HomeMy WebLinkAboutResolution No. 2015-056 CITY OF THE COLONY, TEXAS
RESOLUTION NO. 2015- 0510
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, FOR THE BOARDWALK AT
GRANDSCAPE, THE COLONY, DENTON COUNTY, TEXAS, LOTS 1
AND 2, BLOCK D OF THE GRANDSCAPE ADDITION PHASE II,
ATTACHED HERETO AS EXHIBIT A; 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, LMG Ventures, LLC, a Texas limited liability company, is the owner of
approximately 16.42 acres of land subject to the Declaration of Covenants, Conditions, and
Restrictions, The Boardwalk at Grandscape, The Colony, Denton County, Texas (hereinafter
referred to as the "CCR's"), a copy of which is attached hereto as Exhibit A, which consists of
Lot 2, Block D of the Grandscape Addition, Phase II, The Colony, Denton County, Texas; and
WHEREAS, the LDC is the owner of approximately 6.95 acres of land subject to the
CCR's, which consists of Lot 1, Block D of the Grandscape Addition, Phase II, The Colony,
Denton County, Texas; and
WHEREAS, on or about July 7, 2015, 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 7th day of JULY,2015.
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Christie e Wilson, City Secretary .,,,,,
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DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
THE BOARDWALK AT GRANDSCAPE
THE COLONY,DENTON COUNTY, TEXAS
3370478 v6(79024.00002.002)
TABLE OF CONTENTS
Page
ARTICLE I. 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 2
1.10 Grandscape 3
1.11 Improvement 3
1.12 Land 3
1.13 Lot or Lots 3
1.14 Mortgage 3
1.15 Mortgagee 3
1.16 Operator 3
1.17 Owner 3
1.18 Permissible Building Areas 3
1.19 Permittees 3
1.20 Person 4
1.21 Prohibited Uses 4
1.22 Rules and Regulations 4
1.23 Shopping Center 4
1.24 Site Plan 4
1.25 State 4
1.26 Supplemental Declaration 4
1.27 Term 4
1.28 Water Detention Parcel 4
ARTICLE II. LAND USE 4
2.01 Permitted and Prohibited Uses 4
2.02 No Interference With Common Areas 7
2.03 Amendments to Site Plan 7
2.04 Maintenance of Lots. 7
2.05 Rules and Regulations 8
ARTICLE III. COMMON AREAS 9
3.01 Grant and Declaration of Reciprocal Rights 9
3.02 Minimum Parking Requirements 9
3.03 Temporary Use of Common Areas During Construction and For Maintenance and
Repair 9
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3.04 Barriers and Traffic Control 10
3.05 Reasonable Use. 10
3.06 Damage, Destruction or Condemnation 10
3.07 Responsibility for Maintenance 10
3.08 Lighting 11
3.09 Taxes 12
3.10 Common Area Liability Insurance 12
3.11 Common Area Expenses 12
3.12 Limitation on Liability 13
ARTICLE IV. BUILDING DESIGN AND CONSTRUCTION 13
4.01 Building Design and Construction 13
4.02 Location and Number of Buildings 15
4.03 Mechanic's Liens 15
4.04 Required Insurance 16
4.05 Indemnification 18
4.06 Waiver of Subrogation 18
4.07 Damage to or Destruction of Buildings 18
4.08 Eminent Domain 18
ARTICLE V. SHOPPING CENTER SIGNS 19
ARTICLE VI. MORTGAGES SUBORDINATE TO DECLARATION 19
ARTICLE VII. APPROVALS 19
ARTICLE VIII. REMEDIES 20
8.01 Default of Operator 20
8.02 Right to Cure Defaults 20
8.03 Other Remedies 20
8.04 Attorneys' Fees 20
8.05 Interest 21
ARTICLE IX. DEVELOPMENT RIGHTS 21
9.01 Development Rights and Special Declarant Rights 21
9.02 Phasing of Development Rights 22
ARTICLE X. MISCELLANEOUS 22
10.01 Obligations of Declaration 22
10.02 No Waiver 23
10.03 No Termination For Breach 23
10.04 No Dedication to Public 23
10.05 Amendment, Modification or Termination 23
10.06 Variances 24
10.07 Term of Declaration 24
10.08 Estoppel Certificate 24
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10.09 Governing Law 24
10.10 Headings 24
10.11 No Partnership 24
10.12 Force Majeure 24
10.13 Hazardous Substances 25
10.14 Notices 25
10.15 Sales Tax Reimbursements 26
10.16 Gift Card Program 27
10.17 Valet Parking Program 27
10.18 Intellectual Property Rights 27
Exhibits
Exhibit "A" - Legal Description of the Declarant Land
Exhibit "A-1" - Legal Description of the CLDC Land
Exhibit "B" - Site Plan of Shopping Center
Exhibit "C" - Rules and Regulations - General and Office
Exhibit "D" - Landscaping Materials Example
Exhibit "E" - Boardwalk Building Standards
Exhibit "F" - Landscape and Hardscape Site Standards
111 3370478 v6(79024.00002.002)
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
This DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
(this "Declaration") is made as of the 'l- day of J4,c..tci , 2015,by LMG
VENTURES, LLC, a Texas limited liability company ("Declarant") and THE COLONY
LOCAL DEVELOPMENT CORPORATION, a Texas non-profit corporation ("CLDC").
Preliminary Statements
The following preliminary statements are a material part of this Declaration:
A. Declarant owns record title to approximately 16.42 acres of real property, as set
forth on Exhibit "A" attached hereto (the "Declarant Land"). CLDC owns record title to
approximately 6.95 acres of real property, as set forth on Exhibit "A-1" attached hereto (the
"CLDC Land"). The Declarant Land and CLDC Land are collectively referred to herein as the
"Land". Declarant and CLDC intend that the Land be developed as the Shopping Center
(hereinafter defined) substantially as depicted on the Site Plan (hereinafter defined).
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 and CLDC desire to subject the Land and 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 their successors, assigns, mortgagees and
tenants.
D. Capitalized terms used in the foregoing preliminary statements have the meanings
set forth in Article I below.
ARTICLE I.
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, service roads, curb cuts
and similar structures and facilities related to and part of such driveways and drive lanes, fire
lanes and service roads within the Shopping Center (but not including any roadways that have
been dedicated to the public use and accepted for maintenance by the City).
1.02 Building: The main portion of any structure built for permanent use on the Land
within the limits of any "Permissible Building Area" shown on the Site Plan, and all projections
or extensions thereof, including, but not limited to, outdoor seating/dining areas, garages, outside
platforms and docks, carports, canopies, and porches approved by Declarant.
1.03 City: The City of The Colony, Texas.
3370478 v6(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 Access Drives, all
parking areas, 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 all Improvements located thereon), 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 includes an "outdoor events area"
(such as, but not limited to, an
amphitheatre, patio or water feature) 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 shall exclude any such "outdoor events area" or
any space used for outdoor seating for customers within such Lot.
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: "Declarant" shall mean LMG until LMG assigns its rights hereunder
as Declarant, after which event 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).
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.
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1.10 Grandscape: The planned development district authorized and established by City
Ordinance No. 2011-1927, duly passed and adopted by the City Council of the City on
November 15, 2011, 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 Improvement or 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: Collectively, the land described on Exhibit "A" and Exhibit "A-1" attached
to this Declaration and incorporated herein by this reference.
1.13 Lot or Lots: Any separately platted lot or parcel of land within the Shopping
Center.
1.14 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.
1.15 Mortgagee: The mortgagee, beneficiary or grantee, as applicable, under any
Mortgage.
1.16 Operator: Any Owner, tenant, subtenant, occupant, licensee or other Person that
operates a business within the Shopping Center that is permitted by this Declaration.
1.17 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 the Water Detention Parcel and any Roads that have been
dedicated to public use and accepted for maintenance purposes by the City.
1.18 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,
as the Site Plan may be amended and superseded from time to time or as otherwise established
by Declarant by written variance or otherwise.
1.19 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.
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1.20 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.
1.21 Prohibited Uses: As defined in Section 2.01(b).
1.22 Rules and Regulations: The Rules and Regulations attached hereto as
Exhibit "C".
1.23 Shopping Center: The shopping center to be developed on the Land generally in
accordance with the Site Plan including, without limitation, all Improvements shown thereon,
which Shopping Center shall be known as "The Boardwalk at Grandscape."
1.24 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.
1.25 State: The State of Texas.
1.26 Supplemental Declaration: An instrument executed by Declarant and filed in the
Real Property Records of Denton County, Texas, by which Declarant may subject all or any
portion of the Shopping Center to additional covenants, conditions and restrictions.
1.27 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.
1.28 Water Detention Parcel. To the extent required by applicable law or
governmental authority, the Lot designated on the Site Plan as the location for the water
detention basin or pond benefitting the Shopping Center and other properties. 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, 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 Lot.
ARTICLE II.
LAND USE
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
4 3370478 v6(79024.00002.002)
thereon of restaurants and/or entertainment establishments and facilities related thereto
common to first-class 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 (i) not consistent and compatible with the terms and provisions of this
Declaration or that is prohibited by applicable deed restrictions except as otherwise
approved by Declarant, or (ii) prohibited by any 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 bingo parlor;
(ii) a flea market;
(iii) 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";
(iv) a funeral home, mortuary, crematorium, funeral product sales, or
other such use;
(v) a so called "head shop", a facility for the sale of paraphernalia for
use with illicit drugs;
(vi) 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);
(vii) 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
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lanes, arcade games, pool tables and similar features), including but not limited to
Chuck E. Cheese's, Dave & Buster's, SpeedZone, Shenaniganz, Main Event,
Pinstack, or a similar facility;
(viii) a carnival, amusement park or circus;
(ix) auto repair or service or body shop;
(x) 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;
(xi) 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
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;
(xii) 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";
(xiii) an animal clinic or facility permitting the boarding of animals;
(xiv) a house of worship or church;
(xv) 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, (i) normal and customary odors from restaurants or other
similar food operations or other approved uses shall be deemed not to create
conditions prohibited hereunder, (ii) outdoor customer calling systems used by
restaurants or other similar food operations shall be deemed not to be an
obnoxious noise or sound, (iii) 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, and (iv) the performance of
live music in any amphitheatre or other live music venue shall not be deemed to
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be a nuisance nor offensive noise so long as the same is permitted by law and
does not materially and adversely impact the customary operations of other
Operators in the Shopping Center;
(xvi) any mobile home park, trailer court, labor camp, junkyard or
stockyard except that this provision shall not prohibit the temporary and
customary use of construction trailers during periods of construction,
reconstruction, or maintenance;
(xvii) any dumping, transfer, disposing, incineration or reduction of
garbage (exclusive of screened garbage compactors located near the rear of any
building);
(xviii) any laundry or dry cleaning plant or laundromat;
(xix) 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;
(xx) any living quarters, or apartments;
(xxi) 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); or
(xxii) any pawn shop.
2.02 No Interference With Common Areas. No use of the Shopping Center shall be
made by any Operator or third party which shall unreasonably interfere with the use of the
Common Areas for the purposes for which they were intended as provided in this Declaration or
impede the free flow of vehicular or pedestrian traffic thereon.
2.03 Amendments to Site Plan. Subject to the City's approval (if required under
applicable law), 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 Lot 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. Notwithstanding any provision to the contrary in this Declaration, 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; provided, however, that Declarant shall not have the right to alter the boundaries of any Lot
not owned by Declarant without first obtaining the written consent of the Owner of such Lot.
2.04 Maintenance of Lots.
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(a) Each Owner or Operator, as applicable, shall maintain, or cause to be
maintained, at its sole cost and expense, its Lot, and the interior and exterior of any
Building or other Improvements thereon, in a sightly and safe condition consistent with
comparable first-class retail developments in the Dallas-Ft. Worth Metroplex, and in
good state of repair. The unimproved portions of its Lot shall be mowed and kept litter-
free. Until such time as a Building or other Improvements are constructed on its Lot,
each Owner shall maintain its Lot as a seeded or landscaped area, shall keep the grass
mowed, shall promptly remove all trash and debris therefrom and generally shall
maintain its Lot in a safe, neat and clean condition at all times. The minimum standard of
maintenance for the improved portions of its Lot 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 Lot 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 Lot 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. Each
Operator shall be required to construct improvements within, and to operate and
maintain, its Lot in accordance with the requirements set forth in this Declaration,
including without limitation, Exhibits "D", "E", and "F" attached hereto.
(b) If any Owner fails to maintain or cause to be maintained its Lot 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 Lot to perform any necessary
maintenance or repairs at the expense of the Responsible Owner. If the Notifying Owner
performs maintenance or repairs on any Lot pursuant to this Section 2.04(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 Lot 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.
2.05 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
Operators and 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 that would have a material, adverse
impact on the business operations of such Operator, unless otherwise agreed to in writing by
such Operator.
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ARTICLE III.
COMMON AREAS
3.01 Grant and Declaration of Reciprocal Rights. Declarant hereby reserves to itself
and grants for the benefit of Declarant and all future Owners and Operators, and its and their
respective successors, assigns, mortgagees, lessees, sublessees, employees, agents, customers,
licensees and invitees (including concessionaires and vendors), and for the benefit of the entire
Shopping Center: (A) permanent, mutual, reciprocal and non-exclusive rights to use the
Common Areas as they exist 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, (ii) installation, connection, operation, maintenance
and use of sanitary sewers, storm drains, detention basins, water lines, electric lines, and gas
lines, telephone lines, vaults, conduits and transformers and other utility lines and related
facilities (which shall be located underground whenever required), and (iii) the use of
landscaping, directional signs and other areas intended for common use; (B) permanent, mutual,
reciprocal and non-exclusive access upon, over and across the Access Drives for the purpose of
vehicular and pedestrian ingress, egress and access, including commercial vehicular traffic such
as delivery trucks; and (C)the right to park in and upon any and all parking areas in the Common
Areas as they may exist from time to time, provided, however, that Declarant may designate,
from time to time and at any time, specified parking areas as required parking for employees of
any Operator and/or to designate or reserve parking areas or spaces for use only by one or more
designated Operators or for specified Persons or other users.
3.02 Minimum Parking Requirements. All portions of the Shopping Center shall
comply with applicable governmental parking requirements.
3.03 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 is obstructed
thereby, an alternate Access Drive 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, 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.
9 3370478 v6(79024.00002.002)
3.04 Barriers and Traffic Control. Except as provided in Section 3.03 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 any of the free access and movement,
including without limitation, pedestrian and vehicular traffic, throughout the Shopping Center;
provided, however, subject to the other provisions of this Declaration, reasonable traffic controls
as may be necessary to guide and control the orderly flow of traffic may be installed by
Declarant so long as the Access Drives and access driveways to parking areas in the Shopping
Center are not closed or blocked and the traffic circulation pattern of the Common Areas, as
depicted on the Site Plan, is not materially and adversely changed or affected in any way.
Notwithstanding anything herein to the contrary, Declarant shall have the right to close portions
of the Common Area to prevent the acquisition of prescriptive rights by the public or other
Persons.
3.05 Reasonable Use.
(a) The rights reserved and granted above in Section 3.01 shall be used and
enjoyed by each Operator in such a manner so as not to unreasonably interfere with,
obstruct or delay the conduct and operations of the business of any other Operator at any
time, including, without limitation, public access to and from said business, and the
receipt or delivery of merchandise in connection therewith.
(b) Once commenced, any construction undertaken in reliance upon the rights
granted herein shall be diligently prosecuted to completion, so as to minimize any
interference with the business of any other Operator. In addition, the Operator
undertaking any such work shall pay all costs and expenses associated therewith and shall
indemnify and hold harmless all other Operator(s) from all damages, losses, liens or
claims attributable to the performance of such work.
3.06 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, the
provisions of this Section 3.06 shall govern the repair and restoration thereof:
(a) If the insurance proceeds or condemnation award are sufficient to effect
total restoration or replacement, then Declarant shall cause the Common Areas and the
Common Facilities to be so repaired, reconstructed and/or replaced substantially as they
previously existed.
(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 Declarant shall 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.
3.07 Responsibility for Maintenance. Upon completion of construction of the
Improvements within the Common Areas or any portion thereof, Declarant shall, during the
Term of this Declaration, operate, maintain, repair and, as necessary, replace, or cause to be
10 3370478 v6(79024.00002.002)
operated, maintained, repaired and replaced all Common Areas located within the Shopping
Center 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 Dallas, 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 shopping centers;
(g) Casualty insurance with respect to the Improvements constituting the
Common Areas and liability insurance covering the Common Areas; and
(h) Maintenance of the Water Detention Parcel and, if applicable, any off-site
facilities, such as offsite drainage facilities and offsite detention ponds and related
facilities serving the Shopping Center, except to the extent maintained by the City.
The maintenance obligations of Declarant hereunder may be assigned in whole or in part to a
third party, which maintenance obligations shall be expressly assumed by such assignee.
3.08 Lighting.
(a) The Common Areas shall be equipped with a lighting system designed to
produce an average maintained lighting intensity of at least four (4) foot-candles and a
minimum of one (1) foot-candle at all points of the parking areas of the Common Areas
so long as the same complies with all applicable governmental laws, codes, ordinances,
1 1 3370478 v6(79024.00002.002)
rules and regulations. Declarant will activate such lighting each day from dusk to at least
one hour after the last Operator closes for business for the evening,but not later than 2:00
a.m., and shall provide low level security lighting from such time until dawn.
Additionally, all store front signage and rear lighting shall be activated at such times as
reasonably required by Declarant. One or more Operators may request that drive aisles
remain lighted past 2:00 a.m., in which event Declarant shall keep the drive aisles of the
Shopping Center lighted for the time periods requested by such Operator(s), conditioned
upon the Operator(s) requesting such extended lighting hours paying, or causing 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 Declarant for complying with such request.
(b) All site and building lighting within each Lot shall comply with the building
standards set forth in the Boardwalk Building Standards (the "Building Standards")
attached hereto as Exhibit "E" and incorporated herein by this reference.
3.09 Taxes. Each Operator shall pay or cause to be paid all ad valorem taxes and other
special taxes and assessments levied against its Lot, its Improvements and its other property in
the Shopping Center(herein called "Taxes").
3.10 Common Area Liability Insurance. Declarant 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 the Common Areas,
whether caused by Declarant's or any Operator's, or their respective agents', guests', invitees', or
customers', own negligence or otherwise. Such policy shall provide limits on a "per occurrence"
basis of not less than (a) $2,000,000 with respect to injury to any one person, $2,000,000 with
respect to any one occurrence, and $2,000,000 with respect to property damage arising out of any
one occurrence, or (b) $2,000,000 combined single limit coverage. Each policy shall provide
that it shall not be canceled or amended without at least ten (10) days' prior written notice to
Declarant, and Mortgagees of which Declarant has been given notice and for which an address
has been furnished, as additional insured(s). Such policy shall name Declarant, Declarant's
Mortgagee (and any other parties requested by Declarant) and any party whom Declarant has
undertaken a contractual obligation to provide insurance coverage as to the Common Areas, as
additional insured(s). Any insurance carried or required to be carried by Declarant pursuant to
this Declaration may be carried under an insurance policy(ies), a program of self-insurance, or
pursuant to a master policy of insurance or so-called blanket policy of insurance covering other
properties owned by Declarant, or any combination thereof, with the prior approval of Declarant.
3.11 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
charge, fee or assessment levied against the Shopping Center or any portion thereof or otherwise
charged to Declarant under any planned improvement district or planned utility district; (ii) any
costs incurred by Declarant (including Taxes) in connection with the operation, maintenance,
repair and replacement of the Common Areas, including the Water Detention Parcel and
associated and ancillary lines, equipment, facilities and appurtenances; (iii) any costs associated
with providing casualty, liability and other insurance coverage over the Common Areas; (iv) any
12 3370478 v6(79024.00002.002)
costs associated with the operation, repair, maintenance and replacement of the roadways, as
such roadways may be extended, modified, expanded or contracted from time to time by
Declarant.
(a) Each Owner of a Lot shall be obligated to pay its pro-rata share of
Common Area Expenses to Declarant. As used herein, pro-rata share of Common Area
Expenses shall be the Common Area Expenses multiplied by a fraction, the numerator of
which is the square footage of all Buildings within such Owner's Lot, and the
denominator of which is the aggregate square footage of all Buildings within the
Shopping Center; provided, however, in the event certain Lots remain undeveloped,
Declarant reserves the right to recalculate said pro-rata share based on land acreage. Such
amount shall be referred to herein as an Owner's "CAM Contribution".
(b) On or before December 1st of each year, Declarant will provide each
Owner with its reasonable estimate of Common Area Expenses for the following year
and the estimated amount of such Owner's CAM Contribution for such year. Each Owner
shall pay one-twelfth (1/12th) of such Owner's estimated CAM Contribution to Declarant
on or before the first day of each month throughout the following calendar year. In the
event Declarant fails to provide an Owner with the estimated monthly amount of such
Owner's CAM Contribution, then the Owner shall pay the estimated amount of its CAM
Contribution for the immediately-preceding year. The amount of each Owner's CAM
Contribution shall be reconciled annually, not later than July 1st of the following year. If
the aggregate CAM Contribution paid by an Owner during a given year is less than its
pro-rata share of Common Area Expenses actually incurred by Declarant for such year,
such Owner shall pay to Declarant within thirty (30) days after such Owner's receipt of
written notice of such deficiency, the difference; if the aggregate CAM Contribution paid
by an Owner during a given year is greater than its pro-rata share of Common Area
Expenses actually incurred by Declarant for such year, such excess sum shall be refunded
by Declarant to such Owner within thirty(30) days.
3.12 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 and site work improvements 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 Lot 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 plans and specifications shall be subject to the prior written approval of
13 3370478 v6(79024.00002.002)
Declarant, which approval shall not be unreasonably withheld by Declarant, provided that the
design evidenced thereby is consistent with the Building Standards, the Landscape and
Hardscape Site Standards attached hereto as Exhibit "F" (the "Site Standards"), and otherwise
consistent with the overall architectural theme of the Shopping Center. Such right of approval
and compliance with the Building Standards 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 Lot 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 Lot 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
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
14 3370478 v6(79024.00002.002)
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 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, except that Declarant shall have the
right to (i) plant trees and other growing plants in the Common Areas pursuant to a landscape
plan which provides for the uniform distribution of trees and other growing plants throughout the
Property, 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) construct other items or amenities customary for first-class commercial
developments, such as signage (including advertising kiosks and directional signage), light
standards, benches, gazebos, cart corrals, trash receptacles, 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 or 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. Notwithstanding any
provision of this Declaration to the contrary, Declarant shall have the right to increase, decrease,
relocate, change and otherwise amend the size, layout and location of the Permissible Building
Areas or otherwise amend the Site Plan as Declarant, subject to governmental approval of any
revised site plan as required by applicable law, in its reasonable judgment, deems necessary or
desirable; provided, however, Declarant will not increase, decrease, relocate, change and
otherwise amend the size, layout and location of the Permissible Building Areas or otherwise
amend the Site Plan in a manner that will materially and adversely affect the ingress, egress,
signage or visibility of any Operator that is operating a business in the Shopping Center at the
time of such increase, decrease, relocation, change or amendment to or of the Permissible
Building Areas or amendment to the Site Plan.
4.03 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,
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
15 3370478 v6(79024.00002.002)
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.
4.04 Required Insurance.
(a) Each Owner (other than Declarant) 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 Lot 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 Lot, the Owner of such Lot 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
equal to the full replacement cost (exclusive of the cost of excavation, foundations, and
footings) of the Buildings and Improvements constructed on its Lot, 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.
16 3370478 v6(79024.00002.002)
(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 Lot (as specifically contemplated and
permitted herein), then the Owner of any such Lot 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 Lot until either the required insurance is reinstated or replacement insurance is
obtained).
(d) If the Owner's permitted use of the Premises includes the sale of alcoholic
beverages, the policy of comprehensive public liability insurance described in this
Section 4.04 shall include coverage for employer's liability, host liquor liability and
liquor liability coverage with a combined single limit of not less than Three Million
Dollars ($3,000,000.00) per occurrence. At least One Million ($1,000,000.00) of such
insurance coverage shall be primary coverage and the remaining Two Million Dollars
($2,000,000.00) of such coverage may be pursuant to an umbrella excess liability policy
(e) The insurance described in this Section 4.04 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 4.04, 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
17 3370478 v6(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.
4.05 Indemnification. If any Owner fails to fulfill its obligation to maintain liability
insurance coverage, as required by Section 4.04 above, then such Owner or Operator shall
defend, indemnify and save Declarant and all other Owners and Operators 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 or Operator at the Shopping Center by such Owner or Operator or its guests, employees,
contractors, vendors, suppliers, agents and Permittees.
4.06 Waiver of Subrogation. TO THE EXTENT PERMITTED BY LAW, EACH
OWNER AND OPERATOR WAIVES AND RELEASES DECLARANT AND ALL
OTHER OWNERS AND 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.
4.07 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 such Lot shall either: (i) repair, restore and rebuild such
Improvements (or cause same to be repaired, restored and rebuilt) to substantially their condition
immediately prior to such event; (ii) repair and restore the undamaged portion of such
Improvements (or cause same to be repaired, restored and rebuilt) to a complete architectural
unit; or(iii) raze the Building, structure, or other Improvement (or cause same to be razed) 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 4.07 shall be subject to all of the terms and
provisions of this Declaration, including, without limitation,this Article IV.
4.08 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 Lot
not constituting part of the Common Areas or Common Facilities is taken, the Owner of the
affected Lot 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
18 3370478 v6(79024.00002.002)
materials used with respect to the original construction and in a first-class, 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 building signage within the Shopping Center shall comply with the Building
Standards and 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). No stand-alone signage shall be permitted
within the Shopping Center nor shall any Owner or Operator be entitled to any off-site signage or
other signage rights within the Shopping Center or within Grandscape. Notwithstanding the
foregoing, 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 directional or way-finding
signs to facilitate vehicular traffic within the Shopping Center.
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.
ARTICLE VII.
APPROVALS
Upon receipt by Declarant of a 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. Under no circumstances shall failure to give written notice of
disapproval within the periods provided for above constitute approval thereof by Declarant.
19 3370478 v6(79024.00002.002)
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 Right 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
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
20 3370478 v6(79024.00002.002)
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.
ARTICLE IX.
DEVELOPMENT RIGHTS
9.01 Development Rights and. Special Declarant Rights. Declarant reserves, for the
duration 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 right to subject any part of Grandscape owned by Declarant to
additional or different covenants, conditions, terms and restrictions, as Declarant
may determine.
(ii) 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
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.
(iii) 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.
(iv) 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.
(v) 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.
(vi) The right to withdraw or remove any portion of the Project from
Grandscape, and from the terms of this Declaration and any other declaration that
may be applicable thereto.
21 3370478 v6(79024.00002.002)
(vii) The right to amend this Declaration, the Site Plan and applicable
maps or plats in connection with the exercise of any development right.
(viii) 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 Lot without
the Owner's written consent).
(ix) 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.
(x) 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.
(xi) The right to exercise any additional reserved right created by any
other provision of this Declaration.
(xii) 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
22 3370478 v6(79024.00002.002)
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 in the exercise of any right accruing upon any
default under this Declaration 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 Person of any breach or default of any of the terms and conditions of this
Declaration 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 Person. 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.
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 Person to cancel, rescind or
otherwise terminate this Declaration, but such limitation shall not affect, in any manner, any
other rights or remedies which Declarant or any Owner or Operator 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 Lot 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 or amended or modified in any
manner which is inconsistent with the use rights of Operators of the Shopping Center under their
respective leases. In addition, 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
23 3370478 v6(79024.00002.002)
County, Texas, in order to memorialize certain use restrictions that may be granted from time to
time to an Operator or any space within a Building located at the Shopping Center.
10.06 Variances: Where appropriate, Declarant may, in its sole and absolute discretion,
grant written 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
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 Lots, 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
Operators partners or joint venturers or render any of said Operators liable for the debts or
obligations of the others.
10.12 Force Majeure. Declarant 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 Declarant.
24 3370478 v6(79024.00002.002)
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, 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 laws and the
reasonable requirements of Declarant. Each Operator hereby covenants and agrees to defend,
protect, indemnify and hold harmless Declarant and all other Owners and Operators 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 and/or CLDC, to:
Declarant:
LMG Ventures, LLC
700 S 72 Street
Omaha,NE 68114
Attn: Ryan Blumkin
with a copy to:
Kane Russell Coleman & Logan PC
1601 Elm Street
3700 Thanksgiving Tower
Dallas, Texas 75201
Attn: Raymond J. Kane
25 3370478 v6(79024.00002.002)
CLDC:
The Colony Local Development Corporation
6800 Main Street
The Colony, Texas 75056
Attention: Joe McCourry, President
with a copy to:
Jeff Moore, Esq.
Brown &Hofmeister, L.L.P.
740 East Campbell Road
Suite 800
Richardson, Texas 75081
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
26 3370478 v6(79024.00002.002)
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 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.
10.17 Valet Parking Program. To the extent Declarant implements a complimentary
valet parking service to serve the customers of the Shopping Center, each Owner shall reimburse
Declarant monthly for such Owner's pro rata share (based upon the square footage of all
Buildings within such Owner's Lot as a fraction of the total square footage of all then-existing
Buildings within the Shopping Center) of the actual cost of operating such valet service.
10.18 Intellectual Property Rights. The trademarks, servicemarks, trade name,
copyrights and logo of "Grandscape," "Nebraska Furniture Mart," "Nebraska Furniture Mart
Texas", "Boardwalk at Grandscape" and any other trademarks and/or trade names associated
with the Project designated by Declarant in the future (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 10.18 be
subject to any limits on, or waiver of, special or consequential damages.
[The remainder of this page is intentionally left blank.]
27 3370478 v6(79024.00002.002)
IN WITNESS WHEREOF, Declarant has caused this Declaration to be executed
effective as of the day first above written.
Declarant:
LMG VENTURES, LLC,
a Texas limited liability company
By:
/i /
Name: Kms► la's,k,
Q
Title: ,Ge. /TL Si Ici'1
STATE OF A)al, §
COUNTY OF {�vw i�� §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of
N�r� sty , on this day personally appeared the Ut,_e.�;t5 l- of
LMG VENTURES, LLC, a Texas limited liability company, 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 $ ' day of
2015.
N ary Public, Stag of/Uel.-,S
C�h tL Q. GG rse
(SEAL) (Typed/Printed Name of Notary Public)
My Commission Expires: 46. 29 Zof 7
GENERAL NOTARY•State of Nebraska
CYNTHIA D.GARNER
My Comm.Exp.August 20,2017
3370478 v6(79024.00002.002)
•
CLDC:
THE COLONY LOCAL DEVELOPMENT
CORPORATION,
a Texas non-profit corporation
By: 1 Ar
Name: of. rrig,
Title: pre_s ck
STATE OF TEXAS
COUNTY OF DENTON §
BEFORE ME, the undersigned augiority, a Notarx Public in and for the State of Texas,
on this day personally appearedIE (4011-1r9 , the 'PrIdQA4 of THE COLONY
LOCAL DEVELOPMENT CORPORATI014, 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 ? day of
2015. Cl
6d,(14,-eu
Notary Pu lie, State of Texas
A5tt IVQ.AA INLOY\
(SEAL) ' -d Name of Notary Public)
CHRIsMrcocatficiN-.on Expires:It
--)4 My Commission Expires
to? November 22,2017
3370478 v6(79024.00002.002)
Exhibit "A"
Legal Description of the Declarant Land
Lot 2, Block D of Grandscape Addition, Phase II, as recorded in/under instrument
number 2015-240 of the Plat Records of Denton County, Texas.
A— 1 3370478 v6(79024.00002.002)
Exhibit "A-1"
Legal Description of the CLDC Land
Lot 1, Block D of Grandscape Addition, Phase II, as recorded in/under instrument
number 2015-240 of the Plat Records of Denton County, Texas.
A-1 — 1 3370478 v6(79024.00002.002)
Exhibit "B"
Site Plan of Shopping Center
[See attached.]
B— 1 3370478 v6(79024.00002.002)
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3370478 v6(79024.00002.002)
B-3
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 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. 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.
5. Operators shall not overload the floors of their premises.
6. Operators shall keep their premises clean and free of refuse at all times.
7. Operators shall keep display windows, lights and signs lit at such times as Declarant shall
reasonably designate from time to time.
8. 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.
9. 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.
10. 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.
C— 1 3370478 v6(79024.00002.002)
11. All fixtures and/or trade fixtures installed by Operators in their premises shall be new or
thoroughly reconditioned.
12. 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.
13. Operators shall not burn any trash or garbage of any kind in or about their premises or the
Shopping Center.
14. 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 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.
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—2 3370478 v6(79024.00002.002)
Exhibit"D"
Landscaping Materials Example
k i aF 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 Juniperius virginiana B&B or Cont., 2"-2 1/2"cal. Min., 8'-10' ht.,full to
Cedar 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., 5'-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 30 gal, 8'-10'ht., 4'-5'sp., 3-5 canes min., 1 1/2"
'Acoma' cal. Each cane min.,full
2 Crape Myrtle Lagerstroemia indica 30 gal, 8'-10' ht., 4'-5' sp., 3-5 canes min., 1 1/2"
'Burgundy Cotton' cal. Each cane min.,full
3 Crape Myrtle Lagerstroemia indica 30 gal, 8'-10' ht., 4'-5'sp., 3-5 canes min., 1 1/2"
'Catawba' cal. Each cane min., full
4 Crape Myrtle Lagerstroemia indica 30 gal, 8'-10'ht., 4'-5' sp., 3-5 canes min., 1 1/2"
'Dynamite' cal. Each cane min.,full
5 Crape Myrtle Lagerstroemia indica 30 gal, 8'-10' ht., 4'-5'sp., 3-5 canes min., 1 1/2"
'Pink Velour' cal. Each cane min.,full
6 Crape Myrtle Lagerstroemia indica 30 gal, 8'-10' ht., 4'-5'sp., 3-5 canes min., 1 1/2"
'Tonto' cal. Each cane min.,full
7 Crape Myrtle Lagerstroemia indica 30 gal, 8'-10' ht., 4'-5'sp., 3-5 canes min., 1 1/2"
'Tuscarora' cal. Each cane min.,full
8 Red Bud Cercis reniformis B&B, 2"cal. Min., 7'-8' ht., 4'-4 1/2'sp.,full
'Oklahoma'
9 Tree Yaupon Ilex vomitoria 30 gal., 7'-8' ht.,4'-S' sp., 3-5 canes min., multi-
Holly trunk,full min. 2"cal. Each trunk
C Large and Small Shrubs
1 Dwarf Burford llex cornuta 'Burfordi 3 gal., 18"-22"ht.x 14"-16"sp.,full
Holly nana'
2 Dwarf Indian Raphiolepis indica 3 gal., 12"-14" ht.x sp.,full
Hawthorn 'Pinkie'
3 Dwarf Fountain Pennisetum 1 gal., heavily rooted full
Grass alopecuroides 'Hamelin'
D— 1 3370478 v6(79024.00002.002)
4 Dwarf Yaupon Ilex vomitoria 'Bordeaux' 3 gal., 18"-18" ht. x sp.,full
Holly
5 Gulf Muhly Muhlenbergia capillaris 3 gal., heavily rooted, full
6 Knockout Rose Rosa 'Knockout' 3gmL2O^-24^ ht. x sp., full
7 Lorepetallum Loropetalum chinensis 3ma, 18"-24" ht. x sp.,full
8 Lorepetallum Loropetalum chinensis 3 gal., 18^-24^ ht. x sp., full
'Purple Diamond'
9 Mexican Feather Namoe8o tenuissima 1 gal., heavily rooted full
Grass
10 Miscanthus Miscanthus sinensis 3 gal., heavily rooted,full
"Adagio' 'Adagio'
11 Miscanthus Miscanthus sinensis 3 gal., heavily rooted,full
'Morning Light'
'Morning Light'
12 Oak Leaf Holly Ilex xYJakleof/o.p. 3OQa|.. 5''7' ht.. 21/2''3' op..fuUtoground. no
#04871 voids
13 Red Yucca Hesperaloe parvifolia 30a|.. 12''-14'' ht. xmp.. full
D Groundcovers and Turf
1 Asian Jasmine Trachelospermum 4" pot, heavily rooted,full
asiaticum
2 Liriope Liriope muscari'Big Blue' 4" pot, heavily rooted, full
3 Purple Euonymus fortunei 4" pot, heavily rooted,full
Wintercreeper 'Colorata'
4 Bermuda Grass Cynoden dactylon Common Bermuda solid sod or Hydromulch
D-2 3370*78,6(79024/0002.002)
Exhibit "E"
Boardwalk Building Standards
Architectural Design Criteria
The following are the minimum standards for building design within the Shopping Center:
Building Facades
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 façade 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 façade 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) 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 feet (25') in horizontal direction of any building facade.
2. Building scale design standards.
(a) Each building façade oriented to a public street or open space shall incorporate
architectural scaling patterns that use three (3) or more of the following elements:
Changes in material;
(ii) Changes in color;
(iii) Changes in architectural form;
(iv) Changes in texture; and/or
(v) 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.
E— 1 3370478 v6(79024.00002.002)
(d) Architectural scaling elements shall be used to break down the appearance of
large building façades into architectural patterns and component building forms.
(e) Required scaling elements shall be integral with the building form and
construction, not a thinly applied façade treatment.
(f) Entryways, façades and storefronts. 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 façade 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 façade shall be oriented to the street from which
it is addressed.
(i) A minimum of ten percent (10%) of the façade area facing a street or public way
shall include windows.
(j) Storefronts or large display windows shall be used when at street level.
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, natural and manufactured
(iii) Stucco (When stucco is used as an exterior finish, no more than seventy-
five percent (75%) 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 or cement fiber board, architectural metal panels, and Exterior
Insulation and Finish System ("EIFS") may be allowed on a case-by-case basis by
Declarant if they are integral to the design of the building.
(v) Concrete or architectural concrete block construction may be allowed on a
case-by-case basis if they are integral to the design of the building and approved in
advance by Declarant.
E—2 3370478 v6(79024.00002.002)
(vi) Architectural accents consisting of metal products are pei„iitted with a
maximum coverage not to exceed twenty percent (20%).
(b) Primary 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.
(h) 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.
(i) Awnings or canopies shall be provided at storefronts and entryways to shield
displays and to add visual interest.
(i) Awnings, canopies, umbrellas or other shading devices shall be provided
over outdoor 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 and awning materials and colors shall not incorporate primary nor
bold colors.
E—3 3370478 v6(79024.00002 002)
(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 may be allowed if integral to the design
concept and approved in advance by Declarant.
(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 Signage Guidelines
1. Building mounted signs shall comply with all city codes and development
declarations as well as these Building Signage Guidelines. To the extent this article differs from
other city codes, development ordinances or declarations, this article shall govern.
2. Approval Process:
A. Complete Signage package shall be submitted to Declarant or his
designee for review and approval prior to installation. The submission package should
include:
(i) Site plan identifying façade locations for building mounted signs.
(ii) Building Elevations showing the proposed signage on each façade,
including location and size.
(iii) Architectural color detail drawings from a sign manufacturer
illustrating proposed building mounted signage.
(iv) All manufacturers' drawings should include construction materials,
mounting details, colors, lighting specifications,transformer locations, size, etc.
Declarant will review the Signage Package for conformance to PD-25 and the Boardwalk CCR's
and will issue an appropriate conformance/non-conformance letter.
E—4 3370478 v6(79024.00002.002)
3. Sign Type:
A. Awning Sign
(i) Location — As an integral part of the awning design. May include
text, logo or other graphic unique to the branding of the user.
(ii) Maximum Effective Sign Area — 100% of the awning. Minimum
Awning Clearance— 8 feet above the sidewalk.
(iii) Maximum Letter Height — Height of the awning subject to
approval of Declarant.
(iv) Required Materials - Canvas, Metal, Wood or other material
approved by Declarant.
B. Blade (or Hanging) Sign
(i) Location - Blade signs are allowed and shall not extend above the
building wall. Blade Signs must be attached to the building wall or to a structure
that is permanently attached to the building. Maximum Effective Sign Area — 4
1/2 square feet of effective sign area.
(ii) Minimum Clearance— 8 feet above the sidewalk. (c) Wall Sign
C. Wall Sign
(i) Location - A sign affixed to or painted on an exterior wall.
(ii) Maximum Effective Sign Area — 80 square feet of effective sign
area per sign or 10% of the façade, whichever is greater.
(iii) Maximum Sign Height— 8 feet.
(iv) Illumination - Signs can be internally or externally illuminated.
Halo illuminated channel letters are preferred.
(v) Changeable Electronic Message/Reader Board - May be one-
hundred percent (100%) of the effective sign area. Each message must be
displayed a minimum of 10 seconds and must occur simultaneously on the entire
electronic sign face. Limit 2 per building.
D. Roof Sign
(i) Location—A sign mounted on a roof or above the bottom edge of a
sloping roof. Roof Signage is limited to two sides of any building.
(ii) Maximum Effective Sign Area—60 square feet.
E—5 3370478 v6(79024.00002.002)
(iii) Maximum Sign Height—6 feet.
(iv) Illumination - Signs can be internally or externally illuminated.
Halo illuminated channel letters are preferred.
E. Window Sign
(i) Location — Decal application graphics will be allowed on glass
areas.
(ii) Maximum Sign Height — Applications must be vinyl die-cut and
applied directly to the glass with a copy height not to exceed 3". Only the address,
hours of operations, entrance/exit information, and emergency phone numbers
may be displayed.
(iii) Maximum Effective Sign Area - Total display area shall not
exceed one hundred forty four inches (144").
(iv) Temporary Signage — Temporary or seasonal advertising placards,
banners, trademarks or other descriptive material may be placed on the inside of
the glass for a maximum of four weeks.
(v) Interior Signs — Signage that is highly visible to the public but not
mounted on the window is prohibited unless approved by Declarant.
4. Maintenance:
A. All signs shall be maintained in good working order and appearance by the
tenant.
5. General Information:
B. These guidelines are not an attempt to cover all items. Declarant will use
its own discretion concerning items not covered within these guidelines.
6. Additional Restrictions:
A. There shall be no flashing, rotating, exposed light or moving signs of any
type.
B. Signs shall not be made utilizing exposed raceway, exposed neon tubes,
exposed ballast boxes or exposed transformers.
C. Building mounted signage shall be adequately lit from dusk to midnight
each day unless otherwise approved in advance by Declarant.
E—6 3370478 v6(79024.00002.002)
Lighting
Parking Area Lighting
1. Exterior lighting within parking areas and along associated pedestrian ways shall
be provided at or above minimum illumination levels as required by City Ordinance and design
standards.
2. Exterior lighting within buildable areas may include light bollards or other
decorative light fixtures with concealed light sources as approved in advance by Declarant.
3. Entry drive, arrival plaza and pedestrian walkway lighting may include bollard or
low down-light fixtures with concealed light sources.
Building Lighting
1. Architectural lighting should include wall wash and down-light fixtures. Flood
lighting is not allowed.
2. All lighting must be indirect and shielded to prevent glare.
3. Lighting may vary in intensity but should be designed to add interest to
landscaping and architectural features.
4. Service area lighting should be designed to contain light within the service areas.
5. Security lighting must be designed to avoid glare, and should direct light toward
buildings not away from them.
E—7 3370478 v6(79024.00002.002)
Exhibit "F"
Landscape and Hardscape Site Standards
Building's Site Entrance Areas
1. Intent of Standards: The Building's Main Entrance should be located along the
southern façade to gain the most visual exposure seen from Grandscape Drive. Buildings could
have other secondary entrances off "the connection walk areas between restaurants" or off
proposed outdoor patios on the north, east or west sides of the buildings, depending on the
individual restaurant site.
2. List of Alternative Building Entrances:
a) Main Entrance on the southern facade of the building facing the surface
parking and Grandscape Boulevard.
b) Alternative Collector Walkway Main Entrance could be located off certain
sites that have a "connector walkway" that runs between the surface parking area and the
Boardwalk Promenade.
c) Restaurant's Service Entrance located on the building's side façade with
access service walks from surface parking driveways.
d) Alternative Boardwalk Entrance could be located off the Boardwalk
Promenade, and should be provided as a separate access from outdoor patio locations.
3. Main Building Entrance Standards:
a) The Main Entrance design paving for the Building should provide good
visibility and sight lines from the parking lot driveways.
b) The Main Entrance paving stoop should be large enough to allow for
patron queuing and standing room. Bench sitting or seat walls should be used to facilitate
patron's waiting-in-line for their table. Bench styles should be an expression of
contemporary uses and contribute to the Building's architectural character and overall
quality of the Boardwalk.
c) Special paving materials for the Main Entrance area should be used and
compatible with the building's façade, with their shapes, materials, opening, textures and
details. Walkways between this special paved entranceway and parking shall be grey,
broom finish walkways to match the existing parking lot walkways. These access
walkways should intersect with the existing parking lot walks at 90 degree alignments.
d) Walks are required to be ADA Accessible per Federal Requirements.
F— 1 3370478 v6(79024.00002.002)
e) Main Entrance areas should be illuminated during evening hours for
safety, and ease of access. Site lighting can be sconce or wall lighting mounted near the
entrance doorways and/or low landscape bollards or small step lights to illuminate the
walkway and entrance stoop area.
4. Building Side Entrances, "Connector Walkway" Connection and Small
Amphitheater Standards:
a) Side Building Entrances shall use the existing concrete "Connector
Walkways" to provide an alternative Building Entranceway on the sides of each building.
Walkways should contain Entrance paving stoop as in 3b above and connect to the
existing"Connector Walkways" with grey, broom finish walk finishes.
b) Pedestrian Site lighting fixtures should be used to illuminate the side
connector walkways with continuous fixtures that match the existing Boardwalk
Pedestrian light style. Note that this project pedestrian light fixtures shall be used a
single-head light fixture and spaced approximately 50 feet apart to gain uniform light
levels along all walks.
c) The small amphitheater proposed for the western most restaurant site
should have electrical and audio service supplied for performance venues. Landscape up-
lights should be installed washing the inside face of the evergreen tree performance
backdrop. Electrical power should also be adequate to install temporary performance
light fixtures if desired.
Building Patios
1. Intent of Standards: A Building's Dining Patio(s) is desired for each building
in the Boardwalk development in order to reinforce and take advantage of the adjacent Lakeside
amenity, sloping landscape buffer areas and Boardwalk Promenade features. The Building
Patios are to be designed to have a close relationship to the Boardwalk Promenade for controlled
patron accessibility to the restaurant (if desired) while maintaining a landscape planting strip
setback from the Boardwalk.
2. Patio Locations and 6 ft. wide Planting and Seat Wall Strip:
a) One or several dining patios should be included with each building site
plan. The patio(s) should be located on the north, east and west sides of the restaurant
building to facilitate excellent pastoral views to the adjacent lake environment.
b) Pedestrian access directly to the Patio from the restaurant's main dining
room space is desired for ease of use with optional pedestrian access allowed to connect
the Patio to the Boardwalk Promenade. Care should be given to providing ADA
accessibility (such as sloped walks or ramps) from the Boardwalk Promenade to the Patio
and Building's finish floor which will be elevated above the Boardwalk's existing grades.
As an alternative, other alternative walk access to the Patio can be provided from existing
"Connector walkways" if this is desired.
F—2 3370478 v6(79024.00002.002)
c) 6-Foot Wide Planting Strip with a Low Stone Seat Wall. A planting strip
and seating wall is required between the Patio and the outside edge of the Boardwalk
paving. This low seat wall shall define a narrow planting strip for small shrubs that will
run the complete length of the Patio and will serve as a public control device for each
restaurant site. The low wall will also assist in reducing maintenance costs for the
Boardwalk Promenade dealing with trash collection and pedestrian traffic control along
the restaurants. The stone veneer seat wall shall be capped with a cast stone cap that will
match the existing material of the Boardwalk's light pylon cap and veneer face. Note
that this narrow planting strip shall contain a linear French drain system that should be
tied into the building roof drainage system to gain positive in this important linear
planting strip.
3. Patio Perimeter Fencing and Paving Materials:
a) Patio perimeter fencing and self-closing gates are required for restaurant
patios to control patron access and if alcoholic beverages are provided. (Re: local codes).
The fence should be open in its design so that maximum views from the interior / patio
dining areas are maintained to the Lake and Boardwalk Promenade.
b) Patio paving materials shall match the individual architectural character.
(See Architectural Building Standards)
c) Patio Climate and Amenity Features. (See Architectural Building
Standards)
Building's Planting and Irrigation
1. Planting Design: The planting around the following site areas of each building
site should primarily be organized on each site as "building foundation planting". All shade and
ornamental / flowering trees shall be staked with watering rings after initial planting. All planting
beds shall be shaped and defined using steel edging that separates planting beds from grass areas.
All beds shall contain a topping mulch to improve moisture retention for the young plantings
masses.
a) The Main Building Entrance area should contain colorful ornamental and
flowering trees that flank each Main Entrance. Strong continuous masses of small
evergreen shrubs, highly visible seasonal flowers and all bordered with evergreen
groundcover plantings should be used to enhance this primary entrance.
b) Site Areas off Each Side of the Buildings should receive a healthy mix of
shade trees and small evergreen ornamental trees. Shade trees should be used to help
shade and reduce the west sun heat to improve energy bills during hot summer periods.
Care should also be taken to not block external views out the buildings glazed walls,
particularly from the dining areas.
c) Patio's Planting Strip — The Patio's 6 foot wide planting buffer shall
contain a low stone seat wall and between this seat wall and the patio shall contain
simple linear evergreen planting of small shrubs the complete length of the building's
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patio frontage. Non- Patio Frontage Area along the side of the Boardwalk Promenade
should contain a healthy mix of foundation planting as described in paragraph "2b"
above.
, I
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