PD186R-CS010313Robert E. Hager
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NICHOLS, JACKSON, DILLARD, HAGER & SMITH, L.L.E
Attorneys & Counselors at Law
1800 Lincoln Plaza
500 North Akard
Dallas, Texas 75201
(214) 965-9900
Fax (214) 965-0010
E-mail NJDHS @ NJDHS.com
ROBERT L. DILLARD. JR.
H. LOUIS NICHOLS
LAWRENCE W..JACKSON
Og COUNSEL
Michael Barry
Duke-Weeks Realty Corp.
3950 Shackleford Rd., Ste. 300
Duluth, GA 30096
March 13, 2001
VIA FACSIMILE
(770) 717-24.~1
RE: Duke Freeport Property Owners Association
Dear Mr. Barry:
Please be advised that we have reviewed the proposed Duke Freeport Property
Owners Association Covenants regarding Freeport Parkway Business Center located in
Coppell, Texas. After reviewing the same, we have some very minor additions that we
would ask to be placed in the restricted covenants and deeds concerning the maintenance
of common area within in the Freeport Parkway Business Center. Specifically we would
ask you to include in Section 1.1 (f) in the definition of "common areas" the following
language
"and any property as depicted on the filed plat of Freeport Parkway Business
Center."
As a result we would interpret common areas to include, if any, masonry wall,
foundation, landscaping irrigation system, entry features, portions of street or waterway
including pavement curbs, alleys, sidewalks should be designated in the recorded plat of
the subdivision.
Also we would like to include in either article four or article five the
following language:
"Should the association or its board fail or refuse to maintain such common area
as defined herein in accordance with any applicable ordinance or under the restrictions
provided herein for an unreasonable time, not to exceed ninety days after written request
to do so, the City of Coppell, binds through a majority of its city council members, shall
have the same right power and authority as herein give to the association and its board to
enforce these covenants and levy assessments necessary to maintain common areas listed
in these restrictions. It is understood that in such event, the City of Coppell, Texas,
through its city council, may elect to exercise the rights and powers of the association or
its board, to the extent.necessary to take any action required and levy any assessment that
the association might have, either in the name of the association or otherwise, to cover
the cost of maintenance of said common areas as provided herein."
With these suggested changes we would be in a position to approve these
restrictive covenants and have the father record.
Sincerely,
NICHOLS, JACKSON, DILLARD,
By: '~R~b;rt-E. Ha e~r
REH/si
cc: Marcie Diamond
LDuke-weeks
REALTY CORPORATION
Michael Barry, Corporate Attorney
Direct Dial (770) 638-2712
Email Address: Michael. Ban-y@dukereit.com
February 22, 2001
VIA FEDERAL EXPRESS
Marcie Diamond
City of Coppell
Planning Department
255 Parkway Boulevard
Coppell, TX 75019
Re: Duke Freeport Property Owners Association
Dear Ms. Diamond:
Enclosed herewith please find a revised Covenants, Conditions, Restrictions, Reservations and
Easements for Freeport Parkway Business Center. Once reviewed, please call me to discuss.
Many thanks for your time and assistance.
Michael Barry
' MB/mr
Enclosure
F:WlikeXletters\City of Coppell.doc
3950 Shackleford Road
Suite 300
Duluth, GA 30096
Phone: 770.717.3200
This instrument prepared by
and upon recording return to:
Michael Barry, Esq.
Duke-Weeks Realty Corporation
3950 Shackleford Rd., Suite 300
Duluth, Georgia 30096
DECLARATION
OF
COVENANTS, CONDITIONS, RESTRICTIONS,
RESERVATIONS AND EASEMENTS
FOR
FREEPORT PARKWAY BUSINESS CENTER ASSOCIATION
Dallas County, Texas
F: ~nike\docs~Freeport North Declarationl
TABLE OF CONTENTS
ARTICLE 1 .................................................................................................................................................. 1
Section
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
1.1. Definitions .......................................................................................................................... I
Articles of Incorporation .............................................................................................................. 1
Association ................................................................................................................................... 2
Board of Directors ........................................................................................................................ 2
Bylaws .......................................................................................................................................... 2
Committee .................................................................................................................................... 2
Common Area .............................................................................................................................. 2
Common Expenses ....................................................................................................................... 2
Community Wide Standard .......................................................................................................... 2
Declarant ...................................................................................................................................... 2
Declaration ................................................................................................................................... 2
Development Guidelines .............................................................................................................. 2
Improvement" or "Improvements ................................................................................................. 2
Member ........................................................................................................................................ 3
Owner ........................................................................................................................................... 3
Person ........................................................................................................................................... 3
Property ........................................................................................................................................ 3
Rules and Regulations .................................................................................................................. 3
Site ................................................................................................................................................ 3
Supplemental Declaration ............................................................................................................ 3
Utility Easement Area .................................................................................................................. 4
Zoning Ordinance ......................................................................................................................... 4
Voting Units ................................................................................................................................. 4
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
(r)
(s)
(t)
(u)
(v)
Section
Section
Section
1.2. Purpose ............................................................................................................................... 4
1.3. Annexation ......................................................................................................................... 4
1.4. Additional Covenants, Conditions, Restrictions, Reservations and Easements .................4
ARTICLE 2 .................................................................................................................................................. 4
Section 2.1.
Section 2.2.
Section 2.3.
Section 2.4.
Section 2.5.
Section 2.6.
Section 2.7.
Declarant's Rights, Powers and Authority .......................................................................... 4
Designation By Declarant of Common Area ...................................................................... 5
Grant of Easement over Common Area ............................................................................. 5
Additional Easements ......................................................................................................... 6
Landscaping and Maintenance of Common Areas ............................................................. 6
Limitation on Use of Common Area .................................................................................. 6
No Assignment of Declarant's Rights, Powers or Authority .............................................. 6
ARTICLE 3 .................................................................................................................................................. 6
Section 3.1 Function of Association ........................................................................................................ 7
Section 3.2 Membership .......................................................................................................................... 7
Section 3.3. Voting ................................................................................................................................. 7
F: 'cmike\docsLFreeport North Declarationl
ARTICLE 4 .................................................................................................................................................. 8
Section 4. !
Section 4.2
Section 4.3
Section 4.4
Section 4.5
Section 4.6.
Section 4.7
Section 4.8
Section 4.9.
Section 4.10.
Section 4.11.
Section 4.12.
Section 4.13.
Section 4.14
Section 4.15
Section 4.16
Section 4.17.
Section 4.18.
Common Areas ..................................................................................................................... 8
Personal Property and Real Property for Common Use ....................................................... 8
Enforcement .......................................................................................................................... 8
Implied Rights; Board Authority .......................................................................................... 9
Governmental Interests ......................................................................................................... 9
Duty to Pay Taxes .............................................................................................................. 9
Insurance ............................................................................................................................... 9
Insurance Proceeds ............................................................................................................... 9
Fidelity Coverage ............................................................................................................... 9
Other Insurance and Bonds ............................................................................................... I0
Power to Acquire Property and Construct Improvements ................................................ 10
Power to Adopt Rules and Regulations ............................................................................ 10
Power to Employ Managers; Management Contracts ...................................................... 10
Power to Engage Employees, Agents and Consultants .................................................... 10
General Corporate Powers ................................................................................................ 10
Indemnification ................................................................................................................. 10
Dedication of Common Areas .......................................................................................... 11
Security ............................................................................................................................. 11
ARTICLE 5 ................................................................................................................................................ 11
Section
Section
Section
Section
Section
Section
Section
Section
Section
5.1. Covenants for Assessments .............................................................................................. 11
5.2. Purpose of Assessments ................................................................................................... 12
5.3. Annual Assessments ......................................................................................................... 12
5.4. Special Assessments ......................................................................................................... 12
5.5. Due Date of Assessments ................................................................................................. 12
5.6. Apportionment of Assessment .......................................................................................... 12
5,7. Owner's Personal Obligation for Payment of Assessments .............................................. 12
5.8. Assessment Lien and Foreclosure .................................................................................... 13
5.9. Exempt Property .............................................................................................................. 13
ARTICLE 6 ................................................................................................................................................ 14
Section
Section
Section
Section
Section
Section
6.1. Establishment of Design Review Committee ................................................................... 14
6.2. Function of the Committee ............................................................................................... 14
6.3. Submission of Plans and Specifications ........................................................................... 14
6.4. Form of Committee Action .............................................................................................. 14
6.5. Limitation of Liability ...................................................................................................... 15
6.6. Enforcement by Committee .............................................................................................. 15
ARTICLE 7 ................................................................................................................................................ 15
Section 7.1. Permitted Uses .................................................................................................................. 15
Section 7.2 Prohibited Uses and Compliance ........................................................................................ 15
Section 7.3. Development Guidelines .................................................................................................. 17
Section 7.4. No Subdivision of Sites .................................................................................................... 17
F: 'anike\docsXFreeport North Declaration 1
Section 7.5. Approvals, Waivers and Variances .................................................................................. 17
Section 7.6. Zoning ............................................................................................................................... 18
ARTICLE 8 ................................................................................................................................................ 18
Section 8.1. Duty of Maintenance ........................................................................................................ 18
Section 8.2. Enforcement of Maintenance Duties ................................................................................ 19
ARTICLE 9 ................................................................................................................................................ 19
Section
Section
Section
Section
Section
9.1. Right of Repurchase ......................................................................................................... 19
9.2. Release and Waiver .......................................................................................................... 20
9.3. Definition of "Commencement of Construction ............................................................... 20
9.4. Time of the Essence .......................................................................................................... 20
9.5. Deed Waiver or Modification ........................................................................................... 20
ARTICLE 10 .............................................................................................................................................. 20
Section
Section
Section
Section
10.1. Abatement and Suit .......................................................................................................... 20
10.2. Deemed to Constitute a Nuisance ..................................................................................... 21
10.3. Remedies Cumulative ....................................................................................................... 21
10.4. Assignment of Declarant's Rights and Remedies ............................................................. 21
ARTICLE 11 .............................................................................................................................................. 22
Section 11.1.
Section 11.2.
Section 11.3.
Section 11.4.
Section 11.5.
Section 11.6.
Section 11.7.
Section 11.8.
Term ................................................................................................................................. 22
Termination and Modification .......................................................................................... 22
Notices .............................................................................................................................. 22
Parties Bound .................................................................................................................... 22
Severability of Provisions ................................................................................................. 23
Number and Gender ......................................................................................................... 23
Titles ................................................................................................................................. 23
Applicable Law, Venue and Jury Trial Waiver ................................................................ 23
F: 'wnike\docskFreeport North Declaration 1
DECLARATION OF COVENANTS, CONDITIONS,
RESTRICTIONS, RESERVATIONS AND EASEMENTS
FOR FREEPORT PARKWAY BUSINESS CENTER ASSOCIATION
THIS DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS,
RESERVATIONS AND EASEMENTS (this "Declaration") is made this __ day of ,2001, by
TEXAS DUGAN LIMITED PARTNERSHIP (hereinafter referred to as "Declarant") and consented to by
DUKE CONSTRUCTION LIMITED PARTNERSHIP, an Indiana limited partnership ("Duke"), as the
current owner of a portion of the Property (as hereinafter defined).
RECITALS:
Declarant is the developer of a tract of land containing approximately 141.721 acres, located in
the 1744m G.M.D., Dallas County, Texas, and more particularly described on Exhibit A, attached hereto
and by this reference made a part hereof (hereinafter referred to as "the Property ").
Prior to the date hereof, Declarant conveyed a portion of the Property to Duke and Duke desires
to join in this Declaration for the purpose of subjecting its property to this Declaration.
Declarant intends to develop the Property for office/light industrial and retail uses and ancillary
uses permitted under the applicable zoning classification currently in effect, as hereinafter provided,
together with necessary and appropriate infrastructure including roads, utility lines, detention ponds,
signage and hard and soft landscaping.
Declarant desires to subject and impose upon the Property certain covenants, conditions,
restrictions, reservations and easements set forth in this Declaration for the purpose of insuring the proper
use and appropriate development, maintenance and improvement of the Property.
Declarant desires to provide within the Common Area (as hereinafter defined) the Improvements
(as hereinafter defined) for the benefit of all of Owners of all or any part of the Property with
non-exclusive access and use of the Common Area in common with Declarant.
NOW, THEREFORE, Declarant hereby declares that the Property is and shall be held, owned,
conveyed, hypothecated, encumbered, leased, rented, used, occupied, improved and otherwise disposed of
subject to the covenants, conditions, restrictions, reservations, easements, charges and liens set forth in
this Declaration.
ARTICLE 1.
DEFINITIONS AND PURPOSES
Section 1.1. Definitions. In addition to terms defined elsewhere in this Declaration, the
following words, when used in this Declaration, shall have the following meanings:
(a) "Articles of Incorporation" shall mean the Articles of Incorporation of Freeport Parkway
Business Center Association, Inc., as filed with the Secretary of State of the State of Texas.
(b) "Association" shall mean "Freeport Parkway Business Center Association, Inc."
(c) "Board of Directors" shall mean the body responsible for administration of the
Association, selected as provided in the Bylaws and generally serving the same role as the board of
directors under Texas corporate law.
(d) "Bylaws" shall mean the Bylaws of Freeport parkway business center association, Inc. as
they may be amended.
(e) "Committee" shall mean the Design Review Committee established under Article 6 of
this Declaration.
(f) "Common Area" shall mean, but is not limited to, any portion of the Property to be used
for (i) sanitary sewer lines, detention ponds, surface water drainage flow inhibitors and other
infrastructure items; (ii)medians in the right-of-way; (iii) monument signage; and (iv) fire tank and
associated service lines.
(g) "Common Expenses" shall mean the actual and estimated expenses incurred or
anticipated to be incurred by the Association for the general benefit of all Sites, including all reasonable
reserves.
(h) "Community Wide Standard" shall mean the standard of conduct, maintenance, or other
activity generally prevailing throughout the Property. Such standard may be more specifically determined
by the Board of Directors.
(i) "Declarant" shall mean Declarant and its successors and shall include any person or entity
designated as a successor or assignee by specific assignment of its rights and duties under this Declaration
pursuant to Section 10.4 hereof.
(j) "Declaration" shall mean this Declaration of Covenants, Conditions, Restrictions,
Reservations, Restrictions and Easements as the same shall be supplemented or amended from time to
time as provided herein.
(k) "Development Guidelines" shall mean the Development Guidelines adopted by the
Committee, as the same are amended, modified, supplemented and replaced from time to time. The
Development Guidelines are by this reference incorporated herein and made a part hereof.
(1) "Improvement" or "Improvements" shall mean, with respect to any Site or in the
Common Area, any building, structure or construction which may affect the appearance of such Site
including by way of illustration, but not limitation, all land preparation or excavation, utilities and sewer
facilities, landscaping, buildings whether fully or partially enclosed, parking structures, parking areas,
exterior paint or material or colors, trackage, fences, walls, exterior screening, poles, towers, antenna,
aerials, lighting, driveways, ponds, lakes, fountains, swimming pools, tennis courts, decks, benches and
other exterior furniture, walkways, jogging paths, utilities, pipes, lines and wires, signs, glazing or
reglazing of exterior windows, exterior communications equipment and facilities, and any construction
which affects the exterior color or appearance of any building or structure. The term "Improvements"
includes both original improvements that may be permanent or temporary, stationary or moveable, or that
may be above, on or below ground level.
(m)
Section 3.2.
"Member" shall mean a Person subject to membership in the Association, as provided in
(n) "Owner" shall mean the individual, partnership, limited liability company, corporation,
trust, unincorporated association or other legal entity, including Declarant, owning fee title to any land
within the Property. In the event that fee simple title to a Site is held by multiple Owners, either as the
result of creation of a tenancy-in-common or the creation of an estate for years pursuant to which one
Owner is a ground lessor and the other Owner is a ground lessee, such multiple Owners shall within
thirty (30) days after the date of their acquisition of any Site, execute and deliver to Declarant a written
instrument, including a power-of-attorney appointing and authorizing one Owner as their agent to receive
all notices and demands to be given pursuant to the terms and provisions of this Declaration, to execute
any and all documents, consents and instruments required under the terms and provisions of this
Declaration and to cast all votes to take any and all actions required or permitted to be taken by them
under the terms and provisions of this Declaration. If the multiple Owners of a Site fail to deliver to
Declarant such written instrument, then Declarant may elect to recognize only a document, consent or
instrument executed by all of the multiple Owners; provided, however, a notice by Declarant given
hereunder with respect to such Site shall be effective if given to any of the multiple Owners. Owner may
change its designated agent by written notice to Declarant, but such change shall be effective only after
actual receipt of the notice by Declarant. Attached hereto as Exhibit B and incorporated herein by
reference is a "Notice of Ownership" which must be filed with the Association upon any transfer or
conveyance of any portion of the Property. The Association shall be entitled to rely on the correctness of
any Notices of Ownership filed with it, and such notice may be used for all assessment notices and any
other notices to be given by the Association. The failure of an Owner to provide the Association with an
updated and current Notice of Ownership shall be considered a default of this Declaration and a waiver by
said Owner of receiving any such notices. If the filed Notice of Ownership is not accurate and the
Association undertakes the task of obtaining accurate information, the Association's costs in obtaining the
correct information shall be considered an additional assessment and lien against the respective Site.
(o) "Person" shall mean a natural person, a corporation, a partnership, trust, association,
company or any other entity, or any combination thereof.
(p) "Property" shall mean the land described on Exhibit A hereto, together with any
additional real property made subject to this Declaration pursuant to Section 1.3 of this Declaration.
(q) "Rules and Regulations" shall mean the guidelines, rules and regulations adopted by the
Board of Directors, the Association or the Committee, from time to time.
(r) "Site" shall mean a tract of land, the size, boundaries and dimensions of which are
established and identified by site and block number shown upon any recorded subdivision map of the
Property or additions thereto as designated in the city documents. If two or more contiguous Sites, as
defined above, are acquired by the same Owner in fee, such commonly owned contiguous Sites may, at
the option of said Owner and subject to the approval of Declarant, be combined and treated as a single
Site for purposes of this Declaration.
(s) "Supplemental Declaration" shall mean an instrument filed in the Real Property Records
of Dallas County, Texas which subjects additional real property to the terms of this Declaration and/or
imposes, expressly or by reference, additional restrictions and obligations on the real property described
3
in such instrument.
(t) "Utility Easement Area" shall mean a ten (10) foot strip of property inside and along the
boundary lines of any Site.
(u) "Zoning Ordinance" shall mean the comprehensive Zoning Ordinances of the City of
Coppell, Ordinance , adopted , as amended.
(v) "Voting Units" shall mean that each Class "A" Member shall have the right to cast one
vote per each acre of land owned within a Site, with portions of an acre being rounded to the nearest
whole number of acres.
Section 1.2. Purpose. The Property is hereby made subject to the conditions, covenants,
restrictions, easements and reservations contained in this Declaration, all of which shall be deemed to run
with the Property and with each and every Site within the Property, and shall burden and bind the
Property for the duration hereof, in order to insure proper use and appropriate development, maintenance
and improvements of the Property; to prevent the erection within the Property of Improvements
constructed of improper or unsuitable materials, quality or methods of construction; to encourage the
construction of attractive and harmoniously designed improvements within the Property which provide a
high quality office, light industrial and retail development; to protect the present and future value of the
Property; and to generally promote the welfare and safety of Owners of any part of the Property.
Section 1.3. Annexation. Declarant may from time to time unilaterally, subject to the
provisions of this Declaration, annex any additional real property adjacent to or in the vicinity of the
Property. Such annexation shall be accomplished by filing in the Real Property Records in Dallas
County, Texas, a supplemental declaration annexing such additional real property by express statement.
Any such annexation shall be effective upon the filing for record of such supplemental declaration,
unless otherwise provided therein, and upon becoming effective the term "Property" henceforth shall be
deemed to include the annexed real property. Provided, however, nothing in this Declaration shall be
construed to require Declarant or any successor Declarant to annex any additional real property.
Section 1.4. Additional Covenants, Conditions, Restrictions, Reservations and Easements.
Declarant may from time to time unilaterally subject any portion of the Property then owned by Declarant
to additional covenants, conditions, restrictions and easements by filing in the Real Property Records in
Dallas County, Texas, a Supplemental Declaration. No such additional covenants, conditions, restrictions
and easements shall affect a Site previously conveyed to an Owner, except to the extent permitted
pursuant to Section 6.2 of this Declaration.
ARTICLE 2.
CONSTRUCTION, USE AND MAINTENANCE OF COMMON AREAS
Section 2.1. Declarant's Rights, Powers and Authority. Declarant shall at all times have the
right, power and authority to do the following:
(a) to construct Improvements from time to time, within the boundaries of the
Common Areas.
4
(b) to enter at any time, without being liable to an Owner, upon any portion of the
Common Areas to enforce the provisions of this Declaration or to replace, maintain or repair any
Improvement located thereon.
(c) to grant and convey to any utility company or appropriate governmental authority
easements on, over, across and under the Utility Easement Area or Common Areas for the purpose of
excavating, constructing, erecting, operating, repairing, maintaining, replacing or removing thereon,
therein and thereunder, lines, cables, wires, pipes and other devices for utility purposes; sanitary sewers;
water systems and equipment; detention ponds, storm drainage systems; sprinkler systems and pipelines;
and any similar public or quasi-public improvements or facilities, and to relocate easements in, and
modify the size and capacity of utilities in, the Utility Easement Area or Common Areas.
(d) to connect storm sewer lines to any detention pond which may now or hereafter be
deemed a Common Area and to provide storm drainage and run-off from a Site to such Common Area.
(e) to prohibit any Owner and its tenants, agents, employees, customers, invitees and
licensees from using the Common Areas in the event any assessment is not paid by an Owner when due.
(f) to make, establish and amend such rules and regulations, not in conflict with this
Declaration, as Declarant deems proper, governing the use of the Common Area by Owners or
non-Owners, so long as such rules and regulations are commercially reasonable.
(g) to take such other actions as are in keeping with the purpose and intent of this
Declaration.
Section 2.2. Designation By Declarant of Common Area. Declarant shall have the right, at
any time, at its cost and expense, to designate as a Common Area any part of the Property which is owned
by Declarant, or to modify the configuration of or reduce the area contained within any part of the
Common Areas located on any part of the Property which is owned by Declarant and not by an Owner,
without the joinder or consent of any Owner being required and without compensation to any Owner.
(a) Initial Common Areas.
(i)
Declarant hereby designates those two areas
identified as .... on the site plan attached hereto as Exhibit
and by this reference made a part hereof, as a Common Area.
Section 2.3. Grant of Easement over Common Area. Declarant shall have the power to
convey the Common Areas to the Association by easement, deed, or by plat recorded in the Real Property
Records of Dallas County, Texas, at such time and from time to time as Declarant deems appropriate.
Upon conveyance, the Association shall accept and maintain such Common Areas pursuant to its powers
and duties set forth in Section 4.2 hereof. Declarant hereby establishes and grants for the benefit of the
Property perpetual easements for access, ingress and egress on, over and across the Common Area,
together with access over the Property to the Common Areas, for the benefit of Declarant in order to
effectuate the provisions of Section 2.1 of this Declaration. The Common Areas and the Improvements
located on the Common Area, shall be used and enjoyed in common by the Owners of all or any part of
the Property subject to the reservations, restrictions, covenants and conditions of this Declaration and the
rules and regulations established in accordance with this Declaration. Each Owner, so long as all
assessments due on its Site have been paid, shall have the authority to allow use of the Common Areas by
their respective permitted tenants, agents, employees, customers, invitees and licensees subject to the
terms and conditions of this Declaration. Declarant hereby establishes a perpetual easement on, over and
across the Common Areas for the benefit of Declarant and other Owners of any part of the Property for a
non-exclusive right of access, ingress and egress on, over and across the Common Areas.
Section 2.4. Additional Easements. If it becomes clear that additional utility or drainage
easements, whether or not contemplated or mentioned in this Declaration, between or across portions of
the Property are reasonable, necessary, and desirable to effectuate the purposes of this Declaration, then,
upon the request of Declarant, and provided said proposed additional easements will not unreasonably
interfere with the development, use and occupancy of any Site, unreasonably affect access to or operation
of, any such Site, or materially increase the operating costs of any such Site, each Owner agrees to grant
such additional easements across its Site, without charge therefor, subject to such reasonable terms and
conditions as shall be agreed upon between Declarant and such Owner. Any such new easement or
easements shall be signed by Declarant and or all Owners of portions of the Property which compose the
land within such new easements and shall be recorded in the Real Property Records of Dallas County,
Texas.
Section 2.5. Landscaping and Maintenance of Conunon Areas. The Common Area located on
an Owner's Site shall be landscaped and shall be maintained, unless otherwise expressly provided in this
Declaration, by the Association for the common benefit of the Owners as a common expense pursuant to
Article 5 of this Declaration. All landscaping and all maintenance of the Common Areas shall be done at
the direction and under the supervision of the Association in accordance with landscaping plans and
maintenance standards approved by the Committee and the Association shall maintain the Common Areas
in good order and condition and shall manage all assessments paid to the Association pursuant to Article
5.
Section 2.6. Limitation on Use of Common Area. No Owner of Property, other than
Declarant, shall use, construct Improvements on, alter, modify, add to or reduce the Common Areas nor
shall any Owner at any time erect or permit to be erected any barrier to interfere in any way with the
access, ingress and egress by Declarant or any other Owner, their respective permitted tenants, agents,
employees, customers, invitees and licensees, on, over and across the Common Areas.
Section 2.7. No Assignment of Declarant's Rights, Powers or Authority. Title to any portion
of the Common Area conveyed by Declarant by deed or other conveyance to any Owner shall not be held
or construed to grant or assign to such Owner any of the rights, reservations, powers and authority of
Declarant as set forth in this Article or elsewhere in this Declaration, such rights, powers and authority
being hereby expressly retained by Declarant. Each Owner of any portion of the Property that is
Common Area, by acceptance of a deed or other instrument transferring ownership of such portion of the
Property, whether or not it shall be so expressed in any such deed or instrument, shall take title subject to
such rights, easements, reservations, powers and authority of Declarant and the portion of the Property
that is Common Area shall remain Common Area during the term of this Declaration.
ARTICLE 3.
ASSOCIATION FUNCTION, MEMBERSHIP AND VOTING RIGHTS
6
Section 3.1 Function of Association. The Association has been or will be formed as a Texas
corporation under the Texas Nonprofit Corporation Code. The Association shall be the entity responsible
for management, maintenance, operation and control of the Common Areas within the Properties. The
Association shall be the primary entity responsible for enforcement of this Declaration and such rules
regulating use of the Properties as the Board or the membership may adopt pursuant to Article 7 hereof.
The Association shall perform its functions in accordance with this Declaration, the By-Laws, the Articles
and Texas law.
Section 3.2 Membership. Every Owner shall be a Member of the Association. There shall
be only one membership per Site. If a Site is owned by more than one Person, all co-Owners shall share
the privileges of such membership, subject to Board regulation and the restrictions on voting set forth in
Section 3.3(a) and in the By-Laws, and all co-Owners shall be jointly and severally obligated to perform
the responsibilities of Owners. The membership rights and privileges may be exercised by the Owner, if
a natural person, or in the case of an Owner which is a corporation, partnership or other legal entity, by
any officer, director, partner, or trustee, or by any other individual designated by the Owner from time to
time in a written instrument provided to the Secretary of the Association, but no Owner shall be permitted
to relieve itself of the responsibility for fulfillment of all of the obligations of an Owner under this
Declaration.
Section 3.3.
and Class "B."
Voting. The Association shall have two classes of voting membership, Class "A"
(a) Class "A." Class "A" Member shall be all Owners other than the Class "B" Member,
if any. Each Class "A" Member shall be entitled to vote their respective Voting Units; provided, no votes
shall be exercised for any property which is exempt from assessments under Section 5.9. Class "A"
Owners shall include all Owners; provided, however, that so long as Declarant is a Class B Owner, it
shall not be entitled to Class "A" membership, unless Declarant owns a site on which a building is being
constructed, and the Declarant shall be entitled to Class "A" membership only as to such site.
If there is more than one Owner of any Unit, the votes for such Unit shall be exercised as such co-
Owners determine among themselves and advise the Secretary of the Association in writing prior to the
vote being taken. In the absence of such advice, the vote for such Unit may be exercised by any co-
Owner but shall be suspended if more than one co-Owner seeks to exercise it.
Any Owner may assign the right to cast all or a portion of the votes allocated to its Unit to the
lessee of any portion of such Unit by written proxy filed with the Secretary of the Association in
accordance with Article 2 of the By-Laws.
(b) Class "B." The sole Class "B" Member shall be the Declarant. The fights of the
Class "B" Member, including the fight to approve or withhold approval of actions proposed under this
Declaration, the By-Laws and the Articles, are specified in the relevant sections of this Declaration, the
By-Laws and the Articles. The Class "B" Member may appoint a majority of the members of the Board
during the Class "B" Control Period, as specified in Article 2 of the By-Laws. After termination of the
Class "B" Control Period, the Class "B" Member shall have a fight to disapprove actions of the Board and
committees as provided in Article 2 of the By-Laws. The Class "B" membership shall terminate upon the
earlier of:
(i) the date upon which Declarant ceases to own more than 5 acres of land within
the Property; or
(ii) when, in its discretion, the Declarant so determines and declares in a recorded
instrument.
Upon termination of the Class "B" membership, the Declarant shall be a Class "A" Member
entitled to its respective Voting Units, if any.
ARTICLE 4.
RIGHTS AND OBLIGATIONS OF THE ASSOCIATION
Section 4.1 Common Areas. The Association has been formed to further the common
interests of the Owners. The Association, subject to the rights of the Owners set forth in this Declaration,
shall manage, maintain and repair, operate and control the Common Areas and all improvements thereon
(including, without limitation, landscaping, furnishings, equipment and other personal property of the
Association used in connection with the Common Areas), and shall keep them in safe, good, clean,
desirable, attractive, and sanitary condition, order, and repair, consistent with this Declaration and the
Community-Wide Standard. The Board is specifically authorized, but not obligated, to retain or employ
professional management to assist in carrying out the Association's responsibilities under this Declaration,
the cost of which shall be a Common Expense.
Section 4.2 Personal Property and Real Property for Common Use. The Association may
acquire, hold, and dispose of tangible and intangible personal property and real property. The Declarant
and its designees may convey to the Association improved or unimproved real estate located within the
Property, personal property, and leasehold or other property interests. Such property shall be accepted by
the Association and thereafter shall be maintained as part of the Common Areas by the Association for
the benefit of its members, subject to any restrictions set forth in the deed or other instrument transferring
such property to the Association.
Section 4.3 Enforcement. The Association may impose sanctions for violations of this
Declaration, any applicable Supplemental Declaration, the By-Laws, or Association rules in accordance
with procedures set forth in the By-Laws, including monetary fines and suspension of the right to vote. In
addition, in accordance with Section 4.16 of the By-Laws, the Association may exercise self-help to cure
violations, and may suspend any services it provides to the Site of any Owner who is more than 30 days
delinquent in paying any assessment or other charge due to the Association. All remedies set forth in this
Declaration and the By-Laws shall be cumulative of any remedies available at law or in equity. In any
action to enforce the provisions of this Declaration or Association rules, if the Association prevails it shall
be entitled to recover from the violating Owner all costs, including, without limitation, attorneys' fees and
court costs, reasonably incurred in such actions.
The Association shall not be obligated to take action to enforce any covenant, restriction or rule
which the Board reasonably determines is, or is likely to be construed as, inconsistent with applicable
law, or in any case in which the Board reasonably determines that the Association's position is not strong
enough to justify taking enforcement action. Any such determination shall not be construed as a waiver
of the right to enforce such provision under other circumstances or estop the Association from enforcing
any other covenant, restriction or rule.
8
The Association, by contract or other agreement, may enforce city and county ordinances, if
applicable, and permit the City of Coppell and Dallas County to enforce their respective ordinances on the
Properties for the benefit of the Association and its Members.
Section 4.4 Implied Rights; Board Authority. The Association may exercise any right or
privilege given to it expressly by this Declaration or the By-Laws, and any right or privilege which could
be implied from or which is necessary to effectuate any express right or privilege. Except as otherwise
specifically provided in this Declaration, the By-Laws or by Texas law, all rights and powers of the
Association may be exercised by the Board without a vote of the membership.
Section 4.5 Governmental Interests. So long as the Declarant owns any of the Property, the
Declarant may designate sites within the Property for fire, police, paramedic/rescue and utility facilities,
public schools and parks, and other public or quasi-public facilities. The sites may include Common
Areas, in which case the Association shall take whatever action is required with respect to such site to
permit such use, including conveyance of the site, if so directed by Declarant. The sites may include
other property not owned by Declarant provided the owner consents.
Section 4.6. Duty to Pay Taxes. The Association shall pay all ad valorem taxes and
governmental assessments levied upon the Association properties to which the Association holds fee
simple title. Nevertheless, the Association shall have the right to contest in good faith any such taxes or
assessments provided such content does not subject the Association property to foreclosure proceedings.
Section 4.7 Insurance. To the extent deemed desirable by the Board, the Association shall
obtain and keep in full force and effect at all times, to the extent reasonably obtainable, comprehensive
public liability and property damage, casualty, fire and extended coverage insurance with respect to all
insurable Improvements and personal property owned by the Association, for the interest of the
Association, its Board, members of the Committee, officers, agents and employees, and all Owners, in
such amounts and with such endorsements and coverages as the Board shall, in its sole discretion,
determine from time to time.
Section 4.8 Insurance Proceeds. To the extent permitted by any mortgage or similar
instrument which creates a lien against all or a portion of the Common Areas and to the extent reasonably
practicable, the Association shall use the net proceeds of any property insurance to repair and replace any
damage or destruction of property, real or personal, covered by such insurance. Any balance from the
proceeds of insurance paid to the Association, as required in this Section 4.8, remaining after satisfactory
completion of repair and replacement, except as may be provided to the contrary in any mortgage or
similar instrument which creates a lien against all or a portion of the Common Areas, shall be retained by
the Association as part of the general reserve fund for repair and replacement of the Common Areas. If
the insurance proceeds are insufficient to repair or replace any loss or damage, the Board may either (a)
levy a special assessment to cover the deficiency or (b) otherwise provide funds to cover such deficiency
in such manner as the Board shall determine.
Section 4.9. Fidelity Coverage. To the extent reasonably obtainable, the Association may
obtain and keep in full force and effect at all times a fidelity policy or bond providing fidelity coverage
against dishonest acts on the part of directors, officers, employees and volunteers of the Association
responsible for handling fund collected and held for the benefit of the Owners or otherwise belonging to
or administered by the Association.
9
Section 4.10. Other Insurance and Bonds. The Association shall have the power to obtain such
other insurance and such fidelity, indemnity or other bonds as the Association shall deem necessary or
desirable.
Section 4.11. Power to Acquire Property and Construct Improvements. Other than property
received from Declarant (the conveyance of which is governed by Section 4.2 hereof), the Association
may acquire property or interests in property for the common benefit of Owners, including Improvements
and personal property. The Association may construct Improvements on property and may repair,
maintain, remodel and demolish existing Improvements.
Section 4.12. Power to Adopt Rules and Regulations. The Association, acting through the
Board, or the Development Review Committee may, from time to time, adopt, amend, repeal and enforce
rules and regulations as may be deemed necessary or desirable with respect to the interpretation and the
implementation of this Declaration or any supplemental declaration, the operation of the Association, the
use and enjoyment of Association Properties. Any such rules and regulations shall be responsibly and
uniformly applied. Each Owner shall comply with such rules and regulations. In the event of any conflict
between the rules and regulations and the provisions of this Declaration, the provisions of this Declaration
shall prevail.
Section 4.13. Power to Employ Managers; Management Contracts. The Association shall have
the power to retain and pay for the services of a manager or managers to undertake any of the
management duties and administrative functions for which the Association has responsibility, and the
Association may delegate any of its duties, powers or functions to any such manager. Notwithstanding
any delegation to a manager of any duties, powers or functions of the Association, the Association and the
Board shall remain ultimately responsible for the performance and exercise of such duties, powers and
functions.
Section 4.14 Power to Engage Employees, Agents and Consultants. The Association shall
have the power to hire and discharge employees and agents and to retain and pay for legal, accounting
and other services as may be necessary or desirable in connection with the performance of any duties or
the exercise of any powers of the Association under this Declaration or any Supplemental Declaration.
Section4.15 General Corporate Powers. The Association shall have all of the ordinary
powers and rights of a Texas nonprofit corporation, including, without limitation, the power and right to
enter into partnerships and other agreements, subject only to such limitations upon such powers as may be
set forth in this Declaration or in the Articles of Incorporation or Bylaws. The Association shall also have
the power to do any and all lawful things which may be authorized, required or permitted to be done
under this Declaration, under any Supplemental Declaration, or under the Articles of Incorporation,
Bylaws or Rules and Regulations, and to do and perform any and all acts which may be necessary or
desirable for, or incidental to, the exercise of any of the express powers or fight of the Association under
this Declaration, under any Supplemental Declaration or under the Articles of Incorporation, Bylaws or
Rules and Regulations.
Section 4.16 Indemnification. To the extent consistent with the Texas Nonprofit Corporation
Code, the Association shall indemnify every officer, director, and committee member against all damages
and expenses, including attorneys' fees, reasonably incurred in connection with any action, suit, or other
proceeding (including settlement of any suit or proceeding, if approved by the Board) to which he or she
10
may be a party by reason of being or having been an officer, director, or committee member, except that
such obligation to indemnify shall be limited to those actions as to which liability is limited under this
Section and Texas law.
The officers, directors, and committee members shall not be liable for any mistake of judgment,
negligent or otherwise, except for their own individual willful misfeasance, malfeasance, misconduct, or
bad faith. The officers and directors shall have no personal liability with respect to any contract or other
commitment made or action taken, in good faith, on behalf of the Association (except to the extent that
such officers or directors may also be Members of the Association). The Association shall indemnify and
forever hold each such officer, director and committee member harmless from any and all liability to
others on account of any such contract, commitment or action. This right to indemnification shall not be
exclusive of any other rights to which any present or former officer, director, or committee member may
be entitled. The Association shall, as a Common Expense, maintain adequate general liability and
officers' and directors' liability insurance to fund this obligation, if such insurance is reasonably available.
Section 4.17. Dedication of Common Areas. The Association may dedicate portions of the
Common Areas to the City of Coppell, to Dallas County, Texas, or to any other local, state, or federal
governmental or quasi-governmental entity.
Section 4.18. Security. The Association may, but shall not be obligated to, maintain or support
certain activities within the Properties designed to make the Properties safer than they otherwise might be.
NEITHER THE ASSOCIATION, THE DECLARANT, NOR ANY SUCCESSOR DECLARANT
SHALL IN ANY WAY BE CONSIDERED INSURERS OR GUARANTORS OF SECURITY WITHIN
THE PROPERTIES, NOR SHALL ANY OF THEM BE HELD LIABLE FOR ANY LOSS OR
DAMAGE BY REASON OF FAILURE TO PROVIDE ADEQUATE SECURITY OR
INEFFECTIVENESS OF SECURITY MEASURES UNDERTAKEN. NO REPRESENTATION OR
WARRANTY IS MADE THAT ANY SYSTEMS IMPLEMENTED OR SECURITY MEASURES
UNDERTAKEN WILL IN ALL CASES PREVENT LOSS OR PROVIDE THE DETECTION OR
PROTECTION FOR WHICH THE SYSTEM IS DESIGNED OR INTENDED. EACH OWNER
ACKNOWLEDGES, UNDERSTANDS AND COVENANTS TO INFORM ITS TENANTS THAT THE
ASSOCIATION, ITS BOARD OF DIRECTORS AND COMMITTEES, DECLARANT, AND ANY
SUCCESSOR DECLARANT ARE NOT INSURERS AND THAT EACH PERSON USING THE
PROPERTIES ASSUMES ALL RISKS FOR LOSS OR DAMAGE TO PERSONS, TO UNITS AND TO
THE CONTENTS OF UNITS RESULTING FROM ACTS OF THIRD PARTIES.
ARTICLE 5
COMMON AREA ASSESSMENTS
Section 5.1. Covenants for Assessments. Declarant, for all of the Property, covenants, and
each subsequent Owner of any portion of the Property (including any purchaser at any judicial sale or
non-judicial sale under power), by acceptance of a deed or other instrument transferring ownership of
such portion of the Property, whether or not it shall be so expressed in any such deed or other instrument,
covenants and agrees and shall be deemed to covenant and agree to pay to Declarant any annual
assessments or charges and any special assessments for improvement or maintenance of the Common
Area, which assessments are to be set, established and collected from time to time for the purposes of and
as provided in this Declaration.
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Section 5.2. Purpose of Assessments. The annual assessments shall be assessed, collected
and administered by Declarant and shall be used for the maintenance, operation, repair and replacement
of Improvements to the Common Areas, including, but not limited to, the cost of water, lighting, cleaning,
insurance, utility bills, labor, equipment, materials, management and Declarant's administrative costs,
which administrative costs shall be limited to seven percent (7%). The annual assessments shall not
include any costs or expenses incurred by Owner in the initial construction of any Improvements to the
Common Areas. The special assessment shall be assessed, collected and administrated by Declarant and
shall be used for the purpose stated in the written notice required under Section 5.4 of this Declaration.
All sums received by Declarant pursuant to the annual or special assessments shall be segregated by
Declarant from its general funds and held in trust for the benefit of the Owners for the purposes and uses
designated herein. Declarant shall maintain records of all expenditures of funds and all assessments with
regard to the Common Areas, which records shall be open for inspection by any Owner during normal
business hours upon reasonable notice and at such Owner's cost and expense.
Section 5.3. Annual Assessments. Declarant shall determine the amount of each calendar
year's annual assessment based on Declarant's financial needs for maintenance, operation, repair and
replacement of Improvements to the Common Areas for that calendar year and Declarant's determination
shall be final and binding on all Owners.
Section 5.4. Special Assessments. In addition to any annual assessments, Declarant may at
any time levy a special assessment for the purpose of defraying, in whole or in part, the cost of any
construction, reconstruction or replacement of any capital improvements within the Common Areas,
including the necessary fixtures and personal property related thereto; provided that any such special
assessment shall not become effective if disapproved in writing by a majority of the Owners, computed
on the basis of acreage, within the Property, within sixty (60) days after written notice of such special
assessment from Declarant to all Owners setting forth the amount and purpose of the special assessment.
Notwithstanding any provision of this Section 5.4 to the contrary, special assessments shall not be used
for the purpose of defraying the cost of the initial installation of roads, landscaping, irrigation systems,
lighting, project monuments and other signage in the Common Areas.
Section 5.5. Due Date of Assessments.
year.
The annual assessment under this Section shall be due and payable on March 1 of each
(2) The due date of any special assessment under this Section shall be as set by Declarant in
the notice of special assessment sent to the Owners [which due date shall not be earlier than thirty (30)
days after the lapse of the sixty (60) day period referred to in Section 5.4 of this Declaration].
Section 5.6. Apportionment of Assessment. Any annual or special assessment shall be
allocated pro rata among the Owners in accordance with the amount of land owned. Subject to
adjustment, as provided in the next succeeding sentence, an Owner's share of the assessment shall be
determined by multiplying the total amount of the assessment by a fraction (rounded to nearest 100th)
having as its numerator the acreage owned by the Owner within the Property including that portion
situated within the Common Area, and having as its denominator the total acreage located within the
Property.
Section 5.7. Owner's Personal Obligation for Payment of Assessments. The annual and
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special assessments provided for herein shall be the personal and individual debt of the Owner of the
Property covered by such assessments. No Owner may exempt himself from personal liability for such
assessments. Any assessment not paid within the time period specified in this Section shall bear, and the
Owner of the Property shall be obligated to pay (i) a late fee equal to five percent (5.0%) of the amount of
assessment, (ii) interest at the annual interest rate stated below on the amount of the assessment from the
due date thereof, and (iii) all costs and expenses of collection, including actual attorney's fees and court
costs. Declarant shall have the right to bring suit against the Owner to recover a money judgment for all
such amounts without foreclosing or waiving the liens securing same as provided in this Section. The
annual interest rate from the due date until paid shall be equal to the lesser of (a) the maximum lawful rate
that may be charged, or (b) twelve percent (12%) per annum.
Section 5.8. Assessment Lien and Foreclosure. All sums assessed in the manner provided in
this Section but unpaid, together with late fees, interest thereon and the costs of collection, including
attorney's fees as provided above, shall become a continuing lien and charge on the Site covered by such
assessment, which shall bind such Site. Such lien shall be superior to all other liens and charges against
the said site or portion of the Property, (i) except only the lien for ad valorem tax; and (ii) except for the
lien and security title of a first priority deed to secure debt granted by the Owner on its Site, provided,
however, from and after the date the holder of such deed to secure debt or its successor or assignee takes
possession of the Site or succeeds to the Owner's interest in the Site, whether by deed-under-power,
foreclosure, conveyance in lieu of foreclosure or otherwise, such holder or its successor or assignee shall
be deemed an Owner of the Site and liable for all assessments on that Site due after that date. Declarant
shall have the power to release the assessment lien or to subordinate it to any other lien and such power
shall be entirely discretionary with Declarant. To evidence the assessment lien, Declarant shall prepare a
written notice of assessment lien setting forth the amount of the unpaid indebtedness, the date that the
unpaid indebtedness was due, the name of the Owner of the Site or portion of the Property covered by
such lien and a description of the Site. Such notice shall be signed by Declarant and shall be recorded in
the office of the Real Property Records of Dallas County, Texas. Such lien for payment of assessments
shall attach with the priority set forth above from the date that such payment becomes delinquent as set
forth in this Section. Subsequent to the recording of a notice of assessment lien as provided above,
Declarant may institute suit against the Owner to foreclose the assessment lien, and in addition or as an
alternative, seek a personal judgment against the Owner for the amount of the unpaid assessment plus
accrued interest thereon, all such remedies being cumulative. In any such suit or proceeding, the Owner
shall be required to pay the costs, expenses and Declarant's actual attorney's fees incurred. Declarant
shall have the power to bid on the Site or portion of the Property in question at foreclosure or other legal
sale and to acquire, hold, lease, mortgage, convey or otherwise deal with the same. Upon the written
request of any grantee holing a deed to secure debt on any Site or part of the Property, Declarant shall
report to said grantee any unpaid assessments remaining unpaid on that Site or portion of the Property for
longer than thirty (30) days after the same are due. Any grantee holding a deed to secure debt on any Site
or part of the Property affected by the assessment lien may, but shall not be required to, pay any unpaid
assessment and upon such payment such grantee shall be assigned the debt and lien securing same, said
assignment to be without recourse or warranty.
Section 5.9. Exempt Property. All portions of the Property owned by or otherwise dedicated
to any political subdivision shall be exempt from the assessments and lien created herein.
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ARTICLE 6.
DESIGN APPROVAL AND CONTROL
Section 6.1. Establishment of Design Review Committee. A Design Review Committee (the
"Committee") shall be established by the Association. The Committee shall consist of three (3) regular
members who shall be natural persons. During the Class "B" Control Period, the Declarant shall have the
right to appoint such members of the Committee. Upon the end of the Class "B" Control Period, the
Board of Directors shall meet and appoint the Members of the Committee. The vote or written consent of
any two (2) members shall constitute the action or decision of the Committee on any matter before it.
Such vote may take place through polling of the members in writing or over the telephone or other means
of communication.
Section 6.2. Function of the Committee. The Committee shall have the sole authority and
responsibility to approve and regulate the design and construction of all Improvements within the
Property so as to assure compliance with the intent and purpose of this Declaration. The Committee has
adopted detailed standards, guidelines and application procedures (the "Development Guidelines") to
govern the design and construction of all Improvements, building setback lines, parking requirements,
requirements with respect to loading and receiving areas, outside storage, solid waste removal,
landscaping, signage, utility connections, drainage, on-site detention facilities, exterior illumination,
maintenance and such other matters as the Committee shall deem necessary or appropriate. The
Committee shall have the power to amend, modify, supplement and replace the Development Guidelines;
provided, however, no such amendment, modification, supplement or replacement of the Development
Guidelines shall apply to plans and specifications for Improvements previously approved by the
Committee or operate to revoke or modify any approval of plans and specifications for Improvements
previously given by the Committee. The Development Guidelines shall be available for inspection at the
address specified for notice to Declarant pursuant to Section 11.3 of this Declaration. All Improvements
shall be designed and constructed substantially in accordance with the plans and specifications approved
by the Committee pursuant to the Development Guidelines. No Improvement shall be made, installed,
constructed, altered, rebuilt or demolished until the plans and specifications for such Improvement have
been submitted to the Committee. Approval of plans and specifications shall be based, among other
things, on the adequacy of Site dimensions, structural design, conformity and harmony of the external
design with neighboring structures and Sites, the relation of finished grades and elevations to neighboring
Sites, and conformity to both the specific and general purposes of this Declaration. The Committee shall
have the right to employ, at Declarant's expense (or at the expense of the person or entity having the right
to appoint the Committee if Declarant has relinquished said right), professional consultants to assist it in
discharging its duties. Any decision of the Committee in its areas of responsibility shall be final,
conclusive and binding upon all Owners and their tenants.
Section 6.3. Submission of Plans and Specifications. Plans and specifications shall be
submitted for Improvements in accordance with the procedures set forth in the Development Guidelines.
Section 6.4. Form of Committee Action. All actions of the Committee, including approval of
plans and specifications and the granting of waivers or variances, shall be in writing, and signed by at
least two (2) members of the Committee. No approval, waiver or variance in any other form shall be
binding on the Committee or Declarant. However, if the Committee fails either to approve or to
disapprove an Owner's plans and specifications, within thirty (30) days after such plans and specifications
have been submitted to it (provided that all required information has been submitted), it shall be
14
conclusively presumed that said plans and specifications have been approved, subject, however, to the
conditions, covenants, restrictions and reservations contained elsewhere in this Declaration. The
Committee shall notify the Owner in writing upon receipt of all required plans and specifications and the
thirty (30) day period shall commence on the date of such notification. Declarant shall have the right to
condition its approval of landscaping, to be installed by an Owner in the Common Area situated within
such Owner's Site, on the requirement that the Owner maintain all or any part of such landscaping at the
expense of such Owner.
Section 6.5. Limitation of Liability. Neither Declarant, the Committee nor any of the
members of such Committee shall be liable in damages or otherwise to anyone submitting plans and
specifications for approval to any Owner affected by this Declaration by reason of mistake of judgment,
negligence or nonfeasance arising out of or in connection with the approval or disapproval or failure to
approve or to disapprove any plans and specifications. The construction of any Improvement on a Site
shall be the sole responsibility of the Owner and any recommendation with respect to any plans or
specifications or the means or method of construction made by the Committee or any member thereof
shall not alter the Owner's responsibility for the safe and proper design and construction of said
Improvement nor shall it give rise to any claims by anyone against Declarant or the Committee or any
member thereof for any defect in design or construction of any Improvement.
Section 6.6. Enforcement by Committee. No Improvement shall be constructed, erected,
placed, modified, altered (by addition or deletion), rebuilt or reconstructed, maintained or permitted to
remain on any Site except substantially in accordance with the approved plans and specifications. Any
Improvement not designed, erected, placed, modified, altered, rebuilt and constructed or maintained
substantially in accordance with approved plans and specifications shall conclusively be deemed in
violation of this Declaration and shall be removed or corrected by the Owner in conformance with
approved plans and specifications to the reasonable satisfaction of the Committee. The Committee shall
have the right, without liability to any Owner, and is hereby granted an irrevocable license, to enter on
such Owner's Site during construction of the Improvements by such Owner, to determine if such
construction complies with this Declaration. In addition to any other remedy provided for in this
Declaration, Declarant may bring suit to enjoin the commencement or continuation of construction of any
Improvement for which the Committee has not previously approved plans and specifications and may also
bring suit to enjoin the continuance of construction of any Improvement that is not being constructed
substantially in accordance with Plans and Specifications.
ARTICLE 7.
REGULATION, USE AND IMPROVEMENTS wrrHIN THE PROPERTY
Section 7.1. Permitted Uses. Unless otherwise specifically prohibited herein, any use will be
permitted if it is specifically permitted by the Dallas County Zoning Ordinance as of the date of this
Declaration.
Section 7.2 Prohibited Uses and Compliance. The following operations and uses, together
with all uses prohibited by law, shall not be permitted on any property subject to this Declaration:
1. Single-family residential.
2. Trailer Courts.
15
o
4.
5.
6.
7.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
Labor Camps.
Junk Yards.
Commercial Storage of building or construction materials.
Distillation of bones.
Dumping, disposal, incineration of reduction of garbage, sewage, dead animals or
refuse.
Fat rendering.
Stockyard or slaughter of animals.
Smelting of iron, tin, zinc or other ores.
Refining of petroleum or of its products.
Cemeteries or mausoleums.
Jail, penal, detention or correction farms.
Gasoline service stations except at Lots specifically designated by Grantor.
Any operation or use which is dangerous to others or which constitutes a
nuisance.
Commercial or other advertising.
Temporary or portable sawmill.
Community Fair.
Radio, television or other transmission tower.
Noncommercial club or lodge.
Privately operated sanitary landfill.
Sewage or treatment plant.
Boarding and breeding kennels.
Temporary religious meetings.
Construction Contractor.
16
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
Funeral home.
Sanatorium, convalescent, rest or retirement home.
Adult bookstore or other establishment engaged in the business of selling,
exhibiting or delivering pornographic or obscene materials.
A so-called "head shop."
Game Room or arcade.
Off-track betting parlor.
Pawn shop.
Junkyard.
Flea market.
Recycling Facility.
Auditorium, sports or other entertainment viewing facility.
Dance hall or night club.
Billiard parlor.
Bars and lounges.
Any heavy industrial use.
Development Guidelines.
Section 7.3.
violation of the Development Guidelines.
Section 7.4. No Subdivision of Sites.
No Site shall be developed in a manner that is in
No Site shall be subdivided or resubdivided, or
combined with any other Site by any Owner without the prior written consent of the Committee, except
for the Retained Parcels.
Section 7.5. Approvals, Waivers and Variances. It is the intent of this Declaration that the
regulation of Sites within the Property as set forth in this Article 7 be strictly adhered to. Notwithstanding
that intent, it is recognized that particular circumstances may from time to time and on a case-by-case
basis necessitate the waiving or varying of certain of the requirements set out in this Article 7. Therefore,
for good cause shown, the Committee may, in its sole discretion, waive or vary the requirements and
standards set forth in this Article 7 on a case-by-case basis so long as such waiver or variance does not
violate the overall scheme and intent of this Article 7. Any waiver or variance, when granted by the
Committee, shall be final and binding upon all Owners. The granting of a waiver or variance to one
Owner shall not automatically entitle another Owner to the same waiver or variance, it being understood
17
that each request for a waiver or variance shall be treated on its own merits. Further, the granting of a
waiver or variance to an Owner shall not automatically entitle that Owner to any subsequent or additional
waiver or variance. All approvals, waivers and variances by the Committee shall be in writing and signed
by at least two (2) members of the Committee and, if requested by the applicant, shall be in recordable
form. No approval, waiver or variance in any other form shall be binding on the Committee or Declarant.
Section 7.6. Zoning. No Owner shall seek to rezone its Site or seek to modify or amend in
any respect the zoning applicable to its Site without the prior written approval of the Committee.
Declarant reserves the right to rezone the Property then owned by Declarant or have the existing zoning
applicable to the Property then owned by the Declarant modified or amended (each a "Rezoning") without
the consent of the Owners. Declarant and each subsequent Owner, by acceptance of a deed or other
instrument transferring ownership of such portion of the Property, whether or not it shall be so expressly
stated in any such deed or other instrument, agrees to cooperate in any Rezoning of the Property then
owned by Declarant, and each Owner appoints Declarant its attorney-in-fact to act, sign any applications
or petitions and appear at any hearing, for and on behalf of the Owner in support of such Rezoning, which
appointment is coupled with an interest and is irrevocable. Notwithstanding the provisions of the two
immediately preceding sentences to the contrary, if an Owner determines, in the exercise of commercially
reasonable judgment, that a proposed Rezoning will materially and adversely affect ownership or use of
its Site, that Owner shall not be obligated to consent to, or support, the proposed Rezoning and may elect,
to the extent permitted by applicable law, to oppose such proposed Rezoning.
ARTICLE 8.
SITE MAINTENANCE
Section 8.1. Duty of Maintenance. Each Owner of any Site, at its sole cost and expense, shall
keep such Site, including the Improvements, including any area between the property line of that Site and
any adjacent street curbs, but excluding any portion of such Site situated within a Common Area (except
as provided in subsection 8.1(g) below), in a safe, clean, neat and attractive condition at all times and
shall comply with all governmental health, fire and safety statutes, ordinances, regulations or
requirements applicable from time to time to the Site and Improvements thereon. Owner's obligations
include, but shall in no way be limited to, the following:
(a) All rubbish, trash and other waste shall be stored in clean and sanitary solid waste
receptacles and shall be promptly removed from the Site prior to its accumulation.
(b) All exterior lighting and mechanical facilities shall be kept in good working order.
(c) All parking areas shall be striped and all parking areas, driveways and roads shall be kept
in good repair and swept to the extent necessary to keep such areas clean and clear of debris.
(d) All exteriors to any Improvements shall be kept in good repair, including replacements, if
necessary, and the exterior of all Improvements shall be repainted as reasonably needed.
(e) All lawn areas shall be timely mowed and edged at least once a week during the growing
season of March through October and as needed to keep an even, well groomed appearance during the
months of November through February. Lawn areas shall be watered and
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fertilized at such times and in such quantities as required to keep the grass alive and attractive and shall be
kept free of weeds.
(f) All trees, plants and ground cover shall be timely and properly trimmed (including the
removal of deadwood) according to their plant culture and the landscape design and shall be watered and
fertilized at such times and in such quantities as are required to keep them alive and attractive. Any dead
tree, shrub, plant or ground cover shall be removed and replaced immediately. All bed areas shall be kept
free of weeds and cultivated periodically, as needed.
(g) The provision of this Section 8.1 shall apply to any landscaping by any Owner in any
portion of a Site situated in the Common Area which the Owner is required to maintain.
Section 8.2. Enforcement of Maintenance Duties. If, in the reasonable opinion of the
Association, any Owner has failed in any of the foregoing obligations or duties, then the Association may
give the Owner written notice of such failure and the Owner must within ten (10) days after receiving
such notice, perform the obligation or duty required. Should any Owner fail to fulfill this obligation or
duty within such ten (10) day period, then the Association, through its authorized agent or agents, shall
have the right and power to enter onto the Owner's Site and perform such obligation or duty without any
liability for damages for wrongful entry, trespass or otherwise to any person or entity. Notwithstanding
the foregoing notice requirement, in the event of an emergency, as determined by the Association, the
Association through its authorized agent or agents, shall have the right and power to enter onto the
Owner's Site and perform such work as is necessary to abate the emergency without prior notice to Owner
and, thereafter, as soon as is reasonably practicable, the Association shall notify Owner of these
circumstances. Each Owner of any Site on which such work is performed shall be liable for the cost of
such work and shall promptly reimburse the Association, and said indebtedness shall be a debt of Owner
and shall constitute a lien against the Site on which said work was performed. This debt shall bear
interest at the rate and be subject to the costs as provided for in Article 5 above, which provisions are
incorporated herein by reference, and the Association shall have identical powers and rights with respect
to said lien as it has with respect to the lien described in Article 5, including, but not limited, to the right
to release, subordinate or foreclose the same.
ARTICLE 9.
DECLARANT'S RIGHT OF REPURCHASE
Section 9.1. Right of Repurchase. If any Owner of a Site, or the Owner's successors and
assigns, fails to commence construction of a building on the Site within one (1) year from the date of the
deed conveying the Site from Declarant, then Declarant, its successors and assigns, at any time thereafter
shall have the continuing right to repurchase the Site by giving the Owner written notice of its election to
repurchase ("Repurchase Notice"), at a repurchase price equal to the price paid by the Owner to Declarant
when the Site was purchased by the Owner from Declarant. On the date which is thirty (30) days from
and after the date of the Repurchase Notice ("Repurchase Date"), Declarant shall pay to the Owner the
repurchase price in cash and the Owner shall reconvey the Site to Declarant by delivery of a Limited
Warranty Deed duly executed and acknowledged by the Owner in recordable form, conveying good and
indefeasible fee simple title to the Site to Declarant, containing no exceptions to title other than the
exceptions contained in the original deed from Declarant, at the Owner's expense, an ALTA Form B
Owner's Title Insurance Policy in the amount of the repurchase price insuring fee simple, indefeasible
title to the Site to Declarant, containing no exceptions to title other than those contained in the original
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title policy delivered from Declarant to the Owner when the Site was purchased from Declarant by the
original Owner. Ad valorem taxes and general assessments against the Site for the calendar year in which
the repurchase occurs shall be prorated on and as of the Repurchase Date. Owner and Declarant covenant
and agree to execute and deliver to each other such additional documents as may be reasonably necessary
to consummate the reconveyance of the Site to Declarant. The right of Declarant to repurchase the Site
shall be binding upon the original Owner and the Owner's successors and assigns, and shall be considered
a covenant running with the Site. If the Owner fails to reconvey the Site to Declarant as provided for in
this Section, Declarant shall have the right to any and all remedies at law or equity, including the fight to
specifically enforce the conveyance of the Site to Declarant and shall be entitled to recover reasonable
attorney's fees and court costs incurred in connection with enforcement of its fights under this Section.
Section 9.2. Release and Waiver. Upon commencement of construction of a building on the
Site within the one (1)-year period set forth in Section 9.1, the repurchase right provided in Section 9.1
shall terminate and Declarant shall, upon receipt of a written request from the Owner, execute a waiver
and release of such repurchase fight in recordable form. In addition, by written instrument executed by
Declarant, Declarant may in its sole discretion, but shall have no obligation to do so, extend the
one (1)-year period within which construction of a building must commence or otherwise limit or waive
entirely its right of repurchase under Section 9.1.
Section 9.3. Definition of "Commencement of Construction". For purposes of Sections 9.1
and 9.2 above, "commencement of construction of a building" shall mean that the Owner of the Site has
obtained approval of the Committee of approved plans and specifications as set forth in Article 6 of this
Declaration, has obtained building permits from the appropriate governmental authorities authorizing
construction of a building and improvements in accordance with approved plans and specifications, has
entered into a construction contract for the construction of a building with a contractor licensed to do
business in Texas, and has completed the pouting of a foundation for the Improvements on the Site
pursuant to such construction contract for on-site construction work and pursuant to the approved plans
and specifications.
Section 9.4. Time of the Essence. Time is of the essence with respect to the terms and
provisions of this Declaration.
Section 9.5. Deed Waiver or Modification. If Declarant, in its deed to an Owner, waives or
modifies the terms of this Article 9, such waiver or modification contained in any deed shall be binding
on Declarant, the other Owners and their respective successors or assigns, including without limitation,
the Association to be formed pursuant to Article 3 of this Declaration.
ARTICLE 10.
ENFORCEMENT OF COVENANTS AND ASSIGNMENT
OF DECLARANT'S RIGHTS AND DUTIES
Section 10.1. Abatement and Suit. The conditions, covenants, restrictions and reservations
contained in this Declaration shall run with the Property and be binding upon and inure to the benefit of
Declarant, as Owner, Declarant, and subsequent Owners of every Site within the Property. Violation of
any condition, covenant, restriction or reservation herein contained shall give to Declarant the right to
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enter upon the portion of this Property where such violation or breach exists and to abate and remove at
the expense of the Owner any structure, thing or condition that may be or exist thereon contrary to the
intent and meaning of the provisions of this Declaration, or to institUte a proceeding at law or in equity
against the person or persons who have violated or are attempting to violate any of these conditions,
covenants, restrictions and reservations, to enjoin or prevent them from doing so, to cause said violation
to be remedied or to recover damages for said violation, or to cause the completion or repair of any work
required by this Declaration to be completed or repaired. Damages shall not be deemed adequate
compensation for any breach or violation of any provision of this Declaration, and the Declarant,
Committee and each Owner, subject to the next paragraph, shall be entitled to relief by way of injunction,
as well as any other remedy either at law or in equity.
The conditions, covenants, restrictions and reservations of this Declaration may be enforced as
herein provided only by Declarant or the Committee; provided, however, that if an Owner notifies
Declarant of a claimed violation of these conditions, covenants, restrictions and reservations and
Declarant fails to act within sixty (60) days after receipt of such notification, then and in that event only,
an Owner may separately, at his own cost and expense, enforce the conditions, covenants, restrictions and
reservations herein contained.
Section 10.2. Deemed to Constitute a Nuisance. Every violation of this Declaration or any part
thereof is hereby declared to be and constitute a nuisance, and every public or private remedy allowed
therefor by law or equity against an Owner, tenant or occupant shall be applicable against every such
violation and may be exercised by Declarant. In any legal or equitable proceeding for the enforcement of,
or to restrain the violation of, this Declaration or any provision contained in this Declaration, the losing
party or parties shall pay the reasonable attorneys' fees and court costs of the prevailing party or parties in
the amount as actually incurred.
Section 10.3. Remedies Cumulative. All remedies provided herein or at law or in equity shall
be cumulative and not exclusive. The failure of Declarant to enforce any of the conditions, covenants,
restrictions or reservations herein contained shall in no event be deemed to be a waiver of the right to do
so for subsequent violations or of the right to enforce any other conditions, covenants, restrictions or
reservations and Declarant shall not be liable for such failure.
Section 10.4. Assignment of Declarant's Rights and Remedies. Any and all of the rights,
powers and reservations of Declarant herein contained may be assigned by Declarant to any person,
corporation, limited liability company, trust, association or other entity which will assume any or all of
the duties of Declarant hereunder. To be effective, such assignment must be in writing and in recordable
form and specifically refer to the rights, powers and reservations of Declarant hereunder which are being
assigned. Upon acceptance of such assignment by any such person or entity, said assignee shall, to the
extent of such assignment, assume Declarant's duties hereunder and shall have the same fights and powers
and be subject to the same obligations and duties as are given to and assume by Declarant herein. Upon
such assignment, and to the extent thereof, Declarant shall be relieved from all liabilities, obligations and
duties hereunder arising from and after the date of such assignment. The terms "Declarant", as used
herein, includes all such assignees and their heirs, successors and assigns.
Anything contained elsewhere herein to the contrary notwithstanding, the mere conveyance or
transfer of ownership of land within the Property by Declarant to any person or party, whether by deed or
other instrument of conveyance, shall in no way convey any right, power or reservation to Declarant
hereunder.
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ARTICLE 11.
MISCELLANEOUS PROVISIONS
Section 11.1. Term. This Declaration, every provision hereof and every covenant, condition,
restriction and reservation contained herein, shall continue in full force and effect for a term beginning on
the date of this Declaration is recorded and continuing until twenty (20) years from the date hereof, at
which time the Declaration shall be automatically extended for successive periods of ten (10) years unless
changed by vote of the majority of the then Owners of the Sites covered by this Declaration.
Notwithstanding the foregoing, any easement granted pursuant hereto are and shall be perpetual, except to
the extent, if any, otherwise provided in the creation of any such easement, and except that any dedication
to an acceptance by an appropriate governmental authority or any conveyance or grant to any appropriate
public utility of the facilities that are the subject of any such easements shall terminate those easements if
such dedication, conveyance or grant so provides.
Section 11.2. Termination and Modification. This Declaration, or any provision thereof, may
be terminated, modified or amended upon the affirmative vote in writing of the Owners owning a
majority of the acreage within the Property effective ninety (90) days after written notice of such
termination, modification or amendment is given to all Owners; provided, however, that until such time
as Declarant is relieved of its liabilities, obligations and duties under this Declaration as provided in
Section 10.4 of this Declaration, no such termination, modification or amendment shall be effective
without the written approval of Declarant in its sole discretion. Notwithstanding the foregoing, until such
time as Declarant is relieved of its liabilities, obligations and duties under this Declaration as provided in
Section 10.4 of this Declaration, Declarant shall have the absolute right to modify or amend this
Declaration if express provision is made in this Declaration for such modification or amendment. Any
such termination, modification or amendment shall be immediately effective upon recording a proper
instrument in writing, executed and acknowledged by such Owners (and by Declarant) as required herein
in the recording office where this Declaration is filed.
Section 11.3. Notices. All notices, approvals or other communications required or permitted to
be given under this Declaration shall be in writing and shall be considered as properly given or made:
(i) on the second (2nd) day after being mailed from within the United States by certified mail, return
receipt requested, postage prepaid and addressed to the person to whom it is intended at the address of
said person as set forth below, whether actually received or not; or (ii) when actually received by the
person to whom it is intended if given in any other manner. The mailing address for an Owner shall be
the most recent address of said Owner designated in writing to Declarant, or if not so designated, as
shown on the tax rolls of Dallas County, Texas. The mailing address for Declarant shall be 3950
Shackleford Road, Suite 300, Duluth, Georgia 30096, Attention: Senior Vice President, Texas Industrial
Group, with a copy to Legal Department, Declarant Corporation, 3950 Shackleford Road, Suite 300,
Duluth, Georgia 30096. Declarant may change its address by filing a written instrument in the recording
office where this Declaration is filed stating its new address.
Section 11.4. Parties Bound. This Declaration and the terms and provisions contained in this
Declaration shall run with the Property and each and every part thereof, shall bind Declarant, the Owners
of all Sites located within the Property and all persons or entities having or acquiring any interest in the
Property or any part thereof, and their respective heirs, successors, personal representatives and assigns
and shall inure to the benefit of and be enforceable by, Declarant, its successors and assigns, and each
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Owner, and his, her or its successors and assigns. Any Owner or any successor or assignee of any Owner,
by acceptance of title to any part of the Property, covenants and agrees to abide by the terms and
provisions of this Declaration. Notwithstanding the above, upon the sale of a Site, the Owner so selling
shall not have any further liability for the obligations thereon which shall accrue against that Site after the
date of the conveyance; provided, however, that nothing herein shall be construed so as to relieve any
Owner of any site from any liabilities or obligations incurred prior to such sale. Any such sale shall not
enlarge or extend the time for commencement of construction of a building upon a Site nor modify
Declarant's right of repurchase pursuant to Article 6 hereof.
Section 11.5. Severability of Provisions. If any Article, Section, subsection, paragraph,
sentence, clause or phrase of this Declaration shall be or become illegal, null or void for any reason or
shall be held by any court of competent jurisdiction to be illegal, null or void, the remaining Articles,
Sections, subsections, paragraphs, sentences, clauses and phrases will continue to remain in full force and
effect irrespective of the fact that any one or more of the other Articles, Sections, subsections, paragraphs,
sentences, clauses or phrases shall become or be illegal, null or void.
Section 11.6. Number and Gender. Words used herein, regardless of the number and gender
specifically used, shall be deemed and construed to include any other number (singular or plural) and any
other gender (masculine, feminine or neuter) as the context requires.
Section 11.7. Titles. The titles, heading and captions which have been used throughout this
Declaration are for convenience only and are not to be used in construing this Declaration, or any part
thereof.
Section 11.8. Applicable Law, Venue and Jury Trial Waiver. This Declaration and the rights
and obligations created hereby shall be construed in accordance with the laws of the State of Texas and
venue for the enforcement of same shall lie exclusively in Dallas County, Texas, and any person or entity
affected hereby waives the right to be sued elsewhere. EACH OWNER HEREBY WAIVES ITS
RIGHT TO A TRIAL BY JURY.
(SIGNATURES CONTAINED ON FOLLOWING PAGE)
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IN WITNESS WHEREOF, the Declarant has executed this Declaration under seal as of the
day of ,2001.
Signed, sealed and delivered
as to Landlord, in the
presence of:
Unofficial Witness
Notary Public
LANDLORD:
TEXAS DUGAN LIMITED PARTNERSHIP, a
Delaware limited partnership
By:
DUGAN GENERAL PARTNER LLC, a
Delaware limited liability company, its
general partner
By:
DUGAN TEXAS LLC, a
Delaware limited liability
company, its sole member
By:
DUKE-WEEKS REALTY
LIMITED PARTNERSHIP, an
Indiana limited partnership, its
Manager
By:
DUKE-WEEKS REALTY
CORPORATION, an
Indiana corporation, its general
Partner
By:
Name:
Title:
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