Ordinance No. 15,352 ORDINANCE NO. 15,352
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, APPROVING THE DECLARATIONS OF COVENANTS,
CONDITIONS, RESTRICTIONS, AND EASEMENTS FOR
APPROXIMATELY 120.7 ACRES SITUATED IN CHAMBERS COUNTY,
TEXAS, OWNED BY TEXAN HOSPITALITY, INC.; AND PROVIDING FOR
THE EFFECTIVE DATE THEREOF.
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BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby approves the
Declarations of Covenants, Conditions,Restrictions and Easements for approximately 120.7 acres
situated in Chambers County, Texas, owned by Texan Hospitality, Inc. Said Declarations of
Covenants, Conditions, Restrictions and Easements are attached hereto as Exhibit "A" and
incorporated herein for all intents and purposes.
Section 2: This ordinance shall take effect immediately from and after its passage by the
City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the
City of Baytown this the 26"' day of January, 2023.
/ \ DON CAPETILL , Mayor
ATTEST: G€�EJLyyYTt�cco 04
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ANGELA AC OI"�Y•„Ci, Clerk n
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APPROVED AS T F
SCOTT LEMO D, City Attorney
RAKaren AndersonlORDINANCES\2023\2023.01.26\ApprovalotDeclarations4TexanHospitalityInc.docx
EXHIBIT "A"
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
BAYTOWN/KILGORE BUSINESS PARK
STATE OF TEXAS §
§ ALL PERSONS BY THESE PRESENTS:
COUNTY OF CHAMBERS §
This DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
FOR BAYTOWN/KILGORE BUSINESS PARK (this "Declaration") is made as of the
day of January, 2023 (the "Effective Date") by TEXAN HOSPITALITY INC., a Texas
corporation("Declarant").
WITNESSETH:
WHEREAS, Declarant is the sole fee owner and developer of certain tracts of land
consisting collectively of approximately 120.7 acres situated in Chambers County, Texas, to be
developed as a quality business park to be know as `Baytown/Kilgore Business Park", said
Declarant-owned tracts being more particularly described by metes and bounds on Exhibit A
attached hereto and incorporated herein by this reference(the "Development Project");
WHEREAS, Declarant desires to restrict the Development Project as described herein in
order to protect the value and desirability of the Development Project and yet retain flexibility to
respond to changing or unforeseen circumstances so as to control and maintain the quality,
uniformity and distinction of the Development Project for the benefit of the present and future
owners of any portion thereof;
WHEREAS,the Development Project is within the extraterritorial jurisdiction of the City
of Baytown, Texas, and the northern boundary of the Development Project will abut and adjoin
the southern of the proposed extension of right-of-way line of Kilgore Parkway, presently
completed to a point near the northeast boundary of the Development Project;
WHEREAS, the Development Project is located adjacent to and east of the Overlay
District established by the City in Ord.No. 12,021;
WHEREAS, Chambers County Improvement District No. 3 ("District") desires to annex
the Development Project and provide all needed utilities for the developer of the Development
Project,Declarant supports that annexation, and Declarant and District have requested the consent
of the City to such annexation;
WHEREAS, the City requires that the Development Project be "master planned" and
internally regulated to be a First Class Business Park as a condition to approval of the annexation
into the District;
WHEREAS, Declarant desires to hold, sell and convey the Development Project subject
to the following covenants, conditions and restrictions, which are for the purpose of establishing
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and preserving certain aesthetic qualities and standards in connection with future development,
improvement and use of the Development Project; and
WHEREAS, for purposes of preserving the value of the Development Project and
providing for the effective maintenance and improvement of the Common Areas and Common
Facilities (as each such term is hereinafter defined), Declarant deems it desirable, and in its best
interests, to allow the Administrator (as hereinafter defined) to act as and hold the rights of
Declarant hereunder and, at the election of the Administrator, to create an entity to which would
be delegated and assigned the powers and responsibilities of maintaining certain Common Areas
and Common Facilities, providing certain Approved Services (as hereinafter defined), enforcing
this Declaration, collecting and disbursing the Assessments (as hereinafter defined), and
performing the other functions set forth in this Declaration; and
WHEREAS, the City desires certain rights to approve changes to standards and the
issuance of variances.
NOW,THEREFORE, Declarant hereby adopts the following covenants, conditions, and
restrictions, which shall run with the Development Project, and will bind all parties having or
acquiring any right, title, or interest therein and inure to the benefit of each Owner thereof, as
hereinafter more fully described and set forth.
ARTICLE I
DEFINED TERMS
1. "Administrator" means TEXAN HOSPITALITY INC. a Texas corporation
("TEXAN"),or such other person,persons or entity(including,but not limited to,the Association
(as hereinafter defined) to whom TEXAN, or its assignee has assigned the powers and duties of
Administrator hereunder, from time to time, by written instrument filed for record in the County
Records (defined below)).
2. "Applicable Laws" means all laws, statutes, ordinances, rules, orders, regulations,
requirements, court orders and rulings, and other requirements of any federal, state or local
governmental authorities with jurisdiction over the Development Project (or relevant portion
thereof, as applicable), including, without limitation, the City Ordinances(as hereinafter defined),
all if and as amended from time to time.
3. "Assessments" shall have the meaning set forth in Article IV, Section 4 hereof.
4. "Accessory Use" means a use subordinate to the principal use of a lot or of a
principal building on the same lot and serves a purpose clearly incidental to a permitted principal
use of the lot or building and which accessory use is compatible with the principal permitted uses
authorized under this Declaration.
5. "Association" shall have the meaning set forth in Article IV, Section 1 hereof.
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6. "Ciff" shall mean the City of Baytown, Texas, a home-rule municipal corporation
located in Harris and Chambers County, Texas. Whenever the approval of the City is required
herein, such approval shall mean the approval of the City Manager or his designee.
7. "City Ordinances" means the Code of Ordinances of the City and all other (and
future) ordinances and regulations of the City, if and as amended from time to time, but only to
the extent the same are applicable within the Development Project (which is located in the
extraterritorial jurisdiction of the City).
8. "County Records"means the Real Property Records of Chambers County, Texas.
9. "Design Development Plan" shall mean a plan that shall include:
(a) a site plan showing the location, dimensions and orientation to boundary
lines and applicable set-back lines of proposed buildings, garages, other structures, streets,
driveways, sidewalks, fencing and all other contemplated Improvements to be placed on a
Development Site (as hereinafter defined), including (i) traffic directional flow indicators
reflecting one-way traffic and direction, and where two-way traffic is proposed, and (ii) a
proposed parking striping plan and calculation of total number of parking spaces and
handicapped/disabled parking spaces (that comply with Applicable Laws to be considered
as such); and
(b) design elevation of (from each side) and description of the height and
exterior dimensions and size of each structure to be built, including, without limitation, an
architect's estimated calculation of the gross square footage of building area and
commercial rentable square footage of each structure to be constructed on the Development
Site.
10. "Development Guidelines" means the Baytown/Kilgore Business Park
Development Guidelines that Administrator may, but shall not be required to, promulgate, revise
and/or amend from time to time.Although termed"guidelines,"compliance with the Development
Guidelines is mandatory.
11. "Development Site"means any individual Reserve within the Development Project
intended for individual sale, lease or development, or any other combination of platted Reserves
or portions of platted Reserves (or land acreage) within the Development Project to be developed
for commercial or industrial purposes.
12. "District" means Chambers County Improvement District No. 3 or any successor
governmental entity thereto.
13. "Exterior Liahting Plan"means a plan, which shall include and show the location,
intensity, projected light coverage, and orientation of all exterior lighting to be placed on the
Development Site together with a lighting spill plan which reflects that no lighting will spill onto
adjacent residential properties or rights-of-way.
14. "Exterior Materials Plan" shall mean a plan containing drawings and details of the
proposed design of all exterior surfaces of all Improvements, including, without limitation, the
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roof,paving/pavers, sidewalks,walls, and fencing, specifying the style,pattern, color,quality and
type of exterior construction materials to be used as exterior treatments or finishes for all proposed
Improvements.
15. "General Assessments" shall have the meaning set forth in Article IV, Section 4
hereof.
16. "Improvement" or "Improvements" means all of the following: (a) landscaping
(Including vegetation, stonework, or similar embellishments) installed or grown on the
Development Site, and (b) every item of construction or erection of man-made items upon a
Development Site, including, but not limited to: buildings; garages; carports or truck ports; dock
facilities and ramps; storage buildings, sheds, and other outbuildings; ground or pad-mounted
exterior equipment, such as, without limitation, HVAC equipment, compressors, generators,
dynamos, battery back-up systems, cranes, signal transmitting or receiving equipment (such as
antennas and satellite dishes); racks and other structures for stacking or staging of materials;
fences, screening, walls, and retaining walls; storage,processing or treatment pits, reservoirs, and
other similar areas, whether excavated or created by above-ground structures; stairs and railings;
fixtures; flagpoles; statuary and sculptures; water towers; storage tanks for water, chemicals or
other products or supplies; and light poles, standards, fixtures and facilities.
17. "Landscaping Plan" means a plan which shall include the general location, type
(tree, shrub or ground cover) and approximate configuration of all proposed screening/buffering,
landscaping and landscaping materials, showing the proposed use and treatment of all portions of
the Development Site that are to be landscaped, including sod and grass areas and any related
berming, stonework and similar items.
18. "Lessee" means any lessee, tenant, occupant or user of any Development Site who
is not the fee Owner thereof, including any ground lessee.
19. "Owner"means and refers to the record fee owner,whether one or more persons or
entities, of the fee simple title to the surface estate in any Development Site or tract of land which
is part of the Development Project, including contract sellers, but excluding those having such
interest merely as security for the performance of an obligation. If there is more than one fee owner
of a part of the Development Project, then "Owner" will mean all the fee owners, collectively;
provided, however, that voting in any Association by multiple owners of a single Development
Site shall be as provided elsewhere herein or in the Development Guidelines, as applicable.
20. "Plans and Specifications" means complete construction drawings and
specifications suitable for obtaining construction or building permits for the construction of all
Improvements to be placed on the Development Site. "Plans and Specifications" shall include,but
not be limited to, all of the elements required in the following plans: Exterior Materials Plan,
Landscaping Plan, Utilities Plan, Exterior Lighting Plan, Design Development Plan, and Signage
Plan.
21. "Required Majority of Owners" shall have the meaning set forth in Article VI,
Section 1 hereof.
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22. "Reserve"or"Reserves"means any plot of land that is subdivided as a lot or reserve
on a recorded subdivision plat recorded in the County Records, subject to the restrictions herein
on replats.
23. "Schematic Design Package" means the following: (a) the Design Development
Plan; (b) the Exterior Materials Plan; (c) the Landscaping Plan; (d) the Utilities Plan; (e) the
Exterior Lighting Plan; (f)the Signage Plan; and other appropriate elements,which shall mean and
include all such other information as may be reasonably required to determine that the location,
scale,design,character,style and appearance of such developer's/Owner's intended Improvements
to the Development Site are in compliance with the requirements of this Declaration and the
Development Guidelines.
24. "Setback"shall mean the required unobstructed,unoccupied distance between each
structure and the boundary lines of the lot or Reserve on which it is situated.
25. "Signa eg Plan" shall mean a plan that shall include and show the location, height,
orientation, color and materials for exterior appearance, lighting scheme and proposed content of
all signs to be located on the Development Site.
26. "Special Assessments" shall have the meaning set forth in Article IV, Section 4
hereof.
27. "Utilities Plan"shall mean a plan that shall include and show approximate location,
size,type, and above-ground visible elements of all utility facilities proposed to be located outside
the occupiable building structures to obtain water, sanitary sewerage, drainage (including
detention,if applicable,and on-site collector and discharge systems),electric,gas,telephone,cable
or other utility service to the Development Site.
ARTICLE II
USE OF DEVELOPMENT; SITES
1. Permitted Uses. Subject to Grandfathered Use(defined below),Development Sites
shall be used solely for one or more of the following purposes (and any and all Accessory Uses):
(a) general commercial and retail for the sale of goods and services typical of a
shopping center, including business offices;
(b)convenience store with fuel sales and electric charging statations;
(c) automotive tire sales and repair facilities;
(d)drug store:
(e)medical and dental services;
(f)research and development facility;
(g) financial institution;
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(h) industrial, warehouse or distribution facility; provided, however, that any
Development Site to be used for heavy industrial use, as defined in the City Ordinances,
must be specifically approved by the Administrator for that use;
(i) light manufacturing and assembly facility;
0) automobile and motorcycle dealership;
(k)restaurant;
(1)health club;
(m)drycleaners ;
(n) office building;
(o) family entertainment center similar to Dave and Busters or Chuck E Cheese;or
(p) any other use then permitted in the L-I (Light Industrial) zoning district of the
City(or the successor zoning designation).
If the City annexes the Development Project, to the extent that the City's zoning
classification set forth in the City zoning ordinances allows for any additional uses on a
Development Site (i.e., that are not described above), any such additional uses will be
deemed permitted uses thereon and any uses not permitted by the City's zoning will be
deemed prohibited.
2. Prohibited Uses. No Development Site shall ever be used for any of the following
purposes:
(a) any labor camp, junk yard, stock yard, or animal raising (other than
veterinarian clinics or hospitals, provided such facilities, have no provision for keeping
animals outdoors overnight and otherwise comply with the provisions hereof);
(b) the operation of any automobile body or fender repair facility,except as part
of an auto dealership or service station;
(c) any carnival or amusement park;
(d) any dry cleaning plant, provided a retail drycleaning store front on the
Property may launder and clean customer garments, if in compliance with applicable law
(particularly environmental laws);
(e) any rooming or boarding house or adult day care center (which term shall
not be deemed to include nursing homes and rehabilitation care facilities);
(f) any fire sale, bankruptcy sale (unless pursuant to a court order); any adult
oriented business or businesses based primarily upon materials or performances that depict,
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describe or relate to sexual activities,anatomical areas or nudity(including,but not limited
to, adult arcades, adult bookstores, adult cabarets and adult theaters, or sexually-oriented
business (or equivalent) as defined in the City Ordinances or the laws of any other
governmental authority with jurisdiction over the Development Project);
(g) an establishment engaged in the retail sales of alcoholic beverages for either
on-premises or off-premises consumption,which establishment derives 75 percent or more
of its gross revenue during any twelve month period from the sale of alcoholic beverages
(including 100% of the price of all alcoholic drinks using "mixers"), including, but not
limited to, bars, lounges, and taverns; provided, however, nothing contained herein shall
prohibit the location of a bar or lounge within and ancillary to: (1) a hotel,motel or similar
transient lodging, or (2) a restaurant (that does not derive from all of its operations more
than 75%of its gross revenue during any 12 month period from sale of alcoholic beverages
as stated above), or (3) prohibit a liquor store, wine shop or similar retail establishment
containing five(5)thousand feet or more of space;
(h) for drilling for oil, gas or other hydrocarbons or for mineral extraction of
any kind or character; or
(i) any use not specifically authorized by this Declaration.
Written approval by Administrator of a particular use will be conclusive evidence of
compliance with the conditions this Declaration.
3. Grandfathered Use. Any use of a Development Site that is permitted by this
Declaration at the time of any change, modification or amendment of the uses authorized herein,
shall not be required to be changed or altered and shall be permitted to continue for so long as such
use continues;provided,however,that if the actual use of such Development Site(permitted at the
time of the change, modification or amendment of uses authorized under this Declaration) (the
"Grandfathered Use")either:
(a) ceases for an extended period as defined below; or
(b) is materially changed or altered,
then any new use or change or alteration in the existing use shall comply with this Declaration, as
changed, modified, or amended and then in effect at the time of the recommencement of use or
change or alteration from the Grandfathered Use.
For purposes of the above, a cessation of a Grandfathered Use for an "extended period"
means that the use is not a substantial use on the subject Development Site for a period of twelve
(12)months, excluding any period during which(i)the buildings on the site cannot reasonably be
occupied due to renovations, alterations, or casualty damage or other repairs, or (ii) the
Development Site is held as rental property and it is vacant, but being actively marketed (at least
listed with a listing broker under an active listing) for lease for the Grandfathered Use; provided,
however, that the extension for vacancy under clause (ii) hereof will not exceed an additional
period of twelve(12)months.
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4. No Replats Without Consent. Replatting of any plot of land that is subdivided as a
lot or reserve on a recorded subdivision plat subject to this Declaration shall not be undertaken,
approved or permitted by the Owner of such plot of land(other than Declarant)without the joinder
and consent of Administrator, and any required approval of the City pursuant to its subdivision
regulations.
ARTICLE III
APPROVAL OF DEVELOPMENT SITE PLANS; CONSTRUCTION.
SETBACKS; VEGETATIVE BUFFER
DEVELOPMENT RESTRICTIONS AND VARIANCES
1. Plan Approval Required. No building,parking facility, sign or other structure shall
be constructed, altered or placed upon any Development Site until the Plans and Specifications for
same shall have been first approved in writing(or deemed approved)by Administrator as being in
compliance with this Declaration and the Development Guidelines. The processes for such
approval are set forth below:
(a) Optional Schematic Design Package Submission and Approval.
(i) Submittal. If the Owner of a Development Site desires to obtain
schematic and conceptual approval of the Administrator prior to construction and
prior to preparing complete Plans and Specifications for the Improvements on the
Development Site,the Owner or the submitting party authorized under Section 1(d)
of this Article shall submit to the Administrator two complete sets of the Schematic
Design Package. The requirements for the Schematic Design Package shall be
consistent with those of Class A business parks in the vicinity of the Development
Projecxt. At the option of the Owner of the Development Site, the Owner or
submitting party authorized under Section 1(d) of this Article may skip the step of
submitting the Schematic Design Package and proceed directly to submit to the
Administrator the Plans and Specifications as described below.
(ii) Approval. The Administrator, shall, within twenty (20) days after
the receipt of each complete submission of the Schematic Design Package, advise
the Owner or the submitting party authorized under Section I(d) of this Article in
writing of(1)the approval of the Schematic Design Package by the Administrator,
or(2)the segments or features of the Schematic Design Package which are deemed
by the Administrator to be inconsistent or not in conformity with this Declaration
and/or the Development Guidelines. The approval of the Schematic Design
Package by the Administrator shall be valid and effective for a period of not more
than one hundred twenty(120)days, which may be extended by the Owner of right
by an additional sixty(60)days by the Owner's or submitting party's filing a notice
of extension with the Administrator not later than the expiration of the initial one
hundred twenty (120) day validity period. "Valid and effective" means that the
Schematic Design Package approval will exempt the Improvements on the
Development Site covered thereby from any changes in this Declaration or the
Development Guidelines that occur after the approval thereof by the Administrator
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as long as Plans and Specifications are submitted to and approved by the
Administrator while the approval is still valid and effective hereunder.
(iii) Amendments. A party holding rights to a Schematic Design Plan
previously approved by the Administrator hereunder shall apply to the
Administrator for approval of an amendment to the previously approved Schematic
Design Package, (an "SDP Amendment Application"). An SDP Amendment
Application must be on the required form approved or promulgated therefor by the
Administrator and must (1) state that the application is an SDP Amendment
Application, (2) clearly identify the previous Schematic Design Package that is
being requested to be amended, and (3) clearly identify the items that are the
proposed changes to the original Schematic Design Package.The SDP Amendment
Application will be handled and either disapproved or approved in the same manner
as for an application for a new Schematic Design Plan.
(b) Approval of Plans and Specifications. The final approval process with
which the Owner of a Development Site must comply in order to obtain Administrator
approval of Plans and Specifications (defined below) is set forth below:
(i) Submission. At least twenty (20) days before commencement of
any construction (including clearing, grading and/or site preparation) on the
Development Site, the Owner of the Development Site shall submit to the
Administrator for final approval of the Administrator the Plans and Specifications
for the Development Site; provided, however, that if the Administrator has
previously approved a valid and effective Schematic Design Package for the
Development Site that is still valid and effective, then the Administrator's sole
objections will relate to any matters in the Plans and Specifications that are
inconsistent with (or relevant to the Administrator's approval rights hereunder and
added to the proposed Improvements since)the Schematic Design Package already
approved for the Development Site.
(ii) Approval. The Administrator shall, within twenty (20) days after
receipt of a complete set of Plans and Specifications, advise in writing the Owner
or submitting party of (I) the approval of the Plans and Specifications by the
Administrator which approval shall not be unreasonably withheld, conditioned or
delayed by the Adminstrator, or (2) the segments or features of the Plans and
Specifications which are deemed by the Administrator to be inconsistent or not in
conformity with this Declaration or the Development Guidelines (subject to its
limitations if operating under an approved, valid and effective, Schematic Design
Plan).
Approval of Plans and Specifications shall be valid and effective for a
period of one (1) year from the date of approval or deemed approval thereof, with
one(1)available extension of up to ninety(90) additional days to be granted by the
Administrator in writing upon good cause shown(such as,but not limited to,events
of force majeure, changes in Applicable Laws with which the party must comply
on a mandatory basis, change in market circumstances affecting financing, leasing
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or other material matters, or change in control or involuntary successorship in the
executive suite at the applicant company). If construction pursuant to the Plans and
Specifications has not commenced within the period during which the
Administrator approval is valid and effective, then the Owner of the Development
Site must re-apply for Administrator approval as provided in the first instance under
this Declaration. Construction shall be deemed"commenced"hereunder when any
part of the Improvements is begun on the site under an approved development
permit issued in accordance with Applicable Laws, excluding site preparation or
grading(unless done under the same development permit as the Improvements).
(iii) Amendments. A party holding rights under Plans and Specifications
previously approved by the Administrator shall apply to the Administrator for
approval of an amendment to the previously approved Plans and Specifications, (a
"Plans Amendment Application'). A Plans Amendment Application must be on
the required form approved or promulgated therefor by the Administrator and must
(1)state that the application is a Plans Amendment Application,(2)clearly identify
the previous Plans and Specifications that are being requested to be amended, and
(3)clearly identify the items that are the proposed changes to the original Plans and
Specifications. Otherwise, the Plans Amendment Application will be handled and
either disapproved or approved in the same manner as for an application for a new
Plans and Specifications, except that if a Plans Amendment Application is filed,
then(A) such request will be considered under the requirements of this Declaration
and Development Guidelines in effect at the time of the approval of the original
Plans and Specifications that were approved and are being proposed to be amended,
and (B) if construction has not already been commenced in the required time to
hold such Plans and Specifications approval in place, the application for and
Administrator approval of the amendment to the previously approved Plans and
Specifications shall not extend the time that the originally approved Plans and
Specifications (as so amended) is valid and effective. In the sole discretion of the
Administrator, if any Plans Amendment Application materially changes the
character or nature of the Improvements from that contained in the previously
approved Plans and Specifications,the Administrator shall notify the applicant that
the Administrator considers the Plans Amendment Application to be a completely
new application for the revised Plans and Specifications. Upon the applicant's
receipt of such notice from the Administrator, the applicant must within ten (10)
days thereafter either (I) notify the Administrator in writing that the applicant
agrees that the application should be handled and processed as a new application
for the entire amended Plans and Specifications,or(Il)that the applicant withdraws
the Plans Amendment Application. If the applicant fails to timely do either (I) or
(I1), then the applicant will be deemed to have elected option (I1) and the
Administrator may drop its consideration of the Plans Amendment Application. If
the applicant timely notifies the Administrator under option (I), then the
Administrator shall consider the Plans Amendment Application along with the
originally approved Plans and Specifications as a new application in its entirety.
(c) Approval Not for Third Party Reliance and Not a Guaranty. The approval
of the Schematic Design Package and Plans and Specifications do not constitute a warranty
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that such Schematic Design Package and Plans and Specifications comply with Applicable
Laws, including, without limitation, those of applicable flood control districts or the
District, and no party shall rely upon any such approval other than the party in favor of
whom it is issued. The Administrator's approval of the Schematic Design Package and
Plans and Specifications does not constitute approval by the appropriate governmental
authorities having jurisdiction. The Administrator's approval of the Schematic Design
Package and Plans and Specifications shall not create any responsibility, representation,
warranty or liability on the part of the Administrator for the completeness, design or
sufficiency of such Plans and Specifications or the compliance of same with Applicable
Laws, or any other aspect of the Plans and Specifications.
(d) Parties Entitled to Submit for and Benefit from Administrator Approvals.
The following parties may submit to the Administrator for approval either a Schematic
Design Package or Plans and Specifications under this Declaration: (i) any Owner of a
Development Site; (ii)any party authorized in writing(on a form approved or promulgated
by the Administrator)to act as the agent or representative of the Development Site Owner
for purposes of such matters,including,without limitation,an architect, engineer or lawyer
for such Owner; (iii) any tenant or occupant of a Development Site or prospective tenant
or occupant of a Development Site, with written authorization from the Owner of the
Development Site, in form acceptable to the Administrator; or(iv) any party who is under
written contract to purchase a Development Site and who has written authorization from
the selling Owner to apply for such approval.No person or entity shall be entitled to enforce
or benefit from any approval for construction or alteration of Improvements granted by the
Administrator under this Declaration other than ( 1) the party to whom it is issued, which
shall be the party who made the application,or(2) any party who is the principal named in
the application for approval submitted by any agent or representative of such party pursuant
to clause (ii) of this paragraph. Any party entitled to submit the application for approval
may assign such approval rights to any other party who would be entitled to submit for
such approval under clauses (i)-(iv)of this paragraph, if assigned in writing and in a form
promulgated or approved by the Administrator. Any Owner or any tenant/user of a
Development Site shall be entitled to assign(or collaterally assign)its approvals hereunder
to any fee or leasehold mortgagee of such party's interest in the Development Site in
question.Any attempted or purported assignment of approvals hereunder made without the
written consent of the Administrator is void. No permitted assignments of any such
approval shall be effective if made after the approval has expired by the terms hereof, and
neither shall any assignment, in and of itself, ever have the effect of extending the validity
or effectiveness of the assigned approval. No assignment shall be effective as to
Administrator(other than mortgagee assignments) unless and until a copy of the required
(or Administrator approved) form of assignment has been filed with Administrator. Up to
the time of the assignment,only the applicant who holds such approval right(and its Owner
in the case of an agent or representative applicant) is entitled to request information from
the Administrator in regard to such approval.
2. Construction Standards; Development Guidelines. Construction or alteration of
any building on a Development Site shall meet the standards set forth in this Declaration and the
Development Guidelines. Nothing in this Declaration or in the authority to adopt Development
Guidelines authorizes Declarant or the Administrator to regulate,control or approve Improvements
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that are interior to an enclosed building structure, subject to the use regulations stated elsewhere
herein.
(a) Right to Adopt and Amend Development Guidelines. Declarant and/or
Administrator may adopt the Development Guidelines, and shall provide a copy thereof to
the City. Thereafter, Administrator may amend the Development Guidelines from time to
time,with the prior written consent of the City,not to be unreasonably withheld, consented
or delayed(and deemed approved thirty(30)days after request for approval is received by
the City and no objection has been received by Administrator), but without the joinder of
any Owner. Such regulations, restrictions and limitations on development that may be
included in the Development Guidelines adopted hereunder include,without limitation:
(i) requirements for Development Site configurations, including any
combination or fractions of platted reserves that may constitute a unified
Development Site for purposes of a unified development of that Development Site
as if it were a single Reserve, without any obligation on the part of the
Administrator to allow development of partial or combined platted reserves or
acreage that are not re-platted as single Reserves with approval of the Board;
provided,however,that a Reserve and combinations of whole Reserves will always
be a permitted Development Site;
(ii) what Improvements (if any) may be located within building set-
back areas, if all Improvements are not to be prohibited therein(set-backs will not,
however, entirely prohibit one driveway access for each Development Site);
(iii) the location, height, style, and extent of fences, walls, or other
screening devices on the Development Site;
(iv) the orientation of buildings and other Improvements with respect to
streets, walks, paths and structures on adjacent property, and the height of
improvements on a Development Site, and the aesthetic appearance of exterior
materials and color schemes on buildings and other Improvements visible from the
exterior of the Development Site;
(v) the use, height, presence, style or appearance (or prohibition of)
decorative items, equipment, stored materials, containers, dumpsters or other
materials or items that will be visible from any public street notwithstanding
fencing, landscaping or screening;
(vi) permissible or required types, extent, style, location and appearance
of landscaping and vegetation;
(vii) requirements for style, orientation, appearance and screening of
garages and loading docks, truckwells and similar building features, and location,
style,prohibition, and other regulations regarding any out buildings;
(viii) limitations and restrictions on acceptable exterior materials and
finishes that may be utilized in construction or repair of improvements;
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(ix) orientation and height of improvements on a Development Site;
(x) parking, driveways, traffic flow, curb cut locations and related
traffic related issues;
(xi) location, appearance, height, use and number of exterior signs on a
Development Site; and
(xii) location,type,intensity and orientation of(glare regulation)exterior
light standards, fixtures and other illuminated devices of any kind.
Nothing in the Development Guidelines shall, however, amend, repeal, or increase any
specific requirement set forth in this Declaration if the specific requirement stated herein is
established as an objective, measurable criteria, such as, but without limitation, specific building
set-backs stated herein.
The Development Guidelines may also modify or supplement the type and amount of
information that must be submitted for approvals requested from the Administrator hereunder, and
the method and place of submission, for consideration of any request for approval of development
plans for any development or alteration on any Development Site, and may prescribe reasonable
fees for the cost of review of submissions of development or alteration plans for the Development
Sites, as well as supplementing any other procedural provisions of this Declaration. Once adopted
by the Administrator,the Development Guidelines may be amended from time to time, in writing,
as determined by the Administrator,but only with the prior written consent of the City(limited as
provided above), and upon recordation of any amendments thereto in the County Records, the
same will become the Development Guidelines that govern all construction of Improvements or
alterations to Improvements on any Development Site that is not otherwise grandfathered in
respect to the Development Guidelines under some other express provision of this Declaration.
The requirements contained in the Development Guidelines are in addition to any other
requirements contained in the Applicable Laws, including, but not limited to, the City's
subdivision and telecommunication regulations, if and when the same are applicable to the
Development Project by law or by agreement.
(b) Preexisting Non-Conforming Improvements. Any existing (built or
commenced) Improvement of a Development Site that is permitted by this Declaration at
the time of any change,modification or amendment of this Declaration or the Development
Guidelines as authorized herein("New Requirements")shall not be required to be changed
or altered (Improvements that specifically would no longer be permitted by the New
Requirements are herein called "Preexisting Non-Conforming Improvements)".
Preexisting Non-Conforming Improvements shall be permitted to continue in existence
until such time as they are materially altered, repaired or replaced due to (i) a voluntary
change desired by the Owner of such Development Site, or (ii) fire or other casualty or
requirement to comply with a change in Applicable Law. Notwithstanding the foregoing,
however, if compliance with the New Requirements as to existing Improvements being
altered, repaired or replaced pursuant to clauses (i) or(ii) hereof would result in the need
for material alteration, repair or replacement of material Improvements that are not
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Preexisting Non-Conforming Improvement(s) in order for them to be in functional or
architectural harmony with one another, then the Preexisting Non-Conforming
Improvements may be replaced or repaired into their existing non-conforming
configuration, style or location insofar as necessary to maintain such harmony. The
definition of"material alteration, repair or replacement" as used in this paragraph shall
reside in the sound,good faith discretion of the Administrator,but generally means that the
item is replaced in its entirety(or most major component parts thereof are replaced) or the
repair cost approaches the cost to replace the segregated Preexisting Non-Conforming
Improvements in question.
(c) First-Class Construction. All construction shall be conducted in a first class
manner with minimum disruption to the other portions of or uses of the Development
Project.
3. Building Setbacks. No building or other building structure shall be erected within
the building setbacks established below, with the distance indicated being the distance from the
common boundary of the Development Site and the named public right-of-way or tract boundary,
as indicated(No setback applies to detention/storm water management areas):
Right-of Way or Adjacent Tract: Building Setback Distance:
Kilgore Parkway and FM 565 Seventy-Five (75) feet
Any other public street right-of-way Twenty-Five(25) feet
Side Development Site Boundary
(not abutting a public street right-of- Fifteen(15)feet
way
Rear Development Site Boundary
(not abutting a public street right-of-
Fifteen(15) feet way
No other setbacks are required.
4. Vegetative Buffer. Plantings, as illustrated on Exhibit B attached hereto and
incorporated by reference,between uses in the Development Project and public street right of way
are required to be implemented and maintained to create vegetative buffers within each
Development Site as following:
(a) fifty (50) foot vegetative buffer within the 75' building setback along
Kilgore Parkway and FM 565, including two individual planting areas, offset to ensure a
consistent screen, as shown on Exhibit B; and
(b) six (6) foot vegetative buffer along any interior street within the
Development Site commencing immediately adjacent to the boundary of the applicable
right of way.
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No vegetative buffer requirement will apply to or require vegetative plantings on any part
of the lands within the Development Site that are not abutting residential uses or public right-of-
way. No vegetation buffer is required adjacent to either detention/stormwater management
abutting residential areas or other abutting features.
5. Parking. Adequate parking shall be provided for each building structure,subject to
the terms of the Development Guidelines, and so as at all times to comply with Applicable Laws.
6. Utility Lines. All electric distribution, telecommunications, cable or similar lines
shall be installed underground, except for the following which may be above ground: (i) lines at
those locations which the Administrator, in the exercise of their reasonable discretion, shall first
approve in writing and (ii) primary source lines. Without limitation, the Administrator may
promulgate additional utility guidelines as part of the Development Guidelines, which additional
guidelines must be approved in advance in writing by the City. Utility lines shall be installed so as
at all times to comply with Applicable Laws.
7. Loading Docks. The Administrator may promulgate loading dock guidelines as
part of the Development Guidelines.
8. Landscaping. Landscaping in accordance with the final approved Plans and
Specifications for the Development Site must be installed within thirty (30) days following
completion of a building on such Development Site. The Administrator may promulgate
landscaping guidelines as part of the Development Guidelines.
9. Outdoor Storage Areas. The right of an Owner or Lessee of a Development Site to
use any building situated thereon shall not be construed to permit (and the following is expressly
prohibited) the keeping or storing of articles, goods, materials, equipment, incinerators, storage
tanks, refuse containers, or like items in the open or exposed to public view or view from a public
right-of- way or an adjacent Development Site (as viewed from ground level), unless any such
storage area and items thereon shall be screened from view in a manner approved in writing by the
Administrator. The screening shall be of material approved by the Administrator and a minimum
of six (6) feet in height, unless (in the sole judgment of the Administrator) such height is
insufficient to screen the materials or equipment being stored, in which event the Administrator
shall require the screening to be of a greater height. Water towers, storage tanks, processing
equipment,stand fans,skylights,cooling towers,heating equipment,air conditioning or ventilating
equipment, telecommunications equipment, electric equipment, and any other structures or
equipment (including that which is located on the roof of any building or on the ground) shall be
effectively shielded from view from a public right-of-way or an adjacent Development Site (as
viewed from ground level) by an architecturally and aesthetically sound method which shall be
approved in writing by the Administrator before construction or erection of said structures or
equipment. Communication towers,whether freestanding or building mounted,must be approved
by the Administrator prior to their construction and must be effectively shielded from view. The
Administrator may promulgate additional screening guidelines as part of the Development
Guidelines.
10. Signs. Monuments and Flagpoles. All signs shall be in locations and of a design,
size and material as approved by the Administrator.No more than two(2) free standing ground or
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berm mounted permanent signs shall be permitted for each Development Site. Unless otherwise
approved in writing by the Administrator, all other signs must be attached to and flush with an
exterior wall of a building and shall be parallel to and contiguous with its wall and not project
above its roofline.No sign of a flashing or moving character shall be installed and no sign shall be
painted on a building wall. Directional and traffic control signs, and signs advertising the sale or
lease of a Development Site are also permitted upon the written approval of the design and location
by the Administrator. The Administrator shall have the right, and hereby reserves an easement,to
enter upon any and all portions of the Development Project to remove any signs that are in violation
of this Article III, Section 10 upon reasonable notice to the Owner or Lessee of such portion of the
Development Project, all at the expense of such Owner or Lessee. The Administrator may
promulgate additional sign, monument and flagpole guidelines as part of the Development
Guidelines.
11. Illumination. All buildings are required to have exterior illumination facilities for
their front and side walls of a power and design to be approved by the Administrator prior to
commencement of construction, and,upon completing of said building, said illumination facilities
shall remain in full operation until twelve (12) midnight each night (subject to compliance with
applicable governmental requirements). Lighting will be designed, installed, oriented, and
operated so as not to create unacceptable glare to adjacent properties, as determined by the
Administrator. The Administrator may promulgate additional lighting and illumination guidelines
as part of Development Guidelines.
12. Maintenance.The Owner of any Development Site or portion thereof shall have the
duty of and responsibility for keeping(and for causing its Lessee)the premises and Improvements
(including landscaping) in a first-class,well-maintained, safe, clean and attractive condition at all
times and in compliance with this Declaration and the Development Guidelines (subject to any
grandfathering expressly provided for herein as to future amendments hereto and to the
Development Guidelines). In addition,the Owner of any Development Site or portion thereof shall
be responsible for(and responsible for ensuring that its Lessee or occupant is responsible for): (i)
all maintenance of any property lying between the paved portion of any adjoining public street and
the Development Site,and(ii)until the Association(as hereinafter defined)is formed and activated
with such power, all maintenance and replacement of any landscaping lying within any esplanade
in any public street immediately adjoining such Development Site(within the area of the esplanade
that actually fronts the Development Site). If, in the opinion of the Administrator, any such Owner
(or its Lessee) is failing in this duty and responsibility, then the Administrator may give such
Owner or Lessee, or both, written notice of such fact, and such Owner or Lessee must, within a
reasonable period after such notice(determined on the basis of the nature of the alleged breach of
this Declaration,but in no event more than 30 days thereafter),undertake the care and maintenance
required to restore said Owner's or Lessee's Development Site to a safe, clean and attractive
condition, or bring the property and/or landscaping into compliance with this Declaration. If
Administrator gives the notice described in the preceding sentence to Owner of such Development
Site (irrespective of whether a Lessee occupies such Development Site) at such Owner's last
!mown address according to the information available in the Administrator's records, upon the
expiration of the applicable curative period the Administrator shall have the right (but not the
obligation), and hereby reserves an easement, to enter upon any and all portions of any
Development Site(through its own personnel,agents or contractors)to perform such work that the
Administrator deems reasonably necessary to effectuate the purposes of these this Declaration.
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Failure or inability of the Administrator to be able to identify or notify the Lessee of the
Development Site of such violation shall not in any way reduce,limit or prevent the Administrator
from taking corrective, enforcement or lien action hereunder against the Owner and the subject
Development Site for a violation of this Section 1 1, as long as the Administrator gives notice to
the Owner of such Development Site as set forth herein. The Owner of the Development Site on
which such work is performed by the Administrator shall be liable for all reasonable costs of any
such work and shall promptly reimburse the Administrator therefor. If such Owner shall fail to so
reimburse the Administrator within thirty (30) days after being billed therefor by the
Administrator, then such cost shall be a debt of such Owner, payable to the Administrator, and
shall be a lien against any such Owner's Development Site, which lien is expressly reserved and
created in this Declaration. Except as set forth in Article VII. Section 5 hereof, the lien reserved
and created hereby is subject only to, and shall be subordinate and inferior to, automatically and
without the necessity of another document, any and all first lien purchase money deeds of trust and
liens in favor of third party financial institutions or representing bona fide seller financing. The
Administrator shall be liable for any actual damages (exclusive of any consequential, special or
punitive damages, all of which are hereby expressly waived by each Owner of a Development
Site) caused to any Development Site by its entry onto any Development Site only if the
Administrator has acted negligently in connection with any permitted work performed by it
hereunder. All references in this Article III, Section 12 to the Administrator shall include the
Association, subsequent to its formation and activation by assignment of Administrator's rights
hereunder by a document recorded in the County Records.
13. Utility Easements. Declarant hereby reserves for itself and its duly authorized
agents, representatives, employees, successors, assignees, licensees and the Administrator, an
easement over all area within fifteen (15) feet of each side and rear property line of any
Development Site for the construction, replacing, repairing and maintaining of all utilities. The
Administrator and/or the Declarant shall have the right and power to grant specific easements as
it may deem necessary to any governmental authorities for these purposes. All such easements
shall be recorded in the County Records.
14. WaiverNariances. Except as expressly provided in this Declaration, the
Administrator with the prior written approval of the City shall have the right to grant variances
with respect to the strict application of any of the provisions contained herein as to any
Development Site, if the Administrator, in its sole good faith judgment, determines that (i) strict
applicability of any of the provisions hereof would create a hardship as to the Owner of a
Development Site or would make development of a Development Site difficult or impractical, (ii)
the granting of a variance will not adversely affect the Development Project or the purpose or
intent of this Declaration, and (iii) all required variances pursuant to the City Ordinances and
Applicable Laws have been obtained. No such variance as to the applicability of any covenant,
condition or restriction shall be construed to be a waiver of such covenant,condition or restriction,
or be construed so as to entitle any other party to a variance, as to any other project, development
or circumstance. Further,no such variance granted or denied by the Administrator shall be subject
to challenge by any other beneficiary of this Declaration or Owner of any of portion of the
Development Project but shall be absolute with respect to the portion of the Development Project
as to which such variance has been granted. No delays in or failure in enforcing this Declaration
or the Development Guidelines as to any breach or violation thereof shall impair,damage or waive
the right of any party entitled to enforce the same to obtain relief against or recover for continuation
17
or repetition of such breach or violation or any similar breach or violation thereof at any later time
or times. Variances must be evidenced in writing, must be signed by the Administrator(or, in the
case of the Association, at least a majority of the board)and the City(provided that City approval
shall be deemed granted thirty(30)days after receipt by the City of a proposed variance which the
Administrator/Association,as applicable,proposes to approve,if the City does not respond to such
request by a writing received by the Administrator/Association, as applicable), and shall become
effective upon their execution. Variances shall be strictly and narrowly construed, and no granting
of a variance shall be construed as being broader or less restrictive than its plain wording. The
granting of such a variance shall not operate to waive any of the terms and provisions of this
Declaration or the Development Guidelines for any purpose except as to the particular provision
hereof covered by the variance, and shall only constitute a waiver or variance for the particular
Development Site for which it is issued and is not transferrable(except shall run for the benefit of
successive Owners of the Development Site for which it is issued); provided, however, that a
variance shall be issued only in connection with a simultaneously submitted (or amended)
application to the Administrator for approval of a plan for Improvements or alteration of
Improvements on a Development Site. Such variance shall be valid only as to the final approved
Plans and Specifications for such Development Site and not a different or other configuration of
Improvements, unless the variance expressly states that it is"Unrestricted,"which shall mean that
it is a variance that is permanently associated with such Development Site due to special site
considerations and is not dependent on the final approved Plans and Specifications for the
Improvement of the Development Site.The granting or denial of variances is in the sole discretion
of the Administrator (or the directors of the Association as the case may be), provided that the
granting of variances must also be approved in writing by the City (or deemed approved as
provided hereinabove),and UNDER NO CIRCUMSTANCES SHALL THE ADMINISTRATOR
(OR THE DIRECTORS OF THE ASSOCIATION) EVER BE COMPELLED. BY COURT
ORDER OR OTHERWISE. TO GRANT A VARIANCE UNDER THE PROVISIONS OF THIS
SECTION. The granting of any variance shall never affect in any way the Owner's obligation to
comply with all Applicable Laws, regardless of whether or not consistent with or contrary to the
variance.
NOTICE: The granting of a variance under this Section is not a variance from any City
Ordinances.
ARTICLE IV
OWNERS ASSOCIATION; ASSESSMENTS AND LIENS
1. Formation, Designation; Assignment of Administrator Powers. The Administrator
shall have the right, but not the obligation, to form, as a Texas non-profit corporation, a property
owners association (the "Association") for the sole purpose of enforcing and administering this
Declaration. At any time after the formation of the Association, the Administrator may, but shall
not be obligated to (in one or more assignments at various times as it may choose), assign all or
any part of the rights,powers,duties or obligations vested in the Administrator by this Declaration
to the Association, by written assignment recorded in the County Records identifying the
Association by name. The first such assignment and designation of the Association that is filed by
the Administrator shall be deemed to activate the Association for purposes of acting hereunder.
After any such activation of the Association, such rights as have been so assigned shall be fully
18
vested only in the Association, and the Association will expressly be responsible for all duties
given to it by the Administrator by the terms of such assignment. Unless and until the
Administrator activates the Association as provided above, all rights of Administrator hereunder
shall continue to reside in the Administrator.Notwithstanding the foregoing,however,at such time
as Declarant has not owned any portion of the Development Project for ten(10) years,but only if
the Association has been formed and activated prior thereto,the assignment of all remaining rights,
powers, authorities, and responsibilities of Administrator under this Declaration shall take place
automatically, without the need for action by any party. All approvals and/or variances granted
from time to time by the Administrator shall be binding upon the Association and all Owners of
the Development Project.
2. Rights and Duties. Upon its formation and Administrator's activation thereof, the
Association shall have all of the rights and duties of the Administrator hereunder that have been
assigned to it by the Administrator, or that have devolved upon it by passage of time as provided
in Article IV, Section 1. If the assignment to the Association by the Administrator is of"all"such
rights,powers,authorities and duties of the Administrator(or are stated to include"all maintenance
and repair responsibilities" of the Administrator hereunder), then the assigned rights and duties
that become the responsibility of the Association will include,without limitation,carrying out and
enforcement of this Declaration and the Development Guidelines, the management, operation,
upkeep, maintenance, repair, and replacement of all Common Areas and Common Facilities, if
any.After formation and activation of the Association,it may provide services to the Development
Project,using independent contractors engaged by the Association,such as,but without limitation,
security patrols, esplanade lighting, street cleaning, insect fogging or any other services provided
that are approved by a Required Majority of Owners ("Approved Services"), and all Owners will
be assessed under the General Assessment for the cost of Approved Services regardless of whether
the Owner(s)in question voted to approve such Approved Services.
3. Membership and Voting. Each Owner of a Development Site shall be a member of
the Association with such rights as are set forth in the Articles of Incorporation and Bylaws of the
Association. Voting rights for members of the Association shall be determined on the basis of
gross square footage of the portion of the Development Project owned by each member. The
Administrator may create as part of the Development Guidelines and in the Association formation
and governing documents, among other procedures for operation that are not in direct conflicts
with the terms of this Declaration, rules regarding submissions of requests from, issuances of
approvals to, and exercise of voting rights by Owners of Development Sites where more than one
Owner is a fee or fractional interest Owner in such Development Site.
4. General and Special Assessments. The Association (and Administrator prior to
formation of an Association) shall expressly have the power to levy Assessments against land
within the Development Project in amounts which it deems necessary to effectuate the purposes
of and carry out this Declaration, excluding the cost of enforcement of obligations of a specific
Development Site Owner (collectively, the "General Assessment"); provided, however, that
General Assessments may be increased to cover unpaid Special Assessments (as hereinafter
defined)pending collection thereof from the Owner which is responsible for paying them, unless
the Association(or Administrator) elects to (and is able) to borrow such funds. Upon collecting
any Special Assessment(s) from the Owner obligated for the Special Assessment,then if the same
were previously funded by General Assessments, the Special Assessment revenue will be placed
I9
into the Association's(or Administrator's)general revenues and general revenue budget to reduce
the obligations of future General Assessments accordingly. In addition, the Association (and the
Administrator prior to its formation and designation)may assess specially against the Owner of a
Development Site(s), and against the Development Site(s) directly, all costs of remedying any
defaults under this Declaration and/or the Development Guidelines by the Owner or Lessee of the
Development Site(s) in question, by a specific enforcement Assessment ("Special Assessment"),
which may include,interest, late charges,penalties(if applicable)and attorney fees and court costs
for General Assessments that are delinquent (for delinquent account collection), and for other
enforcement action, including, without limitation, costs of injunctive actions, suits for specific
performance or declaratory relief, actions to foreclose the lien hereunder, and enforcement or
collection actions in any bankruptcy or receivership proceedings of any Owner. Any General
Assessment shall be levied on a uniform basis against all of the Development Sites on the basis of
gross square footage within any Development Site. General Assessments and Special Assessments
are sometimes collectively or generically referred to herein as the "Assessments" or an
"Assessment". Common Areas and Common Facilities owned by Declarant and/or by the
Association for common use by Owners are exempt from Assessment. If any portion of
Development Site consists of an easement for common use by Owners, then the Owner of that
Development Site shall be assessed for and shall have voting rights as to its entire acreage
notwithstanding such area affected by such easement.
5. Use of Assessments In General. Any Assessment collected by the Association(or
Administrator before Association is activated with such powers) shall be used for one or more of
the following purposes as the Association may deem appropriate in its reasonable discretion:
planting, landscaping, watering or irrigation, mowing, tree surgery and general upkeep and
maintenance of planted or landscaped areas; provision of safety and security measures;
enforcement of parking restrictions; enforcement of this Declaration and/or the Development
Guidelines; maintenance of medians, esplanades, sidewalks and easement areas in or adjacent to
the Development Project and common areas owned by or under easements to the Association;
reimbursement of reasonable costs and expenses of the Association in connection with its
operation and management and administration of this Declaration and/or Development Guidelines
(including but not limited to charges related to engagement of third party architects, engineers,
attorneys, accountants and other consultants in connection with such operation and
administration), taxes, insurance, attorneys fees, costs of Approved Services and such other
noncapital and capital items of expense and expenditure as may be deemed by the Association, in
its discretion and good faith, to be necessary or desirable for the carrying out of these provisions
and for the general benefit of members of the Association.In no event shall the Association expend
any Assessments for a single capital replacement or addition that costs in excess of One Hundred
Thousand and no/100 Dollars ($100,000.00) without a vote of the Required Majority of Owners
approving such expenditure that was held in accordance with the Association's governing
documents.
6. Lien to Secure Assessments. To secure the payment of any Assessments levied by
the Association(or Administrator before Association is activated with such powers)and any other
sums due hereunder (including, without limitation, interest, late fees or delinquency charges), a
lien is hereby reserved and created in favor of the Association against each Development Site.The
lien reserved and created hereby is subject only to, and except as expressly set forth to the contrary
in this Declaration shall be subordinate and inferior to, and automatically without the necessity of
20
another document, any and all first lien purchase money deeds of trust and liens in favor of third
party financial institutions or representing bona fide seller financing. By accepting a deed to a
Development Site, each Owner of such Development Site expressly grants to the Association a
lien for the payment of any Assessments, and such lien shall be binding with a power of sale to
enforce such lien by non judicial foreclosure pursuant to the provisions of Section 51.002 of the
Texas Property Code, or any successor statute governing enforcement of consensual liens on real
estate (the "Code"). Alternatively, the Association may institute a suit or proceeding at law or in
equity or take any lawful action to enforce collection of any defaulted Assessments,including,but
not limited to,an action to foreclose the lien reserved and created herein securing any Assessments.
Any foreclosure may be brought by the Association in the same manner as an action to foreclose
the lien of a mortgage of deed of trust on real property in accordance with the Code.
7. Delinquent Assessments. Any Assessment not paid within thirty (30) days after
the due date shall bear interest at the maximum per annum ceiling rate allowed by applicable usury
laws from the due date until paid or, if there is no maximum lawful rate applicable to such
transaction,then at the rate of eighteen percent(18%)per annum(such applicable rate being herein
called the "Default Rate"). The Association(or Administrator before the Association is activated
with such powers) may bring an action at law against the Owner personally obligated to pay the
Assessment(s), foreclose the lien against the Development Site(per Article IV, Section 6 hereof),
or pursue both such remedies to the extent not mutually exclusive, in addition to pursuing and
enforcing any equitable remedies such as injunction, specific performance, and/or declaratory
judgment. Interest, court and other collection costs and attorneys' fees incurred in any such action
shall be added to the amount of such Assessment or charge.
8. Mandatory Date for Formation of Association. Notwithstanding the foregoing, at
such time as Declarant(or its designated transferee or assignee as successor named and designated
in writing in the County Records)no longer owns at least forty percent(40%) of the gross square
footage of the Development Project, any one or more Owners of Development Sites with an
aggregate of more than fifty percent(50%)of the gross square footage of the Development Project
may form or compel the formation of the Association for the purposes stated herein. Such Owners
shall thereupon send notice of the formation of the Association to all Owners of record of
Development Sites as shown by the tax assessors' rolls of Chambers County, Texas and shall file
such notice, signed by the requisite Owners of Development Sites in the County Records.
9. Optional Loans by Declarant. Declarant may,but is not obligated to,advance funds
for the maintenance and improvement of the common areas(and other expenses of the Association
or Administrator provided herein), and the operation of the Association(or of Administrator prior
to establishment of the Association). Such funds shall be reimbursed to the Declarant by the
Association, with 8% interest from the date advanced, as an obligation of the Association. The
loan(s)shall be represented by one or more promissory notes executed by the Association payable
to the order of Declarant and providing for a repayment period not to exceed five (5) years from
the date of the note. The loan(s)shall be paid in equal quarter annual installments amortized over
five(5) years.
ARTICLE V
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[RESERVED]
ARTICLE VI
TERM; TERMINATION AND AMENDMENT; ENFORCEMENT
1. Duration and Amendment. Each condition and covenant contained in Declaration
shall remain in full force and effect until December 31, 2062, and shall automatically renew for
successive ten (10) year periods thereafter; provided, however, that this Declaration shall not be
automatically renewed and extended for such successive terms if, prior to the expiration of the
initial term hereof or any automatic renewal term that has then already occurred, the Owners of
seventy-five percent (75%) of gross square footage of the Development Project (the "Required
Majority of Owners") execute and acknowledge a declaration of termination, to be effective upon
the expiration of the then current initial or renewal term, and record the same in the County
Records. The Required Majority of Owners at any time after the Association has been formed and
activated,may by written declaration signed and acknowledged by them and the Administrator in
the County Records, alter or amend, but not terminate, the restrictions, conditions and covenants
contained herein and this right shall exist as long as the Required Majority of Owners and the
Administrator shall so desire. References in this Declaration to a percentage (or fraction) of the
gross square footage of the Development Project shall be determined by excluding from the
numerator and the denominator any portion of the Development Project that is platted, dedicated
or otherwise acquired or used as a public street, drainage or detention structure, park or other
common area.
2. Enforcement. Declarant, Administrator, and/or Association may enforce this
Declaration, but only Administrator or Association, as applicable, may approve Plans and
Specifications. The City may require the Administrator or Association, as applicable, to enforce
the plan approval provisions of this Declaration. Enforcement may be by an action for injunction
to restrain or enjoin a violation or threatened violation of the Declaration, or by an action for
damages, or both. If any such party bringing suit to enforce the terms and provisions hereof shall
prevail therein, such party shall also be entitled to recover therein (or in a separate suit) a
reasonable sum as attorney's fees from the party or parties against whom judgment is rendered. It
is further agreed that if a suit for injunctive relief is brought for enforcement of the Declaration,
the party against whom such suit is brought shall have no right to, and by having accepted any
deed or lease to property within the Development Project shall be conclusively deemed to have
covenanted and agreed not to(and to have waived any right to),urge or assert as a defense that an
adequate remedy at law exists. Under no circumstances is any party who is subject to the
Declaration be liable for consequential, special or punitive damages as a result of any breach
hereof.Each Owner from time to time of any Development Site shall be bound by the Declaration
and liable for breaches or defaults thereof related to its Development Site only during that Owner's
ownership of such Development Site, and such Owner shall not be liable for breaches hereof by
any subsequent Owner(or user)of such Development Site;provided,however,that nothing herein
exculpates any Owner who sells a Development Site from liability to its transferee to the extent
the transferring Owner contractually warranted or guaranteed compliance herewith or
contractually agreed to indemnify the subsequent Owner from any non-compliance existing as of
the date of the conveyance of the Development Site to the new Owner. Any prevailing party in an
action to enforce this Declaration may recover its reasonable attorneys fees and costs.
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ARTICLE VII
GENERAL PROVISIONS
I. Representations by Declarant. Declarant represents and warrants that it owns fee
simple title to the Development Project lands, subject to all existing liens,restrictions, easements,
rights-of-way, and other encumbrances of record in the County Records.
2. Term; Covenants Run With Land. The term of this Declaration is as set forth in
Article VI hereof. The terms and provisions of this Declaration shall run with the land and bind
the land within the Development Project and each Owner from time to time of each Development
Site or any interest in any such Development Site, and each Lessee,occupant,and user of any such
Development Site from time to time, for the duration (term) stated in the respective sections
referenced in the preceding sentence.
3. Additional Property The Administrator shall have the right to bring within the
Development Project additional property in its discretion. Any additions authorized under this
Article VII, Section 3 shall be made by filing of record in the County Records, a supplemental
declaration with respect to the additional property, which shall extend this Declaration(as therein
modified) to such property, executed by the Administrator. Upon such filing, the Development
Project shall include the additional property described in such supplemental declaration.
4. Approvals by Administrator; Association and/or the City. Whenever in this
Declaration any approval or consent of the Administrator, the Association (if activated with such
powers)and/or the City is required, such consent or approval shall be consistent with the purposes
and intent of these declarations shall not be withheld arbitrarily or in bad faith.The Administrator,
the Association and the City shall have no liability for the granting or withholding of any such
approval or consent if(i) done in good faith or(ii) done in bad faith by another party hereto. It is
understood that while Administrator has the power of consent or approval hereunder, and while
the vote of Declarant is the control vote in the Association after it is activated, the Administrator
will be acting in the self-interest of Declarant in material respects in regard to preserving,retaining,
and enhancing the value of Development Sites that it owns, and such self-interest does not, by
itself, constitute an element of or evidence of bad faith in decision making hereunder.
5. Rights and Obligations of Lenders. If by virtue of any right or obligation set forth
herein, a lien shall be placed upon any Development Site, such lien shall expressly be subordinate
and inferior, except as set forth in this Article VII Section 5 to the lien of any first lienholder now
or hereafter placed on such Development Site. Except as set forth in the preceding sentence,
however, any holder of a first lien on any Development Site, and any assignee or successor in
interest of such first lienholder, shall be subject to the terms and conditions of this Declaration.
Notwithstanding anything herein contained or implied to the contrary, any and all liens created
pursuant to the terms hereof shall be paid and satisfied in full upon the sale of any Development
Site or any property to which such lien attaches, and if not so paid upon sale, such lien shall no
longer be subordinate and inferior to any lien on such Development Site or property, and the lien
created hereunder shall become a first and prior-lien to all existing and future liens.
6. Limitation of Liability. Any person acquiring fee or leasehold title to any
Development Site shall be bound by this Declaration only as to the Development Site acquired by
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such person. In addition, such person shall be bound by this Declaration only during the period
such person is the Owner or Lessee of such Development Site, except as to obligations, liabilities
and responsibilities that accrue during said period of such Owner's ownership or Lessee's
leasehold interest.Although persons may be released herein,the easements,covenants,conditions,
restrictions and encumbrances contained in this Declaration shall continue to be benefits to and
servitudes upon said tracts running with the land comprising the Development Project.
7. Use of Baytown/Kilgore Business Park. The name "Baytown/Kilgore Business
Park" shall not be used in connection with any business or trade or operations on or any portion of
the Development Project without the prior written consent of the Administrator,which consent the
Administrator may withhold in its sole discretion. All rights, titles and interest in and to the name
"Baytown/Kilgore Business Park"are expressly reserved and retained by Declarant.
8. Notices. Any notice required or desired to be given under this Declaration shall be
in writing and shall be deemed to have been properly given and served when(i)three(3)days after
deposit in the United States Mail,certified, return receipt requested,postage prepaid, and properly
addressed,or(ii)delivered in person or receipted for at the proper notice office address of the party
being served if sent or delivered by any other means, in each case addressed, if to an Owner,to the
Owner's last known address as shown on the records of the Administrator(or the Association after
activated) at the time of such mailing or, if to the Administrator, to its President, Secretary or
registered agent at its address specified herein(as amended from time to time as hereinafter stated.
The initial address for the Administrator and Declarant shall be:
TEXAN HOSPITALITY INC
59 Crown Arbor
Sugarland Texas 77478
Such address for the Administrator shall be effective unless and until a notice of change of address
shall be made and filed by Administrator in the County Records specifying a different address (in
which event such address specified in such notice shall be the address, for the purposes of this
Article VII,Section 8 for the Administrator thereafter).Upon activation of the Association,notices
shall be given to the Association at the office of its State of Texas registered agent shown in the
records of the Texas Secretary of State unless and until the President of the Association records a
notice of change of address for the Association in the County Records. If any Owner(other than
Declarant) fails to give written notice of a notice address to the Administrator or, after it is
activated, the Association, then notice to such Owner at or care of any address where an Owner
has a building completed within the Development Project will be effective as notice hereunder or,
in the absence of any such existing building owned by that Owner,to the address of the Owner set
forth in the instrument of conveyance whereby such Owner took title to the Development Site that
it most recently purchased in the Development Project based on the good faith inquiry of the
Administrator or Association with available title data of a title insurer.Any notice address provided
by any Owner to the Administrator or Association hereunder must include (even if there is a
separate address for mail) a street address that is not a mail drop or post office box type address so
that overnight courier services (such as FedEx) can deliver to the Owner or a live representative
of the Owner at such address during normal business hours.
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9. Law Governing.This Declaration shall be governed by and construed in accordance
with the laws of the State of Texas.
10. Successors and Assigns: Assignment of Declarant Rights. This Declaration, and all
the terms and provisions hereof, shall be binding upon Declarant, its successors, assigns and
successors in title, and violations of this Declaration by any such parties shall be enjoinable and
actionable as herein provided. The rights and powers of Declarant and/or Administrator hereunder
may be assigned by Declarant or Administrator to any third party who purchases any part of the
Development Project lands,but no such assignment of Declarant or Administrator rights shall ever
transfer with Declarant's transfer of title to any part of the Development Project unless Declarant
or Administrator expressly and specifically executes and records a written assignment of the
Declarant and/or Administrator's rights (or any of them) under this Declaration, which express
assignment of Declarant or Administrator rights may be included in any conveyance document or
by separate instrument.Declarant or Administrator may also,likewise by specific express recorded
assignment only, convey Declarant's and/or Administrator's enforcement rights under this
Declaration to any property owners association formed to govern or manage any part of the
Development Project.
11. Severability. This Declaration is intended to be performed in accordance with, and
only to the extent permitted by, all applicable laws, ordinances, rules and regulations of
governmental authorities having jurisdiction. If any provision of this Declaration, or the
application thereof to any person or circumstance, shall, for any reason or to any extent,be held to
be invalid or unenforceable, then the remainder of this Declaration and the application of such
provision to other persons or circumstances shall not be affected thereby, but rather shall be
enforced to the greatest extent permitted by law.
12. Headings. The headings contained in this Declaration are for reference purposes
only and shall not in any way affect the meaning or interpretation hereof.
13. Miscellaneous. The singular wherever used herein shall be construed to mean or
include the plural when applicable, and the necessary grammatical changes required to make the
provisions hereof apply either to corporations (or other entities) or individuals, male or female,
shall in all case be assumed as though in each case fully expressed. If any part of this Declaration
shall be in conflict with any term of a previously recorded deed of conveyance to any portion of
the Development Project, the term of the prior deed of conveyance shall govern, but only to the
extent of such conflict. If additional restrictions are imposed upon a Development Site by
Declarant in the instrument by which Declarant conveys a Development Site or any portion
thereof,the terms of the deed of conveyance shall be in addition to the Declaration herein and shall
be solely in favor of Declarant unless otherwise specifically stated in the instrument of conveyance.
This Declaration is the entire agreement between the Parties relating to the Development Project,
unless expressly agreed to the contrary in a written, recorded document, and in the event of any
conflict between other agreements, rules or regulations, then the provisions of this Declaration
shall control.
14. Limited City Joinder. The City joins in this Declaration for purposes contained
herein. The joinder of the City herein shall not be deemed to make the City primarily responsible
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(all of which responsibility it hereby expressly disclaims) for monitoring or enforcement of any
requirement of this Development Project.
[Signature Page(s)Follow]
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This Declaration is executed on the date set forth below to be effective as of the Effective Date
first set forth above.
DECLARANT:
TEXAN HOSPITALITY, INC.,
a Texas corporation
By:
Name:
Title:
STATE OF TEXAS §
COUNTY OF HARRIS §
This instrument was acknowledged before me on this day of January, 2023, by
, of TEXAN HOSPITALITY,
INC., a Texas corporation, in that capacity and on behalf of said corporation.
Notary Public, State of Texas
SIGNATURE PAGE-DECLARANT
DECLARATION OF COVENANTS,CONDITIONS AND RESTRICTIONS
This Declaration is executed on the date set forth below to be effective as of the Effective Date
first set forth above.
ADNIINISTRATOR:
TEXAN HOSPITALITY, INC.,
a Texas corporation
By:
Name:
Title:
STATE OF TEXAS §
COUNTY OF HARRIS §
This instrument was acknowledged before me on this day of January, 2023, by
of TEXAN HOSPITALITY INC,
a Texas corporation , in that capacity and on behalf of said .
Notary Public, State of Texas
SIGNATURE PAGE-ADMINISTRATOR
DECLARATION OF COVENANTS,CONDITIONS AND RESTRICTIONS
JOINDER
CITY OF BAYTOWN,TEXAS
The City of Baytown, Texas joins herein for the purposes stated herein and accepts and
acknowledges the benefits of such provisions:
CITY OF BAYTOWN,TEXAS
By:
Name:
Title:
ATTEST:
By:
Name:
Title:
By:
Name:
Title:
JOINDER-CITY OF BAYTOWN
DECLARATION OF COVENANTS,CONDITIONS AND RESTRICTIONS
EXHIBIT A
LEGAL DESCRIPTION OF ENTIRE DEVELOPMENT PROJECT
A METES & BOUNDS description of a certain 120.7-acre tract of land situated in the K. Dugat
Survey, Abstract No. 416 and the B. Winfree Survey, Abstract Number 28 in Chambers County,
Texas, being all of a called 84.0932-acre tract conveyed to Texan Hospitality Inc. by Warranty
Deed with Vendor's Lien recorded in Clerk's File No. 2021-165694 pf the Chambers County
Official Public Records, a portion of a called 36.64-acre tract conveyed to Texan Hospitality, Inc.
by Special Warranty Deed with Vendor's Lien recorded in Clerk's File No. 2020-150275 of the
Chambers County Official Public Records and all of a called 5.2303 acre tract conveyed to Texas
Hospitality by Special Warranty Deed recorded in Clerk's File No. 2020-161871 of the Chambers
County Official Public Records,said 120.7-acre tract being more particularly described as follows
with all bearings being based on the Texas Coordinate System of 1983, South Central Zone;
BEGINNING at the southeast corner of said 84.0932-acre tract,common with the southwest corner
of a called 8.508-acre tract conveyed to Texan Hospitality by Special Warranty Deed with
Vendor's Lien recorded in Clerk's File No. 2021-163597 of the Chambers County Official Public
Records and in the north line of Farm to Market Road(FM) 565;
THENCE, South 57°08'34" West, along the south line of said 84.0932-acre tract, common with
the north line of said FM 565, 1280.34 feet to a found concrete monument with brass disc at the
beginning of a curve to the left;
THENCE, along said common line and the arc of said curve to the left having a radius of 3789.53
feet, a central angle of 00057'50", an arc length of 63.75 feet, and a long chord bearing South
56°39'39"West,63.75 feet to a found 5/8-inch iron rod(with cap stamped"5742")at the beginning
of a compound 5742") at the beginning of a compound )at the beginning of a compound curve to
the left for the southwest corner of said 84.0932-acre tract, common with the southeast corner of
the aforementioned 36.64-acre tract;
THENCE, along the south line of said 36.64-acre tract, common with the north line of said FM
565 and arc of said compound curve to the left having a radius of 5789.57 feet, a central angle of
05°23'30", an arc length of 544.81 feet, and a long chord bearing South 53°44'33" West, 544.61
feet to a found 1/2-inch iron rod (with cap stamped "Hutchinson") for the south corner of said
36.64-acre tract, being in Hutchinson") for the south corner of said 36.64-acre tract, being in) for
the south corner of said 36.64-acre tract, being in the east line of a called 3.00-acre tract of land
conveyed to East Houston Oil&Gas, LLC by Assignment, Bill of Sale and Conveyance recorded
in Volume 519, Page 268 of the Chambers County Official Public Records;
THENCE, North 21°07'44" West, along the west line of said 36.64-acre tract, common with the
east line of said 3.00-acre tract, 408.49 feet to a found 1/2-inch iron rod (with cap stamped
"Hutchinson") for the Hutchinson") for the ) for the northeast corner of said 3.00-acre tract,
common with the southeast corner of a called 5.2303-acre tract conveyed to East Houston Oil &
gas LLC by Special Warranty Deed recorded in Clerk's File No. 2020-0161872 of the Chambers
County Official Public Records;
EXHIBIT A
DECLARATION OF COVENANTS,CONDITIONS AND RESTRICTIONS
THENCE,North 001108'28" East, along the east line of said 5.2303-acre tract, 680.78 feet to a set
3/4-inch iron rod (with cap stamped "JonesICarter Property Corner") for the northeast corner of
said JoneslCarter Property Corner") for the northeast corner of said 5.2303-acre tract;
THENCE, South 87°39'37" West, along the north line of said 5.2303-acre tract, 764.84 feet to a
found 5/8-inch iron rod for the northwest corner of said 5.2303-acre tract, common with the
southeast corner of the aforementioned 5.2303-acre tract;
THENCE, North 86021'52" West, along the south line of said 5.2303-acre tract, 506.13 feet to a
found 5/8-inch iron rod for the southwest corner of said 5.2303-acre tract;
THENCE, North 04036'22" West, along the west line of said 5.2303-acre tract, 548.24 feet to a
point for corner for the northwest corner of said 5.2303-acre tract, being in the south line of a
called 7.87-acre tract conveyed to Bat Hawk Investments Group, LP by Special Warranty Deed
with Vendor's Lien recorded in Clerk's File No. 2018-138299 of the Chambers County Official
Public Records, from said point a 60D Nail in a tree bears North 08045115' East, 0.31 feet;
THENCE, North 87°39'24" East, along the north lines of said 5.2303-acre tract and the
aforementioned 36.64-acre tract, common with the south lines of said 7.87-acre tract, a called
5.840-acre tract conveyed to Chambers County Improvement District No. 3 by Special Warranty
Deed recorded in Volume (11) 1292, Page 274 of the Chambers County Official Public Records
and a called 57.09 acre tract conveyed to Bat Hawk Investments Group, LP by Special Warranty
Deed with Vendor's Lien recorded in Clerk's File No. 2018-138299 of the Chambers County
Official Public Records, 1598.73 feet to a found 3/4-inch iron rod (with cap stamped "Cotton
Surveying") at the southeast corner of said 57.09-acre Cotton Surveying") at the southeast corner
of said 57.09-acre) at the southeast corner of said 57.09-acre tract, common with a western corner
of the aforementioned 84.0932 acre tract;
THENCE,North 029I'l6"West, along the west line of said 84.0932-acre tract, common with the
east line of said 57.09-acre tract, 1843.00 feet to a found 1/2-inch iron rod for the northwest corner
of said 84.0932-acre tract,common with the northeast corner of said 57.09-acre tract,being in the
south line of Kilgore Parkway (120' right-of-way) recorded in Volume (09) 1148, Page 479 and
Volume(09) 1092, Page 242,both of the Chambers County Official Public Records;
THENCE,North 87'28'13" East, along the north line of said 84.0932-acre tract, common with the
south line of said Kilgore Parkway, 1313.08 feet to a found 1/2-inch iron rod for the northeast
corner of said 84.0932-acre tract, being in the west line of the aforementioned 17.37-acre tract;
THENCE, South 04°30'40" East, along the east line of said 84.0932-acre tract, common with the
west lines of said 17.37-acre tract and a called 8.508-acre tract of land conveyed to Texan
Hospitality, Inc by Special Warranty Deed with Vendor's Lien recorded in Clerk's File No. 2021-
163597 of the Chambers County Official Public Records, 1839.76 feet to a found 5/8-inch iron
rod;
THENCE, South 04°29'25" East, along the east line of said 84.0932-acre tract, common with the
west line of said 8.508-acre tract, 689.97 feet to the POINT OF BEGINNING, CONTAINING
120.7 acres of land in Chambers County, Texas.
EXHIBIT A
DECLARATION OF COVENANTS,CONDITIONS AND RESTRICTIONS
EXHIBIT B
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EXHIBIT B
DECLARATION OF COVENANTS,CONDITIONS AND RESTRICTIONS