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HomeMy WebLinkAboutContract 42128 CITY SECRETARI( l d,I CONTRACT NO. `� DEVELOPMENT AGREEMENT BETWEEN THE CITY OF FORT WORTH, TEXAS AND BROOKFIELD ACQUISITIONS,L.P. FOR THE BROOKFIELD DEVELOPMENT THE STATE OF TEXAS § COUNTY OF DENTON § This Development Agreement (this "Agreement") is entered into by the City of Fort Worth, Texas, a home-rule municipal corporation situated in Parker, Tarrant, Denton and Wise Counties, Texas (the "City"), acting by and through its duly authorized Assistant City Manager, and Brookfield Acquisitions, L.P., a Texas limited partnership ("Owner"). ARTICLE I RECITALS A. Owner has represented to the City that Owner owns approximately 231.579 acres in Denton County, Texas, as shown on Exhibit A and described in Exhibit B attached to this Agreement (the "Pro e "). The Property lies entirely within the City's extraterritorial jurisdiction ("ETJ"). Owner intends to develop the Property as a mixed-use master-planned community to be known as"Brookfield." B. On January 4, 2005, the City Council adopted Resolution No. 3157-01-2005 (the "Creation Resolution") consenting to creation of the South Denton County Water Control and Improvement District No. 1 encompassing the Property (the "District"). C. The Texas Commission on Environmental Quality ("TCE ") approved the creation of the District by order issued April 19, 2007. D. The Board of Directors of the District conducted an election to confirm creation of the District on November 6, 2007, and canvassed the results of the election on November 15, 2007. E. On January 25, 2011, the City Council approved that certain Agreement Concerning Operation of South Denton County Water Control and Improvement District No. 1 (City Secretary Contract No. ) M & C C-24720), between the City and the District containing, among other provisions, consent to conversion of the District to a fresh water supply district operating under Chapter 53, Texas Water Code, as amended, and to issuance of bonds by the District for road projects. F. The Property is located in an area for which Certificate of Convenience ("CCN") and Necessity No. 11157 has been issued to Aqua Utilities, Inc., a Texas corporation, doing business as Aqua Texas, Inc. ("Aqua Texas") by the TCEQ to provide retail water service. Retail water service to the Property will be provided by Aqua Texas. G. The Property is located in an area for which amended CCN No. 20453 has been approved by TC u orizmg qu Texas to provide retail wastewater service. Retail wastewater servic Qi /1ipW0R e provided by Aqua Texas. CITY SECRETARY Brookfield Developm nt� `°ONTHTX Page l 15— I A 9733 8 k t 5 •" l:'+n.j"_`. '.$4 ..r ,.r.,Y.ex#i $`5' .,_^,s,wwr.'. k, ax;xt`st "`'ir'dL'3caf:„v.x' +'�. "#_ 110 _ v= H. The purposes of this Agreement include encouraging innovative and comprehensive master-planning of the Property, providing for amenities and enhanced development requirements; and providing assurances that the Property will remain in the City's ETJ for the term of this Agreement. I. It is the Parties' intent that the Property, including all Infrastructure (herein defined), and all buildings, signs, and other structures and facilities constructed on the Property, shall be designed, permitted, constructed and inspected as if the Property were located within the City's corporate limits, subject to the terms of this Agreement. J. The Parties have the authority to enter into this Agreement pursuant to Section 212.172 of the Local Government Code. NOW THEREFORE, for and in consideration of the mutual agreements, covenants, and conditions hereinafter set forth, the Parties agree as follows: ARTICLE II DEFINITIONS "Accessory Use" means a use which is clearly incidental to the use of the Principal Building or the primary use of the property and which is located on the same premises as the primary use. "Agreement"means this Development Agreement between the City and Owner. "Aqua Texas" means Aqua Utilities, Inc., a Texas corporation, doing business as Aqua Texas. Inc. "Assignee" means a successor to Owner as defined in Sections 9.02(b) and 9.03 of this Agreement. "Board"means the board of directors of the District. "Bond" means (a) any instrument, including a bond, note, certificate of participation, or other instrument evidencing a proportionate interest in payments, due to be paid by the District, or (b) any other type of obligation that (1) is issued or incurred by the District under the District's borrowing power, without regard to whether it is subject to annual appropriation, and (2) is represented by an instrument issued in bearer or registered form or is not represented by an instrument but the transfer of which is registered on books maintained for that purpose by or on behalf of the District. The term shall include obligations issued to refund outstanding Bonds, but shall not include reimbursement agreements entered into between the District and a developer of the Property or bond anticipation notes. "BuildingCom" means the Sign Code and the Fire Code, as defined herein, and all other City ordinances, regulations, policies, manuals and other requirements applicable as of the Filing Date to the construction of Structures within the City's corporate limits. Further, "Building Codes" includes all amendments to the foregoing requirements and all new requirements relating to Structures that are adopted or approved after the Filing Date, except any Brookfield Development Agreement Page 2 9733.8 amendments that are inapplicable to development of the Property pursuant to Chapter 245 of the Local Government Code: "CCN" means a certificate of convenience and necessity or similar permit issued by the TCEQ authorizing a specified entity to be the retail water or sewer provider in a specified area. "CFA Policy" means the City's "Policy for the Installation of Community Facilities" as amended March 20, 2001 (M & G-13181), and as further amended from time to time, except any amendments that are inapplicable to development of the Property pursuant to Chapter 245 of the Local Government Code. "City" means the City of Fort Worth, Texas, a home-rule municipality located in Parker, Tarrant, Denton and Wise Counties, Texas. "Cily Code" means the Code of the City of Fort Worth. "City Council" means the City Council of the City. "City Manager"means the City Manager of the City. "City Review Fees" means: (a) the fees and charges applicable to the City's preliminary and final plat review and approval process according to the fee schedule adopted by the City Council and in effect on the date of submittal of each plat application; and (b) fees and charges applicable to the review and approval of plans relating to the construction of Infrastructure according to the fee schedule adopted by the City Council and in effect on the date of submittal of such plans. "Commercial Tracts" means Tracts 1 and 2 shown on the Development Plan and described in Exhibit C. "Contractor" means a person or entity that constructs, alters or repairs Infrastructure required to serve the Property. "County"means Denton County, Texas. "County Review Fees" means fees and charges applicable to the review and approval of plans relating to the construction of detention and flood control structures and connections to County Roads according to the fee schedule adopted by the Commissioners Court and in effect on the day of submittal of such plans. "County Road" means any road located within the County but not within the District of a municipality. "Creation Resolution" means Resolution No. 3157-01-2005 approved by the City Council on January 4, 2005, consenting to creation of the District. "Declaration of Covenants, Conditions and Restrictions" means the declaration in substantially the same form attached as Exhibit D. Brookfield Development Agreement Page 3 9733 �E�ii MOwF "Development Director" means the Director of the City's Planning and Development Department. "Development Permit" means to apply and be granted a development permit for every buildable lot within the District in accordance with the Regulations for Floodplain Management in Denton County. "Development Plan" means Exhibit E attached to this Agreement identifying various tracts within the Property. "District" means South Denton County Water Control and Improvement District No. 1 and any district resulting from the conversion of such District is in accordance with the Operation Agreement. "District Confirmation Date"means November 15, 2007. "Effective Date" means the date this Agreement is fully executed by the City and Owner. "ETT"means the extraterritorial jurisdiction of a city as defined by the Local Government Code, as amended, with the City's ETJ being an unincorporated area presently extending five miles from the City's corporate limits, excluding other incorporated municipalities and their respective ETJs "Filing Date" means July 23, 2007, the date on which the application for approval of preliminary plat PP-07-024 for the Property (which was approved by the City's Plan Commission on September 26, 2007) was submitted to the City. If PP-07-024 expires, "Filing Date" shall be deemed to be the Effective Date. For purposes of this section, "Project" means the development of the Property in accordance with this Agreement. If Owner fails to make progress (as defined in Section 245.005(c) of the Local Government Code) toward completion of the Project by January 25, 2016, the "Filing Date" shall be deemed to be the date the first permit application relating to the Project is filed with the City after January 25, 2016. "Finance Director" means the Director of the City's Finance Department. "Fire Code" means the following chapters and sections of the International Fire Code, Sections 13-1 and 13-2 of the City Code in effect on the Filing Date, and including all amendments to the foregoing regulations that are adopted after the Filing Date, except any amendments that are inapplicable to development of the Property pursuant to Chapter 245 of the Local Government Code: (a) Chapter 1 (Administration), excluding Sections 104.10 (Fire Investigations), 104.10.1 (Assistance from Other Agencies), and 104.11 (Authority at Fires and Other Emergencies), Section 105.1.2, Item #1 (Operational Permits), and all sections related to Item 41, and Section 105.6 (Required Operational Permits); (b) Chapter 2 (Definitions); Brookfield Development Agreement Page 4 9733.8 (c) Chapter 5 (Fire Service Features), excluding Section 506 (Key Boxes) and Section 509 (Fire Command Center); (d) Chapter 6 (Building Services and Systems); (e) Chapter 7 (Fire Resistance Rated Construction); (f) Chapter 8 (Interior Finish, Decorative Materials and Furnishings), Section 806 only; (g) Chapter 9 (Fire Protection System); (h) Chapter 22 (Service Stations and Repair Garages), excluding Section 2205 (Operational Requirements); (i) Chapter 23 (High-Piled Combustible Storage), excluding Section 2305 (Housekeeping and Maintenance); (j) Chapter 27 (Hazardous Materials — General Provisions), excluding reference to Section 105.6 in Section 2701.5 (Permits), Section 2703.3 (Release of Hazardous Materials) and Section 2703.9.1.1 (Fire Department Liaison); (k) Chapter 33 (Explosives and Fireworks); (1) Chapter 38 (Liquefied Petroleum Gases); (m) Chapter 45 (Referenced Standards); (n) Appendix B (Fire-Flow Requirements for Buildings); and (o) Appendix I (Installation of Fire Service Features, Fire Protection Systems and Tanks). "Gas Drilling Ordinance" means Ordinance No. 18449-02-2009 (M & C G-16439), as amended. "Governing Regulations" means all City and County ordinances, regulations, policies, manuals and other requirements relating to Infrastructure, including the design, location, construction, payment of fees, operation and maintenance thereof, that were applicable within the City's corporate limits and the County's limits on the Filing Date. Further, "Governing Regulations" includes all amendments to the foregoing requirements and all new requirements relating to Infrastructure that are adopted or approved after the Filing Date, except any amendments that are inapplicable to development of the Property pursuant to Chapter 245 of the Local Government Code: "Gross Acre" means each of the 231.579 acres included within the Property, without any exclusions for easements, right-of-way or any other purpose. Brookfield Development Agreement Page 5 9733 8 SON I W "Homeowners Association" means the association established by Owner in accordance with the Declaration of Conditions, Conditions and Restrictions. "Infrastructure" means all water, wastewater, drainage, roadway and other infrastructure improvements installed or constructed to serve the Property, whether located within or outside the Property. When "Infrastructure" is expressly identified as water Infrastructure or wastewater Infrastructure, "Infrastructure" is limited to the specified type. "Infrastructure Inspection Fees" means the fees applicable to the inspection and testing of Infrastructure according to the fee schedule adopted by the City Council and in effect on the date of the inspection. "Infrastructure Inspection Fees — Denton County" means the fees applicable to the inspection and testing of all detention and flood control structures and connections to County Roads according to the fee schedule adopted by the Commissioners Court and in effect on the date of the inspection. "Lender" means a person or entity that receives a collateral assignment, pledge, security interest, lien, or other encumbrance of or in all or any part of the Property or in any Owner's or Assignee's rights under this Agreement to secure repayment of a debt or performance of an obligation by such Owner or Assignee. "Local Government Code"means the Texas Local Government Code, as amended. "Lot Owner" means any "end-buyer of a fully developed and improved lot" within the Property as such phrase is used in Section 212.172(f) of the Local Government Code. A Lot Owner is neither an Owner nor a Party and is bound by this Agreement in accordance with Section 9.04. "Non-Owner Assignee" is defined in Section 9.02(c) of this Agreement. "Notice" means notice as defined in Section 9.01 of this Agreement. "One-Family Residential Tract" means Tract 3 shown on the Development Plan and described in Exhibit C. "Operation Agreement" means the Agreement Concerning Operation of South Denton County Water Control and Improvement District No. 1 (City Secretary Contract No. , M & C C-24720) between the City and the District. "Owner" means Brookfield Acquisitions, L.P., a Texas limited partnership, and its successors and Assignees permitted by this Agreement, but does not include a Lot Owner. "Party" means, individually, the City, Owner, or Owner's successors and Assignees permitted by this Agreement Brookfield Development Agreement Page 6 9733.8 "Premises" means a single tract or platted lot. In addition, multiple adjacent tracts or platted lots under common ownership will be deemed to be a single premises if they meet the following requirements: (a) Lots or tracts are not separated by intervening streets, alleys, utility or railroad rights-of-way or other interruption; (b) Property contains a single primary use; and (c) Property is not used for one- or two-family residential purposes. Tracts or platted lots that are at cross corners or that are connected by narrow strips of land too small to serve as emergency access easements shall not be considered to be adjacent. "Principal Building" means a building in which the primary use of the lot on which the building is located is conducted. "Sign Code"means Chapter 29 of the City Code. "Strategic Partnership Agreement" means the Strategic Partnership Agreement Between the City of Fort Worth, Texas and South Denton County Water Control and Improvement District.. "Structure" means any permanent building or structure that is intended for human occupancy and any other structure (including signs). "Subdivision Regulations" means the City's Subdivision Ordinance No. 17154-09-2006 in effect on the Filing Date, and including all amendments to the foregoing regulations that are adopted after the Filing Date, except any amendments that are inapplicable to development of the Property pursuant to Chapter 245 of the Local Government Code: "Subdivision Regulations — Denton County" means the County's Subdivision Rules and Regulations in effect on the Filing Date, and including all amendments to the foregoing regulations that are adopted after the Filing Date, except any amendments that are inapplicable to development of the Property pursuant to Chapter 245 of the Local Government Code: "TCEQ" means the Texas Commission on Environmental Quality or its successor state agency. "Utility Ajueement" means that certain Brookfield Water and Wastewater Utility Service Agreement between the District, Aqua Texas, Owner and the City (City Secretary No. , M & C C-24720) relating to the provision of water and wastewater service to the Property by Aqua Texas, purchase of treated water and wastewater treatment services by Aqua Texas from the City on a wholesale basis, construction, ownership, operation and maintenance of water and wastewater infrastructure to serve the Property, and the City's option to become the retail water and wastewater provider to the City and to purchase, for a nominal amount, water and wastewater infrastructure to serve the Property. Brookfield Development Agreement Page 7 9?33 8 "Zoning Ordinance" means the sections of Ordinance No. 13896 identified in this Agreement, together with any amendments thereto that are in effect on the Filing Date, codified as Appendix "A"to the City Code. Further, "Zoning Ordinance" includes all amendments to the foregoing regulations that are adopted after the Filing Date, except any amendments .that are inapplicable to development of the Property pursuant to Chapter 245 of the Local Government Code: ARTICLE III DEVELOPMENT REGULATIONS 3.01 Applicable Regulations. The Property shall be developed in accordance with the Subdivision Regulations and all other City ordinances, regulations, policies, manuals and other requirements that would apply to the Property if it were located within the City's corporate limits, including without limitation the Building Codes and Governing Regulations, except as modified by this Agreement. Provisions of the Zoning Ordinance specified below (and no others) shall apply to development of the Property. If this Agreement imposes stricter requirements, this Agreement shall control. Further, Owner shall comply with all applicable federal, state and local regulations applicable to the Property. The Property shall also be developed in accordance with the Subdivision Regulations — Denton County, policies, manuals and other requirements that apply to property in the City's extraterritorial jurisdiction located in the County. In the event of a conflict between the Subdivision Regulations and the Subdivision Regulations — Denton County, the more stringent regulation will apply. Notwithstanding anything herein to the contrary, Owner shall not be required to comply with any County regulation, policy, manual or other requirement unless it is generally applicable in portions of the City's ETJ located in the County. 3.02 Land Use and Development Regulations. Tracts 1, 2 and 3 identified on the Development Plan attached as Exhibit E and described in Exhibit C shall be developed as follows: (a) Tracts 1 and 2 shall be developed in accordance with the permitted uses and development regulations applicable to the "E" Neighborhood Commercial District as reflected in Sections 4.803 and 4.901 of the Zoning Ordinance, plus large retail stores in accordance with Section 5.132A of the zoning ordinance and accessory uses permitted in accordance with Section 3.03. (b) Tract 3 shall be developed in accordance with the uses permitted in the "A-5" One-Family District, as reflected in Section 4.603 of the Zoning Ordinance, plus private or non-profit community center and accessory uses permitted in accordance with Section 3.03. The Property shall include not more than 892 single-family residential lots ranging in size from 5,000 square feet to 6,500 square feet, with an average lot size of 5,800 square feet. Residential density shall not exceed an average of 3.8 units per Gross Acre (herein defined). All single-family residential lots in Tract 3 shall be developed in accordance with Section 4.705 of the Zoning Ordinance applicable to the "A-5" One-Family Residential District. Brookfield Development Agreement Page 8 9733 8 u 3.03 Accessory Uses. No accessory uses shall be permitted in the Property, except for the following accessory uses, which shall be subject to compliance with the designated sections of the Zoning Ordinance: (a) Accessory Buildings on Residential Lots (Section 5.301); (b) Satellite Antenna(Dish) (Section 5.304); (c) Fences (Section 5.305); and (d) Storage or Display in Commercial Districts, Outdoors (Section 5.306). 3.04 Temporary Uses. No temporary uses shall be permitted in the Property, except for the following temporary uses, which shall be subject to compliance with the designated sections of the Zoning Ordinance: (a) Garage or Other Occasional Sales, except that no permits shall be required and no fees shall be charged (Section 5.402); (b) Model Home (Section 5.403); (c) Trailer, Portable Sales, Construction or Storage (Section 5.405); and (d) Temporary Batch Plants,Asphalt or Concrete (Section 5.401). 3.05 Development Standards. The following provisions of Chapter 6 of the Zoning Ordinance shall apply to the Property: (a) Off-Street Parking and Loading(Article 2); (b) Signs (Article 4) 3.06 Gas Drilling and Production; Setbacks from Gas Wells. Seven natural gas wells have been drilled on the Property as of the Effective Date, as shown on Exhibit F (individually and collectively, the "Existing Wells"). The Existing Wells are not subject to the Gas Drilling Ordinance or any other City regulations concerning natural gas drilling. Structures for human occupancy (specifically including without limitation residences) shall be constructed at least 200 feet from the centers of the Existing Wells. In the event that any additional natural gas well (each, an "Additional Well") is drilled on the Property after the Effective Date, structures for human occupancy shall be constructed at least 300 from the center of the Additional Well, in accordance with Ordinance No, 18443-01-2009 (or, if such ordinance is amended after the Effective Date to reduce the setback requirement, such lesser setback); provided, however, structures for human occupancy for which a building permit has been issued by the City prior to commencement of drilling of an Additional Well may be constructed 200 feet from the center of such Additional Well. Brookfield Development Agreement Page 9 9733 9 3.07 Parks and Recreational Amenities. (a) Application of the City's current Neighborhood and Community Park Dedication Policy to PP-07-024 would require dedication of 6.923 acres of neighborhood parks, neighborhood park development fees of$30,000 per acre totaling $207,690 and dedication of 10.384 acres for a community park or a fee based on the documented appraised value of the average acre within the Property in lieu of such dedication. (b) Owner shall not be required to escrow neighborhood park development fees with the City, but shall document expenditures for park improvements including landscaping, walking trails, park tables and benches, and playgrounds and shall provide such documentation to the City's Parks and Community Services Department upon request. (c) Owner shall install the following recreational amenities on the Property: (i) At least two amenity centers consisting of a pool, cabana with restrooms and playground, the first of which shall be constructed prior to completion of construction of the 2001h home on the Property and the second of which will be constructed prior to completion of construction of the 500`h home on the Property; (ii) At least 4,500 linear feet of five-foot walking trail paved with concrete, crushed granite or other all-weather service, connecting residential areas with the amenity centers and elementary school; (iii) At least 4,500 feet of linear parkland with a minimum width of 100 feet; and (iv) A minimum of 45 acres of open space. (d) The recreational amenities provided by Owner in accordance with Subsection (c) shall constitute full satisfaction of all park dedication and fee requirements. Owner shall provide evidence of expenditure of at least $207,690 for the amenities described in Subsection (c)(ii)and(c)(iii). (e) All park and recreational facilities shall remain the property of the District or a Homeowners Association. At no time now or in the future will the City own or maintain parks or recreational amenities in the Development. 3.08 Fences. In addition to fence regulations outlined in Chapter 5, Article 3 of the Zoning Ordinance, the following requirements shall apply: (a) All fences adjacent to S.H. 114 shall be constructed of brick, stone, reinforced concrete products, masonry, split rail or designed tubular steel. A stained wood fence on metal posts with pickets facing the street is permitted, provided that such fence is screened by a berm so that the fence Brookfield Development Agreement Page 10 9733 8 is not visible from the freeway or street. Chain link is expressly prohibited. (b) A four-foot wrought iron fence will be constructed on all lots abutting open space or parkland. 3.09 Landscape Requirements. The Property shall be subject to landscape requirements contained in Chapter 6, Article 3 of the Zoning Ordinance in effect as of the Filing Date. Owner shall submit a landscape plan for medians and parkways to the City Parks and Community Services Department and the Transportation and Public Works Department for approval of plant material, consideration of future maintenance requirements and prevention of traffic hazards. In addition, the following landscaping and amenities, at a minimum, shall be installed on each residential lot prior to initial occupancy: (a) One (1) three-inch caliper tree shall be planted in front of each house with a second three-inch caliper tree to be located per homeowner/builder preference. (b) Shrubs shall be provided in any size increments totaling a minimum of 25 gallons on each residential lot. (c) The front and side yards of each residential lot shall be fully sodded. (d) An irrigation system with freeze and rain sensors shall be installed in the front and side yards. 3.10 Covenants, Conditions and Restrictions; Design Review Guidelines. (a) Prior to the sale of any lots in the Property, Owner shall file the Declaration of Covenants, Conditions and Restrictions and Design Review Guidelines in the Denton County real property records, which shall be consistent with this Agreement. Owner shall provide evidence of filing to the City within thirty (30) days after filing. (b) All builders and property owners in the Property shall adhere to the Declaration of Covenants, Conditions and Restrictions and the Design Review Guidelines. (c) The District's Board of Directors and the Homeowners Association may amend the Declaration of Covenants, Conditions and Restrictions and the Design Review Guidelines, provided that the spirit of such documents is not diminished and a copy of the amendment is provided to the City within thirty (30) days after adoption. 3.11 Entry Feature. Owner shall construct an entry feature at the entrance to the Property. The entry feature shall have a minimum cost of$25,000 and shall consist of an entry sign, landscaping and/or other elements, at Owner's discretion. No element of the entry feature shall exceed a height of 35 feet or extend on or over a right-of-way. Such entry feature shall be Brookfield Development Agreement Page 11 9733,8 constructed prior to commencement of construction of the 50th single-family residence on the Property. 3.12 Traffic Management. Owner will submit a traffic impact analysis to the City in conjunction with submittal of a final plat containing the 101" single-family residential lot on the Property and will coordinate with the City's Transportation and Public Works Department and the Texas Department of Transportation concerning installation of deceleration lanes or traffic signals at Owner's cost. 3.13 Final Plat Approval. Subdivision of the Property or any portion thereof shall require approval of plats by the City's Plan Commission. The conveyance by metes and bounds of any portion of the Property to any person for the purpose of qualifying such person to be a member of the board of directors of the District shall not be considered a subdivision of land requiring a final plat or otherwise requiring the approval of the City; provided, however, no Structure shall be constructed on any portion of the Property conveyed for such purpose unless and until a plat of such portion has been approved by the City's Plan Commission and Denton County Public Works/Engineering. 3.14 Building Permits; Fees; Inspections. (a) Com. All Structures constructed in the Property shall be subject to City building permit, permit fee and inspection requirements as if such Structures were constructed within the City's corporate limits. (b) Counly. The developer will apply for and be granted a Development Permit through the County in accordance with the development permit guidelines and application process. At this time, the property will be assigned a 911 address. 3.15 Temporary Manufactured Housing. A maximum of five temporary HUD- certified manufactured homes shall be permitted on the Property for any purpose necessary for the creation or administration of the District (including, but not limited to, providing qualified voters within the District or qualifying persons to serve on the Board of Directors of the District). Owner will apply for and be granted a Development Permit through the County in accordance with the development permit guidelines and application process for all temporary manufactured housing. At this time, Owner will be issued a 911 address for the property in question. Owner will notify the City of the make, model, HUD number, and 911 address of each home within 15 days after it is occupied. Manufactured homes permitted by this Agreement: (a) are not required to be located on a platted lot; (b) do not have to comply with the Governing Regulations; (c) do not require any permit or other approval by the City; and (d) will be promptly removed when no longer needed for the creation or administration of the District. 3.16 Enforcement of Environmental Regulations. (a) Com. Pursuant to Section 212.172(b)(6) of the Local Government Code, the Parties agree that the City may, but is not obligated or required to, enforce environmental regulations set out in Chapter 12.5 of the City Code, as amended from time to time. Brookfield Development Agreement Page 12 9733 8 (b) County. The Environmental Health Department for Denton County will be responsible for permitting any and all water wells and septic systems within the boundary of the District. All required systems will be installed per the guidelines as outlined by the Environmental Health Department in Denton County. 3.17 Homeowners Association. Owner will establish the Homeowners Association in accordance with the Declaration of Covenants, Conditions, and Restrictions, Membership in the Homeowners Association shall be mandatory for all owners of property within the Property. The Homeowners Association shall perform all duties identified in the Declaration of Covenants, Conditions and Restrictions and shall operate and maintain all parkland and recreational amenities in accordance with this Agreement. 3.18 Enforcement. The City and Owner agree that this Agreement and Section 212.172 of the Local Government Code authorize enforcement by the City of the Building Codes, Governing Regulations and all other City ordinances applicable to the Property pursuant to this Agreement in the same manner duly enacted municipal regulations are enforced within the City's corporate boundaries. 3.19 Fire Code Requirements. The first phase of development of the Property, consisting of a maximum of 190 single-family residences, shall not be subject to the regulations described in subsections (n) and (o) of the Fire Code, as defined herein, except that underground piping for fire hydrants that will comply with subsection (n) shall be installed. . 3.20 Maintenance of Roads. All roads within the Development shall be maintained by the District or one or more Homeowners' Associations, unless the County agrees to maintain such roads and/or drainage improvements by formal action of the Commissioners Court. ARTICLE IV DESIGN, CONSTRUCTION, INSPECTION,DEDICATION, OPERATION AND MAINTENANCE OF DISTRICT FACILITIES 4.01 Infrastructure Standards. All Infrastructure shall be designed and constructed in compliance with: (a) the Governing Regulations; (b) the rules and regulations, if any, of the District; and (c) the rules and regulations of the TCEQ. In the event of any conflict between the Governing Regulations and the rules and regulations of the District, the Governing Regulations shall control unless otherwise agreed in writing by the Development Director. In the event of any conflict between the Utility Agreement and this Agreement, the Utility Agreement shall control. 4.02 Plan Review; Payment of Fees; and Pre-Construction Conference. Construction of Infrastructure shall not commence until (i) final construction plans and specifications have been reviewed and approved by the City and County for compliance with the Governing Regulations; (ii) a pre-construction conference has been held by the Contractor, the District's engineer and designated representatives of the City and County; and (iii) the applicable City and County Review Fees have been paid. At such pre-construction conference, the City shall designate City employees to serve as the project manager and the project inspector (the "City Brookfield Development Agreement Page 13 9733.8 ,. ., Wk � f Inspector"). If the City does not review and approve construction plans and specifications within sixty (60) days after submittal to the City, the District's engineer may review the plans for compliance with the Governing Regulations in lieu of review by the City. 4.03 Community Facilities Agreements. Construction of Infrastructure shall not commence until Owner has executed a Communities Facilities Agreement if required by the CFA Policy. In the event of a conflict between this Agreement and the CFA Policy, this Agreement will prevail. 4.04 Inspections by Third Party Inspectors, Except as otherwise provided in this Article IV, inspectors retained and paid for by the District (or by Owner on behalf of the District) and approved by the City shall perform all inspections and testing of the construction of Infrastructure for compliance with this Article IV. The District or Owner, as applicable, shall submit the names, addresses and phone numbers of such inspectors as part of the submittal of final construction plans. Construction of Infrastructure shall not commence until such inspectors have been approved by the City which approval shall not be unreasonably withheld or delayed. The District shall require all inspectors it retains to provide copies of all inspection and testing reports to the City Inspector within five (5) business days of the date of the inspection. 4.05 Termination of Third Party Inspectors. The City has the right to terminate any third party inspector retained by the District or Owner pursuant to Section 4.05 if the inspector: (i) fails to properly perform inspections and testing to ensure construction in compliance with this Article IV; or (ii) fails to timely provide copies of inspection and testing reports to the City's Inspector. Upon termination of any third party inspector, the City, at its option, may: (i) allow the use of another approved third party inspector, or (ii) perform all necessary inspections and testing. Should the City elect to perform inspections and testing pursuant to this Section 4.05, the City shall perform such inspections and testing for compliance with this Article IV in a timely manner and the District shall pay the City an inspection fee to reimburse the City for its reasonable and necessary costs of performing the Infrastructure inspection. 4.06 Inspections. (a) Com. The City shall have the right to charge an Infrastructure inspection fee for City-conducted inspections and testing only for inspections and testing performed by the City pursuant to Section 4.05. In such case, the City may charge the City's prevailing Infrastructure inspection fee applicable to inspections outside the City's corporate limits. Notwithstanding the foregoing limitation on the City's right to charge an Infrastructure inspection fee, the City has the right, but not the obligation, to inspect and test the Infrastructure at any time and to participate in a final inspection of all Infrastructure. The Contractor shall notify the City Inspector when Infrastructure is ready for final inspection. If the City Inspector concurs that construction of the Infrastructure is substantially complete, the City Inspector will schedule a final inspection by the City within 30 days. Upon such final inspection and correction of any punch list items, written certification by the City Inspector that Infrastructure has Brookfield Development Agreement Page 14 9733 8 I.;;11 been constructed in compliance with City Utility Standards shall constitute compliance with the inspection requirements of this Article IV. (b) Coun . The County shall inspect all flood control structures and connections to County Roads. The Denton County Public Works Department will be responsible for conducting these inspections in accordance with the Denton County Subdivision Rules and Regulations. 4.07 Contractors. Owner shall incorporate the requirements of this Article IV into written construction contracts with all Contractors who are not Owners. All contracts with such non-Owner Contractors shall provide that the City is a third-party beneficiary of, and may enforce the contracts against, the Contractor. 4.08 Access by City and County Employees. Any duly authorized employee of the City or County bearing proper credentials and identification shall be granted access to any property of the District within the Property as the City or County may determine necessary for the purpose of inspection and testing of Infrastructure. 4.09 Wastewater Service. Wastewater service shall be provided to the Property in accordance with the Utility Agreement. 4.10 Water Service. Water service shall be provided to the Property in accordance with the Utility Agreement. 4.11 As-Built Drawings. Owner shall deliver mylar as-built drawings for all Infrastructure to both the City's and County's Engineering Department within thirty (30) days after final inspection by the City. 4.12 Reimbursement Agreements. Owner shall not enter into agreements for reimbursement of costs incurred in connection with the District with a total reimbursement amount exceeding $49,000,000. All agreements entered into by the District for reimbursement of costs incurred in connection with the District shall provide that: (a) the District will not reimburse landowners or developers for costs not evidenced by the issuance of Bonds within fifteen (15) years after the District Confirmation Date; and (b) the landowner or developer waives all claims against the City for reimbursement of obligations not evidenced by the issuance of Bonds within fifteen (15) years after the District Confirmation Date. Any reimbursement agreements entered into by Owner in violation of this section shall be void. ARTICLE V DEVELOPMENT FEES The Property shall be subject to all fees applicable to development within the City's corporate limits, including without limitation Infrastructure Inspection Fees, City Review Fees, building permit and inspection fees, impact fees and tap fees. Failure to expressly identify fees and charges does not constitute a waiver of such fees and charges. Provided, however, in no event shall the Property be subject to road way impact fees or other fees that are not applicable in the City's ETJ pursuant to state or federal law or City ordinances until the Property is annexed, at which time development of the Property will be subject to payment of roadway impact fees Brookfield Development Agreement Page 15 9733 8 IVv,,, c pursuant to generally applicable City requirements. The Property shall also be subject to all County fees including Development Permit (verifies if property is located within a floodplain, allows for addressing and release of electrical permits), inspection of floodplain, flood control structures, and connections to County Roads. ARTICLE VI ANNEXATION 6.01 Immunity from Annexation. Except as otherwise provided in this Article VI, the Property shall be immune from annexation during the term of this Agreement, and the City guarantees immunity from annexation during such time. 6.02 Full Purpose Annexation. The City shall not annex the Property (or a portion of the Property to the extent permitted by law) for full purposes until on or after the earlier to occur of. (a) the dissolution of the District(other than as the result of annexation by the City); or(b) 15 years after the Effective Date. Such authority is in addition to the authority to annex portions of the Property for full purposes pursuant to Section 6.05 6.03 Limited Purpose Annexation. Owner agrees that the City shall have the right to annex those portions of the Development that are intended for commercial development for the sole and limited purpose of imposing sales and use tax pursuant to Section 43.0751 of the Local Government Code. The terms and conditions upon which such limited purpose annexations may occur are contained in the Strategic Partnership Agreement. 6.04 Incorporation. In furtherance of the purposes of this Agreement, Owner, on behalf of itself and its successors and Assignees, covenants and agrees to the extent allowed by law that, except upon written consent of the City Council, which approval may be withheld or conditioned by the City Council at its sole discretion, they will not: (a) seek or support any effort to incorporate the Property, or any part thereof; or (b) sign,join in, associate with, or direct to be signed any petition seeking to incorporate any of the Property or to include any of the Property within the boundaries of any other incorporated entity. 6.05 Annexation of Portions of Property. Owner agrees to cooperate with and assist the City in annexing one or more areas in accordance with Section 43.071 of the Local Government Code each of which may not exceed 525 feet in width at its widest point or such other width limitation subsequently imposed by law, as reasonably necessary for the City to connect areas to the City that are outside the District and that the City intends to annex. The City agrees that such areas shall be located within right-of-way areas or along lot lines, wherever possible. Notwithstanding the zoning designation approved for the annexed area, such area can be developed and used in accordance with this Agreement. 6.06 Consent to Annexation. Owner and all future Owners and all future Lot Owners, as defined herein and consistent with Section 9.04, of all or any portion of the Property irrevocably and unconditionally consent to the full purpose annexation of the Property into the corporate limits of the City in accordance with this Agreement (specifically including without limitation Section 6.07). This Agreement shall serve as the petition of Owner, all future owners Brookfield Development Agreement Page 16 9733 8 and all future lot owners to full purpose annexation of the Property in accordance with this Agreement. 6.07 Procedure for Full Purpose Annexation. Owner and all future Owners and all future Lot Owners, as defined herein and consistent with Section 9.04, of all or any portion of the Property acknowledge that the Property is exempt from municipal annexation plan requirements pursuant to Section 43.052(h)(2) of the Local Government Code and hereby consent to full purpose annexation of the Property in accordance with the procedure applicable to areas exempted from the municipal annexation plan set out in Chapter 43 of the Local Government Code, Subchapter C-1, or, if amended, pursuant to the most comparable annexation procedure. ARTICLE VII TERM OF AGREEMENT This Agreement is a development agreement authorized by Section 212.172 of the Local Government Code. This Agreement will terminate on the earlier to occur of. (a) fifteen (15) years from the Effective Date; or (b) full purpose annexation of the Property pursuant to Section 6.02. The term of this Agreement shall not be affected by the full purpose annexations pursuant to Section 6.05 or by the limited purpose annexation of any commercial property pursuant to the Strategic Partnership Agreement. ARTICLE VIII BREACH,NOTICE AND REMEDIES 8.01 Notification of Breach. If a Party commits a breach of this Agreement, the non- breaching Party shall give Notice to the breaching Party that describes the breach in reasonable detail. 8.02 Cure of Breach. The breaching Party shall commence curing such breach within fourteen (14) calendar days after receipt of such Notice and shall complete the cure within fourteen (14) calendar days from the date of commencement of the cure; however, if the breach is not reasonably susceptible to cure by the breaching Party within such fourteen (14) day period, the non-breaching Party shall not bring any action so long as the breaching Party has commenced to cure the default within such fourteen (14) day period and diligently completes the work within a reasonable time (not to exceed an additional thirty (30) days) without unreasonable cessation of the work. 8.03 Remedies for Breach. If the breaching Party does not substantially cure such breach within the stated period of time, the non-breaching Party may, in its sole discretion, and without prejudice to any other right under this Agreement, law, or equity, seek any relief available at law or in equity, including, but not limited to, an action under the Uniform Declaratory Judgment Act, specific performance, mandamus and injunctive relief, provided, however, that the non-breaching Party shall not be entitled to monetary damages or to terminate this Agreement, and each Party specifically waives any right such Party has or in the future may have to terminate this Agreement. It is understood and agreed that no Party will seek or recover Brookfield Development Agreement Page 17 9733-8 actual, consequential or any other type of monetary damages or awards, including but not limited to attorney's fees, in the event that any Party brings suit under or related to this Agreement. 8.04 Governmental Powers,• Waiver of Immunitv. It is understood that by execution of this Agreement the City does not waive or surrender any of its governmental powers, immunities or rights, except as specifically waived pursuant to this section. The City waives its governmental immunity from suit and liability only as to any action brought by a Party to pursue the remedies available under this Agreement and only to the extent necessary to pursue such remedies. Nothing in this section shall waive any claims, defenses or immunities that the City has with respect to suits against the City by persons or entities not a party to this Agreement. ARTICLE IX ADDITIONAL PROVISIONS 9.01 Notice. Any notices, certifications, approvals, or other communications required to be given by one Party to another under this Agreement (a "Notice") shall be given in writing addressed to the Party to be notified at the address set forth below and shall be deemed given: (i) when the Notice is delivered in person to the person to whose attention the Notice is addressed; (ii) when received if the Notice is deposited in the United States Mail, certified or registered mail, return receipt requested, postage prepaid; (iii) when the Notice is delivered by Federal Express, UPS, or another nationally recognized courier service with evidence of delivery signed by any person at the delivery address; and (iv) five business days after the Notice is sent by FAX (with electronic confirmation by the sending FAX machine) with a confirming copy sent by United States mail within 48 hours after the FAX is sent. If any date or period provided in this Agreement ends on a Saturday, Sunday, or legal holiday, the applicable period for calculating the notice shall be extended to the first business day following the Saturday, Sunday, or legal holiday. For the purpose of giving any Notice, the addresses of the Parties are set forth below. The Parties may change the information set forth below by sending Notice of such changes to the other Party as provided in this section. To the City: City of Fort Worth, Texas 1000 Throckmorton Street Fort Worth, Texas 76102 Attn: City Manager FAX: (817) 392-6134 City of Fort Worth, Texas 1000 Throckmorton Street Fort Worth, Texas 76102 Attn: Development Director FAX: (817) 392-7985 To Owner: Brookfield Development Agreement page 18 9733.8 n s� ,�r K u, ,%, ,;', k� is< � 3 .; ., ..w� ,. Brookfield Acquisitions, L.P. Attn: Ross Calhoun 1221 I.H. 35E, Suite 200 Carrollton, Texas 75006 FAX: (469) 892-7202 9.02 Assignment. (a) By Owner to the District. Owner has the right (from time to time without the consent of the City) to assign to the District those portions of this Agreement concerning the provision of retail water and/or wastewater service to the Property and any Infrastructure related thereto, including any obligation, right, title, or interest of Owner under this Agreement. Each assignment shall be in writing in the form attached hereto as Exhibit G, shall be executed by Owner and the District, and shall obligate the District to be bound by this Agreement to the extent this Agreement applies or relates to the obligations, rights, title, or interests being assigned. Owner shall provide a copy of each assignment to all Parties within fifteen (15) days after execution. From and after such assignment, the City agrees to look solely to the District for the performance of all obligations assigned to the District and agrees that Owner shall be released from subsequently performing the assigned obligations and from any liability that results from the District's failure to perform the assigned obligations; provided, however, if a copy of the assignment is not received by the City within fifteen (15) days after execution, Owner shall not be released until the City receives such assignment. No assignment by Owner shall release Owner from any liability resulting from an act or omission by Owner that occurred prior to the effective date of the assignment unless the City approves the release in writing. Owner shall maintain written records of all assignments made by Owner to the District, including a copy of each executed assignment, and, upon written request from any Party or Assignee, shall provide a copy of such records to the requesting person or entity. The District shall be considered an "Assignee" for purposes of this Agreement. (b) By Owner to Successor Owners. Owner has the right (from time to time without the consent of the City, but upon written Notice to the City) to assign this Agreement, in whole or in part, and including any obligation, right, title, or interest of Owner under this Agreement, to an Assignee that is, or will become an owner of any portion of the Property within fifteen (15) days after the assignment. Each assignment shall be in writing in the form attached hereto as Exhibit G, shall be executed by Owner and the Assignee and shall obligate the Assignee to be bound by this Agreement to the extent this Agreement applies or relates to the obligations, rights, title, or interests being assigned. Owner shall provide a copy of each assignment to all Parties within fifteen (15) days after execution. From and after such assignment, the City agrees to look solely to the Assignee Brookfield Development Agreement Page 19 9733 8 r to Lr,�,.41 .. _ for the performance of all obligations assigned to the Assignee and agrees that Owner shall be released from subsequently performing the assigned obligations and from any liability that results from the Assignee's failure to perform the assigned obligations; provided, however, if a copy of the assignment is not received by the City within fifteen (15) days after execution, Owner shall not be released until the City receives such assignment. No assignment by Owner shall release Owner from any liability that resulted from an act or omission by Owner that occurred prior to the effective date of the assignment unless the City approves the release in writing. Owner shall maintain written records of all assignments made by Owner to Assignees, including a copy of each executed assignment and the Assignee's Notice information as required by this Agreement, and, upon written request from any Party or Assignee, shall provide a copy of such records to the requesting person or entity. (c) By Owner to Non-Owners. Subject to the City's prior written approval, Owner has the right, from time to time, to assign this Agreement, in whole or in part, and including any obligation, right, title, or interest of Owner under this Agreement, to any person or entity that is not an owner of any portion of the Property (a"Non-Owner Assignee"). Each assignment shall be in writing executed by Owner and the Non-Owner Assignee in the form attached hereto as Exhibit G and shall obligate the Non-Owner Assignee to be bound by this Agreement to the extent this Agreement applies or relates to the obligations, rights, title, or interests being assigned. A copy of each assignment shall be provided to all Parties within fifteen (15) days after execution. If the City approves the Non-Owner Assignee in writing (which approval shall not be unreasonably withheld or delayed if the Non- Owner Assignee can demonstrate, to the reasonable satisfaction of the City, that the Non-Owner Assignee has the financial ability to perform the assigned obligations), then the City agrees to look solely to the Non- Owner Assignee for the performance of all obligations assigned to the Non-Owner Assignee and agrees that Owner shall be released from subsequently performing the assigned obligations and from any liability that results from the Non-Owner Assignee's failure to perform the assigned obligations. If the City fails or refuses to approve the Non- Owner Assignee, the assignment shall nevertheless be effective; however, the Owner shall continue to be responsible,jointly and severally, with the Non-Owner Assignee for the performance of all obligations assigned. No assignment by Owner shall release Owner from any liability resulting from an act or omission by Owner that occurred prior to the effective date of the assignment unless the City approves the release in writing. Owner shall maintain written records of all assignments made by Owner to Non- Owner Assignees, including a copy of each executed assignment and the Non-Owner Assignee's Notice information as required by this Agreement, and, upon written request from any Party or Non-Owner Assignee, shall provide a copy of such records to the requesting person or entity. Brookfield Development Agreement Page 20 9733 8 f (d) By the City. The City shall not assign this Agreement, in whole or in part, and including any obligation, right, title, or interest of the City under this Agreement, to any person, entity, or political subdivision without the prior written approval of Owner, which approval shall not be unreasonably withheld or delayed. 9.03 Encumbrance by Owner and Assignees. Owner and Assignees have the right, from time to time, to collaterally assign, pledge, grant a lien or security interest in, or otherwise encumber any of their respective rights, title, or interest under this Agreement for the benefit of their respective Lenders without the consent of, but with prompt written Notice to, the City. The collateral assignment, pledge, grant of lien or security interest, or other encumbrance shall not, however, obligate any Lender to perform any obligations or incur any liability under this Agreement: (a) unless the Lender agrees in writing to perform such obligations or incur such liability; or (b) unless the Lender holds fee simple title to any portion of the Property and elects to or proceeds to develop such portion under this Agreement, in which case the Lender shall be bound by this Agreement and shall not be entitled to the rights and benefits of this Agreement with respect to such portion of the Property until all defaults under this Agreement with respect to the acquired portion have been cured. Provided that the City has received a copy of the applicable collateral assignment, including Notice information for a Lender, then that Lender shall have the right, but not the obligation, to cure any default under this Agreement and shall be given a reasonable time to do so in addition to the cure periods provided by Article VIII of this Agreement; and the City agrees to accept such cure as if offered by the defaulting Party. A Lender is not a Party to this Agreement unless this Agreement is amended, with the consent of the Lender, to add the Lender as a Party or unless the Lender holds fee simple title to any portion of the Property and elects to or proceeds to develop such portion under this Agreement. Notwithstanding the foregoing, however, this Agreement shall continue to bind the Property and shall survive any transfer, conveyance, or assignment occasioned by the exercise of foreclosure or other rights by a Lender, whether judicial or non judicial. Any purchaser from or successor owner through a Lender of any portion of the Property shall be bound by this Agreement and shall not be entitled to the rights and benefits of this Agreement with respect to the acquired portion of the Property until all defaults under this Agreement with respect to the acquired portion of the Property have been cured. 9.04 Recordation and Applicability to Lot Owners. Pursuant to the requirements of Section 212.172(c) of the Local Government Code, Owner shall record this Agreement, and all amendments to this Agreement, in the real property records of Denton County, Texas, and shall provide a file-marked copy of the recorded Agreement to the Development Director within ten (10) days after its execution. This Agreement shall be binding upon the Property, the City, Owner, any Lender that has become an Assignee, and any other Assignee, and their respective successors and assigns. The Parties agree that this Agreement benefits and burdens the Property and touches and concerns the Property. The rights and obligations under this Agreement are intended to be covenants running with the Property. Notwithstanding the foregoing, this Agreement is not binding upon, and shall not constitute any encumbrance to title as to any lot owner except for land use and development regulations that apply to the lot in question. Brookfield Development Agreement Page 21 9733.8 n H .. '�', t a�. . �{➢'fir. �� � 9.05 No Waiver. Any failure by a Party to insist upon strict performance by the other Party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Party shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by writing signed by the Party waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by any Party hereto of any term or condition of this Agreement shall be deemed or construed to be a waiver of any other term or condition or subsequent waiver of the same term or condition. 9.06 Reservation of Rights and Claims. Except as expressly provided in this Agreement, Owner does not, by entering into this Agreement, waive any rights arising under Chapter 245, as amended, or under Chapter 43 of the Texas Local Government Code, as amended, or under any other provision of law. 9.07 Governing Law and Venue. This Agreement must be construed and enforced in accordance with the laws of the State of Texas, as they apply to contracts performed within the State of Texas and without regard to any choice of law rules or principles to the contrary. The Parties acknowledge that this Agreement is performable in Denton County, Texas, and hereby submit to the jurisdiction of the courts of Denton County, Texas, and hereby agree that any such court shall be a proper forum for the determination of any dispute arising hereunder. 9.08 Performance Requirements; Force Majeure. Time is of the essence in the performance by the Parties of their respective obligations under this Agreement. Whenever performance is required, the Party must use good faith and due diligence to perform and take all necessary measures to perform, but if completion of performance is delayed by reason of acts of God, civil commotion, terrorism, strikes, picketing, casualty, or other similar matter beyond the reasonable control of the Party, then the time for performance will be appropriately extended by the amount of delay so caused, and the Party so delayed shall resume full performance at the earliest possible time. 9.09 Authority to Execute. The City warrants that this Agreement has been approved by the City Council in accordance with the City Charter, City ordinances, and all applicable public meeting and public notice requirements (including, but not limited to, notices required by the Texas Open Meetings Act) and that the individual executing this Agreement on behalf of the City has been authorized to do so. 9.10 Severability. The provisions of this Agreement are severable. If any word, phrase, clause, sentence, paragraph, section, or other provision of this Agreement, or the application thereof to any person or circumstance, shall ever be held or determined to be invalid, illegal, or unenforceable for any reason, and the extent of such invalidity or unenforceability does not cause substantial deviation from the underlying intent of the Parties as expressed in this Agreement, then such provision shall be deemed severed from this Agreement with respect to such person, entity or circumstance, without invalidating the remainder of this Agreement or the application of such provision to other persons, entities or circumstances, and a new provision shall be deemed substituted in lieu of the severed provision which new provision shall, to the extent possible, accomplish the intent of the Parties evidenced by the severed provision. Without limiting the generality of the foregoing, (i) if it is determined that, as of the Effective Date, Brookfield Development Agreement Page 22 9733.8 ..�= 44 Owner does not own any portion of the Property, this Agreement shall remain in full force and effect with respect to all of the Property that Owner does then own, and (ii) if it is determined, as of the Effective Date, that any portion of the Property is not within the City's ETJ, this Agreement shall remain in full force and effect with respect to all of the Property that is then within the City's ETJ. If at any time after the Effective Date it is determined that any portion of the Property is no longer within the City's ETJ, this Agreement shall remain in full force and effect with respect to all of the Property that remains within the City's ETJ. 9.11 Changes in State or Federal Laws. If any state or federal law changes so as to make it impossible for a Party to perform its obligations under this Agreement, the Parties will cooperate to amend this Agreement in such a manner that is most consistent with the original intent of this Agreement as legally possible. 9.12 Additional Documents and Acts. The Parties agree that at any time after execution of this Agreement, they will, upon request of the other Party, execute and/or exchange any other documents necessary to effectuate the terms of this Agreement and perform any further acts or things as the other Party may reasonably request to effectuate the terms of this Agreement. 9.13 Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 9.14 Amendment. This Agreement may be amended only with the written consent of the Parties and with the approval of the City Council, except as expressly permitted herein. 9.15 Interpretation. The Parties acknowledge that each Party and, if it so chooses, its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. As used in this Agreement, the term "including" means "including without limitation" and the term "days" means calendar days, not business days. Wherever required by the context, the singular shall include the plural, and the plural shall include the singular. Each defined term herein may be used in its singular or plural form whether or not so defined. 9.16 No Third-Party Beneficiaries. This Agreement is solely for the benefit of the City and Owner, and neither the City nor Owner intends by any provision of this Agreement to create any rights in any third-party beneficiaries or to confer any benefit or enforceable rights under this Agreement or otherwise upon anyone other than the City and Owner. Notwithstanding the foregoing, the City and Owner intend that the District shall be a third-party beneficiary of this Agreement. 9.17 Authority to Execute. The City warrants that this Agreement has been approved by the City Council in accordance with all applicable public meeting and public notice requirements (including, but not limited to, notices required by the Texas Open Meetings Act) and that the individual executing this Agreement on behalf of the City has been authorized to do so. Owner warrants that the execution of this Agreement is duly authorized in conformity with the articles of incorporation, bylaws, partnership agreement or other applicable organizational Brookfield Development Agreement Page 23 9733 8 documents of Owner and that the individual executing this Agreement on behalf of Owner has been authorized to do so. Each Assignee or Lender who becomes a Party to this Agreement represents and warrants that this Agreement has been approved by appropriate action of such Assignee or Lender and that the individual executing this Agreement on behalf of such Assignee or Lender has been authorized to do so. 9.18 Exhibits. All exhibits attached to this Agreement are incorporated as part of this Agreement for the purposes set forth herein, as follows: EXHIBITS Exhibit A Map of the Property Exhibit B Legal Description of the Property Exhibit C Legal Descriptions of Tracts 1, 2 and 3 Shown on Development Plan Exhibit D Declaration of Covenants, Conditions and Restrictions Exhibit E Development Plan Exhibit F Gas Wells Exhibit G Assignment and Assumption Agreement 9.19 Takings Impact Assessment. Owner expressly and unconditionally waives and releases the City from any obligation to perform a takings impact assessment under the Texas Private Real Property Rights Act, Texas Government Code Chapter 2007, as it may apply to this Agreement or the Property. 9.20 Conspicuous Provisions, The Parties acknowledge that the provisions of this Agreement set out in bold, CAPITALS (or any combination thereof) satisfy the requirements for the express negligence rule and/or are conspicuous. 9.21 Counterpart Originals. This Agreement may be executed in counterparts, each of which shall be deemed to be an original. Brookfield Development Agreement Page 24 9733.8 }._ TT ='t ATTEST: CITY OF FORT WORTH f:y Marty Hendrix, ity Se, °0.�1�� kr-nun , Assistant City Manager � ��d Date: TA Lt�° °Y 0 APPROVED AS TO FOiVA0P1 �d LEGALITY: '��n 00 000 Assistant 8ity Attorney Gontrac i- Au+;nor i aeti.ox --4 STATE OF TEXAS § t�at:r COUNTY OF TARRANT § This instrument was acknowledged before me, on the ^day of , 2011, by fe-rAd&16 051 , Assistant City Manager of the City of Fort Worth, exas on behalf of said city. j4ot­ar--Public, St to of Texas Printed Name: Z!V 0 ?;CL, J/ ew; Ls My Commission Expires: [SEAL] EVONIA DANIELS MY COMMISSION EXPIRES .........' July 10,2013 OFFICIAL RECORD CITY SECRETARY FT, (NORTH,TX Brookfield Development Agreement Page 25 9733 8 Fa ,a ._ z t BROOKFIELD ACQUISITIONS,L.P., a Texas limited partnership By: MMM Ventures, LLC, a Texas limited liability company Its: General Partner By: 2M Ventures, LLC, a Delaware limited liability company Its: Manager By: Mehrdad Moayedi Title: Governing Person STATE OF TEXAS § COUNTY OFs=� § This instrument was acknowledged before me, on the 1— day of 2011, by Mehrdad Moayedi, Governing Person of 2M Ventures, LLC, a D64awar6 limited liability company, Manager of MMM Ventures, LLC, a Texas limited liability company, in its capacity as General Partner of Brookfield Acquisitions, L.P., a Texas limited partnership, on behalf of said limited partnership. Notary Public, State of Texas Printed Name: My Commission Expires: OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Brookfield Development Agreement Page 26 9733.8 777.av c.Fe?y;P. ..amu..;.)%sem w ,' .ac+ •'box. . NOW W } x..' ' a A6� dhRs ,usrh�1, , " .,... Exhibit A Map of the Property O 17- J� i "S i S. , Qu F4TY LINE I), -- �' i I �. n C_-j J. 41 F i + c o YI �i Brookfield Exhibit A to Development Agreement Page 1 9733.8 II er kk Exhibit B Legal Description of the Property BEING a tract of land located in the WILLIAM C. HALLMARK SURVEY, ABSTRACT NO. 518, Denton County, Texas and being all of a tract of land described as Tract 1 and 2 in Deed to Brookfield Acquisitions, L.P., recorded in Document Number 2007-45036, Deed Records, Denton County, Texas and being more particularly described as follows: BEGINNING at a concrete monument with a 1/2 inch iron rod found in the North right-of-way line of State Highway No. 114, a 100 foot right-of-way, at the Southeast corner of said Tract 2; THENCE North 89 degrees 31 minutes 05 seconds West, along said North right-of-way line, a distance of 1,026.70 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set at the Southeast corner of a tract of land described in Deed to Willow Bend 114, recorded in Document Number 2005-8893, Deed Records, Denton County, Texas; THENCE North 00 degrees 19 minutes 46 seconds East, a distance of 2,518.47 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "5439" found at the Northeast corner of Lot 13, Block A of WILLOW SPRINGS SUBDIVISION, an Addition to Denton County, Texas according to the Plat thereof recorded in Cabinet D, Page 317, Plat Records, Denton County, Texas; THENCE South 89 degrees 59 minutes 13 seconds West, along the North line of said Lot 13, a distance of 13.26 feet to a 1 inch iron rod found at the Southeast corner of a tract of land described in Deed to Robert B. Logan, recorded in Volume 515, Page 92, Deed Records, Denton County, Texas; THENCE North 00 degrees 14 minutes 58 seconds East, a distance of 1,563.70 feet to a 3/8 inch iron rod found at the Northwest corner of said Tract 1; THENCE South 89 degrees 28 minutes 37 seconds East, a distance of 3,160.54 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "EC&D" found at the Northeast corner of said Tract 1; THENCE South 00 degrees 15 minutes 25 seconds East, a distance of 2,753.84 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "EC&D" found at the most Easterly Southeast corner of said Tract 1; THENCE North 89 degrees 36 minutes 34 seconds West, a distance of 2,150.81 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "EC&D" found at an inner ell corner of said Tract 1; THENCE South 00 degrees 08 minutes 43 seconds West, a distance of 1,322,76 feet to the POINT OF BEGINNING and containing 231.579 acres of land, more or less. Brookfield Exhibit B to Development Agreement Page 1 9733 8 tFMW Exhibit C Legal Descriptions of Tracts 1,2 and 3 Shown on Development Plan TRACT 1 5.486 ACRES BEING a tract of land located in the WILLIAM C. HALLMARK SURVEY, ABSTRACT NO. 518, Denton County, Texas and being part of a tract of land described as Tract 2 in Deed to Brookfield Acquisitions, L.P., recorded in Document Number 2007-45036, Deed Records, Denton County, Texas and being more particularly described as follows: BEGINNING at a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set in the North right-of-way line of State Highway No. 114, a 100 foot right-of-way, at the Southwest corner of said Tract 2, said point being North 89 degrees 31 minutes 05 seconds West, a distance of 1,026.70 feet from a concrete monument found at the Southeast corner of said Tract 2 THENCE North 00 degrees 19 minutes 46 seconds East, along the West line of said Tract 2, a distance of 686.80 feet to a point for corner; THENCE South 57 degrees 04 minutes 50 seconds East, leaving said West line, a distance of 417.13 feet to a point for corner; THENCE North 70 degrees 37 minutes 46 seconds East, a distance of 56.90 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set for corner; THENCE South 10 degrees 30 minutes 54 seconds East, a distance of 97.38 feet to a 1/2 inch iron rod with a yellow plastic cap stamped"DAA" set for corner; THENCE South 79 degrees 29 minutes 06 seconds West, a distance of 10.00 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set for corner; THENCE South 10 degrees 30 minutes 54 seconds East, a distance of 84.56 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set for corner at the beginning of a curve to the right having a central angle of 10 degrees 59 minutes 49 seconds, a radius of 420.00 feet and a chord bearing and distance of South 05 degrees 00 minutes 59 seconds East, 80.49 feet; THENCE Southerly, along said curve to the right, an arc distance of 80.61 feet to a 1/2 inch iron rod with a yellow plastic cap stamped"DAA" set for corner; THENCE South 00 degrees 28 minutes 55 seconds West, a distance of 211,75 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set for corner; THENCE South 45 degrees 28 minutes 55 seconds West, a distance of 14.14 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set for corner in the North right-of-way line of said State Highway No. 114 Brookfield Exhibit C to Development Agreement Page 1 9733 8 .%zt NoW. X ,are. THENCE North 89 degrees 31 minutes 05 seconds West, along said North right-of-way line, a distance of 426.33 feet to the POINT OF BEGINNING and containing 5.486 acres of land, more or less. TRACT 2 5.825 ACRES BEING a tract of land located in the WILLIAM C. HALLMARK SURVEY, ABSTRACT N0. 518, Denton County, Texas and being part of a tract of land described as Tract 1 and 2 in Deed to Brookfield Acquisitions, L.P., recorded in Document Number 2007-45036, Deed Records, Denton County, Texas and being more particularly described as follows: BEGINNING at a concrete monument found in the North right-of-way line of State Highway No. 114, a 100 foot right-of-way, at the Southeast comer of said Tract 2, said point being South 89 degrees 31 minutes 05 seconds East, a distance of 1,026.70 feet from a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set at the Southwest corner of said Tract 2; THENCE North 89 degrees 31 minutes 05 seconds West, along said North right-of-way line, a distance of 500.37 feet to a 60D set for corner; THENCE North 44 degrees 31 minutes 05 seconds West, leaving said North right-of-way line, a distance of 14.14 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set for comer; THENCE North 00 degrees 28 minutes 55 seconds East, a distance of 211.75 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set for corner at the beginning of a curve to the left having a central angle of 10 degrees 59 minutes 49 seconds, a radius of 500.00 feet and a chord bearing and distance of North 05 degrees 00 minutes 59 seconds West, 95.82 feet; THENCE Northerly, along said curve to the left, an arc distance of 95.97 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set for corner; THENCE North 10 degrees 30 minutes 54 seconds West, a distance of 84.56 feet to a point for comer; THENCE South 79 degrees 29 minutes 06 seconds West, a distance of 10.00 feet to a point for comer; THENCE North 10 degrees 30 minutes 54 seconds West, a distance of 106.72 feet to a 1/2 inch iron rod with a yellow plastic cap stamped"DAA" set for corner; THENCE North 70 degrees 37 minutes 46 seconds East, a distance of 116.17 feet to a 1/2 inch iron rod with a yellow plastic cap stamped"DAA" set for corner; Brookfield Exhibit C to Development Agreement Page 2 9733.8 �. s � ry. rss; Rksmeiva l3,✓",`:�` �Iwa - THENCE North 88 degrees 03 minutes 48 seconds East, a distance of 89.87 feet to a 1/2 inch iron rod with a yellow plastic cap stain ed " P DAA"set for corner; THENCE South 65 degrees 01 minutes 18 seconds East, a dis iron rod with a yellow plastic cap stain ed " tance of 400.62 feet to a 1/2 inch P DAA"set for corner in the East line of said Tract 1; THENCE South 00 degrees 08 minutes 43 seconds West as Tract 2 at a distance of 6.97 feet and continuing for a total dist OF BEGINNING and containing 5.825 acres of land passing the Northeast corner of said distance of 380.14 feet to the POINT more or less. TRACT 3 220.268 ACRES BEING a tract of land located in the WILLIAM C. HALLMARK 518, Denton County, Texas and beinga SURVEY Part of those tracts of land described as Ta cT and Tract in Deed to Brookfield Acquisitions, L.P., recorded in Document RACT Records, Denton County, Texas and being more ent Number 2007-45036, Deed COMMENCING at a concrete mon Particularly described as follows; Highway No. 114, a 100 foot right-of-way, found in the North ri g y, at the Southeast corner of saidTract2y line of State THENCE North 89 degrees 31 minutes OS seconds West, along distance of 500.37 feet to a 1/2 inch iron rod with a yellow plastic the POINT OF BEGINNING of the tract of land herein said North right-of--way line, a P cap stamped "DAA,, found at THENCE North 89 degrees 31 minutes OS s described: line, a distance of 100.00 feet to a 1/2 inch iron rod with a ell seconds, continuing along said North right-of--way found for corner; yellow plastic ca « p stamped DAA„ THENCE North 45 degrees 28 minutes 55 seconds, East, leaving distance of 14.14 feet to a 1/2 inch iron rod with a yellow lastic corner; said North right-of--way line, a P cap stamped "DAA,, found for THENCE North 00 degrees 28 minutes 55 seconds East, a distance iron rod with a yellow plastic cap stamped D of 211.75 feet to a 1/2 inch to the left, having P AA" found for corner at the beginning of a curve g a central angle of 10 degrees 59 minutes 49 seconds, a radius of 420. and a chord bearing and distance of North OS degrees 00 minutes 59 seconds West, 80.49 eetfeet THENCE Northerly, along said curve to the left, an arc dist rod with a yellow plastic cap stamped "D Of 80.61 feet to a 1/2 inch iron P AA"foance und for corner; THENCE North 10 degrees 30 minutes 54 seconds East, a distance of 84.56 feet to a 1/2 inch iron rod with a yellow plastic cap stain ed "D " P AA found for corner; Brookfield Exhibit C to Development Agreement Page 3 9733.8 r-, •r ani, n, r`s; i�� THENCE North 79 degrees 29 minutes 06 seconds East, a distance of iron rod with a yellow plastic cap stamped "DAA"found for corner 10.00 feet to a 1/2 inch THENCE North 10 degrees 30 minutes 54 seconds West, a distance of 97.38 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA"found for corner; THENCE South 70 degrees 37 minutes 46 seconds West,, a distance of 56.90 feet to a point for THENCE North 57 degrees 04 minutes 50 seconds West, a distance of 4 corner in the West line of said Tract 2 and the East line of WILLOW SPRINGS an Addition to Denton County, 17.13 feet to a point for oTexas according to the Plat thereof recorded in Cabinet DPage SUBDIVISION, 317, Plat Records, Denton County, Texas; THENCE North 00 degrees 19 minutes 46 seconds East, a distance of 1,831.67 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "5439"found at the Northeast A of said Addition; corner of Lot 13, Block THENCE South 89 degrees 59 minutes 13 seconds West, along the North distance of 13.26 feet to a 1 inch iron rod found at the Southeast co described in Deed to Robert B. Logan, line of said Lot 13, a County, gan, recorded in Volume 515, Page 92, Deed Records, Denton Texas THENCE North 00 degrees 14 minutes 58 seconds East, a distance of 1,563.70 feet to a 3/8 inch iron rod found at the Northwest corner of said Tract 1; THENCE South 89 degrees 28 minutes 37 seconds East, a distance of 3 160 iron rod with a yellow plastic cap stamped "EC&D" found at the Northeast � 54 feet to a 1/2 inch st corner of said Tract THENCE South 00 degrees 15 minutes 25 seconds East, a distance of 2,753.84 iron rod with a yellow plastic cap stamped "EC&D" found at the most Easterly of said Tract 1; 84 feet to a 1/2 inch Southeast corner THENCE North 89 degrees 36 minutes 34 seconds West, a distance of 2 inch iron rod with a yellow plastic cap stamped "EC&D" found at an i Tract 1; ,150.81 feet to a 1/2 neer ell corner of said THENCE South 00 degrees 08 minutes 43 seconds West, a distance of 1 inch iron rod with a yellow plastic cap stamped °`DAA"found for corner ,322.76 feet to a 1/2 THENCE North 65 degrees 01 minutes 18 seconds West, a distance of 400.62 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA"found for corner; Brookfield Exhibit C to Development Agreement Page 4 9733.8 e THENCE South 88 degrees 03 minutes 48 seconds West, a distance of 89.87 feet to a 1/2 iron rod with a yellow plastic cap stamped "DAA" found for corner; inch THENCE South 70 degrees 37 minutes 46 seconds West, a distance of 116.17 feet to a 1/2 iron rod with a yellow plastic cap stamped "DAA"found for corner; Inch THENCE South 10 degrees 30 minutes 54 seconds East, a distance of 106.72 feet to a point corner; p t for THENCE North 79 degrees 29 minutes 06 seconds East, a distance of 10.00 feet to a o' corner; pmt for THENCE South 10 degrees 30 minutes 54 seconds East, a distance of 84.56 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" found for corner at the beginning,of a curve to the right, having a central angle of 10 degrees 59 minutes 49 seconds, a radius of00.00 feet and a chord bearing and distance of South 05 degrees 00 minutes 59 seconds West, 95.82 feet; THENCE Southerly, along said curve to the right, an arc distance of 95.97 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA"found for corner; THENCE South 00 degrees 28 minutes 55 seconds West, a distance of 211.75 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA"found for corner; THENCE South 44 degrees 31 minutes 05 seconds East, a distance of 14.14 feet to the POINT OF BEGINNING and containing 220.268 acres of land, more or less. Brookfield Exhibit C to Development Agreement Page 5 9733.8 !��Mrz a 51M19m Exhibit D Declaration of Covenants, Conditions and Restrictions (See Attached) Brookfield Exhibit D to Development Agreement Page 1 9733.8 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR BROOKFIELD HOA DENTON COUNTY, TEXAS , 20 10168.2 TABLE OF CONTENTS ARTICLE 1 ESTABLISHMENT.................................................... Section 1.1 Establishment of Covenants, Conditions and Restrictions ..............1 Section 1.2 Definitions.............................................. ARTICLE 2 USE PROVISIONS.......... Section 2.1 Permitted Uses.............. Section 2.2 Prohibited Uses and Activities.................... ARTICLE 3 CONSTRUCTION PROVISIONS ............................................. Section 3.1 Plan Approval Required............................. Section 3.2 Establishment of ACC ............................. Section 3.3 Approval Process ...................... Section 3.4 Specific Construction Provisions ............................... Section 3.5 Construction Materials.......................... Section 3,6 Height Restrictions............ Section 3.7 Roof Restrictions ...........................................................................18 Section 3.8 Construction Period and Process...................... Section 3.9 Declarant Rights....................... ARTICLE 4 MAINTENANCE PROVISIONS ........................ Section 4.1 Owner's Obligation to Maintain....................... Section 4.2 Damaged Improvements ............ Section 4.3 Declarant/Association Right to Perform.........................................20 ARTICLE 5 OWNER'S ASSOCIATION............................................................21 Section 5.1 Establishment................................... . Section 5.2 Voting Power............................ Section 5.3 Officers................................................ i ioibs z ,:`.e. �k' V . 5 u..M;,� liy: t"i waw:::. z=, "' . $+: •% Section5.4 Dissolution.................. ..................................................................23 ARTICLE 6 ASSESSMENTS............................................................................24 Section 6.1 Power to Establish Assessments...................................................24 Section 6.2 Commencement of Assessments..................................................24 Section 6.3 Regular Annual Maintenance Assessments........... ......................24 Section 6.4 Special Assessments ....................................................................25 Section 6.5 Liability for and Enforcement of Assessments...............................25 ARTICLE 7 COMMON AREA...........................................................................28 Section 7.1 Right to Use Common Areas.........................................................28 Section 7.2 Specific Facilities...........................................................................28 Section 7.3 Maintenance of Common Areas....................................................28 Section 7.4 Risk of Loss - Use of Common Areas ...........................................28 Section 7.5 Conveyance of Common Area to Association ...............................28 ARTICLE 8 SPECIFIC DECLARANT RIGHTS.................................................28 Section 8.1 Rights to Annex.............................................................................28 Section 8.2 No Duty to Annex ..........................................................................29 Section 8.3 Effect of Annexation on Class B Membership ...............................29 Section 8.4 Specific Declarant Rights to Amend Declaration...........................29 Section 8.5 Easement/Access Right ................................................................29 Section 8.6 Assignment of Declarant Rights ....................................................29 Section 8.7 Declarant's Right to Install Other Improvements in Setback and OtherAreas ...................................................................................29 Section 8.8 Replatting or Modification of Plat...................................................30 Section 8.9 Limitation of Declarant Liability......................................................30 Section 8.10 Termination of Declarant's Responsibilities...................................30 ii 10168 2 0 ORION ARTICLE 9 MISCELLANEOUS PROVISIONS.................................................31 Section 9.1 Term and Renewal ........................................................................31 Section 9.2 Enforcement........................ ..31 Section 9.3 General Easement for Encroachments, Access, Maintenance and Utilities...........................................................................................31 Section 9.4 Amendment of Declaration............................................................31 Section 9.5 City Provisions...............................................................................32 Section 9.6 FHA/VA Approval ..........................................................................32 Section9.7 Notices...........................................................................................32 Section 9.8 Indemnification .................................................. .32 Section9.9 Severability....................................................................................32 Section 9.10 Acceptance by Owners of Rights and Obligations.........................32 Section 9.11 Disclosure by Declarant.................................................................33 Section 9.12 Arbitration of Disputes Involving Declarant....................................33 10168.2 'F DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR BROOKFIELD STATE OF TEXAS § DENTON COUNTY § KNOW BY ALL THESE PRESENT: § This Declaration (herein so called) is executed effective as of 20_ by BROOKFIELD ACQUISITIONS, L.P. RECITALS: A. Declarant is the owner of the real property in Denton County, Texas described on Exhibit A attached hereto, which Declarant is developing as an addition to be known as BROOKFIELD (the "Prope "). B. Declarant desires to establish a planned residential community of single family detached homes on the Property and, accordingly, has executed this Declaration to impose the covenants, conditions, restrictions, and easements herein described upon the Property. ARTICLE 1 ESTABLISHMENT Section 1.1 Establishment of Covenants Conditions and Restrictions. Declarant hereby imposes upon the Property the covenants, conditions, restrictions, liens and easements set forth in this Declaration (the "Covenants") for the purposes of establishing a general scheme for development of the Property, enhancing the value of the Lots and Residences (defined below), and establishing restrictions for use for the benefit of Declarant and the Owners (defined below). Declarant does not guarantee that all of these purposes will be accomplished through the creation and imposition of the Covenants. The Covenants touch and concern title to the Property, run with the land and shall be binding upon all persons hereafter acquiring any portion of the Property. Section 1.2 Definitions. The terms set forth below shall have indicated meanings when used in this Declaration; other terms are defined elsewhere herein and shall have the meaning given to them in this Declaration. Brookfield Page 1 10168.2 11 a _ ; "ACC" means the architectural control committee established pursuant to this Declaration. "Assessments" means the Maintenance Assessments and Special Assessments provided for in Article 6. "Association"means the BROOKFIELD HOA, Inc., a Texas non-profit corporation, or such other homeowners' association name selected and available at the time of formation and established as provided in this Declaration. "Board" means the Board of Directors of the Association. "Builder" means any homebuilder constructing the initial Residence upon a Lot in the normal course of conducting its business for profit. "City" means the City of Fort Worth. "Common Area"means those portions of the Property as described in or on the Plat that do not constitute Lots, Streets, roads, or alleys. Accordingly, the Common Area means those portions of the Property designated as such on the Plat, including any recreational centers or similar areas. The Common Area also includes: (i) any areas within the Property owned by the appropriate government, the Association, or any other governmental entity, but which are required to be maintained by the Association; (ii) any landscape, wall maintenance, pedestrian access or maintenance easements reflected on the Plat, required by the appropriate government or recorded by separate instrument; and (iii) those areas, if any, which are owned by an Owner, but on which are located monuments, signs, fences, landscaping, berms, sidewalks, irrigation systems or other improvements that may be maintained by the appropriate government or the Association. The Common Area shall also include all improvements on or to any portion of any of the areas described in the preceding sentence. Declarant shall at all times have and retain the right, but without obligation whatsoever, to effect minor redesigns or reconfigurations of the Common Area and to execute any open space declarations applicable to the Common Area which may be permitted in order to reduce property taxes, and to take whatever steps as may be appropriate to lawfully avoid or minimize the imposition of federal and state ad valorem and/or income taxes. "Declarant" means BROOKFIELD ACQUISITIONS, L.P. including any affiliate of any partner thereof and any other person or entity who is designated as a successor Declarant in writing pursuant to the provisions of this Declaration. "Declaration" means the Declaration of Covenants, Conditions, And Restrictions ("CC&R's") governing The BROOKFIELD Community or any Sub-Association as, recorded by the Declarant. "Design Guidelines" means those particular standards, restrictions, guidelines, recommendations and specifications applicable to all aspects of construction, placement, location, alteration, maintenance and design of any improvements within the Property, and Brookfield Page 2 10168 2 all amendments, modifications, supplements and interpretations thereof, which may be established pursuant to section 3.3(d). "Established Drainage Pattern" means the drainage pattern as engineered and constructed by a Builder prior to (or in some cases, immediately following) conveyance of title from a Builder to the individual homeowner. "HUD" means the U.S. Department of Housing and Urban Development. "Improvements"means any exterior changes, alterations or additions to a Lot from its condition at the time of purchase. "Lot"means any of the individual platted building lots reflected, or to be reflected, on the Plat that are to be used for residential purposes or other permitted purposes as herein described. "Managing Agent" means any Person who has been engaged and designated by the Board to manage the daily affairs and operations of the Association. "Owner" means any Person owning fee title to any Lot, but excluding any mortgagee or beneficiary under a deed of trust until such time as it acquires legal title to a Lot. "Person"means any individual, corporation, limited liability company, partnership or other entity of any kind or types whatsoever. "Phase" means a particular phase developed upon the Property. Declarant may impose, as provided in Section 3.3(d), additional or different restrictions on each Phase. If Declarant annexes additional property into the Property as provided in Section 8.1, it may designate the area annexed as a particular Phase, and may impose, as provided in Section 3.3(d), additional or different restrictions on such area. "Plat" means (i) initially, the Preliminary Plat, and thereafter the Final Plat, for any Phase of the Property submitted to and approved by the appropriate governmental entity; (ii) after the recording thereof, the final Plat for any Phase of the Property as recorded in the Records of Denton County, Texas; and, (iii) any replat of, or amendment to, the foregoing made by Declarant in accordance with this Declaration. The term "Plat" shall also include the final recorded plat of any additional property annexed into the Property pursuant to Section 8.1. "Property Oes)" means any asset, real or personal. "Protective Covenants" means the Declaration and any Supplementary Declarations affecting BROOKFIELD as recorded by the Declarant. "Residence" means a single family detached residence constructed upon a Lot in conformance with this Declaration. Brookfield Page 3 10168.2 i "Reviewer" means architectural control and design for BROOKFIELD handled by either (i) the Declarant or (ii) the ACC. "Screening Wall" means any wood or masonry fence or wall installed by the Declarant adjacent to major roads and/or thoroughfares. "Street" means any paved road, but not alleys,that is typically within a fifty foot(50') or sixty foot (60') right-of-way and serves the front of a Lot upon which a Residence is constructed. "Structure" means any structure (other than a Residence), fence, driveway, sidewalk, planting, landscaping, irrigation system, wall, tennis court, swimming pool, outbuilding, playground equipment, or other improvement of any kind or type. "Supplementary Declaration" means any Supplementary Declaration of Covenants, Conditions and Restrictions affecting a particular Brookfield HOA filing as recorded by the Declarant. NX means the U.S. Department of Veterans Affairs. "Vehicle" means any vehicle of any kind or type whatsoever, including any automobile, truck, motorcycle, boat, mobile home, motor home, boat trailer, or other kind of trailer. ARTICLE 2 USE PROVISIONS Section 2.1 Permitted Uses. (a) Lots Limited to Residential Use. Except as otherwise provided in this Declaration, Lots in Tract 3 identified in Exhibit A shall be used only for single family, private residential purposes and activities reasonably related thereto. Additional uses for purposes such as schools, churches, or similar activities may be permitted within the Property, provided such use has received the prior written approval from the Board of the Association or the Declarant (but only so long as the Class B membership status exists). (b) Common Area Uses. The Common Area designated as the Open Space or Park Areas on the Plat shall be used only for recreational and other similar purposes as approved by the Declarant or the Association. The Common Area consisting of landscaping, maintenance, wall maintenance easements, or similar areas shall be used for such purposes or similar purposes as approved by the Declarant, but only so long as the Class B membership status exists, or by the Board of the Association. (c) Sales Offices and Similar Uses. Declarant may maintain one or more signs, sales offices, or trailers on Lots for the purpose of facilitating sales of Residences on the Property. Declarant or the ACC may also grant the right to maintain construction Brookfield Page 4 10168.2 trailers on the Lots and to use Lots for signage, sales offices, and similar purposes to other Persons constructing Residences on the Property by written designation. (d) Temporary Structures. Temporary structures, other than playhouses and those used during the initial construction of a residence, are not permitted. (e) Security Doors and Windows. The ACC prior to installation must approve requests for security treatments for doors and windows; however,the use of"burglar bars", steel or wrought iron bars, or similar fixtures on the exterior of any windows or doors is strictly prohibited. ACC approval is not required for the addition of screen doors or other type doors to a home or an accessory building if the material matches or is similar to existing doors on the house and if the color is complementary to that of existing doors on the house. (f) Lots Limited to Commercial and Retail Use. Lots in Tract 1 and Tract 2 identified in Exhibit A may be used for commercial and retail purposes pursuant to the Development Agreement between the City of Fort Worth, Texas and Brookfield Acquisitions, L.P. for the Brookfield Development, recorded at Vol. , Page , Denton County real property records. Section 2.2 Prohibited Uses and Activities. (a) No Further Subdivision. No Lot may be further subdivided without the written consent of the Declarant or the ACC. Lots may be combined for the purpose of constructing a single residence on more than one Lot only upon written approval of the Declarant or the ACC. Without regard to any such permitted subdivision or combination, the Lots involved shall continue to be treated as single individual Lots hereunder for all other purposes, including voting in the Association and assessing and collecting Assessments. (b) Parking and Vehicle Restrictions. All Vehicles on residential lots shall be parked, stored or placed so as not to be visible from any Street or from ground level view from an adjoining Lot, except for temporary parking in the driveway constructed on a Lot. On-Street parking shall be limited to temporary parking of guests or invitees of Owners during parties, delivery of services, and similar limited (no more than twelve (12) hours) time periods. Trucks with tonnage in excess of one ton, Vehicles with signage or advertising displays, and boats with trailers shall not be permitted to park overnight on the Streets, driveways, or other areas within the Property. No Vehicle that transports flammable or explosive cargo may be parked or stored within the Property. No inoperative or unlicensed Vehicles may be parked or stored, other than in an enclosed garage, within the Property. All work on Vehicles (other than routine maintenance) shall be performed only in an enclosed garage. The foregoing provisions shall not restrict the parking of trucks and other Vehicles as necessary in connection with construction of Residences or other Structures on Lots. (c) Specific Use Restrictions. This Section shall not be construed so as to prohibit the conduct of a reasonable amount of in-home work, such as computer work or Brookfield Page 5 IU 1681 -n similar activities, provided that such work or activity does not involve the parking of Vehicles of employees, consultants, or other parties other than the occupants of the Residences in question, and does not involve the delivery or pick-up of any materials or services. Unless expressly permitted by the Declarant or the Board of the Association, no church may be maintained on the Property. (d) Pet and Animal Restrictions. Only regular household pets such as cats and dogs shall be permitted on the Property and then only for personal use and not for any business use such as breeding, kennel operations and the like. No other animals shall be permitted to be maintained upon the Property, including without limitation the following: cows, horses, bees, hogs, sheep, goats, poultry, or skunks. No more than four (4) domesticated household pets are permitted in any Residence. All pets shall be kept within the fenced-in area of an Owner's Lot and shall not be permitted to run free through the Property. Dog runs require ACC approval on a case-by-case basis. Dog runs shall be located within side or rear yards in such a way that they are not visible to neighbors or, community open space. The ACC will evaluate the proposed location and size of the dog run with consideration given its impact on adjacent properties and streets. Generally, dog run areas should not exceed three hundred (300) square feet in size and fence height should not exceed five (5)feet. The use of underground invisible dog run fencing is encouraged on a case-by-case basis. The dog run fencing should be immediately adjacent to the home and compatible with the home in material and color. Galvanized chain-link fencing is prohibited. Dog runs shall be well screened from neighboring properties and streets with landscaping. "Dog kennels" are not permitted. (e) Outdoor Burning Restrictions. Outdoor burning of trash, leaves, and other items is prohibited. This restriction shall not be construed as prohibiting outdoor cooking on barbecue grills in connection with use of a Residence. (t) Trash/Garbage Disposal. Trash, garbage and other waste shall at all times be kept in clean, well maintained, sanitary containers for regular scheduled pickup for removal of such items. Trash, garbage or other waste shall not be dumped on the ground of any Lot or in any Common Area. (g) Occupancy. Each Lot shall be improved with a single family detached Residence. No Person shall occupy any garage or other outbuilding at any time. (h) Projections from Structures. Window air conditioning units and other similar projections are prohibited, Any projection through the roof of any structure on the Property shall require the prior written approval of the Declarant or the ACC. (i) Private Water/Sewer Systems. Each Residence shall be connected to the water and sanitary sewer system, and no private water well or water, sanitary or storm sewer system is permitted within the Property unless the Declarant constructs it. If Declarant uses private drainage easements in areas that necessitate or contain a private Brookfield Page 6 101682 MOM= 0 '77777s s, .1�,'sna�AS b*.i; . , _. l;su- .+6.•.. ..,i.Y ....,:?�('c ry r.,. �'.wJ MF�. ..a.t>h.h'i�i,iav ,,.a»elr'a.4v.[ sub-surface storm sewer drainage system, then such sewer lines are to be kept freely running and unobstructed at all times. If the lines become obstructed, all parties that benefit from their function shall be required to equally and promptly share in the cost of repair or replacement of the lines. (j) Changes in Grade. Except for such changes as are reasonably necessary to facilitate construction of a Residence or other Structure on a Lot, no Owner shall change the grade of any Lot except in compliance with all applicable laws.After Declarant has developed the Lots, the general grading, slope and drainage plan of a Lot may not be altered, and no dams, berms, channels or swales may be constructed or excavated without the prior written approval of Declarant (or the ACC), the City (if applicable) and other appropriate agencies having authority to grant such approval. (k) Visible Activities-Outdoors. Outdoor drying of clothes is prohibited. Lawn mowers, rakes, carts, and other yard equipment shall be stored from view from adjoining Lots and Streets when not in use. (1) General Restriction -Nuisances. In general, no condition shall be allowed to exist on a Lot which, by sight or smell (as determined exclusively by the ACC), shall constitute a public or private nuisance or unreasonably disturbs any other Owner in the use and enjoyment of its Lot or the Common Area. (m) Temporary Structures. Temporary structures, other than playhouses and those used during the initial construction of a Residence, are prohibited. ARTICLE 3 CONSTRUCTION PROVISIONS Section 3.1 Plan Approval Required. No Residence or Structure shall be constructed, placed, or installed within the Property until the plans have been approved in writing by the ACC or Declarant as provided in this Article 3. Section 3.2 Establishment of ACC. (a) Initial Appointment. The ACC shall consist of three (3) members; the Declarant shall appoint the initial members of the ACC. (b) Term and Subsequent Appointments. The members of the ACC shall serve until they resign or are removed by the party appointing them to the ACC (which the appointing party may do at any time). Subsequent appointments to the ACC shall be made by the Declarant until such time as the Declarant either relinquishes such power by written notice to the Board, or the Declarant no longer owns any Lot; thereafter appointments to and removals from the ACC shall be made by the Board. The ACC or Declarant may engage the services of a third party to review plans and specifications pursuant to this Article. Brookfield Page 7 10168 2 .. tL,.d• ..itu,+-r"`4sx#ck,s. ,.;>t'�;rWv..mfn+�#"` ,.!k:1s c.4„ "F. .. .e. "v`__ Now";r (c) Compensation; Fee for Review. No member of the ACC shall be entitled to compensation for its services. The ACC may impose a reasonable charge for reviewing plans. Section 3.3 Approval Process. (a) Submission of Plans. Any party wishing to construct a Residence or any Structure on the Property shall submit one(1) copy of complete plans and specifications in 8 '/2"X 11"size or no larger than 11"X 17"to the ACC for its approval prior to commencing construction. Such plans and specifications shall include engineering information, landscaping description, and construction plans showing the location and elevations, square footage of the living area, brick percentage, roof pitch and floor plan showing garage area of the proposed Residence or Structure and the materials to be used in constructing the same, all in sufficient detail to enable the ACC to evaluate the proposed Structure or Residence. Electrical, plumbing and roofing plans should not be submitted. The ACC may request additional information, including samples of proposed materials to aid it in its decision process. After receipt of a complete set of plans and specifications,the ACC shall promptly review the same and notify the Person submitting whether it approves the plans or whether it requires changes thereto. Alternately, the ACC may disapprove a set of plans by so noting thereon and returning it to the Person submitting, accompanied by a statement of the reasons for disapproval. No construction shall be commenced on any portion of the Property unless and until the ACC or Declarant has approved the plans for the Residence or Structure in question in writing. Procurement of applicable permits from other governmental agencies is the responsibility of the Owner and shall be obtained prior to commencement of construction. Once begun, construction shall be completed expeditiously and in strict accordance with approved plans. No structure may be occupied until a certificate of occupancy has been issued by an authorized government authority. (1) Hours of Operation. Hours of operation shall be the time frames of when exterior construction is allowed, which will be established by the Board of Directors. (2) Construction Trailers, Shed, or Temporary Structures. All construction trailers, sheds, or temporary structures require ACC approval prior to installation. All such shelters shall be removed upon completion of construction. Temporary living quarters for workmen are strictly prohibited. (3) Sanitary Facilities. The contractor shall be responsible for providing adequate sanitary facilities for construction workers. It is the obligation of all contractors and subcontractors to leave the project site free from trash, debris, unused materials and equipment. The ACC reserves the rightto specifically assess any and all contractors, subcontractors, or Owners for clean-up cost. (4) Construction Drainage. The Owner shall provide temporary erosion control measures during the construction period as described above. Temporary barriers such as silt fences shall be utilized as needed. It is recommended that the Brookfield Page 8 ioibx z .' e'. ,.. r.,• Ar.'d .*hx,.:,r.+. r'', Az r..t,aaurdrficn€ +w+' ';kr. .LSn .^.ii! Owner landscape slopes as soon as possible after grading has been completed to control erosion. (5) Vehicles&Access. All vehicles shall be parked so as not to impede traffic or damage surrounding natural landscape. The ACC may designate, at time of plan review or during construction, specific areas for the parking of construction workers' vehicles and/or equipment. Washing of vehicles and/or construction equipment on streets within BROOKFIELD is prohibited. (b) Time for Review/Approval. The ACC shall approve or disapprove all plans submitted for construction within thirty(30)days after the date it receives a complete set of plans and specifications; if the ACC fails to specifically approve or disapprove of any plans within such thirty (30) day period, then the ACC shall be deemed to have approved the plans submitted. Under no circumstances shall the ACC's failure to respond within the thirty (30) day period constitute deemed approval of, or the granting of a variance for any aspect of construction, use of materials, or location of improvements, which would otherwise constitute a violation of the Covenants or the Design Guidelines. (c) Review Standards. The ACC, in reviewing and approving plans for construction of Structures or Residences, shall use commercially reasonable efforts to promote and ensure a high level of taste,design quality, aesthetic harmony, and conformity throughout the Property, consistent with the standards established by this Declaration and any Design Guidelines. Where the condition imposed by and provision of these Design Guidelines are less restrictive than comparable condition imposed by an appropriate government agency where permit requirement or building code or regulation, the more restrictive provision shall govern. (d) Design Guidelines/Building Standards. The Declarant or the ACC may but is not required to, from time to time, establish specific guidelines and building standards to assist Persons in determining the type of Structures and Residences, which may be constructed on the Property. Pursuant to Section 8.1, Declarant may annex additional Property to become a portion of the Property, and may develop the overall Property in various Phases. Declarant may establish differing restrictions, guidelines and building standards for each such Phase of the Property, which may impose more restrictive or less onerous building standards with respect to a particular Phase. The ACC or Declarant may amend or modify such guidelines or standards from time to time in its sole discretion. Such guidelines or standards shall supplement this Declaration and be general guides to permitted construction within the Property, but shall not diminish the authority of the ACC and Declarant to approve plans as otherwise herein provided. (e) Failure to Obtain Approval. The construction, repair, replacement, installation, or placement of any Structure or improvement of any type on a Lot without the prior written approval from nst t e Owner of said Lot not toACC shall constitute for the exceed Five o sition by the Association of a fine agar Hundred and No/100 Dollars ($500.00). A fine levied under this Section shall be charged to the Owner's assessment account, payable upon demand and secured by the lien created in Article 6. Brookfield Page 9 10168 12LJE x; SAM ,+V (f� Compliance With Plans. Contractors are responsible for complying with the approved construction plans and any Design Guidelines. If trash, debris, or spillage is not cleaned up, or damage to protected or improved areas is not repaired, the ACC reserves the right to complete the cleanup or repairs needed and specifically assess all related costs to the contractor and/or Owner. Contractors and Owners are encouraged to notify the ACC of any potential issues related to compliance with approved plans. (g) Limitation of Liability. Neitherthe Declarant, its officers, directors, partners, agents, employees, representatives, parent or subsidiaries, nor the Association,the Board, or the ACC, including any of its respective members, shall be liable to any Person for any official act of the ACC in connection with submitted plans and specifications. Notwithstanding any approval by the Declarant or the ACC, neither the Declarant nor the ACC shall be responsible or liable to any Person with respect to any loss, liability, claim or expense, which may arise by reason of such approval or the construction of a Residence, or Structure related thereto. Neither the Declarant, the Association,the Board nor the ACC shall be responsible in any way for any defects in any plans or specifications submitted, reviewed or approved in accordance with the provisions of this Declaration, nor for any structural or other defects in any work done according to such plans or specifications. No approval of any plans by either the ACC or the Declarant shall be construed to mean that the plans comply with any applicable law, building code, or governmental regulation, it being the responsibility of the Person submitting any plans to assure compliance with all applicable laws. Conversely, the issuance of a building permit or any approval from any governmental authority shall not, under any circumstance, constitute any evidence that construction of a Residence or a Structure complies with the terms and conditions contained in this Declaration or any Design Guidelines. Declarant and members of the ACC shall have no liability for decisions made by them regarding the approval or disapproval of plans, so long as the decisions are made in good faith and are not discriminatory, arbitrary, or capricious. Section 3.4 Specific Construction Provisions. (a) Setbacks. All Residences and other Structures shall be constructed in conformity with the setback requirements of the appropriate government agency having jurisdiction over the same and the building lines reflected on the Plat. The following setbacks must be observed: (1) Front Yard. Structures may not be closer than twenty feet(20')from the front property line. (2) Side Yard. Structures and equipment, including dwelling units, garages, swimming pools and walls may not be closer than five feet (5') from any side property line. (3) Rear Yard. Structures and equipment, including dwelling units and garages may not be closer than fifteen feet (15') from any back property line. Brookfield Page 10 101682 (4) Corner Lot. Structures and equipment, including dwelling units and garages may not be closer than ten feet(10')from the side property line adjacent to the street(s) and five feet (5) from the side property line adjacent to another lot or common area. (b) Structure Size and Type. Each Residence shall have the minimum number of square feet of enclosed air-conditioned area as set forth by the appropriate government agency and as set forth in Section 3.5. Each Residence shall be of new construction on a Lot and no mobile homes or manufactured housing shall be permitted on the Property except on a temporary basis in connection with construction or sales activities. (c) Garage Requirements. Each Residence shall have at least a two car attached garage constructed as a part thereof. (d) Drive/Walkway Requirements. All driveways and sidewalks shall conform to applicable appropriate government agency and other governmental specifications and regulations. Sidewalks shall be installed by the builder and shall have a medium broom finish, unless approved otherwise by the ACC. Driveways shall be either concrete paved with a medium broom finish, stamped and colored concrete, or exposed aggregate concrete. Other materials require ACC approval. Extension or expansion of driveways requires ACC approval prior to installation. The ACC shall not approve such extensions or expansions intended for side yard parking or vehicle storage. (e) Windows. Windows shall be of clear glass or a tinted glass of bronze, gray, green or smoke color. The use of reflective glass or reflective tinting is prohibited. (f) Awnings and Overhangs. The use of awnings and overhangs requires ACC approval prior to installation. The materials and colors shall be the same or generally recognized as being complementary to the exterior of the building and will be attached directly to the structure without requiring supporting columns or poles. Neither metal nor plastic awnings will be permitted. (g) Decks & Balconies. ACC approval is required prior to the installation of a deck or balcony. Decks and balconies shall be constructed of wood or of a material similar to that of the residence and, if painted, shall be painted a color similar to or generally accepted as complementary to the residence. Decks and balconies shall be installed as an integral part of the residence. Any such decks or balconies shall be located so as not to obstruct or diminish the view from or create a nuisance for adjacent property owners. Construction shall not occur over easements and shall comply with the applicable Design Review procedures set forth in these CC & R's. Where the condition imposed by any provision of these Design Guidelines is less restrictive than comparable condition imposed by an appropriate government agency where permit requirement or building code or regulation, the more restrictive provision shall govern. Decks shall be no more than four (4)feet off the ground and shall be set back a minimum of five (5)feet from property lines. Views under decks shall be screened. Brookfield Page 11 101682 (h) Patios. ACC approval is required for the construction of patio covers, open patios, and enclosed patios. Freestanding patio covers are acceptable, as approved, as are roof extensions (loggias). Patio covers and posts shall be constructed of wood or of a material generally recognized as complementary to the residence and shall be similar to or generally recognized as complementary in color to the exterior color of the residence. Open patios should be an integral part of the landscape plan and should be located so activities do not create a nuisance for adjacent property owners.The patio color shall be similar to or generally accepted as a color complementary to the color of the residence. Enclosed patios shall be constructed of materials that are similar to or generally accepted as complementary to those of the residence. (i) Painting/Repainting. ACC approval is required for any exterior painting or repainting of the home or its accessory improvements. The submittal shall contain the manufacturer's paint chips with name and code number. All exterior finishes should be in subdued earth tones such as gray, green, brown, muted blues or reds, or other similar colors. Generally, garage doors should be painted a muted color and blend with other colors of the home, as prescribed herein. Note: If painting home same color ACC Approval is not required. 0) Alterations Additions and Expansions. ACC approval is required for any exterior alteration to, addition to, or expansion of a home. The architectural design and materials used in any and all exterior additions, alterations, or renovations shall conform to the original home's design intent with respect to style, detailing, and materials used in the initial construction, as prescribed herein. (k) Accessory Structure Provisions. All Ancillary Structures (as described below)shall conform to the requirements of this Section. ACC approval is required prior to construction of any accessory structure, including but not limited to sheds and permanently installed playhouses. Applications for accessory structures will be reviewed with regard to Lot size, setbacks, and primary building size. Accessory structures should serve as functional elements and enhance the aesthetic qualities and visual theme of BROOKFIELD.Accessory structures such as permanent storage sheds and gazebos shall be located in the rear yard or in a location not prominently visible from the street, and shall adhere to the standards herein. Storage sheds, and gazebos shall be architecturally compatible with the home. Accessory structures shall meet the following criteria: Accessory structures shall be of the same color, material, and architectural style as the main residence or of color, material, and style that is generally recognized as complementary to that of the main residence. An accessory structure's roofing materials shall match those of the main residence. Accessory structures shall be no larger than 8'x8'. Brookfield Page 12 ions 2 MillilirilillW,i!,Iillil,,,Iiipii,pill,1411 .x .:;.arm Accessory structures shall conform to the side and rear yard setbacks. Accessory structures shall not unreasonably obstruct any adjacent neighbor's view. Carports (non-fully enclosed automobile shelters) are prohibited. (1) Antennae/Satellite Dishes. The erection, construction, placement or installation of any television, radio, or other electronic tower, serial, antenna, satellite dish or device of any type for the reception or transmission of radio or television broadcasts or for any means of communication upon a Lot or upon any improvement thereon is prohibited except as provided for herein. This prohibition shall not apply to those antennae specifically covered by 47 C.F.R. Part 1, Subpart S, Section 1.4000 (or any successor provision) promulgated pursuant to the Telecommunications Act of 1996, as amended from time to time. The ACC or the Declarant shall be empowered to adopt rules governing the types of antennae that are permissible hereunder and establishing reasonable, non-discriminatory restrictions relating to safety, location and maintenance of antennae. All television antennas and other antennas and aerials shall be located inside the attic of the residence constructed on the Lot.Amateur radio towers and antennas (whether for reception or transmission) are specifically prohibited. No exterior television, radio or other antenna of any type shall be placed, allowed or maintained upon any Lot, Residence, or Structure without prior written approval and authorization of the ACC Satellite dishes larger than one (1) meter in diameter are prohibited. The satellite dish or antenna shall be placed in the rear or side yard in such a manner that it is screened from view from adjacent streets and neighboring properties. (2) Fences and Walls. The installation of walls requires prior ACC approval. Walls should appear as extensions of the home's architecture and be complementary to the main structure. Walls may be used to enclose and define courtyards, extend and relate the building forms to the landscape, and provide security and privacy.All fences and walls(excluding retaining walls described in (6) below) shall be at least six(6)feet in height and shall have a maximum height of six feet(6), and shall be located in an area and constructed of materials in accordance with the provisions contained in any Design Guidelines. No fence or wall may be constructed, repaired, rebuilt, or relocated if it impedes or obstructs drainage. Low decorative walls that are part of the landscape design will be considered. Front yard landscape walls shall not exceed three (3) feet in height. Every lot is required to have a 6' fence on all property lines unless wrought iron is specified by the Declarant, ACC or these CC&R's. The Declarant reserves the right to mandate the use of wrought iron fencing where the Declarant deems necessary to ensure consistency and community design. Notwithstanding anything contained herein to the contrary, a 4' wrought iron fence will be mandatory on the property lines of lots that are adjacent to the common area flood plain and open space. These wrought iron fences will make up part of the Brookfield Page 13 101682 ,RIF 74 w L back yard fencing on those lots adjacent to the flood plain and open space. Except for the wrought iron fence standard, all fences whether constructed by the Owner or the Builder, shall be maintained consistent with the community-wide standard. In the event a fence or wall is damaged or destroyed, the Owner shall repair or recondition the same at Owner's expense within three (3) weeks of the damage using materials of equal or greater value. Pursuant to the CC&R's,the foregoing standards are intended as an aesthetic guide only. Neither the Declarant nor the ACC ensures the soundness, structural integrity, or effectiveness of retaining walls constructed in conformity with this section. Neither the Declarant nor the ACC shall be responsible for ensuring the structural integrity or soundness of any approved retaining wall. (3) Outbuildings. Outbuildings shall not extend above the fence such that they are visible from any public street or adjacent lot when standing at ground level. The location, installation and screening of an outbuilding requires, without exception, the prior written approval from the ACC. (4) Trash Containers. All trash containers shall be screened from view from Streets. (6) Hedges. Hedges shall be maintained at a height that is in conformity with the height offences and walls. No hedge shall be maintained in a manner that obstructs any sidewalk or the visibility of intersections of Streets and/or alleys. (6) Retaining Walls. Retaining walls, other than those constructed by the Declarant, require prior written approval by the ACC to ensure conformity with the requirements contained in any Design Guidelines with respect to location, construction, and materials. The Owner/Builder of the"high side"property shall be responsible for installation of side property line retaining walls. Retaining walls shall not exceed four(4)feet in height, unless engineered by a licensed engineer in the State of Texas,there shall be a minimum of five (5)feet between adjacent walls, and walls shall be located so as not to alter established drainage patterns. Except for those built by Declarant or its affiliates, any retaining walls which generally face an alley or are either between Residences or along or adjacent to the side or rear property lines of Lots shall be constructed of ACQ treated lumber or stone materials unless the ACC has otherwise provided prior written approval. Except for those built by Declarant or its affiliates, any retaining walls which generally face a Street or are along or adjacent to the front property lines of Lots shall be constructed of stone materials unless the ACC has otherwise provided prior written approval. Pursuant to the CC&R's, the foregoing standards are intended as an aesthetic guide only. Neither the Declarant nor the ACC ensures the soundness, structural integrity, or effectiveness of retaining walls constructed in conformity with this section. Neither the Declarant nor the ACC shall be responsible for ensuring the structural integrity or soundness of any approved retaining wall. Brookfield Page 14 101W2 ..; q , . �'" (7) Mailboxes. Mailboxes shall be of a design and constructed of materials approved by the ACC and shall conform to the standards of the United States Postal Service regulations and any Design Guidelines. The mailboxes shall be installed pursuant to the designs set forth by the United States Postal Service. (8) Tennis Court/Swimming Pool/Recreational Facilities. A tennis court, swimming pool, spa and/or recreational facilities may be constructed within any Lot provided the plans are approved by the ACC prior to commencement of construction to ensure compliance with the requirements contained in any Design Guidelines with respect to location and screening. The ACC will review requests for swimming pools and pool equipment on a case-by-case basis. Consideration will be given to, but not necessarily limited to, setback from and impact on neighboring properties and the size of the pool enclosure. Any Spa shall be located in the side or rear yard in such a manner that it is not immediately visible to adjacent property Homeowners. Spas should be designed as an integral part of the deck or patio area where they are located. Above ground pools are prohibited. (9) Signage. The Master Developer shall have the right and privilege to develop and implement uniform signage specifications and requirements applicable throughout BROOKFIELD, including Builder "For Sale" signage and model home signage. Except for Declarant's signs, existing homes for sale or for lease shall property, have no more than one temporary sign per Lot that advertiseswhich stands no more than four (4) feet high, which has dimensions of no more than five (5) square feet, and which is conservative in color and style. Temporary signs may be displayed only while the Lot/ home is for sale and shall be removed when the property is no longer for sale or lease. A Builder"Sold" sign will be allowed until the closing of the home or Lot to a third party. Political signage is allowed so long as it strictly complies with the conditions set forth in any Design Guidelines as to number, location, when such signs are allowed prior to the election, and the time period after the election upon which the signs shall be removed. Spirit signs (announcing the involvement of teenagers in athletics or school programs) shall only be allowed if provided for and in strict compliance with any Design Guidelines. Such advertising and spirit signs shall be subject to approval of the ACC. Trade signs, which include but are not limited to landscaping, painting, remodeling, etc., may only be displayed while work is in progress. The installation or relocation of all other signs requires ACC approval. The ACC may dictate a specific uniform size, style and color for such trade signs. All signs must be professionally produced and manufactured. Each Owner hereby grants permission to the ACC (or its duly authorized agents) to enter upon a Lot or any part of the Property and remove any sign, billboard or advertising structure that does not comply with the above requirements and, in doing so,shall not be subject to any liability to any Person whatsoever for trespass, conversion, or any claim for damages in be connection with such reoval. The ACC's cost to remove any sign Owner's assessment account, s payable shall added to the Own upon demand and secured Brookfield Page 15 10168 2 I ft tz .- ,�F by the lien created in Article 6, Unauthorized signs placed by builders, trades, homeowners, or other parties, in or on right of ways, thoroughfares, collectors, or Common Areas, will be prohibited. If a violation does occur the Declarant or ACC reserves the right to remove the sign. Every Owner shall provide address numbers or sign incorporated into the design of the residence and clearly visible from the street. Painting of address numbers on the street curb is prohibited. One security sign may be permitted in the front yard located either adjacent to the driveway or in close proximity to the front entrance of the main dwelling. The ACC may impose size, shape and color restrictions on security signs. No signs shall be erected on the roof of any structure. The content, placement and appearance of all temporary signs are subject to ACC approval. (10) Exterior Lighting. ACC approval is required prior to changing or adding exterior lighting. In reviewing lighting requests, the ACC will consider the visibility, style, location and quantity of the light fixtures. Landscape lighting fixtures shall be dark-colored so as to be less obtrusive and shall be as small in size as is reasonably practical. Low-voltage lighting is preferable to conventional house- voltage systems because of its safety advantages. All lighting shall be compatible with the architecture of the residence. All in ground up landscape lighting in the front yard (except porches) shall be mercury vapor and produce a "moonlit" effect. Exterior lighting shall not produce glare or direct illumination across a property line of an intensity that creates a nuisance or detracts from the use or enjoyment of adjacent property. Lighting for walkways generally should be directed toward the ground. (11) Air-Conditioning and Other Mechanical Equipment. ACC approval is required prior to the installation of air-conditioning equipment. Ground level air conditioning units shall be installed at street level only. All mechanical equipment, including air-conditioning equipment, shall be located in a side or rear yard only. (12) Energy Conservation. The use of energy conservation techniques is encouraged when appropriate. Solar technology shall be screened from view from adjacent properties and the public right-of-way and must be approved by the ACC prior to installation. Site planning and landscape design for energy conservation is encouraged. (13) Latticework. Attached latticework or garden trellis may be installed without approval, provided it is an integral part of the landscaping and complementary to the exterior materials of existing structures. Freestanding latticework will be considered as a Gazebo as described in section 3.4k. (14) Play Structures. Play structures shall be located in the rear yard and set back a minimum of five (5) feet from property lines. Play structures shall be Brookfield Page 16 101682 predominately muted earth tone colors and shall not exceed eight(8)feet in height. Playhouses larger than 30 sq. ft. or over six feet in height shall be considered an accessory structure and require ACC approval. (15) Recreational Equipment. Permanent freestanding, pole-mounted basketball goals are not allowed in the front yard. Portable freestanding basketball goals are conditionally allowed if placed for play within the side or rear yard and properly stored out of public view when not in use. Placement and use of freestanding goals within the street right-of-way is prohibited. Approval is not required for the installation of recreational equipment in side and rear yards, so long as the equipment is no taller than seven (7) feet. Owners should exercise consideration toward neighbors. Any recreational equipment shall be set back a reasonable distance from adjacent property lines so as to avoid disturbing neighbors. (16) Yard Ornaments. Yard ornaments, including but not limited to, birdhouses, fountains, sculpture, statues, and banners require ACC approval. (17) Hardscape Materials. All materials and construction should communicate high quality and craftsmanship. Specification for hardscape materials shall be subject to the approval of the ACC. The ACC may request samples of hardscape materials. The Owner shall secure ACC approval prior to paving with any paving material, including without limitation concrete, asphalt, brick,flagstone, stepping stones, and pre-cast patterned or exposed aggregate concrete pavers, and for any purpose, including without limitation walks, driveways, or patios. (18) Vegetable Gardens. ACC approval is not required if located in rear or side yards so that both the garden and its accessory operating areas are screened from view of adjacent homes, public areas and the. Vegetable gardens should not have excessive weeds, and plants should be removed at the end of each growing season. Tall plants, such as corn and sunflowers, shall be completely screened from view from adjoining properties and public right of ways. (19) Sight Triangle Maintenance. Homeowners shall keep Property within traffic triangles free at all times of any object greater than 24" in height. (20) Gazebos and Greenhouses. ACC approval is required prior to the construction of any gazebo or greenhouse.Any gazebo or greenhouse should be an integral part of the landscape plan. Section 3.5 Construction Materials. All construction materials shall conform to the following provisions: (a) Building Materials. Except to the extent a higher percentage is required by the appropriate governmental agency, the total exterior wall area (as used herein the term Brookfield Page 17 10168 z .41eY14 .n(kv�{Es'.t3se rera.. t`,. N'''ek+. .. - ..-- _ h✓N.}Vk',ari fi; ,, tY.>' w,+1� ti srttrl "total exterior wall area" shall exclude windows, doors, porches and gables) of each building constructed or placed on a Lot shall be not less than sixty percent (60%) brick, stone, portland cement, stucco, masonry or other material approved by the Declarant. Areas above the height of the top of the standard height first (15t.) floor are not excluded from the calculation of the total exterior wall area. All materials shall be subject to approval by the ACC in accordance with the provisions in any Design Guidelines as to aesthetic appearance and shall conform to any and all governmental agency ordinances. Identical brick selections shall not be placed on homes adjacent to or across the street from one another. The following are prohibited except with the express written consent of the ACC: Metal structures such as sheds Metal as a building skin Mirrored glass Exposed cinder block Vinyl siding Pressed Masonite (b) Minimum & Maximum Livable Floor Area. The total air-conditioned living area of the main residential structure constructed on each Lot, as measured to the outside of exterior walls but exclusive of open porches, garages, patios and detached accessory buildings, shall be as follows: The Minimum livable square footage on all Lots shall be 1,200 square feet with no Maximum square footage. Section 3.6 Height Restrictions. All Structures shall conform to the height restrictions of the governmental agency. Section 3.7 Roof Restrictions. All roofs shall have at least a 5:12 pitch on the main structure and on garage structures unless otherwise approved by the ACC. All roofing materials must be fireproof and conform to governmental agency requirements, and are subject to ACC approval. Asphalt shingles shall be minimum of three-ply 20-year shingle or equivalent. The color of shingles needs to be "weatherwood" or similar color. Section 3.8 Construction Period and Process. Construction of any Residence shall be pursued with all due diligence and, in any event, shall be completed within nine(9) months after commencement. Construction of any other Structure shall be completed within the time periods specified in the plan approval process. All areas under construction shall be maintained in a clean, safe condition, and debris,trash, and rubble shall be stored in appropriate containers and promptly removed from the Property. Brookfield Page 18 10168.2 Ti Mor (a) Utilities and Utility Easements. Existing utilities and utility easements are located throughout BROOKFIELD. Prior to commencing construction, owners are responsible for locating and avoiding existing water, sewer, electrical and other utility lines or building over utility easements. It is the responsibility of the Owner to repair or replace existing utilities damaged during work on his or her Lot. (b) Landscaping. All Lots shall be appropriately landscaped, including planting of grass and other plants in conformity with any Design Guidelines and other improvements on the Property. In addition to complying with governmental agency requirements,all Lots with a Residence thereon shall include at least 2 trees with a three inch (3")caliper, at least one of which shall be planted in the area of the Lot between the front property line and the front building line, and shrubs totaling a minimum of 25 gallons. Homeowners are required to extend landscaping to the street curb or sidewalk where it is adjacent to the street. All landscaping shall be maintained in accordance with the requirements of the Declaration. Landscaping should consist of a combination of sodded turf areas and bed areas containing shrubs and ground cover. Side, front and back yard areas shall be 100% irrigated and 100% sodded where there are no landscaping beds. Large expanses of mulch or bed areas without substantial shrub or groundcover plantings are unacceptable. Stone or gravel mulch with harsh, unnatural or high contrast colors are prohibited. (c) Landscape Maintenance. The following practices are suggested to help minimize maintenance problems: ➢ Plants should be chosen with regard to the region's climate and their ultimate size, shape and growth rates. ➢ Plants and irrigation heads shall be located out of the path of pedestrian/bicycle traffic. ➢ Irrigation systems should be maintained. Such maintenance should include draining and servicing sprinkler systems and conducting operational checks on a weekly basis to ensure proper performance of the system. ➢ Fertilization, weed and pest controls, etc. should be provided only as required for optimum plant growth. (d) Lot Grading. Owners shall not grade their property in a manner that interferes with the established drainage pattern over any property, except as approved in writing by the ACC. Grading shall not extend onto adjacent properties without approval of the Owners of those adjacent properties. Berms, slopes and swales may be used to define spaces, screen undesirable views, and reduce noise and high winds but should not exceed three (3)feet of horizontal distance to one foot of vertical height(3:1 slope). This will permit greater ease of mowing and general maintenance. Extensive cut/fill slopes are discouraged. Fill slopes shall not exceed 3:1. Cut slopes may be 3:1 if the soil's natural angle of repose allows. Brookfield Page 19 10168.2 UM ffl, a i.�'✓XY'ie: ,, a'r�. sd:t,t t;+2 aP.,av£v.,. .�.rdr '::.r:. _ Terracing which utilizes retaining walls may be used where the space cannot accommodate the maximum slope, provided that retaining walls shall not exceed four (4) feet in height, with a minimum of five (5) feet between adjacent walls. Retaining wall locations are subject to ACC approval. (e) Drainage. Existing and proposed drainage and grading shall be indicated on the Site Plan. Owners shall not interfere with the established drainage pattern over any property except as approved in writing by the ACC. Homeowners may make drainage modifications to their Lots provided thatthey do not alterthe established drainage pattern. Landscape plans shall conform to the established drainage pattern, shall cause water to drain away from the foundation of the house, and shall prevent water from flowing under or ponding near or against the house foundation. Water shall flow fully over walkways, sidewalks or driveways into established retainage patterns. Obstruction of surface flows resulting in a backup of water onto any Lot or Tract is strictly prohibited. If deemed necessary, the ACC may require a report from a drainage engineer as part of landscaping or improvement plan approval. As defined above, accepted erosion control measures shall be used during construction to reduce adverse silting impacts downstream. (e) Right to Waive or Modify Specific Instruction Provisions. The ACC shall have the right, in its discretion, to grant reasonable waivers of the construction provisions set forth in this Declaration, and any such waiver shall not entitle any other person to a similar waiver. Section 3.9 Declarant RASo Article 3. ant owns any Lot, Declarant may exercise any of the rights of the CC under this ARTICLE 4 MAINTENANCE PROVISIONS Section 4.1 Owner's Obligation to Maintain. Each Owner shall maintain its Lot and the Residence and other Structures thereon in a clean, first class condition. Each Owner shall regularly mow grass and maintain the landscaping on its Lot in good condition at all times. Each Owner shall maintain andreplacementsas necessary to maintain hexterior Residences good condition and shall make suchrepairs good order and the aesthetic harmony of the Property. Section 4.2 Damaged Improvements. If any Residence or Structure is damaged in any way, the Owner shall immediately repair such damage or, in the case of substantial damage when the owner e dame a�d elsh aveto rebuild,the surfaceraze of thehe amaged Lotl n good order. or Residence and remove th Section 4.3 DeclarantlAssociation Right to Perform. If any Owner fails to maintain the condition of its Lot, the landscaping thereon, including the prompt removal of deceased trees and shrubs, or the Residence or other Structures thereon as contemplated Brookfield Page 20 10166.2 by this Article 4 and fails to take action to correct such defect within ten (10) days after the Declarant or the Association has furnished written notice thereof to such Owner, then the Owner of such Lot hereby grants permission to the Declarant or Association (or its duly authorized agents)to enter upon such Lot and perform those duties which the Owner failed to perform without liability whatsoever to such Owner or any Person for trespass, conversion, or any claim for damages. The cost of performing such duties shall be added to the Owner's assessment account and shall bear interest at the rate of eighteen percent(18%) per annum(but not in excess of the lawful maximum rate),be payable upon demand, and shall be secured by the lien provided for in Article 6. Section 4.4 Easement Maintenance. Each Owner grants to the Association,the Board, and the Declarant the right to access, repair, and maintain all facilities and improvements within any wall, entry, fence, landscape, or other similar easement as recorded on any Plat. By acquisition of a Lot, each Owner hereby grants, creates and conveys unto the Association, the other adjacent Owners and the Declarant a perpetual Drainage Easement(herein so called)over,through, under and across the Owner's Lot for the purpose of permitting runoff and/or storm water to drain from other adjacent Lots over, through, under and across the Owner's Lot(s). Without limiting the foregoing, in order to h under and facilitate drainage from the Property subject to the Declaration over, through, across the Owner's Lot, each Owner hereby agrees that the Declarant or the Association, as the case may be, shall have the right to enter onto the Owner's Lot at any time to (i) prevent possible interference with the Drainage Easement and to remove possible hazards from the Drainage Easement area, (ii) prevent the construction or placement of any building, structure or other obstruction within the Drainage Easement area which may endanger or interfere with the efficient and convenient use of the Drainage Easement, (iii) grade, improve, construct, reconstruct, repair and perpetually maintain swales within the Drainage Easement area, and (iv) regrade portions of the Drainage Easementarea necessary or appropriate to permit drainage as generally described herein or as approved or required by appropriate governmental authorities. Notwithstanding any of the foregoing rights of the Association or the Developer, each Owner hereby agrees to maintain the Drainage Easement area at such Owner's sole cost and expense.ner within the structures nage or other obstructions are constructed, created or placed by any Easement area without the prior written consent of the Board or the Declarant, the Declarant or the Association shall have the right to remove such structure or obstruction at the sole cost of such Owner. The cost to remove the structure or the obstruction shall be charged to the Owner's assessment account, shall be payable on demand, and shall be secured by the lien provided for in Article 6. ARTICLE 5 OWNER'S ASSOCIATION Section 5.1 EstablishmentThe Association has heretofore been or will hereafter be created as a Texas non-profit corporation. Each Owner of a Lot shall be a member in the Association and such membership ansfer of a Lot, the new Owner shall automatically become l not be separated from ownership of a Lot. Upon the Brookfield Page 21 10168 2 77 ti9b�4-aF ,...,- a member of the Association. The term of existence of the Association and other matters pertaining to its operation are set forth in its Articles of Incorporation (attached hereto as Exhibit B and the By-Laws (attached hereto as Exhibit C . The Association is established to enforce this Declaration and the Covenants, to promote the interests of the Owners as residents of the Property, and to enhance the value of the Lots as a part of a harmonious, high quality, residential subdivision. Section 5.2 Voting Power. The Association shall have two classes of voting membership as follows: (a) Class A. The Class A Members shall be all Owners other than Declarant and shall be entitled to one vote for each Lot owned. If more than one person owns an interest in a Lot, they shall combine their vote in such way as they see fit, but there shall be no fractional votes, and no more than one vote with respect to any Lot. (b) Class B. The Class B Member shall be the Declarant who shall be entitled to fifteen (15) votes for each Lot owned by Declarant. Subject to the conditions set forth in the remainder of this paragraph, the Class B membership shall be converted to Class A membership upon the earlier of(i) the total votes outstanding in the Class A membership equaling the total votes outstanding in the Class B membership, (ii)January 1, 2017 or(iii) the recording in the Records of Denton County, Texas of a notice signed by Declarant terminating the Class B membership. In determining the number of Lots owned by Declarant for the purpose of Class B membership status hereunder, the total number of Lots covered by this Declaration, including all Lots annexed thereto in accordance with Section 8.1 herein, shall be considered. In the event the Class B membership has previously lapsed as provided in (i) above, but annexation of additional property restores the ratio of Lots owned by Declarant to the number required for Class B membership status, such Class B membership shall be reinstated until it expires pursuant to the terms hereof. (c) Board of Directors Election. The Board shall be elected as provided in the articles and bylaws of the Association. The Board shall act by majority vote as provided in the bylaws. (d) Specific Powers of Board. Without limiting the authority granted to a board of directors under the Texas Non-Profit Corporation Act,the Board shall have the following specific powers on behalf of the Association: (1) to enforce the provisions of this Declaration; (2) to enter into contracts; (3) to retain third parties, as necessary, to assist the Board in carrying on the Association's activities, including engineers, accountants, lawyers, architects, land planners, professional management, and other consultants; Brookfield Page 22 10168.2 "== piltw!'11111pol 77 , f9erNr �Je „ CA, ' ° ..4i@'�`r`r,»' (4) to take such action as necessary to maintain the Common Area in good order and condition; (5) to acquire property, services and materials to carry out its duties; (6) to purchase insurance covering potential liability for use of the Common Area and for other risks; (7) to borrow money for Association purposes; (8) to initiate and defend litigation, arbitration and other similar proceedings; (9) to promulgate reasonable rules and regulations for access to and use of Common Areas and governance of the Association, as well as a policy establishing a schedule and procedures by which the Board may assess fines against Owners or invoke self-help remedies for violations of the Covenants,the By- Laws, rules and regulations or any Design Guidelines; (10) to establish and collect reasonable fees for the use of any recreational facilities on the Common Area; (11) to establish and collect a reasonable fee for copying and furnishing copies of the Association's governing documents and furnishing a Resale Certificate as required by law. This function and the authority to collect and receive such fees may be delegated or assigned by the Board to the Association's Managing Agent; and (12) to enforce any provision of the Declaration, the By-laws, the Design Guidelines, or the rules and regulations of the Association through self-help procedures, after prior written notice to the Owner of the Lot at issue, or by suit at law or in equity to enjoin any violation or to recover monetary damages or both or an action to foreclose the lien against any Lot without the necessity or compliance with the procedure set forth above. In any such action, to the maximum extent permissible, the Owner or occupant responsible forthe violation of which abatement is sought shall pay all costs, including reasonable attorneys' fees and expenses actually incurred. Section 5.3 Officers. The Association will have such officers as are set forth in the bylaws. Section 5.4 Dissolution. So long as Declarant owns record title to any Lot, the Association shall not be dissolved. Once Declarant is divested of all ownership interest in the Property, the Association may be dissolved upon the written consent of Owners owning at least ninety percent (90%) of the Lots. Upon such dissolution, the assets of the Association shall be donated to a nonprofit organization with purposes similar to the Association and selected by a majority of the Board. Brookfield Page 23 10168.2 s -ems a ARTICLE 6 ASSESSMENTS Section 6.1 Powers to Establish Assessments The Association is empowered to establish and collect Assessments as provided in this Article 6 for the purpose of obtaining funds to maintain the Common Area, perform its other duties, and otherwise preserve and further the operation of the Property as a first quality residential subdivision. The purposes for which Assessments may be used include,without limitation, maintaining, operating, managing, repairing, replacing or improving the Common Area or any improvements thereon; mowing grass and maintaining grades and signs; paying legal fees and expenses incurred in enforcing this Declaration; paying expenses incurred in collecting and administering assessments; paying insurance premiums for liability and fidelity coverage for the ACC, the Board and the Association; satisfying any indemnity obligation under the articles or bylaws; and for any other purpose that furthers or serves the interests of the Association. The Board may reject partial payments and demand payment in full of all amounts due and owing the Association. The Board is specifically authorized to establish a policy governing how payments are to be applied. Section 6.2 Commencement of Assessments. (a) Owner other than Declarant. Unless otherwise provided by separate agreement by and between Declarant and any Person, the Assessments shall commence as to each Lot upon its conveyance by Declarant to any Person that is not an affiliate of Declarant. (b) Declarant. Declarant shall not be liable for Assessments for any Lots that it owns. Declarant may, but shall have no obligation to, subsidize the Association from time to time. In the event Declarant decides to subsidize the Association and any shortfall in the operating budget of the Association is due in part to the failure of the Association to collect delinquent Assessments, then the Association shall immediately and vigorously pursue collection of such delinquent Assessments through foreclosure, if necessary, and shall reimburse the Declarant the amounts, if any, so collected. Section 6.3 Regular Annual Maintenance Assessments (a) Annual Budget. For each calendar year or apart thereof during the term of this Declaration, the Board shall establish an estimated budget of the expenses to be incurred by the Association for the forthcoming year in performing its duties. Based upon such budget, the Association shall then assess each Lot an annual fee(the"Maintenance Assessment")which shall be paid by each Owner in advance as follows: quarterly on the first day of each January, April, July and October, unless the Board determines a different schedule. The Association shall notify each Owner of the Maintenance Assessment for the ensuing year by December 15 of the preceding year, but failure to give such notice shall not relieve any Owner from its obligation to pay Maintenance Assessments. Any Maintenance Assessment not paid within thirty (30) days of the date Brookfield Page 24 10168.2 '# ``. ;,yamMiirl i due shall be delinquent and shall thereafter bear interest as provided in Section 6.5(f). As to any partial year, Maintenance Assessments on any Lot shall be appropriately prorated. (b) Limits on Maintenance Assessments. The initial Maintenance Assessment for each Lot shall not exceed 30 Dollars ($30.00) per month. Thereafter the Board may increase the Maintenance Assessment annually to meet the anticipated needs of the appropriate budget, but the Maintenance Assessment may not be increased in any year by an amount in excess of twenty percent (20%) above the previous year's Maintenance Assessment, unless such increase is approved by a majority vote of those members of the Association present at a meeting, in person or by proxy, where a quorum exists. (c) Uniform Assessments. Maintenance Assessments for all Lots shall be uniform. Section 6.4 Special Assessments. The Association may impose special assessments ("Special Assessments") to make capital improvements to the Common Area, to satisfy its indemnity obligations under the articles or bylaws, or for other similar purposes. Any Special Assessment proposed by the Association must be approved by a majority vote of those members of the Association present at a meeting, in person or by proxy, at which a quorum exists. At least fifteen (15) days prior to any meeting of the Association called to consider any Special Assessment, the Board shall notify each Owner thereof by written notice specifying the total amount of the Special Assessment required, the amount thereof imposed on each Lot (which shall be uniform), the purpose for such Special Assessment, and the time and method of payment thereof. The time for paying any Special Assessment (which may be in installments) shall be as specified in the approved proposal. Section 6.5 Liability for and Enforcement of Assessments (a) Personal Liability. Each Owner shall be personally liable for all Assessments imposed during the time it owns a Lot. (b) Reservation. Subordination, and Enforcement of Assessment Lien Declarant hereby reserves for the benefit of itself and the Association, a lien (the "Assessment Lien") against each Lot to secure payment of(1)the Assessments imposed hereunder; (2)the payment of fines imposed under Section 3.3 (e) and Section 9.2 hereof or Section 3.18 of the By-Laws; (3)the cost to remove unauthorized signage under Section 3.4 (9) hereof; (4) the cost to perform a defaulting Owner's obligations under Section 4.3 hereof; (5) the cost to remove any structure or obstruction from the Drainage Easement area under Section 4.4 hereof; and (6) attorneys' fees incurred by the Association in collecting Assessments or other charges added to an Owner's account and to enforce the Declaration. Each Owner, by accepting conveyance of a Lot, shall be deemed to have agreed to pay the Assessments, along with fines, costs for remedial measures and attorneys' fees as herein provided for and to the reservation of the Assessment Lien. The Assessment Lien shall be subordinate to the liens of any valid first lien mortgage or deed of trust encumbering a particular Lot. Sale or transfer of any Lot shall not affect the Brookfield Page 25 10168.2 ' •t. "�I *;E,..{v.,k38,'+ ?+• ✓ �"•:' red Assessment Lien. However, the sale or transfer of any Lot pursuant to a first mortgage or deed of trust foreclosure (whether by exercise of power of sale or otherwise) or any proceeding in lieu thereof, shall only extinguish the Assessment Lien as to payments, which became due prior to such sale or transfer. No sale or transfer shall relieve such Lot from Liability and the Assessment Lien for any Assessments thereafter becoming due. The Assessment Lien may be non judicially foreclosed by power of sale in accordance with the provisions of Section 51.002 of the Texas Property Code (or any successor provision) or may be enforced judicially. Each Owner, by accepting conveyance of a Lot, expressly grants the Association a power of sale in connection with the foreclosure of the Assessment Lien. The Board is empowered to appoint a trustee,who may be a member of the Board, to exercise the powers of the Association to non-judicially foreclose the Assessments Lien in the manner provided for in Section 51.002 of the Texas Property Code (or any successor statute). The Association, through duly authorized agents, shall have the power to bid on the Lot at foreclosure sale and to acquire and hold, lease, mortgage and convey the same. (c) Notices of Delinquency or Payment. The Association, the Association's attorney or Declarant may file notice of any delinquency in payment of any Assessment in the Records of Denton County, Texas. Upon the timely curing of any default for which a notice was recorded by the Association, the Association through its attorney is hereby authorized to file of record a release of such notice upon payment by the defaulting Owner of a fee, to be determined by the Association but not to exceed the actual cost of preparing and filing a release. Upon request of any Owner, any title company on behalf of such Owner or any Owner's mortgagee, the Board, through its agents, may also issue certificates evidencing the status of payments of Assessments as to any particular Lot(i.e., whether they are current or delinquent and if delinquent, the amount thereof). The Association or its Managing Agent may impose a reasonable fee for furnishing such certificates or statements. (d) Suit to Recover. The Association may file suit to recover any unpaid Assessment and, in addition to collecting such Assessment and interest thereon, may also recover all expenses reasonably expended in enforcing such obligation, including reasonable attorneys' fees and court costs. (e) Late Charges and Collection Fees. If any Assessment or any part thereof remains unpaid after thirty (30) calendar days from and after the due date established by the Board, a late charge shall be assessed against the non-paying Owner for each month or any part thereof, that any portion of any Assessment remains unpaid. Should any Assessment be payable in installments, the Association is authorized to accelerate the entire Assessment and demand immediate payment thereof. The late charge shall be in the amount of Twenty-five and No/100 Dollars ($25.00) per month. The Association's Managing Agent shall be entitled to charge an Owner a monthly collection fee to compensate Managing Agent for its administrative costs and efforts to collect and process the late payment of Assessments. A service charge in the amount of Twenty And No/100 Dollars ($20.00) shall be charged for each check that is returned because of insufficient funds or any other reason. The amount of late charges and service charges may be adjusted, from time to time, by the Board consistent with any changes in the administrative Brookfield Page 26 10168.2 costs to collect unpaid Assessments or the Association's bank charges. All late charges, collection fees, service charges and attorneys' fees assessed or incurred due to late payment of Assessments shall be charged to an Owner's Assessment account which shall be part of the delinquent Assessment and shall be payable and secured in the same manner as herein provided with regard to Assessments. (f) Interest on Past Due Amounts. All Assessments past due more than thirty (30) days, unpaid fines and other amounts owed to the Association by any Owner which are not paid when due shall bear interest from the date due until paid at the rate of eighteen percent (18%) per annum, but not in excess of the maximum rate allowed by applicable law. (g) Suspension of Right to Use Common Area. In addition to the other powers herein granted, the Board may suspend the right of Owner to use any of the Common Area during the time that such Owner is delinquent in paying any Assessment. (h) Suspension of Voting Rights. No Owner who is delinquent in paying its Assessments shall have the right to vote as a member of the Association while such delinquency continues; an Owner may cure a delinquency at a meeting to regain the right to vote by paying all outstanding amounts (including interest, fines, and penalties) by cashier's or certified check or other good funds acceptable to the Board. (i) Working Capital Contributions. Upon acquisition of record title to a Lot by the first Owner other than Declarant or a Builder, a contribution shall be made by or on behalf of such first Owner to the working capital of the Association in an amount equal to 150 Dollars ($150.00). This amount is not refundable, shall be in addition to, not in lieu of, the Maintenance Assessment levied on the Lot and shall not be considered an advance payment of any portion thereof. This amount shall be deposited into escrow and disbursed there from to the Association or to the Declarant if the Association is not yet established and shall be used for covering operating and other expenses incurred by the Association pursuant to the terms of this Declaration and the bylaws of the Association. G) Transfer Fees and Fees for Issuance of Resale Certificates. The Board may, at its sole discretion, enter into contracts with third parties to oversee the daily operation and management of the Association. These third parties may have fees, which will be charged to an Owner for the transfer of a significant estate or fee simple title to a Lot and the issuance of a Resale Certificate. The Association or its agent shall not be required to issue a Resale Certificate until payment for the cost thereof has been received by the Association or its agent. Transfer fees and fees for the issuance of a Resale Certificate are not refundable and may not be regarded as a prepayment of or credit against regular or special assessments, and are in addition to the Working Capital Contribution in Section 6.5(i) above. This Section does not obligate the Board or any third party to levy such fees. Brookfield Page 27 10168.2 ARTICLE 7 COMMON AREA Section 7.1 Right to Use Common Area. Each Owner, the members of that Owner's immediate family, and the Owner's guests (provided guests are accompanied by an Owner)shall have the right to use the Common Area for its intended purposes as herein provided. The Declarant and the Association shall have the right to enter on and use the Common Areas at all times to exercise their rights or (in the case of the Association) perform its duties hereunder. Section 7.2 Specific Facilities. Specific facilities, if any, to be located in the Common Area shall be determined by Declarant. The Declarant and the Board may promulgate reasonable rules and regulations for use of these facilities. Section 7.3 Maintenance of Common Area. The Association shall be solely responsible for all maintenance, repair, replacement, and improvement of the Common Areas, utilizing the Assessments for such purposes as herein provided. Declarant shall have no responsibility for maintenance, repair, replacement, or improvement of the Common Area after initial construction. Section 7.4 Risk of Loss - Use of Common Area. Each Owner shall be individually responsible and assume all risk of loss associated with its use of the Common Area and use by its family members and guests. Neither the Association nor Declarant shall have any liability to any Owner or their family members or guests, or to any other Person, arising out of or in connection with the use, in any manner whatsoever, of the Common Areas or any improvements comprising a part thereof from time to time. Section 7.5 Conveyance of Common Area to Association. Declarant shall convey the Common Area to the Association, free and clear of any liens, claims or encumbrances, not later than sixty (60) days after Declarant no longer owns a Lot in the Property. ARTICLE 8 SPECIFIC DECLARANT RIGHTS Section 8.1 Rights to Annex. Declarant may annex additional property to become a portion of the Property and thereafter be subject to the terms, provisions and conditions of these Covenants, provided that so long as the Class B membership provided for in Section 5.2(b) exists, any such annexation by Declarant may require the prior approval of HUD or VA. Declarant may exercise such right by recording a supplement to this Declaration in the Records of Denton County, Texas subjecting such additional property to the terms and conditions hereof. No further action or approval shall be required or necessary for the Declarant to annex additional properties into the Property for the purpose Brookfield Page 28 10168 2 4°h rs.° fix,. of subjecting it to the Covenants. Any document subjecting additional property to the Declaration may also impose additional restrictions not found in this Declaration upon such additional property. Upon the annexation and platting of any additional property as herein provided, each lot described therein shall become a "Lot" for all purposes hereunder. Section 8.2 No Duty to Annex. Nothing herein contained shall establish any duty or obligation on the part of Declarant or any member to annex any property to this Declaration and no owner of the property excluded from this Declaration shall have any right to have such property annexed thereto. Section 8.3 Effect of Annexation on Class B Membership. In determining the number of Lots owned by Declarant for the purpose of Class B membership status according to Section 5.2 hereof, the total number of Lots covered by this Declaration, including all Lots annexed thereto, shall be considered. If Class B membership has previously lapsed but annexation of additional property restores the ratio of Lots owned by Declarant to the number required by Class B membership, such Class B membership shall be reinstated until it expires pursuant to the terms of Section 5.2. Section 8.4 Specific Declarant Rights to Amend Declaration. Declarant, without joinder of the Board, the Association, or the other Owners may amend this Declaration to correct any errors or to cause the Declaration to be in compliance with any governmental requirement (including any requirements imposed by the Federal Housing Administration,the Veterans Administration,the Department of Housing and Urban Affairs, the Federal Home Loan Mortgage Corporation, or the Government National Mortgage Association). Section 8.5 Easement/Access Right. Declarant reserves a general easement over all Streets, roads, rights of way, alleys and utility, maintenance, landscaping, wall and other easements in the Property and over the balance of the Common Area for access for the purpose of finishing development of the Property as a subdivision and as otherwise reasonably necessary to effect Declarant's rights hereunder. Such easements and rights shall expire at such time that Declarant no longer owns a Lot. Section 8.6 Assignment of Declarant Rights. Declarant may assign its rights to a successor Declarant hereunder by execution of a written document, recorded in Records of Denton County, Texas specifically stating that Declarant has assigned its rights as such to a designated assignee and declaring such assignee to be the new "Declarant" hereunder. Section 8.7 Declarant's Right to Install Improvements in Setback and Other Areas. Declarant, in connection with development of the Property and construction of homes thereon, reserves the right but shall have no obligation to install or construct walls, fences, irrigation systems and other improvements in the setback areas(being the area on, along and/or between the boundary line of a Lot and the building or setback lines applicable to such Lot). If Declarant exercises such right in a setback area, then such wall, fence, irrigation system, or other improvement shall be the property of the Owner(s) of the Lot(s) upon which or adjacent to these are located, and such Owner(s) shall maintain and Brookfield Page 29 10168.2 repair any such improvement unless Declarant or the Association, by and through the Board, shall advise the Owner(s) in writing of its intent to assume such maintenance and repair obligations. If Declarant exercises such right in the above-described non-setback areas, then such wall, fence, irrigation system, or other improvement shall be the property of the Association. So long as it owns any Lot, Declarant shall have the right, but not the obligation, to maintain and repair any such non-setback area improvements; otherwise,the Association shall assume the maintenance and repair or it may abandon such improvements at its discretion. If any governmental agency requires the maintenance, repair, or removal of any such non-setback area improvements, the Association shall assume such responsibility at its expense. If the Association so abandons such non- setback area improvements or is properly dissolved, then the Owner(s) of the Lot(s) on or adjacent to which such improvements are located shall assume maintenance and repair at its expense. Section 8.8 Replattina or Modification of Plat. From time to time, Declarant reserves the right to replat the Property or to amend or modify the Plat in order to assure a harmonious and orderly development of the Property as herein provided. Declarant may exercise such rights so long as it owns any Lot and no joinder of any other Owner shall be required to give effect to such rights, each Owner consenting to Declarant's execution of any replat on such Owners behalf. However, any such replatting or amendment of the Plat shall be with the purpose of efficiently and economically developing the Property for the purposes herein provided or for compliance with any applicable governmental regulation. Declarant's rights under this Section 8.8 shall expire at such time Declarant no longer owns a Lot. Section 8.9 Limitation of Declarant Liability. The Declarant shall not be responsible or liable for any deficit in the Association's funds. Declarant may, but is under no obligation to, subsidize any liabilities incurred bythe Association and the Declarant may, but is not obligated to, lend funds to the Association to enable it to defray its expenses, provided the terms of such loans are on reasonable market conditions at the time. Section 8.10Termination of Declarant's Responsibilities. In consideration of Declarant's deficit funding of the Association, if any, upon the occurrence of any of the following events: (i) conversion of Declarant's Class B membership status to Class A membership status; (ii) completion of any facilities in the Common Area by Declarant; or (iii) assignment of Declarant's rights hereunder pursuant to Section 8.6, then and in such event Declarant shall be fully released, relieved and forever discharged from any further duty or obligation to the Association or any of its members as Declarant by reason of the terms and conditions of this Declaration including any amendments thereof or supplements thereto, save and except the duties and obligations, if any, of Declarant as a Class A member by reason of Declarant's continued ownership of one or more Lots, but not otherwise. Further, and without regard to whether or not Declarant has been released from obligations and duties to the Association, so long as Declarant holds record title to at least one (1) Lot and holds same for sale in the ordinary course of business, neither the Association nor its Board, nor any member of the Association shall take any action that will impair or adversely affect the rights of the Declarant or cause the Declarant to suffer any financial, legal or other detriment, including but not limited to, any direct or indirect Brookfield Page 30 101682 I Will p �4„a ��°sw •-�,,.1"t' ns .x.. "+'�,',Fz+L�&iF., , ��. ,. 5.3.9Ad�"�f1R.4. by tl.�S .iin4.a.t.1.nN ,Nn i-s'�tic}.���tr °_:-. yes „ interference with the sale of Lots. In the event there is a breach of this Section, it is acknowledged that any monetary award, which may be available, would be an insufficient remedy and in addition to all other remedies, the Declarant shall be entitled to injunctive relief restraining the Association, its Board or any member of the Association from further breach of this Section. ARTICLE 9 MISCELLANEOUS PROVISIONS Section 9.1 Terms and Renewal. These Covenants shall commence on the date hereof and shall continue in effect for a period of thirty (30) years. Thereafter these Covenants shall automatically renew for subsequent periods of ten (10)years each unless Owners owning at least ninety percent (90%) of the Lots elect to terminate these Covenants by written instrument recorded in the Records of Denton County, Texas. Section 9.2 Enforcement. The terms, provisions and conditions of this Declaration and any Design Guidelines shall be enforceable by Declarant, the ACC, the Association, and each Owner. The Board shall have the power and authority to impose reasonable fines(which shall not exceed$500.00 for each separate violation) for violation of this Declaration, any Design Guidelines or any rule or regulation of the Association,which shall constitute a lien upon the Lot of the violating Owner as provided in the Declaration, and to suspend the Owner's right to vote or any Person's right to use of the Common Area. Each day the violation continues to exist shall constitute a separate violation. If any occupant, guest, or invitee of a Lot violates the Declaration, any Design Guidelines or a rule or regulation of the Association and a fine is imposed, the fine shall first be assessed against such occupant, guest, or invitee; provided, however, if such occupant, guest, or invitee does not pay the fine within thirty (30) days after written demand for payment from the Association, the Owner shall pay the fine upon notice from the Association. The failure of the Board to enforce any provision of the Declaration, any Design Guidelines or any rule or regulation of the Association shall not operate as a waiver of the right of the Board to do so thereafter. Section 9.3 General Easement for Encroachments,Access, Maintenance and Utilities. Each Owner grants to the Association, the Board, the Declarant and the other Owners a general easement for the maintenance of any minor encroachments of Common Area facilities over adjoining Lots and for access to and from each Owner's Lot through driveways, rights of way and easements as reflected on the Plat for the purpose of giving effect to the provisions of these Covenants. Section 9.4 Amendment of Declaration. These Covenants may be amended by Declarant as provided in Section 8.4. In addition, the Declaration may be amended at any time and in any respect with the approval of Owners owning at least ninety percent(90%) of the Lots; provided, however, that no such amendment shall be effective unless joined in by Declarant until such time as Declarant no longer owns a Lot. In addition, so long as the Brookfield Page 31 10168.2 ., Class B membership provided for in Section 5.2(b) exists, any amendment of these Covenants may, at Declarant's discretion, require the prior approval of HUD or VA. Section 9.5 Authorized Government Authority Provisions. All construction within the Property shall also comply with all applicable governmental agency ordinances and regulations. If any ordinance or regulation imposed by the governmental agency imposes more demanding, extensive or restrictive requirements than those set forth in this Declaration, such requirements shall govern. No ordinance or regulations adopted by the Agency shall lessen the requirements set forth in these Covenants. Section 9.6 HUDIVA Approval. Should any approval from HUD or VA be required under the terms of this Declaration, Declarant shall forward such request for approval to HUD and/or VA. If neither HUD nor VA notifies Declarant of any objection to the request for approval within twenty(20) days of the date such request for approval was forwarded to HUD or VA, then such approval shall be deemed to have been granted. Section 9.7 Notices. Any notice required to be given to any Owner under the terms of this Declaration shall be deemed to have been properly delivered when deposited with the United States Postal Service, postage prepaid, properly addressed to the addressee. Each Lot Owner's address for purpose of notice hereunder shall be deemed to be the Residence or other Structure located on its Lot. Section 9.8 Indemnifications. Neither the Declarant, including any of its officers, directors, employees or agents, nor any officer, director or agent of the Association, nor any member of the ACC shall be liable to any Person, Owner or any person claiming by or through any Owner or otherwise for any act or omission in the performance of the duties of such Declarant or officer, director or agent of the Association, or member of the ACC except only if such act or omission should be judicially declared to constitute fraud or intentional willful misconduct. The Association shall and does hereby agree to indemnify the Declarant, including any of its officers, directors, agents or employees, the officers, directors and agents of the Association, and the members of the ACC against all claims, demands, actions and proceedings and all expenses in connection therewith arising from the good faith exercise of their duties pursuant to this Declaration. Section 9.9 Severability. If any of the terms hereof shall be invalid by a court of competent jurisdiction, such invalidity shall not affect the other provisions of these Covenants, which shall be in full force and effect. Section 9.10 Acceptance by Owners of Rights and Obligations. By the recording of a deed or other conveyance transferring all or part of an interest in a Lot subject to this Declaration, the person or entity to whom such Lot or interest is conveyed shall be deemed to accept and agree to be bound by and subject to all the provisions of the Declaration, any Design Guidelines, the articles and bylaws of the Association, including any rules or regulations adopted or promulgated by the Association, whether or not mention thereof is made in said deed. Brookfield Page 32 10168.2 +�"�' +s ' . a; c ✓ -. "a`":r m: ',"...' Eo- D F a. .; k`�`u`sr.,*,Ts:�Ma3v. s a .4r ,P:• , i", Section 9.11 Disclosure by Declarant. Attached hereto as Exhibit D are summaries of certain disclosures made in various forms to all purchasers of a Residence from Declarant, who, having made such disclosures to such purchasers of a Residence and having attached such summaries to this Declaration, shall be deemed to have fully made such disclosures to any Person acquiring title to any Lot and is hereby fully released and forever discharged by any Owner of a Lot from any further duty or obligation to make such disclosures. Section 9.12Arbitration of Disputes Involving Declarant. (a) ANY AND ALL DISPUTES ARISING HEREUNDER BETWEEN AN OWNER AND DECLARANT, SHALL BE SUBMITTED TO BINDING ARBITRATION AND NOT TO A COURT FOR DETERMINATION. ARBITRATION SHALL COMMENCE AFTER WRITTEN NOTICE IS GIVEN FROM EITHER PARTY TO THE OTHER; SUCH ARBITRATION SHALL BE ACCOMPLISHED EXPEDITIOUSLY IN DENTON COUNTY AND SHALL BE CONDUCTED IN ACCORDANCE WITH THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA"). THE ARBITRATION SHALL BE CONDUCTED BY THREE (3) ARBITRATORS, ONE OF WHOM SHALL BE APPOINTED BY THE OWNER AND ONE OF WHOM SHALL BE APPOINTED BY DECLARANT, THE THIRD ARBITRATOR SHALL BE APPOINTED BY THE FIRST TWO ARBITRATORS. THE ARBITRATORS SHALL BE SELECTED FROM A LIST OF ARBITRATORS SUBMITTED BY THE AAA. JUDGMENT UPON THE AWARD RENDERED BY THE ARBITRATORS MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. ARBITRATION SHALL NOT COMMENCE UNTIL THE PARTY REQUESTING IT HAS DEPOSITED ONE THOUSAND FIVE HUNDRED AND N0/100 U. S. DOLLARS ($1,500.00) WITH THE ARBITRATORS AS A RETAINER FOR THE ARBITRATORS' FEES AND COSTS. THE PARTY REQUESTING ARBITRATION SHALL ADVANCE SUCH SUMS AS ARE REQUIRED FROM TIME TO TIME BY THE ARBITRATORS TO PAY THE ARBITRATORS' FEES AND COSTS, UNTIL THE PREVAILING PARTY IS DETERMINED OR THE PARTIES HAVE AGREED IN WRITING TO AN ALTERNATIVE ALLOCATION OF FEES AND COSTS. EACH PARTY SHALL PAY HIS/HER OWN LEGAL FEES AND COSTS AND ANY OTHER FEES INCURRED IN CONNECTION WITH AN ARBITRATION PROCEEDING WHICH ARISES OUT OF OR RELATES IN ANY WAY TO THIS AGREEMENT PROVIDED, HOWEVER, THAT THE ARBITRATION PANEL SHALL AWARD THE ARBITRATORS' FEES AND COSTS TO THE PREVAILING PARTY IN ITS ARBITRATION JUDGMENT. (b) Other Dispute Resolutions. Notwithstanding Declarant's and Owner's intent to submit any controversy or claim arising out of or relating to this Declaration to arbitration, in the event that a court of competent jurisdiction shall determine or a relevant law shall provide that a particular dispute is not subject to the arbitration provisions in this Section, then the parties agree to the following provisions: (c) Waiver of Trial by Jury. EACH OWNER ACKNOWLEDGES THAT THIS DECLARATION IS A SOPHISTICATED LEGAL DOCUMENT. ACCORDINGLY, JUSTICE WILL BEST BE SERVED IF ISSUES REGARDING THIS DECLARATION ARE HEARD BY A JUDGE IN A COURT PROCEEDING, AND NOT A JURY. EACH OWNER AGREES THAT ANY CLAIM, DEMAND, ACTION, OR CAUSE OR ACTION, WITH RESPECT TO Brookfield Page 33 10168 2 e ti p s WHETHER ANY ACTION, PROCEEDING, CLAIM, COUNTERCLAIM, OIF CRTHOS �TMACTION IS IN CONTRACT AND/OR IN TOR (REGARDLESS ARISING OUT OF, IN CONNECTION PRESENTLY RECOGNIZED OR NOT), BASED ON, WITH OR IN ANY WAY RELATED TO THIS DECLARATION,TEN STATEMENT, CONDUCT, COURSE OF DEACOURSE OF LING, VERBALPARTY VALIDATION, PROTECTION, ENFORCEMENT ACTION OMISSION ANDI NOT A JURY. SHALL BE HEARD BY A JUDGE IN A COURT PROCEEDING (THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK) Brookfield Page 34 101682 1' Executed by Declarant as of the date set forth above. BROOKFIELD ACQUISITIONS, L.P., a Texas limited partnership By: MMM Ventures, LLC, a Texas corporation, its General Partner By: President STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, on this day personally appeared ' President of MMM Ventures, LLC, a Texas Corporation, General Partner of Brookfield Acquisitions, L.P., a Texas Limited Partnership, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of BROOKFIELD ACQUISITIONS, L.P., a Texas limited partnership, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this_day of , 20 Notary Public, State of Texas My Commission Expires: Brookfield 10168.2 "P EXHIBIT A Legal Description TRACT 1 5.486 ACRES BEING a tract of land located in the WILLIAM C. HALLMARK SURVEY, ABSTRACT NO. 518, Denton County, Texas and being part of a tract of land described as Tract 2 in Deed to Brookfield Acquisitions, L.P., recorded in Document Number 2007-45036, Deed Records, Denton County, Texas and being more particularly described as follows: BEGINNING at a 1/2 inch iron rod with a yellow plastic cap stamped "DAA"set in the North right-of-way line of State Highway No. 114, a 100 foot right-of-way, at the Southwest corner of said Tract 2, said point being North 89 degrees 31 minutes 05 seconds West, a distance of 1,026.70 feet from a concrete monument found at the Southeast corner of said Tract 2 THENCE North 00 degrees 19 minutes 46 seconds East, along the West line of said Tract 2, a distance of 686.80 feet to a point for corner; THENCE South 57 degrees 04 minutes 50 seconds East, leaving said West line, a distance of 417.13 feet to a point for corner; THENCE North 70 degrees 37 minutes 46 seconds East, a distance of 56.90 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set for corner; THENCE South 10 degrees 30 minutes 54 seconds East, a distance of 97.38 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set for corner; THENCE South 79 degrees 29 minutes 06 seconds West, a distance of 10.00 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set for corner; THENCE South 10 degrees 30 minutes 54 seconds East, a distance of 84.56 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set for corner at the beginning of a curve to the right having a central angle of 10 degrees 59 minutes 49 seconds, a radius of 420.00 feet and a chord bearing and distance of South 05 degrees 00 minutes 59 seconds East, 80.49 feet; THENCE Southerly, along said curve to the right, an arc distance of 80.61 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set for corner; THENCE South 00 degrees 28 minutes 55 seconds West, a distance of 211.75 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set for corner; Brookfield Exhibit A to Declaration of Covenants, Page I Conditions and Restrictions 10168.2 THENCE South 45 degrees 28 minutes 55 seconds West, a distance of 14.14 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set for corner in the North right-of- way line of said State Highway No. 114 THENCE North 89 degrees 31 minutes 05 seconds West, along said North right-of-way line, a distance of 426.33 feet to the POINT OF BEGINNING and containing 5.486 acres of land, more or less. TRACT 5.825 ACRES BEING a tract of land located in the WILLIAM C. HALLMARK SURVEY, ABSTRACT NO. 518, Denton County, Texas and being part of a tract of land described as Tract 1 and 2 in Deed to Brookfield Acquisitions, L.P., recorded in Document Number 2007-45036, Deed Records, Denton County, Texas and being more particularly described as follows: BEGINNING at a concrete monument found in the North right-of-way line of State Highway No. 114, a 100 foot right-of-way, at the Southeast corner of said Tract 2, said point being South 89 degrees 31 minutes 05 seconds East, a distance of 1,026.70 feet from a 1/2 inch iron rod with a yellow plastic cap stamped "DAX set at the Southwest corner of said Tract 2; THENCE North 89 degrees 31 minutes 05 seconds West, along said North right-of-way line, a distance of 500.37 feet to a 60D set for corner; THENCE North 44 degrees 31 minutes 05 seconds West, leaving said North right-of-way line, a distance of 14.14 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set for corner; THENCE North 00 degrees 28 minutes 55 seconds East, a distance of 211.75 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAX set for corner at the beginning of a curve to the left having a central angle of 10 degrees 59 minutes 49 seconds, a radius of 500.00 feet and a chord bearing and distance of North 05 degrees 00 minutes 59 seconds West, 95.82 feet; THENCE Northerly, along said curve to the left, an arc distance of 95,97 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAX set for corner; THENCE North 10 degrees 30 minutes 54 seconds West, a distance of 84.56 feet to a point for corner; THENCE South 79 degrees 29 minutes 06 seconds West, a distance of 10.00 feet to a point for corner; THENCE North 10 degrees 30 minutes 54 seconds West, a distance of 106.72 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set for corner-, Brookfield Exhibit A to Declaration of Covenants, Page 2 Conditions and Restrictions 10168.2 g�i$ THENCE North 70 degrees 37 minutes 46 seconds East, a distance of 116.17 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set for corner; THENCE North 88 degrees 03 minutes 48 seconds East, a distance of 89.87 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set for corner; THENCE South 65 degrees 01 minutes 18 seconds East, a distance of 400.62 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set for corner in the East line of said Tract 1; THENCE South 00 degrees 08 minutes 43 seconds West, passing the Northeast corner of said Tract 2 at a distance of 6.97 feet and continuing for a total distance of 380.14 feet to the POINT OF BEGINNING and containing 5.825 acres of land, more or less. TRACT 220.268 ACRES BEING a tract of land located in the WILLIAM C. HALLMARK SURVEY, ABSTRACT NO. 518, Denton County, Texas and being a part of those tracts of land described as Tract 1 and Tract 2 in Deed to Brookfield Acquisitions, L.P., recorded in Document Number 2007- 45036, Deed Records, Denton County, Texas and being more particularly described as follows: COMMENCING at a concrete monument found in the North right-of-way line of State Highway No. 114, a 100 foot right-of-way, at the Southeast corner of said Tract 2; THENCE North 89 degrees 31 minutes 05 seconds West, along said North right-of-way line, a distance of 500.37 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" found at the POINT OF BEGINNING of the tract of land herein described: THENCE North 89 degrees 31 minutes 05 seconds, continuing along said North right-of- way line, a distance of 100.00 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" found for corner; THENCE North 45 degrees 28 minutes 55 seconds, East, leaving said North right-of-way line, a distance of 14.14 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" found for corner; THENCE North 00 degrees 28 minutes 55 seconds East, a distance of 211.75 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA"found for corner at the beginning of a curve to the left, having a central angle of 10 degrees 59 minutes 49 seconds, a radius of 420.00 feet and a chord bearing and distance of North 05 degrees 00 minutes 59 seconds West, 80.49 feet; Brookfield Exhibit A to Declaration of Covenants, Page 3 Conditions and Restrictions 10168,2 4Y t k� 6A 1 THENCE Northerly, along said curve to the left, an arc distance of 80.61 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" found for corner; THENCE North 10 degrees 30 minutes 54 seconds East, a distance of 84.56 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" found for corner; THENCE North 79 degrees 29 minutes 06 seconds East, a distance of 10.00 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" found for corner; THENCE North 10 degrees 30 minutes 54 seconds West, a distance of 97.38 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" found for corner; THENCE South 70 degrees 37 minutes 46 seconds West, a distance of 56.90 feet to a point for corner; THENCE North 57 degrees 04 minutes 50 seconds West, a distance of 417.13 feet to a point for corner in the West line of said Tract 2 and the East line of WILLOW SPRINGS SUBDIVISION, an Addition to Denton County,Texas according to the Platthereof recorded in Cabinet D, Page 317, Plat Records, Denton County, Texas; THENCE North 00 degrees 19 minutes 46 seconds East, a distance of 1,831.67 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "5439"found at the Northeast corner of Lot 13, Block A of said Addition; THENCE South 89 degrees 59 minutes 13 seconds West, along the North line of said Lot 13, a distance of 13.26 feet to a 1 inch iron rod found at the Southeast corner of a tract of land described in Deed to Robert B. Logan, recorded in Volume 515, Page 92, Deed Records, Denton County, Texas; THENCE North 00 degrees 14 minutes 58 seconds East, a distance of 1,563.70 feet to a 3/8 inch iron rod found at the Northwest corner of said Tract 1; THENCE South 89 degrees 28 minutes 37 seconds East, a distance of 3,160.54 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "EC&D"found at the Northeast corner of said Tract 1; THENCE South 00 degrees 15 minutes 25 seconds East, a distance of 2,753.84 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "EC&D" found at the most Easterly Southeast corner of said Tract 1; THENCE North 89 degrees 36 minutes 34 seconds West, a distance of 2,150.81 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "EC&D"found at an inner ell corner of said Tract 1; Brookfield Exhibit A to Declaration of Covenants, Page 4 Conditions and Restrictions 10168,2 �. f'6 Mf THENCE South 00 degrees 08 minutes 43 seconds West, a distance of 1,322.76 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" found for corner; THENCE North 65 degrees 01 minutes 18 seconds West, a distance of 400.62 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" found for corner; THENCE South 88 degrees 03 minutes 48 seconds West, a distance of 89.87 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" found for corner; THENCE South 70 degrees 37 minutes 46 seconds West, a distance of 116.17 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" found for corner; THENCE South 10 degrees 30 minutes 54 seconds East, a distance of 106.72 feet to a point for corner; THENCE North 79 degrees 29 minutes 06 seconds East, a distance of 10.00 feet to a point for corner; THENCE South 10 degrees 30 minutes 54 seconds East, a distance of 84.56 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA"found for corner at the beginning of a curve to the right, having a central angle of 10 degrees 59 minutes 49 seconds, a radius of 500.00 feet and a chord bearing and distance of South 05 degrees 00 minutes 59 seconds West, 95.82 feet; THENCE Southerly, along said curve to the right, an arc distance of 95.97 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA"found for corner; THENCE South 00 degrees 28 minutes 55 seconds West, a distance of 211.75 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" found for corner; THENCE South 44 degrees 31 minutes 05 seconds East, a distance of 14.14 feet to the POINT OF BEGINNING and containing 220.268 acres of land, more or less. Brookfield Exhibit A to Declaration of Covenants, Page 5 Conditions and Restrictions 10168.2 } p v - EXHIBIT B Articles of Incorporation Brookfield Exhibit B to Declaration of Covenants, Page 1 Conditions and Restrictions 10168.2 EXHIBIT C BYLAWS OF BROOKFIELD HOA ARTICLE I OFFICES Principal Office 1.01. The principal office of the Corporation in the State of Texas shall be located at. 1221 North 1-35 East, Suite 200, Carrollton, Texas 75006 The Corporation may have such officers, either within or without the State of Texas, as the Board of Directors may determine or as the affairs of the Corporation may require from time to time. Registered Office and Registered Agent 1.02. The Corporation shall have and continuously maintain in the State of Texas a registered office, and a registered agent whose office is identical with such registered office, as required by the Texas Non-Profit Corporation Act. The registered office may be, but need not be, identical with the principal office of the Corporation in the State of Texas, and the address of the registered office may be changed from time to time by the Board of Directors. ARTICLE 2 BOARD OF DIRECTORS General Powers 2.01. The affairs of the Corporation shall be managed by its Board of Directors. Directors need not be residents of Texas. Number Election Tenure and Qualification 2.02. The number of Directors shall be fixed by the Board of Directors. The number of Directors shall be at least three(3). Each Director shall hold office until the next Brookfield Exhibit C to Declaration of Covenants, Page 1 Conditions and Restrictions 10168.2 -11,11�k"p.�,-""�,�""-"*""i I C . V, =k Arm, regular annual meeting and thereafter until his or her successor shall have been elected and qualified, or until his or her earlier death, resignation or removal. Regular Meetings 2.03. A regular annual meeting of the Board of Directors shall be held without notice other than as provided herein. The Board of Directors may provide by resolution the time and place, either within or without the State of Texas, for the holding of additional regular meetings of the Board without notice other than such resolution. Special Meetings 2.04. Special meetings of the Board of Directors maybe called by or at the request of the President. A special meeting of the Board of Directors shall be called by the Secretary whenever requested in writing by a majority of the Directors. Notice 2.05. Notice of any special meeting of the Board of Directors shall be given at least three (3) days prior thereto by written notice delivered personally or sent by mail or telegram to each Director at his or her address as shown by the records of the Corporation. If mailed, such notice shall be deemed to be delivered two (2) days after deposited in the United States mail so addressed with postage thereon prepaid. If notice be given by telegram, such notice shall be deemed to be delivered when the telegram is delivered to the telegraph company. Any Director may waive notice of any meeting in writing. All such written waivers shall be filed with the minutes of such meeting. The attendance of a Director at any meeting shall constitute a waiver of notice of such meeting, except where a Director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board need be specified in the notice or waiver of notice of such meeting, unless specifically required by law or by these bylaws. Quorum 2.06. A majority of the Board of Directors shall constitute a quorum for the transaction of business at any regular or special meeting of the Board; but if less than a majority of the Directors are present at said meeting, a majority of the Directors present may adjourn the meeting from time to time without further notice. Manner of Acting 2.07. The act of a majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, unless the act of a greater number is required by law or by these Bylaws. Brookfield Exhibit C to Declaration of Covenants, Page 2 Conditions and Restrictions 10168.2 1 .=,7 ,,,"+ ,,�, � ur4s,�.•'�� , r, i+.. r�.z " a�+; a,E�,a� F, .g` d , ra.� "su;y,Y wa, ,i�,fl ,�kyY< Vacancies 2.08. Any vacancy occurring in the Board of Directors and any directorship to be filled by reason of an increase in the number of Directors, shall be filled by the Board of Directors. A Director elected to fill a vacancy shall be elected for the unexpired term of his or her predecessor in office, or until his or her successor qualifies, or until his or her earlier death, resignation or removal. Powers 2.09. No Director,officer or employee of this Corporation shall have the power to incur any indebtedness on behalf of the Corporation in excess of One Thousand Dollars ($1,000.00) unless he or she has obtained advance authorization to do so by the Board of Directors. Informal Action by Directors 2.10. Any action required bylaw to betaken at a meeting of Directors, or any action which may be taken at a meeting of Directors, may be taken without a meeting if a consent in writing setting forth the action so taken shall be signed by all of the Directors. ARTICLE 3 OFFICERS Officers 3,01. The officers of the Corporation shall be a President, a Vice President, a Secretary, a Treasurer, and such other officers as may be elected in accordance with the provisions of this Article. The Board of Directors may elect or appoint such other officers, including additional Vice Presidents, one or more Assistant Secretaries and one or more Assistant Treasurers, as it shall deem desirable, such officers to have the authority and perform the duties prescribed, from time to time, by the Board of Directors. Any two or more offices may be held by the same person, except the offices of President and Secretary. Election and Term of Office 3.02. The officers of the Corporation shall be elected annually by the Board of Directors at the regular annual meeting of the Board of Directors. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as possible. New offices may be created and filled at any meeting of the Board of Directors. Each officer shall hold office until his or her successor shall have been duly elected and shall have qualified. Brookfield Exhibit C to Declaration of Covenants, Page 3 Conditions and Restrictions 10168.2 a. ..�,,... yy. ,..; ,. li 11 Removal 3.03. Any officer elected or appointed by the Board of Directors may be removed by the Board of Directors whenever in its judgment the best interests of the Corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the officer so removed. Vacancies 3.04. A vacancy in any office because of death, resignation, disqualification or otherwise, may be filled by the Board of Directors for the unexpired portion of the term. President 3.05. The President shall be the principal executive officer of the Corporation and shall in general supervise and control all of the business and affairs of the Corporation. He or she shall preside at all regular and special meetings of the Board of Directors. The President may sign, withoutjoinder of the Secretary or any other officer of the Corporation, any deeds, mortgages, bonds, contracts, or other instruments which the Board of Directors have authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by these bylaws or by statute to some other officer or agent of the Corporation; and in general he or she shall perform all duties incident to the office of President and such other duties as may be prescribed by the Board of Directors from time to time. Vice President 3.06. In the absence of the President or in the event of his or her inability or refusal to act, the Vice President(or in the event there be more than one Vice President, the Vice Presidents in order of their election)shall perform the duties of the President, and when so acting shall have all the powers of and be subject to all the restrictions upon the President. Any Vice President may sign, without joinder of the Secretary or any other officer of the Corporation, any deeds, mortgages, bonds, contracts, or other instruments which the Board of Directors have authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by these bylaws or by statute to some other officer or agent of the Corporation. Any Vice President shall perform such other duties as from time to time may be assigned to him or her by the President or Board of Directors. Treasurer 3.07. If required by the Board of Directors, the Treasurer shall give a bond for the faithful discharge of his or her duties in such sum and with such surety or sureties as the Board of Directors shall determine. The Treasurer shall have charge and custody of and be responsible for all funds and securities of the Corporation; receive and give receipts for Brookfield Exhibit C to Declaration of Covenants, Page 4 Conditions and Restrictions 10168.2 moneys due and payable to the Corporation from any source whatsoever, and deposit all such moneys in the name of the Corporation in such banks, trust companies, or other depositaries as shall be selected in accordance with the provisions of Article 6 of these bylaws; and in general perform all the duties incident to the office of Treasurer and such other duties as from time to time may be assigned to him or her by the President or by the Board of Directors. The Treasurer shall make a written report of the finances of the Corporation at each regular meeting of the Directors, and at such other time as the Directors shall require. Secretary 3.08. The Secretary shall keep the minutes of the meetings of the Board of Directors in one or more books provided for that purpose; give all notices in accordance with the provisions of these bylaws or as required by law; be custodian of the corporate records; and, in general, perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned to him or her by the President or by the Board of Directors. Assistant Treasurers and Assistant Secretaries 3.09. If required by the Board of Directors, the Assistant Treasurers shall give bonds for the faithful discharge of their duties in such sums and with such sureties as the Board of Directors shall determine. The Assistant Treasurers and Assistant Secretaries in general shall perform such duties as shall be assigned to them by the Treasurer or the Secretary or by the President or the Board of Directors. ARTICLE 4 COMMITTEES Committees of Directors 4.01. The Board of Directors, by resolution adopted by a majority of the Directors in office, may designate and appoint one or more committees, each of which shall consist of two or more directors, which committees, to the extent provided in said resolution, shall have and exercise the authority of the Board of Directors in the management of the Corporation. However, no such committee shall have the authority of the Board of Directors in reference to amending, altering, or repealing the bylaws; electing, appointing, or removing any member of any such committee or any Director or officer of the Corporation; amending the articles of incorporation; adopting a plan of merger or adopting a plan of consolidation with another corporation; authorizing the sale, lease, exchange, or mortgage of all or substantially all of the property and assets of the Corporation; authorizing the voluntary dissolution of the Corporation or revoking proceedings therefor; adopting a plan for the distribution of the assets of the Corporation; or amending, altering, or repealing any resolution of the Board of Directors which by its terms provides that it shall not be amended, altered, or repealed by such committee. The designation and Brookfield Exhibit C to Declaration of Covenants, Page 5 Conditions and Restrictions 10168,2 (' " r'�` ',�P R"t° nt,t"' a�rAr* ', ,�, },Y iG x w. yyr �.`• dr`' j�A 0. r � �. "�.. appointment of any such committee and the delegation thereto of authority shall not operate to relieve the Board of Directors, or any individual Director, of any responsibility imposed on it or him or her by law. Committees shall at all times remain subject to the control and supervision of the Board of Directors. Other Committees 4.02. Other committees not having and exercising the authority of the Board of Directors in the management of the Corporation may be designated by a resolution adopted by a majority of the Directors present at a meeting at which a quorum is present. Except as otherwise provided in such resolution, members of each such committee shall be appointed by the President of the Corporation. Any members thereof may be removed by the person or persons authorized to appoint such member whenever in their judgment the best interests of the Corporation shall be served by such removal. Term of Office 4.03. Each member of a committee shall continue as such until the next annual meeting of the Directors of the Corporation and until his or her successor is appointed, unless the Committee shall be sooner terminated, or unless such member be removed from such committee, or unless such member shall cease to qualify as a member thereof. 4.04. One member of each committee shall be appointed chairman by the person or persons authorized to appoint the members thereof. Vacancies 4.05. Vacancies in the membership of any committee may be filled by appointments made in the same manner as provided in the case of the original appointments. Quorum 4.06. Unless otherwise provided in the resolution of the Board of Directors designating a committee, a majority of the whole committee shall constitute a quorum and the act of a majority of the members present at a meeting at which a quorum is present shall be the act of the committee. Rules 4.07. Each committee may adopt rules for its own government not inconsistent with these bylaws or with rules adopted by the Board of Directors. Brookfield Exhibit C to Declaration of Covenants, Page 6 Conditions and Restrictions 10168.2 u ,�ja tta, 5. 5 fi>'' y � •"a„. �' r �r ° ' '� ' Ln# -^ fi is r e r S . t y r 'h^ ARTICLE 5 MEMBERS 5.01. The Corporation shall have members.The qualifications for members and the rights and obligations of members, including voting rights and obligations to pay assessments of the Corporation, are set forth in those certain Covenants, Conditions and Restrictions as amended, the terms and provisions of which are incorporated herein by reference for all purposes. ARTICLE 6 CONTRACTS, CHECKS, DEPOSITS Contracts FUNDS 6.01. The Board of Directors may authorize any officer or officers, agent or agents of the Corporation, in addition to the officers so authorized by these bylaws, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the Corporation. such authority may be general or confined to specific instances. Checks and Drafts 6.02. All checks, drafts, or orders for the payment of money, notes, or other evidences of indebtedness issued in the name of the Corporation shall be signed by such officer or officers, agent or agents of the Corporation and in such manner as shall from time to time be determined by resolution of the Board of Directors. In the absence of such determination by the Board of Directors, such instruments, all be signed by the Treasurer or an Assistant Treasurer and countersigned by the President or a Vice President of the Corporation. Deposits 6.03. All funds of the Corporation shall be deposited from time to time to the credit of the Corporation in such banks, trust companies, or other depositaries as the Board of Directors may select. Gifts 6.04. The Board of Directors may accept on behalf of the Corporation any contribution, gift, bequest, or devise for the general purposes or for any special purpose of the Corporation. Brookfield Exhibit C to Declaration of Covenants, Page 7 Conditions and Restrictions 10168.2 A � 'rz'.-' "i . a°•' aA<',r k.i'��a .�.s'ti�ia v ,+ 1rCtsit � a sq;�'a" .+a ti. ,. ARTICLE 7 INDEMNIFICATION Persons 7.01. The Corporation shall indemnify to the extent provided in Sections 7.02,7.03 or 7.04 of this Article: (1) Any person who is or was a Director, officer, agent or employee of the Corporation; and (2) Any person who serves or served at the Corporation's request as a Director, officer, agent, employee, partner or trustee or another corporation, or of a partnership, joint venture, trust or other enterprise. Extent in Derivative Suits 7.02. In case of a suit by or in the right of the Corporation against a person named in Section 7.01 by right of his or her holding a position named in Section 7.01, the Corporation shall indemnify him, if he or she satisfies the standard in Section 7.03, for expenses (including attorneys fees, but excluding amounts paid in settlement)actually and reasonably incurred by him or her in connection with the defense or settlement of the suit. Standard in Derivative Suits 7.03. In case of a suit by or in the right of the Corporation, a person named in Section 7.01 shall be indemnified only if: (1) He or she is successful on the merits or otherwise; or (2) He or she acted in good faith in the transaction which is the subject of the suit, and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the Corporation. However, he or she shall not be indemnified in respect of any claim, issue or matter as to which he or she has been judged liable for gross negligence or willful misconduct in the performance of his or her duty to the corporation unless (and only to the extent that) the court in which the suit was brought shall determine, upon application that despite the adjudication, but in view of all the circumstances, he or she is fairly and reasonably entitled to indemnity for such expenses as the court shall deem proper or if the person is found liable on the basis that personal benefit was improperly received by him or her. Extent in Non-Derivative Suits Brookfield Exhibit C to Declaration of Covenants, Page 8 Conditions and Restrictions 10168.2 iafflakl t �}',.i�.� � �S P :lib - r""� n , MAL 'Yn� a �yFE a zrfc.. A4.._y G'., !k MEEMM 7.04. In case of a suit, action or proceeding (whether civil, criminal, administrative or investigative), other than a suit by or in the right of the Corporation, together hereafter referred to as a non-derivative suit, against a person named in Section 7.01 by reason of his or her holding a position named in Section 7.01,the Corporation shall indemnify him or her, if he or she satisfies the standard in Section 7.05,for amounts actually and reasonably incurred by him or her in connection with the defense or settlement of a non-derivative suit as: (1) Expenses (including attorneys fees); (2) Amounts paid in settlement; (3) Judgments; and (4) Fines. Standard in Non-Derivative Suits 7.05. In case of a non-derivative suit, a person named in Section 7.01 shall be indemnified only if: (1) He or she is successful on the merits or otherwise; or (2) He or she acted in good faith in the transaction which is the subject of the non-derivative suit, and in a manner he or she reasonably believed to be in, or not opposed to, the best interest of the Corporation. However, he or she shall not be indemnified in respect of any claim, issue or matter as to which he or she has been adjudged liable for gross negligence or willful misconduct in the performance of his or her duty to the Corporation unless (and only to the extent that)the court in which the suit was brought shall determine, upon application, that despite the adjudication, but in view of all the circumstances, he or she is fairly and reasonably entitled to indemnity for such expenses as the court shall deem proper or if the person is found liable on the basis that personal benefit was improperly received by him or her. Determination That Standard Has Been Met 7.06. A determination that the standard of Section 7.03 or Section 7.05 has been satisfied may be made by a court, or, except as stated in Section 7.05(2), the determination may be made by: (1) a majority of the Directors of the Corporation (whether or not a quorum)who were not parties to the action, suit or proceeding; or (3) independent legal counsel in a written opinion. Brookfield Exhibit C to Declaration of Covenants, Page 9 Conditions and Restrictions 10168.2 .' �"v> '°�?'Y+.; s".:KF' ';+ r.' ;� 7`C^ ^•�4f. ' ;'st'e t3.� x '�',- v an's' f Proration 7.07. Anyone making a determination under Section 7.06 may determine that a person has met the standard as to some matters but not as to others, and may reasonably prorate amounts to be indemnified. Advance Payment 7.08. The Corporation may pay in advance any expenses (including attorneys' fees) which may become subject to indemnification under Sections 7.01 through 7.07, if: (1) the Board of Directors authorizes the specific payment; and (2) the person receiving the payment undertakes in writing to repay unless it is ultimately determined that he or she is entitled to indemnification by the Corporation under Section 6.01 through Section 7.07. Non-Exclusive 7.09. The indemnification provided by Sections 7.01 through 7.07 shall not be exclusive of any other rights to which a person may be entitled by law, bylaw, agreement or disinterested directors, or otherwise. Continuation 7.10. The indemnification and advance payment provided by Sections 7.01 through 7.08 shall continue as to a person who has ceased to hold a position named in Section 7.01 and shall inure to his or her heirs, executors and administrators. Insurance 7.11. The Corporation may purchase and maintain insurance on behalf of any person who holds or who has held any position named in Section 7.01 against any liability incurred by him or her in any such position, or arising out of his or her status as such, whether or not the Corporation would have power to indemnify him or her against such liability under Sections 7.01 through 7,08. Reports 7.12 Indemnification payments, advance payments and insurance payments made under Sections 7.01 through 7.11 shall be reported in writing to the Board of Directors with the next notice of annual meeting, or within six months, whichever is sooner. Brookfield Exhibit C to Declaration of Covenants, Page 10 Conditions and Restrictions 10168.2 a � v. r afF Private Foundation Exception 7.13. Notwithstanding anything to the contrary contained in these Bylaws, if the Corporation is ever determined to be a private foundation, as defined in Section 509 of the Internal Revenue Code of 1986, (the "Code"), any indemnification provided for by this Article VI, and any insurance premiums paid on account of such indemnification provisions, shall be limited to the payment or reimbursement of expenses (other than taxes, penalties, or expenses of correction) including attorneys fees, incurred with respect to the defense of a judicial or administrative proceeding involving Chapter 42 of the Code or state laws relating to the mismanagement of funds of charitable organizations, if: (i) Such expenses are reasonably incurred in connection with proceeding; (ii) The defense is successful, or such proceeding is terminated by settlement, and the act or failure to act which led to the liability for tax under Chapter 42 was neither willful nor without reasonable cause; and (iii) The expenses are incurred by or on behalf of an officer or Director of the Corporation, or any person having powers or responsibilities similar to those of officers or directors, and with respect to any act or failure to act, the employees of the Corporation having authority or responsibility with respect to such act or failure to act. ARTICLE 8 BOOKS AND RECORDS 8.01. The Corporation shall keep correct and complete books and records of account and shall also keep minutes of the proceedings of its Board of Directors, and committees having any of the authority of the Board of Directors. ARTICLE 9 FISCAL YEAR 9.01. The fiscal year of the Corporation shall begin on the first day of January and end on the last day of December in each year. ARTICLE 10 WAIVER OF NOTICE 10.01.Whenever any notice is required to be given under the provisions of the Texas Non-Profit Corporation Act or under the provisions of the articles of incorporation or the bylaws of the Corporation, a waiver thereof in writing signed by the person or persons Brookfield Exhibit C to Declaration of Covenants, Page l 1 Conditions and Restrictions 101682 entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. ARTICLE 11 AMENDMENTS TO BYLAWS 11.01.These bylaws may be altered or amended in whole or in part, or repealed and new bylaws may be adopted by a majority of the Directors present at any regular meeting or at any special meeting, if at least seven (7) days written notice is given of an intention to alter, amend, or repeal these bylaws or to adopt new bylaws at such meeting, and such notice contains a statement of the nature of the proposed amendment(s). The undersigned, as Secretary of the Corporation, does hereby certify that the foregoing are the Bylaws of the Corporation as approved and adopted by unanimous consent of the Directors as of the day of , 20 By: Name:Ross B. Calhoun, Secretary Brookfield Exhibit C to Declaration of Covenants, Page 12 Conditions and Restrictions 10166.2 iaL EXHIBIT D Owner Acknowledgement By its acquisition and ownership of a Lot in the Property, each Owner acknowledges that: (a) due to the topography of its Lot and the Property, water will, at times, flow through and over portions of its Lot from adjacent and surrounding Lots in order to achieve positive drainage away from all applicable Lots. No adverse action may be taken by said Owner(s) to the detriment of this positive drainage on its or adjacent Lots. (b) its Lot may have "back-to-front" of"front-to-back" drainage. There may be a Swale or swales over various portions of its Lot due to this drainage situation. The depth and width of any swales will vary depending on the elevations of its and adjacent Lots. The front and the rear portions of its Lot will not be level and no adjustments to the depth or severity of any swales should be made due to cosmetic or aesthetic concerns. Any alterations made after closing to any swales by an Owner may impact the drainage as well as any foundation warranty that it may own. (c) its lot falls under the jurisdiction of the BROOKFIELD HOA, which requires mandatory affiliation thereto, including the payment of an annual fee (which may be payable on a quarterly or other basis) per Section 6.3 of the Declaration. In conjunction therewith, a proforma budget reflecting an estimate of the Association's expenses for the first full year of operation are attached. It will also incur a working capital contribution fee and a transfer fee per Section 6.5 of the Declaration, which it understands should be further reviewed for more detailed information regarding Association dues, assessments and restrictions. (d) each Lot will be serviced by for electrical, by for telephone service and although other service providers may utilize the utility easements and/or public rights-of-way throughout the Property. (e) it understands and agrees that neither Declarant nor Builder has any responsibility as to the present condition or future maintenance of any trees on its Lot. Furthermore, it is understood that neither Declarant nor Builder makes any assurances, implied or stated, in regard to the survival of any trees during the construction process of building and completing a Residence on its Lot. It is also acknowledged that neither Declarant nor Builder has any liability consideration on trees either during construction or after a Residence is purchased and occupied on the Lot. It is further understood that each Owner assumes all responsibility for the maintenance and the condition of any trees on his Lot. (f) any modifications or additions to its Residence or any Structure on its Lot requires prior submittal to and approval of plans and specifications by the Association's ACC pursuant to the Declaration. It is also understood that failure to so Brookfield Exhibit D to Declaration of Covenants, Page 1 Conditions and Restrictions 10168 2 w :- re . :, 4y li comply may result in the imposition of fines against the Owner and/or the removal of such modifications or additions at Owner's expense. (g) there is no prescribed time for the construction or marketing by Builder or Declarant of a Residence on any Lot or the Lot itself. It is also understood that Builder and Declarant make no assurances regarding any established period of time during which Lots near the model homes or trailers of any Builder will remain vacant since the use of such homes or trailers is of an indeterminate length of time. (h) there is an existing amenity center, with swimming pool and building. Additional improvements are planned for the Property in the future. (i) it should direct any issues, concerns or questions regarding the Common Area or the Association to the Managing Agent, whose name can be obtained by contacting the Builder or Declarant. SELLER'S DISCLOSURES. PURCHASER DOES HEREBY ACKNOWLEDGE, CONFIRM, AND AGREE TO EACH AND ALL THE FOLLOWING MATTERS: ALLIANCE AIRPORT (THE "AIRPORT") IS LOCATED NEAR THE PROJECT. SUCH AIRPORT CAUSES ELEVATED LEVELS OF NOISE, AIR AND VEHICULAR TRAFFIC, EXHAUST POLLUTION, AND ARTIFICIAL LIGHT, AS WELL AS RELATED HAZARDS AND OTHER UNDESIRABLE EFFECTS THAT AFFECT THE PROJECT, THE OCCUPANTS THEREOF, AND THE VISITORS THERETO. UTILITY DISTRICT. IF ANY PORTION OF THE LOTS AND/OR LAND IS SITUATED WITHIN A UTILITY DISTRICT SUBJECT TO THE PROVISIONS OF SECTION 50.301 OF THE TEXAS WATER CODE, THEN AT OR PRIOR TO ANY CLOSING, SELLER AGREES TO GIVE PURCHASER THE WRITTEN NOTICE REQUIRED BY SAID SECTION 50.301. Brookfield Exhibit D to Declaration of Covenants, Page 2 Conditions and Restrictions 10168.2 Ig14",p`T M ae 1" te. Exhibit E Development Plan 741 7M yi � 0!` ���u��ri"����� ��+� �� f Y � �� +'� �r� a '� {'•� { q t f�- } t• 1 1 r e� 'f .s f _ 4 d; xfIX 1 C.' N Brookfield Exhibit E to Development Agreement Page I 9733,8 SID, Exhibit F Gas Wells AAT-Upvic#6H AAT-YpVIcA10,&#I1, AAT-Upvlc#1.V.#8,#9 D..i--pw k f.,&.W—P.P.- SmIc 1:9,028 t�P,mtcd 1I14/20114:20:25PM Brookfield Exhibit F to Development Agreement Page 1 9733.8 Exhibit G Assignment and Assumption Agreement ASSIGNMENT AND ASSUMPTION AGREEMENT THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignmeennt")'is between and entered into as of the Y a ' ("Assignor"), and a ("Assignee") (Assignor and Assignee are hereinafter sometimes collectively referred to as the "Parties" and singularly as a"Party"). RECITALS: A. Assignor is the owner of the rights of Owner under that certain Development Agreement between the City of Fort Worth and Brookfield Acquisitions,, P. for the Brookfield L.L. (the "Agreement") Development (City Secretary Contract No. effective as of January 25, 2011, between Brookfield Acquisitions, L.P. ("Owner") and the City escribed of Fort Worth, Texas (the "City"), relating to ersedevelopment of the affects, and relates t Property the lands described on therein), to the extent that the Agreement Exhibit A attached hereto (the "Transferred Premises"). B. Assignor desires to assign certain of its rights under the Agreement as it relates to e, and Assignee desires to acquire such rights, on and subject the Transferred Premises to Assigne to the terms and conditions of this Assignment. NOW, THEREFORE, in consideration of the premises, the mutual c enantslegd obligations set forth herein, and other good and valuable consideration, sufficiency of which are hereby acknowledged,the Parties hereby agree and act as follows: I. Certain Defined Terms. Unless indicated otherwise herein, capitalized terms in this Assignment shall have the same meanings ascribed to them in the Agreement. 2. Assi_ pnment. Subject to all of the terms and conditions of this Assignment, Assignor hereby assigns all [or describespecifically cov , aff al] of erss �ect , and relates dsrights ea tithe Transferred ts rights under the Agreement, insofar as the Agreement Premises. 3. Assu_tion. Assignee hereby assumes all obligations of Assignor and any liability that may result from acts or omissions by Assignee under the Agreement as it relates to accrue dae of this the Transferred Premises that may anis ase from allrsuchand after obligationthe s andl ab litiestfrom and Assignment, and Assignor is hereby rele after the effective date of this Assignment; provided, however, this Assignment does not release Assignor from any liability that resulted from an act or omission by Assignor that occurred prior to the effective date of this Assignment unless the City approves the release in writing. Brookfield Paoe 1 Exhibit G to Development Agreement o 9733.8 i �,-v 4. Governing Law. THIS ASSIGNMENT MUST BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, AS THEY APPLY TO CONTRACTS PERFORMED WITHIN THE STATE OF TEXAS AND WITHOUT REGARD TO ANY CHOICE OF LAW RULES OR PRINCIPLES TO THE CONTRARY. 5. Counterpart/Facsimile Execution. This Assignment may be executed in multiple counterparts, each of which shall be deemed to be an original. 6. Notice to City. A copy of this Assignment shall be provided to the City within fifteen(15) days after execution. 7. Binding Effect, This Assignment shall be binding upon and shall inure to the benefit of Assignor and Assignees and their respective heirs, personal representative, successors, and assigns. EXECUTED as of the day and year first written above. ASSIGNOR: By: Printed Name: Title: ASSIGNEE: By: Printed Name: Title: STATE OF TEXAS § COUNTY OF § SWORN TO AND SUBSCRIBED before me on the day of 20_, by Notary Public, State of Texas Printed Name: My Commission Expires: Brookfield Exhibit G to Development Agreement Page 2 9733,8 7 'N, STATE , g STATE OF TEXAS § COUNTY OF § SWORN TO AND SUBSCRIBED before me on the day of , 20_, by Notary Public, State of Texas Printed Name: My Commission Expires: Brookfield Exhibit G to Development Agreement Page 3 9733.8 M&C Review CrTY CSU NC1L AGEND Aofflcial site of the City of DATE: COUNCIL ACTION� F 1/25/2011 . Approved on ,.,. CODE: C REFERENCE NO.. 1/25/2011 SUBJECT. 71'PE; C-24 720Map Authorize the NON- LOG NAME: Agreement Execution of the CONSENT PUBLIC 60BR00 "'�--- Improve COncernin Strate HEARING. KFIELD meet District g Operation of glc Partnershi G: NO Service for the ct No. 1 and q r South De p Agreement Development Extraterritorial 9 ee Denton County Water Control Agreement,r rOpkfield pevelopmenments Jurisdiction of Concerning ►Nater and ntrol and 9 een1ent, DECO ty 11 UA T10 IV.— the City of Fort Located to State Wastewater Utili 9hway 114 in the folio ty it is recommended that wing agreements: gree the City Council 1. Strategicauthorize the City Mana Improvement Partnershi ger or a Ci ment District N'0. Agreement between the City an Cie to execute the 2. DeVelOpment Agree d South Denton 3• Agreement Agreement be County Water Water and Concern between the Cit Control and Control Hing Operation O f Y and Brookfield Ac 4 vement District No�istrict be quisitions, L.P.; Controlter and Waste between the Wastewaterrv. City and the South De and Improve Utility Se ment District No. Ice Agreement between Denton County 5' Wholesale Water 1 Brookfield Acquisition PCI Denton BUY Out Se►vic meet be an A South De n County 6. a Agree Denton _ ou Option between the qua Utilities, n' Water Contract between city and A Inc.; n�' Water Control and n the qua Utilities, Inc.; 7 Improve City, Aqua Utilities, Inc Wholesale Waste ment Wastewater District No. Brookfield Ac Service 1 Acquis D�C�ION, Agreement between the L.P., South City and Aqua Utilities, Inc. .Brookfield as asrn and intends to develop use 'mperty is in Sou Is in a Utilities,ne es°Omen(hep atelY 231 acres oder of the Texas h Denton 'n Fon` ms Co n COunty Water o onvt) The props Worth's extraterritorial ented to cre mmission o Control and enience and a fronts ation Of the District bnvlron Improv necessit On State H; e District mental Quality Improve District y(CCN). Th 9hway .und roads to Brookfield haver y adoption Y dated April 19200�istrict) createdb Selo serve the D requested the of Resolution NO.3157- The city Y um pment in or to eve O a City to 01-2005 Co ents lists der provide by and hav Consent to On January 4nci1 4.7 miles ofd above, Brook Brookfield protection for asked the City tthe issuance of bo 2005. ewater system 24 inch off-site will extend 4.3 e$idents. As provide rads by the sewer miles of consider water service District s. The facilities will mains tO Conn 24-inch elation for to the con to connect the and 30-inc approval of the Ucted to CityDstandar sandMent the city, .site waiter mains "Cr"et.org/co and uracil–packet/mc will be°Ver_sized at Page 2 of tC Review developments in the area, subject to reimbursement Brookfield's expense, to serve other proposed land use and development pursuant to City policies. The Development will also be subject to City regulations. in in the City Secretary's Office, The documents, which are available for public inspection and copy 9 can be summarized as follows: The Strategic Partnership Agreement authorizes the City to annex property within the Development twill divide the sales tax proceeds equally for the first for retail development for the limned purpose of imposing sales and use tax. e designated and the D agreement provides that the City 19 years. The City's share will increase to 75 percent commencing in year 20. 'n codes and The Development Agreement provides ger u regulations fohe r hent of Developmentl building establishes land use and developme 9of ihes ons peration The Agreement Concerning Operation of the Districtnil reestablusrementsdto'proviile info mation the District, including conditions on issuance of bonds a concerning the District to the City. agreements identified as items 4 through 7 above relate to utility service fort e The four remaining a9 (Aqua Utilities)will provide the retail water and wastewater service Development. Aqua Utilities, Inc., with the 191st tourers within the Development. Aqua Utilities will provide wholesale water and wastewater to customers Aqua Utilities agreement for the first 190 residencesconstructed treated water service and wastewater evrlvatce facilities in the 9 will se residence constructed, the City has the option to purchase the water and waste on a wholesale basis. The City ears after the from Aqua Utilities for$10, and to obtain the a CCN ftime afterv17 Development and become the Development provider for the DevelopmentY retail water and wastewater Development is connected to Fort Worth's water system. on The Infrastructure and Transportation Committeereceived appr preof the idocuments ing the Development on October 12, 2010 and recommended FISCAL INFORMATIONICERTIFICATION: ement Services Director certifies that this action will have no material effect on The Financial Manag City funds. TO F-countlCenters FROM�ccountlCenters - Fernando Costa (6122) SMa ubmitted for City nager's Ory Oria_ inatina pepartment Head: S. Frank Crumb (8207) Additional Information C Paul Bounds (8567) ATTACHM_ TT rookfield WCID-FWSD ITC 10-7-2010.ppt uncil acket/mc review.asp?1D-14623&councildate 1/25/2011 8/15/ http://apps.cfwnet.org/co