City of Baytown, Texas; NOW THEREFORE
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the area herein annexed by the City for a limited purpose only will cause an area to be entirely surrounded by the City of Baytown. As such, the City Council of the City of Baytown, Texas, hereby finds that surrounding the area by this limited purpose annexation is in the public interest.
Section 2: That the following described land and territories lying adjacent to and adjoining the City of Baytown are hereby added and annexed to the City ofBaytown, Texas, for a limited purpose pursuant to the Strategic Partnership Agreement between Chambers County Improvement District No. 3 and the City of Baytown, and shall be subject to the terms and conditions of said agreement: SEE EXHIBIT " A"
Section 3: ]' his ordinance shall be published and passed in the manner provided in Article 1, Section 9, of the Charter of the City ol' Baytown, Texas.
INTRODUCED, READ and PASSED on the FIRSTREA DING thX, hL( 23" day of February, 2(J12.
1- 1. DONCARLOS,
APPROVED AS TO FORM:
I ! A K CZ
INTRODUCED, READ and PASSED oil the SECOND AN D F1 1 READING this the 12"' day of April, 2012. N7,k'
TE"PHEN 1- 1. DONCARLOS, Mayor
APPROVED ASTO FORM:
ACID RAMIREZ, SR., 0i Attorney
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19 Exhibit " A"
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR BAY 10 BUSINESS PARK Including Creation of Grand Parkway Protective Zone)
THE STATE OF TEXAS § KNOW ALL PERSONS BY THESE PRESENTS: COUNTY OF CHAMBERS §
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR BAY 10 BUSINESS PARK ( this " Declaration ") is made as of the day of 2012 ( the " Effective Date "), by GRAND PARKWAY/KILGORE PARKWAY, LP, a Texas limited partnership ( " Declarant').
WITNESSETH:
WHEREAS, Declarant is the sole fee owner and developer of certain tracts of land consisting collectively of approximately 465 acres situated in Chambers County, Texas, commonly known as " Bay 10 Business Park," said Declarant -owned tracts being more particularly described by metes and bounds on Exhibit "A" attached hereto and incorporated herein by this reference ( the Development Project "); and
WHEREAS, Declarant desires to restrict the Development Project as described herein in order to protect the value and desirability of the Development Project and yet retain flexibility to respond to changing or unforeseen circumstances so as to control and maintain the quality, uniformity and distinction of the Development Project for the benefit of the present and future owners of any portion thereof; and
WHEREAS, the Development Project is within the jurisdiction of the City of Baytown, Texas, and some parcels of the Development Project abut and adjoin the east right -of -way line of State Highway 99 a/ k/a Grand Parkway, a state highway presently comprised of surface and/ or feeder roads only ( the future proposed elevated portions thereof not having yet been constructed or under way); and
WHEREAS, Declarant desires to further restrict certain portions of the Development Project as described herein in order to provide a better aesthetic appearance of development within a special zone comprised of those portions of the Development Project that are within the Parkway Protective Zone as hereinbelow defined; and
WHEREAS, Declarant desires to hold, sell and convey the Development Project subject to the following covenants, conditions and restrictions, which are for the purpose of establishing and preserving certain aesthetic qualities and standards in connection with future development, improvement and use of the Development Project; and
1- 1082724. 5lSPFU0099U00011021512 WHEREAS, for purposes of preserving the value of the Development Project and providing for the effective maintenance and improvement of the Common Areas and Common Facilities ( as each such term is hereinafter defined), Declarant deems it desirable, and in its best interests, to allow the Administrator ( as hereinafter defined) to act as and hold the rights of Declarant hereunder and, at the election of the Administrator, to create an entity to which would be delegated and assigned the powers and responsibilities of maintaining certain Common Areas and Common Facilities, providing certain Approved Services ( as hereinafter defined), enforcing this Declaration, collecting and disbursing the Assessments ( as hereinafter defined), and performing the other functions set forth in this Declaration.
NOW, THEREFORE, Declarant hereby adopts the following covenants, conditions, and restrictions, which will shall run with the Development Project, and will bind all parties having or acquiring any right, title, or interest therein and inure to the benefit of each Owner thereof, as hereinafter more fully described and set forth.
ARTICLE I
Definitions
1. " Administrator" means Parkside Capital, L.L.C., a Texas limited liability company, or such other person, persons or entity (including, but not limited to, the Association (as hereinafter defined) to whom Parkside Capital, L.L.C., or its assignee has assigned the powers and duties of Administrator hereunder, from time to time, by written instrument filed for record in the County Records ( defined below).
2. " Applicable Laws" means all laws, statutes, ordinances, rules, orders, regulations, requirements, court orders and rulings, and other requirements of any federal, state or local governmental authorities with jurisdiction over the Development Project ( or relevant portion thereof, as applicable), including, without limitation, the City Ordinances ( as hereinafter defined), all if and as amended from time to time.
3. " Assessments" shall have the meaning set forth in Article IV, Section 4 hereof.
4. " Accessory Use" means a use subordinate to the principal use of a lot or of a principal building on the same lot, and serves a purpose clearly incidental to a permitted principal use of the lot or building and which accessory use is compatible with the principal permitted uses authorized under this Declaration.
Association" shall have the meaning set forth in Article IV, Section 1 hereof.
6. " Lift ' shall mean the City of Baytown, Texas, a home -rule municipal corporation located in Harris and Chambers County, Texas. Whenever the approval of the City is required herein, such approval shall mean the approval of the City Manager or his designee.
7. " City Ordinances" means the Code of Ordinances of the City of Baytown, Texas and all other ( and future) ordinances and regulations of the City of Baytown, Texas, if and as
2- 1082724. 5/ SPW0099[ 10001/ 021512 amended from time to time, to the extent the same are applicable within the Development Project by law or by agreement.
8. " County Records" means the Real Property Records of Chambers County, Texas.
9. " Design Development Plan" shall mean a plan that shall include:
a) a site plan showing the location, dimensions and orientation to boundary lines and applicable set -back lines of proposed buildings, garages, other structures, streets, driveways, sidewalks, fencing and all other contemplated Improvements to be placed on the Development Site, including ( A) traffic directional flow indicators reflecting one -way traffic and direction, and where two -way traffic is proposed, and ( B) a proposed parking striping plan and calculation of total number of parking spaces and handicapped/ disabled parking spaces ( that comply with Applicable Laws to be considered as such);
b) design elevation of ( from each side) and description of the height and exterior dimensions and size of, each structure to be built, including, without limitation, an architect' s estimated calculation of the gross square footage of building area and commercial rentable square footage of each structure to be constructed on the Development Site; and
c) to the extent that the Development Site is affected by any part of the Protective Zone, detailed information showing how the Development Site and Improvements will comply with the Screening Requirements for the applicable Viewing Zone.
10. " Development Guidelines" means the Bay 10 Business Park Development Guidelines that Administrator may, but shall not be required to, promulgate, revise and/ or amend from time to time with prior written approval of the City as herein provided. Although termed guidelines," compliance with the Development Guidelines is mandatory.
11. " Development Site" means any individual Reserve within the Development Project intended for individual sale, lease or development, or any other combination of platted Reserves or portions of platted Reserves ( or land acreage) within the Development Project that under applicable City regulations is permitted to be developed for commercial or industrial purposes as such uses are defined in the City' s Land Development Code.
12. " District" means Chambers County Improvement District No. 3 or any successor governmental entity thereto.
13. " Exterior Liehting Plan" means a plan, which shall include and show the location, intensity, projected light coverage, and orientation of all exterior lighting to be placed on
3- 1082724, 5/ SPH/ 0099U0001/ 021512 the Development Site together with a lighting spill plan which reflects that no lighting will spill onto adjacent residential properties or rights -of way.-
14. " Exterior Materials Plan" shall mean a plan containing drawings and details of the proposed design of all exterior surfaces of all Improvements, including, without limitation, the roof, paving/ pavers, sidewalks, walls, and fencing, specifying the style, pattern, color, quality and type of exterior construction materials to be used as exterior treatments or finishes for all proposed Improvements.
15. " General Assessments" shall have the meaning set forth in Article IV, Section 4 hereof.
16. " Green Belt Reserve" means the portion of the Parkway Protective Zone situated within one hundred feet ( 100') of the eastern right -of way- line of the Parkway on each Development Site.
17. " Improvement" or " Improvements" means all of the following: ( i) landscaping including vegetation, stonework, or similar embellishments) installed or grown on the Development Site, and ( ii) every item of construction or erection of man -made items upon a Development Site, including, but not limited to: buildings; garages; carports or truckports; dock facilities and ramps; storage buildings, sheds, and other outbuildings; ground or pad- mounted exterior equipment, such as, without limitation, HVAC equipment, compressors, generators, dynamos, battery back -up systems, cranes, signal transmitting or receiving equipment ( such as antennas and satellite dishes); racks and other structures for stacking or staging of materials; fences, screening, walls, and retaining walls; storage, processing or treatment pits, reservoirs, and other similar areas, whether excavated or created by above -ground structures; stairs and railings; fixtures; flagpoles; statuary and sculptures; water towers; storage tanks for water, chemicals or other products or supplies; and light poles, standards, fixtures and facilities.
18. " Landscaping Plan" means a plan which shall include the general location, type tree, shrub or ground cover) and approximate configuration of all proposed landscaping and landscaping materials, showing the proposed use and treatment of all portions of the Development Site that are to be landscaped, including sod and grass areas and any related berming, stonework and similar items.
19. " Lessee" means any lessee, tenant, occupant or user of any Development Site who is not the fee Owner thereof, including any ground lessee.
20. " Owner" means and refer to the record fee owner, whether one or more persons or entities, of the fee simple title to the surface estate in any Development Site or tract of land which is part of the Development Project, including contract sellers, but excluding those having such interest merely as security for the performance of an obligation. If there is more than one fee owner of a part of the Development Project, then " Owner" will mean all the fee owners, collectively; provided, however, that voting in any Association by multiple owners of a single Development Site shall be as provided elsewhere herein or in the Development Guidelines, as applicable.
4 1082724. 5/ SPFU00991/ 0001/ 021512 21. " Parkway" means the publically dedicated right -of -way comprising State Highway 99, which is commonly known as Grand Parkway.
22. " Parkway Protective Zone" means the portion of the Development Project that is situated within three hundred feet ( 300') of the easterly right -of way- line of the Parkway. Notwithstanding any subsequent expansion of the Parkway right -of way- by conveyance, condemnation or other governmental taking, for purposes of determining the area comprising the Parkway Protective Zone, the locations of the easterly boundary of the Parkway will be deemed to be the same as it existed as of the Effective Date hereof.
23. " Plans and Specifications" means complete construction drawings and specifications suitable for obtaining construction or building permits for the construction of all Improvements to be placed on the Development Site. " Plans and Specifications" shall include, but not be limited to, all of the elements required in the following plans: exterior materials plan, landscaping plan, utilities plan, exterior lighting plan, design development plan, screening plan, and signage plan.
24. " Required Maiority of Owners" shall have the meaning set forth in Article VI, Section I hereof.
25. " Reserve" or " Reserves" means any plot of land that is subdivided as a lot or reserve on a recorded subdivision plat recorded in the County Records, subject to the restrictions herein on replats.
26. " Screening" or " Screened" means, with respect only to the Parkway Protective Zone, an opaque screen, which must be maintained at all times, made of any combination of the following that cumulatively equals a minimum of six feet (6') in height:
a) a berm;
b) a fence or wall; or
c) evergreen screening shrubs that reach the required height by the end of the of the first growing season with no visible breaks between shrubs or other landscaping;
as approved by the Director of the Department of Planning and Development Services of the City of Baytown, Texas, or any successor department responsible for enforcing the City Ordinances. The berm described in item ( i) above may be situated within the Green Belt Reserve. The six - foot ( 6') minimum height requirement will not apply to Screening required on the roof of a building, provided such Screening is of sufficient height to satisfy the requirements of Article VII, Section 4 hereof.
5- 1082724. 5/ SPM099 00001 / 02 1 5 1 2 27. " Schematic Design Package" means the following:
a) the Design Development Plan;
b) the Exterior Materials Plan;
c) the Landscaping Plan;
d) the Utilities Plan;
e) the Exterior Lighting Plan;
f) the Signage Plan; and
g) other elements, which shall mean and include all such other information as may be reasonably required to determine that the location, scale, design, character, style and appearance of such developer' s /Owner' s intended Improvements to the Development Site are in compliance with the requirements of this Declaration and the Development Guidelines.
28. " Setback" shall mean the required unobstructed, unoccupied distance between each structure and the lot lines of the lot on which it is situated.
29. " Signage Plan" shall mean a plan that shall include and show the location, height, orientation, color and materials for exterior appearance, lighting scheme and proposed content of all signs to be located on the Development Site.
30. " Special Assessments" shall have the meaning set forth in Article IV. Section 4 hereof.
31. " Utilities Plan" shall mean a plan that shall include and show approximate location, size, type, and above -ground visible elements of all utility facilities proposed to be located outside the occupiable building structures to obtain water, sanitary sewerage, drainage including detention, if applicable, and on -site collector and discharge systems), electric, gas, telephone, cable or other utility service to the Development Site.
32. " Viewing Zone" means the line -of -sight view from any point that is five ( 5) feet above the grade throughout the Parkway, within a viewing zone established for each separate Development Site by the continued extension ( along a straight line trajectory) into and across the Parkway of two imaginary lines ( the " Proieetion Lines ") beginning at the points at which the boundaries of the Development Site intersect the easternmost boundary of the Parkway Protective Zone ( the " Intersection Points ") and extending in each case to the closest point on the eastern right -of -way line of the Parkway that is also perpendicular to said right -of -way line. For clarification and illustration purposes, two ( 2) diagrams ( one depicting the eastern right -of way- line of the Parkway as a straight line and other depicting it as a curved line) illustrating how the Viewing Zone will be determined are attached hereto as Exhibit " B" and incorporated herein by
6- 1082724. 5/ S PH/ 0099 U0001 /021512 this reference. All compliance herewith shall be determined based on the configuration and elevation of the road Improvements existing in the Parkway on the Effective Date, and any future elevation or change in such roadway Improvements in the Parkway shall not alter or affect the Viewing Zone as it is initially defined and established hereunder.
ARTICLE II
Use of Development Sites
1. Permitted Uses. Subject to Grandfathered Use ( defined below), Development Sites shall be used solely for one or more of the following purposes ( and any and all Accessory Uses):
a) office;
b) gasoline service station;
c) medical services; d) research and development facility; e) financial institution; f) industrial, warehouse or distribution facility; provided, however, that any Development Site to be used for heavy industrial use, as defined in the City Ordinances, must be specifically approved by the Administrator for that use; g) light manufacturing and assembly facility; h) automobile dealership; i) restaurant; or j) any other use expressly approved in advance and in writing by both the Administrator and the City.
If the City annexes the Development Project, to the extent that the City' s zoning classification set forth in the City Ordinances allows for any additional uses on a Development Site ( i. e., that are not described above), any such additional uses will be deemed permitted uses thereon and any uses not permitted by the City' s zoning will be deemed prohibited. All uses shall be subject to all of the conditions set forth in this Declaration, the City Ordinances and other Applicable Laws.
2. Prohibited Uses. No Development Site shall ever be used for any of the following purposes:
a) any trailer court, mobile home park, manufactured home park, recreational vehicle park, or single manufactured home or recreational vehicle not being used for a permitted construction office, lot for sale, lease, or rental of new or used boats, recreational vehicles, or motorcycles, except the sale of new and used automobiles shall be permitted and the sale of boats, motorcycles and all- terrain vehicles may be sold as an incidental part of a retail business such as Academy, Bass Pro - Shops, and Gander Mountain;
7- 1 092724.$/ S Pw'0099 V0001 /021512 b) any labor camp, junk yard, stock yard, or animal raising ( other than veterinarian clinics or hospitals, provided such facilities, have no provision for keeping animals outdoors overnight and otherwise comply with the provisions hereof);
c) the operation of any automobile body or fender repair facility, except as part of an auto dealership or service station;
d) any carnival or amusement park;
e) any dry cleaning plant;
f) any rooming or boarding house or adult day care center (which term shall not be deemed to include nursing homes and rehabilitory care facilities);
g) any fire sale, bankruptcy sale ( unless pursuant to a court order); any adult oriented business or businesses based primarily upon materials or performances that depict, describe or relate to sexual activities, anatomical areas or nudity ( including, but not limited to, adult arcades, adult bookstores, adult cabarets and adult theaters, or sexually- oriented business or equivalent) as defined in the City Ordinances or the laws of any other governmental authority with jurisdiction over the Development Project);
h) an establishment engaged in the retail sales of alcoholic beverages for
either on- premises or off premises- consumption, which establishment derives 75 percent or more of its gross revenue during any twelve month period from the sale of alcoholic beverages ( including 100% of the price of all alcoholic drinks using " mixers "), including, but not limited to, bars, lounges, and taverns; provided, however, nothing contained herein shall prohibit the location of a bar or lounge within and ancillary to: ( 1) a hotel, motel or similar transient lodging, or ( 2) a restaurant ( that does not derive from all of its operations more than 75% of its gross revenue during any 12 month period from sale of alcoholic beverages as stated above), or ( 3) prohibit a liquor store, wine shop or similar retail establishment;
i) for drilling for oil, gas or other hydrocarbons or for mineral extraction of any kind or character; or
0) any use not specifically authorized by this Declaration.
Written approval by Administrator of a particular use will be conclusive evidence of compliance with the conditions this Declaration.
3. Grandfathered Use. Any use of a Development Site that is permitted by this Declaration at the time of any change, modification or amendment of the uses authorized herein, shall not be required to be changed or altered and shall be permitted to continue for so long as
8- 1082724. 5 /S P W 00991/ 0001 /021512 such use continues; provided, however, that if the actual use of such Development Site permitted at the time of the change, modification or amendment of uses authorized under this
Declaration) ( the " Grandfathered Use ") either:
a) ceases for an extended period as defined below; or
b) is changed or altered, then any new use or change or alteration in the existing use shall comply with this Declaration, as changed, modified, or amended and then in effect at the time of the recommencement of use or change or alteration from the Grandfathered Use.
For purposes of the above, a cessation of a Grandfathered Use for an " extended period" means that the use is not a substantial use on the subject Development Site for a period of twelve ( 12) months, excluding any period during which ( i) the buildings on the site cannot reasonably be occupied due to renovations, alterations, or casualty damage or other repairs, or ( ii) the Development Site is held as rental property and it is vacant, but being actively marketed ( at least listed with a listing broker under an active listing) for lease for the Grandfathered Use; provided, however, that the extension for vacancy under clause ( ii) hereof will not exceed an additional period of twelve ( 12) months.
4. No Replats Without Consent. Replatting of any plot of land that is subdivided as a lot or reserve on a recorded subdivision plat subject to this Declaration shall not be undertaken, approved or permitted by the Owner of such plot of land ( other than Declarant) without the joinder and consent of Administrator and the approval of the City pursuant to its
subdivision regulations.
ARTICLE III
Approval of Development Site Plans; Construction; Development Restrictions and Variances
1. Plan Approval Required. No building, parking facility, sign or other structure shall be constructed, altered or placed upon any Development Site until the Plans and Specifications ( defined below) for same shall have been first approved in writing ( or deemed approved) by Administrator as being in compliance with this Declaration and the Development Guidelines. The processes for such approval are set forth below:
a) Optional Schematic Design Package Submission and Approval.
i) Submittal. If the Owner of a Development Site desires to obtain schematic and conceptual approval of the Administrator prior to construction and prior to preparing complete Plans and Specifications for the Improvements on the Development Site, the Owner or the submitting party authorized under Section 1( d) of this Article shall submit to the Administrator two complete sets of the Schematic Design Package. The requirements for the Schematic Design Package may be modified by the Administrator
9- 1082724. 5/ SPH 009900001/ 021512 only with prior written approval of the City. At the option of the Owner of the Development Site, the Owner or submitting party authorized under Section 1( d) of this Article may skip the step of submitting the Schematic Design Package and proceed directly to submit to the Administrator the Plans and Specifications as described below.
ii) Approval. The Administrator, shall, within twenty (20) days after the receipt of each complete submission of the Schematic Design Package, advise the Owner or the submitting party authorized under Section 1( d) of this Article in writing of 1) the approval of the Schematic Design Package by the Administrator, or ( 2) the segments or features of the Schematic Design Package which are deemed by the Administrator to be inconsistent or not in conformity with this Declaration and/or the Development Guidelines. The approval of the Schematic Design Package by the Administrator shall be valid and effective for a period of not more than one hundred twenty ( 120) days, which may be extended by the Owner of right by an additional sixty 60) days by the Owner' s or submitting party' s filing a notice of extension with the Administrator not later than the expiration of the initial one hundred twenty ( 120) day validity period. " Valid and effective" means that the Schematic Design Package approval will exempt the Improvements on the Development Site covered thereby from any changes in this Declaration or the Development Guidelines that occur after the approval thereof by the Administrator as long as Plans and Specifications are submitted to and approved by the Administrator while the approval is still valid and effective hereunder.
iii) Amendments. A party holding rights to a Schematic Design Plan previously approved by the Administrator hereunder shall apply to the Administrator for approval of an amendment to the previously approved Schematic Design Package, ( an SDP Amendment Application "). An SDP Amendment Application must be on the required form approved or promulgated therefor by the Administrator and must ( 1) state that the application is an SDP Amendment Application, ( 2) clearly identify the previous Schematic Design Package that is being requested to be amended, and ( 3) clearly identify the items that are the proposed changes to the original Schematic Design Package. The SDP Amendment Application will be handled and either disapproved or approved in the same manner as for an application for a new Schematic Design Plan.
b) Approval of Plans and Specifications. The final approval process with which the Owner of a Development Site must comply in order to obtain Administrator approval of Plans and Specifications ( defined below) is set forth below:
i) Submission. At least twenty ( 20) days before commencement of any construction ( including clearing, grading and/ or site preparation) on the Development Site, the Owner of the Development Site shall submit to the Administrator for final approval of the Administrator the Plans and Specifications for the Development Site; provided, however, that if the Administrator has previously approved a valid and effective Schematic Design Package for the Development Site that is still valid and effective, then the Administrator' s sole objections will relate to any matters in the Plans and Specifications that are inconsistent with ( or relevant to the Administrator' s approval
10- 1082724.5/ s P W0099UOOO 1/ 02 1512 rights hereunder and added to the proposed Improvements since) the Schematic Design Package already approved for the Development Site.
ii) Approval. The Administrator shall, within twenty (20) days after receipt of a complete set of Plans and Specifications, advise in writing the Owner or submitting party of (1) the approval of the Plans and Specifications by the Administrator, or ( 2) the segments or features of the Plans and Specifications which are deemed by the Administrator to be inconsistent or not in conformity with this Declaration or the Development Guidelines ( subject to its limitations if operating under an approved, valid and effective, Schematic Design Plan).
Approval of Plans and Specifications shall be valid and effective for a period of one ( 1) year from the date of approval or deemed approval thereof, with one available extension of up to ninety ( 90) additional days to be granted by the Administrator in writing upon good cause shown ( such as for events of force majeure, changes in Applicable Laws with which the party must comply on a mandatory basis, change in market circumstances [ for financing, leasing or otherwise], or change in control or involuntary successorship in the executive suite at the applicant company). If construction pursuant to said Plans and Specifications has not commenced within the period during which such Administrator approval is valid and effective, then the Owner of the Development Site must re -apply for Administrator approval as provided in the first instance under this Declaration. Construction shall be deemed " commenced" hereunder when any part of the Improvements is begun on the site under an approved building permit issued in accordance with Applicable Laws, excluding site preparation or grading unless done under the same building permit as the Improvement.
iii) Amendments. A party holding rights under Plans and Specifications previously approved by the Administrator shall apply to the Administrator for approval of an amendment to the previously approved Plans and Specifications, ( a Plans Amendment Application'). A Plans Amendment Application must be on the required form approved or promulgated therefor by the Administrator and must ( 1) state that the application is a Plans Amendment Application, ( 2) clearly identify the previous Plans and Specifications that are being requested to be amended, and ( 3) clearly identify the items that are the proposed changes to the original Plans and Specifications. Otherwise, the Plans Amendment Application will be handled and either disapproved or approved in the same manner as for an application for a new Plans and Specifications, except that if a Plans Amendment Application is filed, then ( A) such request will be considered under the requirements of this Declaration and Development Guidelines in effect at the time of the approval of the original Plans and Specifications that were approved and are being proposed to be amended, and ( B) if construction has not already been commenced in the required time to hold such Plans and Specifications approval in place, the application for and Administrator approval of the amendment to the previously approved Plans and Specifications shall not extend the time that the originally approved Plans and Specifications ( as so amended) is valid and effective. In the sole discretion of the Administrator, if any Plans Amendment Application substantially or materially changes the character or nature of the Improvements from that contained in the previously
1082724. 5/ SPWO099 V0001 /021512 approved Plans and Specifications, the Administrator shall notify the applicant that the Administrator considers the Plans Amendment Application to be a completely new application for the revised Plans and Specifications. Upon the applicant' s receipt of such notice from the Administrator, the applicant must within ten ( 10) days thereafter either ( I) notify the Administrator in writing that the applicant agrees that the application should be handled and processed as a new application for the entire amended Plans and Specifications, or ( 11) that the applicant withdraws the Plans Amendment Application. If the applicant fails to timely do either (I) or (I1), then the applicant will be deemed to have elected option ( II) and the Administrator may drop its consideration of the Plans Amendment Application. If the applicant timely notifies the Administrator under option I), then the Administrator shall consider the Plans Amendment Application along with the originally approved Plans and Specifications as a new application in its entirety.
c) Approval Not for Third Party Reliance and Not a Guaranty. The approval of the Schematic Design Package and Plans and Specifications do not constitute a warranty that such Schematic Design Package and Plans and Specifications comply with City Ordinances or other Applicable Laws, including, without limitation, those of applicable flood control districts, and no party shall rely upon any such approval other than the party in favor of whom it is issued. The Administrator' s approval of the Schematic Design Package and Plans and Specifications is at all times contingent on the approval of all matters by the appropriate governmental authorities having jurisdiction. The Administrator' s approval of the Schematic Design Package and Plans and Specifications shall not create any responsibility, representation, warranty or liability on the part of the Administrator for the completeness, design or sufficiency of such Plans and Specifications or the compliance of same with Applicable Laws, or any other aspect of the Plans and Specifications.
d) Parties Entitled to Submit for and Benefit from Administrator Approvals. The following parties may submit to the Administrator for approval either a Schematic Design Package or Plans and Specifications under this Declaration: ( i) any Owner of a Development Site; ( ii) any party authorized in writing ( on a form approved or promulgated by the Administrator) to act as the agent or representative of the Development Site Owner for purposes of such matters, including, without limitation, an architect, engineer or lawyer for such Owner; iii) any tenant or occupant of a Development Site or prospective tenant or occupant of a Development Site, with written authorization from the Owner of the Development Site, in form acceptable to the Administrator; or ( iv) any party who is under written contract to purchase a Development Site and who has written authorization from the selling Owner to apply for such approval. No person or entity shall be entitled to enforce or benefit from any approval for construction or alteration of Improvements granted by the Administrator under this Declaration other than ( 1) the party to whom it is issued, which shall be the party who made the application, or ( 2) any party who is the principal named in the application for approval submitted by any agent or representative of such party pursuant to clause ( ii) of this paragraph. Any party entitled to submit the application for approval may assign such approval rights to any other party who would be entitled to submit for such approval under clauses ( i) -( iv) of this paragraph, if assigned in writing and in a form promulgated or approved by the Administrator. Any Owner or any tenant/ user of a Development Site shall be entitled to assign ( or collaterally assign) its approvals hereunder to any fee or leasehold mortgagee of such party' s interest in the Development Site in
12 1062724. 5/ SP1-V0099U0001 /021512 question. Any attempted or purported assignment of approvals hereunder made without the written consent of the Administrator is void. No permitted assignments of any such approval shall be effective if made after the approval has expired by the terms hereof, and neither shall any assignment, in and of itself, ever have the effect of extending the validity or effectiveness of the assigned approval. No assignment shall be effective as to Administrator ( other than mortgagee assignments) unless and until a copy of the required ( or Administrator approved) form of assignment has been filed with Administrator. Up to the time of the assignment, only the applicant who holds such approval right ( and its Owner in the case of an agent or representative applicant) is entitled to request information from the Administrator in regard to such approval,
2. Construction Standards; Development Guidelines. Construction or alteration of any building on a Development Site shall meet the standards set forth in this Declaration and the Development Guidelines. Nothing in this Declaration or in the authority to adopt Development Guidelines authorizes Declarant or the Administrator to regulate, control or approve Improvements that are interior to an enclosed building structure, subject to the use regulations stated elsewhere herein.
a) Right to Adopt and Amend Development Guidelines. Declarant and/ or Administrator may adopt and amend the Development Guidelines from time to time, with the prior written consent of the City, but without the joinder of any Owner. Such regulations, restrictions and limitations on development that may be included in the Development Guidelines adopted hereunder include, without limitation:
i) requirements for Development Site configurations, including any combination or fractions of platted reserves that may constitute a unified Development Site for purposes of a unified development of that Development Site as if it were a single Reserve, without any obligation on the part of the Administrator to allow development of partial or combined platted reserves or acreage that are not re- platted as single Reserves with approval of the Board; provided, however, that a Reserve and combinations of whole Reserves will always be a permitted Development Site;
ii) what Improvements ( if any) may be located within building set- back areas, if all Improvements are not to be prohibited therein ( set -backs will not, however, entirely prohibit one driveway access for each Development Site);
iii) the location, height, style, and extent of fences, walls, or other screening devices ( including Screening for purposes of compliance with Parkway Protective Zone restrictions, if applicable) on the Development Site;
iv) the orientation of buildings and other Improvements with respect to streets, walks, paths and structures on adjacent property, and the height of Improvements on a Development Site, and the aesthetic appearance of exterior materials and color schemes on buildings and other Improvements visible from the exterior of the Development Site;
13- 1082724. 5/ s P woo99 L'000 t / 021512 v) the use, height, presence, style or appearance ( or prohibition of) decorative items, equipment, stored materials, containers, dumpsters or other materials or items that will be visible from any public street notwithstanding fencing, landscaping or screening ( including Screening for purposes of compliance with Parkway Protective Zone restrictions, if applicable);
vi) permissible or required types, extent, style, location and appearance of landscaping and vegetation;
vii) requirements for style, orientation, appearance and screening of garages and loading docks, truckwells and similar building features, and location, style, prohibition, and other regulations regarding any outbuildings;
viii) limitations and restrictions on acceptable exterior materials and finishes that may be utilized in construction or repair of Improvements;
ix) orientation and height of Improvements on a Development Site;
x) parking, driveways, traffic flow, curb cut locations and related traffic related issues;
xi) location, appearance, height, use and number of exterior signs on a Development Site; and
xii) location, type, intensity and orientation of ( glare regulation) exterior light standards, fixtures and other illuminated devices of any kind.
Nothing in the Development Guidelines shall, however, amend, repeal, or increase any specific requirement set forth in this Declaration if the specific requirement stated herein is established as an objective, measurable criteria, such as, but without limitation, specific building set -backs stated herein.
The Development Guidelines may also modify or supplement the type and amount of information that must be submitted for approvals requested from the Administrator hereunder, and the method and place of submission, for consideration of any request for approval of development plans for any development or alteration on any Development Site, and may prescribe reasonable fees for the cost of review of submissions of development or alteration plans for the Development Sites, as well as supplementing any other procedural provisions of this Declaration. The Development Guidelines may be amended from time to time, in writing, as determined by the Administrator only with the prior written consent of the City, and upon recordation of any amendments thereto in the County Records, the same will become the Development Guidelines that govern all construction of Improvements or alterations to Improvements on any Development Site that is not otherwise grandfathered in respect to the Development Guidelines under some other express provision of this Declaration.
14- 1062724. 5/ SPI- U009900001 / 021512 The requirements contained in the Development Guidelines are in addition to any other requirements contained in the City Ordinances and Applicable Laws, including, but not limited to, the City' s subdivision and telecommunication regulations, if and when the same are applicable to the Development Project by law or by agreement.
b) Pre - Existing Non - Conforming Improvements. Any existing ( built or commenced) Improvement of a Development Site that is permitted by this Declaration at the time of any change, modification or amendment of this Declaration or the Development Guidelines as authorized herein ( " New Requirements ") shall not be required to be changed or altered ( Improvements that specifically would no longer be permitted by the New Requirements are herein call " Preexisting Non -Conforming Improvement( s)." Preexisting Non -Conforming Improvements shall be permitted to continue in existence until such time as they are materially altered, repaired or replaced due to ( i) a voluntary change desired by the Owner of such Development Site, or ( ii) fire or other casualty or requirement to comply with a change in Applicable Law. Notwithstanding the foregoing, however, if compliance with the New Requirements as to existing Improvements being altered, repaired or replaced pursuant to clauses i) or ( ii) hereof would result in the need for material alteration, repair or replacement of material Improvements that are not Preexisting Non -Conforming Improvement( s) in order for them to be in functional or architectural harmony with one another, then the Preexisting Non -Conforming Improvements may be replaced or repaired into their existing non -conforming configuration, style or location insofar as necessary to maintain such harmony. The definition of "material alteration, repair or replacement" as used in this paragraph shall reside in the sound, good faith discretion of the Administrator, but generally means that the item is replaced in its entirety or most major component parts thereof are replaced) or the repair cost approaches the cost to replace the segregated Preexisting Non -Conforming Improvements in question.
c) First -Class Construction. All construction shall be conducted in a first - class manner with minimum disruption to the other portions of or uses of the Development Project.
3. Building Setbacks. No building or other building structure shall be erected within the building setbacks established below, with the distance indicated being the distance from the common boundary of the Development Site and the named right -of way- or adjacent feature or tract boundary, as indicated:
15- i062724. S/ S M0099LI000 1/ 021512 Right- of-Way or Ad' acent Tract: Buildin Setback distance:
Grand Parkway State Highway 99 One Hundred 100 feet Kilgore Parkway and Old Needlepoint Road Fifty 50 feet Any other public street right-of-way Twenty-Five 25 feet Side Development Site Boundary ( not abutting a public street right- of-way) Fifteen 15 feet Rear Development Site Boundary ( not abutting a public street right- of-way) Fifteen 15 feet
4. Parking. Parking shall be provided for each building structure, subject to the terms of the Development Guidelines, and so as at all times to comply with the City Ordinances and other Applicable Laws.
5. Utility Lines. All electric distribution, telecommunications, cable or similar lines shall be installed underground except for the following which may be above ground: ( i) lines at those locations which the Administrator and the District, in the exercise of their reasonable discretion, shall first approve in writing and ( ii) primary source lines. Without limitation, the Administrator, subject to the approval of the District, may promulgate additional utility guidelines as part of the Development Guidelines, which additional guidelines must be approved in advance in writing by the City. Utility lines shall be installed so as at all times to comply with the City Ordinances and other Applicable Laws.
6. Loading Docks. All loading docks in the Parkway Protective Zone must be screened from public view in a manner approved in writing by the Administrator and the City. Without limitation, the Administrator may promulgate additional loading dock guidelines as part of the Development Guidelines, which additional guidelines must be approved in advance in writing by the City.
7. Landscaping. Landscaping in accordance with the final approved Plans and Specifications for the Development Site must be installed within thirty ( 30) days following completion of a building on such Development Site. The Administrator may promulgate additional landscaping guidelines as part of the Development Guidelines, which additional guidelines must be approved in advance in writing by the City.
8. Outdoor Storage Areas. The right of an Owner or Lessee of a Development Site to use any building situated thereon shall not be construed to permit ( and the following is expressly prohibited without the prior consent of the Administrator and the City in writing) the keeping or storing of articles, goods, materials, equipment, incinerators, storage tanks, refuse containers, or like items in the open or exposed to public view or view from a public right -of- way or an adjacent Development Site (as viewed from ground level), unless any such storage area and items thereon shall be screened from view in a manner approved in writing by the Administrator and the City. The screening shall be of material approved by the Administrator and a minimum of six ( 6) feet in height, unless ( in the sole judgment of the Administrator) such height is insufficient to screen the materials or equipment being stored, in which event the Administrator shall, with the consent of the City, require the screening to be of a greater height.
16 1082724. S/ SPF00099U0001/ 021512 Water towers, storage tanks, processing equipment, stand fans, skylights, cooling towers, heating equipment, air conditioning or ventilating equipment, telecommunications equipment, electric equipment, and any other structures or equipment (including that which is located on the roof of any building or on the ground) shall be effectively shielded from view from a public right -of way- or an adjacent Development Site ( as viewed from ground level) by an architecturally and aesthetically sound method which shall be approved in writing by the Administrator before construction or erection of said structures or equipment. Communication towers, whether freestanding or building mounted, must be approved by the Administrator prior to their construction and must be effectively shielded from view. Without limitation, the Administrator may promulgate additional screening guidelines as part of the Development Guidelines, which additional guidelines must be approved in advance in writing by the City.
9. Signs, Monuments and Flagpoles. All signs shall be in locations and of a design, size and material as approved by the Administrator. No more than two ( 2) free standing ground or berm mounted permanent signs shall be permitted for each Development Site. Unless otherwise approved in writing by the Administrator, all other signs must be attached to and flush with an exterior wall of a building and shall be parallel to and contiguous with its wall and not project above its roofline. No sign of a flashing or moving character shall be installed and no sign shall be painted on a building wall. Directional and traffic control signs, and signs advertising the sale or lease of a Development Site are also permitted upon the written approval of the design and location by the Administrator. The Administrator shall have the right, and hereby reserves an easement, to enter upon any and all portions of the Development Project to remove any signs that are in violation of this Article III, Section 9 upon reasonable notice to the Owner or Lessee of such portion of the Development Project, all at the expense of such Owner or Lessee. Without limitation, the Administrator may promulgate additional sign, monument and flagpole guidelines as part of the Development Guidelines, which additional guidelines must be approved in advance in writing by the City.
10. Illumination. All buildings are required to have exterior illumination facilities for their front and side walls of a power and design to be approved by the Administrator prior to commencement of construction, and, upon completing of said building, said illumination facilities shall remain in full operation until twelve ( 12) midnight each night ( subject to compliance with applicable governmental requirements). Lighting will be designed, installed, oriented, and operated so as not to create unacceptable glare to adjacent properties, as determined by the Administrator. Without limitation, the Administrator may promulgate additional lighting and illumination guidelines as part of Development Guidelines, which additional guidelines must be approved in advance in writing by the City.
11. Maintenance. The Owner of any Development Site or portion thereof shall have the duty of and responsibility for keeping ( and for causing its Lessee) the premises and Improvements ( including landscaping) in a first- class, well- maintained, safe, clean and attractive condition at all times and in compliance with this Declaration and the Development Guidelines subject to any grandfathering expressly provided for herein as to future amendments hereto and to the Development Guidelines). In addition, the Owner of any Development Site or portion thereof shall be responsible for ( and responsible for ensuring that its Lessee or occupant is responsible for): ( i) all maintenance of any property lying between the paved portion of any
17- 1 082724. 5 / S P 11! 009900001 / 021512 adjoining public street and the Development Site, and ( ii) until the Association ( as hereinafter defined) is formed and activated with such power, all maintenance and replacement of any landscaping lying within any esplanade in any public street immediately adjoining such Development Site ( within the area of the esplanade that actually fronts the Development Site). If, in the opinion of the Administrator, any such Owner ( or its Lessee) is failing in this duty and responsibility, then the Administrator may give such Owner or Lessee, or both, written notice of such fact, and such Owner or Lessee must, within a reasonable period after such notice determined on the basis of the nature of the alleged breach of this Declaration, but in no event more than 30 days thereafter), undertake the care and maintenance required to restore said Owner' s or Lessee' s Development Site to a safe, clean and attractive condition, or bring the property and/ or landscaping into compliance with this Declaration. If Administrator gives the notice described in the preceding sentence to Owner of such Development Site ( irrespective of whether a Lessee occupies such Development Site) at such Owner' s last known address according to the information available in the Administrator' s records, upon the expiration of the applicable curative period the Administrator shall have the right ( but not the obligation), and hereby reserves an easement, to enter upon any and all portions of any Development Site through its own personnel, agents or contractors) to perform such work that the Administrator deems reasonably necessary to effectuate the purposes of these this Declaration. Failure or inability of the Administrator to be able to identify or notify the Lessee of the Development Site of such violation shall not in any way reduce, limit or prevent the Administrator from taking corrective, enforcement or lien action hereunder against the Owner and the subject Development Site for a violation of this Section 11, as long as the Administrator gives notice to the Owner of such Development Site as set forth herein. The Owner of the Development Site on which such work is performed by the Administrator shall be liable for all reasonable costs of any such work and shall promptly reimburse the Administrator therefor. If such Owner shall fail to so reimburse the Administrator within thirty ( 30) days after being billed therefor by the Administrator, then such cost shall be a debt of such Owner, payable to the Administrator, and shall be a lien against any such Owner' s Development Site, which lien is expressly reserved and created in this Declaration. Except as set forth in Article VIII, Section 5 hereof, the lien reserved and created hereby is subject only to, and shall be subordinate and inferior to, automatically and without the necessity of another document, any and all first lien purchase money deeds of trust and liens in favor of third party financial institutions or representing bona fide seller financing. The Administrator shall be liable for any actual damages ( exclusive of any consequential, special or punitive damages, all of which are hereby expressly waived by each Owner of a Development Site) caused to any Development Site by its entry onto any Development Site only if the Administrator has acted negligently in connection with any permitted work performed by it hereunder. All references in this Article III, Section 11 to the Administrator shall include the Association subsequent to its formation and activation.
12. Utility Easements. Declarant hereby reserves for itself and its duly authorized agents, representatives, employees, successors, assignees, licensees and the Administrator, an easement over all area within fifteen ( 15) feet of each side and rear property line of any Development Site for the construction, replacing, repairing and maintaining of all utilities. The Administrator and/ or the Declarant shall have the right and power to grant specific easements as it may deem necessary in its sole discretion to public or private utility companies or
18- 1092724. 5lSPH10099U0001 /021512 governmental authorities for these purposes. All such easements shall be recorded in the County Records.
13. Waiver; Variances. Except as expressly provided in this Declaration, the Administrator with the prior written approval of the City shall have the right to grant variances with respect to the strict application of any of the provisions contained herein as to any Development Site, if the Administrator, in his sole good faith judgment, determines that ( i) strict applicability of any of the provisions hereof would create a hardship as to the Owner of a Development Site or would make development of a Development Site difficult or impractical, ii) the granting of a variance will not adversely affect the Development Project or the purpose or intent of this Declaration, and ( iii) all required variances pursuant to the City Ordinances and Applicable Laws have been obtained. No such variance as to the applicability of any covenant, condition or restriction shall be construed to be a waiver of such covenant, condition or restriction, or be construed so as to entitle any other party to a variance, as to any other project, development or circumstance. Further, no such variance granted or denied by the Administrator shall be subject to challenge by any other beneficiary of this Declaration or Owner of any of portion of the Development Project, but shall be absolute with respect to the portion of the Development Project as to which such variance has been granted. No delays in or failure in enforcing this Declaration or the Development Guidelines as to any breach or violation thereof shall impair, damage or waive the right of any party entitled to enforce the same to obtain relief against or recover for continuation or repetition of such breach or violation or any similar breach or violation thereof at any later time or times. Variances must be evidenced in writing, must be signed by the Administrator (or, in the case of the Association, at least a majority of the board) and the City, and shall become effective upon their execution. Variances shall be strictly and narrowly construed, and no granting of a variance shall be construed as being broader or less restrictive than its plain wording. The granting of such a variance shall not operate to waive any of the terms and provisions of this Declaration or the Development Guidelines for any purpose except as to the particular provision hereof covered by the variance, and shall only constitute a waiver or variance for the particular Development Site for which it is issued and is not transferrable ( except shall run
for the benefit of successive Owners of the Development Site for which it is issued); provided, however, that a variance shall be issued only in connection with a simultaneously submitted ( or amended) application to the Administrator for approval of a plan for Improvements or alteration of Improvements on a Development Site. Such variance shall be valid only as to the final approved Plans and Specifications for such Development Site and not a different or other configuration of Improvements, unless the variance expressly states that it is " Unrestricted," which shall mean that it is a variance that is permanently associated with such Development Site due to special site considerations and is not dependent on the final approved Plans and Specifications for the Improvement of the Development Site. The granting or denial of variances is in the sole discretion of the Administrator ( or the directors of the Association as the case may be), provided that the granting of variances must also be approved in writing by the City, and UNDER NO CIRCUMSTANCES SHALL THE ADMINISTRATOR ( OR THE DIRECTORS OF THE ASSOCIATION) EVER BE COMPELLED, BY COURT ORDER OR OTHERWISE, TO GRANT A VARIANCE UNDER THE PROVISIONS OF THIS SECTION. The granting of any variance shall never affect in any way the Owner' s obligation to comply with all Applicable Laws, regardless of whether or not consistent with or contrary to the variance.
19- 1082724. 5/ SPH/009900001 1021512 ARTICLE IV
Owners Association; Assessments and Liens
1. Formation; Designation; Assignment of Administrator Powers. The Administrator shall have the right, but not the obligation, to form, as a Texas non - profit corporation, a property owners association ( the " Association ") for the sole purpose of enforcing and administering this Declaration. At any time after the formation of the Association, the Administrator may, but shall not be obligated to ( in one or more assignments at various times as it may choose), assign all or any part of the rights, powers, duties or obligations vested in the Administrator by this Declaration to the Association, by written assignment recorded in the County Records identifying the Association by name. The first such assignment and designation of the Association that is filed by the Administrator shall be deemed to activate the Association for purposes of acting hereunder. After any such activation of the Association, such rights as have been so assigned shall be fully vested only in the Association, and the Association will expressly be responsible for all duties given to it by the Administrator by the terms of such assignment. Unless and until the Administrator activates the Association as provided above, all rights of Administrator hereunder shall continue to reside in the Administrator. Notwithstanding the foregoing, however, at such time as Declarant has not owned any portion of the Development Project for ten ( 10) years, but only if the Association has been formed and activated prior thereto, the assignment of all remaining rights, powers, authorities and responsibilities of Administrator under this Declaration shall take place automatically, without the need for action by any party. All approvals and/ or variances granted from time to time by the Administrator shall be binding upon the Association and all Owners of the Development Project.
2. Rights and Duties. Upon its formation and Administrator' s activation thereof, the Association shall have all of the rights and duties of the Administrator hereunder that have been assigned to it by the Administrator, or that have devolved upon it by passage of time as provided in Section 1 of this Article IV. If the assignment to the Association by the Administrator is of all" such rights, powers, authorities and duties of the Administrator ( or are stated to include " all maintenance and repair responsibilities" of the Administrator hereunder), then the assigned rights and duties that become the responsibility of the Association will include, without limitation, carrying out and enforcement of this Declaration and the Development Guidelines, the management, operation, upkeep, maintenance, repair, and replacement of all Common Areas and Common Facilities, if any. After formation and activation of the Association, it may provide services to the Development Project, using independent contractors engaged by the Association, such as, but without limitation, security patrols, esplanade lighting, street cleaning, insect fogging or any other services provided that are approved by a Required Majority of Owners ( " Approved Services "), and all Owners will be assessed under the General Assessment for the cost of Approved Services regardless of whether the Owner( s) in question voted to approve such Approved Services.
3. Membership and Voting. Each Owner of a Development Site shall be a member of the Association with such rights as are set forth in the Articles of Incorporation and Bylaws of the Association. Voting rights for members of the Association shall be determined on the basis of gross square footage of the portion of the Development Project owned by each member. The
20- 1082724. 5/ SPH/ 009900001/ 021512 Administrator may create as part of the Development Guidelines and in the Association formation and governing documents, among other procedures for operation that are not in direct conflicts with the terms of this Declaration, rules regarding submissions of requests from, issuances of approvals to, and exercise of voting rights by Owners of Development Sites where more than one Owner is a fee or fractional interest Owner in such Development Site.
4. General and Special Assessments. The Association ( and Administrator prior to formation of an Association) shall expressly have the power to levy Assessments against land within the Development Project in amounts which it deems necessary to effectuate the purposes of and carry out this Declaration, excluding the cost of enforcement of obligations of a specific Development Site Owner ( collectively, the " General Assessment "); provided, however, that General Assessments may be increased to cover unpaid Special Assessments ( as hereinafter defined) pending collection thereof from the Owner who is responsible for paying them, unless the Association elects to ( and is able) to borrow such funds. Upon collecting any Special Assessment( s) from the Owner obligated for the Special Assessment, then if the same were previously funded by General Assessments, the Special Assessment revenue will be placed into the Association' s ( or Administrator' s) general revenues and general revenue budget to reduce the obligations of future General Assessments accordingly. In addition, the Association ( and the Administrator prior to its formation and designation) may assess specially against the Owner of a Development Site( s), and against the Development Site( s) directly, all costs of remedying any defaults under this Declaration and/ or the Development Guidelines by the Owner or Lessee of the Development Site( s) in question, by a specific enforcement Assessment ( " Special Assessment "), which may include, interest, late charges, penalties ( if applicable) and attorney fees and court costs for General Assessments that are delinquent ( for delinquent account collection), and for other enforcement action, including, without limitation, costs of injunctive actions, suits for specific performance or declaratory relief, actions to foreclose the lien hereunder, and enforcement or collection actions in any bankruptcy or receivership proceedings of any Owner. Any General Assessment shall be levied on a uniform basis against all of the Development Sites on the basis of gross square footage within any Development Site. General Assessments and Special Assessments are sometimes collectively or generically referred to herein as the Assessments" or an " Assessment." Common Areas and Common Facilities owned by Declarant and/ or by the Association for common use by Owners are exempt from Assessment. If any portion of Development Site consists of an easement for common use by Owners, then the Owner of that Development Site shall be assessed for and shall have voting rights as to its entire acreage notwithstanding such area affected by such easement.
5. Use of Assessments In General. Any Assessment collected by the Association or Administrator before Association is activated with such powers) shall be used for one or more of the following purposes as the Association may deem appropriate in its reasonable discretion: planting, landscaping, watering or irrigation, mowing, tree surgery and general upkeep and maintenance of planted or landscaped areas; provision of safety and security measures; enforcement of parking restrictions; enforcement of this Declaration and/ or the Development Guidelines; maintenance of medians, esplanades, sidewalks and easement areas in or adjacent to the Development Project and common areas owned by or under easements to the Association; reimbursement of reasonable costs and expenses of the Association in connection with its operation and management and administration of this Declaration and/ or Development
21- 1062724.5/ S PW'0099 0000 1 / 02 1 5 l2 Guidelines ( including but not limited to charges related to engagement of third party architects, engineers, attorneys, accountants and other consultants in connection with such operation and administration), taxes, insurance, attorneys fees, costs of Approved Services and such other non - capital and capital items of expense and expenditure as may be deemed by the Association, in its discretion and good faith, to be necessary or desirable for the carrying out of these provisions and for the general benefit of members of the Association. In no event shall the Association expend any Assessments for a single capital replacement or addition that costs in excess of $100,000.00 without a vote of the Required Majority of Owners approving such expenditure that was held in accordance with the Association' s governing documents.
6. Lien to Secure Assessments. To secure the payment of any Assessments levied by the Association ( or Administrator before Association is activated with such powers) and any other sums due hereunder ( including, without limitation, interest, late fees or delinquency charges), a lien is hereby reserved and created in favor of the Association against each Development Site. The lien reserved and created hereby is subject only to, and except as expressly set forth to the contrary in this Declaration shall be subordinate and inferior to, automatically and without the necessity of another document, any and all first lien purchase money deeds of trust and liens in favor of third party financial institutions or representing bona fide seller financing. By accepting a deed to a Development Site, each Owner of such Development Site expressly grants to the Association a lien for the payment of any Assessments, and such lien shall be binding with a power of sale to enforce such lien by non judicial foreclosure pursuant to the provisions of Section 51. 002 of the Texas Property Code, or any successor statute governing enforcement of consensual liens on real estate ( the " Code "). Alternatively, the Association may institute a suit or proceeding at law or in equity or take any lawful action to enforce collection of any defaulted Assessments, including, but not limited to, an action to foreclose the lien reserved and created herein securing any Assessments. Any foreclosure may be brought by the Association in the same manner as an action to foreclose the lien of a mortgage of deed of trust on real property in accordance with the Code.
7. Delinauent Assessments. Any Assessment not paid within thirty ( 30) days after the due date shall bear interest at the maximum per annum ceiling rate allowed by applicable usury laws from the due date until paid or, if there is no maximum lawful rate applicable to such transaction, then at the rate of eighteen percent ( 18 %) per annum ( such applicable rate being herein called the " Default Rate "). The Association ( or Administrator before the Association is activated with such powers) may bring an action at law against the Owner personally obligated to pay the Assessment( s), foreclose the lien against the Development Site ( per Article IV, Section 6 hereof), or pursue both such remedies to the extent not mutually exclusive, in addition to pursuing and enforcing any equitable remedies such as injunction, specific performance, and/ or declaratory judgment. Interest, court and other collection costs and attorneys' fees incurred in any such action shall be added to the amount of such Assessment or charge.
8. Mandatory Date for Formation of Association. Notwithstanding the foregoing, at such time as Declarant ( or its designated transferee or assignee as successor named and designated in writing in the County Records) no longer owns at least forty percent ( 40 %) of the gross square footage of the Development Project, any one or more Owners of Development Sites with an aggregate of more than fifty percent ( 50 %) of the gross square footage of the
22- 1082724. 5/ SPH/ 009900001 / 021512 Development Project may form or compel the formation of the Association for the purposes stated herein. Such Owners shall thereupon send notice of the formation of the Association to all Owners of record of Development Sites as shown by the tax assessors' rolls of Chambers County, Texas and shall file such notice, signed by the requisite Owners of Development Sites in the County Records.
ARTICLE V
Obligation to Enter Into Payment in Lieu of Taxes Agreement With the City of Baytown
1. PILOT Obligations. Owners of each Development Site with a proposed future development value equal to or greater than $ 1, 000,000, as determined by the Chambers County Appraisal District ( "CCAD" ), must enter into an agreement with the City for the payment in lieu of ad valorem taxes on such Development Site in the form required by the City ( the " PILOT Agreement "). Any such PILOT Agreement shall not impose an ad valorem tax obligation in excess of that which the Owner would be obligated to pay had such Owner' s Development Site been annexed by the City for purposes of ad valorem taxation. PILOT Agreements will be administered and enforced by the City; and Declarant, the Administrator and the Association will have no obligation to the City or an Owner in connection with any such agreement between the City and a third party. The entering into of a PILOT Agreement will be automatically deemed a condition to any construction of Improvements on a Development Site in the Property which is approved by the Administrator under the terms of this Declaration, whether or not any express statement of such condition is placed in any approval granted by the Administrator hereunder. Notwithstanding anything to the contrary herein, Declarant and any portion of the Development Project that it owns will not be subject to any requirement to enter into a PILOT Agreement, unless Declarant constructs or erects buildings or other permanent structures thereon or Declarant, Administrator or the Association uses such buildings or structures for the operation of
a commercial enterprise.
2. Lien to Secure PILOT. To secure the payment of any PILOT and any other sums due thereunder ( including, without limitation, interest, late fees or delinquency charges), a lien is hereby reserved and created in favor of the City against each Development Site of an Owner required to enter into a PILOT Agreement pursuant to Article V, Section 1 hereof, whether or not such Owner has actually entered into a PILOT Agreement. The lien reserved and created hereby is subject only to, and except as expressly set forth to the contrary in this Declaration, shall be subordinate and inferior to, automatically and without the necessity of another document, any and all first lien purchase money deeds of trust and liens in favor of third party financial institutions or representing bona fide seller financing. By accepting a deed to a Development Site, each Owner of such Development Site expressly grants to the City a lien for the payment of any PILOT, and such lien shall be binding with a power of sale to enforce such lien by nonjudicial foreclosure pursuant to the provisions of Section 51. 002 of the Texas Property Code ( the " Code "), or any successor statute governing enforcement of consensual liens on real estate. Alternatively, the City may institute a suit or proceeding at law or in equity or take any lawful action to enforce collection of any defaulted Assessments, including, but not limited to, an action to foreclose the lien reserved and created herein securing any PILOT. Any
23 - 1082724. 5/ SPFV0099000D 1 OZ 1512 foreclosure may be brought by the City in the same manner as an action to foreclose the lien of a mortgage of deed of trust on real property in accordance with the Code.
3 Delinquent PILOT, Delinquent PILOT amounts shall be immediately subject to the same penalties, interest, attorneys' fees and costs of collection as recoverable by the City in the case of delinquent ad valorem taxes.
4. Enforcement. The obligations contained in Article V shall be enforceable by the City and its successors and assigns pursuant to all applicable laws and by all applicable means, including but not limited to, by an action for damages or an action for an injunction, or both. Should the City prevail in a suit to enforce the terms and provisions of this Article V, the City shall also be entitled to recover a reasonable sum as attorney's fees. It is further agreed that if a suit for injunctive relief is brought for enforcement of this Article V, the party against whom such suit is brought shall have no right to, and by having accepted any deed or lease of any part of the property covered by this Declaration shall be conclusively deemed to have covenanted and agreed not to and to have waived any right to), urge or assert as a defense that an adequate remedy at law exists. Each Owner from time to time of any Development Site affected by this Article V shall be bound thereby and liable for breaches or defaults thereof related to its Development Site only during that Owner' s ownership of such Development Site, and such Owner shall not be liable for breaches hereof by any subsequent Owner ( or user) of such Development Site; provided, however, that nothing herein exculpates any Owner who sells a Development Site from liability to its transferee to the extent the transferring Owner contractually warranted or guaranteed compliance herewith or contractually agreed to indemnify the subsequent Owner from any non -compliance existing as of the date of the conveyance of the Development Site to the new Owner.
ARTICLE VI
Term; Termination and Amendment of Covenants
1. Duration and Amendment ( Other Than Article VII Matters). Each condition and covenant contained in Declaration shall remain in full force and effect until December 31, 2058, and shall automatically renew for successive ten ( 10) - year periods thereafter; provided, however, that this Declaration shall not be automatically renewed and extended for such successive terms if, prior to the expiration of the initial term hereof or any automatic renewal term that has then already occurred, the Owners of seventy -five percent ( 75 %) of gross square footage of the Development Project ( the " Required Maiority of Owners ") execute and acknowledge a declaration of termination, to be effective upon the expiration of the then current initial or renewal term, and record the same in the County Records. The Required Majority of Owners at any time after the Association has been formed and activated, may by written declaration signed and acknowledged by them and the Administrator in the County Records, alter or amend, but not terminate, the restrictions, conditions and covenants contained herein and this right shall exist as long as the Required Majority of Owners and the Administrator shall so desire. References in this Declaration to a percentage ( or fraction) of the gross square footage of the Development Project shall be determined by excluding from the numerator and the denominator any portion of the Development Project that is platted, dedicated or otherwise
24- 1082724. 5/ S P W 0099 0000 1 / 02 1 5 1 2 acquired or used as a public street, drainage or detention structure, park or other common area, but shall include the Greenbelt Reserve.
2. Exception for Parkway Protective Zone Restrictions. Notwithstanding the foregoing, the provisions of this Article VI will not apply to the Parkway Protective Zone Restrictions ( as hereinafter defined) and the defined terms as listed therein, the duration and amendment of which shall be governed solely by the terms of Article VII, hereof.
ARTICLE VU
Parkway Protective Zone Development and Use Restrictions
1. In addition to the other restrictions and limitations set forth in this Declaration, the following additional restrictions and limitations are imposed only with respect to the Parkway Protective Zone ( collectively, the " Parkway Protective Zone Restrictions "), but in no way limit the application of state or local laws pertaining to the Parkway Protective Zone, including, but not limited to, zoning, sign, and health and safety regulations:
2. Exterior Finishes. No exterior building wall or projection of a building wall or fagade that is situated in whole or part within the Parkway Protective Zone may consist of a metal finish, including, without limitation, sheet metal, corrugated metal, iron or steel of any type. The restriction will not be construed as a prohibition on the use of metal personnel doors and overhead/ roll -up doors or other miscellaneous architectural features made of metal, such as roof flashing, gutters or the like, within the Parkway Protective Zone; provided such metal personnel doors and overhead/ roll -up doors or other miscellaneous architectural features made of metal do not constitute fifty percent ( 50 %) or more of any such exterior building wall and if any such metal features front the Parkway, the Screening height requirement set forth in Article I. Section 26 hereof, will increase to eight feet ( 8').
3. Equipment on Roof. Any equipment, including, without limitation, telecommunications equipment, that is affixed to or stored or otherwise located on the roof of any building within the Parkway Protective Zone, must be situated behind a parapet or otherwise Screened to the extent that no portion of such equipment can be viewed from the Viewing Zone. The foregoing restrictions do not apply to Q) antennas installed to facilitate the transmission or reception of telecommunications equipment if an engineering study is produced which concludes that such restrictions would materially interfere with the proper functioning of said equipment and no practical option exists for the positioning of said roof top- communications equipment so that it may be Screened as contemplated herein without materially interfering with its functioning, or ( ii) equipment temporarily located on a roof in connection with construction, repair, replacement or maintenance of the underlying building or repairs or alterations to the underlying building; provided the construction, repair, replacement or maintenance is diligently prosecuted once commenced and does not exceed ninety (90) days.
4. Equipment in Exterior Areas. Any equipment affixed, stored or otherwise located on exterior portions of any part of any Development Site within the Parkway Protective Zone must be situated behind Screening in such a manner that it is not visible from the Viewing Zone for that
25 - 1082724.5/ SPI-VOO" U0001 /021512 Development Site. The foregoing restriction will not apply to equipment temporarily located on an exterior portion of the Parkway Protective Zone in connection with construction, repair, replacement or maintenance of Improvements thereon; provided the construction, repair, replacement or maintenance is diligently prosecuted once commenced and does not exceed ninety 90) days.
5. Outside Storage. Any supplies, goods, shipping containers, shipping palettes, and other materials stored or otherwise located on exterior portions of the Parkway Protective Zone must be situated behind Screening in such a manner that such materials are not visible from the Viewing Zone. The foregoing restriction will not apply to materials temporarily located on exterior portions of the Parkway Protective Zone in connection with construction, repair, replacement or maintenance of Improvements thereon; provided the construction, repair, replacement or maintenance is diligently prosecuted once commenced and does not exceed ninety (90) days.
6. Special Restrictions Within Green Belt Reserve. The portion of the Parkway Protective Zone situated within the Green Belt Reserve is hereby restricted in perpetuity as a green space reserve to be maintained by the property Owner. Except for a berm constructed for Screening, no Improvements may be constructed in the Green Belt Reserve and no equipment, supplies, goods, containers and shipping palettes or other materials may be stored or located thereon. Other than the planting and maintenance of grass and streetscape requirements contained in the City Ordinances, no other landscaping is required to be placed or maintained in the Green Belt Reserve, but the Owner or developer of each portion of the Green Belt Reserve may elect to further landscape the Green Belt Reserve on such Owner' s or developer' s Development Site, provided any such further landscaping complies with the City' s streetscape requirements, as they now exist or may be hereinafter amended. The land situated within the Green Belt Reserve is included within the setback and will be credited toward landscaping and/ or green space requirements under the City Ordinances. Regardless of anything contained herein or elsewhere to the contrary, the landscape requirements contained in City Ordinances shall apply to all development in the Parkway Protective Zone and throughout the Development Project.
7. Signage. Exterior signage placed within the Parkway Protective Zone and that either faces the Parkway or is viewable from the Viewing Zone must be attached to a building wall or fagade in such a manner that ( i) it rests parallel to and contiguous with such wall; and ( iii) does not protrude above the roof line of the building to which it is attached. Signage within the Parkway Protective Zone may only be used to identify, or advertise the products or services of, the occupants of the building to which the signage is attached, or be for directional or operational purposes ( such as traffic directional signs, loading zone and similar signs). No mobile or portable signage shall be allowed nor signage that has flashing lights or moving characters, unless such signage is shielded by Screening so that it cannot be seen from the Viewing Zone.
Notwithstanding anything to the contrary herein, Declarant or Administrator may construct one ( 1) doubt & face monument si gn whi ch ( i) i denti fi es the Detiel opment Proj ect and ( i i) may be located within the Parkway Protective Zone, but outside the Greenbelt Reserve in the approximate I ocati on shown on the drawing attached hereto as Exhibit " C"', provided that such monument sign does not exceed five feet in height ( measured from grade) or 12 feet in length.
26- 10 B2724. 5 / S P H10099 L/ 0001 /02 1 5 1 2 The monument sign described in the preceding sentence will be maintained by the Association or Administrator before the Association is activated with such powers).
8. Duration: Amendment of Parkway Protective Zone Restrictions. The Parkway Protective Zone Restrictions ( including all provisions of this Article VLi1 shall be and are hereby made perpetual and survive any expiration or termination of this Declaration for any reason. The Parkway Protective Zone Restrictions ( and the defined terms for " Development Site," " Green Belt Reserve," " Parkway Protective Zone," " Parkway," " Screening/ Screened" and " Viewing Zone" set forth in Article I hereof), may not be amended or modified except by a written instrument executed by all of the following:
a) Declarant, or its successors and assigns;
b) the Requisite Percentage ( hereinafter defined) of Owners of the land within the Parkway Protective Zone at the time the last of the requisite signatures are obtained on the amendment ( or Owners bound by an executed, recorded counterpart of the amendment signed by their predecessor Owner as described below);
c) all holders of first priority liens on lands within the Parkway Protective Zone, to the extent encumbering the required Requisite Percentage of fee -owned property in the Parkway Protective Zone; and
d) the City.
For purposes hereof, " Requisite Percentage" means the Owners who own the following percentage of the gross land area within the Parkway Protective Zone: ( i) if the amendment in any respect adds to, expands or makes more restrictive any of the development restrictions or limitations contained herein ( including specifically, but without limitation, any change in definition of the Viewing Zone) — then one hundred percent ( 100 %); ( ii) if the amendment does nothing other than reduce or eliminate development restrictions or limitations contained herein - then ninety percent ( 90 %); provided, however, that if any change is made even only to reduce or eliminate development restrictions or limitations but not all areas of the Parkway Protective Zone will be granted the benefit of such amendments, then the Requisite Percentage is instead one hundred percent ( 100 %). Any Owner of land within the Parkway Protective Zone who executes an amendment to these Parkway Protective Zone Restrictions and records it in the County Records, shall be irrevocably bound to such amendment for a period equal to the shorter of (1) one year from the recording of the amendment affecting such Owner' s land within the Parkway Protective Zone, or ( 2) the period of time stated in the amendment for such signature to be binding pending full signature, and if the remainder of the parties required to make such amendment effective have joined in one or more recorded copies of such amendment within such period, then the Owner who recorded its counterpart of the amendment ( as to its land within the Parkway Protective Zone) will be irrevocably bound to such amendment notwithstanding any previous withdrawal or purported withdrawal or modification to the recorded amendment made unilaterally by such Owner. It is understood and agreed that parties seeking to obtain agreement on amendments to these Parkway Protective Zone Restrictions may rely upon the irrevocable nature of the Owner' s recording of an
27- 10 B2 724. 5 /S P W0099 0000 I /021512 amendment to thereto in continuing to expend time, energy and expense in its or their efforts to obtain all necessary parties' agreement to such amendment.
9. Enforcement. The Parkway Protection Zone Restrictions shall be enforceable exclusively by Declarant, Administrator, the Association ( after its formation and activation with such powers), the District, and/ or the City, and their respective successors and assigns, and may be enforced by an action for injunction to restrain or enjoin a violation or threatened violation of these Parkway Protective Zone Restrictions, or by an action for damages, or both. If any such party bringing suit to enforce the terms and provisions hereof shall prevail therein, such party shall also be entitled to recover therein ( or in a separate suit) a reasonable sum as attorney' s fees from the party or parties against whom judgment is rendered. It is further agreed that if a suit for injunctive relief is brought for enforcement of these Parkway Protective Zone Restrictions, the party against whom such suit is brought shall have no right to, and by having accepted any deed or lease of any part of the Parkway Protective Zone shall be conclusively deemed to have covenanted and agreed not to ( and to have waived any right to), urge or assert as a defense that an adequate remedy at law exists. Under no circumstances is any party who is subject to these Parkway Protective Zone Restrictions liable for consequential, special or punitive damages as a result of any breach hereof. Each Owner from time to time of any Development Site affected by the Parkway Protective Zone shall be bound by these Parkway Protective Zone Restrictions and liable for breaches or defaults thereof related to its Development Site only during that Owner' s ownership of such Development Site, and such Owner shall not be liable for breaches hereof by any subsequent Owner ( or user) of such Development Site; provided, however, that nothing herein exculpates any Owner who sells a Development Site from liability to its transferee to the extent the transferring Owner contractually warranted or guaranteed compliance herewith or contractually agreed to indemnify the subsequent Owner from any non -compliance existing as of the date of the conveyance of the Development Site to the new Owner.
ARTICLE VIII
General Provisions
1. Representations by Declarant. Declarant represents and warrants that it owns fee simple title to the Development Project lands, subject to all existing liens, restrictions, easements, rights -of way,- and other encumbrances of record in the County Records.
2. Term; Covenants Run With Land. The term of this Declaration is as set forth in Article VI hereof and Article VII, Section 9 hereof ( with respect to the Parkway Protective Zone Restrictions). The terms and provisions of this Declaration shall run with the land and bind the land within the Development Project and each Owner from time to time of each Development Site or any interest in any such Development Site, and each Lessee, occupant, and user of any such Development Site from time to time, for the duration ( term) stated in the respective sections referenced in the preceding sentencc.
3. Additional Property. The Administrator shall have the right to bring within the Development Project additional property in its discretion. Any additions authorized under this Article VIII, Section 3 shall be made by filing of record in the County Records, a supplemental
28- 106 2724. 5/ S P FV0099 U0001 / 021512 declaration with respect to the additional property, which shall extend this Declaration ( as therein modified) to such property, executed by the Administrator. Upon such filing, the Development Project shall include the additional property described in such supplemental declaration.
4. Approvals by Administrator, Association and /or the City. Whenever in this Declaration any approval or consent of the Administrator, the Association ( if activated with such powers) and/ or the City is required, such consent or approval shall be consistent with the purposes and intent of these declarations and the Parkway Protective Zone Restrictions and shall not be withheld arbitrarily or in bad faith. The Administrator, the Association and the City shall have no liability for the granting or withholding of any such approval or consent if (i) done in good faith or ( ii) done in bad faith by another party hereto. It is understood that while Administrator has the power of consent or approval hereunder, and while the vote of Declarant is the control vote in the Association after it is activated, the Administrator will be acting in the self -interest of Declarant in material respects in regard to preserving, retaining, and enhancing the value of Development Sites that it owns, and such self -interest does not, by itself, constitute an element of or evidence of bad faith in decision making hereunder.
5. Rights and Obligations of Lenders. If by virtue of any right or obligation set forth herein, a lien shall be placed upon any Development Site, such lien shall expressly be subordinate and inferior, except as set forth in this Article VIR, Section 5, to the lien of any first lienholder now or hereafter placed on such Development Site. Except as set forth in the preceding sentence, however, any holder of a first lien on any Development Site, and any assignee or successor in interest of such first lienholder, shall be subject to the terms and conditions of this Declaration. Notwithstanding anything herein contained or implied to the contrary, any and all liens created pursuant to the terms hereof shall be paid and satisfied in full upon the sale of any Development Site or any property to which such lien attaches, and if not so paid upon sale, such lien shall no longer be subordinate and inferior to any lien on such Development Site or property, and the lien created hereunder shall become a first and prior lien to all existing and future liens.
6. Limitation of Liability. Any person acquiring fee or leasehold title to any Development Site shall be bound by this Declaration only as to the Development Site acquired by such person. In addition, such person shall be bound by this Declaration only during the period such person is the Owner or Lessee of such Development Site, except as to obligations, liabilities and responsibilities that accrue during said period of such Owner' s ownership or Lessee' s leasehold interest. Although persons may be released herein, the easements, covenants, conditions, restrictions and encumbrances contained in this Declaration shall continue to be benefits to and servitudes upon said tracts running with the land comprising the Development Project.
7. Use of " Bay Ten Business Center" or " Bay Ten ". The name " Bay 10 Business Center" or " Bay 10" shall not be used in connection with any business or trade or operations on or any portion of the Development Project without the prior written consent of the Administrator, which consent the Administrator may withhold in its sole discretion. All rights, titles and interest in and to the name " Bay 10" and " Bay 10 Business Center" are expressly reserved and retained by Declarant.
29- 1082724. 5/ S P M0991AM I /021512 8. Notices. Any notice required or desired to be given under this Declaration shall be in writing and shall be deemed to have been properly given and served when ( i) three ( 3) days after deposit in the United States Mail, certified, return receipt requested, postage prepaid, and properly addressed, or ( ii) delivered in person or receipted for at the proper notice office address of the party being served if sent or delivered by any other means, in each case addressed, if to an Owner, to the Owner' s last known address as shown on the records of the Administrator ( or the Association after activated) at the time of such mailing or, if to the Administrator, to its President, Secretary or registered agent at its address specified herein ( as amended from time to time as hereinafter stated. The initial address for the Administrator and Declarant shall be:
Parkside Realty Fund, Ltd./ Parkside Capital, L.L.C. 3003 W. Alabama Houston, TX 77098
Such address for the Administrator shall be effective unless and until a notice of change of address shall be made and filed by Administrator in the County Records specifying a different address ( in which event such address specified in such notice shall be the address, for the purposes of this Article VIII, Section 8 for the Administrator thereafter). Upon activation of the Association, notices shall be given to the Association at the office of its State of Texas registered agent shown in the records of the Texas Secretary of State unless and until the President of the Association records a notice of change of address for the Association in the County Records. If any Owner ( other than Declarant) fails to give written notice of a notice address to the Administrator or, after it is activated, the Association, then notice to such Owner at or care of any address where an Owner has a building completed within the Development Project will be effective as notice hereunder or, in the absence of any such existing building owned by that Owner, to the address of the Owner set forth in the instrument of conveyance whereby such Owner took title to the Development Site that it most recently purchased in the Development Project based on the good faith inquiry of the Administrator or Association with available title data of a title insurer. Any notice address provided by any Owner to the Administrator or Association hereunder must include ( even if there is a separate address for mail) a street address that is not a mail drop or post office box type address so that overnight courier services ( such as FedEx) can deliver to the Owner or a live representative of the Owner at such address during normal business hours.
9. Law Governing. This Declaration shall be governed by and construed in accordance with the laws of the State of Texas.
10. Successors and Assigns; Assignment of Declarant Rights. This Declaration, and all the terms and provisions hereof, shall be binding upon Declarant, its successors, assigns and successors in title, and violations of this Declaration by any such parties shall be enjoinable and actionable as herein provided. The rights and powers of Declarant and/ or Administrator hereunder may be assigned by Declarant to any third party who purchases all or all remaining ( or any part of) Development Project lands, but no such assignment of Declarant or Administrator rights shall ever transfer with Declarant' s transfer of title to any part of the Development Project unless Declarant expressly and specifically executes and records a written assignment of the Declarant and/ or
30- 1082724. 5/ SPFI/ 0099 L10001 /02 1 5 1 2 Administrator' s rights ( or any of them) under this Declaration, which express assignment of Declarant or Administrator rights may be included in any conveyance document or by separate instrument. Declarant may also, likewise by specific express recorded assignment only, convey Declarant' s and/ or Administrator' s enforcement rights under this Declaration to any property owners association formed to govern or manage any part of the Development Project.
11. Severability. This Declaration is intended to be performed in accordance with, and only to the extent permitted by, all applicable laws, ordinances, rules and regulations of governmental authorities having jurisdiction. If any provision of this Declaration, or the application thereof to any person or circumstance, shall, for any reason or to any extent, be held to be invalid or unenforceable, then the remainder of this Declaration and the application of such provision to other persons or circumstances shall not be affected thereby, but rather shall be enforced to the greatest extent permitted by law.
12. Headings. The headings contained in this Declaration are for reference purposes only and shall not in any way affect the meaning or interpretation hereof.
13. Miscellaneous. The singular wherever used herein shall be construed to mean or include the plural when applicable, and the necessary grammatical changes required to make the provisions hereof apply either to corporations ( or other entities) or individuals, male or female, shall in all case be assumed as though in each case fully expressed. If any part of this Declaration shall be in conflict with any term of a previously recorded deed of conveyance to any portion of the Development Project, the term of the prior deed of conveyance shall govern, but only to the extent of such conflict. If additional restrictions are imposed upon a Development Site by Declarant in the instrument by which Declarant conveys a Development Site or any portion thereof, the terms of the deed of conveyance shall be in addition to the Declaration herein and shall be solely in favor of Declarant unless otherwise specifically stated in the instrument of conveyance.
14. City Joinder. The City joins in this Declaration for purposes stated herein, including, but not limited to, ( i) approving additional permitted and prohibited uses and plats as specified in Article 11 hereof, (ii) agreeing to and accepting the terms of Article VII hereof (and the related defined terms used therein), and ( iii) joining in all amendments or terminations of this Declaration. The joinder of the City herein shall not be deemed to make the City primarily responsible ( all of which responsibility it hereby expressly disclaims) for monitoring or enforcement of any requirement of this Declaration ( other than Article VID.
15. Limited District Joinder. The District joins in this Declaration for purposes of enforcing the restrictions contained herein, but not for the administration of the restrictions contained in this Declaration, The joinder of the District herein shall not be deemed to require joinder of the District in any amendments or terminations of this Declaration.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK — SIGNATURE PAGES FOLLOW)
31- 1082724. 5/ SPH/ 0099 LAW 1/ 021512 IN WITNESS WHEREOF, this Declaration is executed on the date set forth below to be effective as of the Effective Date first set forth above.
DECLARANT:
GRAND PARKWAY/ KILGORE PARKWAY, LP, a Texas limited partnership
By: Parkside Capital L.L.C., a Texas limited liability company, its General Partner
A; John S. Moody, President
Date: , 2012
THE STATE OF TEXAS §
COUNTY OF HARRIS §
This instrument was acknowledged before me on this day of , 2012, by John S. Moody, President of Parkside Capital L.L.C., a Texas limited liability company, on behalf of said company as General Partner of Grand Parkway /Kilgore Parkway, LP, a Texas limited partnership, in that capacity and on behalf of said partnership.
NOTARY PUBLIC, IN AND FOR THE STATE OF TEXAS
32- 1082724. 5/ SPW009900001/ 021512 ADMINISTRATOR:
PARKSIDE CAPITAL, L.L. C., a Texas limited liability company
By: Name: John S. Moody Title: President
THE STATE OF TEXAS §
COUNTY OF HARRIS §
This instrument was acknowledged before me on , 2012, by John S. Moody, President of Parkside Capital, L.L.C., a Texas limited liability company, on behalf of said limited liability company.
SEAL] Notary Public in and for The State of T E X A S
JOINDER PAGES FOLLOW]
33 - 1082724. 5/ SPH/ 0099U0001/ 021512 Joinder Pace — City of Baytown, Texas Declaration of Covenants, Conditions and Restrictions For Bay 10 Business Park
The CITY joins herein for the purposes stated herein and accepts and acknowledges the benefits of such provisions:
CITY OF BAYTOWN, TEXAS
By: Robert D. Leiper, City Manager
ATTEST:
Leticia Brysch, City Clerk
Ignacio Ramirez, Sr., City Attorney
34- 1082724. 5/ SM009900001 /021512 Joinder Paue — Chambers County Improvement District No. 3 Declaration of Covenants. Conditions and Restrictions For Bay 10 Business Park
The CHAMBERS COUNTY IMPROVEMENT DISTRICT NO. 3 joins herein for the purposes stated herein and accepts and acknowledges the benefits of such provisions:
CHAMBERS COUNTY IMPROVEMENT DISTRICT NO. 3
By: Name: Title:
ATTEST:
By:
Exhibits
Exhibit " A" Legal Description of the Entire Development Project Exhibit " B" Depictions of Viewing Zones Examples Exhibit " C" Drawing of Location of Declarant' s Monument Sign
After Recording, Return To:
Jonathan Peckham, Esq. Strasburger & Price, LLP 1401 McKinney, Suite 2200 Houston, TX 77010
35- 1082724. 5lsPH/0099LA00I/ 02I512 EXHIBIT " A"
Legal Descriptions of Entire Development Proiect
TO BE ATTACHED]
A - 1 1082724. 5/ SPH/ 009900001/ 021512 Exhibit "A"
Grand Parkway /Kilgore Parkway Tracts —934. 923 Acres
Beginning at the point of intersection of the west right -of -way line of F. M. 3180 with the southeast corner of a called 3. 000 acres to Hackberry Creek Storage, LTD Assumption Deed as recorded in Volume 1005, Page 734 of the Chambers County Deed Records, Chambers County, Texas,
Thence, N 89° 31' 04" W, a distance of 577. 87 feet, to a point for corner,
Thence, N 01 °33' 17" W, a distance of 25. 84 feet, to a point for corner,
Thence, N 87 °43' 36" W, a distance of 497. 18 feet, to a point for corner,
Thence, N 04 °36' 32" W, a distance of 11. 39 feet, to a point for corner,
Thence, S 87 °27' 23" W, a distance of 673. 99 feet, to a point for corner,
Thence, N 15 ° 38' 45" W, a distance of 425. 19 feet, to a point in the east line of a called 10. 10 acre tract to Darrell Bean by General Warranty Deed as recorded in Volume 06) 856, Page 636, of the Chambers County Official Public Records, Chambers County, Texas,
Thence, N 07 °49' 09" W, a distance of 371. 48 feet, to a point for the northeast corner of said 10. 10 acre tract,
Thence, S 87 °2738" W, a distance of 509. 36 feet, to a point for the northwest corner of said 10. 10 acre tract, said point also being in the east line of a called 254. 14 acre tract to Grand Parkway /Kilgore Parkway LP by Special Warranty Deed with vendors lien as recorded in Volume ( 08) 1067, Page 264 of the Chambers County Official Public Records, Chambers County, Texas,
Thence, S 02 °31' 16" E, a distance of 2747. 10 feet, to a point for the southeast corner of said 254. 14 acre tract, said point also being in the north line of a called 36. 64 acre tract to Eric and Barbara Wallace by General Warranty Deed as recorded in Volume ( 03) 665, Page 451, of the Chambers County Official Public Records, Chambers County, Texas,
Thence, S 87 °39' 30" W, a distance of 3790. 48 feet, to a point for the southwest corner of said 254. 14 acre tract, said point also being in the east right -of way- of Texas State Highway 99 /Grand Parkway ( width varies),
Thence, S 87 °39' 30 " W, across Texas State Highway 99 /Grand Parkway to a point of intersection with the west right -of way- of Texas State Highway 99 /Grand Parkway, said point also being the southeast corner of a called 129.96 acre tract to Grand Parkway /Kilgore Parkway LP by Special Warranty Deed with vendors lien as recorded in Volume ( 08) 1067, Page 264 of the Chambers County Official Public Records, Chambers County, Texas,
Thence, S 87 °39' 30" W, a distance of 1005. 32 feet, along the south line of said 129. 96 acre tract to a point for the southwest corner of said 129. 96 acre tract, said point also being in the east right -of way- of F. M. 2354
Thence, S 87 °39' 30" W, across F. M. 2354 to a point of intersection with the west right - of -way of F.M. 2354 and the east line of a called 11. 89 acre tract to Coastal Industrial Water Authority as recorded in Volume 313, Page 663 of the Chambers County deed records, Chambers county, Texas,
Thence, in a southwesterly direction across said 11. 89 acre tract to the intersection of the west line of said 11. 89 acre tract and the southeast corner of a called 285. 48 acre tract to Grand Parkway /Kilgore Parkway LP by Special Warranty Deed with vendors lien as recorded in Volume ( 08) 1067, Page 264 of the Chambers County Official Public Records, Chambers County, Texas,
Thence, S 87 °37' 03" W, a distance of 3049. 05 feet, to a point for the southwest corner of said 285. 48 acre tract, said point also being in the east line of a called 24.3 acre tract to John Donelley as recorded in Volume 5, Page 544 of the Chambers County Deed Records, Chambers County, Texas,
Thence, N 01 °43' 33" W, a distance of 1108. 94 feet, to a point for corner, said point also being the northeast corner of a called 24.3 acre tract to William O. Wallace as recorded in Volume 292, Page 539, of the Chambers County Deed Records, Chambers County, Texas, and the southwest corner of a called 40. 53 acre tract to Angel Brothers Enterprises, Inc. by Warranty Deed as recorded in Volume (01) 492 Page 326 of the Chambers County Official Public Records, Chambers County, Texas,
Thence, N 80° 14' 58" E, a distance of 421. 47 feet, to a point for corner, said point also being the southeast corner of said 40. 53 acres,
Thence, N 02 °39' 44" W, a distance of 2708. 36 feet, to a point for the northwest corner of said 285. 48 acres, said point also being the northeast corner of said 40. 43 acre tract and the southwest corner of a called 59 acre tract to West Chambers Development Corporation by General Warranty Deed as recorded in Volume (02) 567, Page 734, of the Chambers County Official Public Records, Chambers County, Texas,
Thence N 87 °04' 06" E, a distance of 1773. 49 feet, to a point, said point also being the southeast corner of said 59 acre tract and the southwest corner of a called 20. 72 acre tract to Rickey D. Fontenot by General Warranty Deed as recorded in Volume ( 04)685 Page 596, of the Chambers County Official Public Records, Chambers County, Texas, Thence, N 87' 15' 45" E, a distance of 1579. 36 feet, to a point of intersection with the west line of the aforementioned called 11. 89 acre tract to Coastal Industrial Water Authority as recorded in Volume 313, Page 663 of the Chambers County deed records, Chambers county, Texas, said point also being the northeast corner of said 285. 48 acre tract,
Thence, N 87 ° 15' 45" E, across said 11. 89 acre tract to the point of intersection with the west right -of way- of F. M. 2354,
Thence, in a northeasterly direction, across F.M. 2354 to the intersection of the east right - of -way of F. M. 2354 and the northwest corner of the aforementioned 129. 96 acre tract to Grand Parkway /Kilgore Parkway LP by Special Warranty Deed with vendors lien as recorded in Volume ( 08) 1067, Page 264 of the Chambers County Official Public Records, Chambers County, Texas,
Thence, N 89 ° 12' 24 "E, a distance of 1407. 80 feet, along the north line of said 129. 96 acre tract to a point,
Thence, N 87 °34' 17" E, a distance of 944. 50 feet, to the intersection of the northeast corner of said 129. 96 acre tract and the west right -of -way of Texas State Highway 99 /Grand Parkway (width varies),
Thence, in a northeasterly direction across Texas State Highway 99 /Grand Parkway width varies) to the intersection of the east right -of way- of Texas State Highway 99 /Grand Parkway and the western most southwest corner of a called 210. 72 acre tract to Grand Parkway /Kilgore Parkway LP by Special Warranty Deed as recorded in Volume 08) 1074, Page 223, of the Chambers County Official Public Records, Chambers County, Texas,
Thence, a distance of 3054.89 feet along the arc of a curve to the left, having a radius of 3064. 79 feet, a central angle of 57 °06' 39" and having a chord bearing and distance of N 01 ° 14' 33" E, 2929. 99 feet, to a point,
Thence, N 27' 18' 47" W, a distance of 156. 96 feet, to a point,
Thence, N 02 °44' 58" W, a distance of 193. 07 feet, to a point for the northern most northwest corner of the aforementioned 210. 72 acre tract,
Thence, N 87 °31' 31" E, a distance of 1796. 29 feet, to a point for corner,
Thence, S 03 ° 07' 50" E, a distance of 1709. 93 feet, to a point for corner,
Thence, N 88 °05' l0" E, a distance of 1716. 89 feet, to a point for corner,
Thence, S O1 ° 40' 35" E, a distance of 1242. 97 feet, to a point, Thence, S 87 °59' 44" W, a distance of 3. 91 feet, to a point,
Thence, S 01 °33' 16" E, a distance of 868. 67 feet, to a point for corner,
Thence, S 88 ° 18' 21" W, a distance of 398. 02 feet, to a point for corner,
Thence, S 01 ° 26' 48" E, a distance of 192. 80 feet, to a point for corner,
Thence, S 87 °28' 30" W, a distance of 819. 13 feet, to a point for corner,
Thence, S 02 °30' 46" E, a distance of 160. 39 feet, to a point for corner,
Thence, S 07 °49' 09" E, a distance of 360.01 feet, to a point for corner,
Thence, S 15 ° 38' 38" E, a distance of 338. 95 feet, to a point for corner,
Thence, N 87 °27' 23" E, a distance of 693. 04 feet, to a point for corner,
Thence, S 01 ° 26' 47" E, a distance of 19. 26 feet, to a point for corner,
Thence, S 87 °43' 36" E, a distance of 396.00 feet, to a point for corner,
Thence, S 01 *27' 10" E, a distance of 26. 16 feet, to a point for corner,
Thence, S 89 °31' 04" E, a distance of 598. 07 feet, to a point for corner, said point also being in the west right -of -way of F. M. 3180,
Thence, S 07 °09' 09" W, a distance of 100.68 feet, along the west right -of way- of F.M. 3180 to the Point of Beginning, containing 934. 923 acres ( 40, 725, 254. 0852 square feet), more or less. EXHIBIT " B"
Depiction of Viewing Zone Examples
B - 1 1082724. 5/ SPH/ 0099L/ 0001/ 021512 Exhibit B continued
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t Q T nat 4 V
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B- 2 1082724. 5/ SPH/0099tJ0001/ 021512 EXHIBIT " C"
Drawing of Location d Dedarant' sMonument Sign
1001061v19 C_1 1082724. 51SPHND99 000011021512