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ParkW CC-1/FP-CS 9005021333 NEW HAMPSHIRE AVENUE~ N.W. Suite 400 WASHINGTON, D.C. 20036 (202) 887-4000 65 AVENUE LOUISE, P.b. NO. 7 I080 brUSSELS, bELGiUM (011) 32-2-535.29.11 HAND DELIVERED AKIN, Gump, STRAUSS, HAUeR & FELD ATTORNEYS AT LAW A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS 4100 FIRST CItY CENTER I700 PACIFIC AVENUE DALLAS, TEXAS 7S201-4618 (214) 969-2800 TELEX 73-23;~4 CABLE AGSH &F DALLAS fAX (214) 9;:3;:3-8043 WRITER'S DIREC ...... UMBER (214) Taryon Bouman Planning & Zoning Coordinator 255 Parkway Blvd. Coppell, Texas 75019 May 2, 1990 2100 FRANKLIN PLAZA III CONGRESS AVENUE ALISTIN, TEXAS 7870I (5I;~) 499-6200 1500 NCNB PLAZA 300 CoNveNt street SAN ANTONIO~ tEXAS 78205 (SI2) 270-0800 1900 PENNZOIL PLACE-SOUtH TOWER 7~ LOUISIANA STREET HOUSTON, TEXAS 77002 Re: Prentiss Properties/Park West Commerce Center Our File No. 00980-0359 Dear Taryon: Enclosed please find a draft of the revised Declaration of Protection Covenants for Park West Commerce Center. As you may recall from City Council's approval of the plat, these covenants must be approved and executed by May 10, 1990. Therefore, it is imperative that we receive your comments by Monday, May 7, 1990 to give us time to make any suggested revisions. If you have any questions regarding this matter, please do not hesitate to call. Very truly yours, William S. Dahlstrom WSD:jc Enclosure cc: Mike Tucker Kirk R. Williams DECLARATION OF PROTECTIVE COVENANTS FOR PARK WEST COMMERCE CENTER COPPELL, TEXAS DRAFT This Declaration of Protective Covenants (hereinafter "Declaration") made effective the day of 1990, by The Prentiss/Copley Investment Group, a Delaware general partnership (hereinafter referred to as "Declarant"), as owner of the Property (as hereinafter defined). W I T N E S S E T H: WHEREAS, Park West Commerce Center is being developed for retail, office and industrial uses by Declarant, and Declarant desires to provide for the preservation of the values and amenities thereof for the benefit of the Property, to create certain easements appurtenant to all or a part of the Property, and to provide for the use, maintenance, and repair thereof for any and all subsequent Owners (as hereinafter defined), all of which shall inure to the benefit of and run with the Property and shall apply to and bind successors in interest and any Owner thereof. WHEREAS, it is the desire and the intent of Declarant that the matters and things hereinafter set forth shall be and the same are covenants running with the Property, which is a part of a general scheme of development binding upon the Property and all present and subsequent Owners and persons dealing with the same. NOW, THEREFORE, the Declarant hereby declares that any interest in the Property is and shall be held, conveyed, and occupied subject to the covenants, easements, charges, liens and restrictions hereinafter set forth (hereinafter the "Protective Covenants"). I. THE PROPERTY. The real property ("Property") affected hereby and subject to this Declaration is commonly known as "Park West Commerce Center" and is located within the City of Coppell, Dallas County, State of Texas and is more particularly described on Exhibit A attached hereto and incorporated herein as if fully stated. The term "Property" shall also include such additions, which from time to time, may be brought within the jurisdiction of the Association pursuant to Article IV. hereof. II. DEFINITIONS. The following words, when used in this Declaration or any Supplemental Declaration (as defined in Section IV.D. hereof) (unless the context shall specifically provide otherwise), shall have the following interpretation and effect: A. "Association" - Park West Commerce Center Owners Association, a Texas non-profit corporation. B. "Board" - the Board of Directors of the Association. C. "Buildin9 Site" - (i) any portion of the Property identified as a separate tract or lot within the Property on any recorded subdivision plat pertaining to the Property or portion thereof and (ii) each other portion of land contained within the Property which shall be designated as a "Building Site" for purposes of this Declaration in any Supplemental Declaration or deed hereafter executed by Declarant, with the exception of the Common Areas and areas dedicated to public use. D. "City" - The City of Coppell, Dallas County, Texas. E. "Committee" - the Design Approval Committee of the Association, as established pursuant to Section V.A. below. F. "Common Area or Common Areas" - means (i) such portions of the Property designated as Common Area on any recorded subdi- vision plat of the Property or any part thereof filed by Declarant, (ii) such other areas of land as Declarant may here- after designate as Common Area on any Supplemental Declaration filed by Declarant pursuant to Section IV.E. hereof, (iii) any portions of the Property owned by the Association, together with any and all buildings and other Improvements now or hereafter located thereon, (iv) all portions of the Right-of-Way Landscape Area (as defined in subsection IV.N.6. hereof) and (v) any sidewalk which may be constructed by the Association as provided herein. The Common Areas are to be held, maintained and operated for the common use and benefit of the Owners and their respective Tenants and Invitees. G. "Improvements" - all structures or other changes to the Property or a parcel or Building Site of any kind, whether above or below grade, including, but not limited to buildings, equipment, utility installation, sending or receiving antennae, storage, loading, and parking facilities, walkways, driveways, landscaping, signs, site lighting, site grading, earth movement and any exterior additions, changes, or alterations thereof, whether in color, shape or otherwise. -2- H. "Invitee" - means any licensees, customers, agents, employees, guests, and contractors of (i) Declarant, (ii) any Owner, or (iii) any Tenant. I. "Long-Term Ground Lease" - means any ground lease covering all or any portion of the Property which has an initial term, without regard to options to extend such term, of not less than ten (10) years, if the rights of an Owner hereunder are specifically assigned to the tenant under such lease. J. "Member" - means each member of the Association. Owner of any Building Site (including Declarant) shall be a Member. Each K. "Mortgagee" - means any person or entity that holds a valid first mortgage or first deed of trust on any Building Site, as security for the payment of any indebtedness and/or for the performance of any obligation, and who has notified the Associa- tion of this fact. The term "Mortgage" as used in this instrument shall mean and refer to a first mortgage or first deed of trust on any Building Site. L. "Owner" - means any person or entity that (i) owns fee simple title to any Building Site, (ii) is the lessee under a Long-Term Ground Lease covering any Building Site, or (iii) is the purchaser under a conditional sale contract covering any Building Site pursuant to which beneficial title to and possession of such Building Site has passed to the purchaser, but excluding any person holding an interest in any lot solely as a Mortgagee. The lessor under a Long-Term Ground Lease and the seller under any conditional sale contract referred to in the preceding sentence shall not be Owners for the purposes hereof, but the fee interests of such parties in any Building Site shall nevertheless be subject to the liens, restrictions and other provisions hereof. M. "Party" - an individual, corporation, partnership, trust, association or any legal entity, public or private. N. "Tenant" - means any Party who owns or holds any leasehold interest in any space in any Improvements on any Building Site, provided that such Party's rights exist pursuant to the terms of a written, fully executed, and valid lease covering such space, and provided that under the terms of such lease such Party has the current (as of any time in question) right to possession of its leased space. III. PURPOSE. The purpose of this Declaration is to protect the Owner or occupant, present or future, of each Building Site against the improper development and use of other Building Sites; to prevent -3- the erection of Improvements of unsuitable design, or those built using improper or unsuitable materials; to prevent haphazard and inharmonious Improvements; to secure and maintain sufficient setbacks from streets and adequate free spaces between structures; and, in general, to establish and maintain the values and amenities of an attractive setting for business and industry with ample open area and high quality structures and landscaping. This Declaration is further intended to complement applicable governmental and municipal regulations, and where conflicts occur, the most restrictive requirements shall be applied. IV. GENERAL COVENANTS. A. Binding Effect. The following restrictions affect and restrict the Property and said restrictions are and shall be construed as covenants running with the Property and shall be binding upon Owners of the Property or any part thereof and of persons dealing therewith and inuring to the benefit of such Owners and persons. From and after the date this Declaration is so .recorded, the Property, and each Building Site, shall be owned, held, sold, transferred, mortgaged, conveyed, leased, demised and otherwise used, developed, encumbered or disposed of by Declarant and by any subsequent Owner thereof subject to the provisions hereof. B. Recordation. This Declaration shall be recorded in the real property records of Dallas County, Texas C. Effect of Declaration. This Declaration in full, does not amend or modify, nor is it intended to amend or modify, any requirements of the respective ordinances of the City dealing with the subdividing and platting of land or the design and construction of Improvements, but is intended as additional covenants and agreements for the purposes herein set forth. D. Annexation of Additional Property. Any Party may, with the written consent of the Board, whose consent may be withheld for any reason, or no reason, or conditioned in any manner that the Board shall deem appropriate, execute and record among the real property records of Dallas County, Texas, a Supplemental Declaration (herein so called) adding additional real property to the coverage of the Declaration. Upon the recordation of any such Supplemental Declaration, the additional real property covered thereby shall thereafter be a part of the "Property" covered hereby for all purposes (except as otherwise expressly provided in such Supplemental Declaration). Notwithstanding the foregoing, for so long as Declarant shall own any portion of the Property, Declarant shall have the right to file Supplemental Declarations without obtaining the Board's consent. -4- E. Provisions of Supplemental Declaration. Any Supplemental Declaration shall set forth the conditions, restrictions, design standards, and other provisions to which the additional portions of the Property covered thereby shall be subject. Such provisions may be different than the conditions, restrictions, design standards, and provisions contained herein or in any previously filed Supplemental Declaration, but in no event shall any Supplemental Declaration modify the conditions, restrictions, design standards, or other provisions applicable to the original Property or additional Property covered by a previously filed Supplemental Declaration unless such Supplemental Declaration is prepared and approved in accordance with the amendment procedures provided for herein or in such previously filed Supplemental Declaration. Notwithstanding the foregoing, and without limitation, Declarant shall have the right at any time and from time to time to execute and record Supplemental Declarations for the express purpose of adding additional Common Areas to the provisions of this Declaration. F. Additions to Property by Merger or Consolidation. Upon a merger or consolidation of the Association with another association, its properties, rights and obligations may, by operation of law, be transferred to another surviving or consolidated association or, alternatively, the properties, rights and obligations of another association may, by operation of law, be added to the properties, rights and obligations of the Associa- tion as a surviving corporation pursuant to a merger. The surviving or consolidated association may administer the cove- nants, restrictions, design standards, and other provisions established by this Declaration and any Supplemental Declarations within the properties affected thereby together with the cove- nants, restrictions, design standards, and provisions established with respect to any other properties as one scheme. No such merger or consolidation, however, shall affect any revocation, change or addition to the covenants, restrictions, design stan- dards, and other provisions established by this Declaration or any Supplemental Declaration pertaining to the Property. G. Zoning. Any application to change the zoning (or to obtain a variance from the requirements applicable to such zoning classification) of any Building Site shall require the prior written approval of the Board. Notwithstanding anything herein to the contrary, including the preceding sentence, Declarant reserves the right to apply for a change in (or variance from) the use and zoning of any portion of the Property owned by Declarant without the approval or consent of the Board. H. Construction. 1. Materials. Ail Improvements shall be constructed of high-quality permanent materials and shall be designed to be durable and easily maintained. The outside walls of all buildings -5- shall be masonry construction, its equivalent or better, and no building may be covered with sheet or corrugated aluminum, asbestos, iron or steel except as otherwise approved by the Committee. All elevations of all buildings shall be of exposed aggregate concrete construction, or shall be finished and covered with face brick or equivalent except as otherwise approved by the Committee. 2. Exterior Equipment. Exterior mechanical and electrical equipment, including without limitation air conditioning equipment, air handling equipment, transformers, transclosures, pump houses, communication towers, microwave or communications satellite dishes, vents and fans, whether mounted on the roof or walls of any building or on the ground, shall be placed so that the predominant design lines of the building or structure continue without visual distraction or interruption. Any such equipment not screened by the building exterior walls shall be separately screened from the view of adjacent Building Sites, and from any street right-of-way. All equipment exterior to the building (roof top air handling units, flues, transformers, gas meters and piping, etc.) shall be painted to be compatible with the building. All exterior dumpsters or other refuse disposal structures or areas shall be screened from view from adjacent Building Sites and from any street right-of-way. 3. Utilities. All utilities and utility connections shall be located underground, except where (i) overhead service is specifically provided for in permanent easements located adjacent to the Building Site, and (ii) the use of such overhead service has been approved in writing by the Committee. Wherever feasible, utility connections made above ground level shall be located within buildings. Any utility connections that are above ground and not within a building, such as exposed utility boxes, shall be located so to minimize their view from adjacent Building Sites and from any street right-of-way and shall be painted to be compatible with the building. 4. Cessation of Construction. No excavation of or upon any Building Site shall be made except in conjunction with construction of an Improvement. When such Improvement is completed, all exposed openings shall be backfilled, graded and returned to original landscaped conditions. Once commenced, construction of an Improvement shall be diligently pursued to completion and shall conform to drawings approved by the Committee. Such construction may not be left in a partly finished condition any longer than is reasonably necessary. In the event construction of any Improvement on a Building Site is not diligently pursued to completion prior to the enclosure of such Improvement, the Owner, upon written demand of the Board, shall raze and remove any Improvement not enclosed, grade the Building Site to the reasonable satisfaction of the Committee and shall -6- landscape the Building Site in compliance with the requirements hereof. In the event construction of any Improvement is not diligently pursued to completion after the Improvement is enclosed, the Owner, upon written demand of the Board, shall landscape the Building Site in compliance with the requirements hereof. 5. Construction Equipment. Ail equipment used in clearing, excavating or construction on a Building Site that is not rubber-tired shall be loaded or unloaded only within the boundary lines of the Building Site. During clearing, excavating or construction, the Owner of the Building Site on which the work is performed shall cause the roads and sidewalks within or bordering on the Property to be kept clear of dirt and debris caused by such clearing, excavating or construction and shall be responsible for any damage to such roads and sidewalks. 6. Temporary Structures. No trailer, temporary building or structure of any kind shall be permitted except during construction of a permanent Improvement and, in any event, only with the prior written approval of the Committee. Such trailer, temporary building or structure shall be removed as promptly as practicable and in any event not later than thirty (30) days after the issuance by the City of a permanent certificate of occupancy, or if no certificate of occupancy is required, not later than thirty (30) days after substantial completion of such permanent Improvement. All trailers or other temporary buildings or structures shall be located on the Building Site with which they are associated. 7. Storage of Materials. Construction materials are to be stored on a Building Site in an orderly manner that will not interfere with roadway traffic. Material storage methods and locations are subject to approval by the Committee. No construction or building materials, vehicles or mobile buildings shall be located or stored within streets or rights-of-way. 8. Use by Declarant. Until Declarant has completed all of the Declarant's contemplated improvements (including, without limitation, street paving, excavation, utility lines and landscapinG) upon the Property, neither the Owners nor the Association nor the application of this Declaration shall interfere with the completion of such contemplated improvements and the sale of land and improvements. Declarant may make such use of the Common Areas as may facilitate such completion and sale, including, but not limited to maintenance of a sales office, the showing of the Property therein and the display of signs thereon and therein. Declarant shall have an easement over the Property for completion of and making improvements to any portion of the Property. Declarant shall further have the right to maintain facilities on and to use unsold portions of the Property -7- for development, marketing and related purposes, whether or not such use is otherwise permitted by other provisions of this Declaration. I. Objectionable Uses of Building Sites and Common Areas. Any use which is deemed by the Committee to be incompatible or objectionable, including without limitation any use which might produce offensive or unusual odors, fumes, dust, smoke, noise, hazardous waste or pollution, or which might produce an unusual danger of fire, explosion or other casualty, shall not be permitted. All business, production, servicing and processing shall take place within completely enclosed permanent buildings unless expressly approved by the Committee. There sh~ll be no destruction of the Common Areas, nor shall anything be kept in the Common Areas, nor shall anything be altered, constructed or planted in, or removed from the Common Areas, without the prior written consent of the Committee. J. Setback Lines. Ail Improvements shall comply with the then applicable City of Coppell zoning code with respect to setback lines. In addition, no Improvement of any kind and no part thereof shall be placed within these setback lines: 1. Front Setback. Any Improvements located on a Building Site shall have a front setback of at least thirty (30) feet unless parking facilities are located between the front property line of such Building Site and such building or structure, in which event the front setback shall be at least sixty (60) feet. 2. Side Setbacks. Minimum side setbacks shall be ten (10) feet, except when a street is at the side of a building or structure, and in that case, the setbacks set forth in subsection 1 above shall be substituted for the side setbacks set forth in this subsection 2. 3. Rear Setback. Minimum rear setbacks shall be ten (10) feet. Where a building line is indicated for rear setback on the subdivision plat, such indicated building line shall determine setback. 4. Exclusions. The following Improvements are expressly excluded from the foregoing setback restrictions: a. Structure below and covered by the ground where such structures will not interfere with provisions for underground utilities. b. Steps, walks, driveways and curbing. c. Planters, walls, fences or hedges, not to exceed 4 feet in height. -8- do berms. Landscaping, including landscaped earthen e. Other Improvements approved in writing by the Committee. 5. Setback Variances. In the event that the Committee determines that a lesser setback is desirable to achieve a special architectural design that is compatible with the character of the surrounding area, then such lesser setback may be allowed if specifically approved in writing by the Committee. K. Parking. 1. Parkinq Areas. Each Building Site shall contain all required parking facilities entirely within such Building Site, except to the extent additional parking may be required to be provided by the Owner of such Building Site pursuant to subsection 3 below. Parking on street rights-of-way, the Common Areas and any other area other than designated parking facilities is expressly prohibited. 2. Trailer Parking. Trailer parking within a Building Site shall be in designated trailer parking spaces and shall be neat and orderly at all times. 3. Required Spaces. The number of parking spaces for a Building Site shall be sufficient to accommodate all parking needs for employees, company vehicles, and visitors without the use of on-street parking. If parking needs for a Building Site increase, additional off-street parking shall be provided by the Owner as may be approved by the Committee. Declarant shall have no obligation, express or implied, to provide any such additional parking areas. 4. Parkin9 Set Back from a Street. If no building or other permanent Improvement is located between a parking facility or loading area and a street right-of-way, such parking facilities or loading areas shall not be located closer than thirty (30) feet to the property line of a Building Site. L. Off-Street Loading Areas. Provision for handling all truck service shall be totally within each Building Site. No loading areas or loading docks shall be located within forty (40) feet of the closest point of intersection of two (2) or more street rights-of-way. Loading doors may face a street right-of- way provided that the building is set back a minimum of 100 feet from the street right-of-way and that the view from surrounding Building Sites and streets is adequately screened. -9- M. Outside Storage and Displays. Outdoor storage shall be permitted only upon prior approval of the Committee, and then generally only behind a principal building or within the rear half of the Building Site if screened from view by screening walls, earth berms or plant material at least equal in height to the material being stored. Equipment and facilities for the bulk storage of liquids, petroleum products, fuels, water and similar materials shall be architecturally compatible with the building or shall be screened by an architectural facade that has been approved in writing by the Committee. N. Landscaping. 1. Generally. All open areas on each Building Site not occupied by buildings, structures, outside storage areas, street right-of-way paved areas, driveways, walkways and off- street loading areas shall be suitably graded and landscaped with lawns, trees, and shrubs. All hardscape elements (plaza and exterior furniture) shall be consistent with landscaping and the materials and details used for the buildings and parking structures on the Building Site. A landscape, grading and drainage plan must be submitted in accordance with Article V for review and approval or disapproval by the Committee. 2. Minimum Planting Required. Each Building Site shall include a minimum of one (1) four (4) inch diameter tree in frontage areas for each forty (40) lineal feet of Building Site frontage. Trees shall be grouped in clusters and oriented to harmonize with adjacent landscaping. 3. Landscape Maintenance. All landscaping on each Building Site and on any Right-of-Way Landscape Area (as defined in Section IV.N.6.) within such Building Site, shall be properly maintained by the Owner or tenant of the Building Site, which maintenance shall include removal of all trash, leaves and debris and all necessary cutting, watering, fertilizing, aerating, spraying, weed control, pruning and required replacements. 4. Lawn Sprinkler Systems. Each Building Site shall have an automatically controlled underground lawn sprinkler system to provide coverage for all landscaped areas. 5. Time. All landscaping on each Building Site shall be completed within sixty (60) days after completion of any building thereon, subject to extensions granted by the Committee for adverse weather conditions or other causes beyond the reasonable control of such Owner. -10- 6. Right-Of-Way Landscaping. (a) Declarant has installed, or may install, landscaping within or adjacent to the right-of-way of streets within or adjacent to the Property (such landscaped areas being referred to herein, collectively, as the "Right-of-Way Landscape Area") in accordance with a landscaping plan created by or on behalf of Declarant. The Association shall be responsible for the maintenance (including any re- landscaping) of the landscaping within the Right-of-Way Landscape Area; provided, however, with respect to any portion of the Right-of-Way Landscape Area located within the boundaries of a Building Site, the Owner of such Building Site shall maintain the portion of the Right-of-Way Landscape Area located within such Building Site as provided in subsection IV.N.3. above. (b) There is hereby granted an easement to the Declarant and the Association, and their respective directors, officers, agents, and employees, to enter onto any portion of the Property in order to maintain the landscaping within the Right-of-Way Landscape Area so long as such easement does not materially and adversely affect the development of any particular Building Site, or the operation of any Improvements on any such Building Site. O. Fencing. Fencing shall be permitted only with the written approval of the Committee. Fencing shall generally be limited to the rear and side yard portion of the Building Site. P. Exterior Lighting. 1. Plan. Each Building Site shall have adequate exterior lighting for its intended use, minimizing glare and without creating lighting which would be annoying to other Building Sites. An exterior lighting plan must be submitted in accordance with Article V for review and approval or disapproval by the Committee. 2. Color, Type. All exterior lighting shall be of the high pressure sodium vapor or mercury vapor type. No neon lights and no traveling, flashing or intermittent lighting of any kind shall be permitted. 3. Pole Lights. All pole mounted exterior lighting fixtures shall be on poles no higher than thirty feet (30') unless specifically approved in writing by the Committee. Pole lights shall correspond in design to pole lights used in street rights-of-way. -11- 4. Underground Wiring. Ail outside wiring for exterior pole lighting shall be installed underground. Q. signs and Graphics. All signs, visible from the exterior of any building, must be submitted for review and approval by the Committee prior to their installation. All signs shall not exceed the size permitted by the applicable ordinances of the City on the date of recording of this Declaration and shall be maintained in a safe and presentable condition at all times, including replacement of defective parts, painting, repainting, cleaning and any other necessary maintenance. The Party installing such sign shall also receive the appropriate sign permits from any governmental or quasi-governmental entities. Any sign which exceeds the size limitation set forth above and/or which constitutes advertising (as determined by the Committee in its sole discretion) shall be subject to approval by the Committee, which approval may be granted or denied in the sole and absolute discretion of the Committee. R. Conditions of Premises. Each Building Site and all structures, buildings, appurtenances, screening, fences, parking areas, driveways, outside storage areas, off-street loading areas, walks, drainage channels, signs, landscaping and other improvements of whatever nature thereon, including any portion of a Right-of-Way Landscape Area described in subsection IV.N.6. above, located within such Building Site shall be maintained by the Owner of such Building Site at all times in a safe, clean and wholesome manner and in first class condition and repair, replacements being made if necessary; including, but not limited to, (1) removal of efflorescence from masonry; (2) removal and repainting of spoiling paint; (3) repainting of damaged overhead door panels; (4) removal of rust stains caused by iron ore in precast panels; and (5) removal of rust stains caused by steel nails, bolts or anchors. In the event an Owner does not commence construction of Improvements within twelve (12) months of the date of conveyance of the Building Site to the Owner, the Owner shall landscape the Building Site with no less than an appropriate ground cover approved by the Committee, and thereafter maintain such ground cover in a clean, neat and safe condition, keeping it mowed at a height not to exceed four (4) inches until the commencement of construction of Improvements. If any Building Site is not being maintained as required, the Association may give the Owner of such Building Site written notice of the failure, and if the Owner fails to comply with this provision within fifteen (15) working days after such written notice (or within a longer period of time if the required work cannot reasonably be completed within fifteen (15) days and if the required work is commenced within said fifteen (15) day period and thereafter is continued with due diligence and dispatch), the Association through its authorized agent or agents shall have the right, but not the obligation, to enter upon the Building Site and perform~the -12- required maintenance or repairs at the expense of the Owner without any liability for damages for wrongful entry, trespass or otherwise to any person. The Association shall give written notice of the cost of such maintenance or repairs to the Owner and such cost shall be reimbursed by the Owner to the Association within ten (10) days after the date of such notice. If the amount due is not reimbursed within said period, it shall bear interest at a per annum rate ("Default Rate") equal to four percent (4%) above the rate then being charged from time to time by NCNB Texas National Bank or its successor as its "prime lending" or "base rate" of interest for short term unsecured loans and shall be considered a lien against the Building Site on which said work is performed. Such lien shall have the same attributes as the lien for assessments and special assessments set forth in Section VI.D hereof, which provisions are incorporated herein by reference, and the Association shall have identical powers and rights to enforce such lien in all respects, including, but, not limited to, the right of foreclosure. S. Common Areas and Easements. 1. Maintenance Easement. Declarant hereby reserves, for the Association and, to the extent provided in subsection IV.S.8. below, the City and their respective agents, designees, employees or contractors, the right, license and privilege to free and unrestricted access upon and across the Common Areas and each Building Site, and, upon reasonable notice, any Improvements thereon, for the purpose of performing any work the Association shall have the right to perform pursuant to the provisions of this Declaration. Each Owner, Mortgagee, and Tenant of any Building Site, by accepting title thereto or an estate therein, shall be deemed to have consented to the foregoing reservations and to have granted the foregoing rights. The Association and City shall use all reasonable efforts to avoid interfering with the normal business operations of anyone occupying such Building Sites. 2. Easement for Emergency Personnel. (a) There is hereby granted an easement to the Association, its directors, officers, agents, and employees, and to all policemen, firemen, ambulance personnel and all similar persons to enter upon the Property (i) in the exercise of the functions provided by this Declaration and the Articles, Bylaws and rules and regulations of the Association which may be adopted from time to time, (ii) in the event of emergencies, and (iii) in performance of governmental functions. -13- (b) The rights accompanying the easements provided by this subsection IV.S.2 shall be exercised only after advance notice to, and with the permission of, any Owner or Tenant directly affected thereby when not an emergency situation or a governmental function. 3. Easements of Enjoyment. Subject to the provisions of subsection IV.S.2 and S.5 hereof, every Member of the Association and any Tenants and Invitees shall have a right and easement of enjoyment in and to the Common Areas, and such easement shall be appurtenant to and shall pass with the title to every Building Site, subject to the provisions of this Declaration. 4. Conveyance of Common Facilities. Within ten (10) years from the date hereof, Declarant shall convey ownership of the Common Areas then owned by Declarant to the Association. Notwithstanding the foregoing, however, the Association shall from and after the date hereof (except as otherwise herein provided) be responsible for the operation and maintenance of all Common Areas and all costs and expenses incident thereto. 5. Extent of Easements. The rights and easements of enjoyment created hereby shall be subject to the following: (a) The right of the Association to prescribe rules and regulations for the use, enjoyment and maintenance of the Common Areas; (b) The right of the Association to sell and convey the Common Areas, or any part thereof, provided such sale or conveyance is approved by the Declarant for so long as the Declarant shall own any Building Site and by two- thirds (2/3) of the votes entitled to be cast by the Members present, voting in person or represented by valid proxy, at a meeting duly called for such purpose at which a quorum is present, written notice of which shall be given to all Members at least thirty (30) days in advance and shall set forth the purpose of the meeting; (c) The right of the Association to borrow money for the purpose of improving the Common Areas, or any part thereof, and to mortgage the Common Areas, or any part thereof; (d) The riqht of the Association to take such steps as are reasonably necessary to protect the Common Areas, or any part thereof, from foreclosure; and (e) The right of the Association to suspend the easements of enjoyment of any Member of the Association during which time any assessment levied under Article VI -14- hereof remains unpaid, and for any period not to exceed thirty (30) days for any infraction of its published rules and regulations. 6. Easements Reserved by Declarant. (a) Easements for the installation, maintenance, repair and removal of sidewalks, utilities and drainage facilities are reserved by Declarant over, under and across the Property, including the Common Areas; provided, however, that such easements shall not interfere with the operation of any Improvements completed or being constructed on any Building Site. Full right of ingress and egress shall be had by Declarant at all times over the Property for the installation, operation, maintenance, repair or removal of any sidewalk, utility or drainage facility together with the right to remove any obstruction that may be placed in such easement that would constitute interference with the use of such easement, or with the use, maintenance, operation or installation of such sidewalk, utility or drainage facility. (b) Non-exclusive easements for the benefit of Declarant are hereby declared in the designated set back areas between the building lines (designated on the Plat of Subdivision of the Property ("Plat") or in the City ordinances) and the exterior boundaries of individual Building Sites as may be necessary or convenient for the purpose of erecting, constructing, maintaining and operating utility services over, across, under and through the Property (including but not limited to public service wiring, conduits or lighting, power and telephone lines, gas lines, sanitary sewer, storm sewer and water). Said easement shall be assigned to the City and the Association and to such appropriate public agencies and utilities as the City may direct. No buildings may be located upon said easement but, subject to City ordinances and this Declaration, landscaping, parking and access drives may be located thereon. (c) Declarant hereby reserves a perpetual easement for the benefit of Declarant and the Association over and across those portions of the Property to which such benefited parties reasonably require access (i) to install and maintain landscaping within or adjacent to portions of any streets or other rights-of-way through or directly serving the Property (provided, however, that such landscape easement shall in no way create an obligation on the part of Declarant or the Association to install or maintain such landscaping), and (ii) to maintain and repair the Common Areas. (d) Declarant shall have the right, at any time and from time to time, to assign, convey and transfer in whole or in part the easements and rights reserved under the -15- provisions of this subsection IV.S.6. and to designate and limit the location of any such easements, and shall have the right to record among the real property records of Dallas County any instruments or documents evidencing such easements and rights as Declarant deems necessary; and each Owner of any Building Site agrees to execute, acknowledge and deliver, at no cost to such Owner, to Declarant, or its assigns, any such instruments or documents as Declarant may so require relating to the easements reserved herein. 7. Indemnification. If the Association, the Declarant, or any Owner, or any of their agents, employees, or contractors, (i) causes any damage to the Common Areas or to any Building Site, or to any Improvements located thereon, or (ii) causes any injury to any person utilizing the Common Areas or any Building Site, or any Improvements located thereon, which damage or injury arises in whole or in part out of the exercise of any of the easements granted by this Section IV.S, the party responsible for such damage or injury shall: (a) restore the Common Areas and/or Building Site(s) to their condition immediately preceding such entry; (b) repair any damage to any Improvements located on the Common Areas or any Building Site, and replace any such Improvements located thereon which are not capable of repair; and (c) indemnify, defend, and hold harmless the Association, the Declarant, or any Owner not responsible for such damage or injury, from any and all damages, liability, and expenses incurred by such innocent party as a result of the exercise of rights granted by such easement. 8. Rights of City. If the Association fails to reasonably perform its obligation to maintain the Common Areas as provided in this Declaration and the Association fails to commence to perform such maintenance obligations within ten (10) days following receipt by the Association of written notice ("Maintenance Notice") from the City identifying with particularity the nature and extent of such failure, the City may, at its option, elect to perform the maintenance obligations set forth in the Maintenance Notice not performed or otherwise commenced by the Association. If the City elects to perform any of the Association's maintenance obligations as set forth in the immediately preceding sentence, the Association shall indemnify and hold the City harmless from and against any and all costs, expenses, suits, demands, liabilities, damages or otherwise including attorney's fees and costs of suit, in connection with the City's performance of such maintenance obligations, except as may result from the gross negligence or willful misconduct of the City or any of its agents, -16- designees, employees or contractors. Following completion by the City of such maintenance obligations, the Association shall include the reasonable costs and expenses paid by the City in connection therewith within the amount of the next regular assessment (as described in Section VI.D below) which has an effective date of at least twenty (20) days following the date of such completion and, following payment of any such regular assessment by an Owner to the Association, the Association shall remit to the City the portion thereof attributable to the City's performance hereunder. 9. Sidewalks. If either (a) the Public Works Director of the City determines that, based upon the nature and extent of development of the Property and in order to promote the safety of pedestrian traffic within the Property as a result of such development, pedestrian sidewalks are reasonably necessary and should be constructed within all or a portion of the Property or (b) a vote of the majority of the votes entitled to be cast by the Members present, or represented by valid proxy, at a properly constituted meeting of the Association at which a quorum is present determines that sidewalks are reasonably necessary and should be constructed within all or a portion of the Property, then the Association shall construct the sidewalks within the Property which are deemed to be reasonably necessary and, notwithstanding anything to the'contrary set forth in this Declaration, including but not limited to Section VI.D., each Owner shall be liable for payment of its "Pro Rata Share" (as determined in subsection VI.D.2 below) of the costs and expenses of construction and installation of such sidewalks. Each Owner's Pro Rata Share as determined pursuant to the immediately preceding sentence shall, without further action by the Association, be deemed to be a special assessment which has been adopted pursuant to Section VI.D. and shall be payable as provided therein. V. SUBMITTAL PROCEDURES. A. Design Approval Committee. The Association shall have a Design Approval Committee ("Committee") which shall consist of three (3) members who shall be natural persons. The members of the Committee shall be appointed, elected and/or removed as follows: 1. So long as Declarant shall own any Building Site, Declarant shall have the exclusive power and right to appoint and remove the members of the Committee and to fill vacancies thereon. Members of the Committee need not be Members of the Association. 2. At such time that Declarant no longer owns any Building Site and thereafter, the Board shall have the exclusive right and power at any time and from time to time -17- to appoint and remove members of the Committee and to fill vacancies thereon. B. Submission Documents. Owners or their designated representative shall submit detailed information in writing regarding the proposed use of the Building Site including copies of all permits or applications for permits and any other plans, drawings or similar materials submitted for governmental approval and three (3) sets of construction plans, drawings, and specifications showing or stating all aspects of the proposed development, including, without limitation, the following: location of all structures, easements, street rights-of-way, and setback lines; 2. location of all walks, driveways and curb lines; layout and location of all parking areas, including location and dimensions of all spaces, circulation aisles, islands, curbs and bumpers; ¸4. layout and location of all off-street loading areas; o layout and location of all outside storage areas, including identification and size of the material to be stored and location and dimensions of all fencing and screening; all landscaping, including location, height, spread, type and number of trees and shrubs and location and type of all ground cover and lawn material, and also including the type and location of all existing plant material on the Building Site; location, height, intensity and fixture type of all exterior lighting; o location, ~size and type of all pipes, lines, conduits and appurtenant equipment and facilities for the transmission of sanitary sewage, stormwater, water, electricity, gas, telephone, steam and other utility services; 9. location, size and type of all fencing; 10. architectural floor plans, building elevation, wall sections and details of each building, including equipment located on the exterior of the building and the proposed method of screening this equipment; -18- 11. building material and color information, including samples; 12. temporary construction sign design; 13. permanent sign design (showing location, size, type and material and color information); 14. site coverage data and calculations; 15. parking data and calculations, including base data for projected needs; 16. site drainage data and calculations, including finished contour lines and spot elevations; and 17. description of proposed use. C. Preliminary Submittal. Owners or their designated representatives may submit the information required by Section V.B above in preliminary form for preliminary review by the Committee prior to producing the final documents. Such preliminary review will in no way replace the Owner's obligation to submit the detailed information required in Section V.B above and to obtain approval thereof. D. Scale and Detail. All architectural plans and construction drawings submitted shall be to a scale of not less than one inch (1") equal to sixteen feet (16'). All site plans submitted shall be to scale of not less than one inch (1") equal to fifty feet (50'). E. No Use Prior to Approval. No building, structure, sign or Improvement of any kind shall be commenced, installed, erected, placed, assembled, altered, moved onto or permitted to remain on any Building Site, nor shall any use be commenced on any Building Site, unless and until the plans, drawings and specifications for the same (including a description of the proposed use) have been approved in writing by the Committee in accordance with this Article V. F. Chan~es. No construction or use that is inconsistent with, in addition to or materially different from any previously approved plans, drawings, and specifications shall be commenced or permitted until revised construction drawings and specifications reflecting such change or addition have been approved in accordance with this Article V. -19- G. Approval or Disapproval. 1. Basis of Approval. Approval of plans and specifications shall be based, among other things, on general adequacy of dimensions, harmony of the exterior design and of location with neighboring structures and Building Sites, relation of finished grades and elevations to neighboring Building Sites, and conformity to both the specific and general intent of the restrictions, covenants, development standards and other provi- sions set forth herein, and the Declarant's general plan for improvement of the Property. Disapproval may also be based upon failure of such plans and specifications to comply with any requirement of this Declaration or because of failure to include therein any additional information reasonably requested by the Committee. 2. Design Guidelines. The Committee may develop Design Guidelines which describe recommended design practices and issues that are of special concern to the Committee. Such Design Guidelines are intended to assist the applicant in preparing drawings and specifications that will be acceptable to the Committee. The Design Guidelines need not be uniform for all Building Sites, and may be amended or waived by the Committee from time to time. 3. Failure of the Committee to Act. If the Committee fails to approve or to disapprove such plans and specifications or to reject them as being inadequate within forty-five (45) days after submittal thereof, and payment of all fees to be paid pursuant to subsection V.G.7 below, it shall be conclusively presumed that the Committee has approved such plans and specifica- tions, except that the Committee has no right or power, either by action or failure to act, to waive or grant any variances specifi- cally reserved to Declarant herein or any requirement of any governmental regulations. If plans or specifications are not sufficiently complete or are otherwise inadequate, the Committee may reject them as being inadequate or may approve or disapprove part, conditionally or unconditionally, and reject the balance. 4. Limitation of Liability. The Committee shall not be liable in damages or otherwise to anyone submitting plans and specifications for approval or to any Owner or Tenant of a Building Site 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 disapprove any plans or specifications. The approval by the Committee of any plans and specifications submitted shall not be deemed a representation or warranty by the Committee as to the adequacy, sufficiency or integrity thereof, and the Committee shall have no liability for any error, omission or deficiency set forth therein. -20- 5. Appeal to Board. After such time as Declarant no longer owns any Building Site, any action of the Committee may be appealed to the Board. The decision of the Board shall be final, conclusive and binding upon the applicant. 6. Liability for Violation. Any person, firm or corporation violating this Article V shall be liable for all costs incurred in remedying such violations, including, but not limited to, attorney's fees and court costs. 7. Fees. It is understood that all grading, drainage and utility plans submitted to the Committee for approval will be reviewed by a licensed engineer selected by the Committee in order that said plans will conform with the overall grading, drainage and utility plan for the Property. All costs and fees incurred or estimated to be incurred by the Committee in conjunction with such plan review shall be paid in advance by the party submitting said plans. It is estimated that the fee for such plan review shall be Fifty Dollars ($50.00) per acre based upon 1990 costs. In the event any party submitting plans and specifications to the Committee for review hereunder fails to pay the amount or estimated amount of such fees in advance, it shall be deemed for all purposes of this Article V that such plans and specifications have not been submitted to the Committee. VI. ADMINISTRATION. A. Authority. 1. Control. The Association's rights, duties and obligations under this Declaration shall be administered by the Board. 2. Powers and Duties of the Board. The Board, for the mutual benefit of the Members, shall have the following powers and duties: (a) To maintain or cause to be maintained the Common Areas, including, but not limited to (i) mowing, pruning, fertilizing, preservation and replacement of the landscaping (including, without limitation, the purchase of additional trees, bulbs, plants and other planting material), (ii) upkeep and maintenance of sidewalks, and (iii) upkeep and maintenance of sprinklers, sprinkler mains and laterals, sprinkler heads, equipment, water pumps, wells, signs, lighting and planting boxes; (b) To enter into contracts with Owners to provide landscape maintenance services to such Owners, with the cost of such services to be paid by the contracting Owner; -21- (c) To make and enforce reasonable rules and regulations for the operation and use of the Common Areas as specified herein and to amend such rules and regulations from time to time, provided that any rule or regulation may be amended or repealed by an instrument in writing signed by (i) the Owners holding a majority of the total eligible votes of the Members, and (ii) the Declarant for so long as Declarant shall be the Owner of any Building Site; (d) To enter into agreements or contracts with insurance companies with respect to property, liability, and other appropriate insurance coverage for the Association and the Common Areas; (e) To enter into agreements or contracts with utility companies with respect to utility installation, consumption and service matters relating to the Common Areas; and to grant permits, licenses and easements under, through or over the Common Areas for utilities, roads and other purposes reasonably necessary or useful for the proper maintenance, operation and development of the Property; (f) To borrow funds to pay costs of operating and costs of improving the Common Areas, which borrowings may be secured by a mortgage or mortgages covering all or any part of the Common Areas and by assignment or pledge of the rights of the Association against Owners who are delinquent in the payment of regular or special assessments; (g) To enter into contracts, maintain one or more bank accounts, and, generally, to have all the powers neces- sary or incident to the operation and management of the Association; (h) To sue or defend in any court of law on behalf of the Association; (i) To provide adequate reserves for repairs and replacements of the Common Areas; (j) To make available to each Owner within ninety (90) days after the end of each year an annual report and, upon the written request of two (2) of the Members, to have such report audited, at the expense of the Association, by an independent certified public accountant, which audited report shall be made available to each Member within fifteen (15) days after completion; (k) Pursuant to Section B of this Article VI, to adjust the amount of, collect and use any insurance proceeds to repair damage to or replace Common Areas; and if such -22- proceeds are insufficient to repair damage to or replace Common Areas, to assess the Members to cover any deficiency; (1) To suspend the voting and other rights of a Member for any period during which any assessment against such Member's Building Site remains delinquent; (m) To exercise for the Association all powers, duties and authority vested in or delegated to the Associa- tion and not reserved to the Members by other provisions of this Declaration, the Bylaws of the Association or the Articles of Incorporation of the Association; (n) To declare the office of a member of the Board to be vacant in the event such member shall be absent from three (3) consecutive regular meetings of the Board; (o) To employ a manager or firm to manage the affairs and property of the Association and to perform certain duties of the Board hereunder, including, without limitation, those duties with respect to calculating, levying and collecting assessments as set forth in Section D of this Article VI, to employ independent contractors or such other employees as the Board may deem necessary, and to prescribe their duties and to set their compensation; firms; (p) To retain the services of legal and accounting (q) To enforce the provisions of this Declaration and any rules and regulations made hereunder and to enjoin and/or seek damages from any Owner, Tenant or Invitee for violation of such provisions or rules; (r) To contract with any Owner (including, without limitation, the Declarant) for performance, on behalf of the Association, of services which the Association is otherwise required to perform pursuant to the terms hereof, such contracts to be at competitive rates and otherwise upon such terms and conditions and for such consideration as the Board may deem proper, advisable and in the best interest of the Association; (s) To take any and all other actions and to enter into any and all other agreements as may be necessary or proper for the fulfillment of its obligations hereunder, for the operation and protection of the Association or for the enforcement of the covenants, restrictions, design standards and other provisions set forth herein; (t) To conduct periodic inspections during the construction phase of any Improvements; -23- (u) Consistent with the then-existing zoning ordinances of the City, or upon dissolution, to dedicate or transfer all or any part of the Common Areas to any public agency, authority or utility for such purposes and subject to such conditions as may be agreed to by the Members, provided that any such dedication or transfer shall have the assent of the Declarant, for so long as it shall be an Owner of any Building Site, and two-thirds (2/3) or more of the votes, in person or by proxy, entitled to be cast by the entire membership at a meeting duly called for such purpose; and (v) To make and enforce reasonable rules and regulations applicable to the construction by any Owner of Improvements on such Owner's Building Site relating to such matters as: temporary parking of construction vehicles; storage of construction materials on such Building Site; removal of construction debris; maintenance of roads and landscaping; construction vehicle traffic; installation and connection of utilities; and water, dust, pollution and pest and rodent control. 3. Liability Limitations. (a) Neither any Member nor the Board nor the directors (or any of them) nor the officers, agents or employees of the Association or any other entity acting for or on behalf of the Association shall be personally liable for debts contracted for or otherwise incurred by the Asso- ciation or for a tort of another Member, whether or not such other Member was acting on behalf of the Association or otherwise. Neither the Declarant nor the Association, or their directors, officers, agents or employees, shall be liable for any incidental or consequential damages for failure to inspect any premises, Improvements or portions thereof or for failure to repair or maintain the same. The Declarant, the Association or any other person liable to make such repairs or maintenance shall not be liable for any personal injury or other incidental or consequential damages occasioned by any act or omission in the repair or maintenance of any premises, Improvements or portions thereof. (b) The members of the Board and the officers of the Association shall not be personally liable to the Owners or others for any mistake of judgment or for any acts or omissions made in good faith as such Board members or officers. Each member of the Board and officer of the Association shall be indemnified by the Association against all expenses and liabilities, including attorneys' fees, reasonably incurred by or imposed upon him in connection with -24- any proceeding to which he may be a party, or in which he may become involved, by reason of his being or having been a member of the Board or an officer, or any settlement thereof, whether or not he is a member of the Board or an officer at the time such expenses are incurred, except in such cases in which the member of the Board or officer is adjudged guilty of willful misfeasance or malfeasance in the performance of his duties; provided that in the event of a settlement the indemnification shall apply only if the Board approves such settlement and reimbursement. (c) The provisions of this subsection VI.A.3 shall be liberally construed for the benefit of the Members, the Board, the directors, officers, agents and employees of the Association, and all other entities acting for or on behalf of the Association. 4. Reserve Funds. The Board may establish reserve funds which may be maintained and accounted for separately from other funds maintained for annual operating expenses and may establish separate, irrevocable trust accounts in order to demonstrate that the amounts deposited therein are capital contributions and not net income to the Association. The aggregate deposits in such reserve funds shall not exceed Ten Thousand and No/100 Dollars ($10,000.00) for the first three (3) years following the establishment of such funds unless approved in advance by the Declarant and a majority of Members voting in person or by valid proxy at a meeting duly called for the purpose of giving such approval. B. Insurance, Repair and Restoration. 1. Obligation to Purchase Insurance. The Association shall be obligated to purchase, carry and maintain in force insurance, including comprehensive public liability and property damage insurance, covering any or all portions of the Common Areas, and any Improvements thereon or appurtenant thereto, for the interest of the Association, its Board, officers, agents and employees, and of all Members of the Association, in such amounts and with such endorsements and coverage as the Board shall, in its sole discretion, determine from time to time. 2. 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, the Association and the Members 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 VI.B, remaining after satisfactory completion of repair and replacement, except as may be provided to the contrary in any -25- 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. 3. Insufficient Proceeds. If the insurance proceeds are insufficient to repair or replace any loss or damage, the Board may either (a) levy a special assessment, as provided for in subsection D.3. of this Article VI, to cover the deficiency or (b) otherwise provide funds to cover such deficiency in such manner as the Board shall determine. C. Membership and Votin9 Rights. 1. Membership. Each Owner of a Building Site shall automatically, and must thereafter remain, a member in good standing of the Association, and each purchaser of a Building Site, by acceptance of conveyance thereof, covenants and agrees to become and remain a member in good standing of the Association. Membership shall be appurtenant to and may not be separated from ownership of any Building Site which is subject to assessment by the Association. No Member shall have any right or power to disclaim, terminate, or withdraw from its membership in the Association or from the any of its obligations as a Member by non- use of the Common Areas or otherwise. 2. Voting Rights. classes of voting membership: The Association shall have two (2) a. CLASS A. Class A members shall be all Members except the Declarant (except as hereinafter provided in the case of conversion of the Class B membership). Each Class A member shall be entitled to one (1) vote for each square foot of land area (or major fraction thereof) within a Building Site that said Member owns or leases within the Property. When more than one party hold the particular interest or interests, the vote for such square footage shall be exercised as said Owners determine among themselves, but in no event shall more than one (1) vote be cast with respect to any square foot or major fraction thereof as set forth above. b. CLASS B. The Class B Member shall be the Declarant. The Class B Member shall be entitled to ten (10) votes for each square foot of land area (or major fraction thereof) that Declarant owns within the Property. The Declarant's Class B voting membership shall cease and shall be converted to Class A voting membership on the happening of the earliest to occur of the following events: (1) The date on which Declarant shall have sold and conveyed eighty five percent (85~) of the total number of square feet contained in the Property, -26- including annexations thereto, to persons who are not affiliated with the Declarant; (2) December 31, 2009; or (3) Whenever the Declarant shall so elect in writing. Notwithstanding anything to the contrary in this Declaration, amendments to this subsection VI.C.2 shall only be effective upon the consent of 75% of all Class A votes and 100% of all Class B votes. 3. Voting, Quorum and Notice Requirements. a. If the Owner of any Building Site is a corporation, partnership, joint venture, trust or other entity, or if more than one Party is the Owner of any -Building Site (as tenants-in-common, joint tenants, tenants- by-the-entirety, or the like), such Owner must designate one or more persons to be the "Voting Members" with respect to such Building Site, and one or more persons to be "Alternate Voting Members," who shall exercise the rights of a Voting Member in the event of his or her unavailability. Such designation shall be made by giving written notice to the Association, and shall include the order of priority by which Alternate Voting Members shall substitute for any Voting Member in the event of his or her unavailability. An Owner may change such designation from time to time by giving written notice thereof to the Association. Any Owner that is required to designate a Voting Member hereunder may cast votes and otherwise participate at meetings of the Association only through the Voting Members or Alternate Voting Members designated in the most recent notice on record with the Association. No person who is not so designated as a Voting Member or Alternate Voting Member may exercise any such rights hereunder. b. The vote of the majority of the votes entitled to be cast by the Members present, or represented by valid proxy, at a properly constituted meeting at which a quorum is present, shall be the act of the Association, except (i) special assessments pursuant to subsection VI.D.3. hereof shall be levied only as provided in subsection VI.D.4. hereof or (ii) where a different percentage is expressly provided in this Declaration. The number of votes present at a meeting which will constitute a quorum shall be as set forth in the Bylaws of the Association, as amended from time to time. Notice requirements for all actions to be taken by the Members of the Association and the record date for the determination of the Members entitled to notice of, and to -27- vote at, each meeting, shall be set forth in the Bylaws of the Association, as the same may be amended from time to time, subject to any notice requirements set forth in this Declaration. 4. Assignment of Votin9 Rights. Any Owner may collaterally assign its voting rights to its Mortgagee as additional security, which assignment shall not be effective until written notice thereof is actually received by the Association, together with evidence of said Mortgagee's entitlement to cast said votes. Except for a collateral assignment of its voting rights to a Mortgagee, as aforesaid, no Member (other than Declarant) may assign or transfer its voting rights in the Association except in connection with a sale or transfer of the Building Site to which such voting rights relate. D. LEVYING OF ASSESSMENTS. 1. Authority. Declarant, for each Building Site owned by it, hereby covenants and agrees, and each Owner of any Building Site by acceptance of a deed therefor, whether or not it shall be so expressed in any such deed or other conveyance, shall be deemed to covenant and agree, to pay to the Association (or to an entity or agency which may be designated by the Association to receive such monies): (a) regular assessments or charges; and (b) special assessments for capital improvements or unusual or emergency matters, such assessments to be fixed, established and collected from time to time as hereinafter provided. The Association shall have the power to levy a lien against the Building Sites for payment of regular and special assessments, or for other amounts which may be owed by such Owner pursuant to the terms of this Declaration, upon and against the Owners of the Building Sites for the purposes of carrying out the obligations, duties and powers herein set forth. All assessments shall be determined on a calendar year basis. The regular and special assessments, together with interest thereon and costs of collection thereof as hereinafter provided, shall be a charge and continuing lien upon each Building Site against which each such assessment is made, which lien shall survive any transfer of title to such Building Site except as such lien may be limited by subsection 11 of this Section VI.D. 2. Procedures. Commencing with the initial annual asseSSment payable to the Association, and continuing for the next fiscal year and for each fiscal year thereafter, the Board shall estimate the costs of operation of the Association for the coming year and the same shall be assessed and each Owner shall pay its Pro Rata Share, as hereinafter defined, of such assessment quarterly on or before the date specified in subsection 5 of this Section VI.D, or as the Board shall otherwise direct. Such assessment shall take into consideration, among other things, the -28- then current costs described in subsection 14 below, estimated increases thereof and future needs of the~Association, the cost of or reserves for any contemplated repair, replacement, or renewal of specified Improvements upon the Common Areas or the personal property and facilities maintained by the Association. If the assessment proves inadequate for any reason (including non-payment of any Owner's assessment) or proves to exceed funds reasonably needed or projected to be needed, or if the Association is required to reimburse amounts to the City as provided in Section IV.S. above, then the Board may increase or decrease the assessment payable hereunder by giving written notice thereof (together with a revised estimate) to each Owner not less than ten (10) days prior to the effective date of the revised assessment. At least once each year, the Association shall deliver to each Owner a statement of actual costs for the prior year along with a reconciliation of estimated assessments with actual costs and reserves. For purposes hereof, an Owner's "Pro Rata Share" shall be a fraction, the numerator of which is the number of square feet of land within the Building Site owned or leased by the Owner, and the denominator of which is the number of total square feet of land contained in the Property, less dedicated rights-of-way and Common Areas. Any Owner shall have the right to examine the Association's records relative to any assessment provided that reasonable notice is first given and provided that said Owner bears all costs of said examination. 3. Special Assessment. In addition to the regular assessment authorized by subsection VI.D.2 above, the Association may, by two-thirds (2/3) vote of its Members as set out in subsection VI.D.4. below, and with the assent of the Declarant for so long as it shall be the Owner of any Building Site, levy at any time a special assessment for the purpose of defraying, in whole or in part, the cost of any acquisition, construction or reconstruction of Common Areas, unexpected repair or replacement of a described Improvement, including the necessary fixtures and personal property related thereto, or for any other specified purpose. Unless otherwise provided in the resolution authorizing any special assessment, each Member shall be responsible for its Pro Rata Share of each special assessment; provided, that no Member shall be obligated for more than its Pro Rata Share of any special assessment if such assessment was levied without the consent of such Member. 4. Votes Required for Special Assessment. The special assessment authorized by subsection VI.D.3 above must be approved by two-thirds (2/3) of the votes entitled to be cast by the Members present, voting in person or represented by valid proxy, at a meeting duly called for such purpose at which a quorum is present, written notice of which shall be given to all Members at least ten (10) days in advance and shall set forth the purpose of the meeting. -29- 5. Due Date of Assessments. The assessments prescribed in subsection VI.D.2. above shall be levied on a quarterly basis ("Assessment Quarter") as set forth below (each such date being referred to herein as a "Quarterly Assessment Date"): First Assessment Quarter - Second Assessment Quarter - Third Assessment Quarter - Fourth Assessment Quarter - January 15 April 15 July 15 October 15 The regular assessment for each Assessment Quarter shall be due and payable within thirty (30) days after the applicable Quarterly Assessment Date and shall be delinquent if not paid prior to the expiration of such thirty (30) day period. The due date and delinquent date of any special assessment approved pursuant to subsection IV.D.3 hereof shall be fixed in the resolution authorizing such assessment. 6. Duties of the Board with Respect to Special Assessments. In the event of the establishment of a special assessment, the Board shall compute the amount of the assessment and establish the applicable due date(s) for each assessment, and shall mail or deliver written notice of the assessment and each Owner's Pro Rata Share to every Owner subject thereto at least ten (10) days in advance of the applicable due date(s) established by the Board. The Board shall maintain a roster of the Building Sites and assessments applicable thereto which shall be kept in the office of the Association and shall be open to inspection by any Owner, and the Board shall, upon written demand, at any time furnish to any Owner liable for any assessment a certificate in writing signed by an officer of the Association setting forth whether said assessment has been paid. Such certificate shall be prima facie evidence of the payment of any assessment therein stated to have been paid. A reasonable charge may be made by the Board for the issuance of such certificates. 7. Owner's Personal Obligation for Payment of Assessments. The quarterly and special assessments provided for herein shall be the continuing personal and individual debt of the Owner of the Building Site covered by such assessments at the time when such assessment first became due, and in the case of a Building Site owned by two or more Parties, the joint and several obligation of each of such Parties. No Owner may exempt itself from liability for such assessments, but no Owner shall remain liable for assessments accruing after the consummation of a transfer of its Building Site accomplished in accordance with the terms of subsections VI.D.12 and 13 hereof. No successor Owner of a Building Site shall be individually liable for payment of any assessments which accrued prior to the date such Party became the Owner of the Building Site unless such obligation is expressly -30- assumed by the successor Owner; provided that such assessments shall continue to be a lien upon the Building Site after transfer of the Building Suite to such successor Owner as provided above. 8. Omission of Assessments. The omission by the Board, before the expiration of any Assessment Quarter, to fix the assessments hereunder for that or the next Assessment Quarter shall not be deemed a waiver or modification in any respect of the provisions of this Declaration, or a release of any Owner from the obligation to pay the assessments or any installment thereof for that or any subsequent Assessment Quarter, but the assessment fixed for the preceding Assessment Quarter shall continue until a new assessment is fixed. 9. Common Areas Exempt. The Common Areas and all portions of the Property owned by, or otherwise dedicated for public use and conveyed to and accepted by, any governmental authority shall be exempt from the assessments and liens created herein. 10. Lien and Default in Payment of Assessments. If any assessment is not paid within thirty (30) days after the due date of such assessment or any installment thereof, the assessment shall bear penalty and interest from the date of delinquency at the Default Rate. In addition, the Board in its discretion may also do any or all of the following: Impose a penalty as may be established in the Bylaws; b. Accelerate the required payment date of the entire remaining quarterly assessment; and c. Bring an action at law on behalf of the Association against the Owner personally obligated to pay the same, and/or foreclose the lien against the Building Site, and interest, costs and reasonable attorneys' fees of any such action shall be added to the amount of such assessment. No Owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the Common Areas or abandonment of the Building Site owned by such Owner. 11. Subordination of the Lien to First Mortgages. The lien of the assessments provided for herein shall be subordinate to the lien of any Mortgage to the extent provided herein. Sale or transfer of any Building Site shall not affect the assessment lien. However, the sale or transfer of any Building Site pursuant to a foreclosure of a Mortgage or such proceeding in lieu thereof shall extinguish the lien of such assessments as to payment thereof which became due prior to such sale or transfer. No sale -31- or transfer shall relieve such Building Site from liability for any assessments which thereafter become due or from the lien thereof. 12. Payment of Assessments Upon Sale or Conveyance of a Building Site. Upon the sale or conveyance of a Building Site, all unpaid assessments against an Owner levied by the Board pursuant to the terms hereof shall first be paid out of the sale price paid by the purchaser in preference over any other assessments or charges of whatever nature, except the following: (a) Assessments, liens, and charges in favor of the State of Texas and any political subdivision thereof for taxes past due and unpaid on the Building Site; and (b) Amounts due under any duly recorded Mortgage securing borrowed indebtedness to the extent that the lien created hereby is subordinated to such borrowed indebtedness. 13. Transfers. Simultaneously with the transfer of a Building Site, the Owner who transfers the Building Site shall notify the Board in writing of the name and address of the transferee, the nature of the transfer and the Building Site involved, as well as such other information relative to the transfer and the transferee as the Board may reasonably request. Such notice shall also contain an executed copy of the instrument of transfer. The provisions hereof shall apply by way of illus- tration and not in limitation to a transfer occurring by reason of a sale, gift, devise or inheritance, or by lease or by any other manner not heretofore considered. The provisions of this subsection VI.D.13 shall not apply to Declarant. 14. Use of Funds. Ail assessments received by the Association shall be used to provide for, maintain, and improve the qualities of the Property. Specifically, such funds may be expended to: (a) provide for, maintain and operate the Common Areas, including, without limitation, entrances, street rights-of-way, pathways, recreational facilities, directional and informational signs, public area lighting, park area, street medians, drainage, and any other improvements relating to the enhancement of the overall quality of the Property; (b) provide for the administration and enforcement of this Declaration, including reasonable administrative staff requirements and expenses; -32- (c) payment of premiums for hazard insurance in connection with the Common Areas and public liability insurance of the Association; (d) carrying out the duties of the Board; (e) complying with the Association's obligations under any governmental regulations; (f) paying the fees charged by the manager engaged by the Association pursuant to subsection A.2.(o) of this Article VI; (g) paying all legal and accounting fees and costs incurred by the Association in connection with the performance of its duties hereunder; and (h) fulfill any of the obligations of the Association and Declarant hereunder. 15. Bylaws. The Board shall establish, and may amend from time to time, appropriate provisions of the Bylaws for the Association through which the Association can carry out the purposes of Article VI of this Declaration. E. Enforcement. This Declaration shall operate as a covenant running with the Property, and all provisions hereof shall be enforceable by Declarant, the Association, and every Owner by a proper proceeding, either in equity or at law. Further, Declarant and the Association shall have the right to sue for or obtain an injunction, prohibitive or mandatory, to prevent the breach of or to enforce the observance of the covenants, conditions, restrictions and easements herein set forth. The failure of the Declarant or the Association to enforce any of the covenants, conditions, restrictions, reservations or easements herein set forth, at the time of any violation, shall not be deemed to be a waiver of the right of the Declarant or the Association to do so as to any subsequent violation. This Declaration may also be enforced by (a) suit to recover damages, (b) suit to enforce a lien against the Owner's Building Site, or (c) any other available remedy at law or equity. Further, Declarant and the Association are each empowered to take all immediate action it deems necessary, at the cost and expense of any Building Site Owner, to correct any violation of this Declaration relating to such Building Site, including without limitation the power to exercise the right, license, and permission to enter upon any Building Site with men, equipment, materials and other necessary articles, all without being guilty of trespass and without being subject to any liability or damage, to complete any work necessary to correct any violation of the Declaration. In the event that Declarant or the Association deems -33- it necessary to secure the services of an attorney to enforce any provision of this Declaration, the fee of such attorney and all other costs connected with the contemplated or actual legal proceedings shall be paid by the Owner of the Building Site which is the subject of the proceedings. Written notice of such costs shall be given to the Building Site Owner and such costs shall be reimbursed by the Building Site Owner within ten (10) days after the date of such notice, tf such costs remain unpaid, they shall be considered delinquent and shall constitute a lien upon the Building Site pursuant to subsection VI.D.1 above. F. Right to Amend Declaration. The Association shall have and it is hereby granted, the power to terminate or to amend, modify, or otherwise alter this Declaration and each and all of the terms and provisions hereof and each and all of the rules, covenants, easements, agreements, and restrictions herein contained, by the affirmative vote of 75~ of the eligible Class A Votes and 100~ of the eligible Class B Votes. The Declarant hereby reserves the right to amend this Declaration at any time for the purpose of correcting clerical errors or of clarification of the terms of the Declaration without consent of any other party, provided said amendments do not constitute a material and substantial change to the Declaration. VII. RIGHT TO RESUBDIVIDE AND REPLAT. A. Subdivision. Once a Building Site has been purchased from Declarant, its successors or assigns, such Building Site shall be considered as a single unit and further subdivision of all or any portion of the Building Site is prohibited unless prior written approval is given by the Declarant, for so long as Declarant shall own any portion of the Property, and thereafter by the Board. B. Replat. Each Owner of a Building Site covenants and agrees that it shall not oppose or otherwise challenge, and agrees to join in, and execute and deliver, such further instruments or documents as may be reasonably requested by Declarant or the Board in connection with, any Plat or replat of all or any portion of the Property so long as such Plat or replat does not change the boundaries of, or access to, such Building Site. VIII. RIGHT TO REPURCHASE. A. Repurchase Option. If any Owner (exclusive of Declarant or its successors or assigns) of a Building Site on which Improvements are not constructed does not, prior to the date (the "Required Construction Commencement Date") which is twelve (12} months after receipt of title to such Building Site, begin substantial and meaningful construction of a building upon said Building Site (which building shall comply with all provisions of -34- this Declaration), Declarant or its assignee ("Optionee") shall have an option to repurchase said Building Site (the Building Site in question being referred to hereinafter as the "Reconveyed Property") for a purchase price (the "Repurchase Price") equal to the lesser of (a) the purchase price paid by such Owner ("Optionor") for the Reconveyed Property or (b) the then Current Fair Market Value (hereinafter defined) of the Reconveyed Property (exclusive of any Improvements located thereon). This option to repurchase must be exercised in writing within six (6) months after the Required Construction Commencement Date. Closing of the repurchase ("Reconveyance Closing") shall take place within ninety (90) days after the exercise of the option to repurchase and shall be held at the office of Optionee or at the office of the title company selected by Optionee. At the Reconveyance Closing, Optionor shall execute and deliver any and all documents as Optionee may deem necessary to properly convey title to the Reconveyed Property to Optionee, its successors or assigns, and title shall be conveyed free of any liens, encumbrances and title exceptions other than those that existed immediately prior to the recordation of the deed of conveyance of this Reconveyed Property to'Optionor. For the purposes hereof, "substantial and meaningful construction" shall mean the commencement of construction of a component part of the building, such as the laying of a foundation of the building; and such activities as erecting stakes, unloading dirt, and erecting batter boards shall be insufficient activities for these purposes. "Current Fair Market Value" shall be an amount agreed to by Optionor and Optionee. In the event Optionor and Optionee are unable to agree upon the Current Fair Market Value within ten (10) days following Optionee's exercise of its option to effect the Reconveyance Closing, the Current Fair Market Value shall be determined by an appraisal process using the mechanics of the following subsections (i) through (v): (i) In the event Optionor or Optionee are not able to agree upon the Current Fair Market Value of the Reconveyed Property within ten (10) days after the date Optionee elects to effect the Reconveyance Closing, either party may institute arbitration proceedings to determine such Current Fair Market Value of the Reconveyed Property. To institute the arbitration procedure, the party desiring to initiate the procedure ("First Party") shall notify the other party ("Second Party") and in such notice shall designate the first arbitrator. If the first arbitrator is acceptable to the Second Party, the Second Party shall so notify the First Party within five (5) days after such notice is given and the first arbitrator shall proceed to determine the Current Fair Market Value of the Reconveyed Property within thirty (30) days thereafter. If the first arbitrator is not -35- acceptable to the Second Party, then within five (5) days after the giving of the First Party's notice, the Second Party shall designate, in a written notice to the First Party, the second arbitrator. If the Second Party fails to timely approve the first arbitrator or designate the second arbitrator, then the first arbitrator shall proceed to determine the Current Fair Market Value of the Reconveyed Property within thirty (30) days of the expiration of the five (5) day period within which the Second Party may appoint a second arbitrator. If a second arbitrator is designated, the arbitrators shall meet within five (5) days after the designation of the second arbitrator and proceed to determine the Current Fair Market Value of the Reconveyed Property within thirty (30) days of such initial meeting. If during such thirty (30) day period the two (2) arbitrators appointed as aforesaid are unable to reach agreement on the Current Fair Market Value of the Reconveyed Property: (a) if the higher of the figure designated by the arbitrators as the Current Fair Market Value of the Reconveyed Property does not exceed one hundred five percent (105%) of the lower figure, the arithmetic average of the figures shall be the Current Fair Market Value of the Reconveyed Property; or (b) in all other cases, the arbitrators shall jointly appoint a third arbitrator within five (5) days after the expiration of such thirty (30) day period, who shall make his determination of the Current Fair Market Value of the Reconveyed Property within ten (10) days following his appointment, and the agreement of any two (2) of the arbitrators shall be the decision of the arbitrators, or, if no two arbitrators agree, the arithmetic average of the two (2) closest determinations of the Current Fair Market Value of the Reconveyed Property shall be the decision of the arbitrators. A decision of the arbitrator or arbitrators shall be binding and conclusive on the parties hereto. If any arbitrator shall fail, refuse or become unable to act, a new arbitrator shall be appointed in his place following the same method as was originally followed with respect to the arbitrator to be replaced. Optionor and Optionee shall each pay the fees and expenses of the arbitrator appointed by them, as well as the fees and expenses of their respective counsel. If only one arbitrator is used or if a third arbitrator is used, the fees and expenses of such sole or third arbitrator shall be -36- borne equally by the parties. All other expenses of arbitration shall be borne equally by the parties. Ail hearings and proceedings~held and all investigations and actions taken by the arbitrators shall take place in Dallas, Texas. Any arbitrator designated to serve in accordance with the provisions of this subsection (i) shall be independent of and not affiliated with the party appointing such arbitrator and shall not have an interest in the amount determined to be the Current Fair Market Value of the Reconveyed Property. (ii) Should it be necessary to appoint a third arbitrator as provided for in subsection (i) above, and the initial two (2) arbitrators are unable to agree upon a third arbitrator within five (5) days, then either Optionor or Optionee may apply to the appropriate district court of Dallas County, Texas for the appointment of the third arbitrator. (iii) Any arbitration carried out pursuant to this Declaration shall be governed by the then applicable rules of the American Arbitration Association; provided, that regardless of any conflict with any such rules, the arbitrator(s) shall afford each of the parties a hearing and the right to submit testimony and other evidence with respect to the Current Fair Market Value of the Reconveyed Property, as well as the privilege of cross-examining any witness presented by or on behalf of the other party. (iv) In determining the Current Fair Market Value of the Reconveyed Property pursuant to this Section A, the arbitrator(s) shall apply the pertinent provisions of this Declaration without departure therefrom in any respect. The arbitrator(s) shall not have the power to add to, modify or change any of the provisions of this Declaration, but this subsection VIII.A.(iv) shall not prevent, in any appropriate case, the interpretations, construction and determination by the arbitrator(s) of the applicable provisions of this Declaration to the extent necessary in determining the Current Fair Market Value of the Reconveyed Property. (v) Any arbitrators appointed by either party or the parties shall be appraisers holding the designation of "MAI", and shall have not less -37- than ten (10) years experience in connection with the determination of real estate values in the Dallas, Texas Metropolitan Area. B. Waiver By Declarant. Notwithstanding anything to the contrary set forth herein, Declarant may, at its sole option, elect to waive or modify, as they may affect any Building Site(s), the rights granted to Declarant pursuant to this Article VIII. IX. RIGHTS OF MORTGAGEE. All Mortgagees shall have the following rights: 1. A Mortgagee, upon written request, will be given a copy of any notice of default sent by the Association to the Owner of the Building Site in which such Mortgagee has an interest. The Mortgagee will be given thirty (30) days from the date of such notice to the Mortgagee to cure such default should it so elect; provided, however, if such default shall or could result in any imminent danger to the Common Areas or to any Building Site, or any imminent danger to any person utilizing the Common Areas, or any Building Site or Improvements located thereon, then the cure period specified in this subsection 1 shall be ten (10) days (or such lesser time as the Board may determine is reasonably necessary given the nature and extent of the circumstances), rather than thirty (30) days; 2. In the event that a Mortgagee obtains title to a Building Site pursuant to the remedies provided in the Mortgage, or foreclosure of the Mortgage, or deed of assignment in lieu of foreclosure, the Mortgagee will not be liable for such Building Site's unpaid dues or charges which accrue prior to the acquisition of title to the Building Site by the Mortgagee, and the Building Site shall not be subject to any lien pursuant to subsection VI.D.1. for such Building Site's unpaid assessments or charges which accrue prior to the acquisition of title to the Building Site by the Mortgagee or the foreclosure purchaser; and 3. A Mortgagee, upon written request, shall have the right to examine the books and records of the Association upon the delivery of reasonable prior written notice. X. MISCELLANEOUS. A. Applicable Ordinances. Development of the Property shall comply with all applicable ordinances of the City, as amended from time to time, and with all laws and regulations of all other governmental agencies with jurisdiction, as amended from time to time, over the Property. -38- B. Variances. The Board is hereby authorized and empowered to grant reasonable variances from any of the provisions of this Declaration in order to overcome practical difficulties or to prevent unnecessary hardship in the application of any of the provisions herein contained. No variance granted pursuant to the authority granted herein shall constitute a waiver of any provisions of this Declaration as applied to any other person. C. Severability of Provisions. If any article, paragraph, section, subsection, 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, paragraphs, sections, subsections, sentences, clauses or phrases of this Declaration shall continue in full force and effect and shall not be affected thereby. It is hereby declared that said remaining articles, paragraphs, sections, subsections, sentences, clauses and phrases would have been and are imposed irrespective of the fact that any one or more other paragraphs, sections, subsections, sentences, clauses or phrases shall become or be illegal, null or void. D. Interpretation. This Declaration shall be ~nterpreted for the mutual benefit and protection of the Owners and Tenants of the Property and of the general public interest and in furtherance of the basic goals of this Declaration. Any discrepancy, conflict or ambiguity which may be found herein shall be resolved and determined by the Board and, in the absence of an adjudication by a court of competent jurisdiction to the contrary, such resolution and determination shall be final. E. Captions. The captions and organizational numbers and letters appearing in this Declaration are inserted only as a matter of convenience and neither in any way define, limit, construe or describe the scope or intent of this Declaration nor in any way modify or affect this Declaration. F. GOVERNING LAW. THIS DECLARATION AND THE RIGHTS OF THE OWNERS HEREUNDER SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS. G. Limitation of Liability. Neither Declarant, nor any partner of Declarant, or any partner, officer, director, agent, employee or shareholder of such partner, or of any one of them, shall have any liability of any nature with respect to any of the provisions of this Declaration or the enforcement thereof, or to any Owner, contractor, Mortgagee, Tenant or sub-tenant or other occupant of the Property arising out of or in connection with any act, error or omission of the Board, the Association and/or the Committee. -39- H. Notice. Any notice required or desired to be given under this Declaration shall be in writing and shall be deemed to have been properly served when delivered in person, regardless of receipt thereof, after deposit in the United States Mail, certified, return receipt requested, postage repaid, addressed, to an Owner, at its last known address as shown on the records of the Declarant or the Association, and to the Association, at the address to which assessments are mailed. I. Duration. This Declaration and the covenants, restrictions, design standards and provisions set forth herein shall run with and bind the Property and shall inure to the benefit of every Owner of a Building Site, including Declarant, and their respective heirs, successors, and assignees, for a term beginning on the date this Declaration is recorded and continuing through and including December 31, 2050. At such time, the covenants, restrictions, design standards and provisions herein may be extended for a period of ten (10) additional years if approved by two-thirds (2/3) of the votes entitled to be cast by the Members present, voting in person or represented by valid proxy, at a meeting duly called for such purpose at which a quorum is present, written notice of which shall be given to all Members at least thirty (30) days in advance and shall set forth the purpose of the meeting. The right of the Owners to extend such covenants and restrictions as aforesaid shall exist as long as expressed by a two-thirds (2/3) vote of said Owners. J. Amendment. Subject to the provisions of this Section J, this Declaration or any Supplemental Declaration may be amended or modified at any time prior to December 31, 2009, by the affirmative vote of Declarant, if Declarant is then the Owner of any Building Site, and fifty-one percent (51~) of the total eligible votes of the Members of the Association. From and after the earlier of the date on which Declarant no longer owns any Building Site or December 31, 2009 this Declaration may be amended or terminated at any time by the vote of seventy-five percent (75~) of the total eligible votes of the Members. Members may vote in person or by proxy at a meeting duly called for such purpose, written notice of which shall be given to all Members at least thirty (30) days in advance and shall set forth the purpose of such meeting. Any such amendment or termination shall become effective when an instrument is filed for record in the real property records of Dallas County, Texas, with the signatures of the requisite number of the Owners of the Property (and the signature of Declarant if applicable). -40- IN WITNESS WHEREOF, the undersigned have caused these presents to be duly executed this day of , 19__. DECLARANT: THE PRENTISS/COPLEY INVESTMENT GROUP, a Delaware general partnership By: Prentiss Property Investments, L.P., a Delaware limited partnership, its managing venturer By: Prentiss Property Investments, Inc., a Delaware corporation, its general partner By: Name: Title: STATE OF TEXAS § COUNTY OF DALLAS § This instrument was executed before me, the undersigned notary public, on , 19 by , the of Prentiss Proper'ty Investments, Inc., a Delaware corporation, the general partner of Prentiss Property Investments, L.P., a Delaware limited partnership, the managing venturer of The Prentiss/Copley Investment Group, a Delaware general partnership, in the capacity set forth. Notary Public in and for the State of Texas My Commission Expires: Notary Printed Name: wr~/009~0/0326, doc $/PWReSCO¥CO -41- EXHIBIT A Legal description of Property -42-