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Home My WebLink About024780 - Construction-Related - Contract - Hillwood Development CorporationCITY SECRETARY ,-, �� C0NTRACT NO . �''� �' � 4°' STATE OF TEXAS § COUNTIES OF TARRANT/ § DENTON § LAND DEDICATION AGREEMENT This LAND DEDICATION AGREEMENT (this "A�reement") is entered into by the City of Fort Worth, Texas (the "C�") and Hillwood Defvelopment Corporation, a Texas corporation ("Hillwood") to be effective the ��,',�`'� day of Q.c,�.�c r�� ,,��r �,+,�, , 1998. , WHEREAS, affiliates of Hillwood are involved in the development of the project known as "Alliance Airport" locatcd in Tarrant and Denton Counties, Texas, portions of which are within the Uoundaries of the City; and WHEREAS, the City and Hillwood desire to provide for the future construction of a facility to serve as a new fire station and to serve other City-designated purposes (the "� Station") in the Alliance Airport area; and �'HEREAS, Hillwood desires to provide at no cost to the City the land to constnict such Fire Station; and WHEREAS, this Land Dedication Agreement is partial consideration for the settlement of certain litigation involving the City, Hillwood, the Town of Westlake, and other entities, such settlement being authorized by Resolution No. 2457, adopted by the Fort Worth City Council on September 29, 1998; NOW THEREFORE, for and in consideration of the mutual benefits to be derived from the Fire Station, Hillwood and the City agree as follows: 1. Laod Dedication fFire Station�: (a) Subject to the time period in Section 1(cl below, at any time after the City has appropriated funds for the construction of the Fire Station, the City may deliver a notice to Hillwood (the "Fire Station Notice") to convey the Fire Station Site (hereinafter defined). Within thirty (30) days after its receipt of such notice, Hillwood at its expense shall cause a current title commitment and a survey to be prepared of the approximately three (3) acre site located near the northeast corner of Old Denton Road and SH 170 generally as shown on the attached Exhibit A(the "Fire Station Site"). Hillwood will permit City and its contractors and agents to enter the Fire Station Site to inspect and test it at City's expense [including without limitation environmental tests, soil borings, and engineering tests (collectively, "Tests")] as City deems necessary or desirable. Hillwood will cooperate with City in arranging the Tests. If the title commitment, the survey and the Tests of the Fire Station Site are reasonably acceptable to the City and Hillwood, then promptly following tlie approval of such items by the City and Hillwood, for no consideration and free and clear of all monetary liens (other than the lien for current �� 6�� , �G�1�, �� , taxes), Hillwood shall cause its affiliate to dedicate and convey the Fire Station Site to the City. (b) If the title commitment, or the survey or the Tests of the Fire Station Site are not satisfactory to the City and Hillwood, Hillwood and the City wil] identify a mutually acceptable and reasonably comparable alternate site for the Fire Station Site (the "Alternate Station Site") from an area within two (2) miles of the Fire Station Site, and Hillwood will convey the A1tei�late Station Site to the City in lieu of the Fire Station Site on the salne terms and conditions as set fortli in this Agreement. (c) Notwithstanding anything to the contraiy contained in this Agreement, City must deliver the Fire Station Notice to Hillwood (if at all) for dedication and conveyance of the Fire Station Site within twenty-one (?1) years from the date of this Agreement. Hillwood's address for receipt of the Fire Station Notice is: Hillwood Development Coiporation, 13600 Heritage Parkway, Suite 200, Fort Worth, Texas 76177, Attention: Mike Berry, and may only be changed upon written notice to City. The parties acknowledge and agree that City may determine in its sole and absolute discretion whether and when to deliver the Fire Station Notice and accept the dedication and Conveyance of the Fire Station Site. Nothing in this Agreement may be construed as granting to or vesting in Hillwood the right to require or compel City to appropriate fiuids for construction of the Fire Station or to accept dedication of the Fire Station Site. 2. Closing: (a) Hillwood will be responsible for ensuring that all water, electricity, telephone and natural gas services are available for use or tie-in at the boundaries of the Fire Station site, and agrees to grant such easements across its neighboring property as City may reasonably require to provide all necessary utility services to the Fire Station Siie. The City (at no cost to City) shall cooperate with Hillwood in the engineerinb, designing, planning and approvals for such utilities. It is further agreed that if sanitary sewer service is not available to the Fire Station Site at the time of dedication, City may elect to accept the dedication and to utilize septic systems until such time as sanitary sewer service is available, at which time City shall have the right, at no additional cost to the City other than the usual and customary pern�its and fees, to tie in to the sanitary sewer service. Based on cost considerations for the extension of utilities to the Fire Station Site Hillwood may propose an Alternate Station Site meeting the criteria of Section 1(b) above, but the Alternate Station Site must be reasonably acceptable to the City. (b) Within ninety (90) days after Hillwood receives the Fire Station Notice, the dedication and conveyance described in Section l aUove shall be made by general warranty deed in a form reasonably acceptaUle to the City, suUject only to those matters described in the respective title commitment and survey that have been accepted by City. Other than monetary liens, Hillwood shall not Ue obligated to cure any title matters. Without limiting the foregoing, the property conveyed pursuant to this Agreement shall be subject to the terms and provisions of the standard Alliance developmental covenants and restrictions (including the development review requirements) attached hereto as � Exhibit B. The closing costs (including the costs of title policy premiums and survey costs) shall be paid by Hillwood. 3. Miscellaneous: (a) This Agreement shall be governed by the laws of the State of Texas, may not be ainended except pursuant to a document signed by both the City and Hillwood, and may not be assigned by either party without the consent of the other party. (b) In the event of default by Hillwood under this Agreement, tlle City may as its sole and exclusive remedy seek specific perfornlance of this Agreement. Further, the City shall be entitled to reasonable attorney's fees, costs, and disbursements incun•ed in any enforcement action under this agreement. (c) Nothing in this Agreement may be deemed to have created a partnership or joint venture between the parties. (d) Between the date of this Agreement and the closing date, neither Hillwood nor its affiliates may create, nor voluntarily permit to be created, any liens, easements, or other encumbrances affecting al] or part of the Fire Station Site without obtaining City's prior written consent. (e) Hillwood represents and warrants to City as follows: (i) Hillwood has all requisite power and authority to enter into this Agreement and cons�unmate the transaction contemplated in this Agreement. Hillwood has duly authorized the execution and delivery of this Agreeinent such that all documents to be executed by Hillwood are its valid, legally binding obligations and are enforceable against it in accordance with terms. (ii) Hillwood or its affiliate is the sole owner of good and indefeasible fee simple title to the Fire Station Site and has the full right to dedicate and convey the Fire Station Site in accordance with this Agreement. (iii) Hillwood has not engaged any agent, Uroker, or other similar party in connection with this transaction, and Hillwood will indemnify and hold City harmless from the claims of any agent, broker, or other similar party claiming by, ihrough, or under Hillwood. 3 EXECUTED TO BE EFFECTIVE AS OF THE DATE FIRST ABOVE WRITTEN. HILLWOOD DEVELOPMENT CORPORATION ,r I � �-- THE CI'I"Y �rF T R� +� `T�, TEXA� By: Title:�'�� . ��, _ � APP,�OVED AS TO FORM AND LEGALITY: ��__ r , /,�� ✓t. �f`ILt [ ��i' '��.• �L� Assistant City At`tqrney �,�rT�s�: � ,� �� .c�ria pearson; Ci �y Secre�ary � � 5 ��. U 77�� '�'.� '� COntract Authorization � ^ �� V Date � N0 �1�-�L ►2-��'� 4 �ARAN JAN� �Dl� f� �,� �[(?"fAi�Y PUB'L�C * 9tate of Texaa ' � �' "'�� Comm. Exp. 01-28-2002 STATE OF TEXAS � COUNTY OF TARRANT § STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, . the undersigned authority, on this day personally appeared /'�% a"��,,,�-��,;% �Assistant City Manager of the City OF FORT WORTH, a municipal corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of the said City OF FORT WORTH, TEXAS, a municipal corporation, that he was duly autllorized to perform the same by appropriate resolution of the City Council of the City of Fort Worth and that he executed the same as the act of the said City for the purposes and consideration therein expressed and in the capacity therein stated. UNDER MY HAND AND SEAL OF OFFICE this , 199i� ,� �,� ,,��'�� ,- �- ,� r'� �' ,��%� .4. r� � � 1 Notary Public in t�i� for the State of Texas � ;�'i�- day of �,r BEFOI� ME, the undersigned authority, on this day personally appeared ! l�l f:�r l/�1.�fL��,�.�r---- , of Hillwood Development Corporation, a Texas corporation, known to me to be �he person whose name is subscribed to the foregoing instrument, and acknowledged to rr're that he executed the same for the purposes and consideration therein expressed, in the capacity therein stated and as the act and deed of said corporation. ��IVEN� UNDER MY HAND AND � �,�.� �'' , I9c�! _� M � �A�t�H J�1�,�� I � � �. N�?T+�fRY P'�1B��C �, �tet,� v�fi T�a� . ��rt} - - �'�►. ��r. 01 •29,?�(1[� � c:\my doc\CMO\CPW Hilhvood Fire Station Agreement PINAL.doc SEAL O�' OFFICE this /� day of � . - � � l l � ��' � � �� ; � f� �� : ,�` G' 6� �r o ary Public in an�' for the � of Texas ( �, 5 �� ''" 1 1 � ��, �:_ `p1� �1�4� . � �� _ '. -'pl��a��*- - � ,w y ��-� - _ - , },� `�; 1, �,�� ... ..� .;�`. _ _ . - C� . � ,, . ...,. ; .. - � ..,;`,, `,�.� � ` ` � ` *` - � , J� * . : �:�� . • 7 r � 4. , J 'I�gr4 ,��: ' � �� . • � . � • T� / .i � �. � �1 `� i �� 1�' .v �' � � , .'� . r��_ ��r ��i� � � � _ .:��'� � ' I" _. -� �-.� �_�:�� r� } � �4 '�� ..=� , �� :. . ��.� � 1�1 - - � "'►a ! i }� _ _ ... � �." .�`�, �'= '� ,_ ��` � k _ - � F ..... � ' � � � � _ - ��,..r `�,� t � � ._.__..:. .�,.,.�. ... � — - � � � `� �, � ''� � � � ';, �,ti,, �� .,. � �``� � � ::,- � �� '. ��'' 1 `. ��,, .• ,;��' �, "� .—�c. I ' �,�,''�'�`_ �'. , �`'` �� "+�- . �� '' ��r 1 t�. �� `�, 4 � "�S � - ' �'��,�,. . ,� \�,� 4 �� i � .\'�'�� ' ,'1�,; '. , � ��y1 1�� » � �' � ,, � � � ��y `}� � � -....�.., ' ��r\�'� � °. .. � 4��,�, y �1 . ��e. �.`',� �y� � �`� � �� 1, ., ' �� "�, � , '�`+,, ��,� ` : � r .5�£ - �;�� `��;�` �� `�,,� ' �'� � ! � � ,`�� ' � 4� �` , ��,� ,`,, _ � . . � � �`\ \.. � ., - w��` � , • : � � `� �� , e , � - �w -_ � � -� ---I . � �\� � �' �.. i� h, ��.,� �'+ �`" �n ��H \ �.�+�' � � �1 •-- ----� i � ��\ i, �e a`\1� - � .,, .. ---.- �,�, . �� -- �— _��----- /�f /� \,..., . "�,k � �"� � i " �WL�L".�_ — - , . . .. , � , �- � � '� �� . _.. � -- � '� 14��.:...:� �_.,��,� �., ..,.�--�-- - � .- 'i t .... �.. _ . .� �_�----` --' ----t .I�' . � � � . ' . � � ' �\� - _ ,, ° ' ��o�� ': � . � � ��' � . — \ � � �``��. �• �,r � i . ,,,� �'y � r � � �`��, �� I � �y�� , . � � / � �,1� � � ,.. � � �\�` ° _ .' ,'� . i " _r- - � L ,�_ � � ,�� I� � `. , _ _ _ . _ J, �'- ' _- _ - --� _ � � � � ... � �_ --_ � � - ' ' } '~ -- -�� : -� . - � - ��r.� '� . � , �e.,'� � '� .�� .-.�:.�.� � � �� _ � �`-• f • • � � . �� ` {\, � 1 .��, �i �•y { \A� 4_ .� I . '� _.we � �1r �� 1 �, � i � _ -- �. _ �. .. — . .._. ,�,�„� --� .. EXHIBIT "A" EXHIBIT "B" RESTRICTIONS AFFECTING THE FIRE STATION SITE City and Hillwood agree: 1. The restrictive covenants to which the Site will be subject (the Declaration) shall be substantially similar to the Declaration of Covenants, Conditions and Restrictions for Alliance Gateway-Phase III attached hereto, except that such restrictions shall provide that so long as the Site is owned by the City, only the following provisions of such resh-ictions will apply to the Site: a. Article VI - Development Review Board b. Article VII - Development Covenants c. Article VIII - Easements d. Article IX - Maintenance by Owners e. Article X- General Provisions 2. Notwithstanding the foregoing, the Development Review Board created pursuant to the Declaration may subsequently adopt Development Guidelines that are substantially similar to those in effect on the date of the Land Dedication Agreement and which are in accordance with Section 5.03(m) of the Declaration. 3. Without limiting the provisions of paragraph 1 above, the City shall never be subject to any assessments or fees under the terms and provisions of the Declaration. DECLARATION OF COVENANTS, RES i tu�l, i it�NS AND EASEMENTS FOR ALLIANCE GATEWAY - PHASE III JUNE 8, 1998 007500.00100:0345491.02 007500.00100:0345491.02 TABLE OF CONTENTS ARTICLE I GENERAL Section 1.01 Purpose Section 1.02 Definitions Section 1.03 Property Subject to Declazation Section 1.04 Purpose of the Association Section 1.05 Fort Worth Alliance Airport ARTICLE II DESIGNATION OF LOTS, STREETS, RAILROAD AREAS, SINGLE USER RAILROAD TRACKS AND ZO1vING Section 2.01 Designation of Lots Section 2.02 Designation of Streets, Railroad Areas and Single User Raiiroad Tracts Section 2.03 Zoning ARTICLE III MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION Section 3.01 Membership Section 3.02 Member in Good Standing Section 3.03 Classes of Voting Members Section 3.04 Quorum, Voting and Notices ARTICLE IV ASSESSMENTS Section 4.01 Covenants for Assessments Section 4.02 Regular Assessments Section 4.03 Special Purpose Assessments Section 4.04 Special Member Assessments Section 4.05 Railroad Area Assessments Section 4.06 Due Date of Assessments Section 4.07 Personal Obligation for Payment of Assessments Section 4.08 Assessment Lien and Foreclosure Section 4.09 Certificate ARTICLE V ASSOCIATION BOARD OF DIRECTORS Section 5.01 Creation of Board Section 5.02 Use of Assessment Funds Section 5.03 Additional Authorities and Duties of the Association Section 5.04 Affiliated Contracts Section 5.05 Liability Limitations 1 1 6 7 7 7 8 8 8 9 9 10 10 11 11 11 12 13 13 13 14 15 IS 16 18 18 -i- 007500.00100:0345491.01 007500.00100:0345491.02 Section 5.06 Insurance ARTICLE VI DEVELOPMENT REVIEW BOARD Section 6.01 Creation of Development Review Boazd Section 6.02 Function of Development Review Board Section 6.03 Plans and Specifications Section 6.04 Inspections Section 6.05 Interior Alterations Section 6.06 Changes Section 6.07 Limitation of Liability Section 6.08 Certificate of Compliance Section 6.09 Documentation ARTICLE VII DEVELOPMENT COVENANTS Section 7.01 General Section 7.02 Prohibited Uses Section 7.03 Setbacks Section 7.04 Spur Tracks Section 7.05 Site Circulation Section 7.06 Fire Protection Section 7.07 Parking Section 7.08 Signage Section 7.09 External Illumination Section 7.10 Antennae and Towers Section 7.11 Underground Utilities Section 7.12 Screening Section 7.13 Loading Docks and Areas Section 7.14 Landscaping Section 7.15 Pazkway Landscape Areas Section 7.16 Trash and Garbage Section 7.17 Surface Water Flow and Drainage Section 7.18 Environment Section 7.19 Fuel Facilities Section 7.20 Fences Section 7.21 Prohibited Activities Section 7.22 Certain Declarant Uses Section 7.23 Construction Standards Section 7.24 Exterior Building Finishes ARTICLE VIII EASEMENTS Section 8.01 Utility and Service Easements Section 8.02 Other Easements [L� 19 19 20 23 23 24 24 24 24 24 26 27 28 29 29 29 29 29 30 30 30 30 30 30 31 31 31 32 32 32 33 33 34 34 35 007500.0D 100:0345491.01 007500.00100:0345491.02 ARTICLE IX ARTICLE X MAINTENANCE BY OWNERS GENERAL PROVISIONS Section 10.01 Binding Effect and Duration Section 10.02 Other Persons Section 10.03 Interpretation Section 10.04 Amendments Section 10.05 Enforcement Section 10.06 No Waiver or Obligation to Enforce Section 10.07 Liens/Validity and Severability Section 10.08 Owner/Occupant Records Section 10.09 Notices Section 10.10 Mortgagees Section 10.11 Approvals 35 35 36 36 37 38 38 38 38 38 39 39 007500.00 I00:0345491.0 1 007500.00100:0345491.02 DECLARATION OF COVENANTS, RESTRICTIONS AND EASEMENTS FOR ALLIANCE GATEWAY - PHASE III This Declaration of Covenants, Restrictions and Easements for Alliance Gateway - Phase III (this "Declaration") is made as of the 8th day of June, 1998, by AIL Investment, L.P., a Texas limited partnership ("Declarant"). Declarant and American Escrow Company, a Texas corporation ("AEC") are each Owners (hereinafter defined) of certain real property located in Denton County, Texas, described in the attached Exlubit A(the "Property"). Declarant is or will be the developer of the Property. Declazant intends that the Property be developed as a high quality multi-use business and industrial community and that the Property be subject to the covenants, restrictions and easements set forth in this Declazation in order to establish a plan for the development, improvement and use of the Property with architectural, landscaping and maintenance controls. Declarant intends to create an entity to have and exercise the rights and duties and to perform on behalf of, and as agent for, AEC and the other Owners the functions set forth in this Declaration which include, without limitation, the maintenance of certain portions of the Properiy, the reviewing of plans for improvements to be conshucted on the Property and the assessing, collecting and disbursing of assessments provided for herein. NOW, THEREFORE, Declarant and AEC adopt, establish and impose the following covenants, restrictions, easements, liens and charges upon the Property and declare that the Properly and all portions thereof are and shall be owned, held, transferred, sold, conveyed and occupied subject to such covenants, restrictions, easements, liens and charges. ARTICLE I GENERAL SECTION 1.01. PURPOSE. The purpose of this Declazation is to promote the orderly development and use of the Property; to encourage the construction of quality-designed Improvements (hereinafter defined) on the Properiy; to restrict certain uses of the Property; to provide for certain development and maintenance standards; and generally to preserve the aesthetic appearance of the Property and the Improvements constructed thereon from time to time. SECTION 1.02. DEFINITIONS. The following words or phrases when used in this Declaration shall have the following meanings: a. "Assessments" shall have the meaning set forth in Section 4.01 of this Declazation. b. "Associallon" shall mean the non-profit corporation to be created under the laws of the State of Texas under the name "Alliance Gateway - Phase III Association" or such other name as is selected by Declarant or its successors. -1- 007500.00100:0345491.01 007500.00100:0345491.02 c. "Association Documents" shall mean the Articles of Incorporation and the Bylaws of and the resolutions adopted by the Association. d. "Board" shall mean the Board of Directors of the Association. e. "Building Setback" shall have the meaning set forth in Section 7.03 of this Declaration. f. "City" shall mean the Town of Roanoke, Texas. g. "Common Areas" shall mean: (i) Unpaved Right-of-Way; (ii) Project Identification Signage Areas; (iii) Special Landscape Areas; (iv) creeks, waterways, drainage channels, detention ponds and other ponds and lakes and azeas adjacent thereto within the Property that previously have been dedicated or conveyed by Declarant to the City or that are designated in writing by Declarant or the Association as Common Areas at a time when such areas are owned by Declarant or the Association or by an entity created by Declazant or the Association for the express purpose of owning any such azea or facility; (v) public parks and recreational areas and private parks and recreational areas (excluding golf courses) that aze open to use by the Owners within the Properiy; and (vi) areas reserved for iuture installation of railroad lead tracks to provide rail service to Sites that are designated in writing by Declarant or the Association as Common Areas at a time when such areas are owed by Declazant or the Association, provided that any of such areas in which lead tracks are installed shall be designated in writing by Declarant or the Association as Railroad Areas after such installation is completed, and thereafter no longer shall be Common Areas; and (vii) any other azeas designated as such by a Special Vote of the Class A members. h. "Common Expenses" sha11 mean any and all expenses incurred by or on behalf of the Association, as agent for the Owners, for the maintenance, repair and operation of the Common Areas, the Landscaping in the Common Areas (to the extent not required to -2- 007500.00100:0345491.01 007500.00100:0345491.02 be performed by the Owners) and the Common Facilities, for the provision of the Common Services and as otherwise incurred in accordance with and as authorized in this Declaration. "Maintenance and repair" as used in this Declaration includes not only all labor and materials necessary to keep the Common Areas, the Landscaping in the Common Areas and the Common Facilities in good and neat appearance and in good operating condition but also all parts and replacement materials necessary to keep such in good appeazance and operating condition and shall include, but not be limited to, replacement trees, plants and other vegetation, except that Common Expenses shall not include the replacement of trees or shrubs that die within one year after the installation thereof by Declarant, the replacement of which shall be the responsibility of Declarant. i. "Common Facilities" shall mean all Landscaping, athletic fields and courts, jogging and bike trails, lighting, signage, entry-way features, guard houses, gates, detention ponds and water features (and related equipment) installed in the Common Areas, all equipment of any nature (including, but not limited to, vehicles) used by the Association in connection with the repair, maintenance or operation of the Common Areas and the Landscaping in the Common Areas or the provision of the Common Services, and, to the extent approved by a Special Vote of the Class A Members, other equipment, structures and improvements installed within the Common Areas. j. "Common Services" shall mean such services provided from time to time by Declarant or by the Association on behalf of and for the common benefit of the Owners that have been approved by a Special Vote of the Class A Members. k. "Conversion Date" shall mean the earlier of (i) the date on which Declarant and all affiliates of Declarant own in the aggregate less than 5% of the acres comprising the Property (exclusive of Streets, Railroad Areas and Common Areas), or (ii) the date Declarant voluntarily ternunates its Class B Member status by recording a written notice of such termination in the Real Property Records of Denton County, Texas. Any Person owned or controlled by Declarant, by any partner of Declarant or by any Person owriing or controlling any partner of Declazant, shall be considered an"affiliate" of Declazant for the purpose of this definition. 1. "Declarant" shall mean AIL Investment, L.P., a Texas limited partnership, and such successors or assigns to whom rights and powers reserved herein to Declarant expressly aze conveyed or assigned in writing, but shall not include any person or entity merely purchasing one or more Sites, or portions thereof, from Declarant. m. "Declaration" shall mean this Declaration of Covenants, Restrictions and Easements for Alliance Gateway-Phase III, and all amendments thereto filed for record in the Real Property Records of Denton County, Texas. n. "Default Rate of Interest" means the lesser of (i) 15% per annum, or (ii) the maximum allowable contract rate of interest under applicable law. -3- 007500.00100:0345491.01 007500.00100:0345491.02 o. "Development Guidelines" shall mean those guidelines promulgated by the Board pursuant to the provisions of Section 5.03m of this Declaration. p. "DRB" shall mean the Development Review Board of the Association. q. "Front Yard Setbacks" shall have the meanings set forth in Section 7.03 of this Declaration. r. "Governmental Entity" shall mean the City, the County of Denton, the State of Texas and any agency or deparnnent thereof and the United States of America and any agency or department thereof. s. "Improvements" shall mean any and all construction on and other changes to the Property which are intended to be temporary or permanent in nature (other than changes made during a finite period of construction which will be removed when the construction period is camplete), including, but not limited to, new buildings and structures, changes to building exteriors and exterior roof structures, loading azeas, vehicle circulation lanes and approaches, private driveways and streets, utility and drainage systems, surface parking areas and parking structures, railroad tracks and related facilities and equipment, e�cterior lighting, sculptures, sidewalks, fences, walls, Landscaping, poles, antennae, ponds, lakes, fountains, swirnming pools, tennis or athletic courts, signs, changes in exterior color or shape, glazing or reglazing of exterior windows and any new exterior construction or exterior improvement which may not be included in any of the foregoing. "Improvements" include both original improvements and all later changes, alterations and additions. t. "Landscaping" shall mean plants, including, but not limited to, grass, vines, ground cover, trees, shrubs, flowers, mulch and bulbs; rocks; landscape edging; water features; berms; lighting in landscaped areas; irrigation systems and related landscape improvements and materials. u. "Majority Vote of the Members" shall have the meaning set forth in Section 3.04 of this Declaration. v. "Member" shall have the meaning set forth in Section 3.01 of this Declazation. w. "Member in Good Standing" shall have the meaning set forth in Section 3.02 of this Declaration. x. "Non-Member Owners" shall have the meaning set forth in Section 3.01 of this Declaration. y. "Notice of Unpaid Assessments" shall have the meaning set forth in Section 4.08 of this Declaration. -4- 007500.00100:0345491.01 007500.00100:034549 I .02 z. "Owner" shall mean each Person (other than the Association) who is a record owner of any pazcel of land within the Property, but excluding any Person who holds only a lien in any parcel of land within the Property as security for the performance of an obligation. aa. "Parkway Landscape Area" shall mean a strip of land along each side of median-divided Streets that is not more than 35 feet in width measured from the back of the outside curbing of the pavement on such Street. The exact width of such area (which may vary) shall be as designated by Declarant. bb. "Parkway Landscape Plan" shall mean the plan adopted by Declarant, as such may be amended by Declarant or by the Boazd (with the consent of Declarant prior to the Conversion Date) from time to time, specifying the nature, type, scheme, extent and maintenance of Landscaping required to be installed by an Owner of a Site (other than Declazant or the Association) in the Pazkway Landscape Area. cc. "Paving Setbacks" shall have the meanings set forth in Section 7.03 of this Declazation. dd. "Person" shall mean any natural person, corporation, partnership, limited liability company, trust or other legal entity. ee. "Project Identification Signage Areas" shall mean those portions of the Property designated by Declarant or ihe Association from time to time (and owned by Declarant or the Association at such time of designation) as areas in which project signage identifying Alliance Gateway or the development name for the Property or other entry features, structures or Landscaping are or are to be installed. ff. "Property" shall mean the real property described in E�chibit A attached hereto subject to any additions thereto or deletions therefrom as provided in Section 1.03 of this Declazation. gg. "Quorum" shall have the meaning set forth in Section 3.04 of this Declaration. hh. "Railroad Areas" shall mean the areas on the Property owned by Declarant, a raikoad company or the Association or in which Declarant, a railroad company or the Association has a railroad right-of-way easement and in which railroad "lead tracks" are installed (meaning tracks leading into and through the Property from the "mainline" railroad tracks of the Union Pacific Railroad adjacent to the Property) into which abutting Owners can connect "spur tracks" (meaning tracks leading from such lead track into an individual Site to provide rail service to that Site). Railroad Areas do not include areas described in Section 1.02 vi) above prior to designation by Declarant or the Association of such areas as Railroad Areas. -5- 007500.00100:034549 I.0 1 007500.00100:0345491.02 ii. "Railroad Area Assessment" sha11 have the meaning set forth in Section 4.05 of this Declaration. jj. "Railroad Area Users" shall have the meaning set forth in Section 4.05 of this Declaration. kk. "Railroad Maintenance Costs" shall have the meaning set forth in Section 4.05 of this Declaration. 11. "Regular Assessments" shall have the meaning set forth in Section 4.02 of this Declaration. mm. "Side and Rear Yard Setbacks" shall have the meaning set forth in Section 7.03 of this Declaration. nn. "Single User Railroad Tracks" shall mean (i) spur tracks connecting rail service to a specific Site from lead tracks, or (ii) lead tracks connecting rail service directly from the Union Pacific Railroad "mainline" railroad tracks adjacent to the Property into a single Site. Portions of spur tracks that are Single User Railroad Tracks will be located within Railroad Areas, connecting such spur tracks into lead tracks within such Railroad Areas. oo. ""Site" shall mean a portion of the Property. pp. "Special Purpose Assessment" shall have the meaning set forth in Section 4.03 of this Declaration. qq. "Special Landscape Areas" shall mean those areas along or in the vicinity of Streets designated by Declarant (and owned by Declarant or the Association at the time of such designation) in which Declarant installs special Landscaping. n. "Special Member Assessment" shall have the meaning set forth in Section 4.04 of this Declaration. ss. "Special Vote of the Class A Members" shall have the meaning set forth in Section 3.04 of this Declazation. tt. "Street" shall mean any land located within an easement or a right-of-way in or adjacent to the Property now or at any time hereafter dedicated to any Governmental Entity for public use as a roadway for motor vehicles. uu "Union Pacific Railroad" shall mean Union Pacific Railroad Company (or its �liate, Missouri Pacific Railroad Company), the railroad entity that owns and operates the railroad mainlines along the easterly boundary of the Property. � 007500.00100:0345491.01 007500.00100:0345491.02 w. "Unpaved Right-of-Way" shall mean medians in Streets and the portion of a Street between the outside edge of the Street pavement (or curbs if curbs aze installed) and the right-of-way line of the Street. Other terms used in this Declaration aze defined in various provisions used herein. SECTION 1.03. PROPERTY SUBJECT TO DECLARATION. Declarant, from time to time and without the necessity of the joinder of any other Person, (a) may subject additionalland to the provisions of this Declaration provided that such additional land is adjacent to the Property or to a Street adjacent to the Property or is in the general vicinity of the Property and the aggregate of all such additional land does not exceed 1,000 acres, and (b) may delete from the Property parcels sold to Governmental Entities provided that the aggregate acreage deleted does not exceed 150 acres (exclusive of Streets). Declarant may do so by recording a supplement to this Declaration in the Real Property Records of Denton County, Texas. Declarant, in deleting tracts from the Property as permitted in (b) above, (i) shall impose on such deleted tract restrictions requiring development of that tract substantially in accordance with the provisions of Article VII of this Declaration and the Development Guidelines, and (ii) at its election, may provide in documents related to the conveyance of such tract to a Governmental Entity that this Declaration again may become applicable to such deleted parcel if such pazcel is conveyed in the future to a Person other than a Governmental Entity, and if such occurs, the pazcel that again becomes a part of the Property and subject to this Declaration shall not be included in the computation of the 2000 acres under (a) above. The term "Property" as used in this Declaration sha11 include any such additional tracts that from time to time aze subjected to the provisions of this Declaration as provided above and shall not include any tracts that from time to time are deleted as provided above (subject to the provisions of the preceding sentence). All of the Property and any right, title or interest therein shall be owned, held, leased, sold and/or conveyed by Declarant, and any subsequent Owner, lessee, tenant or other occupant of all or any part thereof, subject to this Declaration and the covenants, restrictions, easements, charges and liens set forth in this Declaration. Each Owner, lessee, tenant or other occupant of any portion of the Property, by the acceptance of a deed, lease or other conveyance or transfer of any interest in the Property or any portion thereof, shall be deemed to have covenanted and agreed to be bound by the provisions of this Declazation. SECTION 1.04. PURPOSE OF THE ASSOCIATION. The Association shall have and exercise the rights and shall perform the fanctions of the Association for the benefit of, and as agent for, the Owners as set forth in this Declazation. SECTION 1.05. FORT WORTH ALLIANCE AIRPORT. The Property is situated in the vicinity of Fort Worth Alliance Airport, and, by the acceptance of any title or interest in any portion of the Property, each owner, lessee, tenant and occupant of the Property or portions thereof, acknowledges the close proximity of Fort Worth Alliance Airport and accepts the hazards and annoyances of occupying property in the vicinity of an airport. Each owner, lessee, tenant or occupant of the Property or portions thereof consents and agrees to, releases and waives all claims against Declarant and City relating to, and grants to the City and to all Persons using Fort Worth Alliance Airport an easement over and on its respective portion of the Property for, the passage of aircraft in the air space above the Property and the entry ar�d passage over and onto the Property of -7- 007500.00100:0345491.01 007500.00100:0345491.02 r such noise, vibration, fumes, dust and fuel and lubricant particles as may be inherent in the operation of aircraft and aviation-related equipment and facilities. ARTICLE II DESIGNATION OF LOTS, STREETS, RAILROAD AREAS, SINGLE USER RAILROAD TRACKS AND ZONING SECTION 2.01. DESIGNATION OF LOTS. Declarant shall have the right and power, but not the obligation, to subdivide all or any portion of the Property owned by Declarant, without the necessity of the joinder of any other Person, into subparcels or platted lots. Declarant shall have the further right and power, but only with respect to portions of the Property owned by Declarant and without the necessity of the joinder of any other Person, to withdraw its designation of any part thereof as a lot, to redesignate previously designated areas thereof as a lot having different boundaries and configurations from those previously described and to divide or subdivide a lot into one or more lots. An Owner, other than Declazant, may create platted lots on its Site or modify any existing platted lots on its Site only with the prior written approval of such action by Declarant prior to the Conversion Date or by the Board after the Conversion Date. SECTION 2.02. DESIGNATION OF STREETS, RAILROAD AREAS AND SINGLE USER RAILROAD TRACKS. Declarant and the Association shall have the right and power, from time to time, to dedicate, designate, reserve, convey fee simple title or grant easements for Streets and Railroad Areas in portions of the Property owned by Declarant or the Association at the time of such action. The provisions of this Declaration shall be subordinate to the rights of the City in such dedicated Streets. No Owner other than Declarant or the Association shall have the right to dedicate, designate, reserve, convey fee simple title or grant easements for Streets, Railroad Areas or Single User Railroad Tracks on any portion of the Property owned by such Owner unless such action is approved in writing by Declarant prior to the Conversion Date or by the Board after the Conversion Date. This provision does not restrict any Owner from installing private roadways or railroad "spur tracks" for its own use within its own Site in compliance with the provisions of this Declazation. SECTION 2.03. ZONING. Declarant shall have the right and power, from time to time, to change the zoning of any portion of the Property owned by Declarant in such manner as Declarant deems appropriate for the overall development of the Property. No Owner other than Declarant shall apply for any change in zoning of any portion of the Property owned by such Owner unless such zoning change is approved in writing by Declazant prior to the Conversion Date or by the Boazd after the Conversion Date. ARTICLE III MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION SECTION 3.01. MEMBERSffiP. Each and every Owner automatically is a member of the Association ("Member"), except for the following ("Non-Member Owners"): (i) a Governmental Entity shall not be considered as a Member during such time that it owns only Streets, public utility easements, drainage easements or parcels used solely for a fire or police -8- 007500.0D 100:0345491.01 007500.00100:0345491.02 station or public pazk, unless such Govemmental Entity agrees in writing to become a Member of the Association and such membership is approved in writing by Declarant prior to the Conversion Date or by the Boazd after the Conversion Date; and (ii) any public utility shall not be considered a Member during such time that it owns only a utility easement or a parcel used solely for a utility sub-station, unless such utility agrees in writing to become a Member of the Association and such membership is approved in writing by Declarant prior to the Conversion Date or by the Board after the Conversion Date. Membership in the Association is appurtenant to, and cannot be separated from, ownership of a parcel in the Properiy by an Owner other than a Non-Member Owner. The membership of a Person in the Association shall terminate automatically whenever such Person ceases to be an Owner, except that such termination shall not release or relieve such Person from any liability or obligation arising under this Declaration during his period of ownership. Any iransfer of title to any pazcel in the Property shall operate automatically to transfer (or, in cases of a transfer by a Non-Member Owner, to vest) membership in the Association appurtenant to such parcel to the new Owner, unless such new Owner is a Non-Member Owner. The term "Owner" as used in Article III and Article IV of this Declazation does not include any Non-Member Owner, except as otherwise specifically provided in Article IV below. SECTION 3.02. MEMBER IN GOOD STANDING. A Member shall be considered to be a"Member in Good Standing" and eligible to vote if such Member: a. Has, at least ten days prior to the taking of any vote by the Association, fully paid all Assessments or other charges levied by the Association, as such Assessments or charges are provided for hereunder; b. Does not have a Notice of Unpaid Assessments filed by the Association against the parcel in the Property owned by such Owner; and c. Has discharged all other obligations to the Association as may be required of Members hereunder or under the Association Documents. The Boazd shall have sole authority for deterniining the good standing status of any Member at any time and sha11 make such determination with respect to all Members prior to a vote being taken by the Association on any matter. The Boazd shall have the right and authority, in its sole discretion, to waive the ten-day prior payment requirement and require only that such payment be made at any time before such vote is taken if the Board shall determine, in its own judgment, that extenuating circumstances exist which have prevented prior payment. Any Member not conforniing with the provisions of this Section 3.02 shall be declazed by the Board not to be a Member in Good Standing and shall not be entitled to vote on matters before the Association until such time as Member in Good Standing status is attained and so declared by the Boazd. SECTION 3.03. CLASSES OF VOTING MEMBERS. The Association shall have two classes of voting membership. a. Class A. "Class A Members" shall be all Members including Declarant. Class A Members shall be entitled to one vote for each acre in the Property (exclusive of -9- 007500.0D 100:0345491.01 007500.00100:0345491.02 Streets, Railroad Areas and Common Areas) owned by such Owners (rounded to the nearest 1/100th of an acre) as of the date of the notice of the meeting at which such vote is to be cast. For the piupose of this Section 3.03 and for any other reason that acreage or other azea is necessary to be determined under this Declaration, the Board shall deternune the acreage contained in the Property and the acreage or applicable azea contained in specific pazcels or portions thereof. If any parcel is owned by more than one Owner, the number of votes attributable to such parcel shall be the same number of votes as if there were only one Owner of such pazcel, and the votes attributable to such parcel may be cast only if all of the Owners owning such parcel, prior to the time of the vote in question, have delivered to the Association a written agreement as to how such votes are to be cast or a written designation of one of such Owners to cast the votes attributable to such parcel. Any Member who is not an individual must designate a representative to act for such Member in Association matters and to cast votes for such Member, such designation to be made in writing to the Board. A Member may delegate its right to vote to any tenant occupying its parcel provided such delegation is made in writing delivered to the Board. b. Class B. The only "Class B Member" shall be Declarant. The Class B Member shall be entitled to a number of votes equal to 101 % of the aggregate of a11 votes eligible to be cast by Class A Members; provided, however, the Class B membership shall cease on the Conversion Date, and Declarant thereafter shall only be a Class A Member for so long as it owns any portion of the Property. SECTION 3.04. QUORUM, VOTING AND NOTICES. Members holding 25% of the aggregate votes entitled to be cast by Class A Members in Good Standing, represented at a meeting of the Members in person or by a legitimate proxy in a form approved by the Board, shall constitute a quorum for voting on matters brought before the Members at meetings called by the Board (a "Quorum"). The vote of Members in Good Standing (considering all Class A Members and the Class B Member as one voting class) holding, in the aggregate, a majority of the votes entitled to be cast by the Members in Good Standing present or voting by legitimate pro�ry at a called meeting at which a Quorum is present (the "Majority Vote of the Members") shall be the act of the Members. Notice requirements for all actions proposed to be taken by the Association which require a voted approval by the Members shall be given as set forth in the Association Documents, as such may be amended from time to time. The term "Special Vote of the Class A Members" as used herein, means, at the time such vote is to be taken, the written consent of Declarant (until the Conversion Date) plus the vote of Class A Members in Good Standing (including Declazant) holding, in the aggregate two-thirds of the votes eligible to be cast by all Class A Members in Good Standing (including Declazant) present or voting by legitimate proxy at a called meeting at which a Quonim is present. ARTICLE IV ASSESSMENTS SECTION 4.01. COVENANTS FOR ASSESSMENTS. Each Owner of a parcel within the Property, by acceptance of a deed or other conveyance or transfer of legal title to the Property or any portion thereof, whether or not it shall be so expressed in any such deed or other conveyance, -10- 007500.00100:0345491.01 007500.00100:0345491.02 shall be deemed to have covenanted and agreed to pay to the Association, or to an independent entity or agency which may be designated by the Association to receive such monies, the following assessments ("Assessments"): a. Regulaz Assessments as provided for in Section 4.02 below; b. Special Purpose Assessments as provided for in Section 4.03 below; c. Special Member Assessments, as provided in Section 4.04 below; and d. Railroad Area Assessments, as provided in Section 4.05 below. All Assessments shall remain the properiy of the Owner making such payment and shall be expended by the Association on behalf of the Owners only for the specified purposes provided in this Declaration. No profit, gain or other benefit is to be derived by the Association from the Assessments, but, �nstead, such funds shall be expended only as agent for the Owners. All services contemplated to be paid from Assessments shall be obtained by the Association on behalf of the Owners. Upon termination of the Association, all Assessments held at that time by the Association shall be allocated and returned to the Owners in the same manner as votes are allocated among Class A members as provided in Section 3.03a above. SECTION 4.02. REGULAR ASSESSMENTS. "Regular Assessments" shall be determined, assessed and expended on a calendar year basis, which shall be the fiscal year of the Association; provided, however, Regular Assessments may be assessed and expended for the partial year from the date of this Declazation through December 31, 1998. Regular Assessments shall be used for the payment of Common Expenses and other expenses incurred by the Association or the Board on behalf of the Owners as authorized in this Declaration (exclusive of the expenses referenced in Section 4.04, and Section 4.05 below). Regular Assessments from the date of this Declazation through December 31, 1998 shall be set by the Boazd as the Boazd deems necessary to pay applicable expenses for such partial yeaz. Thereafter, for 1999 and each following yeaz while this Declaration is in force, the Board shall set the amount of the Regular Assessments to be levied for the next calendaz year, taking into consideration Common Expenses for the then current year (annualized with respect to 1998 expenses), expected increases in such expenses during the next year, a contingency amount (not exceeding 5% of the anticipated expenditures for such next year) and an optional reserve fand contribution (not exceeding 3% of the anticipated expenditures for such next year); provided, however, no reserve f'und contribution amount shall be included in Regular Assessments for any year in which the unused balance of the reserve fund equals or exceeds 10% of the other anticipated expenditures for that yeaz. The Regular Assessments for each calendar year beg'uuung with 1999 shall be set by the Boazd on or about December 1 of the preceding yeaz or as soon thereafter as such deterniination reasonably can be made by the Boazd. Regular Assessments shall be allocated among all Owners (including Declarant) in the same manner as votes aze allocated among Class A Members as provided in Section 3.03a above, that is, the percentage of the aggregate Regulaz Assessments allocated to a particulaz pazcel in the Property shall be a fraction with the numerator equal to the number of Class A Member votes allocable to such pazcel and with the denominator equal to the aggregate number of votes for all Class A -11- 007500.00100:0345491.01 007500.00100:0345491.02 Members. Should any excess surplus exist at the end of any yeaz, the Board shall reduce the amount required for the next year's Regular Assessments by an amount equal to such surplus. SECTION 4.03. SPECIAL PURPOSE ASSESSMENTS. The Board may, from time to time, levy for the partial yeaz from the date of this Declazation through December 31, 1999 and any calendar yeaz begiruiing on or after January 1, 1999, applicable to that yeaz (or initial partial year, if applicable) only, a"Special Purpose Assessment" for the purpose of paying any unanticipated expense that normally would have been paid out of Regular Assessments which was not included in that year's budget for Regular Assessments. Such Special Purpose Assessments shall be allocated among Owners (including Declazant) in the same manner as the Regular Assessments are allocated among the Owners. SECTION 4.04. SPECIAL MEMBER ASSESSMENTS. The Board may levy a "Special Member Assessment" on any Member, to the e�ctent any directly related insurance proceeds paid to the Association are not sufficient to pay all such costs, for the purpose of: a. Paying the cost of any damage or loss requiring maintenance, repairs or replacement of Common Areas, Landscaping in the Common Areas, the Special Landscape Areas or in the Parkway Landscape Area, Common Facilities, Raikoad Areas or Single User Railroad Tracks (or tracks or equipment located therein) which damage or loss has been deternuned by the Board to have been caused, either directly or indirectly, by the acts of such Member, or its agent, employee or occupant; or b. Reimbursing the Association for any and all direct or indirect costs incurred by the Association with regard to the maintenance, repair or replacement of Landscaping, signs, screening or decorative walls, surface parking areas, ponds, lakes, fountains, pools, exterior lighting, aircraft obstruction lights or devices, sculptures, utilities, drainage systems or park and recreational facilities and equipment on such Member's parcel or on the Unpaved R.ight-of-Way contiguous to such parcel or of Single User Railroad Tracks on or serving such Member's pazcel, including, but not limited to, the removal of trash, litter and abandoned items, that such Member fails to repair, maintain or replace as required by the provisions of this Declaration, provided such Member fails to conect such deficiency within seven days after written notice thereof is given to such Owner by the Board (or in cases where such deficiency cannot reasonably be corrected within seven days, within a reasonable period of time necessary to correct such deficiency provided that the Owner commences conective work within such seven-day period and thereafter proceeds diligently to complete such corrective work). The provisions of this Section 4.04 apply also to each Non-Member Owner, and each Non-Member Owner is liable for any Special Member Assessment made against such Non-Member Owner, and, to the fullest extent permitted by law, such Non-Member Owner's particulaz Site is subject to a lien to secure payment of such Special Member Assessment, all as provided in Section 4.07 and Section 4.08 below. -12- 007500.00100:0345491.01 007500.00100:0345491.02 SECTION 4.05. RAILROAD AREA ASSESSMENTS. All Members and Non-Member Owners who own pazcels in the Property (a) that are contiguous to a Railroad Area, and (b) that, at the time the hereinafter described costs aze incurred, aze served by a"spur track" from such pazcel connecting to a"lead track" in that Railroad Area (the "Railroad Area Users"), shall be responsible and liable for the payment of all costs incurred by the Association for the maintenance and repair of the railroad tracks and related facilities, signalization and equipment in that Railroad Area (and also the portion of the lead track situated in the Union Pacific Railroad right-of-way connecting such lead track into the Union Pacific Railroad mainline) and for ad valorem taxes on that Railroad Area, to the e�ctent such costs are not paid by Union Pacific Railroad (the "Railroad Maintenance Costs"). The Boazd may levy a"Railroad Area Assessment" against such Railroad Area Users for the purpose of collecting such costs and taxes, and such Railroad Area Users shall be personally liable therefor and their respective Sites, to the fullest extent permitted by law, sha11 be subject to a lien to secure payment of such Railroad Area Assessment, all as provided in Section 4.07 and Section 4.08 below. Such costs and taxes shall be treated sepazately for each Railroad Area, that is, only the Railroad Area Users owning parcels contiguous to a specific Railroad Area and actually using the railroad tracks therein for rail car service to such parcels shall be responsible for the costs and taxes related to that Railroad Area and shall not be responsible for expenses related to any other Railroad Area. The Railroad Area Assessment related to a specific Railroad Area shall be allocated among such Railroad Area Users based upon the relative railroad car count for those Railroad Area Users as provided by Union Pacific Railroad, or if such count numbers are not available from Union Pacific Railroad, such allocation shall be based on another method determined by the Board which, in its sole judgment, reasonably allocates such costs, based upon relative track usage, among those Railroad Area Users. No portion of any Railroad Area Assessment shall be allocated to a parcel that does not have "spur tracks" connecting into the "lead tracks" in that Railroad Area. The Owner of a Site to which rail service is provided by a Single User Railroad Track shall pay all Railroad Maintenance Costs of such Single User Railroad Track, including, without limitation, the Railroad Maintenance Costs of the portion of such Single User Railroad Track actually located within a Railroad Area, connecting a spur track into the lead track in the Railroad Area or a lead track into the railroad mainline. SECTION 4.06. DUE DATE OF ASSESSMENTS. The Regulaz Assessments provided for herein shall be payable annually within 30 days after an invoice is delivered by the Association to an Owner; provided, however, the Board shall have the right to require payment of Regular Assessments at other intervals if it deems such is appropriate (but with payment not required any eazlier than 30 days after delivery of the invoice therefor). The due date of any Assessment under Section 4.03, Section 4.04 or Section 4.05 shall be fixed in the notice to the Owner or Owners providing for such Assessment, but will not be sooner than 30 days after the date of such notice. SECTION 4.07. PERSONAL OBLIGATION FOR PAYMENT OF ASSESSMENTS. The Assessments provided for herein shall be the personal and corporate debt of the Owner of the portion of the Property with respect to which such Assessment is made. No Owner, for any reason, may exempt itself from liability for Assessments. In the event that any Assessment or part thereof is not paid when due, the Owner or Owners of such property shall be obligated to pay interest on such unpaid Assessment from such due date at the Default Rate of Interest together with all costs and ezpenses of collection thereof, including, but not -13- 007500.00100:0345491.01 007500.00100:0345491.02 limited to, reasonable attorneys' fees. The Board shall have the right to reject any partial payment of any Assessment and demand full payment thereof, or the Board may, in its sole discretion, elect to accept any such partial payment on account only, without in so doing waiving any rights established hereunder with respect to any remaining balance due. The obligation of any Owner to pay an Assessment with respect to a parcel made for any period of time that an Owner owns the parcel shall remain its personal or corporate obligation, as the case may be, (notwithstanding any future sale or conveyance of its parcel) and shall not pass to unrelated third-party purchasers of such property or portion thereof unless expressly assumed by such purchaser. However, the lien for any unpaid Assessments shall be unaffected by any sale or conveyance of full or partial ownership interest in such property affected thereby, or portion thereof, and shall continue in full force and effect. In the event of full or partial sale of an ownership interest in any portron of the Property, it shall be the obligation of the transferring Owner of such interest to disclose to any buyer, assignee, title company designated to handle such transaction, financing entity or other party to such sale any unpaid Assessments, such notice to be given in writing to all parties to the intended transacNon at least 15 days before that date at which such transaction is to be consummated. A copy of such notice shall be sent to the Association at the same time. A former Owner shall not be liable for Assessments made with respect to a parcel after such Person no longer is the Owner of such parcel. SECTION 4.08. ASSESSMENT LIEN AND FORECLOSURE. ALL SLTMS ASSESSED IN THE MANNER PROVIDED FOR IN THIS ARTICLE, TOGETHER WITH INTEREST FROM SUCH DUE DATE AT THE DEFAULT RATE OF INTEREST AND THE COSTS OF COLLECTION, INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS' FEES, ARE SECURED BY A CONTINUING CONTRACTUAL LIEN AND CHARGE ON THE PROPERTY COVERED BY SUCH ASSESSMENT, WI-IICH SHALL BIND SUCH PROPERTY AND THE OWNER THEREOF AND ITS HEIRS, SUCCESSORS, DEVISEES, PERSONAL REPRESENTATIVES AND ASSIGNEES. The aforesaid continuing contractual lien shall attach to the Property as of the date of the recording of this Declaration and shall be superior to all liens other than (a) a deed of trust or mortgage constituting a lien on the land of an Owner, (b) any sale and leaseback agreement or lease and subleaseback agreement whereby an Owner sells and simultaneously acquires a possessory interest under a lease from or other agreement with such transferee, and (c) the lien securing real estate taxes; provided, however, the types of liens referenced in (a) and (b) a6ove shall be inferior and subordinate to the lien securing the obligation to pay Assessments to the egtent of all unpaid Assessments set forth in any recorded Notice of Unpaid Assessments (as defined below) existing as of the date of such other lien that has not been duly released by the Association. The AssociaHon shall have the right and power to subordinate the aforesaid Assessment lien to any other lien. The exercise of such power shall be entirely discretionary with the Association. Except for a conveyance to a purchaser at a foreclosure sale pursuant to a lien to which the Assessment lien is subordinate as provided above, all parcels within the Property are conveyed to and accepted and held by the Owner thereof subject to the Assessment lien provided for in this SecHon 4.08. To evidence any unpaid Assessments, the Association may prepare a written notice of unpaid Assessment (the "Notice of Unpaid Assessments") setfing forth the amount of the unpaid indebtedness, name -14- 007500.00100:0345491.01 007500.00100:0345491.02 of the Owner of the affected property and a description of the affected property. Such notice shall be signed by one of the officers of the Association and shall be recorded in the Real Property Records of the county in which the affected parcel is located. The Association shall record an appropriate release of any recorded Notice of Unpaid Assessments when the amounts referenced therein have been paid. THE LIEN FOR PAYMENT OF ASSESSMENTS MAY BE ENFORCED BY FORECLOSURE OF THE LIEN UPON THE DEFAULTING OWNER'S PROPERTY BY THE ASSOCIATION SUBSEQUENT TO THE RECORDING OF THE NOTICE AS PROVIDED ABOVE EITHER BY JUDICIAL FORECLOSURE OR BY NONJUDICIAL FORECLOSURE THROUGH A PUBLIC SALE IN LIKE MANNER AS A MORTGAGE ON REAL PROPERTY IN ACCORDANCE WITH SECTION 51.002, TEXAS PROPERTY CODE, AS SUCH MAY BE REVISED, AMENDED, SUPPLEMENTED OR REPLACED FROM TIME TO TIME. In addition, the Association may institute suit against the Owner personally to obtain a judgment for unpaid Assessments. In any foreclosure proceeding, whether judicial or nonjudicial, or in any other suit against the Owner, the Owner sha116e required to pay the costs, ezpenses and reasonable attorneys' fees incurred by the Association. T�e Association shall have the right and power to buy the property at foreclosure or other legal sale and to acquire, hold, lease, mortgage, convey or otherwise deal with the same. Upon the written request of any mortgagee holding a lien on any part of the Property, the Association shall report to said mortgagee any Assessments which are delinquent and unpaid at the time of the report. SECTION 4.09. CERTIFICATE. Upon request by an Owner, the Association shall furnish a certificate setting forth any unpaid Assessments owed by an Owner. ARTICLE V ASSOCIATION BOARD OF DIRECTORS SECTION 5.01. CREATION OF BOARD. The Association shall be governed by the Board elected by a Majority Vote of the Members. The size and composition of the Boazd, its method of election and its duties and authorities shall be as provided in the Association Documents and this Declaration, except that all members of the Board shall be Owners or employees, agents or officers of Owners. The Boazd shall exist and f'unction solely for the benefit of the Property, the Association and the Members. SECTION 5.02. USE OF ASSESSMENT FUNDS. The Boazd shall be responsible for the setting, collection and disbursement of Assessments. In general, the Board shall be empowered to cause the Association to take the following actions and to expend Regulaz Assessment and Special Purpose Assessment funds for the following purposes: a. the payment of the Common Expenses; b. if approved by a Special Vote of the Class A Members, the employment of contractors to maintain and repair Streets and utilities, but only to the extent that the City (or other responsible Governmental Entity) or appropriate utility company fails to do so in a manner deemed appropriate in the judgment of the Boazd; -15- 007500.d0100:0345491.01 007500.00100:0345491.02 c. the employment of independent consultants or independent contractors to manage day-to-day operations of the Association; provided, however, neither the directors of the Association nor members of the DRB shall be paid any salary or other compensation for serving in such capacity; d. the employment of legal, accounting, engineering, architectural or other independent professional services, including, but not limited to, any services required to provide azchitectural review for any plans for the construction of Improvements on a Site; e. the purchase of a policy or policies of insurance insuring the Association, the Board and the DRB against any liability to the public or to the Owners (and/or visitors or occupants) incident to operation of the Association or the DRB; f. the purchase of fidelity bonds as provided hereunder; g. the payment for materials, supplies, services, maintenance, repairs, alterations, insurance, ad valorem and other taxes on property owned by the Association or in which the Association has an easement and general and administrative expenses which, in the opinion of the Boazd, shall be necessary or proper for the operation or protection of the Association or for the enforcement of this Declaration, including, but not limited to, reasonable expenses of the DRB; and h. the payment of costs incurred in the exercise and performance by the Boazd or the Association of any of their authorities, duties and rights set forth in this Declaration. In addition to the expending of Regulaz Assessment and Special Purpose Assessment fands for the aforementioned purposes, the Board also shall be empowered to expend funds collected through Special Member Assessments and Railroad Area Assessments for those purposes set forth in Article IV of this Declazation. SECTION 5.03. ADDITIONAL ALITHORITIES AND DUTIES OF THE ASSOCIATION. Subject to the provisions of Section 7.0lb below, the Board shall have the following additional authorities and duties exercisable on behalf of the Association with respect to performance of the rights and obligations of the Association hereunder and the right to expend Assessment funds to pay the costs thereof: a. to enter into agreements or contracts with respect to: (i) insurance coverage for Common Areas and the Common Facilities; (ii) utility consumption and services matters necessary for the operation of the Common Areas and the Common Facilides and the provision and operation of the Common Services; (iii) maintenance, repair and operation of Common Areas, Landscaping in the Common Areas, in the Unpaved Right-of-Way and in the Parkway Landscape Areas and Common Facilities; and (iv) design, engineering and other consultant contracts; -16- 007500.0U 100:0345491.01 007500.00100:0345491.02 b. to deternune the Common Services that should be obtained by the Association for the benefit of the Owners, subject to the approval of a Special Vote of the Class A Members; c. to designate Common Areas and Common Facilities not listed in Section 1.02g and Section 1.02i, subject to the approval of a Special Vote of the Class A Members: d. to designate Project Signage Identification Areas; e. to borrow f`unds to pay any costs of operation, secured by assignment or pledge of Assessments, as the Boazd may determine to be necessary and appropriate in accordance with this Declaration; f. to enter into contracts for goods and services or other purposes, maintain one or more bank accounts and generally to have all the powers necessary or incidental as may be required for prudent operation and management of the Association; g. to sue or to defend in any court of law on behalf of the Association; h. to make, or cause to be made, any tax returns, reports or other filings required by federal, state or local governmental authorities; i. to make available to each Owner within 90 days after the end of any Association fiscal year a written annual report on financial affairs of the Association for the preceding year, and, upon written request of Members in Good Standing holding two-thirds of the Class A Member votes eligible to be cast by all of the Class A Members in Good Standing, to have such report audited by an independent certified public accounting selected by the Board, which audited report, if required, shall be completed and made available to each Member as soon as practical after a request is received by the Boazd; provided, however, prior to the Conversion Date, (i) unless Declarant votes in favor of such audit, the cost shall be borne by all Class A Members other than Declarant, and the Association may require that such audit costs be paid in advance, and (ii) notwithstanding the above, Declarant shall pay the costs of the audit if such audit reveals a discrepancy of greater than 5% in the accounting reports furnished by the Association that is adverse to the Association or the Members; j. to adjust the amount, collect and use any insurance proceeds to repair or replace any damaged or lost property or to reimburse persons or entities entitled to receive reimbursement for injury, damage or losses, and, if said insurance proceeds are insufficient to provide fiull reimbursement as may be required, the Boazd may act to collect funds through Special Purpose Assessments, Special Member Assessments or Railroad Area Assessments, whichever is applicable; k. to enforce the provisions of this Declaration and the Development Guidelines and to enjoin action or seek damages and/or remedial action from any Owner for -17- 007500.00100:0345491.0 l 007500.00100:0345491.02 violation of this Declaration or the Development Guidelines, which right shall include, but is not limited to, the right, but not the obligation, to enter onto any part of the Property to perform obligations of the Owner thereof who has failed to do so in accordance with the � provisions of this Declazation or the Development Guidelines; 1. to maintain books and records with respect to all aspects of the operations of the Association and to the levy, collection, receipt, adininistration, expenditure and disposition of all Assessments and other funds held by the Association in accordance with sound accounting practices (that separately reflect all Association reserve funds), and to permit any Owner (or a person designated by such Owner in writing) to inspect, copy and audit the same upon reasonable notice during normal business hours at an office of the Association or the Declarant located in Denton County or Dallas County, Texas; m. to promulgate Development Guidelines (the "Development Guidelines") to serve as a guide for Owners in the planning and construction of Improvements and as a guide for the DRB in reviewing and approving or disapproving plans and specifications for Improvements and to revise such from time to time as the Board, in its discretion, deems appropriate, with copies of revisions to be f'urnished to a!1 Owners. The Development Guidelines shall not contain any provisions (i) that conflict with the provisions of this Declaration, (ii) that attempt to prohibit uses that comply with Section 7.01 a below and that are not prohibited by Section 7.02 below, or (iii) that restrict or diminish rights of Owners as specifically provided in this Declaration; n. to appoint members of the DRB as described in Article VI below; o. to own fee simple title or an easement interest to the Special Landscape Areas, the Project Signage Identification Areas, the Common Areas, the Railroad Areas and any other areas deternuned by the Board to be appropriate; p. to promulgate reasonable rules governing the use of the Common Areas, the Common Facilities and the Common Services; and q. to perform such other duties and functions as are necessary to carry out the rights and obligations of the Board and the Association under this Declaration. The Association shall have the right to perform such other functions, and to utilize Assessments to pay the cost thereof, to the extent that such other functions and services are approved by a Special Vote of the Class A Members. SECTION 5.04. AFFILIATED CONTRACTS. The Board, acting on behalf of the Association, shall have the f'ull power and authority to contract with any Owner, including, without limitation, Declarant, for performance of services which the Association is obligated or authorized to obtain, such contracts to be at competitive rates then prevailing for such services and upon such other terms and conditions, and for such consideration as the Board may deem advisable and in the best interest of the Association provided that the level of service received is consistent with that -18- 007500.00100:0345491.01 007500.00100:0345491.02 available from third parties. In deternuning whether any such afFiliated contract is competitive, the Boazd shall obtain estimates, bids or informal quotes from other possible providers of �imilar services, all of which shall be made available for review by any Owner upon written request submitted to the Association. SECTION 5.05. LIABILITY LIMITATIONS. No Member, director, officer or representative of the Association shall be personally liable for debts or liabilities of the Association. The directors and officers of the Association shall not be liable for any mistake of judgment, whether negligent or otherwise, except for their own individual willful misfeasance or malfeasance, misconduct, bad faith, intentional wrongful acts, approval of actions that violate the provisions of Section 7.Olb below or as provided in the Association Documents. Such directors and officers shall have no personal liability with respect to any contract or other commitment made by them, in good faith, on behalf of the Association, and the Association, as a Common Expense of the Association, shall indemnify and hold such directors and officers harmless from any and all expense, loss or liability to others on account of any such contract or commitment (to the extent not covered by insurance proceeds). In addition, each director and each officer of the Association shall be indemnified and held harmless by the Association, as a Common Expense of the Association, from any expense, loss or liability to others (to the extent not covered by insurance proceeds) 6y reason of having served as such director or as such officer and against all expenses, losses and liabilities, including court costs and reasonable attorneys' fees, incurred by or imposed upon such director or officer in connection with any proceeding to which he may be a party or have become involved by reason of being such director or officer at the time such expenses are incurred subject to any provisions regarding indemnity contained in the Association Documents, except in cases wherein the expenses, losses and liabilities arise from a proceeding in which such director or such officer is adjudicated guilty of willful misfeasance or malfeasance, misconduct, bad faith in the performance of his duties or intentional wrongful acts, approval of actions that violate the provisions of SecNon 7.Olb below or any act spec�ed in the Association Documents as an act for which any limitation of liability set forth in the Association Documents is not applicable (this indemnity does cover liabilities resulting from such director's or officer's negligence). In the event of a settlement of any such proceeding, the indemnification provided hereby shall apply only when the Board approves such settlement and reimbursement as being in the best interests of the Association. Any right to indemnification provided for herein shall not be exclusive of any other rights to which a director or o�cer, or former director or o�cer, may be entitled. The Association shall have the right to purchase and maintain, as a Common Ezpense, directors' and officers' insurance on behalf of any person who is or was a director or officer of the Association against any liability asserted against him and incurred by him in such capacity, or arising out of his status as such. SECTION 5.06. INSURANCE. The Association, acting through the Board shall have the right to purchase, carry and maintain in force, to the extent such is available (a) liability insurance covering any employees and any and all portions of the Common Areas, and any improvements thereon or appurtenant thereto, and covering the Common Facilities, Common Services, the Parkway Landscape Areas and the Railroad Areas, for the interest of the Association, the Boazd, -19- 007500.00100:0345491.0 l 007500.00100:0345491.02 agents and employees, and of all Members, in such coverage and amounts and with such endorsements as shall be considered by the Board, in its sole discretion, to be reasonable; (b) errors and omissions insurance for the Boazd, officers of the Association and the DRB, and (c) fidelity bonds for all Board members, officers or employees of the Association. The Board shall carry such insurance at such limits of coverage and with financially sound companies licensed to do business in Texas as the Board deems appropriate. Notwithstanding the above, the Association shall cany and maintain, to the extent such coverage is reasonably available as deternuned by the Board liability insurance with policy limits of at least $1,000,000 covering occurrences in the Common Areas or as the result of the operation of Common Services or Common Facilities. The Association shall use any net insurance proceeds for the purpose the insurance was intended, including, but not limited to, the repair and/or replacement of any damaged or lost property, whether real or personal. Any unused balance from the proceeds of insurance paid to the Association shall be retained by the Association for use in the payment of Common Expenses. Should insurance proceeds be insufficient to fully reimburse any loss or damage, the Association may levy a Special Purpose Assessment, a Special Member Assessment or a Railroad Area Assessment, whichever is applicable, to cover such deficiency. ARTICLE VI DEVELOPMENT REVIEW BOARD SECTION 6.01. CREATION OF DEVELOPMENT REVIEW BOARD. The Association shall establish and maintain a Development Review Boazd (the "DRB") consisting of not fewer than three persons appointed by the Board. At least two members of the DRB shall be Owners or employees, agents or officers of Owners. Until the Conversion Date, the appointrnent of the members of the DRB must be approved by Declarant, and any or all members of such DRB may be removed by the Boazd or Declazant with or without cause. After the Conversion Date, the Boazd then shall have the exclusive right and authority at any time, and from time to time thereafter, to create and fill vacancies on the DRB and to remove members of the DRB with or without cause. The vote of the majority of the voting members of the DRB shall be the act of the DRB. SECTION 6.02. FLTNCTION OF DEVELOPMENT REVIEW BOARD. A fianction of the DRB is to review and approve or disapprove plans and specifications for Improvements proposed to be installed or modified on portions of the Property. NO IMPROVEMENTS SHALL BE ERECTED, CONSTRUCTED, PLACED, ALTERED, REMODELED, DEMOLISHED OR PERMITTED TO REMAiN ON ANY PORTION OF THE PROPERTY UNTIL PLANS, IN SUCH FORM AND DETAIL AS THE DRB MAY DEEM NECESSARY, SHALL HAVE BEEN SUBMITTED TO THE DRB AND APPROVED BY IT IN WRITING. The vote of a majority of the members of the DRB shall be considered as the act of the DRB. The Board, from time to time, may establish and revise a standard review fee which must be paid by an Owner at the time plans are submitted for review. The DRB shall 6ave the authority to select and employ professional consultants to assist it in discharging its duties if the DRB determines that it does not have sufficient expertise or time to review any submitted plans, the cost of such consultants to be paid by the Owner of the Site for which plans have been submitted for approval, which cost shall -20- 007500.00100:0345491.01 007500.00100:0345491.02 be in addition to the review fee referenced above. The process of reviewing and approving plans and specifications is one which of necessity requires that the DRB is called upon from time to time to make subjective judgments on items for which specific standards or guidelines are not expressly set forth in this Declaration or the Development Guidelines. The DRB has full power and authority to make any such subjective judgments and to interpret the intent and provisions of this Declaration and the Development Guidelines in such manner and with such results as the DRB, in its sole discretion, may deem appropriate, and in the absence of final adjudication by a court of competent jurisdiction that the DRB has abused its discretion, such action by the DRB shall be final and conclusive. While the Development Guidelines are intended as a general guide for development within the Property, the DRB shall have the right to grant variances from the Development Guidelines as it, in its sole judgment, deems appropriate; provided, however, such variances may not be used as to allow violations of this Declaration. The DRB shall have the sole discretion to determine whether plans submitted to it for approval are acceptable, and the DRB or the Association shall be entitled and empowered to enjoin or remove any construction undertaken pursuant �o plans that have not been approved in writing by the DRB. Improvements for which DRB approval is required are to be constructed in accordance with the Development Guidelines in existence as of the date the preliminary plans therefor aze submitted to the DRB as required hereunder. Subsequent changes to the Development Guidelines shall not require changes in existing construction or plans previously approved by the DRB. THE RIGHTS AND POWERS OF THE DRB LTNDER THIS ARTICLE VI ARE SUBJECT TO THE PROVISIONS OF SECTION 8.Olb BELOW. SECTION 6.03. PLANS AND SPECIFICATIONS. a. The DRB shall have the right to disapprove any submitted plans that are not in compliance with this Declaration and the Development Guidelines, if they are incomplete or if the DRB determines that such plans aze deficient from an engineering or design standpoint. The DRB may base its approval or disapproval on, among other things: (1) architectural character of all proposed Improvements, taking into consideration the aesthetic quality of any structures with respect to height, form, proportion, volume, siting, exterior materials and roofing materials (with regard to type, scale, texture, color and durability), finish of exterior walls, proposed quality of workmanship and the appearance of the Improvements from the air; (2) adequacy of Site dimensions for the proposed Improvements; (3) conformity and harmony of external design with Improvements on other Sites and types of operations and uses thereof; -21- 007500.00100:0345491.01 007500.00100:0345491.02 (4) relation to topography, grade and finish ground elevations to that of other Sites; (5) effect of the Improvements on aircraft navigation or communication and communication or navigation aids or equipment; (6) screening of inechanical and other installations; (7) functional appropriateness with respect to vehicle handling, pedestrian circulation, siting of buildings (both in relationship to one another and in relationship to buildings, existing or proposed, located on other Sites), drainage, utility service systems and lighting; (8) extent and quality of landscaped areas; (9) exterior signing; or (10) compliance with the purposes and general plan, intent and provisions of this Declaration and the Development Guidelines; Each Owner shall follow the procedures and requirements for the submission of plans and specifications for proposed Improvements as set forth in the Development Guidelines. The DRB shall be available on a reasonable basis, upon reasonable request of an Owner, to meet with an Owner or its representatives to discuss and answer questions concerning proposed Improvements and their compliance with this Declaration and the Development Guidelines. b. The development review process consists of three phases: the Concept Plan Phase, the Preliminary Plans Review and the Final Plans Review. c. The Concept Plan Phase is the oppomuiity for the DRB to communicate to an Owner any specific development requirements for the Owner's Site and for the Owner to present to the DRB such Owner's concept design for the Improvements proposed to be constructed or installed on its Site. The concept design plan submitted by the Owner shall provide and show all information specified and required in the Development Guidelines. The DRB must approve in writing the Owner's design concept before the DRB will accept the Owner's submission for Preliminary Plans Review. THIS DESIGN CONCEPT PRESENTATION SHALL OCCUR AS EARLY AS POSSIBLE IN THE DESIGN PHASE FOR ANY IMPROVEMENTS. A PRIMARY PURPOSE OF THIS INITIAL PRESENTATION IS TO IDENTIFY ANY GENERAL DESIGN ASPECTS OF THE PROPOSED IMPROVEMENTS THAT ARE UNACCEPTABLE TO THE DRB AT A TIME PRIOR TO THE OWNER HAVING INCURRED SUBSTANTIAL DESIGN AND ENGINEERING COSTS. -22- 007500.00 I 00:0345491.01 007500.00100:0345491.02 d. Based on the design concept approved by the DR.B, the Owner shall submit to the DRB its preliminary plans for the proposed Irnprovements on its Site for Preliminary Plans Review by the DRB. Such plans shall provide and show all of the information, drawings and data specified and required in the Development Guidelines and such other information as may be required by the DRB. The DRB must approve in writing the Owner's preliminary plans for such Improvements before the DRB will accept the Owner's submission for Final Plans Review. e. Based upon the preliminary plans approved by the DRB, the Owner shall submit to the DRB its final plans and specifications for the proposed Improvements on its Site for Final Plans Review by the DRB. Such plans shall be prepared by an azchitect, professional engineer, landscape architect and land surveyor (as appropriate) registered under Texas law, bearing the signature, seal and certification of such architect, professional engineer, landscape architect and land surveyor and shall provide and show all of the information, drawings and data specified and required in the Development Guidelines and such other information as may be required by the DRB. The plans shall be accompanied by the written certification by the Owner's architect that the Improvements comply with the objective provisions of the Development Guidelines and this Declaration. If any of the plans that are submitted do not comply with the objective provisions of this Declaration or the Development Guidelines, the Owner's architect, in such certificate, shall specify and explain any noncompliance. f. At the request of an Owner, the DRB shall review plans for phased or "fast-track" construction prior to reviewing plans for the completed construction project. All additional costs of consultants necessary to provide this type of review shall be paid by ihe Owner. Any such request for such approval procedure shall be at the risk of such Owner, because the DRB shall have the right to withhold further approvals or to withdraw its approval of plans previously submitted if later plans for fiarther construction on such Site result in such previously approved Improvements no longer being in substantial compliance with this Declaration or the Development Guidelines or being consistent in all material respect with plans for the Site previously approved by the DRB. In such event, the Owner shall modif'y any such previously constructed Improvements as may be required by the DRB. g. Approval of plans and specifications shall be based upon a determination by the DRB as to whether or not in its judgment such plans adequately meet objectives established for the Property with regard to aesthetic quality and the other requirements of this Declaration and the Development Guidelines. The DRB shall notify the Owner of the DRB's disapproval of any portion of the plans or other submissions and shall give the reasons for such disapproval. Approval of any plans with regard to certain Improvements on any Site shall not be deemed a waiver of the DRB's right, in its discretion, to disapprove similar plans and specifications, or any of the features or elements included therein, for any other Improvements on such Site or any other Site or to refrain from granting similar variances. -23- 007500.00 I 00:0345491.01 007500.00100:0345491.02 h. If any submission of plans is not complete or does not include all data required by this Declaration or the Development Guidelines, the DRB, within 15 days after such submission, shall notiiy the Owner of such deficiencies, and such plans shall not be considered to have been submitted until such deficiencies have been corrected. Should the DRB fail to approve or disapprove any concept design plans, preliminary plans or fmal plans, properly presented by an Owner as provided above, within 20 days after submittal thereof to the DRB in a form and fully complete as required by the DR.B and the Development Guidelines, it shall be presumed that the DRB has approved such properly submitted plans and specifications, unless prior to the end of such 20-day period, the DRB shall have notified the Owner submitting such plans and specifications in writing that an additional time period, not to exceed ten days, is needed for fiufiher review, after which additional period it shall be presumed that approval has been given absent specific disapproval in writing having been given by the DRB during such additional review period. The DRB in the future may modify, by provisions in the Development Guidelines, the procedure for the submission and review of plans provided the review times set forth above are not materially changed. i. If work is not commenced (meaning completion of the pouring of the foundation) within 18 months from the date of DRB approval of final plans, then the approval given pursuant to this Article VI shall be deemed revoked by the DRB, unless the DRB extends the time for commencing work. In any event, all work covered by such approval, once commenced, sha11 be constructed with due diligence and completed as soon as reasonably possible, but must be completed within three years of the commencement thereof, except for such period of time as such completion is rendered impossible or would result in great hardship due to strikes, fires, national emergencies, critical materials shortages or other intervening forces beyond the control of the Owner, unless the DRB extends the time for completion. SECTION 6.04. INSPECTIONS. The DR.B, or its designees, shall have the right during reasonable business hours to enter upon and inspect any Site or Improvements then under construction to determine whether or not the plans therefor have been approved by the DRB. If the DRB shall determine that such plans have not been approved or that the plans which have been so approved are not being substantially complied with, the DRB may, in its discretion, give the Owner of such Site and Improvements written notice to such effect, and, thereafter, the Boazd or the DRB, on behalf of the Association, shall be entitled to enjoin further construction and to require the removal or correction of any work in place that does not comply with approved plans. SECTION 6.05. INTERIOR ALTERATIONS. Notwithstanding any other provisions of this Declazation or the Development Guidelines, an Owner may make improvements and alterations within the interior of any building on its Site without first obtaining DRB approval, provided such do not change the exterior appearance of any Improvements. SECTION 6.06. CHANGES. No construction or installation of Improvements on a Site that is inconsistent with, in addition to or materially different from any previously approved plans shall be commenced or permitted until the plans reflecting such change or addition have been -24- 007500.00100:0345491.O l 007500.00100:034549 l .02 submitted to and approved by the DRB in accordance with this Article VI; provided, however, no such approval is required for changes within the interior of any building that do not change exterior appeazance. SECTION 6.07. LIMITATION OF LIABILITY. Declarant, the Association, the Board or any of its members and the DRB or any of its members, shall not, individually or in combination, be liable in damages or otherwise to any Person submitting plans or specifications for approval or to any Owner of any portion of the Property, by reason of subjective decisions, mistake in judgment, negligence or nonfeasance arising out of or in connection with the approval or disapproval or failure to approve or to disapprove any plans and specifications submitted; provided, however, this provision does not apply to acts of willful misfeasance or malfeasance, misconduct, bad faith, intentional wrongful acts, the requirement of actions that violate the provisions of Section 7.01 b below or to any act specified in the Association Documents as an act for which any limita.tion of liability set forth in the Association Documents is not applicable. Declarant, the Association, the Board or any of its members and the DRB or any of its members shall not, individually or in combination, be liable in damages or otherwise in connection with any construction, design, engineering or defect associated with any Improvement constructed on the Properiy. APPROVAL OF PLANS AND SPECIFICATIONS BY THE DRB DOES NOT CONSTITUTE ANY WARRANTY OR REPRESENTATION THAT SUCH PLANS AND SPECIFICATIONS COMPLY WITH GOVERNMENTAL REQUIREMENTS OR GOOD AND PRUDENT DESIGN, ENGINEERING AND CONSTRUCTION PRACTICES. IT IS THE SOLE RESPONSIBILITY OF THE OWNER TO DETERMINE AND SEE THAT ITS PLANS AND SPECIFICATIONS COMPLY WITH SUCH REQUIREMENTS AND PRACTICES. SECTION 6.08. CERTIFICATE OF COMPLIANCE. Upon request by an Owner who has complied with the provisions of this Article VI, the Association shall deliver to such Owner, a written certificate of such compliance in recordable form, and such certificate shall be conclusive evidence of such compliance. SECTION 6.09. DOCUMENTATION. Within 60 days after completion of any Improvements, the Owner of such Site, at its expense, shall provide to the Association an as-built survey and as-built site, utility, drainage and landscape plans, plans for imgation systems in the Parkway Landscape Area on and adjacent to such Site and such other as-built information which may be requested by the Board or the DRB. ARTICLE VII DEVELOPMENT COVENANTS SECTION 7.01. GENERAL. a. No use shall be permitted on the Property which is not allowed under applicable public codes and ordinances of any applicable Governmental Entity. Each Owner, occupant or other user of any portion of the Property at all times shall comply with this Declazation and the Development Guidelines and with any and all laws, ordinances, policies, rules, regulations and orders of all Governmental Entities, federal, state, county -25- 007500.00100:0345491.01 007500.00100:0345491.02 and municipal governments or their agencies having jurisdictional control over the Property, specifically including, but not limited to, applicable zoning restrictions placed upon the Property as they exist from time to time. IN SOME INSTANCES GOVERNMENTAL REQUIREMENTS MAY BE MORE OR LESS RESTRICTIVE THAN THE PROVISIONS OF THIS DECLARATION AND THE DEVELOPMENT GUIDELINES. IN THE EVENT A CONFLICT EXISTS BETWEEN ANY SUCH GOVERNMENTAL REQUIREMENT AND ANY REQUIREMENT OF THIS DECLARATION OR THE DEVELOPMENT GUIDELINES, THE MOST RESTRICTIVE REQUIREMENT SHALL PREVAIL, EXCEPT IN CIRCUMSTANCES WHERE COMPLIANCE WITH A MORE RESTRICTIVE PROVISION OF THE DECLARATION OR THE DEVELOPMENT GUIDELINES WOULD RESULT IN A VIOLATION OF MANDATORY APPLICABLE GOVERNMENTAL REQUIREMENTS, IN WHICH EVENT THOSE GOVERNMENTAL REQUIREMENTS SHALL APPLY. COMPLIANCE WITH MANDATORY GOVERNMENTAL REQUIREMENTS WILL NOT RESULT IN THE BREACH OF THIS DECLARATION OR THE DEVELOPMENT GUIDELINES EVEN THOUGH SUCH COMPLIANCE MAY RESULT IN NON-COMPLIANCE OF PROVISIONS OF THIS DECLARATION OR THE DEVELOPMENT GUIDELINES. WHERE A GOVERNMENTAL REQUIREMENT DOES NOT CLEARLY CONFLICT WITH THE PROVISIONS OF THIS DECLARATION OR THE DEVELOPMENT GUIDELINES BUT PERMITS ACTION THAT IS DIFFERENT FROM THAT REQUIRED BY THIS DECLARATION OR THE DEVELOPMENT GUIDELINES, THE PROVISIONS OF THIS DECLARATION AND THE DEVELOPMENT GUIDELINES SHALL PREVAIL. All portions of the Property shall be developed in accordance with this Declaration as such may be amended as herein provided. The provisions of this Article VII set forth certain requirements which, in addition to the other provisions of this Declaration and the Development Guidelines, shall apply with respect to the development and use of the Property. b. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE PROVISIONS OF THIS DECLARATION OTHER THAN THIS SECTION 7.0lb, THE ASSOCIATION, THE BOARD AND THE DRB SHALL NOT HAVE THE RIGHT OR AUTHORITY TO EXERCISE ANY OF THE POWERS OR RIGHTS GRANTED TO ANY OF THEM IN THIS DECLAR.ATION IN SUCH A MANNER AS TO PROHIBIT THE USE BY ANY OWNER OF ITS SITE FOR ANY USE (a) THAT COMPLIES WITH THE FOREGOING PROVISIONS OF SECTION 7.0la ABOVE, AND (b) THAT IS NOT PROHIBITED BY THE PROVISIONS OF SECTION 7.02 BELOW. BY WAY OF EXAMPLE, THE BOARD SHALL NOT ADOPT (INITIALLY OR BY AMENDMENT) DEVELOPMENT GUIDELINES THAT ARE DESIGNED TO PROHIBIT AN OWNER'S USE OF ITS SITE THAT OTHERWISE WOULD BE IN COMPLIANCE WITH THE PROVISIONS OF SECTION 7.0la ABOVE AND NOT PROHIBITED BY SECTION 7.02 BELOW. FURTHER, BY WAY OF EXAMPLE, THE DRB SHALL NOT EXERCISE ITS APPROVAL RIGHTS UNDER ARTICLE -26- 007500.00100:0345491.01 007500.00 I00:0345491.02 VI OF THIS DECLARATION IN A MANNER INTENDED TO PROffiBIT AN OWNER'S USE OF ITS SITE THAT OTHERWISE WOULD BE IN COMPLIANCE WITH THE PROVISIONS OF SECTION 7.0la ABOVE AND NOT PROHIBITED BY SECTION 7.02 BELOW. THE PROVISIONS OF THIS SECTION 7.0lb, HOWEVER, DO NOT AFFECT (i) THE RIGHT AND AUTHORITY OF THE ASSOCIATION, THE BOARD OR THE DRB TO EXERCISE THEIR RIGHTS AND POWERS SET FORTH IN THIS DECLARATION, OR (ii) THE OBLIGATIONS OF EACH OWNER TO COMPLY FULLY WITH THE PROVISIONS OF THIS DECLARATION, SPECIFICALLY, BY WAY OF EXAMPLE, BUT NOT IN LIMITATION, THE PROVISIONS OF ARTICLES VI AND VII OF THIS DECLARATION NOTWITHSTANDING ANY INCIDENTAL EFFECT OF SUCH COMPLIANCE ON AN OWNER'S USE OF ITS SITE. SECTION 7.02. PROHIBITED USES. Without limiting the generality of Section 7.01 above, the following uses aze prohibited on the Property: a. residential uses, including, but not limited to, mobile homes and trailer courts; provided, however, (i) residential uses that are incidental to or ancillary to the conduct of any business on the Property, including, for example and without limitation, housing for students or trainees, (ii) any residential uses incidental to the creation, qualification or operation of any statutory district or entity, and (iii) hotels and motels, are permitted; b. overnight parking of campers, mobile homes, boats or motor homes except in areas that aze covered, enclosed or screened in a manner approved by the DRB; c. j unk yard, salvage yard or storage facility for abandoned vehicles, abandoned aircraft or abandoned aircraft or vehicle parts or auto paint and body shops; d. the dumping and incineration of garbage or refuse of any nature or recycling facilities, except as the DRB may specifically permit in writing; e. the smelting of iron, tin, zinc or other ore unless specifically permitted in writing by the DRB; f. sanitary landfill; g. pawn shop; h. sexually-oriented business such as, but not limited to, x-rated movie or video sales, theater or rental facility, nude modeling studio, massage pazlor, lounge or club featuring nude or semi-nude entertainers or escort service; i. slaughterhouse, feedlot or rendering facilities; -27- 007500.00100:0345491.01 007500.00100:0345491.02 j. the raising, breeding or keeping of animals or poultry, except (i) the keeping of livestock for the purpose of qualifying for or preserving eligibility for agricultural or open space ad valorem tax valuation or exemption; or (ii) the keeping of animals in buildings or enclosures screened in a manner required by the DRB, are permitted; k 1. m. drive-in movie theater; mineral refining facility or operations; horse or dog racing track or any facility for off-track pari-mutuel betting; n. any use that interferes with aircraft navigation or communication, including, but not limited to, any use that would interfere with the operation of a Federal Aviation Administration Category III instrument landing system if such system in fact was operated in connection with Fort Worth Alliance Airport; o. P• q• r. s. t. u. jails, prison or honor farms; drug, alcohol or substance abuse clinic, hospital or similaz facility; sawmills; munitions and related manufacturing facilities; cemeteries; flea markets; and truck stop or truck terminal. SECTION 7.03. SETBACKS. a. Except as hereinafter specifically provided, each Site shall be subject to "Front Yard Setbacks" consisting of a"Paving Setback" and a"Building Setback" measured in feet from the right-of-way line of each Street contiguous to such Site (a Site shall have a front yard on each boundary abutting a Street) as follows: Street All median-divided Streets All other Streets Paving Setback 30 feet 20 feet -28- Building Setback 50 feet 50 feet 007500.00 I 00:034549 I.0 1 007500.00100:0345491.02 Notwithstanding the Building Setbacks specified above, each front yazd Building Setback for any building (other than buildings in which at least 80% of the total building squaze footage is used for hotel or general office use on Sites not adjacent to median divided Streets) to be constructed on a Site that will be greater in height than the width of the above-specified applicable front yard Building Setback shall be increased one foot for each one foot of building height in excess of the width of the above-specified applicable front yard Building Setback up to a maximum required front yard Building Setback of 100 feet. b. Except as hereinafter specifically provided, each Site shall be subject to "Side and Rear Yazd Setbacks" on all sides of a Site not abutting a Street or a Railroad Area consisting of a five-foot Paving Setback and a 30-foot Building Setback, measured from the applicable boundary lines of the Site. c. No Improvements shall be constructed, installed or planted by an Owner within a Paving Setback or within the Unpaved Right-of-Way on or ad}acent to a Site other than Landscaping, sidewalks, underground utility lines and connections (including surface mounted switch gear), driveways crossing such area into the Site, and, but only if such are approved in writing by the DRB, gates and gatehouses, landscape walls, signs, flags, sculpture and other Improvements specifically authorized by the DRB. d. No Improvements shall be constructed, installed or planted on any Site between the Paving Setback and the Building Setback applicable to such Site except for: (i) those Improvements permitted in Section 7.03c above; (ii) underground structures; (iii) steps, pedestrian plazas, benches and related hardscape; (iv) planters and retaining walls; (v) fences, screening walls and security walls approved in writing by the DRB; (vi) driveways, porte cocheres and surface parking azeas; and (vii) other Improvements specifically authorized by the DRB. e. Notwithstanding the setbacks specified above, the Building Setback along any boundary of a Site abutting a Railroad Area shall be 20 feet, and the DRB sha11 have the right to waive or reduce any Paving Setback along any boundary of a Site abutting a Railroad Area. -29- 007500.00100:0345491.01 007500.00100:0345491.02 f. Notwithstanding the setbacks specified above, the DRB shall have the right, with respect to any retail shopping azeas or centers developed on the Property, to waive or reduce any applicable Front, Side or Rear Yazd Setbacks. SECTION 7.04. SPUR TRACKS. No spur tracks shall be installed from a Site to connect into lead tracks in a Railroad Area and no Single User Railroad Tracks shall be installed on a Site unless and until such tracks have been approved in writing by the DRB. SECTION 7.05. SITE CIRCiJLATION. Declarant intends for the Property to be developed in such a manner to minimize the number of curb cuts on to and median cuts in Streets, all of which curb and median cuts must be approved in writing in advance by the DRB. Driveways on a Site shall be paved with concrete and shall accommodate adequate vehicle stacking so that stacking on Streets of vehicles entering the Site is minimized. Notwithstanding the provisions of Section 7.03 above, the DRB may, in its discretion, pernut jointly used driveways along the common side or rear yard boundary lines of two adjacent Sites designed to facilitate vehicular circulation provided other side and rear yard Landscaping is provided on such Sites accepta,ble to the DRB. Each Owner, in accordance with the provisions of the Development Guidelines, shall install sidewalks on its Site and the Unpaved Right-of-Way of any abutting Street if, as and when required to do so by the City or the Association. The design, materials and location of such sidewalks are subject to approval of the DRB. In addition, pedestrian circulation areas around buildings and parking areas shall be installed and landscaped as shown on the Preliminary Plans approved by the DRB. SECTION 7.06. FIRE PROTECTION. All buildings shall be designed, constructed and maintained so as to comply fully at all times with any applicable public codes, ordinances, rules, regulations and orders relating to fire protection. All such buildings and their associated ingress and egress from and to Streets and surface pazking areas shall be so related to one another and arranged as to pernut ease of access for emergency fire vehicles. Designated fire lanes within any Site shall be so located, marked and protected from encroachment as to function effectively at all times. Appropriate signage, subject to DRB approval, shall be installed for such fire lanes as may be required either by any public authority or by the DRB and be kept in readable condition. SECTION 7.07. PARKING. Each Owner must provide on its Site adequate parking areas for employees, the handicapped, visitors and service vehicles. No parking shall be permitted on Streets or on entrance driveways on the Site. All surface pazking areas shall be paved and shall have integral concrete curbs and gutters. To the extent required by the DRB, all surface parking shall be screened to block the ground level view of automobiles below their hood lines and otherwise reduce the visibility of vehicles and parking surfaces from Streets, in a manner satisfactory to the DRB. SECTION 7.08. SIGNAGE. No sign or other advertising device of any nature shall be placed on the Property except as approved by the DRB. No rooftop signs shall be placed on the Property. Declarant or the Association shall have the right to install and maintain standard directionaVinformational signage and traffiic signage in any Unpaved Right-of-Way. No Owner or occupant of a Site shall use the name "Alliance" or the registered "Alliance" logo or mark in the -30- 007500.00 I00:0345491.0 l 007500.00100:0345491.02 name of any building or project or in any printed advertising or promotional material without the prior written consent of Declarant. SECTION 7.09. EXTERNAL ILLUMINATION. External lighting of buildings, drives, parking azeas, walks and plazas on a Site, pursuant to plans approved by the DRB, is required. Standards and requirements for illumination, with respect to fixture type, method of erection, height, material, finish, color and base installation, must be approved by the DRB in its sole discretion. To the extent practical, lighting on a Site shall be from concealed sources unless otherwise approved by the DRB and shall be designed to minimize glaze or light flow onto adjacent structures and property. SECTION 7.10. ANTENNAE AND TOWERS. No towers, tower antennae ar satellite receiving or transmitting equipment shall be installed on the Property that may interfere with aircraft navigation and communications. SECTION 7.11. UNDERGROiTND UTILITIES. Any and all pipes, lines and wires used for the transmission of water, fuel, natural gas, electricity, telephone, television, sewage, sound or any other utilities which aze not within a building shall be constructed and maintained underground within the Property unless required to be above ground for technical or environmental reasons and approved by the DRB. However, temporary above-grade utilities may be approved by the DRB for use during construction and until permanent underground service is available to the Site upon written advance approval by the DRB. No well shall be constructed on the Property except by Declarant or the Association on Property owned by Declarant or the Association unless otherwise approved by the Declazant. SECTION 7.12. SCREE1vING. All towers, tower antennae, satellite receiving and transmitting equipment, roof-mounted equipment, other equipment, outside storage areas and service azeas and parking areas on the Property, and such other items and areas as designated by the DRB, sha11 be screened to the extent reasonably practical from ground level view. The DRB shall have the right to specify what facilities or areas must be screened and the screening materials and requirements for each. SECTION 7.13. LOADING DOCKS AND AREAS. Each Site shall provide sufficient on-site loading facilities to accommodate site activities, and all loading movements, including, but not limited to, turnazounds, shall be made off of Streets. No materials, supplies or equipment shall be permitted to remain outside of any structure unless screened in a manner satisfactory to the DR.B. Loading docks and azeas and maneuvering areas shall be located on a Site and screened in accordance with the provisions of the Development Guidelines or as required by the DRB. SECTION 7.14. LANDSCAPING. Each Owner, contemporaneously with the development of Improvements on a Site, shall install Landscaping on all unimproved areas on its Site in accordance with plans approved by the DRB (other than on land held for expansion purposes as approved by the DRB), except that the Owner shall not be required to install Landscaping in any Parkway Landscape Area on or adjacent to his Site unless Declarant elects not to do so by written notice delivered to such Owner, in which event such Owner shall promptly -31- 007500.00100:034549 l .01 007500.00100:034549 l .02 install Landscaping in such Pazkway Landscape Area in accordance with the Pazkway Landscape Plan. An Owner shall keep all of such Landscaping in good condition and repair and in a neat and orderly appearance and shall be responsible for all expenses relating to the maintenance, repair or replacement of Landscaping on the Owner's Site and on the Unpaved Right-of-Way adjacent to such Site. Automatic underground irrigation systems must be installed in all landscaped areas on a Site (other than land held for expansion purposes as approved by the DRB) and the adjacent Unpaved Right-of-Way. No changes shall be made to the Landscaping plan for a Site or an adjacent Unpaved Right-of-Way without the prior written approval of the DRB. SECTION 7.15. PARKWAY LANDSCAPE AREAS. Declarant, at its expense, may install Landscaping in any or all Parkway Landscape Areas. The Association sha11 maintain such Landscaping in the Parkway Landscape Areas until, on a Site by Site basis, the Association, at such time as it deems appropriate, turns such maintenance duties over to the Owner of such Site after such Owner's acquisition thereof. The Association shall notify an Owner not less than 30 days prior to the date on which such Owner is to become responsible for such Landscape maintenance. Thereafter, it shall be the responsibility of such Owner, at its expense, to maintain in good condition and repair, in a neat and orderly appearance and in accordance with the Parkway Landscape Plan requirements all of the Landscaping then existing or thereafter installed by Declazant or such Owner in the Parkway Landscape Area on his Site and in the Unpaved Right-of-Way adjacent to his Site. No Landscaping shall be installed in the Parkway Landscape Area except as is permitted in the Parkway Landscape Plan. Declarant may choose initially to install in certain portions of the Parkway Landscape Areas less than the full Landscaping pertnitted in the Parkway Landscape Plan. Therefore, Declarant, from time to time and at its expense, shall have the right to install additional Landscaping in Parkway Landscaping Areas as permitted in the Parkway Landscaping Plan, subject to the provisions of Section 7.14 above regarding an Owner's obligation to install such Landscaping. SECTION 7.16. TRASH AND GARBAGE. No Site, or part thereof, shall be used or maintained as a dumping ground for rubbish, trash or gazbage before, during or after the installation of any Improvements. Trash collection containers shall be situated and enclosed or otherwise screened as required by the DRB as not to be visible from Streets or other adjacent Sites. Each Owner shall observe and comply with any and all requirements established by the DRB in connection with the storage and removal of trash and garbage. If within five days after the issuance of written notice by the Association to an Owner, said Owner shall have failed either to remove any trash, rubble or construction debris, or to exercise reasonable caze or conduct to prevent or remedy a dangerous, unclean or unsightly condition, then the Association shall have the authority and right to go on the Site for the purpose of cleaning said Site and/or otherwise correcting said condition, or conditions. SECTION 7.17. SURFACE WATER FLOW AND DRAINAGE. Plans for all dams, lakes, ponds, other "water features" of any kind and general Site drainage must be submitted in advance for DRB approval. Each Owner shall control water runoff drainage from his Site to prevent damage to adjacent tracts, Streets or any other area in the Properiy. -32- 007500.00100:0345491.01 007500.00100:0345491.02 SECTION 7.18. ENVIRONMENT. a. No Owner, lessee, tenant, operator or other occupant of the Property or any portion thereof sha11 handle, store, deposit, use, process, manufacture, dispose of or release or allow any of its agents, employees, contractors or invitees to handle, store, deposit, use, process, manufacture, dispose of or release any Hazardous Substances (hereinafter defined) of any kind from, on, in, under or in the air above any part of the Property, including, but not limited to, any surface waters or groundwater located on the Property, or into public sanitary sewer systems serving the Property without complying with all Environmental Laws (hereinafter defined), including, but not limited to, perfornung pre-treatment, obtaining permits and giving notices as required by Environmental Laws. "Hazardous Substances" means those substances now or hereafter included within (whether as a result of such substance's inclusion on a list, physical characteristics or otherwise) any of the definitions of "hazardous substances", "hazardous waste", "hazardous materials", "pollutant", "contaminant" or "toxic substance" under, or otherwise regulated by, any Environmental Law; including, but not limited to (i) mixtures containing listed Hazardous Substances and waste generated from the treatment, storage or disposal of Hazardous Substances, (ii) asbestos, (iii) polychlorinated biphenyls, (iv) radioactive materials, and (v) petroleum (including crude oil or any fraction thereo�, natural gas, natural gas liquids, liquified natural gas and synthetic gas. "Environmental Laws" shall mean and include all present and firiure federal, state or local laws, rules, orders, ordinances and regulations pertaining to environmental regulation, or the use, processing, storage, disposal, generation or transportation of Hazardous Substances, or any contamination, cleanup or disclosure related thereto, including, but not limited to, the Solid Waste Disposal Act, TEX. REV. CIV. STAT. ANN. 4477-7, Chapter 26 of the TEX. WATER CODE ANN., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §6901 et seq•, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §9601 et seq , the Federal Water Pollution Control Act, 33 U.S.C. §1251 et seq•, and such amendments as may be made to these statutes and such regulations as may be promulgated with respect thereto, including, but not limited to the regulations contained in 40 CFR Part 280. b. Each Owner and each lessee, tenant, occupant and other user of any Site shall be responsible for and shall pay all costs and expenses related to the disposal or release by such Owner, lessee, tenant, occupant or other user of such Site of any Hazardous Substances, sewage or wastes of any kind in, on, under or in the air above the Property, which costs and expenses shall include, but not be limited to, closure, removal, remediation, cleanup, contairunent and other response costs, injuries to persons, damages to properly, legal expenses, and interest paid to any Governmental Entity; provided, however, this covenant does not apply to Hazardous Substances generated on or migrating from other Sites or already existing on the Site in question as of the date of the acquisition of such Site by such Owner. The covenant in the immediately preceding sentence itself does not create any obligation of an Owner or any lessee, tenant, occupant or other user of a Site other than for the payment of the costs and expenses described in such sentence, and no Person has any rights under the covenant in such sentence to enforce any claim for any remedy against -33- 007500.00100:0345491.01 007500.00100:0345491.02 such Owner or such lessee, tenant, occupant or other user of such Site other than for the payrnent or recovery of the costs and expenses described in such sentence. c. The provisions of this Section 7.18 do not affect the rights, liabilities or obligations of any Person under Environmental Laws or other applicable laws. SECTION 7.19. FUEL FACILITIES. Fuel storage and dispensing facilities may be installed on a Site only after prior written authorization of the DRB has been obtained. The Owner of the Site on which such facilities are installed shall be fully responsible for insuring that such facilities and their installation comply fully with all applicable laws and regulations, and the provisions of Section 7.18 above sha11 be applicable to such facilities. SECTION 7.20. FENCES. The use of fences on the Property is permitted only if specifically approved in writing in advance by the DRB. SECTION 7.21. PROHIBITED ACTIVITIES. No dangerous, noxious, offensive or nuisance activities, in the opinion of the Boazd, or any activities which violate any applicable laws shall be conducted or permitted to occur by any Owner or its agents, employees, contractors, occupants or invitees on any portion of the Property. No operation or use of any portion of the Property shall be pernutted or maintained by any Owner or its agents, employees, contractors, occupants or invitees that, in the opiruon of the Board, causes or produces noise or sound that is objectionable because of its volume, duration, frequency or shrillness, smoke, noxious, toxic or corrosive fumes or gases, obnoxious odors, dust or dirt or unusual fire or explosion hazards. The above prohibitions are in addition to those set forth in Sections 7.01 and 7.02 above. SECTION 7.22. CERTAIN DECLARANT USES. Declarant may conduct its sales and marketing program for the Property from any permanent or temporary sales buildings or trailers and may conduct improvement work and activities on portions of the Property owned by Declarant and do all things reasonably necessary or convenient as required to expeditiously commence, continue and complete such improvement work, including, but not limited to, the provision of temporary buildings (including trailers), temporary storage of construction materials and equipment and the installation of temporary signage of such types, in such sizes and at such locations on portions of the Property owned by Declazant as Declazant deems appropriate. In addition, Declarant shall have the right, at its expense, to install on any Site a standardized sign announcing a fuiure development on such Site, and such sign may remain on such Site following its sale until completion of such development, and if Declarant chooses to do so, the Owner of such Site shall not install another sign for the same purpose except for a sign that complies with standards established by the DRB for such type signs. SECTION 7.23. CONSTRUCTION STANDARDS. a. Any builder engaged to construct Improvements on any portion of any Site may conduct its construction operations and activities and do all things reasonably necessary as required to expeditiously commence, continue and diligently complete conshuction of any such Improvements, including the provision of temporary buildings or -34- 007500.0D 100:0345491.01 007500.00100:0345491.02 trailers for administration of work and for the storage of materials and equipment, and the construction of temporary security fences and lighting, except that all construction activities, temporary structures, storage of materials and equipment, all conshuction-related parking and temporary security fences shall be confined entirely on such Site. Topsoil shall be scraped and preserved before laying temporary parking lots. b. Each Owner shall take such action as is necessary to keep the Property reasonably free from mud, dirt and debris resulting from construction activities on that Owner's Site. Each Owner is responsible for, and shall cause, through appropriate contractual provisions, the payment of all costs of cleaning up any debris or waste improperly disposed of anywhere on the Property. Each Owner and its contractors must maintain an attractive, clean, nuisance-free environment during the period of construction. Declarant shall have the right to reasonably designate points of ingress and egress on the Site and within the Property for construction vehicles, and each Owner of a Site on which Improvements are being constructed shall keep a11 Streets reasonably cleared of mud and dirt left by construction vehicles entering such Site. Once commenced, all construction on a Site shall be continued with due diligence and good faith until comptetion. Each Owner shall cause its contractors to comply with the requirements of Declarant or the DRB regarding points of construction access to a Site, cleaning mud and construction debris from Streets, re-establishment of pazkway Landscaping, keeping mud from washing onto Streets and adjoining Sites and other matters set forth in the Development Guidelines. c. Each Owner expressly covenants that it will use its reasonable good faith efforts to prevent adverse impacts (such as, but not limited to, air, soil and water pollution, soil erosion, elimination of trees without replacement or increased runoff rates) to azeas outside its Site in any way (negligent or otherwise) resulting from construction, alteration, maintenance, repair, replacement or removal of Improvements to the Site and that it will indemnif°y and hold hannless the Association, the DRB, Declarant and other Owners from any and all damages resulting therefrom. All possible contaminants must be stored in a containment facility that will not allow such to enter any soils on or off the Site. d. Prior to any excavation on a Site, the Owner will determine and mazk the location of and will protect all existing utilities and landscape imgation lines. Declarant or the Association, upon written request by an Owner, will furnish plans showing the location of any such faciiities installed by Declazant or the Association. Utility lines and landscape irrigation lines are to be located before earth moving or drilling equipment operations are allowed to start near underground utilities or landscape irrigation lines. All backfill will be adequately compacted to prevent future settlement, especsally under pavernent and other structures. SECTION 7.24. EXTERIOR BLTILDING FIrTISHES. The sides or backs of any building constructed on the Property that are visible from the northerly boundary of the Property shall have substantially the same exterior facade finish treatment as the front of such building. -35- 007500.00100:0345491.01 007500.00100:0345491.02 ARTICLE VIII EASEMENTS SECTION 8.01. UTILITY AND SERVICE EASEMENTS. Notwithstanding any provision in this Declaration to the contrary, Declarant reserves for itself and its successors and assigns, an easement for installation, maintenance, repair and removal of underground utilities or other underground services (including, but not limited to, electric power, water, f'uel, storm drainage, sewer, industrial sewage, natural gas, telephone, securiry and other telecommunications systems such as closed-circuit cable television) on all portions of each Site within 25 feet of the right-of-way boundary of Streets (or, 20 feet for non-median divided Streets), within five feet from all boundaries of the Site other than those boundaries abutting Streets and within ten feet from all boundaries of a Site abutting Railroad Areas. Full right of ingress and egress shall be had by Declarant at a11 times over each Site for the installation, operation, maintenance, repair or removal of any such utility or service together with the right to remove any obshuction that may be placed in such easement that would constitute interference with the use of such easement, or with the use, maintenance, operation or installation of such utility or service; provided, however, such activities shall be conducted in a manner so as to minimize disruption of other access to and use of a Site by an Owner and its employees and business invitees. An Owner may construct, install or plant in the setback areas affected by these easements those Improvements specifically authorized in Section 7.03 c and d above, subject to the rights of Declarant in this Section 8.01. Declazant shall have the right to assign and convey, in whole or in part, the easements reserved hereunder to one or more public utility companies, to the Association, to a City or to any other Person. In addition, Declarant reserves a temporary construction and maintenance easement within the easement areas specified above in this Section 8.01 only to such e�ent and only for such duration as is reasonably necessary for the construction and maintenance of Streets, utilities, drainage facilities and related improvements. Declazant (or its assignee exercising such easement rights) shall repair any Landscaping or pavement damaged by the exercise by Declarant (or its assignee exercising such easement rights) of the rights set forth in this Section 8.01. SECTION 8.02. OTHER EASEMENTS. Declarant and the Association shall have an easement for full right of ingress and egress at all times over and upon the Property for the exercise of rights under this Declaration and for the carrying out by the Association of their other rights, functions, duties and obligations set out in this Declaration. Any such entry by Declarant or the Association upon the Properly shall be made with as minimum inconvenience to the affected Owner as practical. ARTICLE IX MAINTENANCE BY OWNERS Each Owner sha11 have the duty and responsibility, at its sole cost and expense, to keep its Site and all Unpaved Right-of-Way adjacent to the Site and buildings and Improvements thereon in a well-maintained, safe, clean, neat, orderly and attractive condition at all times, except as such may be maintained by the Association as provided in Section 7.15 above. Such maintenance includes, but is not limited to, the following: prompt removal of all litter, trash, refuse and wastes; lawn mowing; tree and shrub care; watering; other Landscaping maintenance; keeping exterior lighting -36- 007500.00100:0345491.01 007500.00100:0345491.02 and mechanical facilities in working order; keeping lawn and garden azeas, driveways and private roads in good repair; keeping all signs in good repair; complying with all government, health and police requirements; repairing e�erior damage to Improvements; striping of parking azeas and repainting of Improvements; and maintaining Single User Railroad Tracks and spur tracks that connect into lead tracks in Railroad Areas. An Owner sha11 maintain the Unpaved Right-of-Way adjacent to its Site and the front yazd Paving Setback area on that site on such schedule and in such manner as is specified by the DR.B in an effort to maintain a reasonably consistent appearance of all Unpaved Right-of-Way and front yazd Paving Setback areas in the Property. The Association shall have the right to perform any action required of an Owner or its contractors under Section 7.23 above and to perform any maintenance, repair or replacement of Landscaping, signs, screening or decorative walls, surface parking areas, ponds, lakes, fountains, pools, exterior lighting, sculptures, utilities, drainage systems, lighting and park and recreational facilities and equipment on a Site or the adjacent Unpaved Right-of-Way upon the failure of the Owner to do so with such failure continuing for seven days after written notice thereof is given by the Association to such Owner (or after such longer notice period as may be allowed by the DRB due to the nature of such deficiency). ARTICLE X GENERAL PROVISIONS SECTION 10.01. BINDING EFFECT AND DURATION. The covenants and restrictions of this Declazation shall run with and bind the Property, shall be binding on all Owners and shall inure to the benefit of and be enforceable by Declarant, the Association and the Owners and their respective heirs, executors, legal representatives, successors and assigns, and shall be and remain in effect for a period of 50 years from and after the date of the recording of this Declaration in the Real Properiy Records of Denton County, Texas, after which time this Declaration shall automatically be extended for three successive periods of ten years each, unless after such 50 years an instrument executed and duly acknowledged by Owners owning, in the aggregate, at least a majority of the gross acreage (exclusive of acreage in the Streets, Railroad Areas and Common Areas) in the Property has been recorded in the Real Property Records of Denton County, Texas, abolishing this Declazation. SECTION 10.02. OTHER PERSONS. The covenants and restrictions contained in Articles VI, VII, VIII and IX of this Declazation shall be binding upon and enforceable against not only the Owners but also all lessees, tenants or other occupants of a Site. SECTION 10.03. INTERPRETATION. In all cases, the provisions set forth or provided for in this Declazation shall be construed together and given that interpretation or construction which, in the opinion of the Board, will best effect the intent of Declazant's general plan of development as reflected in this Declazation. The Boazd shall have the right, power and authority to determine all questions arising under or in connection with this Declazation and to construe and interpret their provisions, and any deternunation, construction or interpretation made by the Board, in the absence of an adjudication by a court of competent jurisdiction that such actian was an abuse of discretion, shall be binding on the Owners. The provisions of this Declaration shall be given full force and effect notwithstanding the existence of any zoning ordinance or building codes which aze less restrictive. The effective date of this Declaration shall be the date of its filing for record in the -37- 007500.00100:0345491.01 007500.00100:0345491.02 Real Property Records of Denton County, Texas. The captions of each Article and Section hereof as to the contents of each Article and Section aze inserted only for convenience and are in no way to be construed as defining, limiting, extending or otherwise modifying or adding to the particulaz Article or Section to which they refer. The singular wherever used herein shall be construed to mean the plural when applicable and vice versa, and the use herein of any gender shall mean any other gender when applicable. The exhibits referred to herein and attached hereto are made a part hereof by reference. This Declaration shall be construed under and in accordance with the laws of the State of Texas. SECTION 10.04. AMENDMENTS. Except as otherwise provided in this Section 10.04, this Declaration, or any provisions hereof, may be terminated, amended or vacated as to any portion of the Property only by a document duly executed and acknowledged by Owners owning, in the aggregate, at least a majority of the gross acreage contained in the Property (exclusive of acreage in Streets, Railroad Areas and Common Areas); provided, however, (a) that, until the Conversion Date, no such termination, amendment or vacation shall be effective without the written approval of Declarant; (b) Declazant, without the joinder of any other party, shall have the absolute right to make minor changes or amendments to this Declaration to correct or clarify errors, omissions, mistakes or ambiguities contained herein, and (c) Declarant shall have the right to supplement this Declaration for the inclusion of additional property or for the deletion of property as provided in Section 1.03 above (with such supplement to include, at Declarant's option, specifications of Paving Setbacks and Building Setbacks and/or minimum site size designations applicable to such additional properly as determined by Declarant). No such termination, amendment, supplement or vacation shall be effective until a written instrument setting forth the terms thereof has been executed by the parties by whom approval is required as set forth above and recorded in the Rea1 Property Records of Denton County, Texas. Notwithstanding the above, no amendments shall be made to the following provisions of this Declaration unless such have been first approved by a Special Vote of the Class A Members as evidenced by a certification of the Secretary of the Association on any such amendment document: a. changing the definition of Common Areas, Common Facilities, Common Services, Conversion Date or Default Rate; b. increasing the number of acres that can be made subject to this Declaration solely by Declazant as provided in Section 1.03(a) or that can be deleted from the Property solely by Declarant as provided in Section 1.03(b); c. changing the provisions requiring membership in the Association as provided in Section 3.01; d. changing the allocation of voting rights as provided in Section 3.03; e. changing the definition of a Quorum as provided in Section 3.04; f. changing the type of and basis for allocation of Assessments as provided in Sections 4.01, 4.02, 4.03, 4.04 and 4.05; -38- oo�soo.00�oo:o3asa9i.o� 007500.00100:0345491.02 g. changing the limits on the Association reserve fund amount and annual contribution as provided in Section 4.02; h. changing the provisions regarding the subordination of the lien for Assessments as provided in Section 4.0$; i. changing the Members' audit rights as provided in Section 5.03i; j. changing the provisions regarding affiliated contracts as provided in Section 5.04; k. changing the provisions regarding the limitations of the rights and powers of the Association, the Board and the DRB as provided in Section 7.01 b; changing the list of prohibited uses as provided in Section 7.02; m. changing the setbacks as provided in Section 7.03 (subject to the above provision regarding setbacks applicable to additional property subjected to this Declaration as provided in Section 1.03 above); n. changing the provisions of Section 7.18b or Section 7.24; o. expanding the reserved easements as provided in Section 8.01; p. changing the extent of the Association's rights to enter a Site to perform maintenance as provided in Article IX; or q. changing this Section 10.04. SECTION 10.05. ENFORCEMENT. Declarant, the Association and the Owners (and any lessees, tenants or other occupants of an Owner's Site) shall have the right, but not the obligation, to enforce the covenants and restrictions set out in this Declaration. Enforcement may be made by any proceedings at law or in equity against any Person violating or attempting to violate any part of this Declaration, as such may be amended, either to restrain or enjoin violations or to recover damages. Damages shall not be deemed adequate compensation for any breach or violation of any provision of this Declazation, and Declarant, the Association and each Owner (and any lessees, tenants or other occupants of an Owner's Site) shall be entitled to relief by way of injunction, as well as any other remedy either at law or in equity. With respect to any litigation hereunder, the prevailing party shall be entitled to recover reasonable attorneys' fees and court costs from the non-prevailing party. The rights, powers and remedies provided in this Declaration shall be cumulative and not restrictive of other remedies at law or in equity, and the exercise by a Person of any particular right, power or remedy shall not be deemed an election of remedies or to preclude such Person's resort to other rights, powers or remedies available to it. -39- oo�soo.oaioo:o3asa9i.oi 007500.00100:0345491.02 SECTION 10.06. NO WAIVER OR OBLIGATION TO ENFORCE. No delay or failure on the part of Declarant, the Association or any other aggrieved party to invoke any available right, power or remedy in respect to a breach of this Declaration shall be held to be a waiver by that party (or estop that party from asserting) any right, power or remedy available to it upon the recurrence or continuance of said breach or the occurrence of a different breach. Declazant and the Association, or its officers or directors, shall not be under any obligation to take any action to enforce the terms of this Declaration. SECTION 10.07. LIENS/VALIDITY AND SEVERABILITY. Violation of or failure to comply with this Declaration shall not affect the validity of any mortgage, lien or other similar security instnunent which may then be existing on any Site. Invalidation of any one or more of the provisions of this Declazation, or any portions thereof, by a judgment or court order shall not affect any of the other provisions or covenants herein contained, which shall remain in full force and effect. In the event any portion of this Declaration conflicts with mandatory provisions of any ordinance or regulation promulgated by any appropriate governmental authority, then such governmental requirement shall control. SECTION 10.08. OWNER/OCCUPANT RECORDS. Except for those Owners who purchase portions of the Property from Declazant or Hillwood, any person, on becoming an Owner of a parcel within the Property, shall promptly fiunish the Board a true and conect copy of the recorded instnunent of conveyance vesting such ownership in said Owner. Each Owner shall furnish to the Association the name of a contact person with such Owner and a street address for receiving notices from the Association. Each Owner shall notify the Association of the name and address of all lessees of long-term ground leases or long-term build-to-suit leases (meaning leases with combined primary and renewal terms exceeding five years) affecting the Owner's Site. It shall be the responsibility of the Owner (and a non-Owner occupant of a Site, if any) to keep such information current and to advise the Association of any changes. SECTION 10.09. NOTICES. Any notice required to be given to Declarant, the Association or any Owner under the provisions of this Declaration shall be deemed to have been properly delivered when actually delivered by hand-delivery or three days after it is deposited in the United States Mail, postage prepaid, certified or registered mail, return receipt requested, addressed, (a) for notice to an Owner to the address of the Owner as shown on the records of the Association at the time of such mailing, and (b) for notice to Declarant or the Association to 13600 Heritage Parkway, Suite 200, Fort Worth, Texas 76177, or at such other address specified by Declarant by a document recorded for such purpose in the Real Property Records of Denton County, Texas. Notices to be given to an Owner of a Site also shall be given to any lessee of that Site of whom Declarant and the Association has been given notice as provided in Section 10.08 above, such notices to be given in the manner specified in this Section 10.09; provided, however, failure to give such notice shall not limit Declarant's, the Board's, the DRB's or the Association's rights under this Declaration. SECTION 10.10. MORTGAGEES. The holder of a mortgage of any interest in a Site shall be f'urnished with written notification from the Association of any default by the respective Owner or lessee of that Site in the performance of obligations set forth in this Declazation provided -40- 007500.00100:0345491.01 007500.00100:0345491.02 that the Association has theretofore been furnished, in writing, with the correct name and address of such mortgage holder and a request to receive such notification, and cure by said mortgage holder within the times herein provided for performance by Owner or a lessee of such default shall be accepted. No default by an Owner or a lessee of a Site under any provision of this Declaration shall af�'ect any existing lien or mortgage on that Site. A mortgagee shall not be liable for Assessments made with respect to a Site during any period its only interest in the Site is that of mortgagee. SECTION 10.11. APPROVALS. No approval by the Declarant, the Board or the DRB pursuant to the provisions hereof shall be effective unless in writing, except otherwise expressly provided herein. -41- oo�soo.oe� oo:o3asa9t.o� 007500.00100:0345491.02 IN WITNESS WHEREOF, Declarant and AEC have caused this as of the 8th day of June, 1998. DECLARANT: AIL INVEST'MENT, L.P. a Texas limited partnership By: Hillwood Operating, a Texas limited parn General Partner By: Hillwood D a Texas cor� General Par By: Name: Title: AEC: American Escrow Company, a Texas corporation By: Name: Its: -42- 007500.00100:0345491.01 007500.00100:0345491.02 �� TT� STATE OF TEXAS § § COUNTY OF § This instrwnent was acknowledged before me on this day of June, 1998, by , _ _ __ __ _ of Hillwood Development Corporation, a Texas corporation, as General Partner of Hillwood Operating, L.P., a Texas limited partnership, as General Partner of AIL Investment, L.P., on behalf of said partnership. GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS DAY OF , 1998. Notary Public in and for the State of Texas My Commission Expires: Printed Name of Notary THE STATE OF TEXAS § § COUNTY OF § This instrument was acknowledged before me on this day of June, 1998, by , _ of �unerican Escrow Company, a Texas corporation, on behalf of said corporation. GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS DAY OF , 1998. Notary Public in and for the State of Texas My Commission Expires: Printed Name of Notary -43- 007500.06100:0345491.0 l 007500.00 l 00:0345491.02 �,xrursIT A Description of the Property A.-1 007500.00100:0345491.01 007500.00100:0345491.02 HILL�IOOD DEVELOPMENT CORPORATION September 29, 1998 Mr. Bob Terrell City Manager City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 EXHt�iT Re: Memorandum of Understanding between Hillwood Development Corporation ("Hillwood") and the City of Fort Worth ("Fort Worth") concerning the conditions to a Uniform Wholesale Water Contract for Water Services between the Town of Westlake ("Westlake") and Fort WoRh. Dear Mr. TerrelL• This letter sets forth the general terms and conditions under which Fort Worth will enter into a Wholesale Water Contract with Westiake. These terms and conditions are set out below. Wholesale Water Contract. Fort Worth will enter into a Uniform Wholesale Water Contract (the "Contract") with Westlake. 2. Financial Obligations. Hill�vood will fund the following capital costs which Fort Worth has incurred or will incur in association with its obligation to provide �vater to Westlake under the Contract (estimated to be $10,100,000). The financial obliaations include the following: A. Prepayment of Impact Fees: A payment of $2,000,000 will be made to Fort Worth by Hilfwood upon execution of the Contract, which contract will be enter into on or before January l, 1999. This payment represents a prepayment by Hillwood of future Impact Fees to be charged under the terms of the Contract and in connection with the development of the Circle T Ranch. Hillwood or its assigns will receive a credited for firture impact fees due under the Contract. B. Water Facility Cost: Forth Worth will make the necessary improvemenis to its water system to provide the additional capacity to service the Town of Westlake. Fort Worth and Hillwood will enter into a Capital Cost Contract ("CCA") to fund these costs. In addition to the $2,000,000 payment set out in 2A. above, the balance of the cost ($8,100,000) will be funded as follows: Years 1 - 5 Years 6 - 25 Years 26 -30 $298,885 $645,374 $346,489 13600 Hericage Parkway • Suire 2C0 . Furc ��lurch, Texas 76177 •(Sli) 224-6000 • Fax (817) l?4-6160 • u,�•u•.hilfwood.cum For� Worth . Dallas • Atlanta • Austin • Kansas Ciry • In•inc • La Julla • titaui • Abu Dhabi Letter to Mr. Bob Terrell Memorandum of Understanding — Uniform Wholesale Water Contract for Water Services September 28, 1998 Page 2 of 2 If this letter accurately expresses our mutual understanding, please execute it in the spaces provided below. Sincerely, Hillwoad Deve�agrm�nt Coarporation �rf � � � /'�� . r ,. ��+': Acknnwle�iged and Agr d. City of Fort Worth �.�`� � �� .�� - �7 Y 1� By: Date Capital Improvements to FW System for Town of Westlake Capital Cost Estimate: Pre-Paid Impact Fees: Balance: Two Financin�s: l. YRS. 1-25 2. YRS. 6-30 Pavment Flow: $10,100,000 ( 2.000,000) $ 8,100,000 $4.05 mil. @ 6% _ $298,885/yr. $4.695 mil. * @ 6% _ $346,489/yr. (* $4.05 mil. escalated at 3% for 5 years.) Pre-Paid Impact Fees $2,000,000 Payments Years 1-5 $ 298,885 Payments Years 6-25 $ 645,489 Payments Years 26-30 $ 346,489 Total Payments $ 2,000,000 1,494,425 12,909,780 1.732,445 $18,136,650 Fort Worth Water Department Circle T Ranch - Westlake 30 Days/Month 12,000,000 Galions/Day 360,000,000 Gallons/Month 12,000,000 Maximum Day 12,000,000 Average Day 100% Load Factor - Max Day in Excess of Avg Day 12,000,000 Maximum Hour - Max Hour in Excess of Max Day $ 25.00 Service Charge/MetedMonth $ 80,056.00 Ma�c Day in Excess of Avg Day/MGD $ - Max Hour in Excess of Max Day/MGD � 0.4169 Total Base/1,000 Gallon Subtotal S 0.1312 Rate of Retum/1,000 Gallons S 0.2182 O&M/1,000 Gallons $ 0.0516 Depreciation/1,000 Gallons $ 0.0159 Sveet Rental/1,000 Gallons � $ 0.73360 �Total Raw Wated1,000 Gallons Subtotal � 0.67928 TRWD Raw Water/I,000 Gallons $ 0.42716 Losses/1,000 Gallons $ 0.02716 Street Rental/1,000 Gallons Totai Fort Wor1h To�a! in Excess of Cos�s $ Monthly Revenucs 25.00 150,084.00 47,232.00 78,552.00 18,576.00 5,724.00 264,096.00 244,540.80 9,777.60 9,777.60 150,109.00 264,096.00 $ 414,205.00 $ Annual Revenues 300.00 1,801,008.00 566, 784.00 942,624.00 222,912.00 68, 688.00 2,934,489.60 I 17,331.20 ] 17,331.20 � 62,733.60 $ 752,803.20 $ 1,801,308.00 3,169,152.00 $ 4,970,460.00 Fort Worth Water Department Circle T Ranch - Westlake 30 Days/Month 1,000,000 Gallons/Day 30,000,000 Gallons/Month 1,000,000 Maximum Day 1,000,000 Average Day 100% Load Factor - Max Day in Excess of Avg Day 1,000,000 Maximum Hour - Max Hour in Excess of Max Day $ 25.00 Service Charge/Meter/Month $ 80,056.00 Max Day in Excess of Avg Day/MGD $ - Max Hour in Excess of Max Day/MGD $ 0.4169 Total Base/1,000 Gallon Subtotal S 0.1312 Rate of Retum/1,000 Gallons $ 0.Zi82 O&M/1,000 Gallons $ 0.0516 Depreciation/1,000 Gallons $ O.O159 Street Rental/1,000 Gallons � $ 0.73360 �Total Raw Wated1,000 Gallons Subtotal $ 0.67928 TRWD Raw Water/1,000 Gallons $ 0.02716 Losses/1,000 Gallons $ 0.02716 Street RentaU1,000 Gallons Total Fort Worth To1a! in .Excess of Costs Monthly Revenues $ 25.00 12,507.00 12,532.00 3, 936.00 6,546.00 1,548.00 �77.0P 22,008.00 22,008.00 20,378.40 814.80 814.80 $ 34,540.00 $ 5,227.80 Annual Revenues $ 300.00 150,084.00 --- — $ 47,2.31.00 78,552.00 18,576.00 S, 724.00 244,540.80 9,777.60 9, 777.60 $ 62, 733. 60 150,384.00 264,096.00 $ 414,480.00 Fort Worth Water Department Circle T Ranch - Westlake 30 Days/Month 6,000,000 GaUons/Day 180,000,000 Gallons/Month 6,000,000 Maximum Day 6,000,000 Average Day 100% Load Factor - Max Day in Excess of Avg Day 6,000,000 Maximum Hour - Max Hour in Excess of Max Day $ 25.00 Service Charge/MetedMonih $ 80,056.00 Max Day in Excess of Avg Day/MGD $ - Mau Hour in Excess of Max Day/MGD $ 0.4169 Total Base/1,000 Gallon Subtotal S 0.1312 Rate of Return/1,000 Gallons $ 0.2182 O&M/1,000 Gallons $ 0.0516 Depreciation/1,000 Gallons $ 0.0159 Street Rental/1,000 Gallons � S 0.73360 �Total Raw Wated1,000 Gallons Subtotal $ 0.67928 TRWD Raw Wated1,000 Gallons S 0.02716 Losses/1,000 Gallons S 0.02716 Street RentaU1,000 Gallons Total For� Wor1h To1al in Excess of Cos�s Monthly Revenues $ 25.00 75,042.00 23,616.00 39,276.00 9,288.00 2,862.00 132,048.00 122,270.40 4,888.80 4,888.80 $ 31,366.80 Annual Revenues $ 300.00 900,504.00 75,067.00 $ 900,804.00 283,392.00 471,312.00 111,456.00 .�4,344.00 1,584,576.00 I 32,048.00 1,467,244.80 58,665.60 58,665.60 $ 207,115.00 $ 376,401.60 $ 2,485,380.00 A Resoluti�� '��' AUTHORIZING THE CITY MANAGER AND THE CITY'S ATTORNEYS TO SIGN A SETfLEMENT AGREEMENT AND RELATED DOCUMENTS THAT INCLUDE THE NEGOTIATED TERMS AND CONDITIONS WITH HILLWOOD DEVELOPMENT CORPORATION, THE CITY OF WESTLAKE AND OTHERS CONCERNING THE SETTLEMENT OF LITIGATION RELATED TO THE CIRCLE T RANCH AND OTHER EXTRATERRITORIAL JURISDICTION ISSUES WHEREAS, the City Council of the City of Fort Worth desires to settle certain litigation involving the City of Fort Worth, various Hillwood entities, the Town of Westlake and other parties, such litigation being more specifically described in Exhibit "1" which is attached hereto; and � WHEREAS, Hillwood Development Corporation has made specific proposals to the City Counc�l to settle such litigatio�; and WHEREAS, the City Council desires to authorize the settlement of such litigation as hereinafter provided; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FORT W�RTH, TEXAS: That the City Cour�cil hereby authorizes the City Manager, the City Attomey, and the attomeys representing the City in such litigation, to execute any and all documents necessary to settle the litigation in substantial compliance with the terms and conditions set forth in the following documents: A°Settlement Agreement" that is attached hereto, marked Exhibit "1° and made a part hereof by reference. . An °Ag�eement to Provide Fort Worth Opportunity Center" that is attached hereto, marked Exhibit "2" and made a part hereof by reference. That as further consideration for such settlement, Hillwood Development Corporation shall do the following: Convey to the City, at no cost, a tract of land containing approximately 3 acres located at the northeast corner of the proposed extension of Beach Street and S.H. 170 in the City of Fort Worth, such tract to be used as a site for a fi�e station and/or other public purposes; � - `—''—� iL.. CITY OF FORT WORTH b) Enter into a Memorandum of Understanding with the City conceming the conditions under which the City will agree to execute a Uniform Wholesale Water Contract with the Town of Westlake, such Memorandum of Understanding being attached hereto� marked Exhibit "3" and made a part hereof by reference; c) Reimburse the City of Fort Worth for its expenses, including its reasonable attomey's fees, incu�red in connection with the litigation described in Exhibit "1 ° to which the City of Fort Worth was a party. That the City Council hereby authorizes the City Manager and the City's attorneys to execute any and all documents necessary to implement the provisions of Paragraph 2 of this Resolution. 3. That the proposed settlement is subject to the execution of final documents acceptable to the City Manager, the City Attorney and the Cit�s attorneys in the litigation, and the City of Fort Worth will not be legally bound unti! such final documents have been executed. Adopted this�`� �'t�"ay of September, 1998 ��.��...�., Mayor � A st: � � �� '�� ty ��csetaTy �� _ i� CITY OF FORT WORTH