HomeMy WebLinkAboutContract 33594 =1_ 1ARY
NO.
DEVELOPMENT AGREEMENT BETWEEN THE CITY OF FORT WORTH,
TEXAS AND W/J HAYWIRE I LP FOR HAYWIRE RANCH, PHASE I
THE STATE OF TEXAS §
COUNTY OF TARRANT §
This Development Agreement (this "Agreement") is entered into by the City of Fort
Worth, Texas, a home-rule municipal corporation situated in Tarrant, Denton and Wise Counties,
Texas (the "City"), acting by and through its duly authorized Assistant City Manager, and W/J
Haywire I LP, a Texas limited partnership ("Owner').
ARTICLE I
RECITALS
A. Owner has represented to the City that Owner is the owner of approximately
264.483 acres in Tarrant County, Texas, as shown on Exhibit A and described in Exhibit B
attached to this Agreement (the "Development"). The Development lies entirely within the
City's extraterritorial jurisdiction ("LTJ"). Owner intends the Development to be the first phase
of an approximately 1,400-acre master-planned community known as "Haywire Ranch,"
depicted for informational purposes only on the attached Exhibit A.
B. The Texas Legislature approved the creation of City of Fort Worth Municipal
Utility District No. 2 of Tarrant County containing 259.098 acres within the Development by Act
of May 27, 2005, 79th Legislature, Regular Session, H.B. 3530, codified at TEx. SPECIAL
DISTRICTS CODE ANN. Chapter 8139, effective June 18, 2005 (the "District" and the "District
Legislation"); provided, however, the District Legislation provides that the election to confirm
creation of the District may not be held unless the City adopts a resolution consenting to the
creation of the District.
C. Owner, or its predecessor in interest, has petitioned the City to obtain the City's
consent to the creation of the District.
D. On May 30, 2006, the City Council of the City adopted Resolution No. 3359-05-
2006 consenting to the creation of the District over the 259.098-acre tract described in the
District Legislation(the "Consent Resolution").
E. On May 30, 2006, the City Council of the City approved that certain "Agreement
Concerning Creation and Operation of City of Fort Worth Municipal Utility District No. 2 of
Tarrant County" by and among the City, the District and Owner (City Secretary Contract No.
33593,M& C C-21479) (the"Consent Agreement").
END
Development Agreement J �l�u l( ��� E RUY Page 1
F. The discrepancy between the Development and the District consists of a portion
of Haywire Ranch Road, which the District is required to annex pursuant to Article IX of the
Consent Agreement, whereupon all of the Development will be included in the District.
G. The Development is located in a rapidly growing area of the City's ETJ, and
development of the Development will impact the future character of the City.
H. The Development is located in an area for which the City holds Certificate of
Convenience and Necessity ("CCN") No. 12311 issued by the Texas Commission on
Environmental Quality (the "TCE ")to provide retail water service.
I. The purposes of this Agreement include encouraging innovative and
comprehensive master-planning of the Development; providing for amenities and enhanced
development requirements; and providing assurances that the Development will remain in the
City's ETJ for the term of this Agreement, except for any commercial property annexed for the
limited purpose of collecting sales and use tax.
J. It is the Parties' intent that the Development, including all Infrastructure and all
buildings, signs, and other structures and facilities within the Development, shall be designed,
permitted, constructed and inspected as if the Development were located within the City's
corporate limits.
K. 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.
"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
Development Agreement Page 2
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 Development or bond anticipation notes.
"Building Codes" 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 Effective
Date to the construction of Structures within the City's corporate limits, including without
limitation the design, permitting, payment of fees, construction and inspection thereof. Further,
"Building Codes" includes all amendments to the foregoing requirements and all new
requirements relating to Structures that are adopted or approved after the Effective Date, except
any amendments from which the Development is exempt 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. .
"City" means the City of Fort Worth, Texas, a home-rule municipality located in Tarrant, Denton
and Wise Counties, Texas.
"City Code" means the Code of the City of Fort Worth.
"City Council" means the City Council of the City.
"Cite Manager" means the City Manager of the City.
"City Review Fees" means: (i) 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 (ii) 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 Tract" means Tract 1 shown on the Development Plan and described in Exhibit E.
"Consent Agreement" means the Agreement Concerning Creation and Operation of City of Fort
Worth Municipal Utility District No. 2 of Tarrant County by and among the City, the District and
Owner, which was approved by the City Council on May 30, 2006 (City Secretary Contract No.
33593, M& C C-21479).
"Consent Resolution" means Resolution No. 3359-05-2006 approved by the City Council on
May 30, 2006 consenting to the creation of the District.
Development Agreement Page 3
"Declaration of Covenants, Conditions, and Restrictions" means the declaration attached as
Exhibit C.
"Design Review Guidelines" means the design and development guidelines and application and
review procedures for the Development attached as Exhibit D.
"Development" means that certain 264.483-acre tract located in Tarrant County, Texas as
depicted in Exhibit A and described in Exhibit B.
"Development Director" means the Director of the City's Development Department.
"Development Plan" means Exhibit E attached to this Agreement identifying various tracts
within the Development.
"District" means City of Fort Worth Municipal Utility District No. 2 of Tarrant County, to be
renamed in accordance with Article X of the Consent Agreement, created over the Development.
"District Confirmation Date" means the date on which the Board of Directors of the District
canvasses the results of the election held within the District confirming the creation of the
District.
"District Le islg ation" means Act of May 25, 2005, 79th Legislature, Regular Session, H.B. 3530,
codified at TEx. SPECIAL DISTRICTS CODE ANN. Chapter 8139, Special District Local Laws
Code, effective June 18, 2005 creating the District.
"Effective Date"means the date this Agreement is fully executed by the City and Owner.
"ETJ" 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.
"Fire Code" means the following chapters and sections of the 2003 International Fire Code
(Ordinance Nos. 16027 and 16252), Sections 13-1 and 13-2 of the City 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#1, and Section 105.6 (Required Operational Permits);
(b) Chapter 2 (Definitions);
(c) Chapter 5 (Fire Service Features), excluding Section 506 (Key Boxes) and
Section 509 (Fire Command Center);
(d) Chapter 6 (Building Services and Systems);
Development Agreement CITY Efl!' S I AP Page 4
(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 45 (Referenced Standards);
(1) Appendix B (Fire-Flow Requirements for Buildings); and
(m) Appendix I (Installation of Fire Service Features, Fire Protection Systems and
Tanks)
"Gas Drilling Ordinances" means Ordinance No. 14880 and all amendments to such ordinance in
effect on the Effective Date. Further, "Gas Drilling Ordinances" includes all amendments to the
foregoing regulations and all new requirements relating to drilling or production of natural gas
within the City's corporate limits that are adopted or approved after the Effective Date, except
any amendments from which the Development is exempt pursuant to Chapter 245 of the Local
Government Code.
"Governing Regulations" means all City ordinances, regulations, policies, manuals and other
requirements relating to Infrastructure, including without limitation the design, location,
construction, payment of fees, operation and maintenance thereof, that are applicable within the
City's corporate limits on the Effective 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 Effective Date, except any amendments from which the
Development is exempt pursuant to Chapter 245 of the Local Government Code.
"Haywire Ranch" means the proposed master-planned community containing approximately
1,400 acres that may include residential, commercial, and recreational uses as generally depicted
for informational purposes only in Exhibit A.
"Homeowners Association" means the association established by the Owner in accordance with
the Declaration of Conditions, Conditions and Restrictions.
Development Agreement Page 5
"Infrastructure" means all water, wastewater, drainage, roadway and other infrastructure
improvements installed or constructed to serve the Development, whether located within or
outside the Development.
"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.
"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 Development 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
Development 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 2 shown on the Development Plan and described in
Exhibit E.
"Owner" means W/J Haywire I LP, 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.
"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.
FI ii ,1 1�`iECO-�'D
Development Agreement R4 et.;, �Q Pae 6
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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 the City of Fort Worth Municipal Utility District No. 2 of Tarrant
County, the form of which was approved by the City Council on May 30, 2006 (M & C C-
21479).
"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. 7234, the Plan
Commission Rules and Regulations in effect on the Effective Date, and the CFA Policy, and all
amendments thereto and future versions of such regulations.
"TCE " means the Texas Commission on Environmental Quality or its successor state agency.
"Utility Agreement" means the Utility Agreement for Haywire Ranch Phase I executed by
Owner and the City and to be executed by the District after the District Confirmation Date (City
Secretary No. 33595, M & C C-21479) relating to the provision of water and wastewater service
to the Development and the construction, ownership, operation and maintenance of water and
wastewater infrastructure both inside and outside the Development.
"Zoning Ordinance" means Ordinance No. 13896, together with any amendments thereto that are
in effect on the Effective Date, codified as Appendix "A" to the City Code. Further, "Zoning
Ordinance" includes all amendments to the foregoing regulations that are adopted or approved
after the Effective Date, except any amendments from which the Development is exempt
pursuant to Chapter 245 of the Local Government Code.
ARTICLE III
DEVELOPMENT REGULATIONS
3.01 Applicable Regulations. The Development shall be developed in accordance with
the Subdivision Ordinance and all City ordinances, regulations, policies, manuals and other
requirements that would apply to the Development if it were located within the City's corporate
limits, including without limitation the Building Codes, Governing Regulations, Gas Drilling
Ordinances and applicable provisions of the Zoning Ordinance specified below, except to the
extent this Agreement imposes stricter requirements, in which case this Agreement shall control.
Further, Owner shall comply with all applicable federal, state and local regulations applicable to
the Development.
Development Agreement Page 7
3.02 Land Use and Development Regulations. Tracts 1 and 2 identified on the
Development Plan attached as Exhibit E and described in Exhibit F shall be developed as
follows:
(a) Tract 1 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, except for the sale of
alcohol, which shall be prohibited. At Owner's option, Owner may replat Tract 1
for single-family residential lots with a minimum lot size of 6,000 square feet.
Upon approval of such replat, Tract 1 shall be developed in accordance with the
permitted uses and development regulations applicable to the "A-5" One-Family
Residential District as reflected in Sections 4.603 and 4.705 of the Zoning
Ordinance, plus private or non-profit community center and accessory uses
permitted in accordance with Section 3.03.
(b) Tract 2 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 Development shall include a mixture of
residential lot sizes, as follows:
(i) A maximum of 356 lots with a minimum lot size of 6,000 square feet;
(ii) A minimum of 214 lots with a minimum lot size of 7,200 square feet; and
(iii) A minimum of 217 lots with a minimum lot size of 9,750 square feet.
(c) The following development regulations shall apply in Tract 2:
(i) All lots of 6,000 to 7,199 square feet shall be developed in accordance
with Section 4.705 of the Zoning Ordinance applicable to the "A-5" One-
Family Residential District.
(ii) All lots of 7,200 to 9,749 square feet shall be developed in accordance
with Section 4.704 of the Zoning Ordinance applicable to the "A-7.5"
One-Family Residential District.
(iii) All lots of 9,750 or greater square feet shall be developed in accordance
with Section 4.703 of the Zoning Ordinance applicable to the "A-10" One-
Family Residential District.
(d) Owner shall submit a final plat of Section 1 of the Development currently
identified on PP-05-098 reducing the number of 6,000 square foot lots from 103
to 51 and increasing the numbers of 7,200 square foot and 9,750 square foot
lots.
Development Agreement Page 8
3.03 Accessory Uses. No accessory uses shall be permitted in the Development,
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 Development,
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. Chapter 6 of the Zoning Ordinance shall apply to the
Development, including, but not limited to regulations relating to:
(a) Off-Street Parking and Loading (Article 2);
(b) Landscaping and Buffers (Article 3); and
(c) Signs (Article 4)
3.06 Parks and Recreational Amenities.
(a) In accordance with the City's current Neighborhood and Community Park
Dedication Policy, Concept Plan CP-99008 for Haywire Ranch reflects a
requirement of 37.5 acres for neighborhood parks, neighborhood park
development fees of $30,000 per acre, and 56.25 acres for a community park.
Future plats submitted for Haywire Ranch will require dedication of land and
payment of fees in compliance with the then applicable Neighborhood and
Community Park Dedication Policy. .
(b) Park dedication and development fees for the Development consist of 6.44 acres
of neighborhood parks, neighborhood park development fees of$30,000 per acre
Development Agreement Page 9
totaling $193,200, and 9.663 acres for a community park. Preliminary Plat PP -
05-098 complies with the 6.44-acre neighborhood parkland dedication
requirement. Owner shall not be required to escrow neighborhood park
development fees of$193,200 with the City, but shall document expenditures for
park improvements including landscaping, walking trails, playgrounds and park
tables and benches and provide such documentation to the City's Parks and
Community Services Department upon request. In lieu of the 9.663-acre
community park dedication, Owner shall pay to the City an amount equal to the
documented appraised value of the average acre in the Development, currently
estimated at $96,630 in fees. Owner shall convey a minimum of 6.44 acres of
improved neighborhood parks to the District as final plats are submitted for the
Development, in accordance with subsection (e)below.
(c) Owner may submit a detailed concept plan reflecting park sites for Haywire
Ranch for City approval. The City will consider a mutually agreeable plan that
aggregates the land dedication requirements for Haywire Ranch as future phases
are platted.
(d) Owner shall install the following recreational amenities in the Development:
(i) An amenity center consisting of a junior Olympic swimming pool, kiddie
pool, children's playground, shade structures, tanning decks and other
related facilities, which shall be constructed prior to completion of the
400th home in the Development; and
(ii) A paved hike and bike trail adjacent to Haywire Ranch Road from White
Settlement Road to the northern boundary of the Development.
(e) Within 90 days after filing a final plat for all or any portion of the Development,
Owner shall deliver to the Director of the Parks and Community Services
Department a copy of a recorded special warranty deed conveying to the District
all dedicated neighborhood parkland shown on the plat, together with evidence of
expenditure of at least $30,000 per acre for park improvements. The City will
provide no park maintenance until the City annexes the Development for full
purposes, at which time the City will provide base maintenance with an enhanced
maintenance agreement with the Homeowners Association, at the election of the
Homeowners Association
(f) At no time now or in the future will the City own or maintain parks or recreational
amenities in the Development, with the exception of those outlined in subsection
(e) above.
3.07 Fences. In addition to fence regulations outlined in Chapter 5, Article 3 of the
Zoning Ordinance,the following requirements shall apply:
Development Agreement Page 10
(a) All fences adjacent to freeway or arterial streets, including without limitation
White Settlement Road and Haywire Ranch Road, shall be constructed of brick,
stone, reinforced concrete products, masonry, 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 is not visible from the
freeway or street. Chain link is expressly prohibited.
(b) Private residential fences situated between residential lots shall consist of stained
wood pickets on metal posts or designed tubular steel.
(c) In those instances where a side or rear yard residential fence is across the street
from a front yard, a designated open space area or a public park, or is situated on
a corner lot, an upgraded fence shall be required that consists of a stained wood
fence on metal posts with pickets facing the street or designed tubular steel.
3.08 Landscape Requirements. The Development shall be subject to landscape
requirements for commercial uses in accordance with Chapter 6, Article 3 of the Zoning
Ordinance. 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 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 increment totaling a minimum of 30-gallons
per residential lot.
(c) The front and side yards of each residential lot shall be fully sodded.
(d) An irrigation system shall be installed in the front and side yards.
3.09 Covenants, Conditions and Restrictions, Designn Review Guidelines.
(a) Prior to the sale of any lots in the Development, Owner shall file Covenants,
Conditions and Restrictions and Design Review Guidelines in substantially the
form attached hereto as Exhibits C and D in the Tarrant County property records
and provide evidence of filing to the City.
(b) All builders and property owners in the Development shall adhere to the
Covenants, Conditions and Restrictions and the Design Review Guidelines.
(c) The District's Board of Directors and the Homeowners Association may amend
the Covenants, Conditions and Restrictions and the Design Review Guidelines,
Development Agreement �'���1 ' lp",'�� "' Page 11
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.
3.10 Entry Feature. Owner shall construct an entry feature at the entrance to the
Development on White Settlement Road. The entry feature shall have a minimum cost of
$250,000 and shall consist of a water feature, entry sign, landscaping and/or other elements, at a
Owner's discretion. No element of the entry feature shall exceed a height of 35 feet. Any
encroachments over streets that are or will become public must be approved by the
Transportation and Public Works Department.
3.11 Traffic Management.
(a) Owner will install or cause to be installed a traffic signal control at Haywire
Ranch Road and White Settlement Road at no cost to the City when required
pursuant to a warrant study conducted by the City. It is estimated that installation
of the traffic signal will be required prior to completion of the 535th home in the
Development or the 10th anniversary of the District Confirmation Date. Owner
shall cause the District, the Homeowners Assocation or some other entity other
than Tarrant County to be responsible for the cost of maintaining the traffic
signal, it being understood by the Parties that Tarrant County shall have no
obligation to maintain the traffic signal.
(b) Owner will install a left-turn lane on eastbound White Settlement Road and a
right-turn deceleration land on westbound White Settlement Road in accordance
with County standards at no cost to the City prior to completion of the 400th
home in the Development.
(c) City is putting Developer on Notice that in the negotiations for development
agreements for future phases of Haywire Ranch the City will request Owner's
participation in funding of construction to increase the capacity of White
Settlement Road to four lanes of concrete pavement with curb and gutter under
the City's proportionality formula as if the entire development were adjacent to
White Settlement Road.
3.12 Storm Water Guidelines. Owner and the District will comply with the storm
water guidelines in place at the time of the filing of PP-05-098 approved by the Plan
Commission on December 23, 2005, but will ensure that the Homeowners Association executes
a maintenance agreement for storm water detention in a form acceptable to the City.
3.13 Plat Approval. Subdivision of the Development 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 Development 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 plat or otherwise requiring the approval of the City; provided, however, no Structure
shall be constructed on any portion of the Development conveyed for such purpose unless and
until a plat of such portion has been approved by the City's Plan Commission.
Development Agreement Page 12
3.14 Building Permits; Fees, Inspections. All Structures constructed in the
Development shall be subject to City building permit, permit fee and inspection requirements as
if such Structures were constructed with the City's corporate limits.
3.15 Temporary Manufactured Housing. A maximum of five temporary HUD-
certified manufactured homes shall be permitted on the Development at any given time for
occupancy by qualified voters that are necessary for the creation and administration of the
District. Owner will notify the City of the make, model, HUD number, and 911 address of each
home within 15 days after it is occupied. All manufactured homes will be removed from the
Development within 180 days after the District Confirmation Date.
3.16 Enforcement of Environmental Regulations. 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.
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 Development.
The Homeowners Association shall perform all duties identified in the Declaration 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, Gas Ordinance and all other City ordinances applicable to the
Development in the same manner duly enacted municipal regulations are enforced within the
City's corporate boundaries.
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.
4.02 Plan Review; Payment of Fees; and Pre-Construction Conference. Construction
of Infrastructure shall not commence until the plans and specifications have been reviewed and
approved by the City for compliance with the Governing Regulations; a pre-construction
conference has been held by the Contractor, the District's engineer and representatives of the
City's Department of Engineering; and the applicable City Review Fees have been paid
Development Agreement Page 13
4.03 Community Facilities Agreements. Construction of Infrastructure shall not
commence until Owner has executed a Communities Facilities Agreement in accordance with the
CFA Policy.
4.04 Reports; Inspections. The District, or Owner on behalf of the District, may
employ a consulting engineer to oversee construction of the Infrastructure. City inspectors or
third party inspectors pursuant to the City's third party inspection process shall inspect and test
the Infrastructure. The District, or Owner on behalf of the District, shall pay all Infrastructure
Inspection Fees. The City shall use its best efforts to cooperate with the District's consulting
engineer to prepare inspection reports in a form acceptable to TCEQ. The City, however, in no
way guarantees that the Infrastructure will be constructed in a manner acceptable to TCEQ or
that TCEQ will approve the issuance of Bonds by the District.
4.05 Contracts with Contractors. If a Contractor is not an Owner, then the Owner shall
incorporate the requirements of this Article IV into a written construction contract with the
Contractor. 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.
4.06 Access by City Employees. Upon prior Notice by the City, any duly authorized
employee of the City bearing proper credentials and identification shall be granted access to any
property of the District within the Development as the City may determine necessary for the
purpose of inspection and testing of Infrastructure.
4.07 Dedication of Water and Wastewater Infrastructure and Easements to City. The
District will dedicate all water and wastewater Infrastructure constructed by or on behalf of the
District both inside and outside the District, together with all easements for such Infrastructure,
to the City upon final inspection and acceptance of such Infrastructure by the City, in accordance
with the Utility Agreement.
4.08 Operation and Maintenance of Infrastructure. The District shall cause all
Infrastructure to be operated and maintained in accordance with the Governing Regulations,
except for water and wastewater infrastructure dedicated to the City pursuant to Section 4.07 and
the Utility Agreement, which shall be operated and maintained by the City in accordance with
the Utility Agreement.
4.09 As-Built Drawings. The District shall deliver mylar as-built drawings for all
Infrastructure to the City's Engineering Department within thirty(30) days after final inspection.
4.10 Reimbursement Agreements. The District shall not enter into agreements for
reimbursement of costs incurred in connection with the District with a total reimbursement
amount exceeding $24,000,000. 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 the District in violation of this Rertin I IN void.
01FRIA"A ROD
Development Agreement G"5VG,po Page 14ffl/
FIT.
ARTICLE V
DEVELOPMENT FEES
The Development shall be subject to all fees applicable to development within the City's
corporate limits, including without limitation plan 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.
ARTICLE VI
ANNEXATION
6.01 Immunity from Annexation. Except as provided in Sections 6.02 and 6.03 of this
Agreement, the Development 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 have the right, but not the obligation, to
annex all of the Development (or a portion of the Development to the extent permitted by law)
for full purposes 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) termination of this Agreement. Such authority is
in addition to the authority to annex portions of the Development 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 retail development for the sole and
limited purpose for the City to impose its sales and use tax within the boundaries of such retail
areas 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 Development, or any part thereof; or (b) sign,join in, associate with, or direct
to be signed any petition seeking to incorporate any of the Development or to include any of the
Development within the boundaries of any other incorporated entity.
6.05 Annexation of Portions of Development. Owner agrees to cooperate with and
assist the City in annexing one or more areas in the manner prescribed by law which does not
result in the dissolution of the District, 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. Notwithstanding the zoning designation approved for the annexed area, such
area can be developed and used in accordance with this Agreement.
Development Agreement Page 15
6.06 Procedure for Full Purpose Annexation. The City and the District acknowledge
that the Development is exempt from municipal annexation plan requirements pursuant to
Section 43.052(h)(3)(B) of the Local Government Code. The District hereby consents, on its
behalf and on behalf of all current and future owners of land included within the District
Boundaries, to full purpose annexation of the District in accordance with the procedure
applicable to areas exempted from the municipal annexation plan set out in Chapter 43 of the
Local Government Code, Subsection 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 Development pursuant to
Section 6.02. Further, if creation of the District has not been confirmed at an election
conducted on or before September 1, 2007, this Agreement may be terminated by providing
Notice to Owner. The term of this Agreement shall not be affected by the annexations permitted
by Section 6.06 of this Agreement 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 Parry specifically waives any right such Party has or in the future may
have to terminate this Agreement (except for the right of the City to terminate as provided in
Article VII of this Agreement). It is understood and agreed that no Party will seek or recover
Development Agreement Page 16
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 Immunity. 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
Development Agreement Page 17
To Owner:
W/J Haywire I LP
c/o Wynne/Jackson, Inc.
600 North Pearl
Plaza of the Americas
Suite650, South Tower
Dallas, Texas 75201
Attn: Chrisopher Jackson
FAX: (214) 880-8709
9.02 Assignment.
(a) By Owner to the District. Owner has the right (from time to time after the District
Confirmation Date and 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
Development 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 Development 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 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 per ligations;
iA HC
Development Agreement 9 G C75 � �u Page 18
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 Development (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.
(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
Development Agreement Page 19
liability; or (b) unless the Lender holds fee simple title to any portion of the Development 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 Development 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 Development and elects to or proceeds to develop such
portion under this Agreement. Notwithstanding the foregoing, however, this Agreement shall
continue to bind the Development 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
Development 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 Development until all
defaults under this Agreement with respect to the acquired portion of the Development 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 Tarrant 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 Development, 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 Development and touches and concerns the Development. The rights and obligations under
this Agreement are intended to be covenants running with the Development. 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.
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. This Agreement constitutes a "permit" as
defined in Chapter 245, Texas Local Government Code, as amended, that is deemed filed with
the City on the Effective Date. Except as expressly provided in this Agreement, Owner does not,
Development Agreement Page 20
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 TARRANT COUNTY, TEXAS, AND HEREBY SUBMIT
TO THE JURISDICTION OF THE COURTS OF TARRANT 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 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.
9.10 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.
9.11 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.
9.12 Captions. Captions and headings used in this Agreement are for reference
purposes only and shall not be deemed a part of this Agreement.
Development Agreement Page 21
9.13 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.
9.14 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.
9.15 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.
9.16 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. Each 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 documents of each Owner and that the individual executing this Agreement on
behalf of such 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.
9.17 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 May of the Development
Exhibit B Legal Description of the Development
Exhibit C Declaration of Covenants, Conditions and Restrictions
Exhibit D Design Review Guidelines
Exhibit E Development Plan
Exhibit F Legal Descriptions of Tracts 1 and 2 Shown on Development Plan
Exhibit G Assignment and Assumption Agreement
9.18 Takings Impact Assessment. Owner expressly and unconditionally waives and
releases the City from any obligation to perform a takings impact assessment under the Texas
Development Agreement �Q`�r, Q (o1QPage 22
�,U io."O"�U H, TEX.
Private Real Property Rights Act, Texas Government Code Chapter 2007, as it may apply to this
Agreement or the Development.
9.19 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.
9.20 Counterpart Originals. This Agreement may be executed in counterparts, each of
which shall llg deemed to be an original.
ATTEST:a �� � CITY OFF RT WORTH
• • ►��
By:
Marty Hendrix, Ci"t ecretary Marc Ott, Assistant City Manager
Date: ;?Z7 A�e
APPROV,F�Uk TO FORM AND
_`.L_
LhU Ll I Y:
Qom''_tk-
Assistant Ci Attorney
li- I 1 W/J HAYWIRE I LP,
�9a Texas limited partnership
Contract Authorization
By: W/J Haywire I Management LLC,
Date a Texas limited liability company,
its general partner
By: CLYDE JACKSON INTERESTS LP
By: Clyde Jackson GP LLC,
Its General P er
By:
Christopher C. J ckson, P
Date: r Z-\
Development AgreementWSE- FRPage 23
STATE OF TEXAS §
COUNTY OF TARRANT §
This instrument was acknowledged before me, on the 7 day of , 2006,
by 3'v1tsA&&i&taw City Manager of the City of orth, exas on behal f said city.
chayles.P. �o3iJe/�j
A&AAAAAAA
A. Notary ublic, State of Texas
}' Printed Name: #e-77—/'e-
ANE
77-/'e-
ANRES My Commission Expires:
r HETI EI LANE
MY COMMISSION EXPIRES.
*eOF July 26,2007
STATE OF TEAS §
COUNTY OF §
This instrument was acknowledged before me, on the 'Z 1 day f ' 2006,
by W/J Haywire I LP, a Texas limited p nership, by W/J Haywire I gement LLC, its
general partner, by Clyde Jackson Interest P by Clyde Jackson GP L C, its general partner,
by Christopher C. Jackson, Vice President.
Notary Public, tate of Texas
[SEAL] Printed ame:
My Commissio Expires:
Development Agreement Page 24
780335_3
Exhibit A
May of the Development
Exhibit A to
Development Agreement Page I
EXHIBIT "A"
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Exhibit B
Legal Description of the Development
BEING all that tract of land in Tarrant County, Texas, being all of the J.T. ALLEN SURVEY,
Abstract No. 67, and a portion of the C.E. NEWMAN SURVEY, Abstract NO. 1183, the W.K.
GANDY SURVEY, Abstract No. 1890, the F.W. SCHODEVERLING SURVEY, Abstract No.
1398, the C.E.P.I. MFG COMPANY SURVEY, Abstract No. 382, the T. & N.O. R.R.
COMPANY SURVEY, Abstract No. 1566, and the S.B. HOPKINS SURVEY, Abstract No. 672,
and being a portion of the 738.20 acre Tract of land conveyed to OBIE P. LEONARD, JR., R.W.
LEONARD, MARGERY ANN HODGES, and MARTHA JANE ANTHONY, by the deed
recorded in Volume 4897, Page 227 of the Deed Records of Tarrant County, Texas, and being
further described as follows:
BEGINNING at a P.K. nail set at the Southwest corner of the aforesaid 738.20 acre Tract of land
said point lying in the approximate center line of White Settlement Road, and also being the
Southeast corner of the Tract of land conveyed to J.J. DEARING AND BETSY JO DEARING
BROWDER by the deed recorded in Volume 8317, Page 475 of the Deed Records of Tarrant
County, Texas, and ROBERT DEARING BROWDER by the deed recorded in Volume 14336,
Page 556 of the Deed Records of Tarrant County, Texas;
THENCE North 00 degrees 00 minutes 45 seconds West, at 25.00 feet, passing a five-eighths
inch iron rod found in the North right-of-way line of White Settlement Road, in all 4703.06 feet,
along the West boundary line of said 738.20 acre Tract of land and the East boundary line of the
aforesaid J.J DEARING, BETSY JO DEARING, and ROBERT DEARING BROWDER
TRACT to a one-half inch iron rod set for corner;
THENCE North 89 degrees 59 minutes 15 seconds East, 163.32 feet, departing the West
boundary line of said 73 8.20 acre Tract to a one-half inch iron rod set for corner;
THENCE North 69 degrees 31 minutes 20 seconds East, 120.00 feet to a one-half inch iron rod
set for corner lying in a curve to the left;
THENCE Southeasterly, 733.50 feet, along said curve to the left having a radius of 2230.00 feet,
center angle of 18 degrees 50 minutes 45 seconds, chord bearing South 29 degrees 54 minutes 03
seconds East, 730.19 feet to a one-half inch iron rod set at the end of said curve;
THENCE South 39 degrees 19 minutes 25 seconds East, 1034.09 feet to a one-half inch iron rod
set for corner;
THENCE North 50 degrees 40 minutes 35 seconds East, 132.28 feet to a three-fourths inch iron
rod found at the inner L. corner of the East boundary line of the aforesaid 738.20 acre Tract, said
point being the Southwest corner of the Tract of land conveyed to JACK G. WILKINSON and
ELNA WILKINSON by the deeds recorded in Volume 5368, Page 844, and Page 847, Volume
5399, Page 91, and Page 94 of the Deeds Recorded in Tarrant County, Texas and to BRUCE
Exhibit B to
Development Agreement Page 1
WILKINSON and CAROLYN WILKINSON FIERER recorded in Volume 7800, Page 2290 and
Page 2293 of the Deed Records of Tarrant County, Texas.
THENCE North 89 degrees 53 minutes 04 seconds East, 1850.88 feet along the Northerly
boundary line of said 738.20 acre Tract and the South boundary line of the aforesaid JACK G.
WILKINSON AND ELNA WILKINSON, and BRUCE WILKINSON AND CAROLYN
WILKINSON FIERER Tract to a one-inch iron pipe found at an angle point in the East boundary
line of the aforesaid 738.20 acre Tract of land; said point being the Northwest corner of the Tract
of land conveyed to WESTPOINT INVESTORS LIMITED PARTNERSHIP recorded in the
Deed Records of Tarrant County, Texas under County Clerk's file number D204187877;
THENCE South 00 degrees 29 minutes 40 seconds East, 3058.94 feet along the West boundary
line of said WESTPOINT INVESTORS LIMITED PARTNERSHIP and the East boundary line
of the aforesaid 738.20 acre Tract of land to a five-eighths inch iron rod found at the most
Easterly Southeast corner of the aforesaid 738.20 acre Tract of land, and an angle point in the
aforesaid WESTPOINT INVESTORS LIMITED PARTNERSHIP Tract;
THENCE South 89 degrees 37 minutes 12 seconds West, 2036.40 feet along the Northerly
boundary line of the aforesaid WESTPOINT INVESTORS LIMITED PARTNERSHIP Tract,
and the North boundary line of a Tract of land conveyed to GENE A. THOMPSON according to
the deed recorded in Volume 6429, Page 104 of the Deed Records of Tarrant County, Texas, and
the North boundary line of a Tract of land conveyed to ROBERT DEAN JOHNSON according
to the deed recorded in Volume 14336, Page 514 and 515, Volume 14208, Page 33, and Volume
14221, Page 114 of the Deeds Records of Tarrant County, Texas and the North boundary line of
the Tract of land conveyed to HAROLD V. JOHNSON, III, recorded in the Deed Records of
Tarrant County, Texas, under County Clerk's file number D203289978, to a one-half inch iron
rod set at the Northwest corner of the aforesaid HAROLD V. JOHNSON, III, Tract. Said point
being an angle point in the boundary line of the aforesaid 738.20 acre Tract of land;
THENCE South 00 degrees 28 minutes 56 seconds East, 638.10 feet along the West boundary
line of the aforesaid HAROLD V. JOHNSON, III, Tract and the East boundary line of said
738.20 acre Tract to a P.K. nail set in the approximate center line of the aforesaid White
Settlement Road from which a five-eighths inch iron rod found lies North 00 degrees 28 minutes
56 seconds West, 25.00 feet;
THENCE North 75 degrees 57 minutes 38 seconds West, 1280.87 feet along the approximate
center line of White Settlement Road and the Southerly boundary line of the aforesaid 738.20
acre Tract of land to THE PLACE OF BEGINNING and containing 11,520,896 square feet or
264.483 acres of land.
Exhibit B to
Development Agreement Page 2
Exhibit C
Declaration of Covenants, Conditions and Restrictions
Exhibit C to
Development Agreement Page 1
DECLARATION OF COVENANTS, CONDITIONS,AND RESTRICTIONS
FOR
SAMPLE HOMEOWNERS ASSOCIATION
763876.1 1'11100001.000001,BDONAI SON
ARTICLE SFCTION Raw
i
DEFINITIONS 1
1. Area ofCommon Responsibility....................... .............................................. 1
2. Articles ofIncorporation;Artinlem----------------------- 1
3. Associotion----------------------------------. 1
4. Base Assessment............................................................................................ 1
5. Benefited Assessment..................................................................................... 1
G. Board ofDirectors; Board................................................................................ 2
7 BuUder-----------------------------------' 2
8. Class^B^Control Period.................................................................................. 2
S. Common Area.................................................................................................. 2
10i ComnmonEnpenoea-----------------------------' 2
11. Standard............................................................................. 2
12. Denlanan ----------------------------------'.. 2
13. Exclusive Common Area................................................................................. 2
14. MeoberLandUoePlan--.------------------------' 2
15. Membar------------------------------------ 2
16. Modgo0w--------------'------------------' 2
17 Mortgagee--'-'------------------------.----' 3
18. Mmhgo0or----------------------------------- 3
19. Neighborhood................................................................................................... 3
20. Neighborhood Assessments............................................................................ 3
21. Neighborhood Association............................................................................... 3
22. NeighborhoodExpenoee--------------------------- 3
23. Ovwner------------''----------------------' 3
24. Panson-----------------'------------------' 3
25. Pnopertimo----------------------------------- 3
26. Special Assessment......................................................................................... 3
27. Supplemental Declaration................................................................................ 3
28. Unit-----------------'-------------------. 3
29. Voting Group.................................................................................................... 4
30. Voting Member................................................................................................. 4
K PROPERTY RIGHTS 4
1. Common Area.................................................................................................. 4
2. Exclusive Common Area................................................................................. 6
Ui ASSOCIATION FUNCTION,MEMBERSHIP AND VOTING RIGHTS 5
1. Function ofAssociation.................................................................................... 6
2. Mambanship---------------------------------- G
3. VoUng-------------------------------------. G
4. Neighborhoods,VoUngMombarsmndVotingGnoupo------------ 8
ARTICLE SECTION Page
IV. RIGHTS AND OBLIGATIONS OF THE ASSOCIATION 8
1. Common Area.................................................................................................. 8
2. Personal Property and Real Property for Common Use................................. 8
3. Rules and Regulations..................................................................................... 8
4. Enforcement..................................................................................................... 9
5. Implied Rights................................................................................................... 9
6. Governmental Interests.................................................................................... 9
7. Indemnification................................................................................................. 9
8. Dedication of Common Areas.......................................................................... 9
9. Security............................................................................................................. 9
10. Powers of the Association Relating to Neighborhoods................................... 10
V. MAINTENANCE 10
1. Association's Responsibility............................................................................. 10
2. Owner's Responsibility..................................................................................... 11
3. Neighborhood's Responsibility......................................................................... 12
4. Standard of Performance................................................................................. 12
5. Party Walls and Party Fences.......................................................................... 12
VI. INSURANCE AND CASUALTY LOSSES 13
1. Association Insurance...................................................................................... 13
2. Individual Insurance......................................................................................... 15
3. Damage and Destruction................................................................................. 15
4. Disbursement of Proceeds.............................................................................. 16
5. Repair and Reconstruction.............................................................................. 16
VII. NO PARTITION 16
Vlll. CONDEMNATION 16
IX. ANNEXATION AND WITHDRAWAL OF PROPERTY 17
1. Annexation without Approval of Membership.................................................. 17
2. Annexation with Approval of Membership....................................................... 17
3. Withdrawal of Property..................................................................................... 17
4. Additional Covenants and Easements............................................................. 18
5. Amendments.................................................................................................... 18
X. ASSESSMENTS 18
1. Creation of Assessments................................................................................. 18
2. Computation of Base Assessment.................................................................. 19
763876.1/00000/.00000I.BDONRLSON
ARTICLE SECTION page
3. Computation of Neighborhood Assessments.................................................. 20
4. Reserve Budget and Capital Contribution..................................
5. Special Assessments....................................................................................... 20
6. Benefited Assessments................................................................................... 21
7. Lien for Assessments....................................................................................... 21
B. Date of Commencement of Assessments...................................................... 22
9. Failure to Assess.............................................................................................. 22
10. Capitalization of Association............................................................................ 22
11. Exempt Property............................................................................................... 22
XI. ARCHITECTURAL STANDARDS 22
1. General.............................................................................................. .............. 22
2. Architectural Review......................................................................................... 23
3. Guidelines and Procedures.............................................................................. 23
4. No Waiver of Future Approvals....................................................................... 24
5. Variance........................................................................................................... 24
6. Limitation of Liability......................................................................................... 25
7. Enforcement..................................................................................................... 25
XII. USE RESTRICTIONS 25
1. Signs................................................................................................................. 25
2. Parking and Prohibited Vehicles...................................................................... 26
3. Occupants Bound............................................................................................. 26
4. Animals and Pets............................................................................................. 26
5. Quiet Enjoyment............................................................................................... 26
6. Unsightly or Unkempt Conditions.................................................................... 27
7. Antennas.......................................................................................................... 27
8. Clotheslines, Garbage Cans,Tanks, Etc. ....................................................... 27
9. Subdivision of Unit and Timesharing............................................................... 27
10. Firearms........................................................................................................... 27
11. Pools................................................................................................................. 28
12. Irrigation............................................................................................................ 28
13. Tents, Mobile Homes, and Temporary Structures.......................................... 28
14. Grading, Drainage and Septic Systems.......................................................... 28
15. Removal of Plants and Trees.......................................................................... 28
16. Sight Distance at Intersections........................................................................ 28
17. Utility Lines....................................................................................................... 28
18. Air Conditioning Units....................................................................................... 28
19. Lighting............................................................................................................. 28
20. Artificial Vegetation, Exterior Sculpture,
andSimilar Items............................................................................................. 28
21. Energy Conservation Equipment..................................................................... 29
22. Wetlands, Lakes, and Other Water Bodies..................................................... 29
23. Playground and Recreational Equipment........................................................ 29
24. Fences.............................................................................................................. 29
25. Business Use................................................................................................... 29
763876.1/000001,000001,BDONALSON
ARTICLE SECTION Pam
26. On-Site Fuel Storage....................................................................................... 29
27. Leasing of Units................................................................................................ 30
28. Laws and Ordinances...................................................................................... 30
29. Single-Family Occupancy................................................................................ 30
30. Mineral Operations........................................................................................... 30
XIII. EASEMENTS 30
1. Easements of Encroachment.......................................................................... 30
2. Easements for Utilities, Etc.............................................................................. 30
3. Easement for Lakes and Pond Maintenance and
FloodWater...................................................................................................... 31
4. Easement to Serve Additional Property........................................................... 31
5. Right of Entry.................................................................................................... 32
6. Retaining Walls/Drainage/Fence Easements.................................................. 32
XIV. MORTGAGEE PROVISIONS 34
1. Notices of Action.............................................................................................. 34
2. Special FHLMC Provision................................................................................ 34
3. Other Provisions for First Lien Holders............................................................ 35
4. Amendments to Documents............................................................................ 35
5. No Priority......................................................................................................... 36
6. Notice to Association........................................................................................ 36
7. Amendment by Board...................................................................................... 36
8. Applicability of Article XIV................................................................................. 36
9. Failure of Mortgagee to Respond.................................................................... 36
10. HUDNA Approval............................................................................................ 37
XV. DECLARANTS RIGHTS 37
XVI. GENERAL PROVISIONS 37
1. Term................................................................................................................. 37
2. Amendment...................................................................................................... 38
3. Severability....................................................................................................... 38
4. Perpetuities....................................................................................................... 38
5. Litigation........................................................................................................... 38
6. Cumulative Effect: Conflict............................................................................... 39
7. Use of the"Moore Farm"Phrase and Mark.................................................... 39
8. Compliance...................................................................................................... 39
9. Notice of Sale or Transfer of Title.................................................................... 39
10. Dispute Resolution........................................................................................... 39
763876.100000/.0000011BU0NAL JV
DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTION
FOR
SAMPLE HOMEOWNERS ASSOCIATION
THIS DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS is made
this _day of 20_, by Limited Partnership a Texas limited partnership(hereinafter referred to
as"Declarant').
Declarant is the owner of the real property. Declarant intends by this Declaration to impose
upon the Properties (as defined herein) mutually beneficial restrictions under a general plan of improvement
for the benefit of all owners of real properly within the Properties. Declarant desires to provide a flexible and
reasonable procedure for the overall development of the Properties, and to establish a method for the
administration, maintenance, preservation, use and enjoyment of such Properties as are now or hereafter
subjected to this Declaration.
Declarant hereby declares that all of the property and any additional property which is
hereafter subjected to this Declaration by Supplemental Declaration (as defined herein) shall be held, sold,
used and conveyed subject to the following easements, restrictions, covenants, and conditions which are for
the purpose of protecting the value and desirability of and which shall run with the real property subjected to
this Declaration. This Declaration shall be binding on all parties having any right, title, or interest in the
described Properties or any part thereof, their heirs, successors, successors-in-title, and assigns, and shall
inure to the benefit of each owner thereof.
This Declaration does not and is not intended to create a condominium within the meaning
of the Texas Condominium Act,Tex. Prop_Code Ann., Section 81.001,etsnq. (Vernon 1984).
Article I
QFFINITIONS
The terms in this Declaration and the exhibits to this Declaration shall generally be given
their natural, commonly accepted definitions except as otherwise specified. Capitalized terms shall be
defined as set forth below.
Section 1. "Brea of Common ResponsibilitTr' shall mean and refer to the Common
Area, together with those areas, if any,which by the terms of this Declaration, any Supplemental Declaration
or other applicable covenants, contract, or agreement with any Neighborhood, become the responsibility of
the Association.
Section 2. "Articles of Incomoration" or "Articles' shall refer to the Articles of
Incorporation of Sam.ple Homeowners Association as filed with the Secretary of State of the State of Texas
Section 3. "Association" shall refer to sample Homeowners Association a Texas
corporation, its successors or assigns.
Section 4. "Base Assessment'shall refer to assessments levied on all Units subject to
assessment under Article X to fund Common Expenses for the general benefit of all Units, as more
particularly described in Article X,Sections 1 and 2.
Section 5. "Benefited Assessment'shall mean assessments levied in accordance with
Article X,Section 6 of this Declaration.
1
763876.1'000001.0000011BQONN SON
Section 6. "Board of Directors" or "Rn2rd" shall be the body responsible for
administration of the Association, and generally serving the same role as the board of directors under Texas
corporate law.
Section 7. "Buildet' shall mean any Person which purchases one or more Units or
parcels of land within the Properties for the purpose of constructing improvements thereon for resale in the
ordinary course of such Person's business.
Section 8. Class B" Control Period" shall refer to the period of time during which the
Class"B"Member is entitled to appoint a majority of the members of the Board of Directors.
Section 9. Common Area" shall mean all real and personal property which the
Association now or hereafter owns, leases or otherwise holds possessory or use rights in for the common
use and enjoyment of the Owners, and shall include Exclusive Common Areas,as defined below.
Section 10. Common Expenses" shall mean the actual and estimated expenses
incurred, or anticipated to be incurred, by the Association for the general benefit of all Unit Owners, including
any reasonable reserve, all as may be found to be necessary and appropriate by the Board pursuant to this
Declaration and the Articles of Incorporation of the Association, but shall not include any development costs
incurred during the Class "B" Control Period for initial development, original construction, installation of
infrastructure, original capital improvements, or other original construction costs unless approved by Voting
Members representing a majority of the total Class"A"vote of the Association.
Section 11. "Community-Wide Standard" shall mean the standard of conduct,
maintenance, or other activity generally prevailing throughout the Properties. Such standard may be more
specifically determined by the Board of Directors and the New Construction Committee.
Section 12. "Declaran ' shall refer to Limited Partnership, a Texas limited partnership,
qualified to do business in Texas, or any successor, successor-in-title, or assign who takes title to any portion
of the real property for the purpose of development and/or sale in the ordinary course of such Person's
business and who is(a)Declarant's lender under any financing obtained by Declarant for development of the
Properties, or (b) designated as the Declarant in a recorded instrument executed by the immediately
preceding Declarant
Section 13. "Exclusive Common Area" shall refer to a portion of the Common Area
intended for the exclusive use or primary benefit of one or more, but less than all, Neighborhoods, as more
particularly described in Article II.
Section 14. "Master Land 1.1ga Plan" shall refer to the master land use plan for the
development of the Name of the subdivision community prepared by or on behalf of Declarant, as it may be
amended from time to time, which plan includes the property and all or a portion of the property which
Declarant may from time to time anticipate subjecting to this Declaration. Inclusion of property on the Master
Land Use Plan shall not, under any circumstances, obligate Declarant to subject such property to this
Declaration, nor shall the exclusion of property from the Master Land Use Plan bar its later annexation in
accordance with Article IX.
Section 15. "fit'shall refer to a Person entitled to membership in the Association,
as provided in Article III,Section 2.
Section 16. "Moligaae" shall refer to a mortgage, a deed of trust, a deed to secure
debt,or any other form of security deed.
2
763876.1100 I MO RBDONAISON
Section 17. "lgee"shall refer to a beneficiary or holder of a Mortgage.
Section 18. "Mn[gago 'shall refer to any Person who gives a Mortgage.
Section 19. "Neighborhood" shall refer to each separately developed residential area
within the Properties, whether or not governed by a Neighborhood Association (as defined in Section 22
below), in which the Owners of Units may have common interests other than those common to all Members
of the Association. For example, and by way of illustration and not limitation,each condominium,town home
development,cluster home development, and single-family detached development may constitute a separate
neighborhood, or a Neighborhood may be comprised of more than one housing type with other features in
common. In addition, each parcel of land intended for development as any of the above shall constitute a
Neighborhood,subject to division into more than one Neighborhood upon development.
Where the context permits or requires, the term Neighborhood shall also refer to the
Neighborhood Committee or Neighborhood Association having concurrent jurisdiction over the property
within the Neighborhood. Neighborhood boundaries may be established and modified as provided in Article
Ill, Section 4, of this Declaration.
Section 20. "Neighborhood Assessments" shall mean assessments levied against the
Units in a particular Neighborhood or Neighborhoods to fund Neighborhood Expenses, as more particularly
described in Article X,Sections 1 and 3 of this Declaration.
Section 21. "Neighbor-hood Association" shall refer to any condominium association or
other owners associations having concurrent jurisdiction over any Neighborhood.
Section 22. "Neighborhood Expenses"shall mean and include the actual and estimated
expenses incurred or anticipated to be incurred by the Association for the benefit of Owners of Units within a
particular Neighborhood or Neighborhoods, which may include a reasonable reserve for capital repairs and
replacements, all as may be specifically authorized from time to time by the Board of Directors and as more
particularly authorized herein or in Supplemental Declarations applicable to the Neighborhoods.
Section 23. "Owne 'shall refer to one or more Persons who hold the record title to any
Unit, but excluding in all cases any party holding an interest merely as security for the performance of an
obligation. If a Unit is sold under a recorded contract of sale, and the contract specifically so provides, the
purchaser(rather than the fee owner)will be considered the Owner.
Section 24. "Person" shall mean a natural person, a corporation, a partnership, a
trustee,or any other legal entity.
Section 25. "Properties' shall mean and refer to the real property together with such
additional property as is hereafter subjected to this Declaration in accordance with Article IX.
Section 26. "Special Assessment" shall mean and refer to assessments levied in
accordance with Article X,Section 5 of this Declaration.
Section 27. "Supplemental Declaration" shall mean an amendment or supplement to
this Declaration filed pursuant to Article IX which subjects additional property to this Declaration and/or
imposes, expressly or by reference, additional restrictions and obligations on the land described therein. The
term shall also refer to an instrument filed by the Declarant pursuant to Article III, Section 4(c), which
designates Voting Groups.
3
763876.1/00OOOLOOO PBUONALSON
Section 28. %L]iY' shall mean a portion of the Properties, whether improved or
unimproved,which may be independently owned and conveyed and which is intended for development, use,
and occupancy as an attached or detached residence for a single family. The term shall refer to the land, if
any, which is part of the Unit as well as any improvements thereon. The term shall include its meaning, by
way of illustration but not limitation, condominium units, townhouse units, cluster homes, patio or zero lot line
homes, and single-family detached houses on separately platted lots, as well as vacant land intended for
development as such, but shall not include Common Areas, common property of Neighborhood Association,
or property dedicated to the public. In the case of a structure containing multiple dwellings, each dwelling
shall be deemed to be a separate Unit.
In the case of a parcel of vacant land or land on which improvements are under
construction, the parcel shall be deemed to contain the number of Units designated for residential use for
such parcel on the Master Land Use Plan or the site plan approved by Declarant,whichever is more recent,
until such time as a subdivision plat or condominium plat is filed of record on all or a portion of the parcel.
Thereafter, the portion encompassed by such plat shall constitute a separate Unit or Units as determined
above and the number of Units on the remaining land, if any, shall continue to be determined in accordance
with this paragraph.
Section 29. 'Voting Group' shall mean one or more Voting Members who vote on a
common slate for election of directors to the Board of Directors of the Association, as more particularly
described in Article III, Section 4(c), of this Declaration or, if the context so indicates, the group of Members
whose Units are represented thereby.
Section 30. 'Voting Member" shall refer to the representative(s) selected by the
Members within each Neighborhood as provided in Article III,Section 4(b),to be responsible for casting votes
attributable to Units in the Neighborhood on all matters requiring a vote of the membership. The term'Voting
Member' shall include any alternate Voting Member acting in the absence of a Voting Member, any Owner
authorized to personally cast the vote for its Unit pursuant to Article III, Section 4(b), and the Class "IT'
Member, so long as such membership exists.
Article II
PRQPFRrr RIGHTS
Section 1. Common Area. Every Owner shall have a right and nonexclusive
easement of use, access,and enjoyment in and to the Common Area,subject to:
(a) This Declaration and any other applicable covenants, as they may be amended from
time to time, and subject to any restrictions or limitations contained in any deed conveying such property to
the Association;
(b) The right of the Board to adopt rules regulating the use and enjoyment of the Common
Area, including rules restricting use of recreational facilities within the Common Area to the occupants of
Units and their guests and rules limiting the number of guests who may use the Common Area;
(c) The right of the Board to suspend the right of an Owner to use recreational facilities
within the Common Area (i) for any period during which any charge against such Owner's Unit remains
delinquent, and (ii) for a period not to exceed 30 days for a single violation or for a longer period in the case
of any continuing violation, of the Declaration, any applicable Supplemental Declaration, or rules of the
Association after notice and a hearing;
(d) The right of the Association, acting through the Board, to dedicate or transfer all or any
4
763876.l/00000I.00000I.BIONAL40N
part of the Common Area pursuant to Article IV,Section 8 hereof,
(e) The right of the Board to impose reasonable membership requirements and charge
reasonable admission or other fees for the use of any recreational facility situated upon the Common Area;
(f) The right of the Board to permit use of any recreational facilities situated on the Common
Area by persons other than Owners,their families, lessees and guests upon payment of use fees established
by the Board;
(g) The right of the Association, acting through the Board, to mortgage, pledge, or
hypothecate any or all of its real or personal property as security for money borrowed or debts incurred,
subject to the approval requirements set forth in Article XIV,Section 2 hereof,and
(h) The rights of certain Owners to the exclusive use of those portions of the Common Area
designated"Exclusive Common Areas,"as more particularly described in Section 2 below.
Any Owner may extend his or her right of use and enjoyment to the members of his or her
family, lessees, and social invitees, as applicable, subject to reasonable regulation by the Board and in
accordance with procedures it may adopt An Owner who leases his or her Unit shall be deemed to have
assigned all such rights to the lessee of such Unit
Section 2. Exclusive Common Area. Certain portions of the Common Area
may be designated as Exclusive Common Area and reserved for the exclusive use or primary benefit of
Owners and occupants of Units within a particular Neighborhood or Neighborhoods. By way of illustration
and not limitation an Exclusive Common Area may include recreational facilities, entry features, landscaped
medians and cul-de-sacs, lakes and other portions of the Common Area within a particular Neighborhood or
Neighborhoods. All costs associated with maintenance, repair, replacement, and insurance of an Exclusive
Common Area shall be assessed as a Neighborhood Assessment against the Owners of Units in those
Neighborhoods to which the Exclusive Common Areas are assigned.
Initially, any Exclusive Common Area shall be designated as such and the exclusive use
thereof shall be assigned in the deed by which the Declarant conveys the Common Area to the Association
or on the plat of survey relating to such Common Area; provided, any such assignment shall not be exclusive
and shall not preclude the Declarant from later assigning the same Exclusive Common Area to additional
Neighborhoods, so long as the Declarant has a right to subject additional property to this Declaration
pursuant to Article IX, Section 1.
Thereafter, a portion of the Common Area may be assigned as Exclusive Common Area of
a particular Neighborhood, or Neighborhoods and Exclusive Common Area may be reassigned, upon the
vote of Voting Members representing a majority of the total Class "A" votes in the Association, including a
majority of the Class "A" votes within the Neighborhood(s) to which the Exclusive Common Areas are
assigned, if applicable, and within the Neighborhood(s) to which the Exclusive Common Areas are to be
assigned. As long as the Declarant owns any property described on Exhibits "A" or"B" for development
and/or sale,any such assignment or reassignment shall also require the consent of the Declarant
The Association may, upon majority vote of the Neighborhood Committee or board of
directors of the Neighborhood Association for the Neighborhood(s) to which Exclusive Common Areas are
assigned, permit Owners of Units in other Neighborhoods to use all or portions of such Exclusive Common
Areas upon payment of reasonable user fees, which fees shall be used to offset the Neighborhood Expenses
attributable to such Exclusive Common Areas.
5
763876.rio0000r.00000r;YDONA/MN
31
Article 111
ASSCICIATION FUNCTIQN,MEMBERSHIP AND VOTING.RIGHTS
Section 1. Function of Association. The Association shall be the entity responsible for
management, maintenance, operation and control of the Common Area. In addition,the Association shall be
responsible for the enforcement of this Declaration and such reasonable rules regulating use of the
Properties as the Board may adopt, and for administering and enforcing the architectural standards and
controls set forth in this Declaration pursuant to Article XI. The Association shall perform its functions in
accordance with this Declaration, and Texas law.
Section 2. Membership. Every Owner shall be a Member of the Association. There
shall be only one membership per Unit, if a Unit is owned by more than one Person, all co-Owners shall
share the privileges of membership, subject to reasonable Board regulation and the restrictions on voting set
forth in Section 3 of this Article, and all such co-Owners shall be jointly and severally obligated to perform the
responsibilities of Owners. The membership rights and privileges of an Owner who is a natural person may
be exercised by the Member or the Member's spouse. The membership rights of an Owner which is a
corporation, partnership or other legal entity may be exercised by the individual designated from time to time
by the Owner in a written instrument provided to the Secretary of the Association.
Section 3. Vow. The Association shall have two classes of membership, Class"A"
and Class"B".
(a) Class A. Class"A"Members shall be all Owners except the Class"B"Member, if any.
Class"A" Members shall be entitled to one equal vote for each Unit in which they hold the
interest required for membership under Section 1 hereof, there shall be only one vote per Unit Unless
otherwise specified in this Declaration, the vote for each Unit shall be exercised by a Voting Member
representing the Neighborhood of which the Unit is a part, as provided in Section 4(b) of this Article. The
Voting Members may cast the votes which they represent as they, in their discretion, deem appropriate.
In any situation where a Member is entitled personally to exercise the vote for his Unit and
there is more than one Owner of a particular Unit, the vote for such Unit shall be exercised as such co-
Owners determine among themselves and advise the Secretary of the Association in writing prior to any
meeting. In the absence of such advice,the Unit's vote shall be suspended if more than on Person seeks to
exercise it.
(b) ". The sole Class"B" Member shall be the Declarant. The rights of the Class
"B" Member, including the right to approve, or withhold approval of, actions proposed under this Declaration,
are specified elsewhere in the Declaration. Initially, the Class"B" Member shall be entitled to 2,000 votes:
this number shall be decreased by one vote for each Class"A" membership outstanding at any given time.
The Class"B"Member shall be entitled to appoint a majority of the members of the Board of Directors during
the Class"B" Control Period. After termination of the Class"B" Control Period, the Class"B"Member shall
have a right to disapprove certain actions of the Board of Directors and committees.
The Class"B"membership shall terminate and become converted to Class"A"membership
upon the earlier of:
(i) when, in its discretion, the Declarant so determines and declares in a recorded
instrument.
Section 4. Neighborhoods,Voting Members and VotingGroff.
6
763876.1/000001.000001iBDONALW)N
(a) Neighborhoods. Every Unit shall be located within a Neighborhood. In the discretion of
the Owner(s) and developer(s) of each Neighborhood, the Units within a particular Neighborhood may be
subject to additional covenants and/or the Unit Owners may all be members of a Neighborhood Association
in addition to the Association. However, a Neighborhood Association shall not be required except in the case
of a condominium or otherwise as required by law. The Owners of Units in any Neighborhood which does
not have a Neighborhood Association may elect a Neighborhood Committee, to represent the interests of
such Owners.
Each Neighborhood may request that the Association provide a higher level of service or
special services for the benefit of Units in such Neighborhood upon the affirmative vote,written consent, or a
combination thereof of the Owners of a majority of the Units within the Neighborhood. In such event, the
Association may provide the requested services, if the Board deems it appropriate. The cost of such
services shall be assessed against the Units within such Neighborhood as a Neighborhood Assessment
pursuant to Article X hereof.
Exhibit"A"to this Declaration, and each Supplemental Declaration filed to subject additional
property to this Declaration, shall initially assign the property described therein to a specific Neighborhood by
name, which Neighborhood may be then existing or newly created. The Declarant may unilaterally amend
this Declaration or any Supplemental Declaration from time to time to redesignate Neighborhood boundaries;
provided, two or more Neighborhoods previously established shall not be combined without the consent of
Owners of a majority of the Units in the affected Neighborhoods.
The Owner(s)of a majority of the total number of Units within any Neighborhood may at any
time petition the Board of Directors to divide the property comprising the Neighborhood into two or more
Neighborhoods. Such petition shall be in writing and shall include a plat or survey of the entire parcel which
indicates the boundaries of the proposed Neighborhood(s) or otherwise identifies the Units to be included
within the proposed Neighborhood(s). Such petition shall be granted upon the filing of all required
documents with the Board unless the Board of Directors denies such application in writing within 30 days of
its receipt thereof. The Board may deny an application only upon determination that there is no reasonable
basis for distinguishing between the areas proposed to be divided into separate Neighborhoods. All
applications and copies of any denials shall be filed with the books and records of the Association and shall
be maintained as long as this Declaration is in effect.
At any meeting of the Owners of Units in a Neighborhood, except that the term "Voting
Member" as used in those Sections shall refer to the Class "A" Members within the Neighborhood and
references to votes in"the Association"shall refer to the Class"A"votes in the Neighborhood.
(b) Voting Members. The Class "A" Members within each Neighborhood may elect one
Voting Member for each 50 Units within the Neighborhood(rounded up to the nearest 50). On all Association
matters requiring a membership vote, each such Voting Member shall be entitled to cast that number of
votes determined by dividing the total number of Class "A" votes in the Neighborhood by the number of
Voting Members elected from such Neighborhood, except as otherwise specified in this Declaration. If
Voting Member(s)are elected, then the Class"A"Members within each Neighborhood shall also elect one or
more alternate Voting Members to be responsible for casting such votes in the absence of a Voting Member.
Upon the first election of Voting Member(s), the Voting Member(s) and alternate Voting
Member(s) from each Neighborhood shall be elected on an annual basis, either by written ballot or at a
meeting of the Class"A' Members within such Neighborhood, as determined by the Board; provided, upon
written petition signed by Class "A" Members holding at least ten (10%) percent of the Class "A" votes
attributable to Units within any Neighborhood, the election for such Neighborhood shall be held at a meeting.
The presence, in person or by proxy, of Class"A" Members representing at least thirty(30%) percent of the
total Class"A'votes attributable to Units in the Neighborhood shall constitute a quorum at any meeting of the
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Neighborhood.
The Board may call for the first election of the Voting Member(s) and alternative Voting
Member(s) from a Neighborhood at any time after the first conveyance of a Unit in the Neighborhood to a
Person other than a Builder. Subsequent elections shall be held within 30 days of the same date each year.
Each Class "A" Member shall be entitled to cast one equal vote for each Unit which it owns in the
Neighborhood for each position. The candidate for each position who receives the greatest number of votes
shall be elected to serve a term of one year and until a successor is elected. Any Owner of a Unit in the
Neighborhood may submit nominations for election or declare himself a candidate in accordance with
procedures which the Board shall establish.
Any Voting Member may be removed,with or without cause, upon the vote or written petition
of Owners of a majority of the total number of Units owned by Class"A"Members in the Neighborhood which
such Voting Member represents.
Until such time as the Board first calls for election of a Voting Member for a Neighborhood,
the Owners within such Neighborhood may personally cast the votes attributable to their respective Units on
any issue requiring a vote of the Voting Members under this Declaration.
(c) Voting Groups, The Declarant may establish Voting Groups for election of directors to
the Board in order to promote representation on the Board of Directors for various groups having dissimilar
interests and to avoid a situation in which the Voting Members representing similar Neighborhoods are able,
due to the number of Units in such Neighborhoods, to elect the entire Board of Directors, excluding
representation of others. Any other members of the Board of Directors shall be elected at large by all Voting
Members without regard to Voting Groups.
The Declarant shall establish Voting Groups, if at all, not later than the date of expiration of
the Class "B" Control Period by filing with the Association and in the County Clerk Official Records of
County, Texas, a Supplemental Declaration identifying each Voting Group and the Units within
such group. Such designation may be amended from time to time by the Declarant,acting alone,at any time
prior to the expiration of the Class 'B" Control Period. Until such time as Voting Groups are established by
the Declarant, or in the event that the Declarant fails to establish Voting Groups,all Units shall be assigned to
the same Voting Group.
Article IV
RIGHTS AND OBLIGATIONS OF THIF ASSA IATION
Section 1. Common Area. The Association, subject to the rights of the Owners set
forth in this Declaration,shall be responsible for the exclusive management and control of the Common Area
and all improvements thereon(including,without limitation, furnishings, equipment, and common landscaped
areas), and shall keep it in good, clean, attractive, and sanitary condition, order, and repair, consistent with
this Declaration and the Community-Wide Standard.
Section 2. Personal Property and Real PropeU for Common Use. The Association,
through action of its Board of Directors, may acquire, hold, and dispose of tangible and intangible personal
property and real property, subject to such restrictions as are set forth herein. The Declarant may convey to
the Association improved or unimproved real estate located within the properties, personal property, and
leasehold or other property interests. Upon conveyance or dedication by the Declarant to the Association,
such property shall be accepted by the Association and thereafter shall be maintained by the Association at
its expense for the benefit of its Members, subject to any restrictions set forth in the deed of conveyance.
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The Declarant shall convey the initial Common Area to the Association prior to the conveyance of a Unit to
any Person other than a Builder or developer holding title for the purpose of development and resale.
Section 3. Rules and Regulations. The Association, through its Board of Directors,
may make and enforce reasonable rules and regulations governing the use of the Properties, in addition to,
further defining, or limiting the rights, covenants and restrictions set forth in this Declaration. Such rules and
regulations shall be binding upon all Owners, occupants, invitees, and licensees, if any, until and unless
overruled, canceled, or modified in a regular or special meeting of the Association by the vote of Voting
Members representing a majority of the total Class "A" votes in the Association and by the Class "B"
Members, so long as such membership shall exist.
Section 4. Enforcement. The Association shall be authorized to impose sanctions for
violations of this Declaration,or rules and regulations. Sanctions may include reasonable monetary fines and
suspension of the right to vote and to use any recreational facilities within the Common Area. In addition,the
Association, through the Board, shall have the right to exercise self-help to cure violations, and shall be
entitled to suspend any services provided by the Association to any Owner or such Owner's Unit in the event
that such Owner is more than 30 days delinquent in paying any assessment or other charge due to the
Association. The Board shall have the power to seek relief in any court for violations or to abate nuisances.
The Association, through the Board, by contract or other agreement, shall have the right to
enforce county and city ordinances, if applicable, and to permit County to enforce ordinances on
the Properties for the benefit of the Association and its Members.
Section 5. Implied Rights. The Association may exercise any other right or privilege
given to it expressly by this Declaration, or reasonably implied from the existence of or reasonably necessary
to effectuate any such right or privilege. Except as otherwise specifically provided in this Declaration, all
rights and powers of the Association may be exercised by the Board of Directors without a vote of the
membership.
Section 6. Governmental Interest. For so long as the Declarant owns any property,
the Association shall permit the Declarant to designate and redesignate sites within the Properties for fire,
police, water, and sewer facilities, public schools and parks, and other public facilities. The sites may include
Common Areas owned by the Association, and in such case no membership approval shall be required and
the Association shall dedicate and convey the designated site as requested by the Declarant.
Section 7. Indemnification. The Association shall indemnify every officer, director,and
committee member against any and all expenses, including counsel fees, reasonably incurred by or imposed
upon such officer, director, or committee member in connection with any action, suit, or other proceeding
(including settlement of any suit or proceeding, if approved by the then Board of Directors)to which he or she
may be a party by reason of being or having been on officer,director,or committee member.
The officers, directors, and committee members shall not be liable for any mistake of
judgement, negligent or otherwise, except for their own individual willful misfeasance, malfeasance,
misconduct, or bad faith. The officers and directors shall have no personal liability with respect to any
contract or other commitment made by them in good faith on behalf of the Association (except to the extent
that such officers or directors may also be Members of the Association). The Association shall indemnify and
forever hold each such officer,director,and committee member free and harmless against any and all liability
to others on account of any such contract or commitment Any right to indemnification provided for herein
shall not be exclusive of any other rights to which any present or former officer, director, or committee
member may be entitled. The Association shall, as a Common Expense, maintain adequate general liability
and officers'and directors'liability insurance to fund this obligation, if such insurance is reasonably available.
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Section 8. Dedication of Common Areas. The Association, acting through the Board
of Directors upon two-thirds (2/3) vote thereof, shall have the power to dedicate portions of the Common
Areas to County, Texas, or to any other local, state, or federal governmental entity, subject to such
approval as may be required by Article XIV, Section 2 of this Declaration.
Section 9. Se_ cu_rro . The Association may, but shall not be obligated to, maintain or
support certain activities within the Properties designed to make the Properties safer than they otherwise
might be. NEITHER THE ASSOCIATION, THE DECLARANT, NOR ANY SUCCESSOR DECLARANT
SHALL IN ANY WAY BE CONSIDERED INSURERS OR GUARANTORS OF SECURITY WITHIN THE
PROPERTIES, NOR SHALL ANY OF THEM BE HELD LIABLE FOR ANY LOSS OR DAMAGE BE
REASON OF FAILURE TO PROVIDE ADEQUATE SECURITY OR OF INEFFECTIVENESS OF SECURITY
MEASURES UNDERTAKEN. NO REPRESENTATION OR WARRANTY IS MADE THAT ANY FIRE
PROTECTION SYSTEM, BURGLAR ALARM SYSTEM OR OTHER SECURITY SYSTEM CAN NOT BE
COMPROMISED OR CIRCUMVENTED, NOR THAT ANY SUCH SYSTEMS OR SECURITY MEASURES
UNDERTAKEN WILL IN ALL CASES PREVENT LOSS OR PROVIDE THE DETECTION OR
PROTECTION FOR WHICH THE SYSTEM IS DESIGNED OR INTENDED. EACH OWNER
ACKNOWLEDGES, UNDERSTANDS AND COVENANTS TO INFORM ITS TENANTS THAT THE
ASSOCIATION, ITS BOARD OF DIRECTORS AND COMMITTEES, DECLARANT, AND ANY
SUCCESSORS DECLARANT ARE NOT INSURERS AND THAT EACH PERSON USING THE
PROPERTIES ASSUMES ALL RISKS FOR LOSS OR DAMAGE TO PERSONS, TO UNITS AND TO THE
CONTENTS OF UNITS RESULTING FROM ACTS OF THIRD PARTIES.
Section 10. Powers of the Association Relating o Neighborhoods. The Association
shall have the power to veto any action taken or contemplated to be taken by any Neighborhood Association
or Neighborhood Committee which the Board reasonably determines to be adverse to the interests of the
Association or its Members or inconsistent with the Community-Wide Standard. The Association also shall
have the power to require specific action to be taken by any Neighborhood Association or Neighborhood
Committee in connection with its obligations and responsibilities hereunder or under any other covenants
affecting the Properties. Without limiting the generality of the foregoing, the Association may (a) require
specific maintenance or repairs or aesthetic changes to be effectuated by the Neighborhood Association or
Neighborhood Committee and(b)require that a proposed budget include certain items and that expenditures
be made therefor.
Any action required by the Association in a written notice pursuant to the foregoing
paragraph to be taken by a Neighborhood Association or Neighborhood Committee shall be taken within the
reasonable time frame set by the Association in such written notice. If the Neighborhood Association or
Neighborhood Committee fails to comply with the requirements set forth in such written notice, the
Association shall have the right to effect such action on behalf of the Neighborhood Association or
Neighborhood Committee. To cover the Association's administrative expenses in connection with the
foregoing and to discourage failure to comply with the requirements of the Association, the Association shall
assess the Units in such Neighborhood for their pro rata share of any expenses incurred by the Association
in taking such action in the manner provided in Article X, Section 5(b). Such assessments may be collected
as a Special Assessment hereunder and shall be subject to all lien rights provided for herein.
Article V
MAINTENANCE
Section 1. Association's Responsibility. The Association shall maintain and keep in
good repair the Area of Common Responsibility, such maintenance to be funded as hereinafter provided.
The Area of Common Responsibility shall include, but need not be limited to:
(a) all landscaping and other flora, parks, lakes, structures, and improvements, including
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any private streets, recreational facilities, screening walls, entry features, bike and pedestrian pathways/trails,
situated upon the Common Area;
(b) landscaping within public rights-of-way within or abutting the Properties,and landscaping
and other flora within any public utility easement within the Properties(subject to the terms of any easement
agreement relating thereto);
(c) such portions of any additional property included within the Area of Common
Responsibility as may be dictated by the Declaration, any Supplemental Declaration, or any contract or
agreement for maintenance thereof entered into by the Association;
(d) all ponds, streams and/or wetlands located within the Properties which serve as part of
the drainage and storm water retention system for the Properties, including any retaining walls, bulkheads or
dams(earthen or otherwise) retaining water therein, and any fountains, lighting, pumps, conduits,and similar
equipment installed therein or used in connection therewith;and
(e) any property and facilities owned by the Declarant and made available, on a temporary
or permanent basis, for the primary use and enjoyment of the Association and its Members, such property
and facilities to be identified by written notice from the Declarant to the Association and to remain a part of
the Area of Common Responsibility and be maintained by the Association until such time as Declarant
revokes such privilege of use and enjoyment by written notice to the Association.
Except as provided above, the Area of Common Responsibility shall not be reduced by
amendment of this Declaration or any other means except with the prior written approval of the Declarant.
The Association may assume maintenance responsibility for property within any
Neighborhood, in addition to that designated by any Supplemental Declaration, either by agreement with the
Neighborhood or because, in the opinion of the Board, the level and quality of service then being provided is
not consistent with the Community-Wide Standard. All costs of maintenance pursuant to this paragraph shall
be assessed as a Neighborhood Assessment only against the Units within the Neighborhood to which the
services are provided. The provision of services in accordance with this Section shall not constitute
discrimination within a class.
The Association may maintain other property which it does not own, including, without
limitation, property dedicated to the public, if the Board of Directors determines that such maintenance is
necessary or desirable to maintain the Community-Wide Standard.
Except as otherwise specified provided herein, all costs associated with maintenance, repair
and replacement of the Area of Common Responsibility shall be a Common Expense to be allocated among
all Units as part of the Base Assessment, without prejudice to the right of the Association to seek
reimbursement from the owner(s) of, or other Persons responsible for, certain portions of the Area of
Common Responsibility pursuant to this Declaration, any other recorded covenants, or agreements with the
owners) thereof. All costs associated with maintenance, repair and replacement of Exclusive Common
Areas shall be a Neighborhood Expense assessed as a Neighborhood Assessment solely against the Units
within the Neighborhood(s) to which the Exclusive Common Areas are assigned, notwithstanding that the
Association may be responsible for performing such maintenance hereunder.
Section 2. Owner's Respp sibility, Each Owner shall maintain his or her Unit and all
landscaping, structures, parking areas, sidewalks, and other improvements within the boundaries of the Unit
Each Owner shall maintain the driveway serving his or her Unit whether or not lying entirely within the Unit
boundaries, and shall maintain all landscaping on that portion of the Common Area or public right-of-way
between the Unit boundary and the nearest curb or pavement edge of the adjoining street(s). Owners of
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CIS
t
Units which are adjacent to any portion of the Common Area on which decorative walls or fences have been
constructed shall also maintain that portion of the Common Area which lies between such wall or fence and
the Unit boundary. Owners of Units which abut the bank or water's edge, or abut a portion of the Common
Area abutting the bank or water's edge, of any lake, pond, stream, or wetlands area within the Properties
shall maintain all landscaping between the Unit boundary and such bank or water's edge; provided, there
shall be no right to remove trees, shrubs, or similar vegetation from this area without prior approval pursuant
to Article XI hereof.
An Owner shall be excused from its responsibility hereunder to the extent that such
maintenance responsibility is otherwise assumed by or assigned to the Association or a Neighborhood
Association pursuant to any Supplemental Declaration or other declaration of covenants applicable to such
Unit. In addition to any other enforcement rights available to the Association, if any Owner fails properly to
perform his or her maintenance responsibility, the Association may perform such maintenance
responsibilities and assess all costs incurred by the Association against the Unit and Owner in accordance
with Article X, Section 5(b) of this Declaration. However, the Association shall afford the Owner reasonable
notice and an opportunity to cure the problem prior to entry, except when immediate entry is required due to
an emergency situation.
Section 3. Neighborhood's Rein ihility. Upon resolution of the Board of Directors,
the Owners of Units within each Neighborhood shall be responsible for paying, through Neighborhood
Assessments, the costs of operating, maintaining and insuring certain portions of the Area of Common
Responsibility within or adjacent to such Neighborhood. This may include, without limitation, the costs of
maintaining any signage, entry features, right-0f--way and green space between the Neighborhood and
adjacent public roads, private streets within the Neighborhood, and lakes or ponds within the Neighborhood,
regardless of ownership and regardless of the fact that such maintenance may be performed by the
Association; provided, however,all Neighborhoods which are similarly situated shall be treated the same.
Any Neighborhood Association whose common property is adjacent to any portion of the
Common Area upon which a decorative wall or fence is constructed shall maintain all landscaping on that
portion of the Common Area between the wall or fence and the Neighborhood Association's property line.
Any Neighborhood Association whose common property fronts on any roadway within the Properties shall
maintain all landscaping on that portion of the Common Area or right-0f--way between the property line and
the nearest curb or pavement edge of such roadway. Any Neighborhood Association whose common
property abuts the bank of water's edge, or abuts a portion of the Common Area abutting the bank or water's
edge, of any lake, pond, stream, or wetlands area within the Properties shall maintain all landscaping
between the boundary of its property and such bank or water's edge; provided there shall be no right to
remove trees,scrubs or similar vegetation from this area without prior approval pursuant to Article XI hereof.
Any Neighborhood Association having reasonability for maintenance of all or a portion of the
property within such Neighborhood pursuant to additional covenants applicable to such Neighborhood shall
perform such maintenance responsibility in a manner consistent with the Community-Wide Standard. If any
Neighborhood Association fails to perform its maintenance responsibility as required herein and in any
additional covenants, the Association may perform it and assess the costs against all Units within such
Neighborhood as provided in Article X, Section 5(b)of this Declaration.
Section 4. Standard of Performance. Unless otherwise specifically provided herein or
in other instruments assigning maintenance responsibility, responsibility for maintenance shall include
responsibility for repair and replacement, as necessary. All maintenance shall be performed in a manner
consistent with the Community-Wide Standard and all applicable covenants. The Association, and/or an
Owner and/or a Neighborhood Association shall not be liable for any damage or injury occurring on,or arising
out of the condition of, property which it does not own except to the extent that it has been negligent in the
performance of its maintenance responsibilities hereunder.
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Section 5. PPa y Walls and Pady Fences,
(a) General Rules of Law to Aooly Each wall, fence or driveway built as a part of the
original construction on the Units which shall serve and/or separate any two adjoining Units shall constitute a
party wall, party fence, or party driveway, as applicable. To the extent not inconsistent with the provisions of
this Section,the general rule of law regarding party walls and liability for property damage due to negligence
or willful acts or omissions shall apply thereto.
(b) sharing of Repair and Maintenance. The cost of reasonable repair and maintenance of
a party wall, fence or driveway shall be shared equally by the Owners who make use of the wall, fence or
driveway.
(c) Damage and Destruction. If a party wall, fence or driveway is destroyed or damaged by
fire or other casualty,then to the extent that such damage is not covered by insurance and repaired out of the
proceeds of insurance, any Owner who has used the wall, fence or driveway may restore it. If other Owners
thereafter use the wall, fence or driveway, they shall contribute to the restoration cost in equal proportions.
However, such contribution will not prejudice the right to call for a larger contribution from the other users
under any rule of law regarding liability for negligent or willful acts or omissions.
(d) Right to Contribution Runs with Land. The right of any Owner to contribution from any
other Owner under this Section shall be appurtenant to the land and shall pass to such Owner's successors-
in-title.
(e) Arbitration. In the event of any dispute arising concerning a party wall, fence, or
driveway each party shall appoint one arbitrator. Should any party refuse to appoint an arbitrator within 10
days after written request by the Board of Directors, the Board shall appoint an arbitrator for the refusing
party. The arbitrators appointed shall appoint one additional arbitrator. The decision by a majority of all three
arbitrators shall be binding upon the parties and shall be a condition precedent to any right of legal action that
either party may have against the other.
Article VI
INSURANCF AND CASUAI TY pSS S
Section 1. Association Insurance. The Association, acting through its Board of
Directors or its duly authorized agent, shall have the authority to and shall obtain blanket"all-risk" property
insurance, if reasonably available, for all insurable improvements on the Common Area and on other portions
of the Area of Common Responsibility to the extent that the Association has assumed responsibility for
maintenance, repair and/or replacement thereof in the event of a casualty. If blanket"all-risk"coverage is not
reasonably available, then at a minimum an insurance policy providing fire and extended coverage, including
coverage for vandalism and malicious mischief shall be obtained. The face amount of such insurance shall
be sufficient to cover the full replacement cost of any repair or reconstruction in the event of damage or
destruction from any insured peril.
In addition, the Association may, upon request of a Neighborhood, and shall, if so specified
in a Supplemental Declaration applicable to the Neighborhood, obtain and continue in effect adequate
blanket"all-risk" property insurance on properties within such Neighborhood, if reasonably available. If"all-
risk" property insurance is not reasonably available, then fire and extended coverage may be substituted.
Such coverage may be in such form as the Board of Directors deems appropriate. The face amount of the
policy shall be sufficient to cover the full replacement cost of all structures to be insured. The costs thereof
shall be charged to the Owners of Units within the benefited Neighborhood as a Neighborhood Assessment.
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All policies shall provide for a certificate of insurance to be fumished to each Member insured, to the
Association,and to the Neighborhood Association, if any.
The Board also shall obtain a public liability policy covering the Area of Common
Responsibility, insuring the Association and its Members for all damage or injury caused by the negligence of
the Association, any of its Members, its employees, agents, or contractors while acting on behalf of the
Association. 1f reasonably available,the public liability policy shall have a least a One Million($1,000,000.00)
Dollar combined single limit as respects bodily injury and property damage, at least a Two Million
($2,000,000.00)Dollar limit per occurrence and in the aggregate.
Except as otherwise provided above with respect to property within a Neighborhood,
premiums for all insurance on the Area of Common Responsibility shall be Common Expenses and shall be
incurred in the Base Assessment. However, premiums for insurance on Exclusive Common Areas may be
included in the Neighborhood Assessment of the Neighborhood(s) benefited unless the Board of Directors
reasonably determines that other treatment of the premiums is more appropriate.
The policies may contain a reasonable deductible and the amount thereof shall not be
subtracted from the face amount of the policy in determining whether the insurance at least equals the
coverage required hereunder. In the event of an insured loss, the deductible shall be treated as a Common
Expense or a Neighborhood Expense in the same manner as the premiums for the applicable insurance
coverage. However, if the Board reasonably determines,after notice and an opportunity to be heard,that the
loss is the result of the negligence or willful conduct of one or more Unit Owners, then the Board may
specifically assess the full amount of such deductible against such Owner(s) and their Units pursuant to
Article X,Section 5(b).
All insurance coverage obtained by the Board of Directors,whether obtained on behalf of the
Association or a Neighborhood,shall be governed by the following provisions:
(a) All policies shall be written with a company authorized to do business in Texas which
holds a Best's rating of A or better and is assigned a financial size category of IX or larger as established by
A.M. Best Company, Inc., if reasonably available, or, if not available, the most nearly equivalent rating which
is available.
(b) All insurance shall be written in the name of the Association as trustee for the benefited
parties. Policies on the Common Area shall be for the benefit of the Association and its Members. Polices
secured on behalf of a Neighborhood shall be for the benefit of the Neighborhood Association, if any, the
Owners of Units within the Neighborhood, and their Mortgagees,as their interests may appear.
(c) Exclusive authority to adjust losses under policies obtained by the Association shall be
vested in the Association's Board of Directors.
(d) In no event shall the insurance coverage obtained and maintained by the Association be
brought into contribution with insurance purchased by individual Owners,occupants,or their Mortgagees.
(e) All property insurance policies shall have an inflation guard endorsement, if reasonably
available. If the policy contains a co-insurance clause, it also shall have an agreed amount endorsement
The Association shall arrange for an annual review of the sufficiency of insurance coverage by one or more
qualified persons, at least one of whom must be in the real estate industry and familiar with construction in
the County,Texas area.
(f) The Board of Directors shall be required to use reasonable efforts to secure insurance
policies that will provide the following:
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(i) a waiver of subrogation by the insurer as to any claims against the Association's
Board of Directors, officers, employees, and its manager, the Owners and their tenants, servants, agents,
and guests;
(ii) a waiver by the insurer of its right to repair and reconstruct instead of paying
cash;
(iii) a statement that no policy may be canceled, invalidated, suspended, or
subjected to nonrenewal on account of any one or more individual Owners;
(iv) a statement that no policy may be canceled, invalidated, suspended, or
subjected to nonrenewal on account of any curable defect or violation without prior demand in writing
delivered to the Association to cure the defect or violation and the allowance of a time thereafter as
mandated by the State of Texas Department of Insurance for such events, within which it may be cured by
the Association, its manager, any Owner,or Mortgagee;
(v) a statement that the Association will be given at least 30 days' prior written
notice of any cancellation,substantial modification,or non-renewal.
In addition to other insurance required by this Section, the Association shall obtain, as a
Common Expense, worker's compensation insurance, if and to the extent required by law, directors' and
officers'liability coverage, if reasonably available,and flood insurance, if advisable.
The Association also shall obtain, as a Common Expense, a fidelity bond or bonds, if
reasonably available, covering all persons responsible for handling Association funds. The amount of fidelity
coverage shall be determined in the Board of Directors'best business judgement but, if reasonably available,
may not be less than one-sixth (1/6) of the annual Base Assessments on all Units plus reserves on hand.
Bonds shall include coverage for noncompensated persons and shall require at least 30 days' prior written
notice to the Association of any cancellation, substantial modification or nonrenewal.
Section 2. Individual Insurance. By virtue of taking title to a Unit subject to the terms
of this Declaration, each Owner covenants and agrees with all other Owners and with the Association that
each Owner shall carry blanket"all-risk"property insurance on its Unit(s)and structures constructed thereon
providing full replacement cost coverage (less a reasonable deductible), unless either the Neighborhood in
which the Unit is located or the Association carries such insurance (which they are not obligated to do
hereunder).
Each Owner further covenants and agrees that in the event of damage to or destruction of
structures comprising his Unit, the Owner shall proceed promptly to repair or to reconstruct the damaged
structure in a manner consistent with the original construction or such other plans and specifications as are
approved in accordance with Article XI of this Declaration. Alternatively,the Owner shall clear the Unit of all
debris and ruins and thereafter shall maintain the Unit in a neat and attractive landscaped condition
consistent with the Community-Wide Standard. The Owner shall pay any costs of repair or reconstruction
which are not covered by insurance proceeds.
Additional recorded covenants applicable to any Neighborhood may establish more stringent
requirements regarding the standards for rebuilding or reconstructing structures on the Units within such
Neighborhood and the standards for clearing and maintaining the Units in the event the structures are not
rebuilt or reconstructed.
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Section 3. Damage and Destruction.
(a) Immediately after damage or destruction by fire or other peril to all or any part of the
Properties covered by insurance written in the name of the Association, the Board of Directors or its duly
authorized agent shall proceed with the filing and adjustment of all claims arising under such insurance and
shall obtain reliable and detailed estimates of the cost of repair or reconstruction of the damaged or
destroyed property. Repair or reconstruction, as used in this paragraph, means repairing or restoring the
property to substantially the same condition in which it existed prior to the fire or other peril, allowing for any
changes or improvements necessitated by changes in applicable building codes.
(b) Any damage to or destruction of the Common Area shall be repaired or reconstructed
unless the voting Members representing at least seventy-five(75%)percent of the total Class"A"votes in the
Association, and the Class 'B" Members, if any, decide within 60 days after the loss not to repair or
reconstruct.
Any damage to or destruction of the common property of any Neighborhood Association
shall be repaired or reconstructed unless the Unit Owners representing at least seventy-five(75%)percent of
the total vote of the Neighborhood Association decide within 60 days after the damage or destruction not to
repair or reconstruct.
If for any reason either the amount of the insurance proceeds to be paid as a result of such
damage or destruction or reliable and detailed estimates of the cost of repair or reconstruction, or both, are
not made available to the Association within said period,then the period shall be extended until such funds or
information shall be made available. However, such extension shall not exceed 60 additional days. No
Mortgagee shall have the right to participate in the determination of whether the damage or destruction to the
Common Area or common property of a Neighborhood Association shall be repaired or reconstructed.
(c) If it is determined in the manner described above that the damage or destruction to the
Common Area or to the common property of any Neighborhood Association shall not be repaired or
reconstructed and no alternative improvements are authorized, the affected portion of the Properties shall be
cleared of all debris and ruins. Thereafter the Properties shall be maintained by the Association or the
Neighborhood Association, as applicable, in a neat and attractive, landscaped condition consistent with the
Community-Wide Standard.
Section 4. Disbursement of Proceeds. Any insurance proceeds remaining after
defraying such costs of repair of reconstruction, or if no repair or reconstruction is made, any proceeds
remaining after making such settlement as is necessary and appropriate with the affected Owner or Owners
and their Mortgagee(s) as their interests may appear, shall be retained by and for the benefit of the
Association or the Neighborhood Association and placed in a capital improvements account. This is a
covenant for the benefit of any Mortgagee of a Unit and may be enforced by such Mortgagee.
Section 5. Re�ir and Reconstrudon. If the insurance proceeds are insufficient to
defray the costs of repairing or reconstructing the damage to the Common Area or to the common property
of a Neighborhood Association, the Board of Directors may, without the necessity of a vote of the Voting
Members, levy a special assessment against those Unit Owners responsible for the premiums for the
applicable insurance coverage under Section 1 of this Article. Additional assessments may be made in like
manner at any time during or following the completion of any repair or reconstruction.
Article VII
NO PARTITION
Except as is permitted in this Declaration or amendments hereto, there shall be no judicial
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partition of the Common Area or any part thereof. No person acquiring any interest in the Properties or any
part thereof shall seek any judicial partition unless the Properties or such portion thereof have been removed
from the provisions of this Declaration. This Article shall not be construed to prohibit the Board of Directors
from acquiring and disposing of tangible personal property nor from acquiring title to real property which may
or may not be subject to this Declaration.
Article VIII
CONDEMNATION
Whenever all or any part of the Common Area shall be taken (or conveyed in lieu of and
under threat of condemnation by the Board acting on the written direction of Voting Members representing at
least sixty-seven (67%) percent of the total Class"A"votes in the Association and of the Declarant, (as long
as the Declarant owns any property) by any authority having the power of condemnation or eminent domain,
each Owner shall be entitled to notice thereof. The award made for such taking shall be payable to the
Association as trustee for all Owners to be disbursed as follows:
If the taking involves a portion of the Common Area on which improvements have been
constructed,then the Association shall restore or replace such improvements so taken on the remaining land
included in the Common Area to the extent lands are available, unless within 60 days after such taking the
Declarant, so long as the Declarant owns any property, and Voting Members representing at least seventy-
five(75%)percent of the total Class"A"vote of the Association shall otherwise agree. Any such construction
shall be in accordance with plans approved by the Board of Directors of the Association. If such
improvements are to be repaired or restored,the provisions in Article VI hereof regarding the disbursement of
funds for the repair of casualty damage or destruction shall apply.
If the taking does not involve any improvements on the Common Area, or if there is a
decision made not to repair or restore, or if there are net funds remaining after any such restoration or
replacement is completed, then such award or net funds shall be disbursed to the Association and used for
such purposes as the Board of Directors shall determine.
Article IX
ANNEXATION AND WITHDRAWAL OF PROPERTY
Section 1. Annexation Without Approval of Membership. The Declarant shall have the
unilateral right, privilege,and option,from time to time at any time until all property has been subjected to this
Declaration or December 31, 2031, whichever is earlier, to subject to the provisions of this Declaration and
the jurisdiction of the Association all or any portion of the real property. The Declarant shall have the
unilateral right to transfer to any other Person the right, privilege, and option to annex additional property
which is herein reserved to Declarant, provided that such transferee or assignee shall be the developer of at
least a portion of the real property and that such transfer is memorialized in a written, recorded instrument
executed by the Declarant.
Such annexation shall be accomplished by filing a Supplemental Declaration annexing such
property in the County Clerk Official Records of County, Texas. Such Supplemental Declaration shall
not require the consent of Voting Members, but shall require the consent of the owner of such property, if
other than Declarant. Any such annexation shall be effective upon the filing for record of such Supplemental
Declaration unless otherwise provided herein.
Section 2. Annexation With Approval of Membership. Subject to the consent of the
owner thereof, the Association may annex real property to the provisions of this Declaration and the
jurisdiction of the Association. Such annexation shall require the affirmative vote of Voting Members
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IF,
1. Wil
representing a majority of the Class "A" votes of the Association represented at a meeting duly called for
such purpose and the consent of the Declarant, so long as Declarant owns property subject to this
Declaration or which may become subject to this Declaration in accordance with Section 1 of this Article.
Annexation shall be accomplished by filing a Supplemental Declaration describing the
property being annexed in the County Clerk Official Records of County, Texas. Any such
Supplemental Declaration shall be signed by the President and the Secretary of the Association, and by the
owner of the property being annexed. Any such annexation shall be effective upon filing unless otherwise
provided therein.
Section 3. Withdrawal of Pmpert:. Subject to the terms of Article XIV, Section 10, the
Declarant reserves the right to amend this Declaration unilaterally at any time so long as it holds an
unexpired option to expand the community pursuant to Section 1 of this Article IX, without prior notice and
without the consent of any Person, for the purpose of removing certain portions of the Properties then owned
by the Declarant or its affiliates or the Association from the provisions of this Declaration, to the extent
originally included in error or as a result of any changes whatsoever in the plans for the Properties desired to
be effected by the Declarant, provided such withdrawal is not unequivocally contrary to the overall, uniform
scheme of development for the Properties.
Section 4. Additional Covenants and Easements. The Declarant may unilaterally
subject any portion of the property submitted to this Declaration initially or by Supplemental Declaration to
additional covenants and easements, including covenants obligating the Association to maintain and insure
such property on behalf of the Owners and obligating such Owners to pay the costs incurred by the
Association through Neighborhood Assessments. Such additional covenants and easements shall be set
forth in a Supplemental Declaration filed either concurrent with or after the annexation of the subject property,
and shall require the written consent of the owner(s)of such property, if other than the Declarant.
Section 5. Amendments. This Article shall not be amended without the prior written
consent of Declarant so long as the Declarant owns any property.
Article X
ASSFSSMFNTS
Section 1. Creation of Assessments. There are hereby created assessments for
Association expenses as may from time to time specifically be authorized by the Board of Directors, to be
commenced at the time and in the manner set forth in Section 8 of this Article. There shall be four types of
assessment: (a) Base Assessments to fund Common Expenses for the general benefit of all Units; (b)
Neighborhood Assessments for Neighborhood Expenses benefiting only Units within a particular
Neighborhood or Neighborhoods; (c) Special Assessments as described in Section 5 below, and (d)
Benefited Assessments as described in Section 6 below. Each Owner, by acceptance of a deed or recorded
contract of sale for any portion of the Properties, is deemed to covenant and agree to pay these
assessments.
All assessments, together with interest (at a rate not to exceed the highest rate allowed by
Texas law) as computed from the date the delinquency first occurs, late charges, costs, and reasonable
attorney's fees, shall be a charge on the land and shall be a continuing lien upon each Unit against which the
assessment is made until paid, as more particularly provided in Section 7 of this Article. Each such
assessment, together with interest, late charges, costs, and reasonable attorneys fees, also shall be the
personal obligation of the Person who was the Owner of such Unit at the time the assessment arose. In the
event of a transfer of title to a Unit, the grantee shall be jointly and severally liable for such portion thereof as
may be due and payable at the time of conveyance. However, no first Mortgagee who obtains title to a Unit
pursuant to the remedies provided in the Mortgage shall be liable for unpaid assessments which accrued
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prior to such acquisition of title.
The Association shall, upon demand at any time, furnish to any Owner liable for any type of
assessment a certificate in writing signed by an officer of the Association setting forth whether such
assessment has been paid as to any particular Unit. Such certificate shall be conclusive evidence of
payment to the Association of such assessment therein stated to have been paid. The Association may
require the advance payment of a reasonable processing fee for the issuance of such certificate.
Assessments shall be paid in such manner and on such dates as may be fixed by the Board
of Directors. If the Board so elects, assessments may be paid in two or more installments. Unless the Board
otherwise provides, the Base Assessment and any Neighborhood Assessment shall be due and payable in
advance on the first day of each fiscal year. If any Owner is delinquent in paying any assessments or other
charges levied on his Unit, the Board may require any unpaid installments of all outstanding assessments to
be paid in full immediately.
No Owner may waive or otherwise exempt himself from liability for the assessments,
including, by way of illustration and not limitation, by non-use of Common Area or abandonment of the Unit.
The obligation to pay assessments is a separate and independent covenant on the part of each Owner. No
diminution or abatement of assessment or set-off shall be claimed or allowed by reason of any alleged failure
of the Association or Board to take some action or perform some function required to be taken or performed
by the Association or Board under this Declaration, or for inconvenience or discomfort arising from the
making of repairs or improvements which are the responsibility of the Association,or from any action taken to
comply with any law, ordinance, or with any order or directive of any municipal or other governmental
authority.
During the Class "B" Control Period, the Declarant may annually elect either to pay regular
assessments on its unsold Units or to pay to the Association the difference between the amount of
assessments collected on all other Units subject to assessment and the amount of actual expenditures
required to operate the Association during the fiscal year. Unless the Declarant otherwise notifies the Board
of Directors in writing at least 60 days before the beginning of each fiscal year, the Declarant shall be
deemed to have elected to continue paying on the same basis as during the immediately preceding fiscal
year. Regardless of such election, the Association shall have a lien against all Units owned by the Declarant
to secure the Declarant's obligations under this paragraph,which lien shall have the same attributes and shall
be enforceable in the same manner as the Association's lien against other Units under this Article. The
Declarants obligations hereunder may be satisfied in the form of cash or by"in kind"contributions of services
or materials,or a combination of these.
The Association is specifically authorized to enter into subsidy contracts or contracts for"in
kind" contribution of services, materials, or a combination of services and materials with the Declarant or
other entities for the payment of some portion of the Common Expenses.
Section 2. Computation of Bas _ Assessmen. It shall be the duty of the Board, at
least 60 days before the beginning of each fiscal year, to prepare a budget covering the estimated Common
Expense of the Association during the coming year. The budget shall include a capital contribution
establishing a reserve fund in accordance with a budget separately prepared as provided in Section 4 of this
Article.
The Base Assessment shall be levied equally against all Units and shall be set at a level
which is reasonably expected to produce the total income of the Association equal to the total budgeted
Common Expense, including reserves. In determining the level of assessments, the Board, in its discretion,
may consider other sources of funds available to the Association. In addition, the Board shall take into
account the number of Units subject to assessment under Section 8 hereof on the first day of the fiscal year
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for which the budget is prepared and the number of Units reasonably anticipated to become subject to
assessments during the fiscal year.
So long as the Declarant has the right unilaterally to annex additional property pursuant to
Article IX hereof, the Declarant may elect on an annual basis, but shall not be obligated, to reduce the
resulting Base Assessment for any fiscal year by payment of a subsidy (in addition to any amounts paid by
Declarant under Section 1 above), which may be either a contribution, an advance against future
assessments due from Declarant, or a loan, in the Declarants discretion. Any such subsidy shall be
conspicuously disclosed as a line item in the Common Expense budget and its characterization shall be
made known to the membership. The payment of such subsidy in any year shall under no circumstance
obligate the Declarant to continue payment of such subsidy in future years, unless provided for in a separate
written agreement between Declarant and the Association.
The Board shall send a copy of the budget and notice of the amount of the Base
Assessment to be levied against each Unit for the following year to be delivered to each Owner at least 30
days prior to the beginning of the fiscal year for which it is to be effective. Such budget and assessment shall
become effective unless disapproved at a meeting by Voting Members representing at least seventy-five
(75%) percent of the total Class "A" votes in the Association and seventy-five (75%) percent of the total
number of Voting Members,and by the Class"B"Member, if such exists. There shall be no obligation to call
a meeting for the purpose of considering the budget except on petition of the Voting Members as provided for
special meetings,which petition must be presented to the Board within 10 days after delivery of the notice of
assessments.
Notwithstanding the foregoing, however, in the event the proposed budget is disapproved or
the Board fails for any reason to determine the budget for any year,then and until such time as a budget shall
have been determined, the budget in effect for the immediately preceding year shall continue for the current
year.
Section 3. Computation of Neighborhood Assessments. It shall be the duty of the
Board, at least 60 days before the beginning of each fiscal year, to prepare a separate budget covering the
estimated Neighborhood Expenses to be incurred by the Association for each Neighborhood on whose
behalf Neighborhood Expenses are expected to be incurred during the coming year. The Board shall be
entitled to set such budget only to the extent that this Declaration, or any Supplemental Declaration,
specifically authorizes the Board to assess certain costs as a Neighborhood Assessment. Any Neighborhood
may request that additional services or a higher level of services be provided by the Association, and in such
case, any additional costs shall be added to such budget. Such budget shall include a capital contribution
establishing a reserve fund for repair and replacement of capital items, if any, maintained as a Neighborhood
Expense. Neighborhood Expenses shall be allocated equally among the Units within the Neighborhood
benefited thereby and levied as a Neighborhood Assessment, except that any portion of the assessment
intended for exterior maintenance of structures, insurance on structures, or replacement reserves which
pertain to particular structures shall be levied on each of the benefited Units in proportion to the benefit
received, if so specified in the Supplemental Declaration applicable to such Neighborhood or if so directed by
the Neighborhood in writing to the Board of Directors.
The Board shall cause a copy of such budget and notice of the amount of the Neighborhood
Assessment to be levied on each Unit in the Neighborhood for the coming year to be delivered to each
Owner of a Unit in the Neighborhood at least 30 days prior to the beginning of the fiscal year. Such budget
and assessment shall become effective unless disapproved by the Owners of a majority of the Units in the
Neighborhood(s) to which the Neighborhood Assessment applies_ However, there shall be no obligation to
call a meeting for the purpose of considering the budget except on petition of Owners of at least ten (10%)
percent of the Units in such Neighborhood. This right to disapprove shall only apply to those line items in the
Neighborhood budget which are attributable to services requested by the Neighborhood.
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In the event the proposed budget for any Neighborhood is disapproved or the Board fails for
any reason to determine the budget for any year, then and until such time as a budget shall have been
determined,the budget in effect for the immediately preceding year shall continue for the current year.
Section 4. Reserve Budget and Capital Contribution. The Board of Directors shall
annually prepare reserve budgets for both general and Neighborhood purposes which take into account the
number and nature of replaceable assets, the expected life of each asset, and the expected repair or
replacement cost. The Board shall set the required capital contribution in an amount sufficient to permit
meeting the projected needs of the Association, as shown on the budget, with respect both to amount and
timing by annual Assessments or Neighborhood Assessments,as appropriate,over the period of the budget
The capital contributor required, if any, shall be fixed by the Board and included within and distributed with
the applicable budget and notice of assessments,as provided in Sections 2 and 3 of this Article.
Section 5. Special Assessments.
(a) Unbudgeted Expenses. In addition to other assessments authorized hereunder, the
Association may levy Special Assessments from time to time to cover unbudgeted expenses or expenses in
excess of those budgeted. Such Special Assessment may be levied against the entire membership, if such
Special Assessment is for Common Expenses, or against the Units within any Neighborhood if such Special
Assessment is for Neighborhood Expenses. Except as otherwise specifically provided in this Declaration,
any Special Assessment shall have the affirmative vote or written consent of Voting Members(if a Common
Expense) or Owners (if a Neighborhood Expense) representing at least fifty-one (51%) percent of the total
votes allocated to Units which will be subject to such Special Assessment, and the affirmative vote or written
consent of the Class"B"Member, if such exists. Special Assessments shall be payable in such manner and
at such times as determined by the Board, and may be payable in installments extending beyond the fiscal
year in which the Special Assessment is approved, if the Board so determines.
(b) Costs to Cure Non-com lin ance. The Association may levy a Special Assessment
against any Unit or Neighborhood to reimburse the Association for costs incurred in bringing the Unit or
Neighborhood into compliance with the provisions of the Declaration, any applicable Supplemental
Declaration, and the Association rules and regulations. Such Special Assessments may be levied upon the
vote of the Board after notice to the Unit Owner or the Voting Member(s) from the Neighborhood, as
applicable.
Section 6. Benefited Assessments. The Board shall have the power to assess expenses of
the Association in the amount of the benefit received against Units receiving benefits, items, or services not
provided to all Units within a Neighborhood or within the Properties (a) that are incurred upon request of the
Owner of a Unit for specific items or services relating to the Unit or(b)that are incurred as a consequence of
the conduct of less than all Owners,their licensees, invitees, or guests.
Section 7. Lien for Assessments. The Declarant does hereby establish, reserve,create and
subject each Unit to a perfected contractual lien in favor for the Association to secure payment of delinquent
assessments owed on account of such Unit, as well as interest(subject to the limitations of Texas law), late
charges and costs of collection (including, without limitation, attorneys fees). Such lien shall be prior and
superior to all other liens,except(a)the liens of all taxes, bonds,assessments, and other levies which by law
would be superior thereto, and (b) the lien or charge of any first Mortgage of record (meaning any recorded
Mortgage with first priority over other Mortgages)made in good faith and for value. Declarant hereby assigns
such lien to the Association without recourse. The lien shall be self operative, and shall continue in inchoate
form without being reserved or referenced in any deed or other document and without any other action
required. Such lien, when delinquent, may be enforced by suit, judgement and judicial or nonjudicial
foreclosure in accordance with Texas law.
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Although no further action is required to create or perfect the lien, the Association may, as
further evidence and notice of the lien, execute and record a document setting forth as to any Unit the
amount of the delinquent sums due the Association at the time such document is executed and the fact that
a lien exists to secure the repayment thereof. However, the failure of the Association to execute and record
any such document shall not, to any extent, affect the validity, enforceability, or priority of the lien. The lien
may be foreclosed through judicial or, to the extent allowed by law, nonjudicial foreclosure proceedings in
accordance with Tex. Prop.Code Ann_ Section 51.002 (Vernon 1984), as it may be amended, in like manner
of any deed of trust on real property. Each Owner hereby grants to the Association, whether or not it is so
expressed in the deed or other instrument conveying such Unit to the Owner,a power of sale to be exercised
in accordance with Tex. Prop, Code Ann_ Section 51.002 (Vernon 1984), as it may be amended. At any
foreclosure proceeding, any Person, including but not limited to Declarant, the Association, and any Owner
shall have the right to bid for the Unit at foreclosure sale and to acquire and hold, lease, mortgage, and
convey the same. During the period in which the Unit is owned by the Association following foreclosure: (a)
no right to vote shall be exercised on its behalf, (b) no assessment shall be levied on it; and (c) each other
Unit shall be charged, in addition to its usual assessment, its equal pro rata share of the assessment that
would have been charged such Unit had it not been acquired by the Association as a result of foreclosure.
Suit to recover a money judgement for unpaid Common Expenses and attorney's flees shall be maintainable
without foreclosing or waiving the lien securing the same.
The sale or transfer of any Unit shall not affect the assessment lien or relieve such Unit from
the lien for any assessments thereafter becoming due. However,the sale or transfer of any Unit pursuant to
judicial or nonjudicial foreclosure of a first Mortgage shall extinguish the lien as to any installments of such
assessments which became due prior to such sale or transfer. Where the Mortgagee holding a first
Mortgage of record or other purchaser of a Unit obtains title pursuant to judicial or nonjudicial foreclosure of
the Mortgage, it shall not be personally liable for the share of the Common Expenses or assessments by the
Association chargeable to such Unit which became due prior to such acquisition of title. Such unpaid share
of Common Expenses or assessments shall be deemed to be Common Expenses collectible from Owners
of all Units subject to assessment under Section 8 below, including such acquires, its successors and
assigns.
Section 8. Date of Commencement of Assessments. The obligation to pay the
assessments provided for herein shall commence as to each Unit on the first day of the month following: (a)
the month in which the Unit is made subject to this Declaration, or (b) the month in which the Board first
determines a budget and levies assessments pursuant to this Article, whichever is later. The first annual
Base Assessment and Neighborhood Assessment, if any, levied on each Unit shall be adjusted according to
the number of months remaining in the fiscal year at the time assessments commence on the Unit.
Section 9. Failure to Assess. The omission or failure of the Board to fix the
assessment amounts or rates or to deliver or mail to each Owner an assessment notice shall not be deemed
a waiver, modification, or a release of any Owner from the obligation to pay assessments. In such event,
each Owner shall continue to pay Base Assessments and Neighborhood Assessments on the same basis as
for the last year for which an assessment was made, if any, until a new assessment is levied, at which time
any shortfalls in collections may be assessed retroactively by the Association.
Section 10. Capitalization of Association. Upon acquisition of record title to a Unit by
the first Owner thereof other than the Declarant or a Builder, a contribution shall be made by or on behalf of
the purchaser to the working capital of the Association in an amount equal to one-sixth (1/6) of the annual
Base Assessment per Unit for that year as determined by the Board. This amount shall be in addition to, not
in lieu of the annual Base Assessment levied on the Unit and shall not be considered an advance payment of
any portion thereof. This amount shall be deposited into the purchase and sales escrow and disbursed
therefrom to the Association for use in covering operating expenses and other expenses incurred by the
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Association pursuant to the terms of this Declaration.
Section 11. Exempt Prom. Notwithstanding anything to the contrary herein, the
following property shall be exempt from payment of Base Assessments, Neighborhood Assessments, and
Special Assessments:
(a) All Common Area;
(b) All property dedicated to and accepted by any governmental authority or public utility,
including without limitation public schools, public streets,and public parks, if any;and
(c) Property owned by any Neighborhood Association for the common use and enjoyment
of the Owners of Units in such Neighborhood,or owned by such Owners in common.
Article XI
ARCHITECTURAL STANDARDS
Section 1. General. No structure shall be placed, erected, or installed upon any Unit, and
no construction or modification (which shall include staking,clearing,excavation, grading and other site work,
exterior alteration or modification of existing improvements, and plantings or removal of plants, trees, or
shrubs other than as may be permitted in Article XII, Section 15)shall take place except in strict compliance
with this Article, until the requirements below have been fully met, and approval of the appropriate committee
has been obtained pursuant to Section 2 below. No permission or approval shall be required to repaint in
accordance with originally approved color scheme, or to rebuild in accordance with originally approved plans
and specifications. Nothing contained herein shall be construed to limit the right of an Owner to remodel the
interior of his Unit, or to paint the interior of his Unit any color desired. However, modifications or alterations
to the interior of screened porches, patios, and similar portions of a Unit visible from outside the Unit shall be
subject to approval.
All dwellings constructed on any portion of the Properties shall be designed by and built in
accordance with the plans and specifications of a licensed architect or professional building designer.
This Article shall not apply to the activities of the Declarant, nor to construction or
improvements or modifications to the Common Area by or on behalf of the Association.
This Article may not be amended without the Declarants written consent so long as the
Declarant owns any land subject to this Declaration or subject to annexation to this Declaration.
Section 2. Architectural Review. Responsibility for administration of the Design Review
Guidelines, as defined below, and review of all applications for construction and modifications under this
Article shall be handled by two committees, as described in subsections (a) and (b) of this Section 2. The
members of the committees need not be Members of the Association or representatives of Members, and
may, but need not, include architects, engineers or similar professionals, whose compensation, if any, shall
be established from time to time by the Board of Directors. The Board of Directors may establish reasonable
fees to be charged by the committees on behalf of the Association for review of applications hereunder and
may require such fees to be paid in full prior to review of any application.
(a) New Construction Committee. The New Construction Committee(NCC)shall consist of
at least three, but not more than five, persons and shall have exclusive jurisdiction over all original
construction on any portion of the Properties. Until one hundred (100%) percent of the Properties have been
developed and conveyed to Owners in the normal course of development and sale, the Declarant retains the
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'I ii -E R QI ID'Y
right to appoint all members of the NCC who shall serve at the discretion of the Declarant. There shall be no
surrender of this right prior to that time except in a written instrument in recordable form executed by
Declarant Upon the expiration of such right, the Board of Directors shall appoint the members of the NCC,
who shall serve and may be removed at the discretion of the Board of Directors.
(b) Modifications Committee. The Board of Directors may establish a Modifications
Committee(MC) to consist of at least three and no more than five persons, all of whom shall be appointed
by, and shall serve at the discretion of, the Board of Directors. The MC, if established, shall have exclusive
jurisdiction over modifications, additions, or alterations made to existing structures on Units or structures
containing Units and the open space, if any, appurtenant thereto. However, the MC may delegate its
authority as to a particular Neighborhood to the appropriate board or committee of the Neighborhood
Association, if any, subsequently created or subsequently subjected to this Declaration so long as the MC
has determined that such board or committee has in force review and enforcement practices, procedures,
and appropriate standards at least equal to those of the MC. Such delegation may be revoked and
jurisdiction reassumed at any time by written notice. The MC shall not take any action nor approve any plans
which are inconsistent with the Design Review Guidelines and the NCC shall have the right to veto any action
taken by the MC which the NCC determines, in its sole discretion, to be inconsistent with the Design Review
Guidelines.
Section 3. Guidelines and Procedures.
(a) The Declarant shall prepare the initial design and development guidelines and
application and review procedures (the "Design Review Guidelines") which shall be applicable to all
construction activities within the Properties. The Design Review Guidelines may contain general provisions
applicable to all of the Properties, as well as specific provisions which vary from one portion of the Properties
to another depending upon the location, unique characteristics,and intended use thereof.
The NCC, acting on behalf of the Board of Directors, shall adopt such Design Review
Guidelines at its initial organizational meeting and,thereafter shall have sole and full authority to amend them
from time to time,without the consent of the Owners.
The NCC shall make the Design Review Guidelines available to Owners, Builders, and
developers who seek to engage in development of or construction upon all or any portion of the Properties
and all such Persons shall conduct their activities in strict accordance with such Design Review Guidelines.
In the discretion of the Declarant, such Design Review Guidelines may be recorded in the County Clerk
Official Records of County, Texas, in which event the recorded version, as it may unilaterally be
amended from time to time by the NCC by recordation of amendments thereto, shall control in the event of
any dispute as to which version of the Design Review Guidelines was in effect at any particular time.
Any amendments to the Design Review Guidelines adopted from time to time by the NCC in
accordance with this Section shall apply to construction and modifications commenced after the date of such
amendment only, and shall not apply to require modifications to or removal of structures previously approved
by the NCC or MC once the approved construction or modification has commenced.
The MC may promulgate detailed application and review procedures and design standards
governing its area of responsibility and practice. Any such standards shall be consistent with those set forth
in the Design Review Guidelines and shall be subject to review and approval or disapproval by the NCC.
(b) Plans and specifications showing the nature, kind, shape, color, size, materials, and
location of all proposed construction and modifications, shall be submitted to the appropriate committee for
review and approval (or disapproval). In reviewing each submission, the committees may consider the
quality of workmanship and design, harmony of external design with existing structures, and location in
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763876.11WM1.0W011BD0NALWN
relation to surrounding structures, topography, and finish grade elevation, among other things. While the
committees may also consider such factors as conformity to master drainage plans, they shall not be
required to review drainage plans and neither the Association, the committees, nor the Declarant assume
any responsibility for ensuring compliance with any master drainage plan, which responsibility shall be solely
with the Builder or other applicant.
In the event that the NCC or MC fails to approve or to disapprove any application within 30
days after submission of all information and materials reasonably requested,the application shall be deemed
approved. However, no approval, whether expressly granted or deemed granted pursuant to the foregoing,
shall be inconsistent with the Design Review Guidelines unless a variance has been granted in writing by the
NCC pursuant to Section 5 below.
Section 4. No Waiver of Future Approvals. The approval of either the NCC or MC of any
proposals or plans and specifications or drawings for any work done or proposed, or in connection with any
other matter requiring the approval and consent of such committee, shall not be deemed to constitute a
waiver of any right to withhold approval or consent as to any similar proposals, plans and specifications,
drawings,or matters subsequently or additionally submitted for approval or consent.
Section 5. Val. The NCC may authorize variances from compliance with any of its
guidelines and procedures when circumstances such as topography, natural obstructions, hardship, or
aesthetic or environmental considerations require, but only in accordance with duly adopted rules and
regulations. Such variances may only be granted, however, when unique circumstances dictate and no
variance shall (a) be effective unless in writing; (b) be contrary to the restrictions set forth in this Declaration;
or (c) stop the NCC from denying a variance in other circumstances. For purposes of this Section, the
inability to obtain approval of any governmental agency, the issuance of any permit, or the terms of any
financing shall not be considered a hardship requiring a variance.
Section 6. Limitation of Liability. Review and approval of any application pursuant to this
Article is made on the basis of aesthetic considerations only and neither the NCC nor the MC shall bear any
responsibility for ensuring the structural integrity or soundness of approved construction or modifications,
appropriateness or effectiveness of drainage or compliance with any master drainage plan, nor for ensuring
compliance with building codes and other governmental requirements. Neither the Declarant, the
Association, the Board of Directors, any committee, or member of any of the foregoing shall be responsible
for nor held liable for any injury, damages, or loss arising out of the manner or quality of approved
construction on or modifications to any Unit or for the performance or non-performance of any of the
provisions of this Article XI.
Section 7. Enforcement. Any construction, alteration, or other work done in violation of this
Article shall be deemed to be nonconforming. Upon written request from the Board or the Declarant,Owners
shall, at their own cost and expense, remove such construction, alteration, or other work or bring it into
compliance. Should an Owner fail to remove or correct as required hereunder, the Board or its designees
shall have the right to enter the property, remove or cure the violation. All costs(including,without limitation,
attorneys fees),together with the interest at the maximum rate then allowed by law, may be assessed against
the benefited Unit and collected as a Special Assessment pursuant to Article X, Section 5(b)hereof.
Any contractor, subcontractor, agent, employee, or other invitee of an Owner who fails to
comply with the terms and provisions of this Article and the Design Review Guidelines may be excluded by
the Board from the Properties. In such event, neither the Association, its officers, or directors shall be held
liable to any Person for exercising the rights granted by this paragraph.
In addition to the foregoing, the Board of Directors and/or Declarant shall have the authority
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and standing,on behalf of the Association,to pursue all legal and equitable remedies available to enforce the
provisions of this Article and the decisions of the NCC and MC.
Article XII
USF RFSTRICTIQNS
The Properties shall be used only for residential, recreational, and related purposes(which
may include, without limitation, offices for any property manager retained by the Association or business
offices for the Declarant or the Association consistent with this Declaration, any Supplemental Declaration,
and amendments to either). Any Supplemental Declaration or additional covenants imposed on the property
within any Neighborhood may impose stricter standards than those contained in this Article. The Association,
acting through its Board of Directors,shall have standing and the power to enforce such standards.
Section 1. Signs. No sign of any kind shall be erected within the Properties without the
written consent of the Board of Directors,except signs installed by Declarant. If permission is granted to any
Person to erect a sign within the Properties, the Board reserves the right to restrict the size, color, lettering,
and placement of such sign. The Board of Directors and the Declarant shall have the right to erect signs as
they, in their discretion, deem appropriate. Except as provided above, no signs, flags, banners, or similar
items advertising or providing directional information with respect to activities being conducted within or
outside the Properties shall be displayed or posted within the Properties.
Section 2. Par *na and Prohibited Vehicles.
(a) Parking. Vehicles shall be parked only in the garages or in the driveways, if any,serving
the Units or other hard-surfaced areas which are not visible from the street Vehicles shall be subject to such
reasonable rules and regulations as the Board of Directors, or any Neighborhood Association, if any, having
concurrent jurisdiction over parking areas within the Neighborhood, may adopt. The Declarant and/or the
Association may designate certain on-street parking areas for visitors or guests subject to reasonable rules.
(b) Prohibited Vehicles. Commercial vehicles, vehicles with commercial writing on their
exteriors, vehicles primarily used or designed for commercial purposes, tractors, mobile homes, recreational
vehicles, trailers (either with or without wheels), campers, camper trailers, boats and other watercraft, and
boat trailers shall be parked only in enclosed garages or areas, if any, designated by the Board or by the
Neighborhood Association, if any, having concurrent jurisdiction over parking areas within a particular
Neighborhood. Stored vehicles and vehicles which are either obviously inoperable or do not have current
operating licenses shall not be permitted on the Properties except within enclosed garages. For purposes of
this Section, a vehicle shall be considered "stored" if it is put up on blocks or covered with a tarpaulin and
remains on blocks or so covered for 14 consecutive days without the prior approval of the Board. Service
and delivery vehicles may be parked in the Properties during daylight hours for such period of time as is
reasonably necessary to provide service or to make a delivery to a Unit or the Common Areas. Any vehicle
parked in violation of this Section or parking rules promulgated by the Board may be towed.
Section 3. Occupants Bound. All provisions of the Declaration, any applicable
Supplemental Declaration, and rules and regulations which govern the conduct of Owners and which provide
for sanctions against Owners shall also apply to all occupants,guests, and invitees of any Unit Every Owner
shall cause all occupants of his or her Unit to comply with the Declaration, any applicable Supplemental
Declaration, and rules and regulations. Every Owner shall be responsible for all violations and losses to the
Common Area caused by such occupants, notwithstanding the fact that such occupants of a Unit are fully
liable and may be sanctioned for any violation of the Declaration and rules and regulations.
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Section 4. Animals and Pets. No animals, livestock, or poultry of any kind shall be raised,
bred, or kept on any portion of the Properties. However, a reasonable number of dogs, cats, or other usual
and common household pets may be permitted in a Unit. The foregoing limitation on the number of pets
shall not apply to hamsters, small birds, fish, or other constantly cages animals, nor shall it apply to require
the removal of any litter born to a permitted pet prior to the time that the animals in such litter are three
months old_ However, those pets which are permitted to roam free, or, in the sole discretion of the
Association, endanger the health, make objectionable noise, or constitute a nuisance or inconvenience to the
Owners of other Units or the owner of any portion of the Properties shall be removed upon request of the
Board. If the owner fails to honor such request, the pet may be removed by the Board. No pets shall be
kept, bred,or maintained for any commercial purpose. All dogs shall at all times whenever they are outside a
Unit be confined on a leash held by a responsible person. The Board shall also have the authority, but not
the obligation, to restrict or prohibit the keeping of breeds of dogs with a known history of dangerous or
vicious behavior.
Section 5. Quiet Eniovment. Nothing shall be done or maintained on any part of a Unit
which emits foul or obnoxious odors outside the Unit or creates noise or other conditions which tend to
disturb the peace,quiet,safety, comfort, or serenity of the occupants and invitees of other Units. There shall
not be maintained any plants or animals or device or thing of any sort whose activities or existence in any
way is noxious, dangerous, unsightly, unpleasant, or of a nature as may diminish or destroy the enjoyment of
the Properties.
No noxious, illegal, or offensive activity shall be carried out upon any portion of the
Properties, which in the reasonable determination of the Board tends to cause embarrassment, discomfort,
annoyance, or nuisance to persons using the Common Area or to the occupants and invitees of other Units.
No outside burning of trash or garbage shall be permitted within the Properties. No speaker, hom, whistle,
bell, intercom, paging or other sound device audible from outside the Unit, except alarm devices and
entryway intercoms used exclusively for security purposes, shall be installed or operated on any Unit. The
use and discharge of firecrackers and other fireworks is prohibited within the Properties, except with prior
approval of the Board.
Section 6. Unsightly or Unkempt Conditions. All portions of a Unit outside of enclosed
structures shall be kept in a clean and tidy condition at all times. Nothing shall be done, maintained, stored,
or kept outside of enclosed structures on a Unit which, in the determination of the Board of Directors,causes
an unclean, unhealthy, or untidy condition to exist or is obnoxious to the senses. The pursuit of hobbies or
other activities, including specifically, without limiting the generality of the foregoing, the assembly and
disassembly of motor vehicles and other mechanical devices,which might tend to cause disorderly, unsightly,
or unkempt conditions, shall not be pursued or undertaken on any part of the Properties. Notwithstanding the
above, the disassembly and assembly of motor vehicles to perform repair work shall be permitted provided
such activities are not conducted on a regular or frequent basis, and are either conducted entirely within an
enclosed garage or, if conducted outside,are begun and completed within twelve hours.
No Person shall dump grass clippings,leaves or other debris, petroleum products,fertilizers,
or other potentially hazardous or toxic substances in any drainage ditch, stream, pond, or lake, street or
gutter, or anywhere on the Common Areas. Such materials shall not be disposed of on any portion of the
Properties without the prior permission of the owner thereof.
Section 7. Antennas. No exterior antennas except a television antenna extending no more
than twelve(12)feet above roof line, aerials, satellite dishes in excess of one meter(1) in diameter,or other
apparatus for the transmission or reception of television, radio, satellite, or other signals of any kind shall be
placed, allowed, or maintained upon any portion of the Properties, including any Unit, without the prior written
consent of the Board or its designee, unless completely contained within the dwelling on the Unit so as not to
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be visible from outside the dwelling. Any such apparatus permitted by the Board or its designee must be
screened from view of adjacent Units by an approved fence or other approved structure no more than six feet
in height. The Declarant and/or the Association shall have the right, without obligation, to erect or install an
aerial, satellite dish, master antenna, cable system or other apparatus for the transmission of television,
radio, satellite,or other signals for the benefit of all or a portion of the Properties.
Section 8. Clotheslines Garbage Cans, Tanks Etc_ All clotheslines, garbage cans,
mechanical equipment, and other similar items on Units shall be located or screened so as to be concealed
from view of neighboring Units, streets, and property located adjacent to the Unit. All rubbish, trash, and
garbage shall be stored in appropriate containers approved pursuant to Article XI hereof and shall regularly
be removed from the Properties and shall not be allowed to accumulate.
Section 9. Subdivision of Unit and Time Sharing. No Unit shall be subdivided or its
boundary lines changed except with the prior written approval of the Board of Directors of the Association.
Declarant, however,hereby expressly reserves the right to subdivide,change the boundary line of, and replat
any Unit(s) owned by Declarant. Any such division, boundary line change, or replatting shall not be in
violation of the applicable subdivision and zoning regulations.
No Unit shall be made subject to any type of timesharing, fraction-sharing, or similar
program whereby the right to exclusive use of the Unit rotates among members of the program on a fixed or
floating time schedule over a period of years.
Section 10. Firearms. The discharge of firearms and use of bows and arrows within the
Properties is prohibited. The term"firearms"includes"B-B"guns, pellet guns, and other firearms of all types,
regardless of size. Notwithstanding anything to the contrary contained herein, the Association shall not be
obligated to take action to enforce this Section.
Section 11. Pools. No above-ground swimming pools shall be erected, constructed or
installed on any Unit. Jacuzzis,whirlpools,or spas approved pursuant to Article XI shall not be considered an
above-ground pool for the purposes of this Section.
Section 12. Irrigation. No sprinkler or irrigation systems of any type which draw upon water
from creeks, streams, rivers, ponds,wetlands, or other surface waters within the Properties shall be installed,
constructed or operated within the Properties. However, the Declarant and the Association shall have the
right to draw water from such sources for the purpose of irrigating the Area of Common Responsibility. All
private wells shall be subject to approval in accordance with Article XI of this Declaration.
Section 13. Tents, Mobile Homes_ and Temporary Structures. Except as may be permitted
by the Declarant or the NCC during initial construction within the Properties, no tent, shack, mobile home,
storage shed or structure of a temporary nature shall be placed upon a unit or any part of the Properties
without prior approval pursuant to Article XI hereof, except that party tents or similar temporary structures
may be erected for a limited period of time for special events with prior written approval of the Board.
Section 14. Grading, Drainage and Septic Systems, No Person shall alter the grading of
any Unit without prior approval pursuant to Article XI of this Declaration. Catch basins and drainage areas
are for the purpose of natural flow of water only. No obstructions or debris shall be placed in these areas.
The Declarant hereby reserves for itself and the Association a perpetual easement across the Properties for
the purpose of altering drainage and water flow. However,the exercise of such easement shall not materially
diminish the value of or unreasonably interfere with the use of any adjacent property without the Owner's
consent. Septic tanks and drain fields,other than those installed by or with the consent of the Declarant, are
prohibited within the Properties.
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Section 15. Removal of Plants and Trees. No trees or shrubs, except for those which are
diseased or dead or create a safety hazard, shall be removed except in strict compliance with the Design
Review Guidelines and upon prior approval in accordance with Article XI of this Declaration. In the event of
an intentional or unintentional violation of this Section, the violator may be required by the committee having
jurisdiction to replace the removed tree with one or more comparable trees of such size and number and in
such locations as such committee may determine necessary, in its sole discretion,to mitigate the damage.
Section 16. Sight Di tan .e at Int_rte coons. All property located at street intersections shall
be landscaped so as to permit safe sight across the street comers. No fence, wall, hedge, or shrub planting
shall be placed or permitted to remain where it would create a traffic or sight problem.
Section 17. Utility Lines. No overhead utility lines, including lines for cable television, shall
be permitted within the Properties, except for temporary lines as required during construction and high
voltage lines.
Section 18. Air Conditioning Units. Except as may be permitted by the Board or its
designee, no window air conditioning units may be installed in any Unit.
Section 19, Lighting. Except for traditional holiday decorative lights, which may be
displayed for two months prior to and one month after any commonly recognized holiday for which such lights
are traditionally displayed, all exterior lights must be approved in accordance with Article XI of this
Declaration.
Section 20. Artificial Vegetaitaon Exterior Sculpture, and Similar Items. No artificial
vegetation or permanent flagpoles shall be permitted on the exterior of any portion of the Properties. No
exterior sculpture, fountains, flags and temporary flagpoles, birdhouses, birdbaths, other decorative
embellishments, or similar items shall be permitted unless approved in accordance with Article XI of this
Declaration.
Section 21. Energy Conservation Equipment No solar energy collector panels or attendant
hardware or other energy conservation equipment shall be constructed or installed on any Unit unless it is an
integral and harmonious part of the architectural design of a structure, as determined in the sole discretion of
the appropriate committee pursuant to Article XI hereof. No windmills, wind generators, or other apparatus
for generating power from the wind shall be erected or installed on any Unit
Section 22. Wetlands, Lakes, and Other Water Bodies. All wetlands, lakes, ponds, and
streams within the Properties, if any, shall be aesthetic amenities only, and no other use thereof, including,
without limitation, fishing, swimming, boating, playing, or use of personal flotation devices, shall be permitted
without the prior approval of the Board of Directors. The Association shall not be responsible for any loss,
damage, or injury to any person or property arising out of the authorized or unauthorized use of lakes, ponds,
or streams within the Properties. No docks, piers, or other structures shall be constructed on or over any
body of water within the Properties,except such as may be constructed by the Declarant or the Association.
Section 23. Playground and R .r a ional Equipment No jungle gyms, swing sets, similar
playground equipment, basketball backboards, tennis courts, or such other recreational equipment shall be
erected or installed on any Unit without prior written approval in accordance with Article XI hereof. Any
playground or other play areas or equipment furnished by the Association or erected within the Properties
shall be used at the risk of the user. The Association shall not be held liable to any Person for any claim,
damage,or injury occurring thereon or related to use thereof.
Section 24. Fences. No hedges, walls, dog runs, animal pens, or fences of any kind shall
be permitted on any Unit except as approved in accordance with Article XI of this Declaration.
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Section 25. Ringiness Use. No business, trade, garage sale, moving sale, rummage sale,
or similar activity may be conducted in or from any Unit, except that an Owner or occupant residing in a Unit
may conduct business activities within the Unit so long as: (a) the existence or operation of the business
activity is not apparent or detectable by sight, sound, or smell from outside the Unit; (b)the business activity
conforms to all zoning requirements for the Properties; (c) the business activity does not involve regular
visitation of the Unit by clients, customers, suppliers, or other business invitees or door-to-door solicitation of
residents of the Properties; and (d) the business activity is consistent with the residential character of the
Properties and does not constitute a nuisance, or a hazardous or offensive use, or threaten the security or
safety of other residents of the Properties,as may be determined in the sole discretion of the Board.
The terms"business"and"trade,"as used in this provision, shall be construed to have their
ordinary, generally accepted meanings and shall include, without limitation, any occupation, work, or activity
undertaken on an ongoing basis which involves the provision of goods or services to persons other than the
provider's family and for which the provider receives a fee, compensation, or other form of consideration,
regardless of whether: (a)such activity is engaged in full or part-time, (b)such activity is intended to or does
generate a profit,or(c)a license is required.
Notwithstanding the above, the leasing of a Unit shall not be considered a business or trade
within the meaning of this Section. This Section shall not apply to any activity conducted by the Declarant or
a Builder approved by the Declarant with respect to its development and sale of the Properties or its use of
any Units which it owns within the Properties.
Section 26. On-Site Fuel Storage. No on-site storage of gasoline, heating, or other fuels
shall be permitted on any part of the Properties. However, up to five gallons of fuel may be stored on each
Unit for emergency purposes and operation of lawn mowers and similar tools or equipment, and the
Association shall be permitted to store fuel for operation of maintenance vehicles, generators, and similar
equipment.
Section 27. Leasing of Units. "Leasing," for purposes of this Declaration, is defined as
regular,exclusive occupancy of a Unit by any person,other than the Owner for which the Owner receives any
consideration or benefit, including, but not limited to, a fee, service, gratuity, or emolument Units may be
leased only in their entirety. No fraction or portion may be leased. No transient tenants may be
accommodated in a Unit All leases shall be in writing and shall be for an initial term of no less than 30 days,
except with the prior written consent of the Board of Directors. Notice of any lease, sublease or assignment
of a lease, together with such additional information as may be required by the Board, shall be given to the
Board by the Unit Owner within 10 days of execution of the lease, sublease or assignment. The Owner must
make available to the lessee copies of the Declaration, and the rules and regulations. The Board may adopt
reasonable rules regulating leasing and subleasing.
Section 28. Laws and Ordinances. Every Owner and occupant of any Unit, their guests and
invitees, shall comply with all laws, statutes, ordinances, and rules of federal, state, and municipal
governments applicable to the Properties. Any violation may be considered a violation of this Declaration.
However, the Board shall have no obligation to take action to enforce such laws, statutes, ordinances, and
rules.
Section 29. Single Family Occupancy. No Unit shall be occupied by more than a single
family. For purposes of this restriction, a single family shall be defined as any number of persons related by
blood, adoption, or marriage living with not more than one person who is not so related as a single household
unit, or no more than two persons who are not so related living together as a single household unit, and the
household employees of either such household unit; provided, however, nothing herein shall be interpreted to
restrict the ability of one or more persons meeting the definition of a single family from residing with any
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number of person(s)under the age of eighteen(18)over whom such person has legal custody.
Section 30. Mineral Operations. No oil drilling, oil development operations, oil refining,
quarrying, or mining operations of any kind shall be permitted on any Unit No derrick or other structure
designed for use in boring for water, oil, natural gas, or other minerals shall be erected and maintained or
permitted on any Unit.
Article XIII
FAQ
Section 1. Easements of Encroachment. There shall be reciprocal appurtenant easements
of encroachment, and for maintenance and use of any permitted encroachment, between each Unit and any
adjacent Common Area and between adjacent Units due to the unintentional placement or settling or shifting
of the improvements constructed, reconstructed, or altered thereon (in accordance with the terms of these
restrictions)to a distance of not more than three feet, as measured from any point on the common boundary
along a line perpendicular to such boundary. However, in no event shall an easement for encroachment
exist if such encroachment occurred due to willful and knowing conduct on the part of,or with the knowledge
and consent of, an Owner,occupant,or the Association.
Section 2. Easements for Utilities, Etc. There are hereby reserved unto Declarant, so long
as the Declarant owns any property,the Association, and the designees of each (which may include,without
limitation, County,Texas and any utility)access and maintenance easements upon,across,over,
and under all of the Properties to the extent reasonably necessary for the purpose of replacing, repairing,and
maintaining cable television systems, master television antenna systems, security and similar systems,
roads, walkways, bicycle pathways, lakes, ponds, wetlands, drainage systems, street lights, signage, and all
utilities, including, but not limited to, water, sewers, meter boxes, telephone, gas, and electricity, and for the
purpose of installing any of the foregoing on property which it owns or within easements designated for such
purposes on recorded plats of the Properties. Notwithstanding anything to the contrary herein, these
easements shall not entitle the holders to construct or install any of the foregoing systems,facilities,or utilities
over, under or through any existing dwelling on a Unit, and any damage to a Unit resulting from the exercise
of these easements shall promptly be repaired by, and at the expense of, the Person exercising these
easements. The exercise of these easements shall not unreasonably interfere with the use of any Unit
Without limiting the generality of the foregoing, there are hereby reserved for the local water
supplier, electric company, and natural gas supplier easements across all the Common Area for ingress,
egress, installation, reading, replacing, repairing, and maintaining utility meters and boxes. However, the
exercise of this easement shall not extend to permitting entry into the dwelling on any Unit Notwithstanding
anything to the contrary contained in this Section, no sewers, electrical lines,water lines,or other utilities may
be installed or relocated on the Properties, except as may be approved by the Association's Board of
Directors or as provided by Declarant.
Section 3. Easements for Lake and Pond Maintenance and Flood Water. The Declarant
reserves for itself and its successors, assigns, and designees the nonexclusive right and easement, but not
the obligation, to enter upon any lakes, ponds, streams, and wetlands located within the Area of Common
Responsibility to (a) install, keep, maintain, and replace pumps in order to provide water for the irrigation of
any of the Area of Common Responsibility; (b) construct, maintain, and repair any bulkhead, wall, dam, or
other structure retaining water, and (c) remove trash and other debris therefrom and fulfill their maintenance
responsibilities as provided in this Declaration. The Declarants rights and easements provided in this
Section shall be transferred to the Association at such time as the Declarant shall cease to own any property
subject to the Declaration, or such earlier time as Declarant may elect, in its sole discretion, to transfer such
rights by a written instrument The Declarant, the Association, and their designees shall have an access
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easement over and across any of the Properties abutting or containing any portion of any such lakes, ponds,
streams,or wetlands to the extent reasonably necessary to exercise their rights under this Section.
There is further reserved herein for the benefit of Declarant, the Association, and their
designees, a perpetual, nonexclusive right and easement of access and encroachment over the Common
Area and Units(but not the dwellings thereon)adjacent to or within 50 feet of lake beds, ponds, and streams
within the Properties, in order to (a) temporarily flood and back water upon and maintain water over such
portions of the Properties; (b) fill, drain, dredge, deepen, clean, fertilize, dye, and generally maintain any
lakes, ponds, streams, and wetlands within the Area of Common Responsibility; (c) maintain and landscape
the slopes and banks pertaining to such lakes, ponds, streams, and wetlands; and(d)enter upon and across
such portions of the Properties for the purpose of exercising its rights under this Section. All persons entitled
to exercise these easements shall use reasonable care in, and repair any damage resulting from the
intentional exercise of such easements. Nothing herein shall be construed to make Declarant or any other
Person liable for damage resulting from flooding due to heavy rainfall or other natural disasters.
Section 4. Easements to Serve Additional Prop. The Declarant and its duly authorized
agents, representatives, and employees,as well as its successors, assigns, licensees,and mortgagees,shall
have and hereby reserves an easement over the Common Area for the purposes of enjoyment, use,access,
and development of the additional property,whether or not such property is made subject to this Declaration.
This easement includes, but is not limited to, a right of ingress and egress over the Common Area for
construction of roads and for connecting and installing utilities on such property. Declarant further agrees
that if the easement is exercised for permanent access to the additional property and such property or any
portion thereof is not made subject to this Declaration, the Declarant, its successors or assigns shall enter
into a reasonable agreement with the Association to share the cost of maintenance of any access roadway
serving the additional property. Such agreement shall provide for sharing of costs based on the ratio which
the number of residential dwellings on that portion of the additional property which is served by the easement
and is not made subject to this Declaration bears to the total number of residential dwellings within the
Properties and on such portion of the additional property.
Section 5. Right of Entrv. The Association shall have the right, but not the obligation, to
enter upon any Unit for emergency, security, and safety reasons, to perform maintenance pursuant to Article
V hereof, and to inspect for the purpose of ensuring compliance with this Declaration, any Supplemental
Declaration, and rules and regulations,which right may be exercised by the Association's Board of Directors,
officers, agents, employees, managers, and all policemen, firemen, ambulance personnel, and similar
emergency personnel in the performance of their respective duties. Except in an emergency situation, entry
shall only be during reasonable hours and after notice to the Owner. This right of entry shall include the right
of the Association to enter upon a Unit to cure any condition which may increase the possibility of a fire or
other hazard in the event an Owner fails or refuses to cure the condition within a reasonable time after
requested by the Board, but shall not authorize entry into any single family detached dwelling without
permission of the Owner except by emergency personnel acting in their official capacities.
Section 6. Retaining Walls/Drainage/Fence Easements.
(a) Definitions. For purposes of this Section 6, capitalized terms not previously defined in
Article I shall have the meanings set forth below.
(i) "Retaining Wall" shall be a wall structure running generally parallel to the
Common Boundary, constructed generally on the Common Boundary for the purposes of supporting and
benefiting the Dominant Estate(See typical illustration in this Section below.)
(ii) "Common Boundary" shall be the lot line, as shown on a subdivision plat,
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forming the common boundary line between any two adjoining Lots,or between any Lot and Common Area.
(iii) "Dominant Estate" shall mean, as between two adjoining Units or Common
Areas, the Unit or Common Area which has the higher elevation. (The Dominant Estate is defined in the
illustration below on the right.)
(iv) "Servient Estate" shall mean, as between two adjoining Units or Common
Areas,the Unit or Common Area which has the lower elevation. (The Servient Estate is defined below on the
left.)
(v) 'Retaining Wall and Drainage Easement Area" shall mean an area on the
Servient Estate which lies between the Common Boundary and a line generally parallel to the Common
Boundary equivalent to the side yard setback required as per the City of zoning,as shown
in the illustration below.
(vi) "Fence" shall be a structure constructed on the Common Boundary, or within
two feet of the Common Boundary on the Dominant Estate.
(vii) "Fence Easement Area"shall mean a two-foot area on each side of the Fence,
whether the fence is located on the Common Boundary,or within the Dominant Estate.
"Illustration"
W
J
FENCE
W
6
g FENCE
EASEMENT
FENCE AREA
EA5EMENT DOMINANT ESTATE
AREA _
2--0.,
SERMENT ESTATE
RETAINING WALL
(sideyard Setback) (Sideyord Setbock)
Retaining Wall & Retaining Woll k
Drainage Easement Drainage Easement
Area Area
ODMMON aouNOAzr
(b) Use of Retaining Wall and Drainage Easement Area. A perpetual non-exclusive
easement on, over and across the Easement Area of each adjoining Servient Estate is hereby granted to
each Dominant Estate for ingress and egress by the Owner and occupants of the Dominant Estate and their
agents, contractors and representatives, for construction, reconstruction and maintenance of the Retaining
Wall serving the Dominant Estate, and for the purpose of maintaining, reconstructing, or constructing the
storm water drainage runoff system from the Dominant Estate, subject to the restrictions set forth in this
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763876.L,%W L.00"J BWNALSON
Declaration and approval of the New Construction Committee(NCC),and the Modification Committee(MC).
Nothing shall be done or permitted within the Easement Area which would constitute a threat or
hazard to the health and Safety of the individuals occupying the Servient Estate, nor shall anything be done
or permitted within the Easement Area which defaces the dwelling or the landscaping on the Servient Estate,
or which adversely affects the integrity, structure or strength of the dwelling on the Servient Estate.
The uses permitted within each Easement Area by virtue of this Section shall be nonexclusive and
the same may be subject to utility, access and drainage easements, as well as minor encroachments. The
owner of the Servient Estate shall be entitled to such reasonable use or uses of the Easement Area as are
not inconsistent with the rights of the Dominant Estate. In addition, the Easement Area is subject to any
easements granted elsewhere in this Declaration,as it may be amended from time to time.
(c) Riffs of FnT The Owner of each Dominant Estate (and the authorized agents,
representatives and contractors of such Owner) shall have a reasonable and temporary right of entry,
access, ingress, egress and regress upon the Easement Area reasonably necessary to perform and
complete, in a prompt, efficient and good workmanlike manner, any construction or other work (whether
original,remodeling or repair)which has been theretofore approved by the NCC and/or MC.
The NCC and/or MC are specifically authorized to promulgate ad hoc rules and guidelines pertaining to any
particular construction or repair work likely to require the exercise of the right of entry described above so that
the respective best interests of the adjoining Owners are, to the extent reasonably possible, harmonized and
preserved.
(d) Maintenance of Retaining Wall and Drainage Easement AreaDamage and Destruction_
The Owner of the Servient Estate shall be responsible for maintaining landscaping, and other improvements
within the Easement Area in a neat and attractive condition. Any damage to the Servient Estate caused by
the Dominant Owner shall be reasonably restored at the Dominant Owner's expense to at least as good a
condition as when the Dominant Owner initially entered the Servient Estate.
In the event that a Retaining Wall is damaged or destroyed by casualty, the Owner of the Dominant Estate
shall proceed promptly to repair or restore the Retaining Wall in the manner consistent with its original
construction.
(e) Use of Fence Easement Area. Any fence constructed or required to be constructed
upon a Common Boundary shall be the shared maintenance responsibility of adjoining Unit Owners. Any
fence constructed or required to be constructed on the Dominant Estate, due solely to the construction of a
Retaining Wall along a Common Boundary, shall be the maintenance responsibility of the adjoining Unit
owners.
(f) Arbitration_ In the event of any dispute, disagreement or controversy between or among
any Owners pertaining to either the Retaining Wall or Fence Easement Areas,then upon the written demand
of any such Owner, the dispute, disagreement or controversy shall be fully and finally resolved in by
arbitration before the Board, and, if necessary, judgment upon their decision may be entered in any court
having jurisdiction thereof.
Article XIV
MORTGAGEE PROVISIONS
The following provisions are for the benefit of holders, insurers and guarantors of first
Mortgages on Units in the Properties. The provisions of this Article apply to both this Declaration,
notwithstanding any other provisions contained therein.
34
763876./.100000/.000001/BDONALSON
Section 1. Notices of Action. An institutional holder, insurer,or guarantor of a first Mortgage
who provides written request to the Association(such request to state the name and address of such holder,
insurer, or guarantor and the street address of the Unit to which its Mortgage relates, thereby becoming an
"Eligible Holder'),will be entitled to timely written notice of:
(a) Any condemnation loss or any casualty loss which affects a material portion of the
Properties or which affects any Unit on which there is a first Mortgage held, insured, or guaranteed by such
Eligible Holder.
(b) Any delinquency in the payment of assessments or charges owed by a Unit subject to
the Mortgage of such Eligible Holder,where such delinquency has continued for a period of 60 days, or any
other violation of the Declaration relating to such Unit or the Owner or Occupant which is not cured within 60
days. Notwithstanding this provision, any holder of a first Mortgage is entitled to written notice upon request
from the Association of any default in the performance by an Owner of a Unit of any obligation under the
Declaration which is not cured within 60 days;
(c) Any lapse, cancellation, or material modification of any insurance policy maintained by
the Association;or
(d) Any proposed action which would require the consent of a specified percentage of
Eligible Holders.
Section 2. Special FHLMC Provision. So long as required by the Federal Home Loan
Mortgage Corporation, the following provisions apply in addition to and not in lieu of the foregoing. Unless at
least sixty-seven (67%) percent of the first Mortgagees or Voting Members representing at least sixty-seven
(67%)of the total Association vote entitled to cast consent,the Association shall not:
(a) By act or omission seek to abandon, partition, subdivide, encumber, sell, or transfer all
or any portion of the real property comprising the Common Area which the Association owns, directly or
indirectly(the granting of easements for public utilities or other similar purposes consistent with the intended
use of the Common Area shall not be deemed a transfer within the meaning of this subsection);
(b) Change the method of determining the obligations, assessments, dues, or other
charges which may be levied against an Owner of a Unit (a decision, including contracts, by the Board or
provisions of any declaration subsequently recorded on any portion of the Properties regarding assessments
for Neighborhoods or other similar areas shall not be subject to this provision where such decision or
subsequent declaration is otherwise authorized by this Declaration.);
(c) By act or omission change, waive, or abandon any scheme of regulations or
enforcement pertaining to architectural design, exterior appearance or maintenance of Units and the
Common Area (the issuance and amendment of architectural standards, procedures, rules and regulations,
or use restrictions shall not constitute a change, waiver, or abandonment within the meaning of this
provision.);
(d) Fail to maintain insurance, as required by this Declaration;or
(e) Use hazard insurance proceeds for any Common Area losses for other than the repair,
replacement,or reconstruction of such property.
First Mortgagees may,jointly or singly, pay taxes or other charges which are in default and
which may or have become a charge against the Common Area and may pay overdue premiums on casualty
insurance policies or secure new casualty insurance coverage upon the lapse of an Association policy, and
35
763876.1/000001.00000LIBDOMAIMN
first Mortgagees making such payments shall be entitled to immediate reimbursement from the Association.
Section 3. Other Provisions for First Lien Hold rs. To the extent possible under Texas law:
(a) Any restoration or repair of the Properties after a partial condemnation or damage due to
an insurable hazard shall be performed substantially in accordance with this Declaration and the original
plans and specifications unless the approval is obtained of the Eligible Holders of first Mortgages on Units to
which at least fifty-one(51%)percent of the votes of Units subject to Mortgages held by such Eligible Holders
are allocated.
(b) Any election to terminate the Association after substantial destruction or a substantial
taking in condemnation shall require the approval of the Eligible Holders of first Mortgages on Units to which
at least fifty-one (51%) percent of the votes of Units subject to Mortgages held by such Eligible Holders are
allocated.
Section 4. Amendments to Documents. The following provisions do not apply to
amendments to the constituent documents or termination of the Association made as a result of destruction,
damage, or condemnation pursuant to Section 3 (a) and (b) of this Article, or to the addition of land in
accordance with Article IX.
(a) The consent of Voting Members representing at least sixty-seven(67%)of the Class"A"
votes and of the Declarant, so long as it owns any land subject to this Declaration, and the approval of the
Eligible Holders of first Mortgages on Units to which at least sixty-seven(67%)of the votes of Units subject to
a Mortgage appertain,shall be required to terminate the Association.
(b) The consent of Voting Members representing at least sixty-seven (67%) percent of the
Class"A"votes and of the Declarant, so long as it owns any land subject to this Declaration,and the approval
of Eligible Holders of first Mortgages on Units to which at least fifty-one (51%) percent of the votes of Units
subject to a Mortgage appertain, shall be required to amend materially any provisions of the Declaration or to
add any material provisions thereto which establish, provide for,govern,or regulate any of the following:
(i) voting;
(ii) assessments,assessment liens,or subordination of such liens;
(iii) reserves for maintenance, repair,and replacement of the Common Area;
(iv) insurance or fidelity bonds;
(v) rights to use the Common Area;
(vi) responsibility for maintenance and repair of the Properties;
(vii) expansion or contraction of the Properties or the addition, annexation, or
withdrawal of Properties to or from the Association;
(viii)boundaries of any Unit;
(ix) leasing of Units;
(x) imposition of any right of first refusal or similar restriction of the right of any
Owner to sell,transfer,or otherwise convey his or her Unit;
36
763876.l/00000/.00000YBUONALSON
(xi) establishment of self-management by the Association where professional
management has been required by an Eligible Holder,or
(xii) any provisions included in the Declaration, Articles of Incorporation which are
for the express benefit of holders,guarantors,or insurers of first Mortgages on Units.
Section 5. No Priority. No provision of this Declaration gives or shall be construed as giving
any Owner or other party priority over any rights of the first Mortgagee of any Unit in the case of distribution to
such Owner of insurance proceeds or condemnation awards for losses to or a taking of the Common Area.
Section 6. Notice to Association. Upon request,each Owner shall be obligated to furnish to
the Association the name and address of the holder of any Mortgage encumbering such Owner's Unit.
Section 7. Amendment by Board. Should the Federal National Mortgage Association, the
Federal Home Loan Mortgage Corporation, the U.S. Department of Veterans Affairs, or the U.S. Department
of Housing and Urban Development, subsequently delete any of their respective requirements which
necessitate the provisions of this Article or make any such requirements less stringent, the Board, without
approval of the Owners, may record an amendment to this Article to reflect such changes.
Section 8. Applicabildy of Article XIV. Nothing contained in this Article shall be construed to
reduce the percentage vote that must otherwise be obtained under the Declaration or Texas law for any of
the acts set out in this Article.
Section 9. Failure of Morga$ee to Respond. Any Mortgagee who receives a written
request from the Board to respond to or consent to any action shall be deemed to have approved such action
if the Association does not receive a written response from the Mortgagee within 30 days of the date of the
Association's request, provided such request is delivered to the Mortgagee by certified or registered mail,
return receipt requested.
Section 10. HUDNA Approval. As long as there is a Class"B" membership, the following
actions shall require the prior approval of the U.S. Department of Housing and Urban Development or the
Department of Veterans Affairs, if either such agency is insuring or guaranteeing the mortgage on any Unit:
annexation of additional property other than that described on Exhibit"B,"dedication of Common Area to the
public,mortgaging of Common Area,or material amendment of this Declaration.
Article XV
MC ARANT'S RIGHTS
Any or all of the special rights and obligations of the Declarant set forth in this Declaration
may be transferred to other Persons, provided that the transfer shall not reduce an obligation nor enlarge a
right beyond that contained in this Declaration, as applicable. Furthermore, no such transfer shall be
effective unless it is in a written instrument signed by the Declarant and duly recorded in the County Clerk
Official Records of County, Texas. Nothing in this Declaration shall be construed to require the
Declarant or any successor to develop any of the property in any manner whatsoever.
Notwithstanding any provisions contained in this Declaration to the contrary, so long as
construction and sales of Units by Declarant and Builders shall continue, it shall be expressly permissible for
the Declarant and Builders authorized by Declarant to maintain and carry on upon portions of the Common
Area such facilities and activities as, in the sole opinion of the Declarant, may be reasonably required,
convenient, or incidental to the construction or sale of such units, including, but not limited to, business
offices, signs,and sales offices. The Declarant and Builder(s)authorized by Declarant shall have easements
37
763876./.00000/.00000//BDONALSON
R UAIM, TEX.
for access to and use of such facilities. The right to maintain and carry on such facilities and activities shall
include specifically,without limitation,the right to use Units owned or leased by the Declarant or a Builder and
any clubhouse or community center which may be owned by the Declarant or the Association,as models and
sales offices, respectively.
So long as the Declarant continues to have rights under this paragraph, no Person shall
record any declaration of covenants, conditions and restrictions, or declaration of condominium or similar
instrument affecting any portion of the Properties without Declarants review and written consent Any
attempted recordation without compliance herewith shall result in such declaration of covenants, conditions
and restrictions, or declaration of condominium or similar instrument being void and of no force and effect
unless subsequently approved by written consent signed by the Declarant and recorded in the public records.
This Article may not be amended without the express written consent of the Declarant.
However, the rights contained in this Article shall terminate upon the earlier of(a)30 years from the date this
Declaration is recorded, or (b) upon recording by Declarant of a written statement that all sales activity has
ceased.
Article XVI
GEN RAL PROVISIONS
Section 1. Term. The covenants and restrictions of this Declaration shall run with and bind
the Properties, and shall inure to the benefit of and shall be enforceable by the Association or the Owner of
any Properties, their respective legal representatives, heirs, successors, and assigns, for a term of 30 years
from the date this Declaration is recorded. After such time the covenants and restrictions shall be
automatically extended for successive periods of 10 years, unless an instrument in writing, signed by a
majority of the then Owners, has been recorded within the year preceding the beginning of each successive
period of 10 years,agreeing to change said covenants and restrictions, in whole or in part,or to terminate the
same, in which case this Declaration shall be modified or terminated as specified therein.
Section 2. Amendment.
(a) By Declarant_ Until conveyance of the first Unit by Declarant, Declarant may unilaterally
amend this Declaration for any purpose. Thereafter, the Declarant may unilaterally amend this Declaration if
such amendment is (i) necessary to bring any provision into compliance with any applicable governmental
statues, rule, regulation, or judicial determination; (ii) necessary to enable any reputable title insurance
company to issue title insurance coverage on the Units; (iii) required by an institutional or governmental
lender or purchaser of mortgage loans, including,for example, the Federal National Mortgage Association or
Federal Home Loan Mortgage Corporation, to enable such lender or purchaser to make or purchase
mortgage loans on the Units; (iv) necessary to enable any governmental agency or reputable private
insurance company to insure mortgage loans on the Units; or (v) otherwise necessary to satisfy the
requirements of any governmental agency. However,any such amendment shall not adversely affect the title
to any Unit unless the Owner shall consent thereto in writing. So long as the Declarant still owns property for
development as part of the Properties, it may unilaterally amend this Declaration for any other purpose,
provided the amendment has no material adverse effect upon any right of any Owner.
(b) By Owners. Except as provided above and otherwise specifically provided herein, this
Declaration may be amended only by the affirmative vote or written consent, or any combination thereof, of
Voting Members representing sixty-seven (67%) percent of the total votes in the Association, including sixty-
seven (67%) percent of the votes held by Members other than the Declarant, and the consent of the
Declarant, so long as the Declarant has a right to annex additional property to this Declaration pursuant to
Article IX. In addition,the approval requirements set forth in Article XIV hereof shall be met,if applicable.
38
763876.1/000001.000001/BDON&SON
Notwithstanding the above, the percentage of votes necessary to amend a specific clause
shall not be less than the prescribed percentage of affirmative votes required for action to be taken under that
clause. To be effective,any amendment must be recorded in the County Clerk Official Records of
County,Texas.
If an Owner consents to any amendment to this Declaration, it will be conclusively presumed
that such Owner has the authority so to consent, and no contrary provision in any Mortgage or contract
between the Owner and a third party will affect the validity of such amendment.
No amendment may remove, revoke, or modify any right or privilege of the Declarant
without the written consent of the Declarant or the assignee of such right or privilege.
Section 3. Severa!?wl . Invalidation of any provision or portion of a provision of this
Declaration by judgment or court order shall in no way affect any other provisions, which shall remain in full
force and effect.
Section 4. per eta. If any of the covenants, conditions, restrictions, or other provisions
of this Declaration shall be unlawful, void, or voidable for violation of the rule against perpetuities, then such
provisions shall continue only until 21 years after the death of the last survivor of the now living descendants
of Elizabeth II, Queen of England.
Section 5. Litigation. Except as otherwise specifically provided below, no judicial or
administrative proceeding shall be commenced or prosecuted by the Association unless approved by Voting
Members representing seventy-five (75%) percent of the total Association vote and by seventy-five (75%)
percent of the Voting Members. In the case of such a vote, and notwithstanding anything contained in this
Declaration to the contrary; a Voting member shall not vote in favor of bringing or prosecuting any such
proceeding unless authorized to do so by Owners of seventy-five(75%) percent of the Units represented by
the Voting Member. This Section shall not apply, however, to (a) actions brought by the Association to
enforce the provisions of this Declaration (including, without limitation, the foreclosure of liens); (b) the
imposition and collection of assessments as provided in Article X; (c) proceedings involving challenges to ad
valorem taxation; or(d) counterclaims brought by the Association in proceedings instituted against it This
Section shall not be amended unless such amendment is approved by the percentage of votes, and pursuant
to the same procedures, necessary to institute proceedings as provided above.
Section 6. Cumulative Effect Conflict. The covenants, restrictions, and provisions of this
Declaration shall be cumulative with those of any Neighborhood and the Association may, but shall not be
required to enforce the covenants, conditions,and provisions of any Neighborhood; provided, however, in the
event of conflict between or among such covenants and restrictions, and provisions of any articles of
incorporation, rules and regulations, policies, or practices adopted or carried out pursuant thereto, those of
any Neighborhood shall be subject and subordinate to those of the Association. The foregoing priorities shall
apply, but not be limited to,the liens for assessments created in favor of the Association.
Section 7. Use of the "Nam of Subdivision" Phrase and Mark. No person shall use the
phrase"blame of Subdivision"or any logo or derivative in any printed or promotional material without the prior
written consent of the Declarant However, the Association shall be entitled to use the phrase "Name of
subdivision"in its name.
Section 8. Compliance. Every Owner and occupant of an Unit shall comply with all lawful
provisions of this Declaration and the rules and regulations of the Association. Failure to comply shall be
grounds for an action to recover sums due,for damages or injunctive relief, or for any other remedy available
at law or in equity, maintainable by the Association or, in a proper case, by any aggrieved Unit Owner(s). In
39
763876.1/000001.00000/.,BDONAISON
addition, the Association may avail itself of any and all remedies provided in this Declaration.
Section 9. Notice of Sale or Transfer of Title. In the event that any Owner desires to sell or
otherwise transfer title to his or her Unit, such Owner shall give the Board of Directors at least seven days
prior written notice of the name and address of the purchaser or transferee, the date of such transfer of title,
and such other information as the Board of Directors may reasonably require. The transferor shall continue
to be jointly and severally responsible with the transferee for all obligations of the Owner of the Unit coming
due prior to the date upon which notice is received by the Board of Directors including assessment
obligations, notwithstanding the transfer of title to the Unit
Section 10. Dilute Resolution. Prior to filing a lawsuit against the Declarant, the
Association, a Neighborhood Association, the Board, the NCC, the MC, or any officer, director, committee
member,Voting Member or property manager of the Association, an Owner or Occupant must request and
attend a hearing with the Board of Directors. Any such request shall be in writing and shall be personally
delivered to any member of the Board or the property manager, if any, of the Association. The Owner or
Occupant shall, in such request and at the hearing, make a good faith effort to explain the grievance to the
Board and resolve the dispute in an amicable fashion, and shall give the Board a reasonable opportunity to
address the Owners or Occupant's grievance before filing suit. Upon receiving a request for a hearing, the
Board shall give notice of the date, time and place of the hearing to the person requesting the hearing. The
Board shall schedule this hearing for a date not less than seven(7) nor more than twenty-one(21)days from
the date of receipt of the request.
IN WITNESS WHEREOF, the undersigned Declarant has executed this Declaration this
day of ,20
Name of Limited Partnership
a Texas Limited Partnership
By: LLc,
A Texas limited liability company
Its general partner
By:
Its: •o-Manager
40
763876.1/0001.00"IBDONAI SON
STATE OF TEXAS
COUNTY OF DALLAS
BEFORE ME,the undersigned authority,on this day of
200, personally appeared
1. known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged that he/she executed the same for the purposes and considerations therein
expressed,and in the capacity therein stated.
Notary Public,State of Texas
My Commission Expires: Notary's printed Name:
After recording, return to:
Name of Partnership
600 N. Pearl, Suite 650, LB 149
Dallas,Texas 75201
Attn: Frank Murphy
41
763876.//00000/.0000011BDONA/SON
I TY 6�C2.�Lr=ef%�
a
3
Exhibit D
Design Review Guidelines
Exhibit D to
Development Agreement Page 1
DESIGN REVIEW GUIDELINES
OF
OWNERS ASSOCIATION, INC.
Part One: Definitions
The words in these Design Review Guidelines shall be given their normal commonly understood
definitions. Capitalized terms shall have the same meaning as set forth in that Declaration of
Covenants, Conditions, and Restrictions for Owners Association, Inc. (said Declaration, as
amended, renewed or extended from time to time, is hereinafter sometimes referred to as the
"Declaration")unless the context shall otherwise require.
Part Two: Submission of Plans
Prior to the commencement of any work,there shall be submitted to the appropriate committee two
(2) complete sets of plans and specifications of any and all proposed construction of any dwelling,
building, structure or improvements of any Unit and of any changes in the terrain of any Unit, and
two (2) complete sets of plans and specifications of the proposed painting, remodeling,
reconstruction, alterations, or additions to any dwelling, building, structure or improvements on
any Unit which affect the exterior appearance or structural integrity of any such dwelling, building,
structure or improvements. All plans and specifications for any dwelling, building, structure or
improvements to be erected on any Unit shall include plot plans showing the exterior color
schemes thereof. The approval of the appropriate committee must be obtained prior to the
commencement of any such painting, remodeling, reconstruction, alterations, additions, new
construction or changes in terrain thereon in the same manner as set forth in Part 3 below.
Part Three: Approval and Disapproval
Before any work is commenced on any Unit, the appropriate committee, as the same is from time
to time composed, shall approve or disapprove plans and specifications by majority vote of the
members then serving. One (1) set of said plans and specifications with the approval or
disapproval endorsed thereon, shall be returned to the person submitting them and the other copy
thereof shall be retained by the committee. The signature of any member of the committee on any
such plans and specifications with "approved" or "disapproved"thereon written or stamped shall be
prima facia evidence as to such approval or disapproval being the act of the full committee. In the
event the committee fails to approve or disapprove any such plans or specifications within thirty
(30) days after actual receipt of same by a member of the committee. The committee shall be
deemed to have approved such plans and specifications.
C:\NrPonblUMa geVEANNEI7E_STAFFORD\791626_I.1)OC � Page 1
` 'U YIHill, �L��.
Part Four: Criteria for Disapproval
The appropriate committee shall have the right to disapprove any plans and specifications
submitted to it as aforesaid in the event such plans and specifications are not in accordance with all
of the provisions of the Declaration and the Design Review Guidelines, if the external design,
appearance, location or color scheme of the proposed dwelling,building, or other structure is not in
harmony with the general surroundings of such Unit or with the adjacent dwellings, buildings, or
structures or with the topography, if the plans and specifications submitted are incomplete, if the
design, appearance or location of any landscaping is not in harmony with the general surroundings,
or topography, or in the event the committee deems the plans and specifications, or any part
thereof, to be contrary to the interests, welfare or rights of any or all parts of the Neighborhood, or
the Owners in general, all in the sole discretion of the committee. The decisions of the committee
shall be final.
Part Five: Limitation of Committee Liability
The appropriate committee is authorized to accept whatever drawings, plans or specifications as it
deems desirable within its sole discretion in satisfaction of this part of the Declaration. Neither the
committee nor any architect or agent thereof or of Declarant shall be responsible in any way for
any defects in any plans or specifications submitted, revised or approved in accordance with the
foregoing, nor for any structural or other defects in any work done according to such plans and
specifications.
Part Six: Improvements
The following provisions are applicable to restrict all Units in the Properties:
Section 1. Structure and Roof Section of Dwelling. Unless otherwise provided in these
Design Review Guidelines, the exterior of all dwellings shall be constructed of
brick, brick veneer, stone, stone veneer, masonry, and/or glass building materials of
the kind customarily used for exterior walls. The width of the front of the main
structure shall be in harmony with other dwellings in the Neighborhood. All
dwellings shall have a roof of wood shingles, slate, tile or composition singles with
a weight of at least 240 pounds per 100 square feet and that have a weathered
brown or gray look, unless some other material is approved by the appropriate
committee. The roof pitch of any structure shall be 6 ft. x 12 ft. minimum.
Section 2. Sewage Disposal. No buildings or dwellings shall be constructed with plumbing
fixtures, dishwashers, toilets, or sewage disposal systems unless the same are
connected to an established central sewage system unless specifically approved by
the appropriate committee.
Section 3. Parking Requirements. There shall be a completely enclosed garage with a
minimum of two (2) automobile parking stalls of a least 8 feet x 18 feet each for
each single family residence or dwelling unit constructed on any Unit. In the case
C:WrPonbIWM geVEANNETIE_STAFFORD1781626_IDOC Page 2
of those Units possessing an alley immediately adjacent to said Unit, the vehicle
doors of all garages shall not open toward an adjacent street.
Enclosures, shelters, screens and other improvements (excluding garages)
constructed for the purpose of automobile parking and other vehicles shall be
attached to and a part of the structure of the building to which they apply. No
carports shall be allowed unless: (i) it is constructed of the same exterior masonry
material and color as the house on the same lot; (ii) it shall have the same roof type,
material, composition, and pitch; and(iii) it is attached to and a part of the house.
Section 4. Fences and Boundary Plantings. No wall, coping or fence shall extend nearer to
any street than the front line of the dwelling on any Unit. No wire or woven fence
is permitted on any portion of any Unit that exposes it to view from the streets or
surrounding Units. No fence may be constructed or erected on any Unit without
approval of the appropriate committee as to materials, appearance, and height. All
Units shall be kept in a well landscaped condition so as to produce the best aesthetic
effect. Boundary planting along front Unit lines or side Unit lines adjacent to a
street, except trees with single trunks, shall not be permitted to grow higher than
three (3) feet. No boundary planting shall be allowed outside rear Unit lines. Each
Unit Owner shall cut and maintain all of his trees, shrubs, and hedges so that no part
thereof extends across any Unit boundary line without the permission of the Owner
of the Unit across which the planting extends.
Fencing installed by the Declarant shall not be modified.
Section 5. Construction Periods. The work of construction, painting, altering or remodeling
any building or improvements on any Unit shall be prosecuted diligently from the
commencement until the completion thereof and in any event shall be completed
within nine months after commencement of the work.
Section 6. Landscaping. Each Unit shall have installed or planted prior to the conveyance of
the Unit to any person other than a builder or developer holding title for the purpose
of development and resale, fully sodded front and side yards and a minimum of
twenty (20) shrubs and two (2) trees (at minimum sizes of(1) gallon and three (3)
inch caliper, as measured at a point twelve inches (12") above ground level,
respectively) in each front yard. Such trees planted shall be of a kind and size (if
different from the size set forth above) as may be required by the then current Tree
Ordinance of the City. Existing trees on the Unit shall qualify for this landscape
requirement.
Section 8. Sitework. Finished grades shall follow the City approved grading plans. Anytime a
site is altered, it is the builder's responsibility to provide the retainage. Retaining
walls are only to be constructed of stone or brick.
Section 9. Masonry. Unless otherwise specifically approved by the ARC, each single-family
detached residential dwelling shall have at least the City's minimum of the
HMO
C:NrPortblVMa geVEANNE TE STAFFORD\781626 LDOC
�l Cir\I U�7Y••' �yL1
exterior vertical surfaces (excluding windows, doors and roof) composed of
approved masonry (i.e., brick, stone, stucco).
A. The term"masonry" shall not include any "hardy plankiboard"type materials.
B. Windows and doors are excluded from the calculation of the total exterior wall
area.
C. Chimney flues on any exterior side or front wall, or on back wall of any
structure located on a corner Unit, shall be enclosed one hundred (100%)
percent in brick or masonry except for the side of the chimney that face the
roof.
Section 10. Irrigation. An automatic irrigation system is encouraged, but not required in the
front yard of each lot.
Section 11. Mailboxes. Mailboxes shall be consistent with other mailboxes in the Subdivision
and shall be constructed in a design and of a material approved by the ARC prior to
installation. No metal boxes on wood poles shall be allowed. Mailboxes shall be in
conformity with the requirements of the City.
C WrPonbIVMa geVEANNE'f1E_STAFFORD081626_10DC Page 4
Exhibit E
Development Plan
Exhibit E to
Development Agreement Page 1
EXHIBIT "E"
fw
REMAINDER OF HAYWIRE RANCH !
(1,4.00 ACRES ±j
JACK G. WILKINSON ,AND ELNA WILKINSON
VOL. 5303, PG. 844, VOL. 53G8, PG. 847,
j VOL. 5399, PG. 91, & VOL. 5399, PG. 94 N
BRUCE WILKiNSON AND CAROLYN WILKINSON FIERER
VOL. 7800, PG. 2290 & VOL. 7800, PG. 2293
600'
/. '\ % \ u
X 4x
un
/1, / / /\ Z /\ ,�x
Ix
. x
�._� .•\ '`•�,'
SETTLEP,�FNT \
OAC) � `r�� l I j `,• `\
Exhibit F
Legal Descriptions of Tract 1 and 2 Shown on Development Plan
Tract 1
BEING all that tract of land in Tarrant County, Texas, being a part of the T. &N.O. R.R.
COMPANY SURVEY, Abstract No. 1566, and the S.B. HOPKINS SURVEY, Abstract No. 672,
and being a portion of the 738.20 acre Tract of land conveyed to OBIE P. LEONARD, JR., R.W.
LEONARD, MARGERY ANN HODGES, and MARTHA JANE ANTHONY, by the deed
recorded in Volume 4897, Page 227 of the Deed Records of Tarrant County, Texas, and being
further described as follows:
COMMENCING at a P.K. nail set at the Southwest corner of the aforesaid 738.20 acre Tract of
land said point lying in the approximate center line of White Settlement Road, and also being the
Southeast corner of the Tract of land conveyed to J.J. DEARING AND BETSY JO DEARING
BROWDER by the deed recorded in Volume 8317, Page 475 of the Deed Records of Tarrant
County, Texas, and ROBERT DEARING BROWDER by the deed recorded in Volume 14336,
Page 556 of the Deed Records of Tarrant County, Texas;
THENCE North 00 degrees 00 minutes 45 seconds West, at 25.00 feet, passing a five-eighths
inch iron rod found in the North right-of-way line of White Settlement Road, in all a total of
67.01 feet, along the West boundary line of said 738.20 acre Tract of land and the East boundary
line of the aforesaid J.J DEARING, BETSY JO DEARING, and ROBERT DEARING
BROWDER TRACT to a point for corner and the POINT OF BEGINNING of this tract of land;
THENCE North 00 degrees 00 minutes 45 seconds West, 937.17 feet along the West boundary
line of said 738.20 acre Tract of land and the East boundary line of the aforesaid J.J DEARING,
BETSY JO DEARING, and ROBERT DEARING BROWDER TRACT to a point for corner;
THENCE South 38 degrees 13 minutes 31 seconds East, 247.26 feet to a point for corner;
THENCE South 19 degrees 17 minutes 45 seconds East, 366.52 feet to a point for corner;
THENCE South 36 degrees 06 minutes 06 seconds East, 337.98 feet to a point for corner;
THENCE South 53 degrees 58 minutes 47 seconds East, 361.56 feet to a point for corner;
THENCE South 75 degrees 57 minutes 38 seconds East, 118.31 feet to a point for corner;
THENCE Southwesterly, 14.64 feet along a curve to the left having a central angle of 00 degrees
40 minutes 23 seconds, a radius of 1246.00 feet, a tangent of 7.32 feet, whose chord bears South
West, 14.64 feet to a point for corner;
THENCE South 14 degrees 02 minutes 22 seconds West, 85.00 feet to a point for corner;
Exhibit F to
Development Agreement Page I
THENCE North 75 degrees 57 minutes 38 seconds West, 882.35 feet to the POINT OF
BEGINNING and containing 338,272 square feet or 7.766 acres of land.
Tract 2
BEING all that tract of land in Tarrant County, Texas, being all of the J.T. ALLEN SURVEY,
Abstract No. 67, and a portion of the C.E. NEWMAN SURVEY, Abstract NO. 1183, the W.K.
GANDY SURVEY, Abstract No. 1890, the F.W. SCHODEVERLING SURVEY, Abstract No.
1398, the C.E.P.I. MFG COMPANY SURVEY, Abstract No. 382, the T. & N.O. R.R.
COMPANY SURVEY, Abstract No. 1566, and the S.B. HOPKINS SURVEY, Abstract No. 672,
and being a portion of the 738.20 acre Tract of land conveyed to OBIE P. LEONARD, JR., R.W.
LEONARD, MARGERY ANN HODGES, and MARTHA JANE ANTHONY, by the deed
recorded in Volume 4897, Page 227 of the Deed Records of Tarrant County, Texas, and being
further described as follows:
BEGINNING at a P.K. nail set at the Southwest corner of the aforesaid 738.20 acre Tract of land
said point lying in the approximate center line of White Settlement Road, and also being the
Southeast corner of the Tract of land conveyed to J.J. DEARING AND BETSY JO DEARING
BROWDER by the deed recorded in Volume 8317, Page 475 of the Deed Records of Tarrant
County, Texas, and ROBERT DEARING BROWDER by the deed recorded in Volume 14336,
Page 556 of the Deed Records of Tarrant County, Texas;
THENCE North 00 degrees 00 minutes 45 seconds West, at 25.00 feet, passing a five-eighths
inch iron rod found in the North right-of-way line of White Settlement Road, in all 4703.06 feet,
along the West boundary line of said 738.20 acre Tract of land and the East boundary line of the
aforesaid J.J DEARING, BETSY JO DEARING, and ROBERT DEARING BROWDER
TRACT to a one-half inch iron rod set for corner;
THENCE North 89 degrees 59 minutes 15 seconds East, 163.32 feet, departing the West
boundary line of said 738.20 acre Tract to a one-half inch iron rod set for corner;
THENCE North 69 degrees 31 minutes 20 seconds East, 120.00 feet to a one-half inch iron rod
set for corner lying in a curve to the left;
THENCE Southeasterly, 733.50 feet, along said curve to the left having a radius of 2230.00 feet,
center angle of 18 degrees 50 minutes 45 seconds, chord bearing South 29 degrees 54 minutes 03
seconds East, 730.19 feet to a one-half inch iron rod set at the end of said curve;
THENCE South 39 degrees 19 minutes 25 seconds East, 1034.09 feet to a one-half inch iron rod
set for corner;
THENCE North 50 degrees 40 minutes 35 seconds East, 132.28 feet to a three-fourths inch iron
rod found at the inner L. corner of the East boundary line of the aforesaid 73 8.20 acre Tract, said
point being the Southwest corner of the Tract of land conveyed to JACK G. WILKINSON and
ELNA WILKINSON by the deeds recorded in Volume 5368, Page 844, and Page 847, Volume
5399, Page 91, and Page 94 of the Deeds Recorded in Tarrant County, Texas and to BRUCE
Exhibit F to
Development Agreement Page 2
WILKINSON and CAROLYN WILKINSON FIERER recorded in Volume 7800, Page 2290 and
Page 2293 of the Deed Records of Tarrant County, Texas.
THENCE North 89 degrees 53 minutes 04 seconds East, 1850.88 feet along the Northerly
boundary line of said 738.20 acre Tract and the South boundary line of the aforesaid JACK G.
WILKINSON AND ELNA WILKINSON, and BRUCE WILKINSON AND CAROLYN
WILKINSON FIERER Tract to a one-inch iron pipe found at an angle point in the East boundary
line of the aforesaid 738.20 acre Tract of land; said point being the Northwest corner of the Tract
of land conveyed to WESTPOINT INVESTORS LIMITED PARTNERSHIP recorded in the
Deed Records of Tarrant County, Texas under County Clerk's file number D204187877;
THENCE South 00 degrees 29 minutes 40 seconds East, 3058.94 feet along the West boundary
line of said WESTPOINT INVESTORS LIMITED PARTNERSHIP and the East boundary line
of the aforesaid 738.20 acre Tract of land to a five-eighths inch iron rod found at the most
Easterly Southeast corner of the aforesaid 738.20 acre Tract of land, and an angle point in the
aforesaid WESTPOINT INVESTORS LIMITED PARTNERSHIP Tract;
THENCE South 89 degrees 37 minutes 12 seconds West, 2036.40 feet along the Northerly
boundary line of the aforesaid WESTPOINT INVESTORS LIMITED PARTNERSHIP Tract,
and the North boundary line of a Tract of land conveyed to GENE A. THOMPSON according to
the deed recorded in Volume 6429, Page 104 of the Deed Records of Tarrant County, Texas, and
the North boundary line of a Tract of land conveyed to ROBERT DEAN JOHNSON according
to the deed recorded in Volume 14336, Page 514 and 515, Volume 14208, Page 33, and Volume
14221, Page 114 of the Deeds Records of Tarrant County, Texas and the North boundary line of
the Tract of land conveyed to HAROLD V. JOHNSON, III, recorded in the Deed Records of
Tarrant County, Texas, under County Clerk's file number D203289978, to a one-half inch iron
rod set at the Northwest corner of the aforesaid HAROLD V. JOHNSON, III, Tract. Said point
being an angle point in the boundary line of the aforesaid 738.20 acre Tract of land;
THENCE South 00 degrees 28 minutes 56 seconds East, 638.10 feet along the West boundary
line of the aforesaid HAROLD V. JOHNSON, III, Tract and the East boundary line of said
738.20 acre Tract to a P.K. nail set in the approximate center line of the aforesaid White
Settlement Road from which a five-eighths inch iron rod found lies North 00 degrees 28 minutes
56 seconds West, 25.00 feet;
THENCE North 75 degrees 57 minutes 38 seconds West, 1280.87 feet along the approximate
center line of White Settlement Road and the Southerly boundary line of the aforesaid 738.20
acre Tract of land to THE PLACE OF BEGINNING and containing 11,520,896 square feet or
264.483 acres of land.
Save and except Tract 1 described above.
Exhibit F to
Development Agreement Page 3
Exhibit G
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment") is made and
entered into as of the day of between
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 the Owner under that certain "Agreement
Concerning Creation and Operation of City of Fort Worth Municipal Utility District No. 2 of
Tarrant County" (City Secretary Contract No. 33593, M & C C-21479) (the "Agreement")
among W/J Haywire I, LP, a Texas limited partnership, as "Owner", the City of Fort Worth,
Texas, and the City of Fort Worth Municipal Utility District No. 2 of Tarrant County, relating to
the creation and operation of the District, to the extent that the Agreement covers, affects, and
relates to the lands described on Exhibit A attached to and made a part hereof of this
Assignment for all purposes (the "Transferred Premises").
B. Assignor desires to assign certain of its rights under the Agreement as it relates to
the Transferred Premises to Assignee, and Assignee desires to acquire such rights, on and subject
to the terms and conditions of this Assignment.
NOW, THEREFORE, in consideration of the premises, the mutual covenants and
obligations set forth herein, and other good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged, the Parties hereby agree and act as follows:
1. Certain Defined Terms. Unless indicated otherwise herein, capitalized terms in
this Assignment shall have the same respective meanings as are ascribed to them in the
Agreement.
2. Assignment. Subject to all of the terms and conditions of this Assignment,
Assignor hereby assigns all [or describe specifically assigned rights if partial] of its rights
under the Agreement, insofar as the Agreement covers, affects, and relates to the Transferred
Premises.
3. Assumption. 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
the Transferred Premises that may arise or accrue from and after the effective date of this
Assignment. 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.
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
Exhibit G to
Development Agreement Page I
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 has been prepared in multiple
counterparts, each of which shall constitute an original hereof, and the execution of any one of
such counterparts by any signatory shall have the same force and effect and shall be binding
upon such signatory to the same extent as if the same counterpart were executed by all of the
signatories. Facsimile copies of signatures may be appended hereto with the same force and
effect as legally delivered original signatures.
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 representatives,
successors, and assigns.
EXECUTED as of the day and year first above written.
ASSIGNOR:
I 1
By:
Printed name:
Title:
ASSIGNEE:
I 1
By:
Printed name:
Title:
Exhibit G to
Development Agreement Page 2
STATE OF TEXAS §
COUNTY OF §
SWORN TO AND SUBSCRIBED before me on the day of ,
200_, by
Notary Public, State of Texas
STATE OF TEXAS §
COUNTY OF §
SWORN TO AND SUBSCRIBED before me on the day of ,
200_,by
Notary Public, State of Texas
[Add Acknowledgments]
Exhibit G to
Development Agreement Page 3
r
EXHIBIT A
(The Transferred Premises)
Exhibit A to
Assignment and Assumption Agreement Page I
MARY LOUISE GARCIA !* .r
COUNTY CLERK '
# 100 West Weatherford Fort Worth, TX 76196-0401
s•.,.""*w''"�a+ PHONE(817) 884-1195
POPE HARDWICKE CHRISTIE
500 W 7TH ST STE 600
FT WORTH, TX 76102
Submitter: POPE HARDWICKE CHRISTIE
DO NOT DESTROY
WARNING - THIS IS PART OF THE OFFICIAL RECORD.
Filed For Registration: 10/2/2017 2:58 PM
Instrument#: D217228750
A 90 PGS $368.00
By:
D217228750
ANY PROVISION WHICH RESTRICTS THE SALE, RENTAL OR USE OF THE DESCRIBED REAL PROPERTY
BECAUSE OF COLOR OR RACE IS INVALID AND UNENFORCEABLE UNDER FEDERAL LAW.