HomeMy WebLinkAboutResolution No. 2014-042CITY OF THE COLONY, TEXAS
RESOLUTION NO. 2014-042
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE
COLONY, TEXAS, AUTHORIZING AND APPROVING THE
EXECUTION OF THE DECLARATION OF COVENANTS,
CONDITIONS, AND RESTRICTIONS, WEST 25 AT GRANDSCAPE,
THE COLONY, DENTON COUNTY, TEXAS, ATTACHED HERETO AS
EXHIBIT A, ON AN APPROXIMATELY 30.779 -ACRE TRACT OF
LAND; AND PROVIDING FOR AN IMMEDIATE EFFECTIVE DATE.
WHEREAS, The Colony Local Development Corporation (hereinafter referred to as
"LDC") has been created and organized as a public, nonprofit local government corporation
incorporated pursuant to Subchapter D of Chapter 431, Texas Transportation Code, as amended
to aid, assist and act on behalf of the City of The Colony, Texas (hereinafter referred to as the
"City") in the performance of the City's governmental functions; and
WHEREAS, the LDC is the sole owner of the approximately 30.779 acres of land
subject to the Declaration of Covenants, Conditions, and Restrictions, West 25 at Grandscape,
The Colony, Denton County, Texas (hereinafter referred to as the "CCR's"), a copy of which is
attached hereto as Exhibit A; and
WHEREAS, on or about July 15, 2014, the Board of Directors of the LDC approved the
CCR's, a copy of which is attached hereto as Exhibit A; and
WHEREAS, the City Council for the City of The Colony, Texas, finds and determines it
is in the best interest of the City of The Colony, Texas, to approve the CCR's, a copy of which is
attached hereto as Exhibit A.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF THE COLONY, TEXAS, THAT:
SECTION 1. The findings set forth above are hereby found to be true and correct findings
of the City and are incorporated into the body of this Resolution as if fully set forth herein.
SECTION 2. The City Council of the City of The Colony, Texas, does hereby approve
and authorize the President of the LDC to execute the CCR's, a copy of which is attached hereto
as Exhibit A, and is incorporated herein for all purposes.
SECTION 3. If any section, article paragraph, sentence, clause, phrase or word in this
Resolution, or application thereto to any persons or circumstances, is held invalid or
unconstitutional by a Court of competent jurisdiction, such holding shall not affect the validity of
the remaining portions of this Resolution; and the City Council hereby declares it would have
passed such remaining portions of this Resolution despite such invalidity, which remaining portions
shall remain in full force and effect.
SECTION 4. This Resolution shall become effective immediately upon passage.
PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF THE
COLONY, TEXAS, THIS THE 15th day of JULY, 2014.
J McCou ,Mayor
ATT )ST
Christie Wilson, City Secretary
APPROVED AS TO FORM:
R'�. of ............
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••7'EXP�
ExhibitA
Declaration of Covenants, Conditions and Restrictions
West 25 at Grandscape
The Colony, Denton County, Texas
[for an approximately 30.779 acre tract of land]
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
WEST 25 AT GRANDSCAPE
THE COLONY, DENTON COUNTY, TEXAS
2613833 v8 (79024.00002.002)
TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS.......................................................................................................... 1
1.01 Access Drives................................................................................................................... 1
1.02 Building............................................................................................................................1
1.03 City...................................................................................................................................1
1.04 Common Areas................................................................................................................ 2
1.05 Common Facilities........................................................................................................... 2
1.06 Declarant..........................................................................................................................2
1.07 Declaration....................................................................................................................... 2
1.08 Force Majeure.................................................................................................................. 2
1.09 Foreclosure.......................................................................................................................3
1.10 Grandscape.......................................................................................................................3
1.11 Improvements.................................................................................................................. 3
1.12 Land................................................................................................................................. 3
1.13 Mortgage.......................................................................................................................... 3
1.14 Mortgagee........................................................................................................................ 3
1.15 Operator........................................................................................................................... 3
1.16 Owner...............................................................................................................................3
1.17 Parcel................................................................................................................................3
1.18 PDD.................................................................................................................................. 3
1.19 Permissible Building Areas.............................................................................................. 3
1.20 Permittees.........................................................................................................................4
1.21 Person...............................................................................................................................4
1.22 Prohibited Uses................................................................................................................ 4
1.23 Roads................................................................................................................................4
1.24 Rules and Regulations...................................................................................................... 4
1.25 Shopping Center............................................................................................................... 4
1.26 Site Plan........................................................................................................................... 4
1.27 State..................................................................................................................................4
1.28 Supplemental Declaration................................................................................................ 4
1.29 Term................................................................................................................................. 4
1.30 Water Detention Parcel.................................................................................................... 4
ARTICLEII. LAND USE.............................................................................................................. 5
2.01
Permitted and Prohibited Uses......................................................................................... 5
2.02
No Interference With Common Areas.............................................................................
9
2.03
Amendments to Site Plan................................................................................................. 9
2.04
Easements........................................................................................................................ 9
2.05
Maintenance of Parcels..................................................................................................
12
2.06
Rules and Regulations....................................................................................................
12
i 2613833 v8 (79024.00002.002)
ARTICLE III. COMMON AREAS.............................................................................................. 13
3.01 Temporary Use of Common Areas During Construction and For Maintenance and
Repair............................................................................................................................. 13
3.02 Barriers and Traffic Control........................................................................................... 13
3.03 Damage, Destruction or Condemnation......................................................................... 13
3.04 Responsibility for Maintenance..................................................................................... 14
3.05 Lighting..........................................................................................................................15
3.06 Common Area Liability Insurance................................................................................. 15
3.07 Common Area Expenses................................................................................................ 16
3.08 Limitation on Liability................................................................................................... 16
ARTICLE IV. BUILDING DESIGN AND CONSTRUCTION.................................................. 16
4.01 Building Design and Construction ............................................
4.02 Building Height.............................................................................................................. 18
4.03 Location and Number of Buildings................................................................................ 18
4.04 Mechanic's Liens............................................................................................................ 18
4.05 Insurance........................................................................................................................ 19
4.06 Indemnification.............................................................................................................. 21
4.07 Waiver of Subrogation................................................................................................... 21
4.08 Damage to or Destruction of Buildings......................................................................... 21
4.09 Eminent Domain............................................................................................................ 21
ARTICLE V. SHOPPING CENTER SIGNS............................................................................... 22
ARTICLE VI. MORTGAGES SUBORDINATE TO DECLARATION ..................................... 22
ARTICLE VII. APPROVALS...................................................................................................... 23
ARTICLE VIII. REMEDIES........................................................................................................ 23
8.01 Default of Operator........................................................................................................ 23
8.02 Right to Cure Defaults................................................................................................... 23
8.03 Other Remedies.............................................................................................................. 24
8.04 Attorneys' Fees............................................................................................................... 24
8.05 Interest............................................................................................................................ 24
ARTICLE IX. DEVELOPMENT RIGHTS................................................................................. 24
9.01 Development Rights and Special Declarant Rights ....................................................... 24
9.02 Phasing of Development Rights..................................................................................... 26
ARTICLE X. MISCELLANEOUS.............................................................................................. 26
10.01 Obligations of Declaration............................................................................................. 26
10.02 No Waiver...................................................................................................................... 26
10.03 No Termination For Breach........................................................................................... 27
10.04 No Dedication to Public................................................................................................. 27
10.05 Amendment, Modification or Termination.................................................................... 27
ii 2613833 v8 (79024.00002.002)
10.06 Variances........................................................................................................................27
10.07 Term of Declaration....................................................................................................... 28
10.08 Estoppel Certificate........................................................................................................ 28
10.09 Governing Law.............................................................................................................. 28
10.10 Headings........................................................................................................................ 28
10.11 No Partnership............................................................................................................... 28
10.12 Force Majeure................................................................................................................ 28
10.13 Hazardous Substances.................................................................................................... 28
10.14 Notices........................................................................................................................... 29
10.15 Sales Tax Reimbursements............................................................................................ 30
10.16 Assignment of Declarant Rights.................................................................................... 30
10.17 Gift Card Program.......................................................................................................... 31
10.18 Intellectual Property Rights........................................................................................... 31
Exhibit "A" - Legal Description of the Land
Exhibit "B" - Site Plan of Shopping Center
Exhibit "C" - Rules and Regulations - General and Office
Exhibit "D" - Landscaping Materials Example
Exhibit "E" - Grandscape Design Criteria — West 25 Building Standards
Exhibit "F" - Grandscape Design Criteria — West 25 Additional Requirements for
Hotel/Motel
iii 2613833 v8 (79024.00002.002)
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
This DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
(this "Declaration") is made as of the /5'day of fi , 2014, by THE COLONY
LOCAL DEVELOPMENT CORPORATION, a Tex0s non-profit corporation ("Original
Declarant").
Preliminary Statements
The following preliminary statements are a material part of this Declaration:
A. Original Declarant is the owner of the Land. Original Declarant intends to convey
all or any portion of the Land to LMG VENTURES, LLC, a Texas limited liability company, or
its affiliate ("LMG") or other third parties and requires as a condition of such conveyance that
the Land be developed as the Shopping Center (hereinafter defined) substantially as depicted on
the Site Plan (hereinafter defined). Upon the transfer of title to all or any portion of the Land to
LMG, then for all purposes under this Declaration LMG shall become "Declarant". Until such
time, the Original Declarant shall be understood to be "Declarant" hereunder.
B. The Land is, and the Shopping Center shall be, within and part of the planned
development district known as "Grandscape," in the City of The Colony, Denton County, Texas.
C. Declarant desires to subject the Shopping Center to the covenants, conditions and
restrictions set forth in this Declaration and to establish the easements described in this
Declaration for the mutual benefit of Declarant and Declarant's successors, assigns, mortgagees
and tenants.
D. Capitalized terms used in the foregoing preliminary statements have the meanings
set forth in Article I below.
ARTICTR T_
DEFINITIONS
For purposes of this Declaration, the following terms shall, unless otherwise indicated,
have the following meanings and the use of the singular shall include the plural:
1.01 Access Drives: The driveways, drive lanes, fire lanes and service roads within
Parcels of the Shopping Center, and the curb cuts and similar structures and facilities related to
and part of such driveways, drive lanes, fire lanes and service roads (but not including the
Roads).
1.02 Building: The main portion of any structure built for permanent use on the Land
within the limits of any "Permissible Building Area" stipulated in the Site Plan, and all
projections or extensions thereof, including, but not limited to, garages, outside platforms and
docks, carports, canopies, and porches approved by Declarant.
1.03 City: The City of The Colony, Texas.
2613833 v8 (79024.00002.002)
1.04 Common Areas: All portions of the Shopping Center located beyond the exterior
limits of the Buildings in the Shopping Center, as such areas may be designated and modified
from time to time pursuant to the terms of this Declaration, exclusive of any service or other area
that is limited to use by one or more, but fewer than all, Operators and their respective
Permittees, as indicated on the Site Plan or as otherwise established by Declarant from time to
time. The general term "Common Areas" includes, without limitation, the Roads (unless and
until dedicated to public use and accepted for maintenance by the City), the Access Drives, all
parking areas (provided, however, that each Parcel shall be required to "self park" and there shall
be no right or easement to cross -park on the Parcel of another Owner), landscape areas, aisles,
curb cuts, walkways, sidewalks, loading areas (unless indicated on the Site Plan to the contrary),
trash facilities, lighting facilities (if used to illuminate the Common Areas), common signage,
common utility, mechanical, telephone and electric facilities and related service areas and
enclosures, service access areas and hallways, roofs, surface drainage facilities, traffic control
signs and fences, water features, above and below ground storm -water detention areas
(including, without limitation, the Water Detention Parcel), and any other portion of the
Shopping Center intended for the benefit of all Operators, and their respective guests, employees,
contractors, vendors, suppliers, agents and invitees. Notwithstanding the foregoing, if the
operation of any Building within the Shopping Center on any Parcel not owned by Declarant, or
the operation of the demised premises under any lease for any Building or portion thereof on any
Parcel owned by Declarant, includes an "outdoor events area" (such as, but not limited to, a pool
and/or spa and related amenities) or any space limited to use for outdoor seating for customers
only of specified restaurants and/or other food service businesses, then "Common Areas" as that
term is used in this Declaration in the context of that Parcel shall mean all portions of that Parcel
located outside the exterior walls of the Building or demised premises on that Parcel, other than
any such "outdoor events area" or space used for outdoor seating for customers only of specified
restaurants and/or other food service businesses on that Parcel.
1.05 Common Facilities: All (i) Improvements constructed or installed from time to
time in, on, over, under, through or across the Common Areas, and (ii) utility facilities
constructed or installed from time to time in, on, over, under, through or across the Common
Areas.
1.06 Declarant: Original Declarant, until such time as all or any portion of the Land is
conveyed to LMG, then LMG for so long as such company is the Owner of any portion of the
Shopping Center, after which the term "Declarant" shall mean the party to whom LMG assigns
its rights as Declarant under this Declaration in an instrument filed in the Real Property Records
of Denton County, Texas.
1.07 Declaration: This Declaration, as it may be amended, modified, supplemented,
expanded, superseded, replaced, renewed and/or extended by Declarant, from time to time or at
any time.
1.08 Force Majeure: As to any Person, strikes, lockouts, inability to procure materials
or permits, power failure, acts of God, governmental restrictions, civil commotion, terrorism,
war, fire, unavoidable casualty, unusually severe weather or other causes beyond the control of
that Person (provided, however, that lack of adequate funds or financial inability to perform shall
not be deemed to be a cause beyond the control of such Person).
2 2613833 A (79024.00002.002)
1.09 Foreclosure: (i) the judicial foreclosure of a Mortgage; (ii) the exercise of a
power of sale contained in any Mortgage; (iii) conveyance of the property encumbered by a
Mortgage in lieu of foreclosure thereof; or (iv) any action commenced or taken by a lessor to
regain possession or control of property leased under a sale/leaseback.
1.10 Grandscape: The planned development district authorized and established by the
Ordinance (hereinafter defined) for retail, restaurant, entertainment, commercial, office, hotel
and other uses permitted by the Ordinance, and of which the Shopping Center is a part.
1.11 Improvements: Any Building, structure or other improvement of any kind or
nature whatsoever in, on, over, under, through or across the Land, whether permanent or
temporary, stationary or moveable, or above, on or below ground level, including, without
limitation, all land preparation or excavation, landscaping, buildings (whether fully or partially
enclosed), parking structures, parking areas, paving, site improvements, trackage, fences, walls,
exterior screening, poles, towers, antenna, aerials, lighting, driveways, ponds, lakes, fountains,
decks, benches and other exterior furniture, walkways, jogging paths, utility facilities, signs,
exterior communications equipment and facilities, and any construction, alteration or other
activity that affects the exterior color or appearance of any Building or other structure.
1.12 Land: The land described on Exhibit "A" attached to this Declaration and
incorporated herein by this reference.
1.13 Mortgage: Any mortgage or deed of trust, or any leasehold mortgage, between
Declarant or any Operator, as applicable, and any third party institutional lender (or its trustee),
filed in the Real Property Records of Denton County, Texas, encumbering any real property
interest within the Shopping Center.
1.14 Mortgagee: The mortgagee, beneficiary or grantee, as applicable, under any
Mortgage.
1.15 Operator: Any Owner, tenant, subtenant, occupant, licensee or other Person that
operates a business within the Shopping Center that is permitted by this Declaration.
1.16 Owner: Any Person that is the record owner of fee simple title to any part of the
Shopping Center, according to an instrument of conveyance filed in the Real Property Records of
Denton County, Texas, other than any Roads that have been dedicated to public use and accepted
for maintenance purposes by the City.
1.17 Parcel: Any portion of the Shopping Center designated as a legally subdivided lot
by recorded plat, or designated on the Site Plan as a lot or parcel, or as otherwise designated by
Declarant from time to time.
1.18 PDD: The planned development district established by City Ordinance No. 2011-
1927, duly passed and adopted by the City Council of the City on November 15, 2011 (the
"Ordinance").
1.19 Permissible Building_ Areas: Those areas within the building limit lines depicted
as the "Permissible Building Areas" on the Site Plan attached as Exhibit "B" to this Declaration,
3 2613833 v8 (79024.00002.002)
as the Site Plan may be amended and superseded from time to time or as otherwise established
by Declarant by written variance or otherwise.
1.20 Permittees: All Operators and the officers, directors, employees, agents,
contractors, customers, vendors, suppliers, visitors, guests, invitees, licensees, tenants,
subtenants, and concessionaires of Operators and other persons who have business with
Operators in the Shopping Center insofar as their activities relate to the intended use of the
Shopping Center.
1.21 Person: A natural person, partnership, joint venture, co -tenancy, association,
corporation, limited liability company, business trust, real estate investment trust, trust, banking
association, federal or state savings and loan institution, or any other legal entity, whether or not
a party hereto, but specifically including Declarant.
1.22 Prohibited Uses: As defined in Section 2.01(b).
1.23 Roads: The roads identified and designated on the Site Plan as Nebraska
Furniture Mart Drive and Bargain Way Drive, whether public or private, and related curb cuts
and similar structures and facilities, to be constructed within the Shopping Center.
1.24 Rules and Regulations: The Rules and Regulations attached hereto as
Exhibit "C".
1.25 Shopping Center: The shopping center to be developed on the Land generally in
accordance with the Site Plan including, without limitation, the Land and all Improvements,
which Shopping Center shall be known as "West 25 at Grandscape."
1.26 Site Plan: The initial site plan for the Shopping Center attached to this
Declaration as Exhibit "B" and incorporated into this Declaration for all purposes, as such site
plan may be amended, modified, supplemented, expanded, superseded or replaced by Declarant,
from time to time, or at any time.
1.27 State: The State of Texas.
1.28 Supplemental Declaration: An instrument executed by Declarant and filed in the
Real Property Records of Denton County, Texas by which, subject to the limitations of
Section 10.05 below, Declarant may subject all or any portion of the Shopping Center to
additional covenants, conditions and restrictions.
1.29 Term: The time period during which this Declaration shall continue in full force
and effect, including the Initial Term and any Extension Terms, as such terms are defined in
Section 10.07.
1.30 Water Detention Parcel: To the extent required by applicable law or
governmental authority, the parcel designated on the Site Plan as the location for the water
detention basin or pond that may be constructed by Declarant (or that may already exist) for the
benefit of the Shopping Center and other properties. Any costs associated with the ownership
(including ad valorem taxes and insurance), operation, maintenance, repair and replacement of
4 2613833 A (79024.00002.002)
the Water Detention Parcel and associated and ancillary lines, equipment, facilities and
appurtenances, if any, shall be deemed Common Area Expenses for purposes of this Declaration.
To the extent said water detention facility may be required by applicable law or governmental
authority, Declarant reserves the right to relocate the Water Detention Parcel within the
Shopping Center or Grandscape, as applicable, provided such relocation does not materially
adversely impact storm water drainage service to any Parcel.
ARTICLE II.
T.ANTI TTQF
2.01 Permitted and Prohibited Uses.
(a) Except as otherwise provided in this Declaration, the Shopping Center and
any portion thereof shall be used only for the construction, operation and maintenance
thereon of retail businesses, restaurants, entertainment establishments, financial
institutions, professional offices, general business offices, related facilities, one or more
hotels (as and where designated by Declarant) and service businesses common to
commercial developments of a similar nature, and for Common Areas relating to and
necessary to the operation of the foregoing. In no event shall any portion of the Shopping
Center be used or operated for any use or purpose and/or by any Operator which is not
consistent and compatible with the terms and provisions of this Declaration or that is
prohibited by applicable deed restrictions or governmental laws, codes, ordinances, rules
or regulations.
(b) During the Term of this Declaration, no portion of the Shopping Center
shall be leased, rented, occupied, used or permitted to be occupied or used by any person
or entity, for any of the prohibited purposes set forth herein below (collectively, the
"Prohibited Uses"), except as expressly set forth otherwise in this Section 2.01(b):
(i) A bar, pub, nightclub, music hall, or disco serving alcohol; except
(A) as part of and incidental to the operation of a permitted hotel, or (B) as
incidental to the operation of a permitted restaurant, which restaurant devotes not
more than fifty percent (50%) of its space to, and derives not more than fifty
percent (50%) of its gross receipts from, the sale of alcoholic beverages;
(ii) a bingo parlor;
(iii) a flea market;
(iv) a massage parlor, provided, however, that the foregoing shall not
prohibit the operation of first class, therapeutic massage and holistic health and
spa services, such as "Massage Envy";
(v) a funeral home, mortuary, crematorium, funeral product sales, or
other such use;
5 2613833 v8 (79024.00002.002)
(vi) a so called "head shop", a facility for the sale of paraphernalia for
use with illicit drugs;
(vii) an adult type bookstore or other establishment selling, renting,
displaying or exhibiting pornographic or obscene materials (including without
limitation: magazines, books, movies, videos, photographs or so called "sexual
toys") or providing adult type entertainment or activities (including, without
limitation, any displays or activities of a variety involving, exhibiting or depicting
sexual themes, nudity or lewd acts); provided, however, that the foregoing shall
not prohibit the operation of a bookstore or video or music store which carries a
broad inventory of books or videos directed toward the interest of the general
public (as opposed to a specific segment thereof); and provided, further, that a
hotel shall be permitted to include "adult" content on its in -room television
system, consistent with hotel industry practice, even if such content might
otherwise be deemed pornographic;
(viii) any gambling facility or operation, including but not limited to off-
track or sports betting parlor, the conduct of table games involving wagering, such
as black jack or poker, or a facility engaged in the actual use of slot machines,
video poker/black-jack/keno machines, or similar devices for wagering; or a
bingo hall. Notwithstanding the foregoing, this prohibition shall not apply to
governmental sponsored gambling activities, or charitable gambling activities, so
long as such governmental and/or charitable activities are incidental to the
business operation being conducted by the Operator; further, the foregoing shall
not prohibit a restaurant or entertainment center that features entertainment
components, including games of chance (including, without limitation, bowling
lanes, arcade games, pool tables and similar features), including but not limited to
Chuck E. Cheese's, Dave & Buster's, SpeedZone, Shenaniganz, Main Event, or a
similar facility;
(ix) a carnival, amusement park or circus;
(x) auto repair or service or body shop; provided, however, nothing
shall prohibit a national or regional electronics or appliance store similar to
Conn's, Car Toys, or Best Buy from installing car stereos or other mobile
electronic equipment in vehicles consistent with such retailer's other stores;
(xi) the parking of motor vehicles that contain vehicle wraps, graphics,
mobile billboards, or large banner advertising, if such vehicles are parked at the
Shopping Center for the primary purpose of advertising an Operator's business at
the Shopping Center; provided, however, the foregoing shall not prohibit a
showroom for or the promotional display of Motor Vehicles (hereinafter defined)
permitted under Section 2.01(b)(xii) below;
(xii) the sale or rental of new or used motor vehicles, trailers, boats,
recreational vehicles, or mobile homes (collectively, "Motor Vehicles"); provided,
however, nothing shall prohibit the indoor or outdoor promotional display of up to
6 2613833 v8 (79024.00002.002)
five (5) new Motor Vehicles and/or a showroom for the display and sale only of
up to ten (10) new Motor Vehicles, so long as the foregoing has been approved by
Declarant and is consistent with the operation of a first-class commercial
development;
(xiii) a facility for the sale or rental of used goods (including thrift
shops, surplus, secondhand or consignment stores); provided, however, that the
foregoing shall not prohibit (A) an Operator of a sporting goods store from selling
used sporting goods, including used golf clubs, such as "Play It Again Sports" or
(B) an Operator from selling used books, including a used book store such as
"Half Price Books";
(xiv) an animal clinic or facility permitting the boarding of animals;
provided, however, nothing shall prohibit a national or regional pet store such as
PetSmart or Petco from operating in a manner consistent with such retailer's other
stores, including the boarding of animals and providing veterinary services by
Petco and PetSmart;
(xv) a house of worship or church; provided, however, that worship or
religious services shall be permitted in hotel ballrooms or other meeting rooms
available for rent or hire, provided such use is ancillary to the primary use of the
hotel building and such use is on a temporary basis and limited in duration;
(xvi) any unlawful use or any business or use which constitutes a public
or private nuisance, or which creates a fire, explosive or other hazard, or which
emits offensive odors, fumes, dust or vapors or emits loud noises or sounds;
provided, however, (A) normal and customary odors from restaurants or other
similar food operations or other approved uses shall be deemed not to create
conditions prohibited hereunder, (B) outdoor customer calling systems used by
restaurants or other similar food operations shall be deemed not to be an
obnoxious noise or sound, and (C) the use of any radio, television, loudspeaker,
amplifier or other sound system (whether indoors or outdoors) by any Operator
shall be deemed to not be an obnoxious or offensive noise or sound so long as the
same is permitted by law and does not constitute a nuisance or unreasonably
disturb or endanger other Operators of the Shopping Center or unreasonably
interfere with their use of their respective premises;
(xvii) any mobile home park, trailer court, labor camp, junkyard or
stockyard except that
(A) this provision shall not prohibit the temporary use of
construction trailers during periods of construction, reconstruction, or
maintenance, provided, however, that at least one (1) day prior to the
opening by the first (1st) Operator of the Shopping Center to open for
business to the public, any construction trailer must be parked at the
location in the Shopping Center reasonably designated by Declarant; and
2613833 v8 (79024.00002.002)
(B) prior to an Operator's opening for business, such Operator
shall have the right for a period of not more than forty-five (45) business
days prior to such opening to park a trailer in the Common Area to the rear
of its store (1) as permitted by law, (2) so as not to occupy any parking
spaces, and (3) so as not to interfere with the ingress, egress, loading or
unloading of any other Operator, and (4) at a location as may be
determined by Declarant, to use such trailer for the purpose of
interviewing and training prospective employees;
(xviii) any dumping, transfer, disposing, incineration or reduction of
garbage (exclusive of screened garbage compactors located near the rear of any
building);
(xix) any laundry or dry cleaning plant or laundromat; provided,
however, this prohibition shall not be applicable to on-site service oriented to
drop-off, pick-up and delivery by the ultimate consumer, including nominal
supporting facilities, as the same may be found in first-class commercial
developments in The Colony, Texas, metropolitan area; and provided, further, that
on-site laundry services and drop-off, pick-up and delivery dry cleaning services
(but not a dry cleaning plant), as well as washing machines and dryers for use by
guests, shall be permitted in a hotel, provided such uses are ancillary to the
primary hotel use of the building;
(xx) any store that conducts "fire sales", bankruptcy sales (except
pursuant to court order), auctions, auction house operation, fictitious going -out -
of -business sale, lost -our -lease sale or similarly advertised event or similar sales;
(xxi) any pool hall, dance hall, discotheque, skating rink or facility,
game arcade, or tattoo parlor; provided, however, the foregoing shall not prohibit
a restaurant or entertainment center that features entertainment components
(including, without limitation, dancing, bowling lanes, arcade games, pool tables,
outdoor go kart tracks with electric go karts, and similar features) such as Chuck
E. Cheese's, Dave & Buster's, SpeedZone, Shenaniganz, Cinergy, Main Event, or
a similar facility;
(xxii) any living quarters, or apartments (except as part of a permitted
hotel approved by Declarant);
(xxiii) for industrial or manufacturing purposes, or for any assembling,
distilling, refining, smelting, agricultural, or mining operation (other than existing
agricultural operations and subsurface mining operations);
(xxiv) any pawn shop; or
(xxv) any store or retail operation which devotes more than fifteen
percent (15%) of its retail selling space within its store (in the aggregate) to any
one or more of the following product categories or derives more than fifteen
percent (15%) of its total gross sales from the sale of any one or more of the
8 2613833 v8 (79024.00002.002)
following product categories: (A) flooring (including without limitation, carpet,
ceramics, linoleum and wood products), (B) major appliances (washers, dryers,
refrigerators, ovens, ranges, hoods, cooktops and similar appliances),
(C) furniture, and (D) major electronics.
2.02 No Interference With Common Areas. No use of any Parcel having multiple
Operators shall be made by any Operator which shall unreasonably interfere with the use of other
Operators conducting businesses on that Parcel or impede the free flow of vehicular or pedestrian
traffic thereon. Notwithstanding the foregoing or anything in this Declaration which may be, or
may appear to be, to the contrary, and subject to applicable law, each Operator within a Parcel
having multiple Operators shall have the right to conduct sidewalk sales on the sidewalks
immediately in front of their respective premises only; provided, however, that, except as
otherwise approved by Declarant, (i) such sales shall be conducted at all times in a manner
consistent with first-class commercial developments in the metropolitan area of The Colony,
Texas, and (ii) such sales do not interfere with or disrupt the normal business operations of other
Operators on that Parcel, normal pedestrian access, the visibility of any other Operator's premises
or any signage thereon, or the use of the Common Areas by others as set forth in this
Declaration. For purposes of clarification, neither the outdoor display of merchandise, without
outdoor consummation of a purchase transaction, nor outdoor restaurant seating shall be deemed
a "sidewalk sale" for purposes of the immediately preceding sentence of this Section 2.02. The
foregoing clarification, however, shall not be deemed (x) to authorize, in and of itself, any
Operator to conduct outdoor display or seating or (y) to limit or modify any requirements,
restrictions or prohibitions on outdoor use as may be contained in a lease or other occupancy
agreement with an Operator or otherwise applicable to such use under this Declaration.
2.03 Amendments to Site Plan. Subject to the City's approval (if required under
applicable law), and subject to the limitation provided below in this Section 2.03 with regard to
other owners, Declarant may amend and replace the Site Plan, from time to time, and at any
time, in any manner consistent with the statement of general purpose set forth in Preliminary
Statements of this Declaration, including any amendments that: (i) add to, subtract from or
change the boundaries of the Shopping Center or any Parcel within the Shopping Center; or
(ii) add to, subtract from or change the boundaries of any Common Areas; or (iii) designate
particular design and/or construction requirements and standards for specific areas within the
Shopping Center. If any Parcel is owned by an Owner other than Declarant, then Declarant shall
be required to obtain the prior written consent to any amendment or replacement of the Site Plan
by any Owner whose Parcel would be directly affected by the proposed amendment or
replacement of the Site Plan. Subject to the foregoing, in the event that Declarant so amends the
Site Plan, Declarant shall be entitled, unilaterally and without the consent of any Operator or
other Person, to amend this Declaration for the purpose of replacing the then -existing Site Plan
attached hereto as Exhibit "B" with a copy of the new, amended Site Plan.
2.04 Easements.
(a) Declarant hereby establishes and creates for the benefit of, and as an
appurtenance to, each Parcel and for the benefit of the Owners and Operators of each
such Parcel from time to time and their respective Permittees: (A) permanent, mutual,
reciprocal and non-exclusive easements and rights to use the Common Areas as they exist
9 2613833 v8 (79024.00002.002)
from time to time for the purposes for which they are provided and intended, including,
but not limited to, (i) ingress, egress, access, loading and unloading, vehicular and
pedestrian traffic, including commercial vehicular traffic such as delivery trucks, upon or
across, as applicable, the parking areas, entrances, exits, driveways, walks or service
drives located within the Common Areas, and (ii) the use of landscaping, directional
signs and other areas intended for common use, and perpetual non-exclusive rights,
privileges and easements for the passage of vehicles and for the passage and
accommodation of pedestrians over, across and through the Access Drives and Roads, as
the same may from time to time be constructed, expanded, extended, contracted and
maintained within the Shopping Center, as more particularly identified on the Site Plan
for such uses; (B) permanent, mutual, reciprocal and non-exclusive easements upon, over
and across the Access Drives, and the Roads, whether or not a part of the Common
Areas, for the purpose of vehicular and pedestrian ingress, egress and access, including
commercial vehicular traffic such as delivery trucks; and (C) an irrevocable license to for
the purpose of permitting the lighting from one Parcel to incidentally shine on the
adjoining Parcel. Such easement rights shall be subject to the following provisions as
well as the other applicable provisions contained in this Declaration:
(i) Except for situations specifically provided for in the following
subsections in this Section 2.04 or elsewhere in this Declaration, no fence or other
barrier or structure (whether temporary or permanent) shall be erected or
permitted within or across the Access Drives; provided, however, the foregoing
provision shall not prohibit the installation of landscaping improvements, lighting
standards, monument signs, sidewalks, medians, bumper guards, curbing, stop
signs and other forms of traffic controls to the extent shown on the Site Plan or, if
not shown on the Site Plan, consistent with plans therefor approved by Declarant
from time to time, and shall not interfere with pedestrian or vehicular ingress or
egress. With regard to the Roads, no fence or other barrier or structure (whether
temporary or permanent) shall be erected or permitted within or across the Roads
without Declarant's prior written consent.
(ii) Each Operator shall use reasonable efforts to assure that
construction traffic to and from its Parcel shall not interfere with the use,
occupancy and enjoyment of the Shopping Center (or any part thereof) or any
other Parcel.
(iii) Each Parcel shall comply with applicable governmental parking
requirements and the terms of this Declaration regarding parking (i.e, each Parcel
shall "self park"), without need of parking rights over any other Parcel.
Accordingly, the Operators and their Permittees shall have no right to park any
vehicles in any portion of the Shopping Center owned by another Owner, except
upon the prior written consent of the Owner of the other Parcel. Declarant shall
be permitted to grant cross -parking rights over and between any Parcels it owns,
regardless of this Section 2.04.
(b) Declarant hereby establishes, creates and reserves perpetual non-exclusive
rights, privileges and easements in, to, over, under, along and across strips of land which
10 2613833 v8 (79024.00002.002)
are located contiguous to the Roads as shown on the Site Plan for the purpose of
(i) installing, operating, using, maintaining, repairing, replacing, relocating, and removing
equipment and facilities for the delivery of utility services to each Parcel and the
Buildings and other Improvements from time to time located thereon, including, but not
limited to, sanitary sewer, water (fire and domestic), gas, electrical, telephone and
communications lines and other similar facilities (hereinafter collectively referred to as
"Utility Lines"; each, a "Utility Line"), and (ii) connecting and tying into Utility Lines
which are installed from time to time within said strips of land, and said strips of land
shall be fifteen feet (15') in width. Any Owner or Operator installing and/or connecting
to Utility Lines within the boundaries of said strips of land shall (i) pay all costs and
expenses with respect to such work, (ii) cause all work in connection therewith (including
general clean-up and surface and/or subsurface restoration) to be completed using first-
class materials and in a good and workmanlike manner as quickly as possible and in an
manner so as to minimize interference with the use of the affected Parcel, (iii) not
interrupt, diminish or otherwise interfere with or increase the cost of, the utility services
to the other parties served by such Utility Lines, (iv) comply in all respects with all
applicable governmental laws, regulations, and requirements, (v) promptly, at its sole
cost and expense, clean the area and restore the affected portion of the affected Parcel and
Improvements thereon (including, without limitation, any disturbed landscaping and
irrigation facilities) to a condition equal to or better than the condition that existed prior
to the commencement of such work, and (vi) indemnify and hold the Owner of the
affected Parcel and any Operators thereof harmless from and against any claims, actions,
demands, damages, losses, injuries or expenses, including, without limitation, reasonable
attorneys' fees, that may result from any such work.
(c) Declarant hereby establishes and creates for the benefit of, and as an
appurtenance to, all Parcels, with respect to, and as a burden upon, all other Parcels, a
perpetual non-exclusive right, privilege and easement to drain storm water run-off from
each Parcel, as the same hereafter may be improved, onto, across, over and upon all other
portions of the Shopping Center and into and through the storm water drainage lines and
facilities from time to time located thereon, including, to the extent required by
applicable law or governmental authority, the right to use and impound storm water
within any storm water detention facilities now or hereafter located within the Water
Detention Parcel, provided that such drainage shall not cause any damage to the
Shopping Center across which such storm water is being drained or any Improvements
thereon, and provided, further, that such drainage does not result in pooling on another
Owner's Parcel (other than in the water detention basin or pond on the Water Detention
Parcel). Declarant hereby reserves the right to channel or redirect such drainage or
otherwise dedicate and convey to appropriate governmental entities the storm water
drainage lines and facilities (including, without limitation, the Water Detention Parcel)
located from time to time within the Shopping Center, provided any such dedication or
conveyance shall not adversely affect the use and enjoyment of such storm water
drainage lines and facilities by the Owners and Operators within the Shopping Center. If
Declarant desires to so dedicate all or any portion of any such drainage lines and
facilities, all Owners shall cooperate and assist Declarant and shall join in and consent to
such dedication, if requested, at no cost, however, to such Owners.
11 2613833 A (79024.00002.002)
2.05 Maintenance of Parcels.
(a) Each Owner shall maintain, or cause to be maintained, at its sole cost and
expense, its Parcel (including without limitation the Common Areas on such Parcel), and
the interior and exterior of any Building or other Improvements thereon, in a sightly and
safe condition, and in good state of repair. The unimproved portions of its Parcel shall be
mowed and kept litter -free. Until such time as a Building or other Improvements are
constructed on its Parcel, each Owner shall maintain its Parcel as a seeded or landscaped
area, shall keep the grass mowed, shall promptly remove all trash and debris therefrom
and generally shall maintain its Parcel in a safe, neat and clean condition at all times.
The minimum standard of maintenance for the improved portions of its Parcel shall be
comparable to the standard of maintenance followed in other first class shopping center
developments of comparable size in the metropolitan area in which the Shopping Center
is located; notwithstanding the foregoing, however, each Parcel shall be operated and
maintained in compliance with all applicable governmental laws, codes, ordinances, rules
and regulations, and the provisions of this Declaration. All Improvements within each
Parcel shall be repaired or replaced with materials at least equal to the quality of the
materials being repaired or replaced so as to maintain the architectural and aesthetic
harmony of the Shopping Center as a whole, as determined by Declarant in its sole but
reasonable discretion. It shall be the responsibility of each Owner to maintain the
Common Areas on its Parcel consistent with the requirements of Article III of this
Declaration.
(b) If any Owner fails to maintain or cause to be maintained the Common
Areas on its Parcel in good order and condition and in compliance with the requirements
of this Declaration, and such failure continues for a period of thirty (30) days after such
Owner (the "Responsible Owner") has been given written notice by any other Owner (the
"Notifying Owner") specifying the nature of the default (except in the event of an
emergency, in which case the work may be initiated after reasonable notice to the
Responsible Owner), said Notifying Owner shall have the right to go upon that Parcel to
perform any necessary maintenance or repairs at the expense of the Responsible Owner.
If the Notifying Owner performs maintenance or repairs on any Parcel pursuant to this
Section 2.05(b), the Responsible Owner shall be deemed to have contracted with such
Notifying Owner for said work, and such Notifying Owner shall be entitled to file and
enforce a mechanic's lien against the interest of the Responsible Owner in its Parcel for
the cost of such work, and to recover the cost of such work, together with interest thereon
at the Default Rate (hereinafter defined) from the date of expenditure through and until
the date of reimbursement, in an action at law against the Responsible Owner, all in
accordance with the applicable mechanic's lien laws of the State of Texas.
2.06 Rules and Regulations. Declarant hereby adopts the rules and regulations set
forth in Exhibit "C" hereto as Rules and Regulations to which the Shopping Center and all
Owners, Operators and their respective successors are subject. Declarant reserves to itself the
right to change the Rules and Regulations at any time and from time to time; provided, however,
that any Operator already conducting business within the Shopping Center at the time such
change would take effect shall be exempt from any change in the Rules and Regulations to the
12 2613833 A (79024.00002.002)
extent such change would have a material, adverse impact on the business operations of such
Operator, unless otherwise agreed to in writing by such Operator.
A R TTCT .F TTI
COMMON AREAS
3.01 Temporary Use of Common Areas During Construction and For Maintenance and
Repair. In connection with work performed at the Shopping Center, incidental encroachments
upon the Common Areas as a result of the temporary use of construction equipment such as
contractors' sheds, ladders, scaffolding, storefront barricades, and similar facilities resulting in
temporary obstruction of portions of the Common Areas, shall be permitted hereunder so long as
they are kept within reasonable requirements of construction or maintenance repair work
expeditiously pursued; provided, however, that in the event any Access Drive or sidewalk is
obstructed thereby, an alternate Access Drive or sidewalk must be provided at all times.
Designated "construction staging areas", which shall either be designated on the Site Plan or
determined by Declarant as and when needed (but no construction staging shall be permitted on
the Parcel of any other Owner without that Owner's prior written consent), may be used for
temporary storage of construction equipment, material and vehicles being utilized in connection
with the initial construction of any Building or in connection with any interior finish, alterations,
remodeling, repairs or reconstruction, subject to all of the other terms of this Declaration.
Common Areas may be utilized for ingress and egress of vehicles transporting construction
materials, equipment, and persons employed in connection with any work performed at the
Shopping Center. From and after the date that the first Operator of the Shopping Center opens
for business to the public, adequate fencing must surround the construction areas of any Building
at all times during which construction activities are in progress.
3.02 Barriers and Traffic Control. Except as required by governmental authorities, no
walls, fences, or barriers of any sort or kind shall be constructed or maintained in the Roads or
any portion thereof which shall prevent or impair the use or exercise of free access and
movement; and except as provided in Section 3.01 above or as required by governmental
authorities, no walls, fences, or barriers of any sort or kind shall be constructed or maintained in
the Access Drives of the Shopping Center, or any portion thereof, which shall prevent or impair
the use or exercise of free access and movement, including without limitation, pedestrian and
vehicular traffic, throughout the Shopping Center; provided, however, that reasonable traffic
controls as may be necessary to guide and control the orderly flow of traffic may be installed by
Declarant.
3.03 Damage Destruction or Condemnation. In the event of damage to, destruction of
or condemnation of all or any portion of the Common Areas or Common Facilities on any Parcel
(and the same is not governed by the provisions of Sections 4.08 or 4.09 below), the provisions
of this Section 3.03 shall govern the repair and restoration thereof-
(a)
hereof
(a) If the insurance proceeds or condemnation award are sufficient to effect
total restoration or replacement, then the Owner of the affected Parcel shall cause the
Common Areas and the Common Facilities on that Parcel to be so repaired, reconstructed
and/or replaced substantially as they previously existed.
13 2613833 A (79024.00002.002)
(b) If the insurance proceeds or condemnation award are insufficient to effect
total restoration, repair or replacement of the Common Areas and Common Facilities,
then the Owner of the affected Parcel may: (i) cause the Common Areas and Common
Facilities to be repaired, reconstructed and/or replaced in a way which utilizes all
available insurance proceeds or condemnation award to the extent of such proceeds; or
(ii) elect not to rebuild, repair and/or replace such Common Areas and Common
Facilities, in which case Declarant shall be entitled to rebuild, repair and/or replace such
Common Areas and Common Facilities and the Owner shall deliver to Declarant the
available insurance proceeds and condemnation award for use by Declarant to so rebuild,
repair and/or replace such Common Areas and Common Facilities, provided, however,
that if Declarant does not elect to cause such Common Areas and Common Facilities to
be repaired, reconstructed and/or replaced, then the Owner shall be entitled to retain such
insurance proceeds or condemnation award for the benefit of itself and its Mortgagees.
3.04 Responsibility for Maintenance. Each Owner shall operate, maintain, repair and,
as necessary, replace, or cause to be operated, maintained, repaired and replaced all Common
Areas located within its Parcel and shall keep the same, or cause the same to be continuously
kept, in good condition and repair (consistent with standards of maintenance for the operation of
similar first-class commercial developments in the metropolitan area of The Colony, Texas), in a
safe and sound condition, clean and free of rubbish, debris, and other hazards to persons using
the same, and in compliance with all applicable governmental laws, codes, ordinances, rules and
regulations. Such maintenance, operation, repair and replacement shall include, but not be
limited to, the following:
(a) The care and replacement of all shrubbery, plantings, and other
landscaping;
(b) Maintenance, repair and replacement of concrete and asphalt paving and
other surface materials used on drives, parking areas and walkways using, to the extent
reasonably possible, the same type of material originally installed, to the end that drives,
parking areas and walkways are at all times kept in a level, smooth and substantially
uniform condition;
(c) Adequate marking, striping and directional signing of all parking areas;
(d) Maintenance, repair and replacement of all common electrical and other
common utility equipment, fixtures, lines, and facilities so that the same are at all times in
good operating condition, including lighting in the Common Areas, and electric light
replacements;
(e) Payment of all electrical, water and other utility charges or fees for
services furnished to the Common Areas;
(f) Snow and ice removal, when and if necessary, and sweeping and removal
of rubbish and debris on a regular and continuing basis, consistent with comparable first-
class retail shopping centers; and
14 2613833 v8 (79024.00002.002)
(g) Common Area casualty insurance with respect to the Improvements
constituting the Common Areas and Common Area liability insurance as provided in
Section 3.06.
3.05 Li htin .
(a) The Common Areas on each Parcel shall be equipped with a lighting
system designed to produce a minimum maintained lighting intensity of at least 2 foot
candles at all points of the parking areas of the Common Areas and at least 0.75 foot
candles in the service areas behind buildings so long as the same complies with all
applicable governmental laws, codes, ordinances, rules and regulations. The Owner of
each Parcel will activate such lighting each day from dusk until at least 12:00 midnight,
and shall provide low level security lighting thereafter until dawn. Additionally, all store
front signage and rear lighting shall be activated at such times as reasonably required by
Declarant.
(b) All site and building lighting within each Parcel shall comply with the
building standards set forth in the Grandscape Design Criteria — West 25 Building
Standards (the "Building Standards") attached hereto as Exhibit "E" and incorporated
herein by this reference.
(c) After completion of the parking lot lighting system on its Parcel, each
Owner hereby covenants and agrees to keep its Parcel fully illuminated every day from
dusk until at least 12:00 midnight, unless the Declarant requires a different time, such that
the entire Shopping Center will be uniformly illuminated. Each Owner further agrees to
keep any exterior Building security lights on from dusk until dawn. During the Term of
this Declaration, each Owner grants an irrevocable license to each other Owner for the
purpose of permitting the lighting from one Parcel to incidentally shine on the adjoining
Parcel.
(d) Upon receipt of a request from any Owner or Operator upon any other
Owner to keep the drive aisles on its Parcel lighted for periods of time beyond which the
other Owner would normally do so in connection with the normal business operations on
its Parcel, the Owner upon whom the request has been made shall keep the drive aisles on
its Parcel lighted for the time periods requested by the requesting Owner or Operator,
conditioned upon the continuing performance of the payment obligation in the following
sentence. In connection therewith, the Owner(s) and/or Operator(s) requesting such
extended lighting hours shall pay, or cause to be paid, promptly upon receipt of a
reasonably detailed invoice therefor (but in any event within fifteen (15) days after
receipt), its/their proportionate share of the increase in costs incurred by the Owner upon
whom the request has been made for complying with such request.
3.06 Common Area Liability Insurance. Each Owner shall maintain or cause to be
maintained insurance with insurance companies licensed to do business in Texas, against all
statutory and common law liabilities for damage to property or injuries, including loss of life,
sustained by any Person or Persons within or arising out. of the use of its Parcel, whether caused
by such Owner's or any Operator's, or their respective agents', guests', invitees', or customers',
15 2613833 v8 (79024.00002.002)
own negligence or otherwise. The type and minimum amounts of such insurance are set forth in
Section 4.05 of this Declaration. Each policy shall provide that it shall not be canceled or
amended without at least ten (10) days' prior written notice to Declarant. Such policy shall name
Declarant, Declarant's Mortgagee (and any other parties requested by Declarant), of which the
Owner has been given notice and for which an address has been furnished, as additional
insured(s).
3.07 Common Area Expenses. For purposes of this Declaration, "Common Area
Expenses" shall be deemed to include the following costs and expenses of Declarant: (i) any
costs associated with the operation, repair, maintenance and replacement of any common Utility
Line as described in Section 2.04(b) of this Declaration, (ii) any costs associated with the
ownership (including ad valorem taxes and insurance), operation, maintenance, repair and
replacement of the Water Detention Parcel and associated and ancillary lines, equipment,
facilities and appurtenances, (iii) any costs associated with providing liability insurance coverage
over Common Areas within Parcels not owned by Declarant, and (iv) any costs associated with
the operation, repair, maintenance and replacement of the Roads, as such Roads may be
extended, modified, expanded or contracted from time to time by Declarant.
(a) Each Owner of a Parcel shall be obligated to pay to Declarant a fixed
amount equal to $1,500 per acre, per year, as a contribution for payment of Common
Area Expenses, which amount shall increase by fifteen percent (15%) every five (5)
years, on a cumulative and compounded basis. The amount so calculated as to any Parcel
shall be that Parcel Owner's required "Annual Contribution."
(b) An Owner's obligation for payment of its Annual Contribution shall
commence on the earlier to occur of (i) the date the first Building improvements
constructed on such Owner's Parcel are opened to the public for business, or (ii) six (6)
months following the recording of the deed by which such Owner became the owner of
its Parcel. Thereafter, such Owner shall pay its Annual Contribution in advance of but
not later than January 1 of each year.
3.08 Limitation on Liability. Neither Declarant nor any agent, or employee of
Declarant shall be liable to any Owner or Operator or to any other Person for any loss, damage or
injury, or claim thereof, arising out of or in any way connected with the performance or
nonperformance of Declarant's duties under this Declaration, unless due to the willful
misconduct, gross negligence or bad faith of Declarant or its respective directors, officers, agents
or employees, as the case may be.
ARTICLE IV.
BUILDING DESIGN AND CONSTRUCTION
4.01 Building Design and Construction. The plans and specifications with respect to
any Building to be constructed in the Shopping Center (which plans and specifications for any
Building shall also include, but shall not be limited to, a building lighting plan, a site or Parcel
lighting plan, a preliminary site plan and a landscaping plan), and any future alterations or
modifications to the elevations and exterior appearances (including changes in color) of such
16 2613833 v8 (79024.00002.002)
plans and specifications shall be subject to the prior written approval of Declarant, which
approval shall not be unreasonably withheld by Declarant, provided that the design evidenced
thereby is consistent with the Building Standards and otherwise consistent with the overall
architectural theme of the Shopping Center. In addition, all plans and specifications for any
proposed hotel or motel within the Shopping Center shall also be subject to the additional terms
and conditions set forth in the Grandscape Design Criteria — West 25 Additional Requirements
for Hotel/Motel (the "Additional Requirements") attached hereto as Exhibit "F" and incorporated
herein by this reference. Such right of approval and compliance with the Building Standards and
Additional Requirements is to ensure conformity to the requirements of this Declaration,
compliance with the general plan of construction and general overall aesthetic quality of the
Shopping Center, consistency of materials used and compatibility of uses. All landscaping
within any Parcel shall be consistent in size and character with the Landscaping Materials
Example attached hereto as Exhibit "D" and incorporated herein by this reference and otherwise
consistent with a first class center and the balance of the Shopping Center.
Prior to the commencement of any work in connection with the construction of any
Building or other Improvements, the Owner of the Parcel on which such Improvements are to be
constructed shall deliver to Declarant a site plan, scaled elevations, exterior design concept plan,
materials and color selection plan for the exterior of the proposed Improvements, signage plans
and landscape plans, together with a written notice to Declarant expressly notifying Declarant
that such Owner is requesting formal approval of plans pursuant to this Section 4.01. Declarant
will thereafter, by written notice to the submitting Owner given within thirty (30) days after a
complete package of the required submissions and required written notice to Declarant has been
received by Declarant, either approve, disapprove or provide comments for required changes to
such plans. Declarant's failure to so approve, disapprove or provide comments for required
changes to such plans within such 30 -day period shall be deemed an approval of such plans as
submitted, provided that the Owner who submitted such plans shall have first given Declarant an
additional written notice and request for approval of such plans after the expiration of the initial
30 -day review period and Declarant's failure to approve, disapprove or provide comments for
required changes to such plans shall have continued for an additional ten (10) days after the date
of such second written notice from the submitting Owner. Any notice of disapproval or for
required changes shall specify with reasonable particularity the reason or reasons therefor.
Declarant, regardless of its approval of such plans and specifications, is not responsible
for the adequacy of structural or mechanical engineering design or specifications or the
Improvements constructed. During construction, all Owners and Operators shall cause their
contractors to abide by the rules and regulations of the Shopping Center. All exterior
construction (including landscaping, which shall be completed during initial construction),
alteration, and repair work shall be accomplished in an expeditious manner, in compliance with
this Declaration and all laws, rules, regulations, orders, permits, approvals and licenses of
governmental authorities having jurisdiction. The location of all staging areas shall be subject to
the prior written approval of Declarant, not to be unreasonably withheld. All trash, debris and
waste materials shall be removed from construction areas on a daily basis. The Owner or
Operator undertaking such work shall take all necessary measures to minimize any disruption or
inconvenience caused by such work. Such work shall be accomplished in such a manner as to
minimize any damage or adverse effect which might be caused by such work to any other Owner
or Operator, and the Owner or Operator undertaking such work shall repair at its own cost and
17 2613833 A (79024.00002.002)
expense any and all damage caused by such work and restore the affected portion of the
Shopping Center to a condition equal to or better than the condition which existed prior to the
beginning of such work. In addition, the Owner or Operator undertaking such work shall
promptly pay all costs and expenses associated therewith and shall indemnify and hold all
Declarant and all other Owners and Operators harmless from all damages, losses, or claims,
including reasonable attorney's fees, attributable to the performance of such work.
4.02 Building Height. Excluding any hotel Building, which hotel Building shall not
exceed one hundred twenty-five feet (125') in height, in no event shall any Building constructed
in the Shopping Center exceed twenty-eight feet (28') in height from the finished floor elevation,
exclusive of architectural features, which features may extend up to an additional four feet (4')
provided they do not cover more than thirty percent (30%) of any building facade. For the
purposes of this Section 4.02, the height of any Building shall be measured from finished grade
of the base floor to the top of the highest building parapet, and architectural features (including
canopies, chimneys or decorative towers incidental to the design of the building) to their highest
point. Notwithstanding anything in this Declaration the contrary, subject to all applicable laws
and the terms of this Article IV, each Operator shall have the right to install a satellite antennae
or other data communications devices and related wiring upon the roof of the Building in which
the Operator's premises are located, provided that the same do not add to the maximum building
height applicable to such Building, and all such devices are screened from view in a manner
acceptable to Declarant.
4.03 Location and Number of Buildings. Subject to the restrictions set forth in this
Declaration, and Declarant's right to grant variances, all Buildings and vertical Improvements in
the Shopping Center shall be constructed only in the Permissible Building Areas. No Buildings
or structures shall be constructed within the Common Areas of any Parcel, except that each
Owner shall (i) plant trees and other growing plants in the Common Areas on its Parcel pursuant
to Declarant's approved landscape plan which provides for the uniform distribution of trees and
other growing plants throughout the Shopping Center, provided no tree or plant shall
unreasonably interfere with the visibility of any Operator's building signage, except as otherwise
may be required by applicable governmental authority, (ii) upon the prior written consent of
Declarant, be permitted to construct other items or amenities customary for first-class
commercial developments, such as signage (including advertising kiosks and directional
signage), light standards, benches, gazebos, and free-standing restrooms, provided the same shall
not unreasonably interfere with access or the visibility of building signage or any other
previously existing signage within the Shopping Center, and (iii) erect any directional signs,
bumper guards or curbs, landscape planters, lighting standards, and any other landscaping or
other Improvements as may be required under applicable controls and regulations of the City,
provided such items are installed and maintained in compliance with this Article IV. In addition,
subject to governmental requirements and the provisions of this Article IV, Declarant may permit
an Owner to construct, install, repair, remove, replace and maintain sidewalks and walkways,
and canopies and marquees (with signs which may be affixed thereto) which may encroach a
reasonable distance (not to exceed five feet [5']) over or upon, as the case may be, the sidewalks
and walkways contiguous to any Permissible Building Area.
4.04 Mechanic's Liens. If because of any act or omission (or alleged act or omission)
of an Operator, its employees, agents, contractors or subcontractors, any mechanic's or other lien,
18 2613833 v8 (79024.00002.002)
charge or order for the payment of money or other encumbrance shall be filed against any part of
the Shopping Center not owned by such Operator, the Operator shall, at its own cost and
expense, cause the same to be discharged of record or insured or bonded over to the satisfaction
of Declarant within thirty (30) days after notice to said Operator of the filing thereof. In any
event, the Operator shall indemnify, defend and save harmless Declarant and all other Operators
from and against all costs, liabilities, expenses, damages, suits, penalties, claims and demands
(including actual attorneys' fees and costs incurred) resulting therefrom. If the Operator fails to
comply with the foregoing provisions, Declarant shall have the option of discharging or bonding
any such lien, charge, order or encumbrance, and the Operator agrees to reimburse Declarant for
all costs, expenses (including actual attorneys' fees) and other sums of money expended in
connection therewith, including interest on the amounts expended from the date of the
expenditure until the date of payment at an annual rate of interest (the "Default Rate") equal to
the prime rate announced from time to time by the JPMorgan Chase Bank, N.A. plus two
percent (2%), or, if such institution shall cease to exist, then two percent (2%) plus the prime rate
announced from time to time by the publicly held bank located in New York, New York, which
has the most assets, determined as of the date that JPMorgan Chase Bank, N.A. ceases to exist.
An Operator must remove of record, or cause to be removed of record, or insure over any lien
encumbering the Shopping Center, if such removal is required in connection with a financing or
disposition of the Shopping Center. In all events, an Operator must remove of record, or cause to
be removed of record, any such lien encumbering the Shopping Center within one (1) year of the
date such lien was filed of record.
4.05 Insurance.
(a) Each Owner shall maintain or cause to be maintained in full force and
effect comprehensive public liability insurance with a financially responsible insurance
company or companies licensed to do business in the State of Texas insuring against
claims on account of loss of life, bodily injury, or property damage that may arise from,
or be occasioned by, the condition, use or occupancy of such Owner's Parcel or the
Improvements located thereon; and such insurance shall provide for a limit of not less
than Two Million Dollars ($2,000,000.00) for personal or bodily injury or death to any
one person, a limit of not less than Four Million Dollars ($4,000,000.00) for personal or
bodily injury or death to any number of persons arising out of any one occurrence, and a
limit of not less than One Million Dollars ($1,000,000.00) in respect of any instance of
property damage. Such insurance shall extend to the contractual obligation of the insured
Owner arising out of the indemnification obligations set forth in this Declaration. Each
Owner shall furnish to Declarant and to any other Owner requesting the same evidence
that the insurance described above is in full force and effect. All policies of insurance
carried by any Owner pursuant hereto (i) shall name Declarant and it Mortgagees as an
additional insured and (ii) shall provide that the same may not be canceled (including,
without limitation, a non -renewal) or amended without at least thirty (30) days prior
written notice being given by the insurer to Declarant.
(b) Effective upon the commencement of construction of any Building on any
portion of a Parcel, the Owner of such Parcel shall carry, or cause to be carried, with a
financially responsible insurance company or companies licensed to do business in the
State of Texas fire insurance (with an extended coverage endorsement) in an amount at
19 2613833 A (79024.00002.002)
least equal to ninety percent (90%) of the full replacement cost (exclusive of the cost of
excavation, foundations, and footings) of the Buildings and Improvements constructed on
its Parcel, insuring against causes or events which from time to time are included as
covered risks under standard insurance industry practices within the classification of fire
insurance with an extended coverage or "all risk" endorsement, and specifically against at
least the following perils: loss or damage by fire, windstorm, tornado, hail, explosion,
malicious mischief, vandalism, aircraft, vehicle, and smoke damage.
(c) Prior to commencing any construction activities within the Shopping
Center, the Owner performing or causing to be performed such construction activities
shall maintain, or cause to be maintained, so long as such construction activity is
occurring, at least the following minimum coverages: (i) Worker's Compensation —
statutory limits; (ii) Employer's Liability - $500,000; (iii) Comprehensive General
Liability — on an occurrence basis with personal injury coverage and broad form property
damage (said policy shall be endorsed to remove the XCU exclusion relating to
explosion, collapse, and underground property damage) as follows: (A) Bodily Injury -
$2,000,000 per person, $5,000,000 per occurrence, and (B) Property Damage -
$1,000,000 per occurrence, $2,000,000 aggregate; (iv) Comprehensive Automobile
Liability, including Non -Ownership and Hired Car Coverage as well as owned vehicles
with at least the following limits: (A) Bodily Injury - $500,000 per person, $1,000,000
per occurrence, and (B) Property Damage - $250,000 per occurrence. If the construction
activity involves the use of another Owner's Parcel (as specifically contemplated and
permitted herein), then the Owner of any such Parcel which shall be used for such
construction activity shall be named as an additional insured and such insurance shall
provide that the same shall not be canceled without at least thirty (30) days' prior written
notice to the named insureds (it being understood that if such insurance is canceled or
expires, then the constructing Owner shall immediately stop all work on or use of another
Owner's Parcel until either the required insurance is reinstated or replacement insurance
is obtained).
(d) The insurance described in this Section 4.05 may be carried under (i) an
individual policy covering only the location of the Owner within the Shopping Center,
(ii) a blanket or umbrella policy or policies which cover(s) other liabilities, properties and
locations of an Owner, so long as no occurrence with respect to other property covered by
such blanket policy will impair the coverage required hereunder, (iii) a plan of self-
insurance, provided the Owner so self-insuring, together with any parent, subsidiary
and/or affiliated entities whose assets are subject to the liabilities described in this
Section 4.05, has and maintains $50,000,000.00 or more of net worth (based upon
generally accepted accounting principles consistently applied by such Owner and as
determined by an independent certified public accountant), or (iv) a combination of any
of the foregoing insurance programs. All such insurance shall include a waiver of
subrogation by the insurer against the other Owners. Each Owner hereby waives any
rights of recovery against any other Owner, its directors, officers, members, employees,
agents and Operators for any damage or consequential loss which is covered by or would
be covered by the policies required to be carried by such Owner hereunder, to the extent
of the proceeds payable under such policies. The foregoing waivers shall apply equally
20 2613833 v8 (79024.00002.002)
to any Owner which elects to be self-insured, in whole or in part, as hereinabove
provided, as if such Owner were independently insured to the extent required hereunder.
4.06 Indemnification. If any Owner fails to fulfill its obligation to maintain liability
insurance coverage, as required by Section 4.05 above, then such Owner shall defend, indemnify
and save the other Owners harmless from any and all liability, damage, expense, cause of action,
suit, claim or judgment arising from any injury to persons or property within the Shopping
Center to the extent arising from the occupation, use, possession, conduct or management of the
premises or the business of such Owner at the Shopping Center by such Owner or its guests,
employees, contractors, vendors, suppliers, agents and invitees.
4.07 Waiver of Subro ag_tion. TO THE EXTENT PERMITTED BY LAW, EACH
OPERATOR WAIVES AND RELEASES THE OTHER OPERATORS FROM ANY AND
ALL LIABILITY (TO THE EXTENT OF INSURANCE PROCEEDS ACTUALLY
RECEIVED BY THE WAIVING AND/OR RELEASING OPERATOR) FOR ANY LOSS
OR DAMAGE CAUSED BY FIRE, ANY OF THE EXTENDED COVERAGE
CASUALTIES, OR OTHER CASUALTIES INSURED AGAINST OR REQUIRED TO
BE INSURED AGAINST (INCLUDING BY SELF-INSURANCE), EVEN IF SUCH FIRE
OR OTHER CASUALTY SHALL BE BROUGHT ABOUT BY THE FAULT OR
NEGLIGENCE OF THE PARTY BENEFITED BY THE RELEASE OR ITS AGENTS.
EACH OPERATOR SHALL HAVE ITS INSURANCE POLICIES ISSUED IN SUCH
FORM AS TO WAIVE ANY RIGHT OF SUBROGATION AS MIGHT OTHERWISE
EXIST.
4.08 Damage to or Destruction of Buildings. In the event that any part of any
Improvements not constituting the Common Areas or Common Facilities are damaged by fire or
other casualty, the Owner of the affected Parcel shall either: (i) repair, restore and rebuild (or
cause to be repaired, restored and rebuilt) such Improvements to substantially their condition
immediately prior to such event; (ii) repair and restore (or cause to be repaired, restored and
rebuilt) the undamaged portion of such Improvements to a complete architectural unit; or
(iii) raze (or cause to be razed) the Building, structure, or other Improvement that is damaged and
grade the affected area to substantially the same grade as the adjacent parking area and either
adequately seed such affected area, or pave such area for parking. All repair, restoration and
rebuilding pursuant to this Section 4.08 shall be subject to all of the terms and provisions of this
Declaration, including, without limitation, this Article IV.
4.09 Eminent Domain. If under the power of eminent domain, which shall include
conveyances or dedications made in settlement of or in lieu of condemnation proceedings, all or
any portion of a Building is taken, and/or all or any portion of other Improvement and/or any
Parcel not constituting part of the Common Areas or Common Facilities is taken, the Owner of
the affected Parcel shall either (i) raze (or caused to be razed) the remainder of the Building or
other Improvement that is partially taken and grade the affected area to substantially the same
grade as the adjacent parking area and either adequately seed such affected area, or pave such
area for parking, or (ii) restore (or cause to be restored) the remaining portions, if any, of the
Building or other Improvement partially taken, or demolish and rebuild (or cause to be
demolished and rebuilt) the same to an architectural whole with at least the same quality of
workmanship and materials used with respect to the original construction and in a first-class,
21 2613833 v8 (79024.00002.002)
workmanlike manner as soon as possible (but in no event longer than one hundred eighty (180)
days after such Owner's receipt of the award for such taking) to as close to its prior condition and
design as is reasonably feasible.
ARTICLE V.
SHOPPING CENTER SIGNS
All signage within the Shopping Center shall conform to Declarant's sign criteria, which
may be adopted (and thereafter modified from time to time) in Declarant's reasonable discretion,
and with all applicable governmental laws, codes, ordinances, rules and regulations. If Declarant
changes its sign criteria or imposes new rules and regulations, any existing signage already in
place that was in compliance with Declarant's sign criteria before the change will be exempt
from the changes and deemed "grandfathered" as to future changes (other than changes required
by applicable law as to which grandfathering is not permitted by such law). As to any hotel, if
the Building signage of any national hotel brand has been approved in writing by Declarant, then
any future Building signage for that brand that is substantially the same in all material respects
with the signage previously approved by Declarant will be deemed approved, but any change in
signage which represents a material departure from the signage previously approved by
Declarant will require Declarant's prior written approval. Additionally, each Parcel shall be
limited to one (1) monument sign measuring no greater than ten feet (10') in width and
ten feet (10') in height, consistent in design with the architectural theme of the Shopping Center,
approved in advance by Declarant and erected in a location on such Parcel approved in advance
by Declarant. Each monument sign shall be limited to identifying one or more Operators within
that Parcel. No Owner or Operator shall be entitled to any off-site signage or other signage
rights within the Shopping Center or within Grandscape. Declarant hereby reserves the right to
erect in the Shopping Center, in one or more locations to be determined by Declarant at a later
date, one or more pylon signs identifying owners, tenants, users or operators of portions of
Grandscape outside of the Shopping Center. All signage within any Parcel shall comply with the
Building Standards.
ARTICLE VI.
MORTGAGES SUBORDINATE TO DECLARATION
Any Mortgage affecting any portion of the Shopping Center shall at all times be subject
and subordinate to the terms of this Declaration, and any Mortgagee foreclosing any such
Mortgage or acquiring title by reason of a deed in lieu of foreclosure shall acquire title to the
premises affected thereby subject to all of the terms of this Declaration. Notwithstanding the
foregoing, the lien of any such Mortgage or any lien arising from a claim under this Declaration
shall be established as of the date of the filing of any such Mortgage or lien claim in the Real
Property Records of Denton County, Texas.
22 2613833 A (79024.00002.002)
ARTICLE VII.
APPROVALS
Upon receipt by Declarant of a notice and request for approval, Declarant shall within
thirty (30) days (except where a different approval period is expressly provided for under this
Declaration) after receipt of such request for approval, notify in writing the Person making such
request of any objections thereto (such objections to be specifically stated) and the Person who
submitted the request may within fifteen (15) days thereafter amend and resubmit their request
for approval. Declarant shall then have an additional fifteen (15) days after receipt of said
revisions to approve or disapprove same. If Declarant shall fail to provide a notice in response to
the Person making a request for approval, and provided that the Person making the request for
approval provides written notice to Declarant upon the expiration of Declarant's 30 -day response
period that Declarant has failed to respond timely to the request for approval and that if
Declarant's failure to respond by written notice continues through the expiration of ten (10) days
from the date of the second notice then the matter submitted for Declarant's approval shall be
deemed to have been approved pursuant to this Article VII due to Declarant's failure to respond,
then if Declarant has failed upon the expiration of said 10 -day period to provide written notice in
response to the request for approval, the request for approval shall be deemed to have been
approved by Declarant. Whenever in this Declaration Declarant has reserved the right to
approve or disapprove in its sole discretion, it may disapprove without specifying the reason
therefor.
ARTICLE VIII.
REMEDIES
8.01 Default of Operator. An Operator shall be deemed to be in default upon the
expiration of ten (10) days from receipt of written notice specifying a failure to pay any amount
due under this Declaration and upon the expiration of thirty (30) days from receipt of written
notice specifying the particulars in which such Operator has failed to perform the obligations of
this Declaration other than a failure to pay any amount due under this Declaration, unless that
Operator, prior to the expiration of the applicable period, has rectified the particulars specified in
said notice. However, such Operator shall not be deemed to be in default if such failure (except
the failure to pay any monetary obligation) cannot be rectified within said thirty (30) day period
despite its good faith efforts to do so, and such Operator shall have commenced to cure the
default within said thirty (30) days and diligently pursued such cure until completed. Notices
delivered to any Operator under the provisions of this Section 8.01, must also be delivered to any
first lien Mortgagee who has delivered prior written notice to each Operator that such first lien
mortgage lender requires receipt of copies of notices delivered under this Section 8.01.
8.02 Rijzht to Cure Defaults. In the event that any Operator (referred to in this
Section 8.02 as the "Responsible Party") fails to comply with this Declaration in any respect,
after expiration of the notice and cure provisions of Section 8.01, Declarant shall have the right,
upon ten (10) days' prior written notice to the Responsible Party, to perform any obligation the
Responsible Party fails to cure, or commence to cure and diligently pursue to completion, within
such 10 -day period the default identified in the written notice to it. Notwithstanding the
23 2613833 A (79024.00002.002)
foregoing, in the event of an emergency which threatens the health or safety of Shopping Center
Operators or Permittees, such advance written notice shall not be required prior to effectuating
such cure on behalf of the Responsible Party, but Declarant shall make reasonable attempts to
contact the defaulting Responsible Party prior to and/or during the course of such cure. Any
costs incurred by Declarant therefor shall be reimbursed by the Responsible Party within thirty
(30) days of presentation of the appropriate statement therefor.
8.03 Other Remedies. In addition to the foregoing, if any Operator defaults in the
performance of any other material provision of this Declaration, which default continues after the
period of grace, if any, with respect thereto, Declarant may institute legal action against the
defaulting Operator for specific performance, declaratory relief, damages or other suitable legal
or equitable remedy. The remedies and liens provided in this Article VIII and the enforcement
thereof as provided in this Declaration shall be in addition to and not in substitution for or
exclusion of any other rights and remedies which Declarant may have under this Declaration or
at law or in equity.
8.04 Attorneys' Fees. In addition to the recovery of damages and of any sums
expended on behalf of the defaulting Person, together with interest thereon, as set forth in this
Declaration, the prevailing party in any action to enforce any provision of this Declaration shall
be entitled to receive from the other party its costs and expenses incurred in connection with such
action, including actual reasonable attorneys' fees and costs for services rendered to the
prevailing party in any such action (including any appeal thereof).
8.05 Interest. In the event any Person fails to pay any sum due under this Declaration
within ten (10) days from the due date specified in the Declaration, such past due amount shall
accrue, and the failing party shall be liable for, interest from the original due date until paid at the
Default Rate.
AR TTC''T F TX
DEVELOPMENT RIGHTS
9.01 Development Rights and Special Declarant Rights. Declarant reserves, for 40
years after the recording of this Declaration, the following development rights and special
Declarant rights (which may be exercised with respect to different parcels of land at different
times, and no assurances are made as to the order in which such rights may be exercised with
respect to different parcels of land, or whether such rights will be exercised with respect to any
particular parcel of land), with respect to the Shopping Center and/or as to Grandscape, as
applicable:
(i) The rights set forth below in Section 9.02.
(ii) The right to subject any part of Grandscape owned by Declarant to
additional or different covenants, conditions, terms and restrictions, as Declarant
may determine.
(iii) The right to enlarge the area of the Shopping Center or combine
the Shopping Center with other properties; and, as to portions of the Shopping
24 2613833 A (79024.00002.002)
Center owned by Declarant, to relocate boundaries between the Shopping Center
and adjoining properties, to enlarge or reduce the Common Areas, to reduce or
diminish the size of areas within the Common Areas, or to subdivide the
Shopping Center.
(iv) The right, but not the obligation, to construct additional
Improvements in the Common Areas, at any time and from time to time, in
accordance with this Declaration for the improvement and enhancement of the
Common Areas.
(v) The right to create and use and permit others to use easements
through the Shopping Center, for the benefit of other parts of Grandscape and/or
adjacent properties, and for the users thereof, consistent with the terms and
provisions of this Declaration.
(vi) The right to designate or create additional Common Areas, and to
convert Permissible Building Areas into Common Areas or Common Areas into
Permissible Building Areas, within portions of the Shopping Center owned by
Declarant.
(vii) The right to withdraw or remove any portion of Grandscape from
Grandscape, and from the terms of this Declaration and any other declaration that
may be applicable thereto.
(viii) The right to amend this Declaration, the Site Plan and applicable
maps or plats in connection with the exercise of any development right (subject to
the limitations of Section 10.05).
(ix) The right to amend the master development plan for Grandscape,
with respect to, or to change the permitted use of, any portion of Grandscape
(subject to the limitations of Section 10.05).
(x) The right to maintain signs and advertising in the Shopping Center
to advertise the Shopping Center or other portions of Grandscape (provided,
however, that Declarant may not maintain a sign on another Owner's Parcel
without the Owner's written consent).
(xi) The right to establish, from time to time, by dedication or
otherwise, public or private streets and utility and other easements for purposes
including but not limited to public access, access, paths, walkways, drainage, tree
save areas, recreation areas, parking areas, ducts, shafts, flues, conduit installation
areas, and to create other reservations, exceptions and exclusions.
(xii) The right to construct underground utility lines, pipes, wires, ducts
and conduits, storm drains, detention ponds, and other facilities for the purpose of
furnishing services to or within the Shopping Center.
25 2613833 v8 (79024.00002.002)
(xiii) The right to exercise any additional reserved right created by any
other provision of this Declaration.
(xiv) The right to record one or more Supplemental Declarations with
respect to any portion of the Shopping Center, as determined by Declarant. Each
Supplemental Declaration may supplement this Declaration with such additional
covenants, conditions, and restrictions as Declarant may deem appropriate for that
portion of the Shopping Center.
9.02 Phasing of Development Rights. No assurances are made by Declarant regarding
its development rights and special declarant rights reserved herein, or as to whether Declarant
will exercise any of such rights, or the order in which any portions of Grandscape may be
developed. The exercise of development rights as to some portions of Grandscape will not
obligate Declarant to exercise such rights as to other portions.
ARTICLE X.
MISCELLANEOUS
10.01 Obligations of Declaration. Except as otherwise provided by the terms and
provisions of this Declaration, each and every covenant, undertaking, condition, easement, right,
privilege and restriction (herein referred to as "Obligations of this Declaration") made, granted or
assumed, as the case may be, by this Declaration, is made for the personal benefit of Declarant
and shall be an equitable servitude on the Shopping Center thereby affected. Every Obligation of
this Declaration shall run with the land, and shall be binding upon the Owner making or
assuming the several Obligations of this Declaration, and such Owner's successors, assigns,
Mortgagees, Operators, customers and invitees and shall inure to the benefit of their respective
successors, assigns, Mortgagees, Operators, customers and invitees. Any transferee of any part
of the Shopping Center shall automatically be deemed, by acceptance of title to such property, to
have assumed all the Obligations of this Declaration relating thereto, but only to the extent such
Obligations of this Declaration accrue after the effective date of such transfer of title, and to have
agreed with the Owner or Owners of all other portions of the Shopping Center to execute any
and all instruments and do any and all things reasonably required to carry out the intention of this
Declaration. Any transferor shall upon the consummation of such transfer be relieved of all
further liability under this Declaration except such liability as may have arisen during its period
of ownership of the portions of the Shopping Center so conveyed and which remains unsatisfied,
unless such transferor remains an Owner hereunder.
10.02 No Waiver. No delay or omission of any Owner in the exercise of any right
accruing upon any default of any other Owner shall impair any such right or be construed to be a
waiver thereof, and every such right may be exercised at any time during the continuance of such
default. A waiver by any Owner of a breach or a default of any of the terms and conditions of
this Declaration by any other Owner shall not be construed to be a waiver of any subsequent
breach or default of the same or any other provision of this Declaration or a waiver by any other
Owner. Except as otherwise specifically provided in this Declaration, no remedy provided in
this Declaration shall be exclusive, but each shall be cumulative with all other remedies provided
in this Declaration and at law or in equity.
26 2613833 v8 (79024.00002.002)
10.03 No Termination For Breach. It is expressly agreed that no breach, whether or not
material, of the provisions of this Declaration shall entitle any Owner to cancel, rescind or
otherwise terminate this Declaration, but such limitation shall not affect, in any manner, any
other rights or remedies which any Owner may have hereunder by reason of any breach of the
provisions of this Declaration.
10.04 No Dedication to Public. Nothing contained in this Declaration shall be deemed
to be a gift or dedication of any portion of the Shopping Center to the general public or for any
public use or purpose whatsoever, it being the intention of Declarant that this Declaration is for
the exclusive benefit of all Owners of any portion of the Shopping Center and their successors,
assigns, Mortgagees, Operators and Permittees, and that nothing in this Declaration, expressed or
implied, shall confer upon any party other than such Owners, and their successors, assigns,
Mortgagees, Operators and Permittees, any rights or remedies under or by reason of this
Declaration. An Owner shall have the right from time to time to close all or any portion of the
Common Areas on its Parcel to the public in order to prevent a dedication thereto or the accrual
of any rights in any party not expressly granted rights hereunder, but such closing shall not
unreasonably interfere with the use and enjoyment by the Operators and their successors,
assigns, Mortgagees and Permittees of the easements hereby created, and such closing shall not
be for any period longer than is required by law to prevent a dedication to the public or the
accrual of any rights in any party not expressly granted rights hereunder.
10.05 Amendment, Modification or Termination. This Declaration may be amended or
modified at any time by a declaration in writing executed and acknowledged by Declarant and
thereafter duly recorded in the Real Property Records of Denton County, Texas, provided this
Declaration shall not be terminated during the Term hereof, and provided, further, that any such
amendment or modification to this Declaration that takes effect (i) after the effective date of a
lease for space in the Shopping Center, and materially and adversely conflicts with the use rights
of an Operator under the provisions of such existing lease, or that would impose additional
burdens or monetary obligations on that Operator, shall not apply to such Operator without its
written consent for as long as that lease remains in effect, or (ii) after the conveyance by
Declarant of fee simple title to any portion of the Shopping Center to any other Owner, and
materially and adversely affects the rights or obligations of such Owner with respect to such
Owner's Parcel, or that would impose additional burdens or monetary obligations on that Owner,
shall not apply to such Owner or its Parcel without the written consent of such Owner, in
recordable form and filed in the Real Property Records of Denton County, Texas. In addition,
the Declarant may, in its sole and absolute discretion, supplement this Declaration (in lieu of an
amendment) at any time by a supplement in writing executed and acknowledged by Declarant
and thereafter duly recorded in the Real Property Records of Denton County, Texas, in order to
memorialize certain use restrictions that may be granted from time to time to an Operator of any
space within a Building located at the Shopping Center.
10.06 Variances: Declarant may, in its sole and absolute discretion, grant written
waivers and/or variances to the provisions of this Declaration (in lieu of an amendment to this
Declaration), signed by Declarant and without the joinder or consent of any third party, where
strict adherence to the requirements of or restrictions established by this Declaration or to any
architectural standards established by Declarant with respect to the Shopping Center would, in
Declarant's sole judgment, cause undue hardship to any Operator of any portion of the Shopping
27 2613833 v8 (79024.00002.002)
Center or any space within a Building located at the Shopping Center, or not be in the best
interests of the Shopping Center. The granting of a waiver or variance to one Operator shall not
automatically entitle another Operator to the same waiver or variance, it being understood that
each request for a waiver or variance shall be treated by Declarant on its own individual merits.
10.07 Term of Declaration. This Declaration shall be effective as of the date of
recording hereof in the Real Property Records of Denton County, Texas, and shall continue in
full force and effect until 11:59 p.m. on December 31, 2089 (the "Initial Term"); provided,
however, that the Term of this Declaration may be extended by Declarant for successive ten (10)
year renewal Terms (each an "Extension Term") upon filing an appropriate extension instrument
in the Real Property Records of Denton County, Texas within six (6) months of the expiration of
the Initial Term or Extension Term, as applicable.
10.08 Estoppel Certificate. At any time, and from time to time, within thirty (30) days
after notice or request by an Owner, the then Owners of all Parcels, at no cost to the requesting
party, shall execute and deliver to any Mortgagee, ground lessee or purchaser a statement
certifying that this Declaration is unmodified and in full force and effect or if there have been
modifications, that it is in full force and effect as modified in the manner specified in the
statement, and that, among other things reasonably requested, to the knowledge of such Owner,
there exists no default under this Declaration, other than as specified therein.
10.09 Governing Law. This Declaration shall be construed in accordance with the laws
of the State.
10.10 Headings. The section headings in this Declaration are for convenience only,
shall in no way define or limit the scope or content of this Declaration and shall not be
considered in any construction or interpretation of this Declaration or any part thereof.
10.11 No Partnership. Nothing in this Declaration shall be construed to make the
Owners partners or joint venturers or render any of said Owners liable for the debts or
obligations of the others.
10.12 Force Majeure. Any Operator shall be excused from performing any obligation or
undertaking provided in this Declaration in the event, but only so long as, the performance of
such obligation is prevented or delayed by strikes, lockouts, inability to procure materials or
permits, power failure, acts of God, governmental restrictions, civil commotion, fire,
unavoidable casualty, or other causes beyond the control of such Operator, provided, however,
that the lack of adequate funds or financial inability to perform shall not be deemed to be a cause
beyond the control of such Operator.
10.13 Hazardous Substances. No Operator of the Shopping Center shall use, discharge,
dump, spill or store any "Hazardous Substances" (as defined below) in the Shopping Center,
except for Hazardous Substances that are used or stored by such Operator in connection with the
customary operation of its retail store, restaurant, office, hotel, or business at the Shopping
Center, provided that (i) such Hazardous Substances are used and stored in compliance with
applicable laws, and (ii) such Operator cleans -up, removes and otherwise remediates any
discharging, dumping or spilling of such Hazardous Substances in accordance with applicable
28 2613833 v8 (79024.00002.002)
laws and the reasonable requirements of the other Owners. Each Owner hereby covenants and
agrees to defend, protect, indemnify and hold harmless all other Owners and their respective
directors, officers, agents, representatives and employees from and against all claims, including
any action or proceeding brought thereon, and all costs, losses, expenses and liabilities
(including, without limitation, reasonable attorneys' fees and costs of suit; all third -party claims
and sums paid in settlement thereof, with or without legal proceedings; compensatory and
punitive damages; lost profits; clean-up costs; penalties and fines) asserted or incurred in
connection with or arising as a result of the violation of this Section 10.13 (including, without
limitation, any personal injury or property damage) and the enforcement of this indemnity. The
term "Hazardous Substances" shall mean asbestos, soil or groundwater contamination,
radioactivity, methane, radon, volatile hydrocarbons, underground storage tanks and any other
hazardous or toxic substances, materials or conditions as same may be defined and/or regulated
by any federal, state or local governmental body having applicable jurisdiction.
10.14 Notices. Any notice, demand, request, consent, approval, designation, or other
communication made pursuant to this Declaration or to Declarant shall be in writing and shall be
given or made or communicated by personal delivery; by United States registered or certified
mail, return receipt requested; or by prepaid FedEx or other nationally recognized overnight
delivery service. Notices shall be addressed, in the case of Operators, to the most recent or
current address on file in Declarant's records, and, in the case of Declarant, to:
The Colony Local Development Corporation
6800 Main Street
The Colony, Texas 75056
Attention: Joe McCourry, President
With copy to:
LMG Ventures, LLC
700 S 72 St.
Omaha, NE 68114
Attn: Ryan Blumkin
And copy to:
Kane Russell Coleman & Logan PC
1601 Elm Street
3700 Thanksgiving Tower
Dallas, Texas 75201
Attn: Raymond J. Kane
But after the conveyance of all or any portion of the Land to LMG or its affiliate, then, in the
case of Declarant, to:
LMG Ventures, LLC
700 S 72 St.
29 2613833 v8 (79024.00002.002)
Omaha, NE 68114
Attn: Ryan Blumkin
With copy to:
Kane Russell Coleman & Logan PC
1601 Elm Street
3700 Thanksgiving Tower
Dallas, Texas 75201
Attn: Raymond J. Kane
10.15 Sales Tax Reimbursements. The Land and Shopping Center are subject to an
agreement with the City (or a political subdivision thereof) providing a sales tax reimbursement
to fund the construction and development of infrastructure improvements and other public
improvements (the "Tax Incentive Agreement"). Each Operator understands and agrees that it
shall not be entitled to participate in any such reimbursements, and that charges due under this
Declaration and/or under any lease of space at the Shopping Center will not be reduced by reason
of such reimbursements. Each Operator agrees to execute and submit any and all applicable
forms required by the Office of the Texas Comptroller of Public Accounts in order to authorize
the City and Declarant to request and inspect each Operator's sales tax records for its respective
premises that are on file with the Office of the Texas Comptroller of Public Accounts. In
addition, each Operator shall submit to Declarant upon request the following documentation as to
any sales tax year ("Data"):
(a) a written schedule, certified by Operator as to its accuracy and
completeness, detailing such Operator's sales tax revenues from its premises for such
year;
(b) a copy of all Texas sales tax returns and self-addressed use tax amounts,
including amended reports, filed by Operator with respect to its premises for that year
showing sales tax paid;
(c) information concerning any refund received by Operator of sale and use
tax paid by Operator with respect to its premises which had been previously reported by
Operator as sales and use tax paid; and
(d) a copy of Operator's 941 Quarterly Payroll Tax Report, or equivalent, with
names redacted.
Except as required by the terms of the Tax Incentive Agreement, or as otherwise required by
applicable law or pursuant to court order, all Data provided by an Operator to Declarant that
discloses sales revenues, taxes paid, payroll taxes or expenses, employment and any other
business -specific data of the Operator (that is not otherwise public information) shall remain
confidential with Declarant. Notwithstanding the foregoing, Declarant may, at its option, waive
as to any Operator any of the foregoing requirements to provide Data.
10.16 Assignment of Declarant Rights. The rights and obligations of Original Declarant
shall automatically be assigned to LMG or its affiliate, upon the transfer of fee simple title to all
30 2613833 A (79024.00002.002)
or any portion of the Land to LMG or its affiliate as the successor Declarant, as evidenced by a
deed recorded in the Official Real Property Records of Denton County, Texas. Thereafter,
"Declarant" shall mean the party to whom LMG assigns its rights as Declarant under this
Declaration in an instrument filed in the Real Property Records of Denton County, Texas.
10.17 Gift Card Program. In the event Declarant elects to institute a "Gift Card
Program" at the Shopping Center, each Operator shall be obligated to participate in such program
as directed by Declarant, all at no additional cost to each Operator other than ordinary
operating/administrative expenses associated with processing gift cards. Upon implementation
of a Gift Card Program for the Shopping Center, a copy of said program shall be distributed to
each Operator describing the process of acquiring/redeeming gift cards which are generic to the
Shopping Center and not specific to any individual Operator. Declarant reserves the right, at no
material cost to each Operator, to modify the program as appropriate or necessary under the
circumstances and shall designate one or more banking institutions to administer the program.
10.18 Intellectual Property Rights. The trademarks, servicemarks, trade name,
copyrights and logo of "Grandscape," "Nebraska Furniture Mart," "Nebraska Furniture Mart
Texas" and "West 25" (collectively, "Intellectual Property Rights") are proprietary rights of
LMG and are protected under federal and state law. No Operator or promotion fund, media fund
or any other entity or agency engaged in the promotion of the business of any Operator at the
Shopping Center or acting under any Operator's auspices shall use the Intellectual Property
Rights in any manner whatsoever (including, without limitation, to express or imply any
endorsement by Declarant or LMG or affiliates of either of them) without LMG's prior written
consent in each and every instance, which consent may be withheld in LMG's sole discretion. In
the event of a violation of these provisions, then LMG shall be entitled to seek all other rights or
remedies available to LMG at law or in equity, including an injunction and special and
consequential damages, and, notwithstanding anything in this Declaration to the contrary, in no
event shall LMG's rights under this Section be subject to any limits on, or waiver of, special or
consequential damages.
[The remainder of this page is intentionally left blank.]
31 2613833 A (79024.00002.002)
IN WITNESS WHEREOF, Declarant has caused this Declaration to be executed
effective as of the day first above written.
Declarant:
THE COLONY LOCAL DEVELOPMENT
CORPORATION,
a Texas non-profit corporation
STATE OF TEXAS §
COUNTY OF DALLAS §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas,
on this day personally appeared Joe McCourry, the President of THE COLONY LOCAL
DEVELOPMENT CORPORATION, a Texas non-profit corporation, personally known to me
to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me
that he executed the same as a duly authorized officer of such corporation, and as the act and
deed of such corporation, for the purposes and consideration therein expressed, and in the
capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this/ay of ,
2014.
a
CHRISTIE NEU WILSON
SEAL MY Commission Expires
)NovemberI --- 22, 2017------------- I
Notary Public, State of Texas
(Typed/Printed Name of Notary Public)
My Commission Expires:
2613833 v8 (79024.00002.002)
Exhibit "A"
Legal Description of the Land
Being a 30.779 acre tract of land located in the Buffalo Bayou, Brazos & Colorado Railroad
Company Surveys, Abstract No.'s 173 and 174, and the Thomas A. West Survey, Abstract No.
1344, in the City of The Colony, Denton County, Texas, and being a portion of a called 377.68
acre tract of land described in the Special Warranty Deed to The Colony Local Development
Corporation, The Colony Economic Development Corporation, and The Colony Community
Development Corporation, filed for record under the County Clerk's Instrument No. 2013-20492,
Official Public Records, Denton County, Texas (O.P.R.D.C.T.), and being more particularly
described as follows:
BEGINNING at a 1/2 inch iron rod found with a cap stamped "DAA" (Controlling Monument)
at the southerly end of a corner clip located at the intersection of the northeasterly right-of-way
line of Plano Parkway (a variable width public right-of-way) and the southerly right-of-way line
of State Highway No. 121 (a variable width public right-of-way also known as Sam Rayburn
Tollway), as described in the deed to the State of Texas, filed for record in Volume 5241, Page
5213, Deed Records, Denton County, Texas (D.R.D.C.T.);
THENCE N08046'31 "E, along said corner clip, a distance of 8.22 feet, to a 1/2 inch iron rod set
with a cap stamped "GAI" (hereinafter referred to as an iron rod set) at the most southerly
southwest corner of a called 0.356 acre tract of land described in the Special Warranty Deed to
the City of The Colony, filed for record under the County Clerk's Instrument No. 2013-65872,
O.P.R.D.C.T., and from which a 1/2 inch iron rod found with a cap stamped "DAA" (Controlling
Monument) bears N08°46'31 "E, a distance of 17.81 feet;
THENCE along the southeasterly line of said 0.356 acre tract, same being the new southeasterly
right-of-way line of said State Highway No. 121 the following five (5) calls:
(1) N60°47'33"E, a distance of 215.12 feet, to an iron rod set at the beginning of a tangent curve
to the left having a radius of 2893.79 feet; (2) Along said tangent curve to the left and in a
northeasterly direction through a central angle of 05°00'00", for an arc length of 252.53 feet, said
curve also having a long chord which bears N58°17'33"E, a chord length of 252.45 feet, to an
iron rod set; (3) N55°47'33"E, a distance of 105.54 feet, to an iron rod set at the beginning of a
tangent curve to the right having a radius of 2835.79 feet; (4) Along said tangent curve to the
right and in a northeasterly direction through a central angle of 05°00'00", for an arc length of
247.47 feet, said curve also having a long chord which bears N58°17'33"E, a chord length of
247.39 feet to an iron rod set; and (5) N60°47'33"E, a distance of 313.63 feet, to a point for
corner at the intersection of said new southeasterly right-of-way line and the southeasterly right-
of-way line of said State Highway No. 121 as described in said Volume 5241, Page 5213,
D.R.D.C.T., and from which a Texas Department of Transportation brass monument found
(hereinafter referred to as a brass monument) bears N06°41'51 "W, a distance of 0.53 feet;
THENCE along the southeasterly right-of-way line of said State Highway No. 121 as described
in said Volume 5241, Page 5213, D.R.D.C.T., the following ten (10) calls:
A - 1 2613833 v8 (79024.00002.002)
(1) N76-30'51 "E, a distance of 40.57 feet, to a point for corner from which a brass
monument bears N00°38'25"E, a distance of 0.22 feet; (2) N65°56'12"E, a distance of 100.40
feet, to a brass monument; (3) N64°13'39"E, a distance of 100.18 feet, to a point for corner from
which a brass monument bears N14°45'29"W, a distance of 0.25 feet; (4) N60°16'36"E, a
distance of 39.88 feet, to a point for corner from which a brass monument bears N26°48'33"W, a
distance of 0.20 feet; (5) S74° 12'01 "E, a distance of 70.70 feet, to an iron rod set;
THENCE S29012'22"E, departing the southeasterly right-of-way line of said State Highway
No. 121, a distance of 97.00 feet;
THENCE N60047'38"E, a distance of 43.19 feet to a point in the west line of a called 82.09 acre
tract of land described in the deed to TXFM, Inc., filed for record under the County Clerk's
Instrument No. 2013-20491, O.P.R.D.C.T.;
THENCE along the westerly line of said TXFM, Inc. tract the following five (5) calls:
(1) S30°00'00"E, a distance of 382.92 feet, to an iron rod set at the beginning of a tangent curve
to the left having a radius of 100.00 feet; (2) Along said tangent curve to the left through a
central angle of 35°00'00", for an arc length of 61.09 feet, said curve also having a long chord
which bears S47°30'00"E, a chord length of 60.14 feet to an iron rod set; (3) S65°00'00"E, a
distance of 259.91 feet to an iron rod set, to the beginning of a tangent curve to the right having a
radius of 78.50 feet; and (4) Along said tangent curve to the right through a central angle of
65°00'00", for an arc length of 89.06 feet, said curve also having a long chord which bears
S32°30'00"E, a chord length of 84.36 feet to an iron rod set; (5) South, a distance of 561.50 feet,
to a 1/2 inch iron rod found with a cap stamped "GAI" on the northerly right-of-way line of the
aforementioned Plano Parkway, and being on a curve to the left whose radius point bears
S28°57'54"W, a distance of 1050.00 feet;
THENCE Along said curve to the left and in a northwesterly direction through a central angle of
29°26'30", for an arc length of 539.55 feet, said curve also having a long chord which bears
N75°45'20"W, a chord length of 533.63 feet, to a 1/2 inch iron rod found with a cap stamped
"DAA" (Controlling Monument);
THENCE S89031'25"W, a distance of 623.83 feet, to a 1/2 inch iron rod found with a cap
stamped "DAA" (Controlling Monument) at the beginning of a tangent curve to the right having
a radius of 950.00 feet;
THENCE along said tangent curve to the right and in a northwesterly direction through a central
angle of 52°49'04", for an arc length of 875.75 feet, said curve also having a long chord which
bears N64°04'03 "W, a chord length of 845.07 feet, to the POINT OF BEGINNING and
containing 30.779 acres (1,340,720 square feet) of land, more or less.
2 2613833 A (79024.00002.002)
F,xh. B.---
5_ it pia�ppin Center
ME
v8 (79024.00002,002)
Exhibit "C"
Rules and Regulations
1. Operators shall not obstruct the walks, service areas, passage ways, or any Common
Areas with anything or in any manner whatsoever (provided that sidewalk merchandise display
and outdoor seating, and activities as otherwise permitted under a lease and subject to the other
requirements of the Declaration which governs the Shopping Center, shall not be considered
obstructions), and shall maintain any and all entrances, exits, walks, corridors, docks, and
facilities serving their premises free and clear of any and all snow, ice, direct, accumulation of
water, litter, refuse and hazardous conditions whatsoever.
2. Operators shall not leave, place or dispose of any refuse, garbage or thing outside their
premises or elsewhere in the Shopping Center other than garbage or refuse in containers or
receptacles expressly designated by Declarant for that purpose as and where so designated.
3. All refuse shall be deposited in containers reasonably acceptable to Declarant and
disposed of in a manner and at times reasonably acceptable to Declarant.
4. Receiving, shipping, loading and unloading by Operators shall not be done through the
front doors of their premises, but shall at all times be done through the loading dock area at the
rear of their premises (except for deliveries by US Mail and incidental deliveries by courier
services).
5. Operators shall not conduct, advertise, or suffer the occurrence of any auction sale, fire
sale, bankruptcy sale, going out of business sale, distress sale or the like at their premises or the
Shopping Center.
6. Operators shall not overload the floors of their premises.
7. Operators shall keep their premises clean and free of refuse at all times.
8. Operators shall keep display windows, lights and signs lit at such times as Declarant shall
reasonably designate from time to time.
9. Operators shall keep and maintain temperatures in their premises sufficiently high to
prevent freezing of or interference of any flow in pipes in, at and about the premises.
10. Except in connection with grand openings, Operators shall not attach, display, or
maintain on the outer walls, doors, windows or roof of their premises or any portion of the
Shopping Center any sign, awning, aerial, lettering or other matter without Declarant's prior
written consent, which consent Declarant may withhold in its absolute discretion. No sign,
display or lettering shall be employed by any Operator unless the same conforms in all respects
with the Declarant's and the Shopping Center's sign criteria, which may be adopted (and
thereafter modified from time to time) in Declarant's reasonable discretion. Operators shall
conform to and abide by said such sign criteria and shall maintain and keep any and all signs,
displays and/or lettering in good repair, good appearance and good working order at all times and
make all replacements thereto as and when required to keep the same in such condition.
C - 1 2613833 v8 (79024.00002.002)
11. Except as otherwise provided in the Declaration, Operators shall not permit or suffer their
premises to be occupied or used in a manner offensive or objectionable to the Declarant or other
Operators or occupants by reasons of noise, amplified sound, odors, or vibrations, or interfere in
any way with other Operators or those having business therein, nor shall any animals or birds be
kept in or about any premises; provided, however, nothing shall prohibit a national or regional
pet store such as PetSmart or Petco from operating in a manner consistent with such retailer's
other stores, which operations may include the retail sale of pets (including but not limited to
fish, birds, reptiles and small animals), pet grooming, veterinary, boarding, training, day care and
other pet services, pet food, pet accessories and other pet related products.
12. Operators shall not do anything which may damage the personal property of any business
or occupant at the Shopping Center or any part thereof or be a nuisance to other Operators of the
Shopping Center.
13. All fixtures and/or trade fixtures installed by Operators in their premises shall be new or
thoroughly reconditioned.
14. The plumbing facilities, drains and lines in or about any premises and/or the Shopping
Center shall not be used for any other purpose by any Operator or anyone under their control
other than for the purpose for which they are constructed, nor shall any tenant put (or dispose of)
any foreign substance therein of a kind other than that for which such facility was specifically
designed or permit such event to occur; and all cost and expense of repairing, replacing, or
restoring said facilities or equipment by reason of any breakage, stoppage, or damage resulting
from a violation of this provision shall be borne by such Operator.
15. Operators shall not burn any trash or garbage of any kind in or about their premises or the
Shopping Center.
16. No sign, banner or fixture (whether permanent or temporary) shall be erected on the roof
or exterior walls of any premises at or about the Shopping Center without first obtaining
Declarant's consent in writing in each instance, which consent may be withheld by Declarant in
its sole and absolute discretion. Any sign, banner or fixture (whether permanent or temporary)
installed without prior written consent of Declarant shall be removable by Declarant without
notice at any time and without liability of any kind to Declarant, and if Declarant consents to the
installation of such sign, banner or fixture (whether permanent or temporary), it shall be installed
in accordance with any and all applicable governmental authorities.
The failure of the Declarant to seek redress for violation of, or insist upon the strict
performance of any covenants or conditions of this Declaration or any of the Rules and
Regulations set forth above or hereafter adopted by Declarant, shall not prevent a subsequent act,
which would have originally constituted a violation, from having all the force and effect of an
original violation. The receipt by Declarant of rent with knowledge of the breach of any
covenant of this Declaration or breach of these Rules and Regulations shall not be deemed a
waiver of such breach. The failure of Declarant to enforce any of these Rules and Regulations as
set forth above or hereafter adopted against any tenant shall not be deemed a waiver of any such
Rules and Regulations.
C-2 2613833 v8 (79024.00002.002)
Declarant shall not be liable to any Operator for violation of any said Rules and
Regulations or the breach of any covenant or condition in any Lease by any other Operator.
These rules and regulations shall be binding upon heirs, successors, representatives and
assigns of all Operators and their respective employees, customers and visitors.
C-3 2613833 v8 (79024.00002.002)
Exhibit "D"
Landscaping Materials Example
(RAND CAPE' WEST 25 LANM UA
Shade Trees
1
Allee Elm
Ulmus parvifolia 'Enver ll'
SC11rN7�FlIC IA lI
�)R, a`
Bosque Elm
_
4"-5" cal., 15'-16' ht., 6'-7' sp., full
_ i lE
—
_- T
I
4
A
Shade Trees
1
Allee Elm
Ulmus parvifolia 'Enver ll'
200 gal., 6"-7" cal., 20'-22' ht., 10'-12' sp., full
2
Bosque Elm
Ulmus parvifolia 'Bosque'
4"-5" cal., 15'-16' ht., 6'-7' sp., full
3
Cedar Elm
Ulmus crassifolia
100 gal., 14'-16' ht., 7'-9' sp., 4" cal. min., full
4
Chinese Pistache
Pistachia chinensis
100 gal., 14'-16' ht., 7'-9' sp., 4" cal. min., full
5
Eastern Red
Cedar
Juniperius virginiana
B&B or Cont., 2"-2 1/2" cal. Min., 8'-10' ht., full to
ground
6
Live Oak
Quercus virginiana
100 gal., 13'-14' ht., 7'-9' sp., 4" cal. min., full
7
Magnolia
Magnolia grandiflora 'Alta'
100 gal., 12'-14' ht., 6-6' sp., 4" cal. min., full
8
Pond Cypress
Taxodium ascendens
100 gal., 12' ht., 6' sp., 4" cal. min., full
9
Shumard Oak
Quercus shumardii
100 gal., 14'-16' ht., 7'-9' sp., 4" cal. min., full
B
Ornamental and Flowering
Trees
1
Crape Myrtle
Lagerstroemia indica
'Acoma'
30 gal, 8'-10' ht., 4'-5' sp., 3-5 canes min., 1 1/2"
cal. Each cane min., full
2
Crape Myrtle
Lagerstroemia indica
'Burgundy Cotton'
30 gal, 8'-10' ht., 4'-5' sp., 3-5 canes min., 1 1/2"
cal. Each cane min., full
3
Crape Myrtle
Lagerstroemia indica
'Catawba'
30 gal, 8'-10' ht., 4'-5' sp., 3-5 canes min., 1 1/2"
cal. Each cane min., full
4
Crape Myrtle
Lagerstroemia indica
'Dynamite'
30 gal, 8'-10' ht., 4'-5' sp., 3-5 canes min., 1 1/2"
cal. Each cane min., full
5
Crape Myrtle
Lagerstroemia indica
'Pink Velour'
30 gal, 8'-10' ht., 4'-5' sp., 3-5 canes min., 1 1/2"
cal. Each cane min., full
6
Crape Myrtle
Lagerstroemia indica
'Tonto'
30 gal, 8'-10' ht., 4'-5' sp., 3-5 canes min., 1 1/2"
cal. Each cane min., full
7
Crape Myrtle
Lagerstroemia indica
'Tuscarora'
30 gal, 8'-10' ht., 4'-5' sp., 3-5 canes min., 1 1/2"
cal. Each cane min., full
8
Red Bud
Cercis reniformis
'Oklahoma'
B&B, 2" cal. Min., 7'-8' ht., 4'-4 1/2' sp., full
9
Tree Yaupon
Holly
Ilex vomitoria
30 gal., 7'-8' ht., 4'-5' sp., 3-5 canes min., multi -
trunk, full min. 2" cal. Each trunk
C
Large and Small Shrubs
1
Dwarf Burford
Holly
Ilex cornuta 'Burfordi
nava'
3 gal., 18"-22" ht. x 14"-161'sp., full
2
Dwarf Indian
Hawthorn
Raphiolepis indica
'Pinkie'
3 gal., 12"-14" ht. x sp., full
3
Dwarf Fountain
Grass
Pennisetum
alopecuroides 'Hamelin'
1 gal., heavily rooted full
D - 1 2613833 v8 (79024.00002.002)
4
Dwarf Yaupon
Holly
Ilex vomitoria 'Bordeaux'
3 gal., 18"-18" ht. x sp., full
5
Gulf Muhly
Muhlenbergia capillaris
3 gal., heavily rooted, full
6
Knockout Rose
Rosa 'Knockout'
3 gal., 20"-24" ht. x sp., full
7
Lorepetallum
Loropetalum chinensis
3 gal., 18"-24" ht. x sp., full
8
Lorepetallum
Loropetalum chinensis
'Purple Diamond'
3 gal., 18"-24" ht. x sp., full
9
Mexican Feather
Grass
Nassella tenuissima
1 gal., heavily rooted full
10
Miscanthus
"Adagio'
Miscanthus sinensis
Adagio'
3 gal., heavily rooted, full
11
Miscanthus
'Morning Light'
Miscanthus sinensis
'Morning Light'
3 gal., heavily rooted, full
12
Oak Leaf Holly
Ilex x 'Oakleaf (p.p.
#9487)
30 gal., 5'-7' ht., 2 1/2'-3' sp., full to ground, no
voids
13
Red Yucca
Hesperaloe parvifolia
3 gal., 12"-14" ht. x sp., full
D
Groundcovers and
Turf
1
Asian Jasmine
Trachelospermum
asiaticum
4" pot, heavily rooted, full
2
Liriope
Liriope muscari 'Big Blue'
4" pot, heavily rooted, full
3
Purple
Wintercreeper
Euonymus fortunei
'Colorata'
4" pot, heavily rooted, full
4
Bermuda Grass
Cynoden dactylon
Common Bermuda solid sod or Hydromulch
D-2 2613833 v8 (79024.00002.002)
Exhibit "E"
Grandscape Design Criteria — West 25 Building Standards
Architectural Design
Criteria
Grandscape is a master planned retail, entertainment, office and residential development located
in The Colony, TX.
Buildings within the Grandscape development are subject to enhanced design standards. The
following are the minimum standards for building design intended to form an identity for
Grandscape that will distinguish it from other developments in the region. Through the use of a
common palette of materials, forms, features and colors, the Building Standards create a
coordinated and inviting mix of buildings and spaces which encourage a diversity of
architectural styles and materials that respect and enhance the unique and inviting atmosphere of
Grandscape.
In an effort to achieve the aesthetic intended for Grandscape, all elements covered in this section
must be submitted for review and approved by the landlord.
Building Facades
Building facades, with their shapes, materials, colors, openings, textures and details, determine
the architectural character of a building. The design and building facades at Grandscape must
incorporate an expression of contemporary uses and technical sophistication and contribute to the
architectural character and overall quality of the entire development.
1. Building massing standards.
(a) A single building mass with more than one (1) tenant shall be varied by height
and width so that it appears to be divided into distinct massing elements and architectural details
viewed from a pedestrian scale.
(b) For structures less than 5,000 square feet in gross building area on the ground
floor, no uninterrupted horizontal length of a building fagade shall exceed thirty-five (35) linear
feet.
(c) For structures greater than 5,000 square feet in gross building area on the ground
floor, no uninterrupted horizontal length of a building facade shall exceed fifty (50) linear feet.
(d) Variations in building massing shall include changes in wall plane or height and
shall relate to primary building entries, important corners or other significant architectural
features.
E - 1 2613833 A (79024.00002.002)
(e) Blank, uninterrupted wall areas shall incorporate the use of landscaping to break
up the monolithic appearance of such areas. Blank wall areas shall not exceed fifteen (15) feet in
vertical direction or twenty five (25) feet in horizontal direction of any building fagade.
2. Building scale design standards.
(a) Each building fagade oriented to a public street or open space shall incorporate
architectural scaling patterns that use three (3) or more of the following elements:
(i)
Changes in material;
(ii)
Changes in color;
(iii)
Changes in texture; and/or
(iv)
Changes in design pattern.
(b) Each change of material shall involve at least one (1) foot variation in wall plane.
(c) Architectural scaling patterns shall occur both horizontally and vertically.
(d) Architectural scaling elements shall be used to break down the appearance of
large building fagades into architectural patterns and component building forms.
(e) Required scaling elements shall be integral with the building form and
construction, not a thinly applied facade treatment.
(f) Entr ways, facades and storefronts. Through the use of architectural details and
scale, the intent is to design architectural features and patterns which shall provide visual interest
from the perspective of the pedestrian and the motorist. All buildings shall be required to provide
one (1) of the following exterior elements:
(i) Awnings, canopies or porticos, integrated with building massing and style
at all entryways; and/or
(ii) Trim elements of appropriate materials at entryways and fenestrations.
(g) Entryways shall be differentiated from the remainder of the fagade through, at a
minimum, the use of color, change in materials, application of architectural features (arches,
columns, colonnades, etc.), setbacks, offsets and the like.
(h) Primary entrances on a building fagade shall be oriented to the street from which
it is addressed.
(i) A minimum of ten percent (10%) of the fagade area facing a street or public way
shall include windows.
0) Storefronts or large display windows shall be used when at street level.
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3. Building material standards.
(a) All building walls shall be faced 100 percent with approved materials that are of a
durable, high quality appearance. Acceptable exterior materials shall include but not be limited
to the following:
(i) Brick
(ii) Stone
(iii) Stucco (When stucco is used as an exterior finish, no more than seventy-
five (75) percent of the building facade may consist of this product. A minimum of
twenty-five percent (25%) shall be of a contrasting stone and/or brick product.
(iv) Cellulose fiber board, aluminum, vinyl siding and Exterior Insulation and
Finish System ("EIFS") may be allowed on a case-by-case basis by the Declarant.
(v) Concrete tilt wall construction may be permitted with an acceptable
exterior covering as approved in advance by the Declarant.
(vi) Architectural accents consisting of metal products are permitted with a
maximum coverage not to exceed twenty percent (20%).
(b) Exterior colors shall be limited to natural earth tones, such as the warm and muted
hues of reds, browns, tans, and grays. The requirement for earth tones shall not apply to colors
commonly found in natural materials such as brick or stone, unless such material has been
artificially colored in a manner which would be contrary to the intent of these design standards.
(c) Other colors, excluding fluorescents, may be permitted as accent colors, not to
exceed ten (10) percent of the surface area of any one (1) elevation.
(d) A color or color scheme which is directly inherent to a uniquely recognized
architectural style or exterior artwork, but not otherwise in compliance with this Section, may be
permitted as approved in advance by Declarant.
(e) Building materials and colors shall be consistent on all sides of a building.
(f) The design of roof structures shall be flat with a parapet wall, hip roof or gable
roof. Long stretches of the same roof form shall be avoided.
(g) Roof -like appurtenances such as false roofs, parapets and other similar features
may be allowed if such features are required for mechanical equipment screening or acoustical
control that cannot be accomplished through utilization of approved roof styles. Application of
such roof -like features shall be accomplished in such a manner as to minimize the appearance of
a flat roof design.
(b) The use of any form of metal roofing displaying bold or primary colors is
prohibited. Other forms of metal roofing may be allowed if approved in advance by Declarant.
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(i) Awnings or canopies shall be provided at storefronts and entryways to shield
displays and to add visual interest.
(i) Awnings shall be provided over public walkways and dining areas.
(ii) Awnings shall be angled or curved.
(iii) Awnings shall not serve as the primary architectural element of a building.
(iv) The location of awnings shall relate to window openings, door openings
and/or dining areas.
(v) Awning material shall be constructed of traditional cloth fabric in no more
than three (3) colors.
(vi) Awnings shall not be internally illuminated or backlit but may be lighted
from above by shrouded fixtures mounted to the building wall.
(vii) Awnings may have letterings or logos on the valance only.
(viii) Detached canopies shall be constructed of compatible materials and forms
with the building that the canopy serves.
(ix) Internally illuminated canopies are prohibited.
(x) Canopies shall be of a complementary scale to the building it serves.
(xi) Lighting fixtures at the bottom of canopies shall be fully shielded with the
bottom of the lighting fixture flush with the canopy.
(xii) Canopies shall not be taller than sixteen (16) feet from grade.
Screening
Roof mounted mechanical equipment, skylights and solar panels must be screened or set back so
they are not visible five feet six inches above grade at the property line. Screening materials must
match the materials and colors used on the main building.
Building Mounted Sign Criteria
1. There shall be no flashing, rotating, exposed light or moving signs of any type.
2. Signs shall not be made utilizing exposed raceway, exposed neon tubes, exposed
ballast boxes or exposed transformers.
3. Building mounted signage shall be adequately lit from dusk to midnight each day
unless otherwise approved in advance by the Declarant.
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4. Blade Signs mounted on Tenant's facade which are under building canopies shall
not be more than four and one-half feet (4-1/2') wide and twelve inches high.
5. Building signage shall comply with all applicable codes and ordinances.
Lighting
On -Site Lighting
On -Site Lighting should address the following criteria:
1. Exterior lighting within parking areas shall provide minimum illumination levels
of 4 footcandles on average, with an Average/Minimum uniformity ratio of 4:1.
2. Exterior lighting poles shall not exceed thirty feet in height.
3. Exterior lighting poles shall be or be equivalent to WLS RTS Round Tapered
Steel Series light poles.
4. All exterior light pole fixtures shall be or be equivalent to WLS FV Series HID
light fixtures with flat glass lens or WLS FVL Series LED light fixtures.
5. All exterior lighting shall have Natural White PSMH lamps or LED lamps with a
color temperature of 5000 Kelvin, approved in advance by Declarant.
6. All exterior lighting pole and fixture color and finish shall match Kim Platinum
Silver (PS -P) Color.
7. Entry drive, arrival plaza and pedestrian walkway lighting may include bollard or
low down -light fixtures with concealed light sources.
8. Architectural lighting should include wall wash and down -light fixtures. Flood
lighting is not allowed.
9. All lighting must be indirect and shielded to prevent glare.
10. Lighting may vary in intensity but should be designed to add interest to
landscaping and architectural features.
11. Service area lighting should be designed to contain light within the service areas.
12. Security lighting must be designed to avoid glare, and should direct light toward
buildings not away from them.
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Exhibit "F"
Grandscape Design Criteria — West 25 Additional Requirements for Hotel/Motel
Definitions:
Motel - A building designed for the overnight or temporary lodging accommodations for
travelers containing six (6) or more guest rooms or units for compensation on a daily rate
providing basic services such as linen, maid service and the use of furnishings with exterior
entries to rooms. The term excludes hotels of any kind."
Limited Service Hotel - A building designed for the temporary overnight or temporary lodging
accommodations for travelers containing six (6) or more guest rooms, suites or units for
compensation on a daily rate providing basic hotel services such as linen, maid service and the
use of furnishings."
Full Service Hotel - A building designed for the overnight or temporary lodging
accommodations for travelers, having guestrooms or suites for compensation on a daily rate to
the general public and providing services and amenities beyond basic linen, maid service and the
use of furnishing, such as restaurants, bars, conference rooms, reception areas and recreational
facilities."
Requirements
Hotels. The following regulations shall apply to hotels:
1. Limited Service Hotels shall include the following amenities:
(a) A minimum of 700 square feet of meeting room space;
(b) Limited food and beverage service, including breakfast buffet service;
(c) Guest room access from an interior hallway;
(d) Minimum of 400 square feet of pool surface area;
(e) Attached covered drive-through area adjacent to the hotel lobby or reception area;
and
(f) Parking at a minimum ratio of 1 space per guest room.
2. Full Service Hotels shall include the following amenities:
(a) A minimum of 100 guest rooms and/or suites;
(b) A minimum of 4,000 square feet of meeting room space;
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(c) A minimum of one (1) restaurant which provides three (3) meals per day with on-
site preparation and service provided by wait staff, hostesses, etc. and seating for a minimum of
thirty (30) customers;
and
(d) Guest room access from an interior hallway;
(e) Minimum of 800 square feet of pool surface area;
(f) Attached covered drive-through area adjacent to the hotel lobby or reception area;
(g) Parking at a minimum ratio of 1.25 spaces per guest room.
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