ELECTRONICALLY RECORDED 201300183489 06/12/2013 09:39:46 AM DECLARATION 1/62 DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS FOR CYPRESS COVE THE LAND NAME OF DEVELOPMENT/SUBDIVISION: CYPRESS COVE LOCATION OF SUBDIVISION: GARLAND, TEXAS (DALLAS COUNTY} Declarant D. R. Horton - Texas, Ltd.
IN CYPRESS COVE BEFORE BUILD-OUT & SELL-OUT Our common goal ~ a subdivision of completed homes in the hands of owners who contral the destiny of their HOA.
Mandatory Membership. From the date this Declaration is recorded, the land described in Appendix A will be subject to this Declaration, which establishes a mandatory membership association. Current and future owners of the land will automatically be members of the property owners association.
Restnicted Environment. A homeowner in Cypress Cove cannot do "anything he wants" with his yard and the outside of his home, Even the color of his fence stain must conform to certain requirements. Lots classified as "HighlyVisible Lots" (such as lots that back-up to Bobtown Road) are subject to additional restrictions, even as to the use and appearance of backyards.
Evolving Community. Cypress Cove is a planned community being developed in phases, for which the build-out and sell-out may last for many years, during which time the initial concept plan for Cypress Cove may be significantly modified to respond to perceived or actual changes and opportunities in the marketplace.
Declarant's Role. Declarant's active role with Cypress Cove is not forever - it ends when the last homebuyer
ly modified to respond to perceived or actual changes and opportunities in the marketplace.
Declarant's Role. Declarant's active role with Cypress Cove is not forever - it ends when the last homebuyer purchases the last home on the last lot in the community. Until then, Declarant reserves many significant rights to oversee the complete build-out and sell-out of homes in the development. Separately, Dectarant reserves rights to control the owners association for the maximum length of time permitted by Texas law.
Change is Possible. Prior to build-out, Declarant may change or eliminate any feature of Cypress Cove (subject to governmental approval, if applicable). Like what? Changing the number of lots, minimum dwelling sizes, or setback requirements; changing the nature, number, and location of components of common areas; changing construction specifications; and changing architectural styles. Dec/arant is not required to provide a proposed feature of Cypress Cove that is not in place on the date of an owner's decision to buy a home in Cypress Cove.
Declaration Concepts. This form of declaration employs some concepts and terms that are not traditional ~ prima rily in Appendixes B and C. Why? To do a better job of communicating the elements of land development and home building that must be respected - even protected - to create successful neighborhoods and governing associations that contribute to the economy and well-being of our cities, State, and nation.
Separation of Powers. The for-profit business of creating and marketing the Property is distinct from the non-profit operation of the Association for the benefit of homeowners and residents. Although homeowners will, in time, control
fit business of creating and marketing the Property is distinct from the non-profit operation of the Association for the benefit of homeowners and residents. Although homeowners will, in time, control the governance and destiny of Cypress Cove, homeowners do not have a voice, role, or influence on any aspect of how the Property is created, constructed, builtt-out, and sold-out by Declarant and Builders. The Association's Architectural Review Committee regulates existing homes and has no authority over new homes.
Marketing Advantage. Declarant and Builders have rights and opportunities for marketing new homes that are not available to individual homeowners who desire to market their homes for resale. A homeowner who tries to resell his home before Cypress Cove is sold-out will be competing against Declarant and/or Builders with new houses and a marketing advantage.
Organization of Declaration. To make this Declaration more readable for the generations of homeowners that will own homes in Cypress Cove after the community is built-out and sold-out, its main body does not preface every provision with a statement of Declarant's reserved rights. Instead, most of Declarant's rights and reservations are compiled in Appendix B and Appendix C of this Declaration, which are in every way superior to and controlling over the main body of this Declaration.
- Speaking of Appendixes . . . (or "appendices" if you prefer). Until Cypress Cove is built-out and sold-out, the appendixes of this Declaration are the most important parts of all the Governing Documents.
» APPENDIX A is perpetual.
» APPENDIXES B & C contro! through Build-Out & Sell-Out.
» APPENDIX D controls through Sell Out, for Highly-Visible Lots.
ost important parts of all the Governing Documents.
» APPENDIX A is perpetual.
» APPENDIXES B & C contro! through Build-Out & Sell-Out.
» APPENDIX D controls through Sell Out, for Highly-Visible Lots.
FOR CYPRESS COVE TABLE OF CONTENTS PAGE ARTICLE 1 - DEFINITIONS 2.0... ee ee es 1 1.1. DEFINED TERMS .. 1... eee eee eee ee eee ee teen ee eee eee eee eee tert nee 1 1.2. DEVELOPMENT TERMS ........-- 2.22 eee ee eee eee teens 3 ARTICLE 2 - SUBJECT TO DOCUMENTS .. 1... ccc ee ee ee ee eee ee eee eee ees 3 2.1. SUBJECT TO DOCUMENTS OF RECORD ... 0... 0 ccc ccc eee eee eee tees 3 2.2. COVENANTS IN PLAT 0... cece eee cee ee ee eee ee ee ee 3 2.3. CITY ORDINANCE ....... 00. 0c eee ee eee eee eee ee renee eens 3 2.4. CITY LICENSE «1... ec ee eee eee ee eee ne eee eee eee 4 2.5. POWER PLANT EMISSIONS EASEMENT ...........0---2 00 ccc ee ee ere eee reerunureauras 4 2.6. OWNER AGREES TO BE BOUND... . ccc ee ee eee een ee 4 ARTICLE 3 - PROPERTY FEATURES ........ cece ee tee ete eee eee tees 4 3.1. CITY LIMITS 2... cc ce eee te eee eee ee eee ee eee 4 3.2. HIGHLY-VISIBLE LOTS HAVE RESTRICTIONS ... 2.0.2... 22: eee eee ee eee eee ees 4 3.3. POWER PLANT DISCLOSURE 2.0.0... ccc ee ee eee eee eee eee 4 3.4. HIGHWAY DISCLOSURE «1.0... eee eee tenet ree ee nee nee ene eee 4 3.5. LAKE ACCESS DISCLOSURE ...... 0.6 ccc ee ee eee eee eee eee eens 5 3.6. LAND USE 2... ce eee ee ee ee eee ee eee eee eee te eee eee ee 5 3.7, ENVIRONMENTAL CONDITIONS ...... 0.00 e ccc ce ee eee ene eee 5 3.8. STREEFS WITHIN PROPERTY ...... 00.0.0. ee ce eee eee ere eee renee tern eens be) ARTICLE 4 - PROPERTY EASEMENTS AND RIGHTS .. 20... 0... cece eee ee eee eee eee eee eee ee eee 6
ee eee ene eee 5 3.8. STREEFS WITHIN PROPERTY ...... 00.0.0. ee ce eee eee ere eee renee tern eens be) ARTICLE 4 - PROPERTY EASEMENTS AND RIGHTS .. 20... 0... cece eee ee eee eee eee eee eee ee eee 6 4.1. EASEMENT FOR PERIMETER FEATURES .. 0.0... cece eee eee tt cee ree ener e ees 6 4.2. EASEMENT FOR ENTRY FEATURES ........--0 00-0 c eee eee eee eee eee een eee 6 4.3. OWNER’S EASEMENT OF ENJOYMENT ... 0.00. cece ce ee ee eee ee eee 6 4.4. OWNER'S INGRESS/EGRESS EASEMENT ...... 0.00: cee eee eee eee eee 6 4.5. OWNER'’S RIGHT TO BUILD ... 0... ce eee eee eee 6 4.6. RIGHTS OF CITY 2. ec ee ee ere te ee ere eee eee ree eee eee eee 7 4.7. ASSOCIATION'S ACCESS EASEMENT 2... 0.00. ccc ee eee eee eee eee eae 7 4.8. UTILITIES 2... ccc ce ee ee ee ee eee eee eee eee 7 4.9, MINERAL INTERESTS 2.0... . cece eee eee tee eee eee eee eee eee eee 8 4.10. NOTICE OF LIMITATION ON LIABILITY ........ 0... ccc eee eee eee eee eens 8 4.11. SECURITY 2.22. eee eee ee ere ee eee eee ee ete ee ee eee eee eee ee ees 8 ARTICLE 5 - COMMON AREA 1.0... cee ee eee ee eee eee eee eee ee eee eee eee eee 9 5.1. OWNERSHIP . 01. ee ee ee eee ee eee ee eee eee eee ee 9 5.2. a 9 5.3. CHANGE OF USE 2. oe ce ee te ee ee eee eee teeta ees 9 5.4. CONVEYANCE BY OR TO ASSOCIATION «0.0... ce eee ree eee eter eens 9 5.5. ACCEPTANCE 2.0... c ccc eee ee eee recente ee eee teen renee era neta 9 5.6. COMPONENTS ......--. 2-2. eee ee eee eee eee reenter ae eeeees 9 Appendix 8 and Appendix C have priority over the main body of this Declaration.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page i DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS CYPRESS COVE
RESTRICTIONS Page i DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS CYPRESS COVE 5.7. LIMITED COMMON AREA 2.0... cc ee ee eee ee tee eee 10 5.8. PERSONAL RESPONSIBILITY .. 1.2.2.0... 0c ccc ere eee ee eee ee eee 10 ARTICLE 6 - ARCHITECTURAL COVENANTS & USE RESTRICTIONS FOR IMPROVED LOTS ............000ceee 10 6.1. GENERAL PROVISIONS 1... 0. 0c ee re eee eee eee eee eee ee nee ees 16 6.2. OWNER'S DUTY 2.02. ec ee ee ree ee er eee ee ees 11 6.3. SPECIFICATION SOURCES 2.1... cc cee eee eee eee eee eee eee eee 11 6.4. APPENDAGE LOTS ... ee eee ee ee ee eee eet eee ee ee eee ee eee ees 11 6.5. ARCHITECTURAL REVIEW COMMITTEE ...... 0.0. cece eee ee ee ee tees 12 6.6. ARC APPROVAL REQUIRED .......... 0 cece eee ee eee tee ete erent ree ena 12 6.7. APPLICATION FOR APPROVAL .. 1... 0c cece creer rere eee ee eee eee eee 13 6.8. VARIANCE 22... ccc er ee ree ee ees 13 6.9. ASSOCIATION'S RIGHT TO PROMULGATE RULES 2.0.0... ccc ccc eee ee ee eee 14 6.10. SUBJECTIVE STANDARDS ... 0... ccc ee ee ee eee eee eee 14 6.11. LIMITS FO OWNER'S RIGHTS ..... 0... cc ee ee ee eee eee ree eee eee 14 6.12. LIMITED ROLE OF DECLARANT ........ 0. cee eee eee ter eee eee eee eee 14 ARTICLE 7 - ASSOCIATION OPERATIONS 2.0... ccc eee eee ee ee 15 7.1. THE ASSOCIATION 2... cc er ee ee ee ee eee ee 15 7.2. BOARD .. 1... eee ee ee ee ee eee ees 15 7.3. MEMBERS & VOTING 2... 0. ccc ee ee eee eee ee 15 7.4. HEAD COUNTS ... 0... cee ee ee eee ee eee eee ees 16 7.5. DECISION-MAKING 2.0... cee ee ree ee ee ee 16 7.6. MANAGER 2. wc ce ee eee ee re eee 16 7.7. ARRANGEMENTS WITH OTHER ASSOCIATIONS ..... 0.0: cece ee cee eee eee 16 7.8. COMMUNICATIONS 2.0... 0 ee ee ee es 16
N-MAKING 2.0... cee ee ree ee ee ee 16 7.6. MANAGER 2. wc ce ee eee ee re eee 16 7.7. ARRANGEMENTS WITH OTHER ASSOCIATIONS ..... 0.0: cece ee cee eee eee 16 7.8. COMMUNICATIONS 2.0... 0 ee ee ee es 16 7.9, BOOKS & RECORDS 2... cc ee ee ee er eee eee ee 16 7.10. INDEMNIFICATION ........------- cee cece ee ee eee eee eee eee 16 7.11, INSURANCE 2.2022 ee eee eee et eee eee eee eee 17 7.12. OBLIGATIONS OF OWNERS ...........--0 0-2 eee eee eee eee 17 ARTICLE 8 - COVENANT FOR ASSESSMENTS .... 1. eee ee ee ee ee ee ee 18 8.1. PURPOSE OF ASSESSMENTS ........ 2.00. cee cece eee ee ene ee eee ees 18 8.2. PERSONAL OBLIGATION .. 0.0... ccc ee ee eee eee eee eee 18 8.3. ANNUAL BUDGET ....... 0... cc cece cee ee en en eee ee es 18 8.4. CONTROL FOR ASSESSMENT INCREASES .. 22.0... cc ee ee eee eee 18 8.5. TYPES OF ASSESSMENTS 2... . cee ee eee eee te eee ee ee ee eee 19 8.6. BASIS & RATE OF ASSESSMENTS . 2.0... ce ce tee ee eee eee 20 8.7. DUE DATE 2... ce ee re ree re ee ee eee ere ee ee ree ee eee eee 20 8.8. DECLARANT EXEMPTION ........ 0c eee eer ee ee eee 20 8.9. EFFECT OF NONPAYMENT OF ASSESSMENTS .. 0.00.0. 0 cc eee ee ee eee ee 20 8.10. RESERVE FUNDS 2... 0. cc ee eee eee eee eee ee eee ee ee eee 21 8.11. ASSOCIATION'S RIGHT TO BORROW MONEY .......... 20 eee eee eee ee rere tee neree 22 8.12. LIMITATIONS OF INTEREST ...... cece eee eee cree eee ee teen eee ee ee eee 22 ARTICLE 9 - ASSESSMENT LIEN .o.. eee ee ee ee eee eee eee 22 9.1. CREATION & PERFECTION OF LIEN 1... cee ee ee ee eee ee 22 9.2. LIEN SUPERIOR TO HOMESTEAD ....... cece ee eee eee 22 9.3. OTHER SUPERIORITIES «2... 0.0. cece eee ee eee eer eee eee ees 22 9.4. EFFECT OF MORTGAGEE’S FORECLOSURE ... 1... ccc ce eee ee ees 23 9.5. NOTICE AND RELEASE OF NOTICE ...... 0... cc eee eee ree rete ee eee bees 23
TIES «2... 0.0. cece eee ee eee eer eee eee ees 22 9.4. EFFECT OF MORTGAGEE’S FORECLOSURE ... 1... ccc ce eee ee ees 23 9.5. NOTICE AND RELEASE OF NOTICE ...... 0... cc eee eee ree rete ee eee bees 23 9.6. POWER OF SALE... . ee eee ee ee eee eee eet ee eee 23 Appendix B and Appendix C have priority over the main body of this Declaration.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page ii CYPRESS COVE 9.7. FORECLOSURE OF LIEN .. 21... ee cc ee ee ee eee eet eee eee eee 23 ARTICLE 10 - ENFORCING THE DOCUMENTS ....... 0. cee cee caer e nent eee e eee eee nee 23 10.1. RIGHT TO ENFORCE ... 2... ce ee ee ee ee eee eee eee eee neaeae 23 10.2. BOARD DISCRETION .. 0... cc eee eee eee een eeenas 23 10.3. CONSISTENCY BY CIRCUMSTANCE ....... 0. 0c cee ee tee eee teen eet eee eens 24 10.4. SECOND CHANCE ... 2... ec ee eee tee eterna nee tte n eens 24 10.5. COSTS OF ENFORCEMENT ...... eee eee re ee eee eee treet eee ewe neenes 24 10.6. NOTICE AND HEARING ......0. 00.0... ce ee eee ee eee 24 10.7. REMEDIES 1.2... cc ce ee ee ee eee eee ee eee nent eee nen nes 24 ARTICLE 11 - MAINTENANCE AND REPAIR OBLIGATIONS .......... 000 c eve u cee rece ens reeset eat enneas 25 11.1. ASSOCIATION MAINTAINS ...... 00. : ee eee eee ee ee ee ere tenet ene eee tena 25 11.2. OWNER RESPONSIBILITY ...... 0... eee ee ee ee ee eee ee eee ere er easaees 25 11.3. OWNER'S DEFAULT IN MAINTENANCE 2.0... .0. 00 ccc cee eee ete eee ee eee etree nee 26 11.4. FENCES BETWEEN LOTS .... 1. ee ee ee ee ee tere rete teen erent eneenae 26 ARTICLE 12 - MORTGAGEE PROTECTION ... 0... cc ce ee eee eee eee eee eee nee 27 12.1. FIRST MORTGAGEE RIGHTS ....... 0. eee eee tere reece een eee t rete enae 27
e ee ee tere rete teen erent eneenae 26 ARTICLE 12 - MORTGAGEE PROTECTION ... 0... cc ce ee eee eee eee eee eee nee 27 12.1. FIRST MORTGAGEE RIGHTS ....... 0. eee eee tere reece een eee t rete enae 27 12.2. CONSENTS OF MORTFGAGEES ..... 0... ccc ee ee ee ee 27 ARTICLE 13 - AMENDMENTS ...... 20... 00 2 cee ee ee ee eee eas 28 13.1. AMENDMENT BY OR AFFECTING DECLARANT ....... 2.0.00 ccc cee eee te ee eet eens 28 13.2. AMENDMENT BY BOARD ........ 0.0... cee ee ee eee eee eee eee eee eee eee eenee 28 13.3. AMENDMENT BY MEMBERS ........... 00: c cece eee eterna reer tee renee earner nene 28 13.4. EFFECTIVE 2... ee ee ree ee ere eter eee eee rater e eee eee eee 28 13.5. ANNEXATION . 1... ce cc ee eee eee eee ee eee eee eee 28 13.6. APPENDIXES ..... 0... cece ee ee ee ee ee ee ee ee eee eee ee eee eee 28 13.7. ORDINANCE COMPLIANCE ....... 00. cece ee te eee ee ee ee eee 29 13.8. MERGER... eee ee ee eee teeter tetera ete e ee ears e rae renee 29 13.9. TERMINATION .... 2.0. ...0 20.0.2 ee ee 29 £3.10. CONDEMNATION .. 0... ce ce ee ee eee ee tee eee eee eee ee ee eee eens 29 ARTICLE 14 - INDEMNIFICATION & RELEASE AGAINST SELF-INTEREST ...... 0... ce eee ee eee re eee 29 14.1. CONSIDERATION 1.1... cc ee ee ee eee ee eee eee eee ees 29 14.2. INDEMNITY FOR ASSOCIATION OPERATIONS ....... 0... cee eee eee eee ees 29 14.3. RELEASE FOR INJURY OR LOSS .. 1... ee eee eee eens 29 14.4. INTENT TO RELEASE FROM NEGLIGENCE ........ 0... eee ee tee enee 30 14.5. AGAINST SELF-INTEREST OF OWNER OR OCCUPANT . 2.02022. 2c cc eee 30 ARTICLE 15 - DISPUTE RESOLUTION ... 2... 2. ce ee ee eee eee eee eee 30 15.1. INTRODUCTION & DEFINITIONS ........ 0.0 cece eee ree teeter eee eer eeeeeraee 30 15.2. MANDATORY PROCEDURES .........2. 2.2... 02 cece ee ee ee eee 30 15.3. NOTICE ... 2... ee eee eee 30
eee 30 15.1. INTRODUCTION & DEFINITIONS ........ 0.0 cece eee ree teeter eee eer eeeeeraee 30 15.2. MANDATORY PROCEDURES .........2. 2.2... 02 cece ee ee ee eee 30 15.3. NOTICE ... 2... ee eee eee 30 15.4. NEGOTIATION 2... eee eee eee eee eee eee eee 31 15.5. MEDIATION ... 0... ee ee eee ee eee eee tenes 31 15.6. TERMINATION OF MEDIATION ......... 0.0: cece eee tee ee eee ee eee ee ene tenes 31 15.7. ALLOCATION OF COSTS .... 1... ee ee ee ee nen eee nee eters 31 15.8. ENFORCEMENT OF RESOLUTION ......... 0.0.00. c eee ee eee eee eee ete n erent 31 15.9. GENERAL PROVISIONS .......... 2... 00 ec ee eee ee eee 31 Appendix 8 and Appendix C have priority over the main body of this Declaration.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page iii CYPRESS COVE 15.10. LITIGATION APPROVAL & SETTLEMENT .. 2... 000 e cece eee ee eee 31 15.11. CONSTRUCTION-RELATED DISPUTES .... 2... ccc cette eee 32 ARTICLE 16 - HOME SALES & RESALES .... 0.0 ccc eee tree re eee 32 16.1. GENERAL 1.0... . cc eee ene et tenet eee eee eee eee 32 16.2. HOA SALE FEES ..... 0.00. eee ee eee ee eee ener 32 16.3. ADMINISTRATIVE FRANSFER FEES ........0 0.0 cece eee eee eee tees 32 16.4. NEWHOMESALES 2.0... cc erent eee eee eee 33 16.5. HOME RESALES 2.2.0... ccc cece eee eee eee eee 33 16.6. CHANGES INAMOUNTS ...... 0c ccc eee teeter eee eee eee 33 416.7. EXCLUSIONS 2.2.2. eee eee eee eee eee eee nena 33 ARTICLE 17 - COVENANTS FOR DECLARANT'S BENEFIT ..-.- 6... cece eee tee 34 17.1. OWNERSHIP NOT REQUIRED 1... .. cece eee ee eee ee eee eee ees 34 17.2. ASSOCIATION FINANCES ...0 0.0.0 c cece ee rere eee eee 34 17.3. AMENDING GOVERNING DOCUMENTS ........02 22 c eee eee eee tees 34
OWNERSHIP NOT REQUIRED 1... .. cece eee ee eee ee eee eee ees 34 17.2. ASSOCIATION FINANCES ...0 0.0.0 c cece ee rere eee eee 34 17.3. AMENDING GOVERNING DOCUMENTS ........02 22 c eee eee eee tees 34 17.4. APPENDIXES B,C, AND D .. 0... cece eee eee 34 ARTICLE 18 - GENERAL PROVISIONS FOR ALL GOVERNING DOCUMENTS ...... 00. cee ee eee eee eens 34 18.1. HIGHER AUTHORITY ....... 0... cee eee nee eee eens 34 18.2. COMPLIANCE ........ 0... eee tenet eee tees 34 18.3. CHANGE OF APPLICABLE LAW... 0.00.6 ccc ee eet eee eee 35 18.4. NOTICE 1... cee eee entree nee eee eee ee eens 35 18.5. CHANGING TECHNOLOGY ..... 0.0... ce eee eee eee ee 35 18.6. LIBERAL CONSTRUCTION 2.0.2... ccc ee ee ee eee eee ae 35 18.7. SEVERABILITY ...... 0... ce ee ee ee eee eee eee eee 35 18.8. CAPTIONS 2.0... cece ee nee eee 35 18.9. INTERPRETATION 1.0... eee ee eee ee ee eet etter eee a 35 18.10. DURATION ...... 00. ccc rere eee nee eee eee eee 35 18.11. APPENDIXES 2.0.0... cc cee te ee ee ee eee eee 36 SIGNED AND ACKNOWLEDGED .. 0.0... ccc ee ee ee eet rr eet eee eee 36 APPENDIX A - DESCRIPTION OF SUBJECT LAND APPENDIX B - DECLARANT'S RIGHTS & RESERVATIONS FOR BUILD-OUT & SELL-OUT ......... eee eee ees B-1 B.1. GENERAL PROVISIONS 0.0.0... 0 cece ec ee ee ee eee eee eee eee eee eee B-1 B.2. DEFINITIONS ....... 0 ccc eee eee eee eee ee eee ee B-2 B.3. LAND USE RIGHTS & RESERVATIONS 1.00... cee ete ete ee eee ee B-2 B.4. RIGHTS & RESERVATIONS TO MAKE CHANGES .... 2... eee eee eee eee eee B-4 B.5. ARCHITECTURAL COVENANTS FOR VACANT LOTS ......-.- 60sec eee eee eee renee B-4 B.6. GOVERNING DOCUMENTS RIGHTS & RESERVATIONS .....-.-- cece eee ee ree eens B-5 B.7. MARKETING RIGHTS & RESERVATIONS 0.0... eee ee tee eee tees B-6 B.8. RELATIONSHIP WITH BUILDERS ... 6... 0. eee eee eee eee B-7
G DOCUMENTS RIGHTS & RESERVATIONS .....-.-- cece eee ee ree eens B-5 B.7. MARKETING RIGHTS & RESERVATIONS 0.0... eee ee tee eee tees B-6 B.8. RELATIONSHIP WITH BUILDERS ... 6... 0. eee eee eee eee B-7 B.9. SUCCESSOR DECLARANT . 2... ccc te ee eee eee eee eee eee tee eet B-7 B.10. COMMON AREAS 1.0... -- 2 cece ee eee eee ete ee eee eee ene eee e ene B-8 B.i1. PARDON OUR DUST 2.0.0... ce cc eee eee eee eee eee e teens 5-8 Appendix B and Appendix C have priority over the main body of this Decfaration.
OD DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page iv CYPRESS COVE APPENDIX C - DECLARANT'S RIGHTS & RESERVATIONS FOR ASSOCIATION GOVERNANCE .............-20- C-1 C.1, GENERAL PROVISIONS ........ 052 pee cece eee eect eee rete e eens C-1 C.2. DEFINITIONS 22.0... ec ee ee ee ee eee eee teeter teeter teases C-1 C.3. CLASSES OF MEMBERS ........ 00... c cece erent reer crete eee C-2 C.4. VOTING 2... ccc ee eee eee ee nee C-2 C.5. BOARD CONTROL RIGHTS & RESERVATIONS ..... 00.00. e eect e eee eee eee eee eee C-3 C.6. ASSOCIATION GOVERNANCE .. 0... ccc ener eee C-3 C7, VETO OVER CERTAIN BOARD DECISIONS ........ 0: cee eee eee eee eee eee eee c-4 C8. DECLARANT AS EX-OFFICIO BOARD MEMBER ..... 2... eee ee eee eee C-4 c.9. ADVISORY & ARCHITECTURAL COMMITTEES ...... 0... e cece cere eee eens C4 C.10. FINANCIAL RIGHTS & RESERVATIONS .. 0... cc te eee eres C5 C.11. RIGHT OF REIMBURSEMENT FOR SHORTFALL LOANS ........ 2. eee eee eee eee eee C-6 C.12. HOA SALE FEES ON VACANT LOTS 2.0... ccc ccc eer eee C-7 C.13. HOA SALE FEES ON NEW HOME SALES ... 2... 00-2 eects C-7 APPENDIX D - REQUIREMENTS FOR HIGHLY-VISIBLE LOTS ...... 00... 2 ee cee eee nee nents D-1
E FEES ON VACANT LOTS 2.0... ccc ccc eer eee C-7 C.13. HOA SALE FEES ON NEW HOME SALES ... 2... 00-2 eects C-7 APPENDIX D - REQUIREMENTS FOR HIGHLY-VISIBLE LOTS ...... 00... 2 ee cee eee nee nents D-1 D.1. GENERAL PROVISIONS ....... 0002 ccc ee ee eee eee eee eet eee neers D-1 D.2. DESIGNATION OF LOTS AND ADJACENT FEATURES .. 2... 0... cece eee teeta D-1 D.3. CURB APPEAL RESTRICTIONS ...... 0... cc cece eee eee tee eee eee D-2 D.4. STANDARD OF REVIEW .. 2... eee ee ee eee eter ene e eee eae D-2 D.5. DETERMINATION OF UNSUITABILITY 2.0... cc ce en ee eee etter teres D-2 Appendix B and Appendix C have priority over the main body of this Declaration.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page v CYPRESS COVE DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS FOR CYPRESS COVE This Declaration of Covenants, Conditions & Restrictions for Cypress Cove is made by D. R. Horton - Texas, Ltd., a Texas limited partnership ("Declarant”), on the date signed below. Declarant owns the real property described in Appendix A of this Declaration, together with the improvements thereon.
Declarant desires to establish a general plan of development for the planned community to be known as Cypress Cove, Declarant also desires to provide a reasonable and flexible procedure by which Declarant may expand the Property to include additional real property, and to maintain certain development rights that are essential for the successful completion and marketing of the Property.
Declarant further desires to provide for the preservation, administration, and maintenance of portions of Cypress
rights that are essential for the successful completion and marketing of the Property.
Declarant further desires to provide for the preservation, administration, and maintenance of portions of Cypress Cove, and to protect the value, desirability, and attractiveness of Cypress Cove. As an integral part of the development plan, Declarant deems it advisable to create a property owners association to perform these functions and activities more fully described in this Declaration and the other Governing Documents described below.
Declarant DECLARES that the property described in Appendix A, and any additional property made subject to this Declaration, will be owned, held, transferred, sold, conveyed, leased, occupied, used, insured, and encumbered subject to the terms, covenants, conditions, restrictions, and easements of this Declaration, including Declarant’s rights and reservations in Appendix 8 and Appendix C attached hereto, which run with the real property and bind all parties having or acquiring any right, title, or interest in any part of the property, their heirs, successors, and assigns, and inure to the benefit of each owner of any part of the property. Declarant intends for the encumbrance and subjugation of Cypress Cove by this Declaration to be in accordance with the common law doctrines of restrictive covenant and implied equitable servitudes.
ARTICLE 1 DEFINITIONS 1.1. DEFINED TERMS. The following words and phrases, whether or not capitalized, have specified meanings when used in the Governing Documents, unless a different meaning is apparent from the context in which the word or phrase is used. Terms pertaining to development of the Property are identified in the following Section.
verning Documents, unless a different meaning is apparent from the context in which the word or phrase is used. Terms pertaining to development of the Property are identified in the following Section.
1.1.1. “Applicable Law" means the statutes and public laws, codes, ordinances, and regulations in effect at the time a provision of the Governing Documents is applied, and pertaining to the subject matter of the Governing Document provision. Statutes and ordinances specifically referenced in the Governing Documents are “applicable law" on the date of the Governing Document, and are not intended to apply to the Property if they cease to be applicable by operation of law, or if they are replaced or superceded by one or more other statutes or ordinances, 1.1.2. "ARC” or "Architectural Review Committee" means the committee appointed by the Association with jurisdiction over architectural matters pertaining to existing homes on improved lots in the Property.
1.1.3. "architectural Reviewer” means the entity having jurisdiction over a particular application for architectural approval. The exclusive Architectural Reviewer for new homes on vacant lots is Declarant or Deciarant's designee. The ARC is the Architectural Reviewer for existing homes on improved lots.
1.1.4. “Assessment” means any charge levied against a lot or owner by the Association, pursuant to the Governing Documents or applicable law, including but not limited to Regular Assessments, Special Appendix B and Appendix C have priority over the main body of this Dectaration.
ee DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 1 CYPRESS COVE
Dectaration.
ee DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 1 CYPRESS COVE Assessments, Individual Assessments, and Deficiency Assessments, as defined in the in Covenant for Assessments Article of this Declaration.
1.1.5. "Association" means the association of owners of lots in the Property, and serving as the "property owners’ association” defined in Section 202.001(2) of the Texas Property Code. The initial name of the Association is Cypress Cove Owners Association.
1.1.6. "Board" means the board of directors of the Association.
1.1.7. "City” means the City of Garland, Texas, in which the Property is located.
1.1.8. "Class" means a class of membership in the Association, as described in Appendix C of this Declaration.
1.1.9. “Common Area" means a portion of the Property that is not a "Lot" and which is identified on a plat or in this Declaration as reserved or dedicated for use, maintenance, or ownership by the Association, and any real property that is maintained or owned by the Association for the use of residents, regardless of how it is platted.
1.1.10. "Declarant" means D. R. Horton - Texas, Ltd., a Texas limited partnership, or the successors and assigns of D. R. Horton - Texas, Ltd., which acquire the status of Successor Declarant according to the terms of the Successor Declarant section of Appendix B of this Declaration.
L111. "Declaration" means this document, as it may be amended, supplemented, and restated from time to time.
1.1.12. "Governing Documents” means, singly or collectively as the case may be, the Plat, this Declaration, the Specifications SourceBook, the Bylaws of the Asscciation, the Articles of Association, the Governing
erning Documents” means, singly or collectively as the case may be, the Plat, this Declaration, the Specifications SourceBook, the Bylaws of the Asscciation, the Articles of Association, the Governing Protocols, and (if any) the Rules of the Association, as any of these may be adopted, amended, supplemented, restated, or repealed from time to time. Although Governing Documents reference each other and may be recorded contemporaneously, each instrument is independent and may be amended pursuant to its own terms or applicable law. Declarant may adopt the initial Governing Documents for the benefit of the Association.
1.1.13. "Highly-Visible Lot" means a lot designated by Appendix D of this Declaration that is located in close proximity to a significant land use or feature (as designated by Appendix D of this Declaration) of, within, or near the Property from which a portion of the lot is visible to a degree that may be reasonably expected to affect the curb appea! of the Property for the general public or for residents of the Property, thereby warranting different or higher standards for appearance, use, and maintenance.
1.1.14. "Lot" means a portion of the Property, as shown on the Plat, intended for independent ownership and construction of a dwelling. As a defined term, “lot" does not refer to common areas, even if a common area is platted and numbered as a lot. Where the context indicates or requires, "lot" includes all improvements thereon and any portion of a right-of-way that customarily is used exclusively by and in connection with the lot. For certain purposes, the Governing Documents may distinguish between vacant lots and improved lots. As used in the Governing Documents, a "vacant ot" is a lot on which a dwelling has never been built or a
ertain purposes, the Governing Documents may distinguish between vacant lots and improved lots. As used in the Governing Documents, a "vacant ot" is a lot on which a dwelling has never been built or a lot on which the initial dwelling is under construction, and an "improved lot" is a lot on which the initial dwelling is or was substantially complete or completed. An improved lot retains its status even if the initial improvements are removed or destroyed.
1.1.15. "Member" means a member of the Association, unless the context indicates that member Means a member of the board or a member of a committee of the Association.
1.1.16. "Owner" means a holder of recorded fee simple title to a lot. Declarant is an owner for each lot owned by Declarant. A Builder who acquires title to a lot for the purpose of constructing a house for sale to homebuyers is an owner. Mortgagees and creditors who acquire title to a lot through foreclosure or a deed in lieu Appendix B and Appendix C have priority over the main body of this Dectaration.
a DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 2 CYPRESS COVE of foreclosure are owners. Persons or entities having ownership interests merely as security for the performance of an obligation are not owners. Every owner is a member of the Association.
1.1.17. “Plat” means all plats, singly and collectively, recorded in the Real Property Records of Dallas County, Texas, and pertaining to the real property described in Appendix A of this Declaration, including all dedications, covenants, limitations, restrictions, easements, notes, and reservations shown on the plat, as it may be amended from time to time.
cribed in Appendix A of this Declaration, including all dedications, covenants, limitations, restrictions, easements, notes, and reservations shown on the plat, as it may be amended from time to time.
1.1.18. "Property" means all the !and subject to this Declaration and all improvements, easements, rights, and appurtenances to the land. The name of the Property is Cypress Cove. The Property is located on land described in Appendix A of this Declaration, as it may be amended or supplemented from time to time, and on any land described in a supplemental declaration executed by Declarant pursuant to this Declaration, and includes every lot and any common area thereon.
1.1.19. "Resident" means an occupant of a dwelling, regardless of whether the person owns the lot.
Association in accordance with the Governing Documents or applicable law, and which are contained in one or more writings which may be referred to by a variety of names, such as (without limitation) rules, regulations, guidelines, procedures, manuals, policies, standards, and resolutions, all of which are Governing Documents. If customary, rules may be "published" on signs posted or painted on the Property, or communicated to owners as temporary or seasonal! rules that are circumstance-based. Rules may properly be used to refer to an instrument, sign, or communique that contains rules, and may also be used to refer to the individual rules within an instrument, sign, or communique.
1.1.21. "Specifications SourceBook" means that certain Governing Document containing covenants, conditions, restrictions, rules, and regulations pertaining to many aspects of the lots and the improvements
21. "Specifications SourceBook" means that certain Governing Document containing covenants, conditions, restrictions, rules, and regulations pertaining to many aspects of the lots and the improvements thereon, such as the appearance, maintenance, improvement, use, occupancy, and conveyance of the improved lots.
1.2. DEVELOPMENT TERMS. The following defined terms pertaining to development of the Property are contained in Appendix B and Appendix C of this Declaration, and hereby incorporated by reference: (1) Additional Land, (2) Builder, (3) Build-Out, (4) Declarant Control Period, (5) Development Period, (6) Expansion Period, (7) Sell-Out, (8) Shortfall, and (9) Unilaterally.
ARTICLE 2 SUBJECT TO DOCUMENTS 2.1. SUBJECT TO DOCUMENTS OF RECORD. All real property subject to this Declaration, including the property described in Appendix A, is held, transferred, sold, conveyed, leased, occupied, used, insured, and encumbered subject to the terms of all publicly recorded Governing Documents, and all other publicly recorded instruments that touch and concern the land, run with the Property, and bind all parties having or acquiring any right, title, or interest in the Property, their heirs, successors, and assigns.
2.2. COVENANTS IN PLAT. The dedications, covenants, limitations, restrictions, easements, notes, and reservations shown on the plat are hereby incorporated by reference as covenants running with the land. Each owner must inform himself about the plat's covenants on his lot.
| Le The subdivision plat has something to say about YOUR Jot. Check it out.
SN nr nd 2.3. CITY ORDINANCE. Among the city ordinances to which the Property is subject is City Ordinance No. 6070,
s lot.
| Le The subdivision plat has something to say about YOUR Jot. Check it out.
SN nr nd 2.3. CITY ORDINANCE. Among the city ordinances to which the Property is subject is City Ordinance No. 6070, approved by the City of Garland, Texas, on November 21, 2006, in connection with the developing of Cypress Cove.
Appendix 8 and Appendix € have priority over the main body of this Declaration.
a SEEM’ DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 3 CYPRESS COVE 2.4. CITY LICENSE. The Property is subject to a license agreement between the City of Garland, Texas, and the Association, according to the instrument recorded on February 14, 2012, as Document No. 201200040594, Real Property Records, Dallas County, Texas, pertaining to irrigation and landscaping along Bobtown Road.
2.5. POWER PLANT EMISSIONS EASEMENT. The Property is subject to certain easements and licenses reserved by TXU Generation Company, LP, in Paragraph 2 of Exhibit C of the instrument recorded on December 19, 2005, as Document No. 2005036320271, Real Property Records, Dallas County, Texas, relating to operations of the nearby Lake Ray Hubbard Steam Electric Station.
2.6. OWNER AGREES TO BE BOUND. Each owner, by impliedly or expressly accepting or acquiring an ownership interest in or title to a lot, whether or not it is so expressed in the instrument of conveyance, covenants and agrees to be bound by this Declaration, the plat, and the other Governing Documents. By acquiring the ownership interest before the Property is fully developed, expanded, Built-Out, and Sold-Out, each owner covenants, agrees, and
claration, the plat, and the other Governing Documents. By acquiring the ownership interest before the Property is fully developed, expanded, Built-Out, and Sold-Out, each owner covenants, agrees, and acknowledges that Appendixes B and C of this Declaration are controlling over anything to the contrary in the main body of this Declaration. Further, each owner acknowledges that the Governing Documents may be amended, supplemented, or restated from time to time. Each owner also agrees to maintain any easement that crosses his lot and for which the Association does not have express responsibility.
ARTICLE 3 PROPERTY FEATURES 3.1. CITY LIMITS. As shown on the plat, the 59 acres of land described in Appendix A of this Declaration is within the municipal boundaries of the City of Garland, Texas, and is bounded on its east and south sides by the City of Dallas, Texas. Notice is hereby given that if Additional Land is made subject to this Declaration, some or all of the Additional Land may be within the municipal boundaries of the City of Dallas, Texas. In that event, any provision in a Governing Document that pertains to a city, the city, or a local government, will be construed to mean the City of Garland for that portion of the Property Jocated in the City of Garland, and to the City of Dallas for that portion of the Property, if any, located in the City of Dallas.
3.2. HIGHLY-VISIBLE LOTS HAVE RESTRICTIONS. The lots classified as "Highly-Visible Lots” in Appendix D of this Declaration are subject to the Curb Appeal Restrictions of Appendix D, which impose additional requirements and limitations regarding the use, maintenance, and appearance of the Highly-Visible Lots. By acquiring an ownership or
the Curb Appeal Restrictions of Appendix D, which impose additional requirements and limitations regarding the use, maintenance, and appearance of the Highly-Visible Lots. By acquiring an ownership or occupancy interest in a Highly-Visible Lot, each owner and resident acknowledges that the Highly-Visible Lot is subject to Appendix D, the provisions of which control over anything to the contrary in a Governing Document.
HIGHLY-VESIBLE LOTS ARE SUBJECT TO ADDITIONAL RESTRICTIONS IN APPENDIX D 3.3. POWER PLANT DISCLOSURE. On the date of this Declaration, a gas power plant is located southeast of the Property, on the banks of Lake Ray Hubbard, off of Barnes Bridge Road. Prospective owners and residents are encouraged to inform themselves about every aspect of the nearby power plant, such as current and prospective levels of emissions. By acquiring an ownership or occupancy interest in the Property, each owner and resident acknowledges that Declarant, the Association, and their respective directors, officers, committees, agents, and employees have no control over uses of nearby land, including without limitation, the power plant.
3.4. HIGHWAY DISCLOSURE, According to a report published by the Texas Department of Transportation in December 2012, a highway referred to as East Branch/SH 190 is proposed between IH 30 with IH 20 on the west side of Lake Ray Hubbard, to connect the Eastern Extension of the President George Bush Turnpike (Tollway) with the proposed Loop 9. The TxDOT report shows three alternative routes between Bobtown Road and Lake Ray Hubbard, all in close proximity to the Property. Prospective owners and residents are encouraged to inform themselves about every
eport shows three alternative routes between Bobtown Road and Lake Ray Hubbard, all in close proximity to the Property. Prospective owners and residents are encouraged to inform themselves about every aspect of the proposed highway, as information becomes available. If the highway is built and opened, prospective owners and residents are encouraged to inform themselves about actual and prospective levels of sound, artificial light, and pollutants. By acquiring an ownership or occupancy interest in the Property, each owner and resident acknowledges Appendix B and Appendix ¢ have priority over the main body of this Declaration.
eee Np DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 4 CYPRESS COVE © 2011. Sharon Reuler, PC. All Rights Reserved. KVO?-2021 Vacs CRs Original Cyprese Comes pal Gf207L3 f-76/10/13 that Declarant, the Association, and their respective directors, officers, committees, agents, and employees have no control over uses of adjacent and nearby land, including without limitation, the proposed highway.
3.5. LAKE ACCESS DISCLOSURE. Although the Property is geographically close ("as the crow flies") to the west bank of Lake Ray Hubbard, on the date of this Declaration there is no route or easement of direct or private access between the 59 acres of land described in Appendix A of this Declaration and Lake Ray Hubbard, and no such access is planned. Residents of the Property have the same access to Lake Ray Hubbard as members of the general public.
3.6, LAND USE. By acquiring an ownership interest in a lot, each owner acknowledges that the uses, platting, and development of land within, adjacent to, or near the Property may change over time, and from time to time, and that
an ownership interest in a lot, each owner acknowledges that the uses, platting, and development of land within, adjacent to, or near the Property may change over time, and from time to time, and that such a change may affect the value of owner’s lot. Whether an owner is consulted about a proposed change to real property within the vicinity of the owner's lot is a function of local government, and not a function of the Association.
3.6.1. Site Inspection. A prospective owner or resident must make his own inspection of the Property, its location, and adjoining land uses, and make inquiries of anything that concerns him. Although the plat and this Declaration may contain a limited number of disclosures about the Property and its location on the date of this Declaration, neither the Association nor Declarant makes any representation that these are the only noteworthy features of the Property or its location.
3.6.2. No Guaranty. Nothing in this Declaration or the other Governing Documents may be construed as a representation of any kind by the Association, Builders, or Declarant as to current or future uses - actual or permitted - of any land that is adjacent to or near the Property, regardless of what the ptat shows as potential uses of adjoining land. The Association, Builders, and Declarant can not and do not guaranty scenic views, volumes of traffic on streets around and through the Property, availability of schools or shopping, or any other aspect of the Property that is affected by the uses or conditions of adjacent or nearby land, water, or air.
3.6.3. Notice of Imprecise Terminology. Words, acronyms, labels, and legends used on a plat to describe land uses are imprecise terms which may be modified by subsequent acts and decisions by public or
.6.3. Notice of Imprecise Terminology. Words, acronyms, labels, and legends used on a plat to describe land uses are imprecise terms which may be modified by subsequent acts and decisions by public or quasi-public authorities without the formality of amending the plat.
3.7, ENVIRONMENTAL CONDITIONS. In the era in which this Declaration is written, the public is increasingly aware of environmental conditions affecting health and quality of life. The Association has no duty to intervene on behalf of an owner or resident who complains of adverse environmental conditions. If a resident is or becomes sensitive to environmental conditions that now exist or that come inte existence at a future time on or near the Property, the resident - at the resident’s sole expense - may mitigate those conditions in his home and on his lot, provided the method of mitigation does not damage or interfere with the use of another lot or common area, and does not change the appearance of the Property, without approval of the ARC.
3.8. STREETS WITHIN PROPERTY. Because streets within the Property may be capable of being converted from publicly dedicated to privately owned, and vice versa, this Section addresses both conditions. Private streets, if any, are part of the common area which is governed by the Association. Public streets are part of the common area only to the extent a public or quasi-public body, such as the city, county, or a special district, authorizes or delegates to the Association.
3.8.1. Public Streets. As to public streets, the Association is specifically authorized (1) to accept from a public or quasi-public body any delegation of street-related duties, and (2) to act as attorney in fact for the
s. As to public streets, the Association is specifically authorized (1) to accept from a public or quasi-public body any delegation of street-related duties, and (2) to act as attorney in fact for the owners in executing instruments required by applicable law to impose, modify, enforce, or remove restrictions or traffic devices (such as speed bumps) on public streets in the Property.
3.8.2. Private Streets. Only if and when the Property has private streets, the Association is specifically authorized to adopt, amend, repeal, and enforce rules, regulations, and procedures for use of the use, and appearance of traffic control devices, such as signs and speed humps, (3) designation of parking or no-parking areas, (4) limitations or prohibitions on curbside parking, (5) removal or prohibition of vehicles that violate applicable rules and regulations, (6) fines for violations of applicable rules and regulations, and (7) programs for controlling access through entrance and emergency access gates, if any.
Appendix 8 and Appendix C have priority over the main body of this Declaration.
a DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 5 CYPRESS COVE ARTICLE 4 PROPERTY EASEMENTS AND RIGHTS 4.1. EASEMENT FOR PERIMETER FEATURES. This Section applies to any perimeter feature installed during Build-Out by Declarant or with the approval of Declarant, and replacements or improvements thereof, and may not be construed to require a perimeter feature for the Property. As used in this Section, "perimeter feature" means any
th the approval of Declarant, and replacements or improvements thereof, and may not be construed to require a perimeter feature for the Property. As used in this Section, "perimeter feature" means any improvement that is relatively continuous and uniform along a perimeter of the Property, such as landscape elements and/or fencing. The Association is hereby granted a perpetual easement (the "Perimeter Feature Easement”) over each lot (1) on or along a thoroughfare on the perimeter of the Property, and (2) that abuts or contains a portion of the Property's perimeter feature, for the purposes stated in this Section, regardless of whether or how the plat shows the easement or perimeter feature. The purpose of the Perimeter Feature Easement is to provide for the existence, repair, improvement, and replacement of the Property's perimeter features, to be maintained by the Association as a common area. In exercising this Perimeter Feature Easement, the Association may construct, maintain, improve, and replace improvements reasonably related to identifying or screening a residential subdivision. The owner of a lot burdened with the Perimeter Feature Easement will have the continual use and enjoyment of the lot for any purpose that does not interfere with and prevent the Association's use of the Perimeter Feature Easement. In addition to the easement granted herein, the Association has the temporary right, from time to time, to use as much as the surface of a burdened lot as may be reasonably necessary for the Association to perform its contemplated work on the Perimeter Feature Easement.
This easement is perpetual. The Perimeter Feature Easement will terminate when the purpose of the easement ceases
or the Association to perform its contemplated work on the Perimeter Feature Easement.
This easement is perpetual. The Perimeter Feature Easement will terminate when the purpose of the easement ceases to exist, is abandoned by the Association, or becomes impossible to perform. The Association may assign this easement, or any portion thereof, to a public or quasi-public body that agrees to accept the assignment. This Perimeter Feature Easement appiies only to an original perimeter feature installed by or with the approval of Declarant and replacements thereof, and does not apply or pertain to fences instalied by owners on individual lots, even though the lots abut a major thoroughfare.
4.2. EASEMENT FOR ENTRY FEATURES. This Section applies to any entry feature installed during Build-Out by Declarant or with the approval of Declarant, and replacements or improvements thereof, and may not be construed to require an entry feature for the Property, nor an entry feature at each entrance to the Property. As used in this Section, “entry feature" means any improvement that formally marks an entrance to the Property, such as signage or monuments, landscape elements, and illumination. The Association is hereby granted a perpetual “Entry Feature Easement" over each lot (the "Entrance Lot”) that contains one or more entry features, regardless of whether or how the plat shows the easement or entry feature. The purpose of the Entry Feature Easement is to provide for the existence, repair, improvement, and replacement of the Property's entry features, to be maintained by the Association as a common area. In exercising this Entry Feature Easement, the Association may construct, maintain, improve, and replace
acement of the Property's entry features, to be maintained by the Association as a common area. In exercising this Entry Feature Easement, the Association may construct, maintain, improve, and replace improvements reasonably related to the entrance of a residential subdivision. The owner of the Entrance Lot will have the continual use and enjoyment of the lot for any purpose that does not interfere with and prevent the Association's use of the Entry Feature Easement. In addition to the easement granted herein, the Association has the temporary right, from time to time, to use as much as the surface of an Entrance Lot as may be reasonably necessary for the Association to perform its contemplated work on the Entry Feature Easement. This easement is perpetual. The Entry Feature Easement will terminate when the purpose of the easement ceases to exist, is abandoned by the Association, or becomes impossible to perform. The Association may assign this easement, or any portion thereof, to a public or quasi-public body that agrees to accept the assignment.
4.3. OWNER'S EASEMENT OF ENJOYMENT. Every owner is granted a right and easement of enjoyment over the common areas and to use of improvements therein, subject to other rights and easements contained in the Governing Documents. An owner who does not occupy a lot delegates this right of enjoyment to the residents of his lot.
Notwithstanding the foregoing, if a portion of the common area, such as a recreational area, is designed for private use, the Association may temporarily reserve the use of such area for certain persons and purposes.
4.4, OWNER'S INGRESS/EGRESS EASEMENT. Every owner is granted a perpetual easement over the Property's streets, as may be reasonably required, for vehicular ingress to and egress from his lot.
urposes.
4.4, OWNER'S INGRESS/EGRESS EASEMENT. Every owner is granted a perpetual easement over the Property's streets, as may be reasonably required, for vehicular ingress to and egress from his lot.
4.5. OWNER'S RIGHT TO BUILD. That a lot remains vacant and unimproved for a period of years, even decades, does not diminish the right of the fot owner to construct improvements on the lot. Nor does a vacant lot enlarge the rights of owners of neighboring lots, who may have become so accustomed to the open space that they expect it to remain unimproved forever.
Appendix 8 and Appendix C have priority over the main body of this Declaration.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 6 CYPRESS COVE 4.6. RIGHTS OF CITY. The City, including its agents and employees, has the right of immediate access to the common areas at alt times if necessary for the welfare or protection of the public, to enforce City ordinances, or to improve the appearance of or to preserve public property, pubic easements, or public rights of way. If the Association fails to maintain the common areas to a standard acceptable to the City, the City may give the Association a written demand for maintenance. If the Association fails or refuses to perform the maintenance within a reasonable period of time after receiving the City's written demand (at least 90 days), the City may maintain the common areas at the expense of the Association after giving written notice of its intent to do so to the Association. The City may give its notices and demands to any officer, director, or agent of the Association, or alternatively, to each owner of a lot as shown on the
ice of its intent to do so to the Association. The City may give its notices and demands to any officer, director, or agent of the Association, or alternatively, to each owner of a lot as shown on the City's tax rolls. To fund the City's cost of maintaining the common areas, the City may levy assessments against the lots and owners in the same manner as if the Association levied a special assessment. The rights of the City under this Section are in addition to other rights and remedies provided by law.
4.7. ASSOCIATION'S ACCESS EASEMENT. Each owner, by accepting an interest in or title to a lot, whether or net it is so expressed in the instrument of conveyance, grants to the Association an easement of access and entry over, across, under, and through the Property, including without limitation all common areas and the owner's Ioct and all improvements thereon for the below-described purposes. If the exercise of this easement requires entry onto an owner's lot, the entry will be during reasonable hours and after notice to the owner, unless entry is a response to a situation that - at time of entry - is deemed to be an emergency that may result in imminent damage to or loss of life or property. In exercising this easement on an owner's lot, the Association is not liable to the owner for trespass. The Association may exercise this easement of access and entry for the following express purposes: (2) To inspect the lot for compfiance with maintenance and architectural standards.
(2) To perform maintenance that is permitted or required of the Association by the Governing Documents or by applicable law.
(3) To perform maintenance that is permitted or required of the owner by the Governing Documents or by applicable law, if the owner fails or refuses to perform such maintenance.
or by applicable law.
(3) To perform maintenance that is permitted or required of the owner by the Governing Documents or by applicable law, if the owner fails or refuses to perform such maintenance.
(4) To enforce architectural standards.
(5) To enforce use restrictions.
(6) To exercise any self-help remedy permitted by the Governing Documents or by applicable law.
(7) To enforce any other provision of the Governing Documents.
(8) To respond to emergencies.
(9) To assist utility providers as may be necessary to install, maintain, and inspect utilities serving any portion of the Property.
(10) = To perform any and all functions or duties of the Association as permitted or required by the Governing Documents or by applicable law.
4.8. UTILITIES. As used in this Section “utility” includes, but is not limited to, water, storm drainage, sewer, trash removal, electricity, fuel, natural gas, telephone, cable television, internet service, fiber optic cable, security, and other telecommunication receiving and distribution systems. This Section may not be construed as a representation that any particular utility will be provided. The Association may enter into contracts for utility equipment and services for all or portions of the Property, including bulk rate service agreements. Such contract may provide for installation, operation, management, maintenance, and upgrades or modifications to the utility as the Association determines appropriate. Until Build-Out, Declarant must approve any contract for utility service to a vacant lot. If a particular service or benefit is provided to fewer than all of the ots, or is requested by owners of fewer than all of the lots, the Association may require
t for utility service to a vacant lot. If a particular service or benefit is provided to fewer than all of the ots, or is requested by owners of fewer than all of the lots, the Association may require an owner to pay the service provider directly, or may levy individual assessments against the served lots to fund the expense.
Appendix B and Appendix C have priority over the main body of this Declaration.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 7 CYPRESS COVE © 2011. Sharon Reuler, P.C. All Rights Reserved. HAT TSZTdocxACCR righted Cys Cove AAG/LONIA rbet/AO/I3 4.9. MINERAL INTERESTS. In the era in which this Declaration is written, there is renewed interest in oil and gas exploration.
4.9.1. Mineral Interests Reserved. On the date of this Declaration, it is expected that all mineral interests and water rights will have been reserved by a prior owner of the Property or conveyed pursuant to one or more deeds or other instruments recorded in the Reai Property Records of Dallas County, Texas, including but not limited to rights to all oil, gas, or other minerals and water lying on, in, or under the Property and surface rights of ingress and egress. Because the instruments conveying or reserving mineral interests and water rights were recorded prior to this Declaration, those interests in the Property are superior and are not affected by any provision to the contrary in this Declaration. By accepting title to or interest in a lot, every owner acknowledges the existence of the mineral and water rights and/or reservations referenced in this Section and the attendant rights in favor of the owner or owners of the mineral interests.
4.9.2. Mineral Reservation by Declarant. In the event (1) a mineral interest or water right for any part
this Section and the attendant rights in favor of the owner or owners of the mineral interests.
4.9.2. Mineral Reservation by Declarant. In the event (1) a mineral interest or water right for any part of the Property has not been reserved or conveyed prior to Declarant's conveyance of the Property, or (2) a reservation or conveyance of mineral interests and water rights is determined to be invalid or to have terminated, Dectarant hereby reserves for itself all right, title, and interest in and to the oil, gas, and other minerals and water in, om, and under and that may be produced from the Property, to have and to hold forever.
4.9.3. Association as Trustee. By accepting title to or interest in a lot, each owner acknowledges that any oil, gas, mineral, water, or other natural element in, on, under, or over any part of the Property that has not previously been reserved or conveyed is owned by the Association for the collective and undivided benefit of all owners of the Property. In support of that purpose, each owner - by accepting title to or interest in a lot irrevocably appoints the Association as his trustee to negotiate, receive, administer, and distribute the proceeds of any interest in oil, gas, mineral, water, or other natural element in, on, under, or over the owner's lot and that may be produced from the owner's lot for the collective and undivided benefit of all owners of the Property.
4.10. NOTICE OF LIMITATION ON LIABILITY. The development of the Property occurs during a period when many local governments are trying to be absolved of liability for flood damage to private property. As a condition of plat approval, a governmental entity may require a plat note that not only disavows the entity's liability for flood damage, but
ed of liability for flood damage to private property. As a condition of plat approval, a governmental entity may require a plat note that not only disavows the entity's liability for flood damage, but affirmatively assigns the liability to the Association. Declarant does not intend or desire to impose such absolute liability on the nonprofit association of lot owners. Notwithstanding plat notes or public codes or ordinances now in existence or hereafter created, the Association cannot and should not be liable for acts of God or for property damage that is not the result of the Association's negligence or wilful misconduct. On behalf of the Association, Declarant hereby gives notice that the Association does not accept liabilities imposed by a governmental entity for which the Association cannot obtain insurance at a reasonable cost, or for which its members refuse to fund reserve accounts at levels sufficiently high to pay the damages for which the governmental entity may seek to make the Association liable. This notice is not intended to create a liability for any governmental entity. Further, this notice may not be construed to create a duty for the Association to obtain insurance or to fund reserve accounts for damage from rising waters.
PLEASE PAY HEED TO THE SECURITY SECTION 4.14. SECURITY. The Association may, but is not obligated to, maintain or support certain activities within the Property designed, either directly or indirectly, to improve safety or the perception of safety in or on the Property. Each owner and resident acknowledges and agrees, for himself and his guests, that Declarant, Builders, the Association, and their respective directors, officers, committees, agents, and employees are not providers, insurers, or guarantors of
agrees, for himself and his guests, that Declarant, Builders, the Association, and their respective directors, officers, committees, agents, and employees are not providers, insurers, or guarantors of security within the Property. Each owner and resident acknowledges and accepts his sole responsibility to provide security for his own person and property, and assumes all risks for loss or damage to same. Each owner and resident further acknowledges that Declarant, Builders, the Association, and their respective directors, officers, committees, agents, and employees have made no representations or warranties, nor has the owner or resident relied on any representation or warranty, express or implied, including any warranty of merchantability or fitness for any particular purpose, relative to any fire, burglar, and/or intrusion systems recommended or installed, or any security measures undertaken within the Property. Each owner and resident acknowledges and agrees that Declarant, Builders, the Association, and their respective directors, officers, committees, agents, and employees may not be held liable for any loss or damage by reason of failure to provide adequate security or ineffectiveness of security measures undertaken.
Appendix 8 and Appendix C have priority over the main body of this Declaration.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 8 CYPRESS COVE 6 2011. Sharon Reuler, P.c. All Rights Reserved. EYO7-292 docs OCRs-Original Cypress Comey? pd eg/10/23 nde 6/10713 ARTICLE 5 COMMON AREA 5.1. OWNERSHIP. The designation of real property as a common area may be determined by the plat, this Declaration, the Dallas Central Appraisal District, a taxing authority, a recorded deed into the Association, or any
e designation of real property as a common area may be determined by the plat, this Declaration, the Dallas Central Appraisal District, a taxing authority, a recorded deed into the Association, or any combination of these. Mere ownership of the property is not determinative. All costs attributable to common areas, including maintenance, property taxes, insurance, and enhancements, are automatically the responsibility of the Association, regardless of the nature of title to the common areas, unless this Declaration elsewhere provides for a different allocation for a specific common area.
5.2. USE. On the date of this Declaration, the Property's common areas are intended for the exclusive use of the Property's owners and residents and their guests and are not intended to be a public accommodation or a public facility within the meaning of the Americans with Disabilities Act. This provision may not be construed to prevent the Association from enlarging the use of a common area if such expansion is deemed to be in the best interest of the Association, or from opening a common area to use by the public if public use is a condition of a status or benefit that is deemed to be in the best interest of the Association.
5.3. CHANGE OF USE. From time to time, the Association may modify a common area on a temporary or longterm basis to respond to changing lifestyles, economies, environmental conditions, public policies, or recreational values, provided (1) the board deems the modification to be in the best interest of the Association, and (2} the modification does not affect an agreement with or requirement of a public or quasi-public entity without the entity's written approval of
ion to be in the best interest of the Association, and (2} the modification does not affect an agreement with or requirement of a public or quasi-public entity without the entity's written approval of the modification. Modification may include (without limitation) a change of use, or the removal, addition, re-location, or change of improvements on a common area. Unless required by a public or quasi-public entity, a modification does not require an amendment of this Declaration or of the plat, even if a common area has been platted or improved for a particular use.
5.4. CONVEYANCE BY OR TO ASSOCIATION. The Association may accept or convey real property interests in common area from or to, as the case may be, a special district or any other public or quasi-public entity, if the conveyance is required by the district or entity, or if the board deems such a conveyance to be in the best interest of the Association. The Association may accept or convey a real property interest in a common area from or to, as the case may be, a private person if the change of ownership does not result in a significant change of land use and if the conveyance is approved by owners representing at least a majority of votes in the Association. Any other conveyance of common areas, except to and from Declarant, or from a Builder, must be approved by owners of at least two-thirds of the lots.
Property interests capable of conveyance include, without limitation, fee title to all or part of a common area, an easement across real property, and a lease or license of real property. Notwithstanding anything to the contrary in this Declaration, if the Property is subject to a special district, the special district may acquire responsibility for, control of, and/or
f real property. Notwithstanding anything to the contrary in this Declaration, if the Property is subject to a special district, the special district may acquire responsibility for, control of, and/or ownership of what has been designated a common area. The authority of the special district is superior to that of the Association.
5.5. ACCEPTANCE. By accepting an interest in or title to a lot, each owner is deemed (1) to accept the common area of the Property, and any improvement thereon, in its then-existing "as is" condition; (2) to acknowledge the authority of the Association for decisions pertaining to common areas; (3) to acknowledge that transfer of a common area's title to the Association by or through the Declarant or with Declarant's approval is a ministerial task that does not require acceptance by the Association; and (4) to acknowledge the continuity of maintenance of the common area, regardless of changes in the Association's board of directors or management.
5.6. COMPONENTS. Common area may be improved or unimproved, and may consist of fee simple title, easements, leases, licenses, or other real or personal property interests. The common area of the Property consists of the following components on or adjacent to the Property, even if located on a lot or a public right-of-way: (1) All of the Property, save and except the house lots.
(2) The land described in Appendix A or in a supplementary declaration as common area and all improvements thereon.
(3) Any area shown on the plat as common area or an area to be maintained by the Association.
Appendix B and Appendix C have priority over the main body of this Declaration.
av DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 9 CYPRESS COVE
an area to be maintained by the Association.
Appendix B and Appendix C have priority over the main body of this Declaration.
av DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 9 CYPRESS COVE (4) The formal entrances to the Property.
(5) Screening features (if any) along streets on the perimeter of the Property to the extent the Association has a right or duty to maintain such improvements.
(6) The right-of-way of perimeter streets around the Property to the extent the Association has a right or duty to maintain or regulate that portion of the right-of-way.
(7) The grounds between streets on the perimeter of the Property and the screening features (if any), to the extent the Association has a right or duty to maintain or regulate that portion of the right-of-way.
(8) Landscaping on street islands (if any), to the extent it is not maintained by a public or quasi-public entity.
(9) Any modification, replacement, or addition to any of the above-described areas and improvements.
(10) Personal property owned by the Association, such as books and records, office equipment, and supplies.
5.7. LIMITED COMMON AREA. if it is in the best interest of the Association, a portion of the common area may be licensed, leased, or allocated to one or more lots for their sole and exclusive use, as a limited common area, whether or not the area is $0 designated on the plat. Inherent in the limiting of a common area, maintenance of the limited common area becomes the responsibility of the lot owner to whom use is limited. For example, a common area that is difficult to access and maintain except via the adjoining house lot might be a candidate for limited common area.
onsibility of the lot owner to whom use is limited. For example, a common area that is difficult to access and maintain except via the adjoining house lot might be a candidate for limited common area.
5.8. PERSONAL RESPONSIBILITY. Each owner, by accepting an interest in or title to a lot in Cypress Cove, whether or not it is so expressed in the instrument of conveyance, and each resident of Cypress Cove, by occupying a home in the Property, acknowledges, understands, and agrees to each of the following statements, for himself, the members of his household, and his and their quests: (1) Each owner and resident agrees to be informed about and to comply with the published or posted common area rules of Cypress Cove.
(2) The use and enjoyment of the Property's common areas involve risk of personal injury, risk of death, and risk of damage or loss to property.
(3) Each person using the Property's common area assumes all risks of personal injury, death, and loss or damage to property resulting from such use.
(4) Parents, guardians, hosts, caretakers, and supervisors are at all times responsible for the well being and safety of their children and guests in their use of the Property's common areas.
(5} The Association, Declarant, Builders, and their respective directors, officers, committees, agents, and employees are not providers, insurers, or guarantors of personal safety in or on the common areas of Cypress Cove.
(6) The Association, Declarant, Builders, and their respective directors, officers, committees, agents, and employees have made no representations or warranties - verbal or written - relating to safety or lack of risks pertaining to the common areas of Cypress Cove.
ectors, officers, committees, agents, and employees have made no representations or warranties - verbal or written - relating to safety or lack of risks pertaining to the common areas of Cypress Cove.
(7) Each owner and resident agrees to educate the members of his household and his and their guests about the risks, responsibilities, and releases from liability contained in this Article.
ARTICLE 6 ARCHITECTURAL COVENANTS & USE RESTRICTIONS FOR IMPROVED LOTS 6.1. GENERAL PROVISIONS. Because the lots are part of a single community, this Declaration creates rights to regulate the improvement, design, use, and appearance of the lots in order to preserve and enhance the Property's Appendix B and Appendix C have priority over the main body of this Declaration.
I ET DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 10 CYPRESS COVE value and Declarant’s architectural vision for the Property, as the vision evalves. This Article purposefully distinguishes between vacant and improved lots because of the separation of approval authorities ~ the ARC has authority over improved lots, the Declarant or its appointed Architectural Reviewer has authority over vacant lots. If a provision of this Article is not clear as to its applicability, it will be construed to apply to improved lots only.
6.1.1. Purposes. One purpose of this Articie is to require that all proposed improvements on a lot ensure the level of taste, design, and quality by which improved lots in the Property are maintained, modified, and
~ be subject to review, approval, and disapproval. Another purpose is to promote and ensure the level of taste, design, and quality by which improved lots in the Property are maintained, modified, and further improved over time. A third purpose is to prevent modifications on improved lots that may be considered to be radical, curious, odd, bizarre, or peculiar in comparison to then existing improvements or the evolving architectura! vision for the Property. A fourth purpose is to regulate the appearance of every aspect of proposed or existing improvements on an improved lot, including but not limited to replacement dwellings, additions, fences, fandscaping, retaining walls, yard art, sidewalks and driveways.
6.1.2. Architectural Vision. In response to many influences, the initial architectural vision for the Property, as determined by Declarant, may evolve as the Property matures. Examples of architectural vision are Property-wide uniformity of appearance, a varied mix of architectural styles Property-wide, and different architectural styles by neighborhood within the Property.
6.2. OWNER'S DUTY. By accepting an interest in or title to a vacant or improved lot in Cypress Cove, each owner covenants to make no changes or additions to the owner's Jot or to improvements on the lot without the Architectura! Reviewer's prior written approval ~ the ARC being the Architectural Reviewer for improved tots. Also, each owner of a vacant or improved fot in Cypress Cove, and each resident of Cypress Cove, by occupying a home in the Property, acknowledges that the improvement, modification, appearance, maintenance, and use of the lot and home are regulated by the Governing Documents, in particular this Declaration and the Specifications
y, acknowledges that the improvement, modification, appearance, maintenance, and use of the lot and home are regulated by the Governing Documents, in particular this Declaration and the Specifications SourceBook. Each owner and resident further covenants to comply with and conform to the applicable rules and restrictions of each chapter of the Specifications SourceBook, even provisions that the owner or resident does not like.
Also, each owner and resident will follow the customary procedures for applying for an approval, waiver, or variance by the board or the ARC, as applicable, and will abide by the outcome. Each owner of a vacant lot will follow the customary procedures of the Architectural Reviewer for vacant lots.
6.3. SPECIFICATION SOURCES. Specifications for the construction of initial improvements on vacant iots are not published in this Declaration or in the Specifications SourceBook, and may be part of a private agreement between Declarant and a Builder. The specifications contained in the Specifications SourceBook were selected from the multitudes because of their potential applicability to the daily use of the improved lots and the expectation that owners may try to modify their houses, fences, and yards. Additional specifications or variations of the requirements in the Specifications SourceBook may be included in a supplemental declaration or amendment of annexation by which a phase or section of real property is added to the Property subject to this Declaration, or in neighborhood-specific restrictions. This Section serves as notice of multiple sources of specifications pertaining to the initial construction or subsequent modification of improvements in Cypress Cove.
THE "DOs and DON'Ts" ARE IN THE SPECIFICATIONS SOURCEBOOK
otice of multiple sources of specifications pertaining to the initial construction or subsequent modification of improvements in Cypress Cove.
THE "DOs and DON'Ts" ARE IN THE SPECIFICATIONS SOURCEBOOK 6.4. APPENDAGE LOTS. This Section pertains to "Appendage Lots," being any platted residential iot that (1) is not improved with a dwelling, (2) is owned by the owner of an adjacent lot that is improved with a dwelling, (3) is owned by a person other than Declarant or a Builder, and (4) is or will be used for "residential purposes" (as defined by applicable law) in connection with the adjacent lot that is improved with a dwelling. This Declaration and the other Governing Documents are drafted with the expectation that every platted residential lot will be improved with a dwelling and will be capable of conveyance independent of adjacent lots. Because there may be no Appendage Lots in the Property, they are not specifically addressed by the Governing Documents. For example, a provision that applies to activities and improvements in fenced yards is primarily written for backyards of dwellings, which typically are distant and shielded from the street on which the dwelling faces. It is not written for the fenced portion of an Appendage Lot for which the view is not obstructed by a dwelling. Therefore, notwithstanding anything to the contrary elsewhere in the Governing Documents, on a case-by-case basis and to the full extent permitted by applicable law, the Architectural Reviewer may establish and enforce additional or different criteria and specifications for every aspect of the use, Appendix 8 and Appendix C have priority over the main body of this Declaration.
a DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 11 CYPRESS COVE
d specifications for every aspect of the use, Appendix 8 and Appendix C have priority over the main body of this Declaration.
a DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 11 CYPRESS COVE maintenance, appearance, and improvement of the Appendage Lot, including (without limitation) screening, landscaping, and construction specifications. By acquiring ownership_of adjoining residential lots, each owner acknowledges that (to the full extent permitted by applicable law) (1) this Section applies to an Appendage Lot and controls over any provision to the contrary elsewhere in the Governing Documents; (2) an Appendage Lot may not be used or improved without the prior written approval of the Architectural Reviewer; (3) in reviewing an application, the Architectural Reviewer may require additional information specific to the proposed use or improvement; (4) the Architectural Reviewer may establish lot-specific criteria and specifications that are different from or in addition to requirements for lots improved with dwellings, and tailored to the location and visibility of the Appendage Lot; and (5) the conditioned approval for the Appendage Lot may be in the form of a covenant agreement to be signed and acknowledged by the owner and by the Architectural Reviewer or the Association, and publicly recorded in the county in which the Appendage Lot is located.
6.5. ARCHITECTURAL REVIEW COMMITTEE. The Architecturai Review Committee (the "ARC") is a committee of the Association. The ARC will consist of at least 3 but not more than 7 persons appointed by the board, pursuant to
L REVIEW COMMITTEE. The Architecturai Review Committee (the "ARC") is a committee of the Association. The ARC will consist of at least 3 but not more than 7 persons appointed by the board, pursuant to the Bylaws. Members of the ARC serve at the pleasure of the board and may be removed and replaced at the board's discretion. Members of the ARC need not be owners or residents. The Association may hire professionals - such as architects, engineers, and design consultants - to serve on or to advise the ARC at a compensation determined by the board.
6.5.1. Limits on Liability. The ARC and each of its members has no liability for decisions made in good faith by the ARC, and which are not arbitrary or capricious. The ARC is not responsible for: (1) errors in or omissions from the plans and specifications submitted to the ARC, (2) supervising construction for the owner's compliance with approved plans and specifications, or (3) the compliance of the owner's plans and specifications with governmental codes and ordinances, and public laws.
6.5.2. Discretion. The ARC may exercise discretion with respect to taste, design, and all standards specified by this Declaration or by the Specifications SourceBook.
6.5.3. Variations. All lots are not similarly situated. One lot may be more visible than others because of its location, size, or elevation. For example, a corner lot or a tot at the Property's entrance is typically more visible than an interior lot. The ARC may vary its interpretation and enforcement of construction specifications and use restrictions based, in part, ona lot's location or visibility - provided the ARC tries to treat similarly-situated lots or circumstances in like manner.
orcement of construction specifications and use restrictions based, in part, ona lot's location or visibility - provided the ARC tries to treat similarly-situated lots or circumstances in like manner.
6.5.4. Appeal of ARC Decision. An owner may appeal to the board any decision by the ARC to deny the owner's application or to approve the owner's application only if certain changes are made. The owner must submit a written application for appea! to the board, with a copy to the ARC, within 60 days after the ARC's decision. The board may affirm, overrule, or modify the ARC's decision.
BEFORE CHANGING THE APPEARANCE OF A LOT OR HOME, THE OWNER MUST APPLY FOR WRITTEN APPROVAL OF THE ARC.
6.6. ARC APPROVAL REQUIRED. Without ARC approval, a person may not re-construct a dwelling on an improved lot or make an addition, alteration, improvement, installation, modification, redecoration, or reconstruction of or to an improved lot, or to a vacant lot owned by a person other than Declarant or a Builder, if it will be visible from a street or common area, or if it may have an adverse impact on neighboring homes. The ARC has the right but not the duty to evaluate every aspect of construction, landscaping, and property use that may adversely affect the general value or appearance of the Property. Without the ARC's prior written approval for a variance, alterations and additions to an improved lot, or to a vacant lot owned by a person other than Declarant or a Builder, must have the characteristics described in the Specifications SourceBook. In case of conflict between the terms of this Article or the Specifications SourceBook, and a restriction or guideline that pertains directly to the portion of the Property in which a lot is located,
In case of conflict between the terms of this Article or the Specifications SourceBook, and a restriction or guideline that pertains directly to the portion of the Property in which a lot is located, the more lot-specific restriction controls. The ARC may supplement this Article and the Specifications SourceBook with interpretations, explanations, and adaptations. An owner should review the Association's architectural restrictions and requirements before planning or initiating changes, repairs, or replacements to his lot and dwelling.
Appendix B and Appendix C have priority over the main body of this Declaration.
a DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 12 CYPRESS COVE © 2011. Sharon Reuler, P.C. All Rights Reserved. FAOP-292 Elo OORS-Original Cypress Cove.y3 pdaty20/13 re6/16/1) 6.7. APPLICATION FOR APPROVAL. To request architectural approval, an owner must make written application to the applicable Architectural Reviewer and submit 2 identical sets of plans and specifications showing the nature, kind, shape, color, size, materials, and locations of the work to be performed. In support of the application, the owner of an improved fot may but is not required to submit letters of support or non-opposition from owners of lots that may be affected by the proposed change. The application must clearly identify any requirement of this Declaration or the Specifications SourceBook for which a variance is sought. The Architectural Reviewer will return one set of plans and specifications to the applicant marked with the Architectural Reviewer's response, such as “Approved,” "Denied," or "More Information Required." The Architectural Reviewer will retain the other set of plans and specifications, together with
ith the Architectural Reviewer's response, such as “Approved,” "Denied," or "More Information Required." The Architectural Reviewer will retain the other set of plans and specifications, together with the application, for the Architectural Reviewer's fites. Verbal approval by an Association director or officer, a member of the ARC, the Association's manager, or Declarant does not constitute architectural approval by the appropriate Architectural Reviewer, which must be in writing.
6.7.1. Deemed Approval. Under both of the limited conditions identified below, the applicant may presume that his request has been approved by the ARC. If both of those conditions are satisfied, the owner may proceed, provided he adheres to the plans and specifications which accompanied his application, and provided he initiates and completes the applied-for work in a timely manner. In exercising deemed approval, the burden is on the owner to document the ARC's actual receipt of the owner's complete application. Under no circumstance may approval of the ARC be deemed, implied, or presumed for an addition or modification that would require a variance from the requirements and construction specifications contained in this Declaration or the Specifications SourceBook, and in any design guidelines for the Property in effect at the time of application. The limited conditions that must be met for deemed approval are: (1) If the applicant or a person affiliated with the applicant has not received the ARC's written response - approving, denying, or requesting additional information - within 60 days after delivering his complete application to the ARC.
(2) If the proposed addition or modification strictly conforms to requirements and specifications
questing additional information - within 60 days after delivering his complete application to the ARC.
(2) If the proposed addition or modification strictly conforms to requirements and specifications contained in this Declaration or the Specifications SourceBook, and in any design guidelines for the Property in effect at the time of application.
6.7.2. No Approval Required. No approval is required to repaint exteriors in accordance with the color scheme approved by the ARC, or to rebuild a dwelling in accordance with its original plans and specifications. Nor is approval required for an owner to remodel or repaint the interior of a dwelling.
6.7.3. Building Permit. If the application is for work that requires a building permit from a governmental body, the ARC's approval is automatically and implicitly conditioned on the issuance of the appropriate permit. The ARC's approval of plans and specifications does not mean that they comply with the requirements of the governmental body. Alternatively, issuance of a building permit does not ensure ARC approval.
6.7.4. Neighbor Input. The ARC may solicit comments on the application, such as from owners or residents of lots that may be affected by the proposed change, or from which the proposed change may be visible.
Whether to solicit comments, from whom to solicit comments, and whether to make the comments available to the applicant are solely at the discretion of the ARC. The ARC is not required to respond to the commenters in ruling on the application.
6.7.5, Initial Variances for Vacant Lots. A lot does not come within the jurisdiction of the ARC until the initial improvements on a vacant lot have been completed. An aspect of an initial improvement that is contrary
riances for Vacant Lots. A lot does not come within the jurisdiction of the ARC until the initial improvements on a vacant lot have been completed. An aspect of an initial improvement that is contrary to this Declaration or the Specifications SourceBook may have been granted a variance by the Architectural Reviewer for vacant lots.
6.8. VARIANCE, The use of the Property is subject to the restrictions contained in this Declaration and in the Specifications SourceBook, as each may be amended from time to time, and subject to rules adopted pursuant to this Article. The board or the ARC, as the case may be, may grant a variance or waiver of a restriction or rule on a case-by-case basis when unique circumstances dictate, and may limit or condition its grant. To be effective, a variance must be in writing. The grant of a variance does not effect a waiver or estoppel of the Association's right to deny a Appendix 8 and Appendix C have priority over the main body of this Declaration.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 13 CYPRESS COVE variance in other circumstances. Approval of a variance or waiver may not be deemed, implied, or presumed under any circumstance, other than the limited exceptions authorized by this Declaration or the Specifications SourceBook.
6.9. ASSOCIATION'S RIGHT TO PROMULGATE RULES. The Association has the right to adopt, amend, repeal, and enforce reasonable Rules, and penalties for infractions thereof, regarding the occupancy, use, disposition, maintenance, appearance, and enjoyment of the Property. The right to make Rules, or to regulate, includes the right
s, and penalties for infractions thereof, regarding the occupancy, use, disposition, maintenance, appearance, and enjoyment of the Property. The right to make Rules, or to regulate, includes the right to prohibit or to restrict. In addition to the restrictions contained in this Article and the Specifications SourceBook, each lot is owned and occupied subject to the right of the board to establish Rules, and penalties for infractions thereof, governing: (1) Use of common areas.
(2) Hazardous, illegal, or annoying materials or activities on the Property.
(3) The use of Property-wide services provided through the Association.
(4) The consumption of utilities billed to the Association.
(5) The use, maintenance, and appearance of exteriors of dwellings and tots.
(6) Landscaping and maintenance of yards.
(7) The occupancy and leasing of dwellings.
(8) Animals.
(9) Vehicles.
(10) Disposition of trash and control of vermin, termites, and pests.
(11) — Anything that interferes with maintenance of the Property, operation of the Association, administration of the Governing Documents, or the quality of life for residents.
DON'T PUSH THE ENVELOPE, PLEASE.
6.10. SUBJECTIVE STANDARDS. Standards for some rules and restrictions are inherently subjective, such as what is unattractive or offensive. The Association is not required to honor every resident's individual tolerances. The Use Restrictions, in particular, are not intended to shield a hypersensitive resident from actions or circumstances that would be tolerable to a typical resident of the Property. On lifestyle-related rules, the Association may refrain from acting on a perceived violation unless the board determines the violation to be significant or a community-wide problem. The
the Property. On lifestyle-related rules, the Association may refrain from acting on a perceived violation unless the board determines the violation to be significant or a community-wide problem. The Association may not be compelled by one resident to enforce rules and restrictions against another resident. Residents are expected to deal directly and peaceably with each other about their differences.
6.41. LIMITS TO OWNER'S RIGHTS. No right granted to an owner by this Article, the Specifications SourceBook, or any provision of any Governing Document is absolute. The Governing Documents grant rights with the expectation that the rights will be exercised in ways, places, and times that are customary for the neighborhood. This Article, the Specifications SourceBook, and the other Governing Documents as a whole do not try to anticipate and address every creative interpretation of the restrictions. For example, an owner's right to have a sign advertising the home for sale is not the right to mount the sign on the chimney and illuminate it with pulsating neon lights. The rights granted by this Article, the Specifications SourceBook, and the other Governing Documents are at all times subject to the board's determination that a particular interpretation and exercise of a right is significantly inappropriate, unattractive, or otherwise unsuitable for the neighborhood, and thus constitutes a violation of the Governing Documents. In other words, the exercise of a right or restriction must comply with the spirit of the restriction as well as with the letter of the restriction.
6.12. LIMITED ROLE OF DECLARANT. Prior to Build-Out, Declarant may identify to the ARC certain locations,
must comply with the spirit of the restriction as well as with the letter of the restriction.
6.12. LIMITED ROLE OF DECLARANT. Prior to Build-Out, Declarant may identify to the ARC certain locations, uses, or modifications that must not be approved by the ARC without the prior written approval of Declarant or Declarant's designee to prevent a potentially adverse affect on the value or marketing of vacant lots and new homes in the Property.
To illustrate, Declarant may require heightened scrutiny for improved lots near a subdivision entrance, along a main thoroughfare, near common areas, or across the street from a model home.
Appendix 8 and Appendix C have priority over the main body of this Declaration.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 14 CYPRESS COVE ARTICLE 7 ASSOCIATION OPERATIONS 7.1. THE ASSOCIATION. The existence and legitimacy of the Association are derived from this Declaration and the Bylaws of the Association.
7.1.1. Type. The Association must be a nonprofit organization, and may be unincorporated or incorporated, as the Association decides from time to time. If the Association is incorporated, the subsequent failure of the Association to maintain its corporate charter from time to time does not affect the existence or legitimacy of the Association.
7.1.2, Applicability. The Association is subject to the Texas Business Organizations Code ("TBOC").
Because provisions of this Declaration address issues covered by the TBOC, this Declaration is a "Governing Document” as defined by TBOC, and any such provision herein is a "Bylaw" as defined by TBOC. When
se provisions of this Declaration address issues covered by the TBOC, this Declaration is a "Governing Document” as defined by TBOC, and any such provision herein is a "Bylaw" as defined by TBOC. When incorporated, the Association is subject to TBOC Chapter 22 - the Nonprofit Corporation Law. When unincorporated, the Association is subject to TBOC Chapter 252 - the Unincorporated Nonprofit Association Act.
7.1.3. Name. A name is not the defining feature of the Association. Although the initial name of the Association is Cypress Cove Owners Association, the Association may operate under any name that is approved by the board and (1) registered by the board with the County Clerk of Dallas County, Texas, as an assumed name, or (2) filed by the Association with the Secretary of State as the name of the filing entity. The Association may also change its name by amending the Governing Documents. Another legal entity with the same name as the Association, or with a name based on the name of the Property is not the Association, which derives its authority from this Declaration.
7.1.4. Duties. The duties and powers of the Association are those set forth in the Governing Documents, together with the general and implied powers of a property owners association and, as applicable, an unincorporated nonprofit association or a nonprofit corporation organized under the laws of the State of Texas.
Generally, the Association may do any and ail things that are lawful and necessary, proper, or desirable in operating for the peace, health, comfort, and general benefit of its members, subject only to the limitations on the exercise of such powers as stated in the Governing Documents.
7.1.5. Duration. The Association comes into existence on the later to occur of the two following
s, subject only to the limitations on the exercise of such powers as stated in the Governing Documents.
7.1.5. Duration. The Association comes into existence on the later to occur of the two following events: (1) the date on which this Declaration is recorded in the Real Property Records of Dailas County, Texas, or (2) the date on which a deed is recorded in the Real Property Records of Dallas County, Texas, evidencing diversity of ownership in the Property (that the Property is not owned entirely by Declarant or its affiliates). The Association will continue to exist at least as long as this Declaration, as it may be amended, is effective against all or part of the Property.
EVERY OWNER OF A CYPRESS COVE LOT AUTOMATICALLY JOINS A MANDATORY MEMBERSHIP ASSOCIATION.
7.2. BOARD. The Association is governed by a board of directors. Unless the Governing Documents expressly reserve a right, action, or decision to another party, such as the owners or Declarant, the board acts in all instances on behalf of the Association. Unless the context indicates otherwise, references in the Governing Documents to the "Association" may be construed to mean "the Association acting through its board of directors.” The board of directors may authorize or direct officers of the Association, who serve at the pleasure of the board, to implement its decisions.
7.3. MEMBERS & VOTING. This Section becomes effective at Sell-Out, and not before. Prior to Sell-out, the Sections of Appendix C titled “Classes of Members" and "Voting" control in lieu of this Section. After Sell-Out, the Association has one class of members - the Homeowner Class. Membership is automatic, mandatory, appurtenant to
ed “Classes of Members" and "Voting" control in lieu of this Section. After Sell-Out, the Association has one class of members - the Homeowner Class. Membership is automatic, mandatory, appurtenant to ownership of a lot, and terminates when the member is divested of his ownership interest in the lot to which it is tied and from which it may not be separated. If a lot is owned by more than one person, the co-owners share the membership and decide for themselves how it will be exercised. The board may require satisfactory evidence of transfer of ownership before a purported owner is recognized by the Association as a member. The one vote appurtenant to each lot is Appendix 8 and Appendix C have priority over the main body of this Declaration.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 15 CYPRESS COVE © 2011. Sharon Reuler, P.C. Alf Rights Reserved. KAO? ZS2T lo Ds-Origind Cppees Come 1 pS (20/13 deb LO/19 indivisible. AB votes are uniform in weight, regardless of the value, size, or location of the lot or its improvements.
Cumulative voting is not allowed.
7.4, HEAD COUNTS. A reference in a Governing Document or applicable law to a percentage or share of owners or members means owners of at least that percentage or share of the lots, unless a different meaning is specified.
For example, "a majority of owners" means owners of at least a majority of the lots. In a different context, to make a point, a representative of the Association who appears before a tribunal on behaif of the Association may properly refer to members of the Association as "citizens" and "voters" in the jurisdiction in which the Property is located, without evidence of citizenship or voter registrations to substantiate the reference. In that context, the actual number of
citizens" and "voters" in the jurisdiction in which the Property is located, without evidence of citizenship or voter registrations to substantiate the reference. In that context, the actual number of individual owners may be used.
THE ASSOCIATION ACTS THROUGH ITS BOARD OF DIRECTORS.
7.5, DECISION-MAKING. Any decision or act of the Association may be made by or at the direction of the board, unless the Governing Documents reserve the decision or act to the members, the Declarant, or any other person or group. Unless the Governing Documents or applicable law provide otherwise, any action requiring approval of the members may be approved (1) at a meeting by owners of at least a majority of the lots that are represented at the meeting, provided notice of the meeting was given to an owner of each lot, or (2) in writing by owners of at least a majority of all lots, provided the opportunity to approve or disapprove was given to an owner of each lot. As long as the Declarant Class exists, Declarant has the right to veto any decision made by the Association which Declarant reasonably expects to have an adverse affect on the rights and interests of Declarant or Builders in completing the development, construction, and marketing of the Property.
7.6. MANAGER. The board may delegate the performance of certain functions to one or more managers or managing agents of the Association. Notwithstanding a delegation of its functions, the board is ultimately responsible to the members for governance of the Association.
7.7. ARRANGEMENTS WITH OTHER ASSOCIATIONS. The Association may participate in contractual arrangements with other property owners associations or with owners or operators of nearby property in order to
.7. ARRANGEMENTS WITH OTHER ASSOCIATIONS. The Association may participate in contractual arrangements with other property owners associations or with owners or operators of nearby property in order to consolidate similar maintenance programs while providing consistency and economy of scale. Common funds of the Association may be used to pay the Association’s pro rata share of the contractual arrangement.
7.8. COMMUNICATIONS. Drafted in an era of rapidly changing communication technologies, this Declaration does not intend to limit the methods by which the Association, owners, and residents communicate with each other. Such communications may be by any method or methods that are available and customary. For example, if the Association is required by the Governing Documents or applicable law to make information available to owners of all lots, that requirement may be satisfied by posting the information on the Association's website or by using electronic means of disseminating the information, unless applicable law requires a specific method of communication. It is foreseeable that meetings of the Association and voting on issues may eventually be conducted via technology that is not widely available on the date of this Declaration. As communication technologies change, the Association may adopt as its universal standard any technology that is used by owners of at least 85 percent of the lots. Also, the Association may employ multiple methods of communicating with owners and residents.
7.9. BOOKS & RECORDS. The Association will maintain copies of the Governing Documents and the Association's books, records, and financial statements. The Association will make its books and records available to
& RECORDS. The Association will maintain copies of the Governing Documents and the Association's books, records, and financial statements. The Association will make its books and records available to members, on request, for inspection and copying pursuant to the requirements of applicable law.
7.10. INDEMNIFICATION. The Association indemnifies every officer, director, committee chair, and committee member (for purposes of this Section, "Leaders”) against expenses, including attorney's fees, reasonably incurred by or imposed on the Leader in connection with an action, suit, or proceeding to which the Leader is a party by reason of being or having been a Leader. A Leader is not liable for a mistake of judgment, negligent or otherwise. A Leader is liable for his willful misfeasance, malfeasance, misconduct, or bad faith. This right to indemnification does not exclude any other rights to which present or former Leaders may be entitled. The Association may maintain general liability and directors and officers liability insurance to fund this obligation. Additionally, the Association may indemnify a person who is or was an employee, trustee, agent, or attorney of the Association, against any liability asserted against him and Appendix 8 and Appendix C have priority over the main body of this Declaration.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 16 CYPRESS COVE incurred by him in that capacity and arising out of that capacity. Additionally, the Association may indemnify a person who is or was an employee, trustee, agent, or attorney of the Association, against any liability asserted against him and
ing out of that capacity. Additionally, the Association may indemnify a person who is or was an employee, trustee, agent, or attorney of the Association, against any liability asserted against him and incurred by him in that capacity and arising out of that capacity.
7.11. INSURANCE. All insurance affecting the Property is governed by the provisions of this Section, with which the board will make every reasonable effort to comply. The cost of insurance coverages and bonds maintained by the Association is an expense of the Association. Insurance policies and bonds obtained and maintained by the Association must be issued by responsible insurance companies authorized to do business in the State of Texas. The Association must be the named insured on all policies obtained by the Association. Each owner irrevocably appoints the Association as his trustee to negotiate, receive, administer, and distribute the proceeds of any claim against an insurance poticy maintained by the Association.
7.11.1. General Features. Each insurance policy maintained by the Association should contain a provision requiring the insurer to give at least 10 days’ prior written notice to the board before the policy may be canceled, terminated, materially modified, or allowed to expire, by either the insurer or the insured. An insurance policy obtained by the Association may contain a reasonable deductible, which will be paid by the party who would be liable for the loss or repair in the absence of insurance. If a loss is due wholly or partly to an act or omission of an owner or resident or their invitees, the owner must reimburse the Association for the amount of the deductible that is attributable to the act or omission.
wholly or partly to an act or omission of an owner or resident or their invitees, the owner must reimburse the Association for the amount of the deductible that is attributable to the act or omission.
7.11.2. Property. To the extent it is reasonably available, the Association will obtain blanket all-risk insurance for insurable common area improvements. If blanket all-risk insurance is not reasonably available, then the Association will obtain an insurance policy providing fire and extended coverage. Also, the Association will insure the improvements on any lot owned by the Association.
7.11.3. General Liability. To the extent it is reasonably available, the Association will maintain a commercial general liability insurance policy over the common areas - expressly excluding the liability of each owner and resident within his lot - for bodily injury and property damage resulting from the operation, maintenance, or use of the common areas. If the policy does not contain a severability of interest provision, it should contain an endorsement to preclude the insurer's denial of an owner's claim because of negligent acts of the Association or other owners.
7.11.4. Directors & Officers Liability. To the extent it is reasonably available, the Association will maintain directors and officers liability insurance, errors and omissions insurance, indemnity bonds, or other insurance the board deems advisable to insure the Association's directors, officers, committee members, and managers against liabitity for an act or omission in carrying out their duties in those capacities.
7.41.5. Other Coverages. The Association may maintain any insurance policies and bonds deemed by the board to be necessary or desirable for the benefit of the Association, including but not limited to worker's
ther Coverages. The Association may maintain any insurance policies and bonds deemed by the board to be necessary or desirable for the benefit of the Association, including but not limited to worker's compensation insurance, fidelity coverage, and any insurance and bond requested and required by a national institutional underwriting lender for planned unit developments as long as the underwriting lender is a mortgagee or an owner.
7.12. OBLIGATIONS OF OWNERS. This Section supplements and does not replace the duties, responsibilities, and obligations of owners in Cypress Cove that are communicated throughout the Governing Documents.
7.12.1. General Obligations. Without limiting the obligations of owners under the Governing Documents and pursuant to applicable law, each owner wiil: (1) Maintain effective contact information with the Association, and promptly notify the Association of changes in the owner's contact information in a manner that brings attention to the changed information.
(2) Pay assessments properly levied by the Association against the owner or his lot, and will pay regular assessments without demand by the Association.
Appendix 8 and Appendix C have priority over the main body of this Declaration.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 17 CYPRESS COVE ©2011. Sharon Reuler, P.C. All Rights Reserved. EAD?-2PRT Wore OCR Ortpingl Cypress Cree v3 pePm6/10/13 rd 6/1073 (3) Pay the applicable transfer-related fees and contributions at time of closing.
(4) Comply with the Governing Documents as amended and published from time to time.
(5) Pay for damage to the Property caused by the negligence or willful misconduct of the owner, a resident of the owner's lot, or the owner or resident's family, guests, employees, contractors,
time.
(5) Pay for damage to the Property caused by the negligence or willful misconduct of the owner, a resident of the owner's lot, or the owner or resident's family, guests, employees, contractors, agents, or invitees.
(6) Be liable to the Association for violations of the Governing Documents by the owner, a resident of the owner's lot, or the owner or resident's family, guests, employees, agents, or invitees, and for costs incurred by the Association to obtain compliance.
7.12.2. Owner's Responsibility for Insurance. Each owner will obtain and maintain property insurance on all insurable improvements on his lot, in an amount sufficient to cover 100 percent of the replacement cost of any repair or reconstruction in event of damage or destruction from any insured hazard. Further, each owner will obtain and maintain general liability insurance on his lot. Each owner and resident is solely responsible for insuring his personal property in his dwelling and on the fot, including furnishings and vehicles. If circumstances warrant, the board may establish additional minimum insurance requirements for owners if the insurance is deemed necessary or desirable by the board to reduce potential risks to the Association or other owners. Each owner wilt provide the Association with proof or a certificate of insurance on request by the Association from time to time.
This Subsection may not be construed to create a duty for the Association to inquire about an owner's insurance coverage or to enforce this Subsection.
ARTICLE 8 COVENANT FOR ASSESSMENTS 8.1. PURPOSE OF ASSESSMENTS. The Association will use assessments for the general purposes of preserving and enhancing the Property, and for the common benefit of owners and residents, including but not limited to
OF ASSESSMENTS. The Association will use assessments for the general purposes of preserving and enhancing the Property, and for the common benefit of owners and residents, including but not limited to maintenance of real and persona! property, management and operation of the Association, and any expense reasonably related to the purposes for which the Property was developed. If made in good faith, the board's decision with respect to the use of assessments is final.
IF YOU OWN A CYPRESS COVE LOT, YOU MUST PAY ASSESSMENTS TO THE ASSOCIATION.
8.2. PERSONAL OBLIGATION. Each owner, by accepting an interest in or title to a lot, whether or not it is so expressed in the instrument of conveyance, covenants and_ agrees to pay assessments to the Association. An owner is obligated to pay assessments levied by the board against the owner or his lot. An owner makes payment to the Association at its principal office or at any other place the board directs. Payments must be made in full regardless of whether an owner has a dispute with the Association, another owner, or any other person or entity regarding any matter to which this Declaration pertains. No owner may exempt himself from his assessment liability by waiver of the use or enjoyment of the common area or by abandonment of his Jot. An owner's obligation is not subject to offset by the owner, nor is it contingent on the Association's performance of the Association's duties. Payment of assessments is both a continuing affirmative covenant personal to the owner and a continuing covenant running with the lot.
8.3. ANNUAL BUDGET. The board will prepare and approve an estimated annual budget for each fiscal year.
The budget will take into account the estimated income and expenses for the year, contributions to reserve funds, and
he board will prepare and approve an estimated annual budget for each fiscal year.
The budget will take into account the estimated income and expenses for the year, contributions to reserve funds, and a projection for uncollected receivables. The board will make the budget or its summary available to an owner of each lot, although failure to receive a budget or summary does not affect an owner's liability for assessments. The board will make the detailed budget available to an owner upon request.
8.4. CONTROL FOR ASSESSMENT INCREASES. This Section of the Declaration may not be amended without the approval of owners of at least two-thirds of the lots. In addition to other rights granted to owners by this Declaration, owners have the following powers and controls over the Association's budget: Appendix B and Appendix C have priority over the main body of this Declaration.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 18 CYPRESS COVE 8.4.1. Veto Increased Dues. At least 30 days prior to the effective date of an increase in regular assessments, the board will notify an owner of each lot of the amount of, the budgetary basis for, and the effective date of the increase. The increase will automatically become effective unless owners of at least a majority of the lots disapprove the increase by petition or at a meeting of the Association. In that event, the fast-approved budget will continue in effect until a revised budget is approved.
8.4.2. Veto Special Assessment. At least 30 days prior to the effective date of a special assessment, the board will notify an owner of each lot of the amount of, the budgetary basis for, and the effective date of the
al Assessment. At least 30 days prior to the effective date of a special assessment, the board will notify an owner of each lot of the amount of, the budgetary basis for, and the effective date of the special assessment. The special assessment will automatically become effective unless owners of at least majority of the lots disapprove the special assessment by petition or at a meeting of the Association.
8.5. TYPES OF ASSESSMENTS. There are 4 types of assessments: Regular, Special, Individual, and Deficiency.
8.5.1. Reqular Assessments. Regular assessments are based on the annual budget. Each lot is liable for its equal share of the annual budget. If the board does not approve an annual budget or fails to determine new regular assessments for any year, or delays in doing so, owners will continue to pay the regular assessment as last determined. If during the course of a year the board determines that regular assessments are insufficient to cover the estimated common expenses for the remainder of the year, the board may increase regular assessments for the remainder of the fiscal year in an amount that covers the estimated deficiency. Regular assessments are used for common expenses related to the reoccurring, periodic, and anticipated responsibilities of the Association, including but not limited to: (1) Maintenance, repair, and replacement, as necessary, of the common area.
(2) Utilities billed to the Association.
(3) Services billed to the Association and available to all tots.
{4) Taxes on property owned by the Association, franchise taxes, and the Association's income taxes.
(5) Management, legal, accounting, auditing, and professional fees for services to the Association.
{4) Taxes on property owned by the Association, franchise taxes, and the Association's income taxes.
(5) Management, legal, accounting, auditing, and professional fees for services to the Association.
(6) Costs of operating the Association, such as telephone, postage, office supplies, printing, meeting expenses, and educational opportunities of benefit to the Association.
(7) Premiums and deductibles on insurance policies and bonds deemed by the board to be necessary or desirable for the benefit of the Association, including fidelity bonds and directors and officers liability insurance. (8) Contributions to the reserve funds.
(9) Performance of a written contract, if any, between the Association and a special district, local government, or neighboring property owner or owners association.
(10) Any other expense which the Association is required by law or the Governing Documents to pay, or which in the opinion of the board is necessary or proper for the operation and maintenance of the Property or for enforcement of the Governing Documents.
8.5.2. Special Assessments. In addition to regular assessments, and subject to the owners’ control for assessment increases, the board may levy one or more special assessments against all Jots for the purpose of defraying, in whole or in part, common expenses not anticipated by the annual budget or reserve funds. Special assessments do not require the approval of the owners, except that a special assessments for any of the following purposes must be approved by owners of least a majority of the lots: Appendix B and Appendix C have priority over the main body of this Declaration.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 19 CYPRESS COVE
oved by owners of least a majority of the lots: Appendix B and Appendix C have priority over the main body of this Declaration.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 19 CYPRESS COVE © 2011. Sharon Reuler, P.C. All Rights Reserved. EW7-28RIWOcHCORe Original Cypress Comex3 pleG/LOVLS rileG/ 10/13 (1) Acquisition of real property, other than the purchase of a lot at the sale foreclosing the Association's lien against the lot.
(2) Construction of additional improvements within the Property, but not replacement of original improvements.
(3) Any expenditure that may reasonably be expected to significantly increase the Association's responsibility and financial obligation for operations, insurance, maintenance, repairs, or replacement.
8.5.3. Individual Assessments. In addition to requiar and special assessments, the board may levy an individual assessment against a lot and its owner. Individual assessments may include, but are not limited to: interest, fate charges, and collection costs on delinquent assessments; reimbursement for costs incurred in bringing an owner or his lot into compliance with the Governing Documents; fines for violations of the Governing Documents; insurance deductibles; transfer-related fees and resale certificate fees; fees for estoppel letters and project documents; reimbursement for damage or waste caused by willful or negligent acts; common expenses that benefit fewer than all of the lots, which may be assessed according to benefit received; fees or charges levied against the Association on a per-lot basis; and "pass through” expenses for services to lots provided through the Association and which are equitably paid by each lot according to benefit received.
ed against the Association on a per-lot basis; and "pass through” expenses for services to lots provided through the Association and which are equitably paid by each lot according to benefit received.
8.5.4. Deficiency Assessments. The board may levy a deficiency assessment against all lots for the purpose of defraying, in whole or in part, the cost of repair or restoration if insurance proceeds or condemnation awards prove insufficient, 8.6. BASIS & RATE OF ASSESSMENTS. The share of liability for common expenses allocated to each fot is uniform for all lots, regardless of a lot’s location or the value and size of the lot or dwelling; subject, however, to the exemption for Declarant provided below and in Appendix C.
8.7. DUE DATE. The board may levy regular assessments on any periodic basis - annually, semi-annually, quarterly, or monthly. Regular assessments are due on the first day of the period for which levied. Speciat and individual assessments are due on the date stated in the notice of assessment or, if no date is stated, within 10 days after notice of the assessment is given. Assessments are delinquent if not received by the Association on or before the due date.
8.8. DECLARANT EXEMPTION. Declarant's obligation for common expenses and exemption from assessments is described in Appendix C attached hereto. Uniess Appendix C creates an affirmative assessment obligation for Declarant, every vacant lot and every improved lot owned by Declarant, by an affiliate of Declarant, or by an owner who is under contract to sell the lot to Declarant, is exempt from assessment by the Association.
To avoid bad stuff, please pay timely and in full.
8.9. EFFECT OF NONPAYMENT OF ASSESSMENTS. An assessment is delinquent if the Association does not
rant, is exempt from assessment by the Association.
To avoid bad stuff, please pay timely and in full.
8.9. EFFECT OF NONPAYMENT OF ASSESSMENTS. An assessment is delinquent if the Association does not receive payment in full by the assessment's due date. The Association is responsible for taking action to collect delinquent assessments. The Association's exercise of its remedies is subject to applicable laws, such as Chapter 209 of the Texas Property Code, and pertinent provisions of the Bylaws. From time to time, the Association may delegate some or all of the collection procedures and remedies, as the board in its sole discretion deems appropriate, to the Association's manager, an attorney, or a debt collector. Neither the board nor the Association, however, is liable to an owner or other person for its failure or inability to collect or attempt to collect an assessment. The following remedies are in addition to and not in substitution for all other rights and remedies which the Association has.
8.9.1. Interest. Delinquent assessments are subject to interest from the due date until paid, at a rate to be determined by the board from time to time, not to exceed 10 percent per annum. If the board fails to establish a rate, the rate is 10 percent per annum. On a delinquent account, the Association may charge interest or late fees, but not both.
Appendix B and Appendix C have priority over the main body of this Declaration.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 20 CYPRESS COVE © 2011. Sharon Reuler, P.C. All Rights Reserved. IS? SEP Toe OCR Ceiginal Cypress Come vd paRS/HTYLT nee LEYA 8.9.2. Late Fees. Delinquent assessments are subject to reasonable late fees, at a rate to be
011. Sharon Reuler, P.C. All Rights Reserved. IS? SEP Toe OCR Ceiginal Cypress Come vd paRS/HTYLT nee LEYA 8.9.2. Late Fees. Delinquent assessments are subject to reasonable late fees, at a rate to be determined by the board from time to time. On any delinquent account, the Association may charge interest or late fees, but not both.
8.9.3. Costs of Collection. The owner of a lot against which assessments are delinquent is liable to the Association for reimbursement of reasonable costs incurred by the Association to collect the delinquent assessments, including attorneys fees and processing fees charged by the manager.
8.9.4. Acceleration. If an owner defaults in paying an assessment that is payable in installments, the Association may accelerate the remaining installments on 10 days’ written notice to the defaulting owner. The entire unpaid balance of the assessment becomes due on the date stated in the notice.
8.9.5. Suspension of Use. If an owner's account has been delinquent for at least 30 days, the Association may suspend the right of the owner and residents of the owner's fot to use common areas and common services during the period of delinquency. Suspension does not constitute a waiver or discharge of the owner's obligation to pay assessments.
8.9.6. Money Judgment. The Association may file suit seeking a money judgment against an owner delinquent in the payment of assessments, without foreclosing or waiving the Association's lien for assessments.
8.9.7. Notice to Mortqgagee. The Association may notify and communicate with the holder of any lien against a lot regarding the owner's default in payment of assessments.
8.9.8. Foreclosure of Assessment Lien. As provided by this Declaration, the Association may foreclose
with the holder of any lien against a lot regarding the owner's default in payment of assessments.
8.9.8. Foreclosure of Assessment Lien. As provided by this Declaration, the Association may foreclose its lien against the fot by judicial or nonjudicial means.
8.9.9, Application of Payments. The Association will accept partial payments, but may adopt a policy for returning partial payments with words of limitation to which the Association has not agreed. Payments received for the lot's account will be applied according to the requirements of applicable law.
8.10. RESERVE FUNDS. The Association's reserve funds are not intended to cover unforeseeable expenses or every foreseeable future expense. They are intended to reduce the amount or frequency of special assessments and dramatic increases in regular assessments. Duties imposed on the Association or the board by this Section are voluntary during the Declarant Control Period, and do not become obligatory until the first fiscal year after the end of the Declarant Control Period.
8.10.1. Required Reserves. Within one year after the end of the Declarant Control Period, the Association wiil establish, maintain, and accumulate reserves for operations and for anticipated major repairs or periodic replacement of significant improvements in the common area, to be used as needed. During the early years of the Property, when major components of the common area improvements are new and unlikely to require replacement, the reserve accounts are not expected to be fully funded.
8.10.2. Discretionary Reserves. In addition to reserves for replacement and repair of common area improvements, the board may establish, maintain, and accumulate as many additional types of reserve funds as
. Discretionary Reserves. In addition to reserves for replacement and repair of common area improvements, the board may establish, maintain, and accumulate as many additional types of reserve funds as it desires, such as "Operations Reserves" at a level determined by the board to be sufficient to cover the cost of operational or maintenance emergencies or contingencies.
8.10.3. Owners Contribute. The reserve accounts are funded by monies paid by owners other than Declarant. Owners’ contributions may be in the form of initial contributions at time of purchase, special assessments, and/or set-asides from regular assessments.
8.10.4. Replacement Reserve Study & Schedule. Within one year after the end of the Declarant Control Period, and periodically thereafter, the board elected by the owners will adopt a replacement reserve schedule as the basis for the Association’s reserve accounts. The replacement reserve schedule may be based on a replacement reserve study prepared by the Association's manager, by the board, or by a third party. The board will use the replacement reserve study to determine which components and repairs are to be covered by the Appendix 8 and Appendix C have priority over the main body of this Declaration.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 21 CYPRESS COVE replacement reserve schedule, and which are to be addressed as routine maintenance within the annual operating budget. The board will also determine (1) whether to dedicate some or all of the reserve funds to specific uses, (2) whether to levy a special assessment to establish, increase, or replenish the reserve accounts, and (3) what
so determine (1) whether to dedicate some or all of the reserve funds to specific uses, (2) whether to levy a special assessment to establish, increase, or replenish the reserve accounts, and (3) what percentage or portions of the replacement reserve schedule to fund on an ongoing basis, and which to fund by special assessment or an increase in the regular assessment at the time work is performed.
8.10.5. Adequacy of Reserve Fund. A reserve fund is deemed to be adequate if (1) the fund identifies at least the major components of the common area improvements, estimates the remaining useful life of each major component, and estimates the cost of repairing or replacing each major component using current costs {without cost of living or inflation factors), and (2) there is a schedule for infusing the fund with monetary contributions from owners, even if years or decades are required to reach full funding.
8.11. ASSOCIATION'S RIGHT TO BORROW MONEY. The Association is granted the right to borrow money, subject to the consent of owners of at least a majority of lots and the ability of the Association to repay the borrowed funds from assessments. To assist its ability to borrow, the Association is granted the right to encumber, mortgage, pledge, or deed in trust any of its real or personal property, and the right to assign its right to future income, as security for money borrowed or debts incurred, provided that the rights of the lender in the pledged property are subordinate and inferior to the rights of the owners hereunder. This Section does not apply to loans between the Association and Declarant.
8.12. LIMITATIONS OF INTEREST. The Association, and its officers, directors, managers, and attorneys, intend
ners hereunder. This Section does not apply to loans between the Association and Declarant.
8.12. LIMITATIONS OF INTEREST. The Association, and its officers, directors, managers, and attorneys, intend to conform strictly to the applicable usury laws of the State of Texas. Notwithstanding anything to the contrary in the Governing Documents or any other document or agreement executed or made in connection with the Association's collection of assessments, the Association will not in any event be entitled to receive or collect, as interest, a sum greater than the maximum amount permitted by applicable law. If fram any circumstances whatsoever, the Association ever receives, collects, or applies as interest a sum in excess of the maximum rate permitted by law, the excess amount will be applied to the reduction of unpaid special and regular assessments, or reimbursed to the owner if those assessments are paid in full.
ARTICLE 9 ASSESSMENT LIEN 9.1. CREATION & PERFECTION OF LIEN. The recording of this Declaration creates the Association's assessment lien on every part of the Property to secure the payment of assessments to be levied by the Association. The publicly recorded Declaration constitutes record notice and perfection of the lien. No other recordation of a lien or notice of lien is required. Each assessment is a charge on the lot and is secured by a continuing lien on the lot. Each owner, and each prospective owner, is placed on notice that his title may be subject to the continuing lien for assessments attributable to a period prior to the date he purchased his lot.
Yes, the HOA can foreclose!
If you fail to pay assessments to the Association, you may Jose title to your home if the Association forecloses its assessment lien against your lot.
he purchased his lot.
Yes, the HOA can foreclose!
If you fail to pay assessments to the Association, you may Jose title to your home if the Association forecloses its assessment lien against your lot.
9.2. LIEN SUPERIOR TO HOMESTEAD. Because this Declaration is recorded before the instrument by which an owner takes title to a lot, the assessment lien hereby created is superior to any homestead right acquired in the future by a lot owner. Each owner, by accepting an interest in or title to a lot, whether or not it is so expressed in the instrument of conveyance, acknowledges that the Association's assessment lien is superior to the owner's claim of homestead, if applicable.
9.3. OTHER SUPERIORITIES. In addition to a claim of homestead, the assessment lien hereby created is also superior to all other liens and encumbrances on a fot, except only for (1) real property taxes and assessments levied by governmental and quasi-governmental authorities, (2) a deed of trust or vendor's lien recorded against land before the land became subject to this Declaration, (3) a recorded deed of trust lien securing a loan for construction of the original improvements on a lot, and (4) a purchase money vendor's lien or purchase money deed of trust lien recorded before the date on which the delinquent assessment became due. The Association may voluntarily subordinate its assessment Appendix 8 and Appendix C have priority over the main body of this Declaration.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 22 CYPRESS COVE lien to an otherwise-inferior lien, from time to time. However, the lien created by this Declaration can not and may not
Reserved. F\O7-292 loca KCCRS- Original Cypress Cove x8 palaG/IO/L3 rde8/2O715 lien to an otherwise-inferior lien, from time to time. However, the lien created by this Declaration can not and may not be released as to a lot without withdrawing the lot from the effect of this Declaration. Any instrument that purports to "release" the Association's assessment lien, even if executed by the Association, will be construed, depending on the circumstances, as either a subordination of the assessment lien as to future assessments on the lot, or as a waiver of Association's superior claim against the lot for delinquent assessments.
9.4. EFFECT OF MORTGAGEE'S FORECLOSURE. Foreclosure of a superior lien extinguishes the Association's claim against the lot for unpaid assessments that became due before the sale, but does not extinguish the Association's claim against the former owner, and does not extinguish the Association's lien for assessments that become due after the sale. The purchaser at the foreclosure sale of a superior lien is liable for assessments coming due from and after the date of the sale, and for the owner's pro rata share of the pre-foreclosure deficiency as an Association expense.
9.5. NOTICE AND RELEASE OF NOTICE. Although this Declaration constitutes perfection of its lien, the Association, at its option, may cause a notice of the lien to be recorded in the Real Property Records of Dallas County, Texas. If the debt is cured after a notice has been recorded, the Association will publicly record a release of the notice within 60 days after cure, or within 60 days after receiving the owner’s written request. Although the owner is liable to the Association for reimbursement of release expenses incurred by the Association, the Association may not require
60 days after receiving the owner’s written request. Although the owner is liable to the Association for reimbursement of release expenses incurred by the Association, the Association may not require prepayment as a condition of the release.
9.6. POWER OF SALE. By accepting an interest in or title to a lot, each owner grants to the Association a private power of nonjudicial sale in connection with the Association's assessment lien. The board may appoint, from time to time, any person, including an officer, agent, trustee, substitute trustee, or attorney, to exercise the Association's lien rights on behalf of the Association, including the power of sale. The appointment must be in writing and may be in the form of a resolution recorded in the minutes of a board meeting.
9.7. FORECLOSURE OF LIEN. Foreclosure of the Association's assessment lien - and all prerequisite procedures - must comply with at least the minimum requirements of applicable law for foreclosures, in general, and for foreclosures by property owners associations, in particular. To the extent permitted by law, the assessment lien may be foreclosed by judicial or nonjudicial methods. A nonjudicial foreclosure requires a court order pursuant to the expedited foreclosure process required by Chapter 209 of the Texas Property Code, and must be conducted in accordance with the provisions applicable to the exercise of powers of sale as set forth in Section 51.002 of the Texas Property Code, or in any manner permitted by law. In any foreclosure, the owner is required to pay the Association's costs and expenses for the proceedings, including reasonable attorneys' fees, subject to applicable provisions of the Bylaws and applicable law, such
re, the owner is required to pay the Association's costs and expenses for the proceedings, including reasonable attorneys' fees, subject to applicable provisions of the Bylaws and applicable law, such as Chapter 209 of the Texas Property Code. The Association has the power to bid on the fot at foreclosure sale and to acquire, hold, lease, mortgage, and convey same. The Association may not foreclose the assessment lien if the debt consists solely of interest, late fees, fines and/or a claim for reimbursement of attorney's fees incurred by the Association.
ARTICLE 10 ENFORCING THE DOCUMENTS 10.1. RIGHT TO ENFORCE. The Association and each owner has the right to enforce all restrictions, conditions, covenants, liens, and charges now or hereafter imposed on the Property, on the owners, or on the Association by the Governing Documents or by applicable law. Failure by the Association or by any owner to enforce a provision of the Governing Documents or applicable public law is not a waiver of the right to do so thereafter. If the Association does waive the right to enforce a provision, that waiver does not impair the Association's right to enforce any other part of the Governing Documents at any future time. No officer, director, or member of the Association is liable to any owner for the failure to enforce any of the Governing Documents at any time.
10.2. BOARD DISCRETION. The board may use its sole discretion in determining whether to pursue a violation of the Governing Documents, provided the board does not act in an arbitrary or capricious manner. In evaluating a particular violation, the board may determine that under the particular circumstances (1) the Association's position is not
the board does not act in an arbitrary or capricious manner. In evaluating a particular violation, the board may determine that under the particular circumstances (1) the Association's position is not sufficiently strong to justify taking any or further action; (2) the provision being enforced is or may be construed as inconsistent with applicable law; (3) although a technical violation may exist, it is not of such a material nature as to be objectionable to a reasonable person or to justify expending the Association's resources; or (4) that enforcement is not in the Association's best interests, based on hardship, expense, or other reasonable criteria.
Appendix 8 and Appendix C have priority over the main body of this Declaration.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 23 CYPRESS COVE 10.3. CONSISTENCY BY CIRCUMSTANCE. The board may vary its enforcement by circumstance, provided (1) the board establishes a rational and reasonable basis for circumstantial enforcement, and (2) the board diligently tries to be consistent in dealing with similar circumstances. To illustrate, the Association may decide that circumstances warrant different procedures for collecting delinquent assessments from owner occupants and investor owners, or from owners who are selling their lots, or are temporarily unemployed, or are in bankruptcy, or are deceased. Similarly, there may be a basis for enforcing a construction specification or use restriction against lots that are highly visible because of their prominent location, versus lots that are not located in high traffic areas.
a basis for enforcing a construction specification or use restriction against lots that are highly visible because of their prominent location, versus lots that are not located in high traffic areas.
10.4. SECOND CHANCE. This Section may be invoked by the owner or co-owners of a lot only once during their term of ownership of the lot. If an owner fails to obtain the prior written approval of the board, the ARC, the Architectural Reviewer, or the Association, as applicable (the "Approver"), when such prior approval is required by a Governing Document, the owner must be given a reasonable opportunity of at least 10 days after notification of violation by the Approver in which to apply (belatedly) for the required approval. The Approver may not disapprove the application if the action, use, change, or addition (1) qualifies for approval, (2) is in substantial compliance with applicable regulations, and (3) would have been approved, in the reasonable exercise of the Approver's discretionary powers, if the application had been submitted timely. A written approval issued "retroactively" ~ after the action, use, change, or addition is made ~ may not be construed as a waiver of the duty of owners to obtain prior written approval when required by a Governing Document, nor as an abdication of the Approver’s authority over actions, uses, changes, and additions to the Property that are regulated by the Governing Documents. An owner who fails to take adyantage of the second chance to apply, or whose application is denied for cause, may be declared to be in violation of the Governing Documents.
10.5. COSTS OF ENFORCEMENT. The Association may use common funds to exercise its rights and remedies
ose application is denied for cause, may be declared to be in violation of the Governing Documents.
10.5. COSTS OF ENFORCEMENT. The Association may use common funds to exercise its rights and remedies for enforcing the Governing Documents, including funds contributed by the owner against whom enforcement is sought, subject to limitations for funding litigation in the Dispute Resolution Article. Costs incurred by the Association for curing or abating a violation are at the expense of the owner or other person responsible for the violation. If legal assistance is obtained to enforce a provision of a Governing Document, or in any legal proceeding (whether or not suit is brought) for damages or for the enforcement of a Governing Document or the restraint of a violation of a Governing Document, the prevailing party is entitled to recover from the nonprevailing party all reasonable and necessary costs incurred by it in such action, including reasonable attorneys’ fees.
10.6. NOTICE AND HEARING. Before the Association may exercise certain of its remedies for a violation of the Governing Documents or damage to the Property, the Association must give an owner written notice and an opportunity for a hearing, according to the requirements and procedures in the Bylaws and in applicable law, such as Chapter 209 of the Texas Property Code. Notices are also required before an owner is liable to the Association for certain charges, including reimbursement of attorneys fees incurred by the Association.
STATE LAW APPLIES to many of the Association's enforcement rights and remedies.
10.7. REMEDIES. The remedies provided in this Article for breach of the Governing Documents are cumulative
Association.
STATE LAW APPLIES to many of the Association's enforcement rights and remedies.
10.7. REMEDIES. The remedies provided in this Article for breach of the Governing Documents are cumulative and not exclusive. In addition to other rights and remedies provided by the Governing Documents and by applicable law, the Association has the following right to enforce the Governing Documents, subject to applicable notice and hearing requirements (if any): 10.7.1. Nuisance. The result of every act or omission that violates any provision of a Governing Document is a nuisance, and any remedy allowed by law against a nuisance, either public or private, is applicable against the violation.
10.7.2. Fine. The Association may levy reasonable charges, as an individual assessment, against an owner and his lot if the owner or resident, or the owner or resident's family, guests, employees, agents, or contractors violate a provision of the Governing Documents. Fines may be levied for each act of violation or for each day a violation continues, and does not constitute a waiver or discharge of the owner's obligations under the Governing Documents.
Appendix 8 and Appendix C have priority over the main body of this Declaration.
NN DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 24 CYPRESS COVE 10.7.3. Suspension. The Association may suspend the right of owners and residents to use common areas for any period during which the owner or resident, or the owner or resident's family, guests, employees, agents, or contractors violate the Governing Documents. A suspension does not constitute a waiver or discharge of the owner's obligations under the Governing Documents.
nt's family, guests, employees, agents, or contractors violate the Governing Documents. A suspension does not constitute a waiver or discharge of the owner's obligations under the Governing Documents.
10.7.4. Self-Help. The Association has the right to enter any part of the Property, including lots, to abate or remove, using force as may reasonably be necessary, any improvement, thing, animal, person, vehicte, or condition that violates a Governing Document. In exercising this right, the board is not trespassing and is not liable for damages related to the abatement. The board may levy its costs of abatement against the lot and owner as an individual assessment. The board will make reasonable efforts to give the violating owner prior notice of its intent to exercise self-help. The notice may be given in any manner likely to be received by the owner. Prior notice is not required (1) in the case of emergencies, (2) to remove violative signs, (3) to remove violative debris, or (4) to remove any other violative item or to abate any other violative condition that is easily removed or abated and that is considered a nuisance, dangerous, health hazard, or an eyesore to the neighborhood.
10.7.5. Suit. Failure to comply with the Governing Documents will be grounds for an action to recover damages or for injunctive relief to cause any such violation to be remedied, or both. Prior to commencing any legal proceeding, the Association will give the defaulting party reasonable notice and an opportunity to cure the violation.
ARTICLE 11 MAINTENANCE AND REPAIR OBLIGATIONS j41.1. ASSOCIATION MAINTAINS. The Association's maintenance obligations will be discharged when and how
e notice and an opportunity to cure the violation.
ARTICLE 11 MAINTENANCE AND REPAIR OBLIGATIONS j41.1. ASSOCIATION MAINTAINS. The Association's maintenance obligations will be discharged when and how the board deems appropriate. The Association maintains, repairs, and replaces, as a common expense, the portions of the Property listed below, regardless of whether the portions are on lots, in public rights of way, or in common areas.
(1) The common areas.
(2) Any real and personal property owned by the Association but which is not a common area, such as a lot owned by the Association.
(3) Any property adjacent to Cypress Cove if maintenance of same is deemed to be in the best interests of the Association, and if not prohibited by the owner or operator of said property.
(4) Any area, item, easement, or service - the maintenance of which is assigned to the Association by this Declaration or by the plat.
You have a legal duty to maintain your home and yard.
11.2. OWNER RESPONSIBILITY. Every owner has the following responsibilities and obligations for the maintenance, repair, and replacement of the Property, subject to the Specifications SourceBook and the architectural control requirements and restrictions of this Declaration: 11.2.1. Maintenance. Each owner, at the owner's expense, must maintain all improvements on the lot, such as (if any, without limitation) the dwelling, fences, sidewalks, driveways, drainage features, grounds, and landscaping. Maintenance includes preventative maintenance, repair as needed, and replacement as needed. Each owner is expected to maintain his lot's improvements at a level, to a standard, and with an appearance that is commensurate with the neighborhood. Specifically, each owner must repair and replace worn, rotten, deteriorated,
intain his lot's improvements at a level, to a standard, and with an appearance that is commensurate with the neighborhood. Specifically, each owner must repair and replace worn, rotten, deteriorated, and unattractive materials, and must regularly repaint alt painted surfaces.
11.2.2. Avoid Damage. An owner may not do any work or to fail to do any work which, in the reasonable opinion of the board, would materially jeopardize the soundness and safety of the Property, reduce the value of the Property, adversely affect the appearance of the Property, or impair any easement relating to the Property.
Appendix B and Appendix C have priority over the main body of this Declaration.
a in DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 25 CYPRESS COVE © 2011. Sharon Reuler, P.c. All Rights Reserved. LiMT-PaeLyauesyCCRe-Original Cypress Cove. v) pSB/IO/I emt IOV15 11.2.3. Responsible for Damage. An owner is responsible for his own willful or negligent acts and those of his or the resident's family, quests, agents, employees, or contractors when those acts necessitate maintenance, repair, or replacement to the common areas or the property of another owner.
11.3. OWNER'S DEFAULT IN MAINTENANCE. If the board determines that an owner has failed to properly discharge his obligation to maintain, repair, and replace items for which the owner is responsible, the board may give the owner written notice of the Association's intent to provide the necessary maintenance at owner's expense. The notice must state, with reasonable particularity, the maintenance deemed necessary and a reasonable period of time in which to complete the work. If the owner fails or refuses to timely perform the maintenance, the Association may do so at
icularity, the maintenance deemed necessary and a reasonable period of time in which to complete the work. If the owner fails or refuses to timely perform the maintenance, the Association may do so at owner's expense, which is an individual assessment against the owner and his fot. In case of an emergency, however, the board's responsibility to give the owner written notice may be waived and the board may take any action it deems necessary to protect persons or property, the cost of the action being the owner's expense.
11.4. FENCES BETWEEN LOTS. The concept of shared fences is intended to be more space-efficient, material-efficient, and cost-efficient than each owner separately fencing his own lot, with two fences abutting. Sharing fences requires cooperation and flexibility by and between owners of adjoining lots. A fence or other type of partition located on or near the dividing line between two lots and intended to benefit both lots constitutes a "Party Wall" and, to the extent not inconsistent with the provisions of this Section, is subject to the general rules of law regarding party walls and tiability for property damage due to negligence, willful acts, or omissions.
11.4.1. Encroachments & Easement. If the Party Wall is on one lot or another due to an error in construction, the Party Wall is nevertheless deemed to be on the dividing line for purposes of this Section. Each lot sharing a Party Wall is subject to an easement for the existence and continuance of any encroachment by the Party Wall as a result of construction, repair, shifting, settement, or movement in any portion of the Party Wall, so that the encroachment may remain undisturbed as long as the Party Wall stands. Each lot is subject to a
t of construction, repair, shifting, settement, or movement in any portion of the Party Wall, so that the encroachment may remain undisturbed as long as the Party Wall stands. Each lot is subject to a reciprocal easement for the maintenance, repair, replacement, or reconstruction of the Party Wail.
11.4.2. Right to Repair. If the Party Wall is damaged or destroyed from any cause, the owner of either lot may repair or rebuild the Party Wall to its previous condition, and the owners of both lots, their successors and assigns, have the right to the full use of the repaired or rebuilt Party Wall.
11.4.3. Right of Access. The owner of the lot on each side of the Party Wall hereby grants to the owner of the lot on the other side of the Party Wall a reciprocal access easement for maintenance, repair, replacement, or reconstruction of the Party Wall, as appropriate and necessary to effect the purposes and provisions of this Section.
11.4.4. Maintenance Costs. The owners of the adjoining lots share equally the costs of repair, reconstruction, or replacement of the Party Wall, subject to the right of one owner to call for larger contribution from the other under any rule of law regarding lability for negligence or willful acts or omissions. If an owner is responsible for damage to or destruction of the Party Wall, that owner will bear the entire cost of repair, reconstruction, or replacement. If an owner fails or refuses to pay his share of costs of repair or replacement of the Party Wall, the owner advancing monies has a right to file a claim of lien for the monies advanced in the Real Property Records of Dallas County, Texas, and has the right to foreclose the lien as if it were a mechanic's lien.
ancing monies has a right to file a claim of lien for the monies advanced in the Real Property Records of Dallas County, Texas, and has the right to foreclose the lien as if it were a mechanic's lien.
The right of an owner to contribution from another owner under this Section is appurtenant to the land and passes to the owner's successors in title.
11.4.5. Alterations. The owner of a lot sharing a Party Wall may not cut openings in the Party Wall or alter or change the Party Wall in any manner that affects the use, condition, or appearance of the Party Wall to the other lot, without the prior written consent of the owner of the other lot. Unless both owners reach a mutual decision to the contrary, the Party Wall will always remain in the same location as where initially erected.
11.4.6. Retaining Walls. This Subsection applies if adjoining lots in portions of Cypress Cove have elevations that are sufficiently different to require a retaining wall, such as occurs in properties with rolling or sloping terrain. Two adjoining Jots with significantly different elevations may have a retaining wall located on or near the dividing line between the two lots and intended to benefit both lots. The lot having the higher elevation is referred to in this Subsection as the "Higher Lot,” and the lot having the lower elevation is referred to as the Appendix B and Appendix C have priority over the main body of this Declaration.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 26 CYPRESS COVE “Lower Lot." The owner of the Lower Lot is hereby granted a non-exclusive and perpetual right and easement
“Lower Lot." The owner of the Lower Lot is hereby granted a non-exclusive and perpetual right and easement of enjoyment and use over the exterior surface of the Party Wall for use as a perimeter wall or fence of the Lower Lot. The owner of the Lower Lot is responsible for maintaining the grounds up to the Party Wall, even if the Party Wall is inside the boundaries of the Higher Lot. The owner of either the Higher Lot or the Lower Lot may construct a fence in connection with the retaining wall. The owner of the Higher Lot may construct or install a fence inside the Party Wall on the elevated surface of the Higher Lot, or, with the prior approval of the Lower Lot owner, on the Party Wall itself. The owner of the Lower Lot may construct or install a fence on his lot, provided the fence does not interfere with his duty to maintain the grounds up to the Party Wall. The fences permitted by this Subsection are not considered a part of the Party Wall for purposes of the remainder of this Section. Maintenance of retaining walls is subject to the Retaining Walls Chapter of the Specifications SourceBook.
ARTICLE 12 MORTGAGEE PROTECTION 12.1. FIRSTMORTGAGEE RIGHTS. This Article establishes certain standards for the benefit of a holder, insurer, or guarantor of a purchase money mortgage secured by a recorded senior or first deed of trust lien against a lot, or any renewal, modification, or refinancing thereof ("First Mortgagee"). Each First Mortgagee has the following rights under this Declaration: 12.1.1. Lien Superiority. As stated in the Assessment Lien Article of this Declaration, the lien in a First
f ("First Mortgagee"). Each First Mortgagee has the following rights under this Declaration: 12.1.1. Lien Superiority. As stated in the Assessment Lien Article of this Declaration, the lien in a First Mortgagee's recorded deed of trust is superior to the Association's lien for assessments.
12.1.2. Representation. In dealing with the Association, a First Mortgagee may be represented by @ mortgage servicer, agent, or representative.
12.1.3. Termination. An action to terminate the legal status of the Property after substantial destruction or condemnation must be approved by the First Mortgagees on at least a majority of the lots that are subject to an outstanding purchase money mortgage, in addition to the required consents of owners. An action to terminate the legal status for reasons other than substantial destruction or condemnation must be approved by the First Mortgagees on at least two-thirds of lots that are subject to an outstanding purchase money mortgage.
12.1.4. Books & Meetings. A First Mortgagee may inspect the Association's books and records, including the Governing Documents, by appointment, during normal business hours. A First Mortgagee may attend and address any meeting which an owner may attend.
12.1.5. Financial Statements. A First Mortgagee may have an audited statement of the Association's books and records prepared at its own expense. If the Association obtains an audited statement for its members, if a First Mortgagee so requests, the Association will give the First Mortgagee an audited statement for the preceding fiscal year within 120 days after the Association's fiscal year-end.
12.1.6. Right of First Refusal. As initially written, this Declaration does not create a right of first
statement for the preceding fiscal year within 120 days after the Association's fiscal year-end.
12.1.6. Right of First Refusal. As initially written, this Declaration does not create a right of first refusal. Any right of first refusal imposed in the future by the Association with respect to a lease, sale, or transfer of a lot does not and may not apply to a lease, sale, or transfer by a First Mortgagee, including transfer by deed in lieu of foreclosure or foreclosure of a deed of trust lien.
12.1.7. Amending Governing Documents. If a First Mortgagee requests from the Association compliance with the mortgage underwriting guidelines of Federai Home Loan Mortgage Corporation (Freddie Mac), Federal Housing Administration (HUD/FHA), Federal National Mortgage Association (Fannie Mae), or U. S.
Department of Veterans Affairs (VA), singly or collectively, the board, without approval of owners or First Mortgagees, may amend this Article and other provisions of the Governing Documents, as necessary, to meet the requirements of the aforenamed national institutional underwriting lenders. This Article is supplemental to, not a substitution for, any other provision of the Governing Documents. In case of conflict, this Article controls.
12.2. CONSENTS OF MORTGAGEES. If the Governing Documents or applicable law require the consent of mortgagees for an act, decision, or amendment by the Association, the approval of a mortgagee is implied when the mortgagee fails to respond within 60 days after receiving the Association's written request for approval of the act, decision Appendix 8 and Appendix C have priority over the main body of this Declaration.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 27 CYPRESS COVE
itten request for approval of the act, decision Appendix 8 and Appendix C have priority over the main body of this Declaration.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 27 CYPRESS COVE © 2011. Sharon Reuler, P.c. All Rights Reserved. ENO?-22T aes ORS Original Copreté Cort v3 po G/U/1) rae G/L0/21 or amendment, provided the Association's request to the mortgagee was delivered by certified or registered mail, return receipt requested.
ARTICLE 13 AMENDMENTS 13.1. AMENDMENT BY OR AFFECTING DECLARANT. In this Declaration, particularly in the Article titled Covenants for Declarant's Benefit and the attached Appendix B, Declarant reserves certain superior rights to amend this Declaration and the other Governing Documents, and rights to approve certain amendments.
13.2. AMENDMENT BY BOARD. The board may not unilaterally amend this Declaration or the Specifications SourceBook, except for the following limited purposes, which must be clearly identified in the instrument of amendment, and then only to the extent necessary to achieve the permitted goal, and only with the unanimous written consents of all directors, there being no vacancy on the board: (1) To qualify the Property or the Association for mortgage underwriting, tax exemption, insurance coverage, or any public or quasi-public program or benefit, if doing so is in the best interests of the Association and its members.
(2) To correct an obvious error that affects the validity or enforceability of the document, if doing so is in the best interests of the Association and its members.
(3) To comply with a requirement of applicable jaw that requires a specific provision to be included in or removed from a document.
oing so is in the best interests of the Association and its members.
(3) To comply with a requirement of applicable jaw that requires a specific provision to be included in or removed from a document.
13.3. AMENDMENT BY MEMBERS. Except for certain amendments of this Declaration that may be executed by Declarant alone, or by the board alone, amendments to this Declaration must be approved by owners of at least a majority of the lots. Approval of owners does not require that the amendment be signed by the consenting owners, or that consents be executed and acknowledged by the approving owners. For an amendment of this Declaration that requires the approval of owners, the consents may be solicited by any method selected by the board from time to time, pursuant to the Bylaws and applicable law, provided the method gives an owner of each lot the substance if not exact wording of the proposed amendment, a description of the effect of the proposed amendment, and an opportunity to vote for or against the proposed amendment.
Like public laws, this Declaration can be changed ~ and the change may apply to you even if you didn't vote for it.
13.4. EFFECTIVE. To be effective, an amendment approved by the owners or by the board must be in the form of a written instrument (1) referencing the name of the Property, the name of the Association, and the recording data of this Declaration and any amendments hereto; (2) signed and acknowledged by an officer of the Association, certifying the requisite approval of owners or directors and, if required, First Mortgagees; and (3) recorded in the Real Property Records of Dallas County, Texas, except as modified by the following section.
13.5. ANNEXATION. After the Expansion Period, additional !and may be annexed to the Property and subjected
e Real Property Records of Dallas County, Texas, except as modified by the following section.
13.5. ANNEXATION. After the Expansion Period, additional !and may be annexed to the Property and subjected to this Declaration and the jurisdiction of the Association on approval of owners representing at least two-thirds of the Jots in the Property, and the consent of the owner of the real property being annexed. Annexation of additional property is accomplished by recording an amendment of annexation or a supplemental declaration, including an amendment of Appendix A, in the Real Property Records of Dallas County, Texas.
13.6. APPENDIXES. To amend an Appendix of this Declaration, it is not necessary to restate and re-record this entire Declaration. Each Appendix of this Declaration may be amended, restated, and supplemented individually as an amendment of this Declaration.
Appendix 8 and Appendix C have priority over the main body of this Declaration.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 28 CYPRESS COVE © 2011. Sharon Reuler, P.c. All Rights Reserved. EMOP- 2521 oes ORs Original Cypress Comex pde6/10/1 dG 16/23 13.7. ORDINANCE COMPLIANCE. When amending a Governing Document, the Association must consider the validity and enforceability of the amendment in light of applicable law, such as (if any) subdivision ordinances of a local government.
13.8. MERGER. Merger or consolidation of the Association with another association must be evidenced by an amendment to this Declaration. The amendment must be approved by owners of at least a majority of the lots. Upon a merger or consolidation of the Association with another association, the property, rights, and obligations of another
he amendment must be approved by owners of at least a majority of the lots. Upon a merger or consolidation of the Association with another association, the property, rights, and obligations of another association may, by operation of law, be added to the properties, rights, and obligations of the Association as a surviving association pursuant to the merger. The surviving or consolidated association may administer the provisions of the Governing Documents within the Property, together with the covenants and restrictions established upon any other property under its jurisdiction. No merger or consolidation, however, will effect a revocation, change, or addition to the covenants established by this Declaration within the Property.
13.9. TERMINATION. Termination of the terms of this Declaration and the status of the Property as a planned unit development are according to the following provisions. In the event of substantially total damage, destruction, or public condemnation of the Property, an amendment to terminate must be approved by owners of at least two-thirds of the lots. In the event of public condemnation of the entire Property, an amendment to terminate may be executed by the board without a vote of owners. In all other circumstances, an amendment to terminate must be approved by owners of at least 80 percent of the lots.
13.10. CONDEMNATION. In any proceeding, negotiation, settlement, or agreement concerning condemnation of a common area, the Association will be the exclusive representative of the owners. The Association may use condemnation proceeds to repair and replace any damage or destruction of the common area, real or personal, caused by the condemnation. Any condemnation proceeds remaining after completion, or waiver, of the repair and replacement
r and replace any damage or destruction of the common area, real or personal, caused by the condemnation. Any condemnation proceeds remaining after completion, or waiver, of the repair and replacement will be deposited in the Association's reserve funds.
ARTICLE 14 INDEMNIFICATION & RELEASE AGAINST SELF-INTEREST 14.1. CONSIDERATION. Each owner and resident grants the releases from liability contained in this Article as consideration for, and as a condition to, the owner and resident's use and enjoyment of the common areas of Cypress Cove. Each owner and resident acknowledges and agrees that the releases from liability contained in this Article are a material inducement to Declarant and to the Builders to sell, convey, lease, or allow the use of lots and homes in Cypress Cove.
14.2. INDEMNITY FOR ASSOCIATION OPERATIONS. The Association indemnifies, defends, and holds harmless Declarant against any loss, claim, demand, damage, cost, and expense relating to or arising out of the management and operation of the Association, including without limitation, the collection of assessments, the enforcement of the Governing Documents, and the operation and maintenance of the common areas. Indemnified expenses include, without limitation, reasonable attorneys fees, whether or not a lawsuit is filed, and costs at atl court levels, including expenses incurred by Declarant in establishing the right to be indemnified, defended, and held harmless pursuant to this Declaration.
IMPORTANT TO READ AND UNDERSTAND THESE RELEASES 14.3. RELEASE FOR INJURY OR LOSS. Each owner, by accepting an interest in or title to a lot, whether or not it is so expressed in the instrument of conveyance, and each resident of any portion of the Property, covenants and
Y OR LOSS. Each owner, by accepting an interest in or title to a lot, whether or not it is so expressed in the instrument of conveyance, and each resident of any portion of the Property, covenants and agrees that the Association, the ARC, Declarant, and their respective directors, officers, committees, members, agents, and employees (individually and collectively, the "Indemnitees") may not be held liable to any person claiming any loss or damage including, without limitation, indirect, special, or consequential loss or damage arising from personal injury or death, destruction of property, trespass, loss of enjoyment, or any other wrong or entitlement to remedy based upon, due to, arising from, or otherwise relating to the design, construction, maintenance, or use of any common area, expressly including every item of equipment used in connection therewith, including, without limitation, any claim arising in whole or in part from the negligence of an Indemnitee.
Appendix B and Appendix C have priority over the main body of this Declaration.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 29 CYPRESS COVE 14.4. INTENT TO RELEASE FROM NEGLIGENCE. Each owner, by accepting an interest in or title toa lot, whether or not it is $o expressed in the instrument of conveyance, and each resident of any portion of the Property by the act of occupancy, acknowledges that the releases and indemnities contained in this Article are intended to release 14.5. AGAINST SELF-INTEREST OF OWNER OR OCCUPANT. Each owner and resident acknowledges that the releases and indemnitees in this Article are contrary to the self-interest of the owner or resident. In other
AGAINST SELF-INTEREST OF OWNER OR OCCUPANT. Each owner and resident acknowledges that the releases and indemnitees in this Article are contrary to the self-interest of the owner or resident. In other words, the releases and indemnities are not in the owner or resident's best interest.
ARTICLE 15 DISPUTE RESOLUTION 15.1. INTRODUCTION & DEFINITIONS. The Association, owners, residents, Declarant, Builders, all persons subject to this Declaration, and any person not otherwise subject to this Declaration who agrees to submit to this Article (collectively, the "Parties”) agree to encourage the amicable resolution of disputes involving the Property and to avoid the emotional and financial costs of litigation if at all possible. Accordingly, each Party hereby covenants and agrees that this Article applies to alt claims as hereafter defined. As used in this Article only, the following words, when capitalized, have the following specified meanings: 15.1.1. "Claim" means any claim, grievance, or dispute between Parties involving the Properties, except Exempt Claims as defined below, and including without limitation: (1) Claims arising out of or relating to the interpretation, application, or enforcement of the Governing Documents.
(2) Claims relating to the rights and/or duties of Declarant as Declarant under the Governing Documents.
(3) Claims relating to the design, construction, or maintenance of the Property.
15.1.2. “Claimant” means any Party having a Claim against any other Party.
15.1.3. "Exempt Claims” means the following claims or actions, which are exempt from this Article: (1) The Association's claim for assessments, and any action by the Association to collect assessments.
5.1.3. "Exempt Claims” means the following claims or actions, which are exempt from this Article: (1) The Association's claim for assessments, and any action by the Association to collect assessments.
(2) An action by a Party to obtain a temporary restraining order or equivalent emergency equitable relief, and such other ancillary relief as the court deems necessary to maintain the status quo and preserve the Party's ability to enforce the provisions of this Declaration.
(3) Enforcement of the easements, architectural control, maintenance, and use restrictions of this Declaration.
(4) A suit to which an applicable statute of {imitations would expire within the notice period of this Article, unless a Party against whom the Claim is made agrees to toll the statute of limitations as to the Claim for the period reasonably necessary to comply with this Article.
15.1.4. “Respondent” means the Party against whom the Claimant has a Claim.
15.2. MANDATORY PROCEDURES. Claimant may not file suit in any court or initiate any proceeding before any administrative tribunal seeking redress or resolution of its Claim until Claimant has complied with the procedures of this Article.
15.3. NOTICE. Claimant must notify Respondent in writing of the Claim (the "Notice"), stating plainly and concisely: (1) the nature of the Claim, including date, time, location, persons involved, and Respondent's role in the Appendix 8 and Appendix C have priority over the main body of this Declaration.
ee DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 30 CYPRESS COVE
ration.
ee DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 30 CYPRESS COVE Claim; (2} the basis of the Claim (i.e., the provision of the Governing Documents or other authority out of which the Claim arises); (3) what Claimant wants Respondent to do or not do to resolve the Claim; and (4) that the Notice is given pursuant to this Section.
15.4. NEGOTIATION. Claimant and Respondent will make every reasonable effort to meet in person to resolve the Claim by good faith negotiation. Within 60 days after Respondent's receipt of the Notice, Respondent and Claimant will meet at a mutually-acceptable place and time to discuss the Claim. At such meeting or at some other mutually-agreeable time, Respondent and Respondent's representatives will have full access to the property that is subject to the Claim for the purposes of inspecting the property. If Respondent elects to take corrective action, Claimant will provide Respondent and Respondent's representatives and agents with full access to the property to take and complete corrective action.
15.5. MEDIATION. If the parties negotiate but do not resolve the Claim through negotiation within 120 days from the date of the Notice (or within such other period as may be agreed on by the parties), Claimant will have 30 additional days within which to submit the Claim to mediation under the auspices of a mediation center or individual mediator on which the parties mutually agree. The mediator must have at feast 5 years of experience serving as a mediator and must have technical knowledge or expertise appropriate to the subject matter of the Claim. If Claimant
s mutually agree. The mediator must have at feast 5 years of experience serving as a mediator and must have technical knowledge or expertise appropriate to the subject matter of the Claim. If Claimant does not submit the Claim to mediation within the 30-day period, Claimant is deemed to have waived the Claim, and Respondent is released and discharged from any and all liability to Claimant on account of the Claim.
15.6. TERMINATION OF MEDIATION. If the Parties do not settle the Claim within 30 days after submission to mediation, or within a time deemed reasonable by the mediator, the mediator will issue a notice of termination of the mediation proceedings indicating that the Parties are at an impasse and the date that mediation was terminated.
Thereafter, Claimant may file suit or initiate administrative proceedings on the Claim, as appropriate.
15.7. ALLOCATION OF COSTS. Except as otherwise provided in this Section, each Party bears all of its own costs incurred prior to and during the proceedings described in the Notice, Negotiation, and Mediation sections above, including its attorneys fees. Respondent and Claimant will equally divide all expenses and fees charged by the mediator.
15.8. ENFORCEMENT OF RESOLUTION. Any settlement of the Claim through negotiation or mediation will be documented in writing and signed by the Parties. If any Party thereafter fails to abide by the terms of the agreement, then the other Party may file suit or initiate administrative proceedings to enforce the agreement without the need to again comply with the procedures set forth in this Article. In that event, the Party taking action to enforce the agreement is entitled to recover from the non-complying Party ail costs incurred in enforcing the agreement, including, without
h in this Article. In that event, the Party taking action to enforce the agreement is entitled to recover from the non-complying Party ail costs incurred in enforcing the agreement, including, without limitation, attorneys fees and court costs.
15.9. GENERAL PROVISIONS. A release or discharge of Respondent from liability to Claimant on account of the Claim does not release Respondent from liability to persons who are not party to Claimant's Claim. A Party having an Exempt Claim may submit it to the procedures of this Article.
15.10. LITIGATION APPROVAL & SETTLEMENT. To encourage the use of alternative dispute resolution and discourage the use of costly and uncertain litigation, the initiation of any judicial or administrative proceeding by the Association is subject to the following conditions in addition to and notwithstanding the above alternate dispute resolution procedures. Each owner, by accepting an interest in or title to a lot, whether or not it is so expressed in the instrument of conveyance, covenants and agrees to be bound by this Section. This Section may not be amended without the approval of owners of at least 75 percent of the lots.
15.10.1. Owner Approval. The Association may not initiate any judicial or administrative proceeding without the prior approval of owners of at feast a majority of the lots, except that no such approval is required (1} to enforce provisions of this Declaration, including collection of assessments; (2) to challenge condemnation proceedings; (3) to enforce a contract against a contractor, vendor, or supplier of goods or services to the Association; (4) to defend claims filed against the Association or to assert counterclaims in a proceedings instituted
a contract against a contractor, vendor, or supplier of goods or services to the Association; (4) to defend claims filed against the Association or to assert counterclaims in a proceedings instituted Appendix 8 and Appendix C have priority over the main body of this Declaration.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 31 CYPRESS COVE against the Association; or (5) to obtain a temporary restraining order or equivalent emergency equitable relief when circumstances do not provide sufficient time to obtain the prior consents of owners in order to preserve the status quo.
15.10.2.. Higher Approval of Certain Suits. Except to obtain a temporary restraining order when circumstances warrant, the Association may not initiate any judicial or administrative proceeding against a current or former officer or director of the Association, the ARC, Declarant, or a Builder without the approval of owners representing at least 75 percent of the lots because of the potential for counterclaims and the costs and liabilities appurtenant thereto.
15.10.3. Funding Litigation. Except in the case of a temporary restraining order or equivalent emergency equitable retief when circumstances do not provide sufficient time to levy a special assessment, the Association must levy a special assessment to fund the estimated costs of litigation prior to initiating a judicial or administrative proceeding. The Association may not use its annual operating income, reserve funds, or savings to fund titigation, unless the Association's annual budget or a savings account was established and funded from its inception as a litigation reserve fund.
operating income, reserve funds, or savings to fund titigation, unless the Association's annual budget or a savings account was established and funded from its inception as a litigation reserve fund.
15.10.4. | Settlement. The board, on behalf of the Association and without the consent of owners, is hereby authorized to negotiate settlement of litigation, and may execute any document related thereto, such as settlement agreements and waiver or release of claims.
15.11. CONSTRUCTION-RELATED DISPUTES. In addition to the above procedures, a claim relating to an alieged construction defect may be governed by Texas statutes relating to residential construction, such as Chapter 27 of the Texas Property Code, the Residential Construction Liability Act.
ARTICLE 16 HOME SALES & RESALES 16.4. GENERAL. In the era in which this Declaration is written, the law pertaining to the sale and resale of residential lots governed by a mandatory property owners association is evolving. The purpose of this Article is to formalize the process by which Association-related fees are imposed on Jot sales for the ultimate protection of the homebuying public. An obligation to the Association or its managing agent for transfer-related fees on a lot conveyance varies by whether the fot is vacant or improved with a home, and whether the home is new or a resale.
16.1.1. No Right of First Refusal. Lot sales in the Property are not subject to a right of first refusal in favor of the Association or its individual members.
16.1.2. Executory Contracts. An owner who sells his Jot under an executory contract (contract for deed) may delegate his membership rights to the contract purchaser, provided a written assignment signed by the
xecutory Contracts. An owner who sells his Jot under an executory contract (contract for deed) may delegate his membership rights to the contract purchaser, provided a written assignment signed by the contract seller and purchaser is delivered to the board. However, the contract seller remains liable for all assessments attributable to his jot unti! fee title to the fot is transferred.
16.2. HOASALE FEES. "HOA Sale Fee" means a non-refundable expense, fee, charge, or contribution that is charged by the Association or its manager in connection with the sale or purchase of a lot, pursuant to the Governing Documents, applicable law, or a management contract to which the Association is a party. A buyer's prepaid and/or pro-rata assessments are not HOA Sale Fees. HOA Sale Fees are generally of two types - budget enhancing fees (also known as "cap fees"), such as contributions to the reserve or operating funds of the Association, and administrative fees (also known as "transfer fees"), such as fees for resale certificates and ownership record changes. The Association and its manager may waive some cr all HOA Sale Fees on a transfer by transfer basis, without waiving the right to charge such fees on future transfers.
16.3. ADMINISTRATIVE TRANSFER FEES. Transfer-related administrative fees may be charged and collected only pursuant to a contract, policy, or resolution adopted by the board identifying the type, purpose, amount, and beneficiary of each administrative transfer fee charged to an owner or prospective owner by the Association or its managing agent. The number, amounts, and types of administrative transfer fees may not exceed what is customary for
tive transfer fee charged to an owner or prospective owner by the Association or its managing agent. The number, amounts, and types of administrative transfer fees may not exceed what is customary for the local marketplace. To be effective, the contract, policy, or resolution must be signed by an officer of the Association, Appendix 8 and Appendix € have priority over the main body of this Declaration.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 32 CYPRESS COVE © 2011. Sharon Reuler, P.C. All Rights Reserved. 02-2521 docs OCRs-Crigined Cypress Commo paw 6/20/13 rif 6/10113 certifying approval by the board. This Article does not require the Association or its manager to levy administrative HOA Sale Fees.
16.4. NEW HOME SALES. HOA Sale Fees pertaining to sales of vacant lots to Builders and New Home Sales are addressed at the end of Appendix C of this Declaration. The Association may not determine or change any aspect of HOA Sale Fees pertaining to the conveyance of New Homes and vacant [ots or land without Declarant's prior consent in a publicly recorded writing that is dated, signed, and acknowledged by Declarant, which consent may not be deemed from any act, omission, or other writing. This Section will cease to apply to the Property upon Sell-Out.
16.5. HOME RESALES. This Section applies to every "Home Resale", being the sale or conveyance of a residential! lot that is improved with a completed dwelling, and for which the selling owner is a person other than Declarant or a Builder. This Section does not apply to the sale of vacant lots and New Home Sales by Declarant or Builders.
16.5.1. Resale Certificate. An owner intending to sell his home will notify the Association and will
This Section does not apply to the sale of vacant lots and New Home Sales by Declarant or Builders.
16.5.1. Resale Certificate. An owner intending to sell his home will notify the Association and will request a resale certificate from the Association. The resale certificate provided by the Association or its manager must state the amount, type, and payee of each HOA Sale Fee, which must conform to the Association's contract, policy, or resolution then in effect.
16.5.2. Amounts. At time of closing a Home Resale, the following amounts are due and payable by buyer and/or seller of a Home Resale, subject to the limited exclusions below.
(1) To the Association, a one-time contribution to the Association's reserve funds, in the amount of one-half the annual assessment for each lot purchased.
(2) If any, the customary administrative HOA Sale Fees, payable to the Association or its manager, as directed at time of closing.
16.5.3. Notice of Obligation. HOA Sale Fees on a Home Resale may be paid by either the seller or the buyer, per their negotiations, and are typically collected at closing. If HOA Sale Fees are not collected at closing, the buyer remains tiable to the Association or to the manager, as applicable, for the fee until the fee is received.
HOA Sales Fees may not be avoided by effecting the transfer without the services of a title company.
16.5.4. Information. Within 30 days after acquiring an interest in an improved lot, an owner will provide the Association with the following information: a copy of the settlement statement or deed by which owner has title to the lot; the owner's email address (if any), U. S. postal address, and phone number; any mortgagee's name, address, and loan number; the name and phone number of any resident other than the owner; the name,
t; the owner's email address (if any), U. S. postal address, and phone number; any mortgagee's name, address, and loan number; the name and phone number of any resident other than the owner; the name, address, and phone number of owner's managing agent, if any.
16.6. CHANGES IN AMOUNTS. Notwithstanding the Amendments Article of this Declaration, the board, without a vote of the owners, may amend this Article for the following two purposes only: (1) te change the amount or formula stated for HOA Sale Fees on Home Resales, or (2) to conform this Article with applicable law regarding HOA Sale Fees on Home Resales. The change of amount or formula is not effective unless stated in a writing that is publicly recorded in the Real Property Records of Dallas County, Texas, signed and acknowledged by an officer of the Association. If the change of amount results in an overall reduction of HOA Sale Fees for a conveyance that is pending at the time of the change, the lower rate is effective immediately for any closing that occurs after the date the notice of change is publicly recorded. If the change of amount results in an overall increase of HOA Sale Fees for the lot being conveyed at the time of the change, the increased amount is not effective until the 90th day after the date on which the notice of change is publicly recorded.
16.7. EXCLUSIONS. Except for the above duty to provide the Association with information at time of transfer, the requirements of this Article, including the obligation for HOA Sale Fees, do not apply to the following transfers: (1) foreclosure of a mortgagee’s deed of trust lien, a tax lien, or the Association's assessment lien; (2) conveyance by a
ng the obligation for HOA Sale Fees, do not apply to the following transfers: (1) foreclosure of a mortgagee’s deed of trust lien, a tax lien, or the Association's assessment lien; (2) conveyance by a mortgagee who acquires title by foreclosure or deed in lieu of foreclosure; (3) transfer to, from, or by the Association; (4) voluntary transfer by an owner to one or more co-owners, or to the owner's spouse, child, or parent; (5) a transfer by a fiduciary in the course of administering a decedent's estate, guardianship, conservatorship, or trust; (6) a conveyance Appendix 8 and Appendix € have priority over the main body of this Declaration.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 33 CYPRESS COVE © 2011. Sharon Reuler, P.C. All Rights Reserved. EOP 29a TWsOeAYCONS-Origit Cypress Cove vi peb/20/17 mey10/11 pursuant to a court's order, including a transfer by a bankruptcy trustee; (7) a disposition by a government or governmental agency; or (8) a transfer from Declarant to a successor Declarant or to an affiliate of Declarant.
ARTICLE 17 COVENANTS FOR DECLARANT'S BENEFIT By acquiring the ownership interest before the Property is fully developed, expanded, Built-Out, and Sold-Out, each owner covenants, agrees, and acknowledges each of the following Sections.
17.1. OWNERSHIP NOT REQUIRED. As stated in Appendix B, Declarant’s rights and reservations under this Declaration are not contingent on Declarant's ownership of a lot. However, if it becomes necessary or desirable for Declarant to own land subject to this Declaration in order to exercise a Declarant right or reservation, Declarant hereby reserves the right to acquire or re-acquire an ownership interest in one or more lots or unplatted parcels in the Property
ation in order to exercise a Declarant right or reservation, Declarant hereby reserves the right to acquire or re-acquire an ownership interest in one or more lots or unplatted parcels in the Property for that purpose, in addition to Declarant’s right to unilaterally subject additional land to this Declaration.
17.2. ASSOCIATION FINANCES. Declarant and property owned by Declarant or its affiliates are exempt from assessment by the Association. During the Declarant Control Period, the Association may apply all monies received from owners to the operating expenses of the Association, and is not required by this Declaration to fund reserve accounts, even if a projected build-out budget for the Association shows contributions to reserves. During the Declarant Control Period only, Declarant may contribute or loan money to the Association if monies received from owners are not sufficient to cover the Association's operating expenses. After the Declarant Control! Period, the Association must adopt a budget that can be funded fully by owners other than Declarant or its affiliates.
17.3. AMENDING GOVERNING DOCUMENTS. Declarant has an exclusive right to unilaterally amend this Declaration and every other Governing Document for any purpose, as stated in Appendix B. A provision of this Declaration or any other Governing Document that pertains in any way - directly or indirectly - to Declarant or Builders, or to their rights and reservations under this Declaration, such as Appendixes 8B and C (without limitation), may not be amended without Deciarant's written and acknowledged consent, which must be part of the recorded amendment instrument. Nor may this Declaration or any other Governing Document be amended to increase the liabilities or responsibilities of
nd acknowledged consent, which must be part of the recorded amendment instrument. Nor may this Declaration or any other Governing Document be amended to increase the liabilities or responsibilities of Declarant or Builders, without Declarant's written and acknowledged consent, which must be part of the recorded amendment instrument. An amendment that may be executed by Declarant alone is not required to name the Association or to be signed by an officer of the Association. This Article may not be amended without Declarant's written and acknowledged consent.
17.4. APPENDIXES B, C, AND D. The provisions of Appendixes B, C, and D of this Declaration control over anything to the contrary in the main body of this Declaration or in any other Governing Document. This Declaration may not be published, amended, or restated without Appendixes B, C, and D, without Declarant's written and acknowledged consent on the amendment, restatement, or publication of this Declaration.
ARTICLE 18 GENERAL PROVISIONS FOR ALL GOVERNING DOCUMENTS 18.1. HIGHER AUTHORITY. The Governing Documents are subordinate to federal and state law, and local ordinances. Generally, the terms of the Governing Documents are enforceable to the extent they do not violate or conflict with local, state, or federal law or ordinance. In the event of a conflict between the Governing Documents, the hierarchy of authority is as follows: the Plat (highest), this Declaration, Specifications SourceBook, Articles of Association (certificate of formation), Bylaws, Rules, and (lowest) policies, procedures, and guidelines. In the event of a conflict within this Declaration, Appendix _B has the highest authority, followed by Appendix C, and lastly by the main body of this Declaration.
olicies, procedures, and guidelines. In the event of a conflict within this Declaration, Appendix _B has the highest authority, followed by Appendix C, and lastly by the main body of this Declaration.
18.2. COMPLIANCE. The owners hereby covenant and agree that the administration of the Association will be in accordance with the provisions of the Governing Documents and applicable laws, as same may be amended from time to time, of any public or quasi-public entity having jurisdiction over the Association or Property. Users of this Declaration and the other Governing Documents should periodically review statutes and court rulings that may modify or nullify a provision or its enforcement, or may create rights or duties not anticipated by a Governing Document.
Appendix B and Appendix C have priority over the main body of this Declaration.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 34 CYPRESS COVE 18.3. CHANGE OF APPLICABLE LAW. This Section applies to a provision of a Governing Document that is modified, rendered void, or becomes obsolete because of a change of applicable law. If the board of directors determines that the significance of the provision that is changed by operation of law should be brought to the attention of owners and the public, the board of directors, without a vote of the owners, may issue a Notice of Change that references the provision of a Governing Document and how it is affected by applicable law. The Notice may be recorded in the Real Property Records of Dallas County, Texas, and does not constitute an amendment of the Governing Document. If such
ument and how it is affected by applicable law. The Notice may be recorded in the Real Property Records of Dallas County, Texas, and does not constitute an amendment of the Governing Document. If such a Notice is issued, the Association will notify owners of its existence and will make it available to owners as a record of the Association. This provision may not be construed to give the board unilateral amendment powers, nor to prevent an amendment of a Governing Document to achieve the same purpose.
Laws change. (What doesn't?)
18.4. NOTICE. Any demand or written notice required or permitted by a Governing Document may be sent by electronic, ordinary, or certified mail, postage prepaid, or by any other method or combination of methods permitted or required by applicable law. If mailed, the notice is deemed delivered when deposited in the U.S. mail addressed to the member at the address shown on the Association's records. If transmitted by fax or email, the notice is deemed delivered on successful transmission of the facsimile or electronic correspondence. The notice must be sent to the party's last known address as it appears on the records of the Association at the time of transmission. If an owner fails to give the Association an effective address, the notice may be sent to the address of the owner's lot. If the Association properly transmits the notice, the owner is deemed to have been given notice whether or not he actually receives it.
18.5. CHANGING TECHNOLOGY. The Governing Documents are drafted at the end of an era that uses ink on paper to communicate, to give notice, and to memorialize decisions. The next era of communications may be paperless,
CHNOLOGY. The Governing Documents are drafted at the end of an era that uses ink on paper to communicate, to give notice, and to memorialize decisions. The next era of communications may be paperless, relying on electronic communications for many activities that are customarily papered on the date of this Declaration. As technology changes, the terms of the Governing Documents that pertain to communications, notices, and documentation of decisions may be interpreted and applied in ways that are consistent with and customary for the then-current technology for standard business practices, without necessity of amending the Governing Document.
18.6. LIBERAL CONSTRUCTION. The terms and provisions of each Governing Document are to be liberally construed to give effect to the purposes and intent of the Governing Document. All doubts regarding a provision in any Governing Document or applicable law, including restrictions on the use or alienability of property, will be resolved in the follow order of preferences: first to give effect to Declarant's intent to protect Declarant's interests in the Property, second to give effect to Declarant's intent to direct the build-out and sell-out of the Property, third to give effect to Declarant's intent to control governance of the Association for the maximum permitted period, then in favor of the operation of the Association and its enforcement of the Governing Documents for the benefit of owners collectively, and finally to protect the rights of individual owners, regardless which party seeks enforcement.
18.7. SEVERABILITY. Invalidation of any provision of this Declaration by judgment or court order does not affect any other provision, which remains in full force and effect. The effect of a general statement is not limited by the
ion of any provision of this Declaration by judgment or court order does not affect any other provision, which remains in full force and effect. The effect of a general statement is not limited by the enumeration of specific matters similar to the general.
18.8. CAPTIONS. In allt Governing Documents, the captions of articles and sections are inserted only for convenience and are in no way to be construed as defining or modifying the text to which they refer, Boxed notices are inserted to alert the reader to certain provisions and are not to be construed as defining or modifying the text.
18.9. INTERPRETATION. Whenever used in the Governing Documents, unless the context provides otherwise, a reference to a gender includes all genders. Similarly, a reference to the singular includes the plural, the plural the singular, where the same would be appropriate.
18.10. DURATION. Unless terminated or amended by owners as permitted herein, the provisions of this Declaration run with and bind the Property, and will remain in effect perpetually to the extent permitted by law.
Appendix B and Appendix € have priority over the main bedy of this Declaration.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 35 CYPRESS COVE 18.11. APPENDIXES. The following appendixes are attached to this Declaration and incorporated herein by reference: A - Description of Subject Land B - Declarant’s Rights & Reservations for Build-Out & Sell-Out C - Declarant's Rights & Reservations for Association Governance D - Requirements for Highly-Visible Lots SIGNED AND ACKNOWLEDGED D. R. HORTON - TEXAS, LTD., a Texas limited partnership
Reservations for Association Governance D - Requirements for Highly-Visible Lots SIGNED AND ACKNOWLEDGED D. R. HORTON - TEXAS, LTD., a Texas limited partnership By: D.R. HORTON, INC., a Delaware corporation, its authorized agent David L. Booth, Assistant Vice President THE STATE OF TEXAS § COUNTY OF DALLAS § This instrument was acknowledged before me on this y/ / day of June 2013 by David L. Booth, Assistant Vice President of D. R. Horton, Inc., a Delaware corporation, on behalf of said corporation in its capacity as authorized agent for D. R. Horton - Texas, Ltd., a Texas limited partnership, on behaif of the limited partnership.
Notary Public, The State of Texas Appendix B and Appendix C have priority over the main body of this Declaration.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS Page 36 CYPRESS COVE APPENDIX A DESCRIPTION OF SUBJECT LAND CYPRESS COVE PHASE 1 (30.553 acres of land) BEING a tract of land in the City of Garland, Datlas County, Texas, a part of the B.O.C. Pounds Survey, Abstract No. 1168, also being part of a 326.422 acre tract described in Deed to D.R. Horton-Texas, Ltd. as recorded in Doc. No. 200503632072, Deed Records of Dallas County, Texas, and being more particularly described as follows: BEGINNING at a one-half inch iron rod found for corner at the northwest corner of said 326.422 acre tract, said point being in the centerline of Bobtown Road; THENCE South 89 degrees 27 minutes 30 seconds East, 36.79 feet along the north line of said 326.422 acre tract to one-half
said 326.422 acre tract, said point being in the centerline of Bobtown Road; THENCE South 89 degrees 27 minutes 30 seconds East, 36.79 feet along the north line of said 326.422 acre tract to one-half inch tron rod found for comer, being the southwest corner of Lot 1, Block 4 of the Highcrest Addition recorded in Volume 84064, Page 2890, Deed Records of Dallas County, Texas; THENCE along the north line of said 326.422 acre tract and the south line of said Highcrest Addition the following courses and distances: South 89 degrees 40 minutes 14 seconds East, 120.03 feet to a three-eighths inch iron rod found for corner; South 88 degrees 36 minutes 01 seconds East, 79.88 feet to a concrete monument found for corner; North 80 degrees 26 minutes 16 seconds East, 46.86 feet to a five-eighths inch iron rod found for corner; North 81 degrees 51 minutes 15 seconds East, 119.96 feet to a five-eighths inch iron rod found for corner; North 82 degrees 31 minutes 29 seconds East, 75.76 feet to a five-eighths inch iron rod found for corner; North 81 degrees 33 minutes 09 seconds East, 69.24 feet to a one-half inch iron rod found for corner; South 88 degrees 51 minutes 00 seconds East, 37.08 feet to a one-half inch iron rod found for corner; South 88 degrees 01 minutes 13 seconds East, 101.93 feet to a five-eighths inch iron rod found for corner; North 62 degrees 49 minutes 35 seconds East, 110.32 feet to a one-half inch iron rod found for corner; North 62 degrees 28 minutes 59 seconds East, 63.98 feet to a concrete monument found for corner; North 79 degrees 41 minutes 54 seconds East, 95.06 feet to a one-half inch iron rod found for corner; North 78 degrees 25 minutes 09 seconds East, 108.73 feet to a five-eighths inch iron rod found for corner;
degrees 41 minutes 54 seconds East, 95.06 feet to a one-half inch iron rod found for corner; North 78 degrees 25 minutes 09 seconds East, 108.73 feet to a five-eighths inch iron rod found for corner; North 78 degrees 10 minutes 00 seconds East, 86.16 feet to a concrete monument found for corner; North 63 degrees 19 minutes 43 seconds East, 84.64 feet to a one-half inch iron rod found for corner; North 63 degrees 02 minutes 01 seconds East, 67.81 feet to a one-half inch iron rod found for corner; North 63 degrees 00 minutes 08 seconds East, 60.97 feet to a one-half inch iron rod set for corner; South 89 degrees 06 minutes 14 seconds East, 19.17 feet to a concrete monument set for corner; THENCE South 00 degrees 03 minutes 51 seconds West, 846.67 feet to a one-half inch iron rod set for corner; THENCE North 89 degrees 56 minutes 09 seconds West, 180.00 feet to a one-half inch iron rod set for corner; THENCE South 00 degrees 03 minutes 51 seconds West, 78.57 feet to a one-half inch iron rod set for corner; THENCE North 89 degrees 56 minutes 09 seconds West, 80.44 feet to a one-half inch iron rod set for corner; THENCE South 66 degrees 13 minutes 20 seconds West, 93.54 feet to a one-half inch iron rod set for corner: THENCE South 13 degrees 59 minutes 15 seconds East, 117.30 feet to a one-half inch iron rod set for corner; THENCE South 01 degrees 51 minutes 28 seconds West, 78.73 feet to a one-half inch iron rod set for corner; THENCE South 58 degrees 11 minutes 29 seconds West, 90.60 feet to a one-half inch iron rod set for corner; THENCE South 46 degrees 33 minutes 58 seconds West, 61.07 feet to a one-half inch iron rod set for corner; THENCE South 42 degrees 06 minutes 35 seconds West, 29.38 feet to a one-half inch iron rod set for corner;
46 degrees 33 minutes 58 seconds West, 61.07 feet to a one-half inch iron rod set for corner; THENCE South 42 degrees 06 minutes 35 seconds West, 29.38 feet to a one-half inch iron rod set for corner; THENCE North 72 degrees 15 minutes 42 seconds West, 94.17 feet to a one-half inch iron rod set for corner; THENCE North 60 degrees 29 minutes 38 seconds West, 287.36 feet to a one-half inch iron rod set for corner; THENCE Southwesterly 110.02 feet along a curve to the right having a radius of 425.00 feet, a central angle of 14 degrees 49 minutes 55 seconds, a tangent of 55.32 feet and a chord bearing South 14 degrees 21 minutes 05 seconds West 109.71 feet to a one-half inch iron rod set for corner; THENCE South 19 degrees 57 minutes 25 seconds East, 22.03 feet to a one-half inch iron rod set for corner; THENCE Southeasterly 10.83 feet along a curve to the right having a radius of 625.00 feet, a central angle of 00 degrees 59 minutes 33 seconds, a tangent of 5.41 feet and a chord bearing South 61 degrees 30 minutes 32 seconds East 10.83 feet to a one-half inch iron rod set for corner; THENCE South 28 degrees 59 minutes 15 seconds West, 170.00 feet to a one-half inch iron rod set for corner; THENCE North 65 degrees 37 minutes 06 seconds West, 73.07 feet to a one-half inch iron rod set for corner; APPENDIX A TO DECLARATION OF CYPRESS COVE Page i DESCRIPTION OF SUBJECT LAND THENCE North 74 degrees 49 minutes 48 seconds West, 73.07 feet to a one-half inch iron rod set for corner; THENCE North 87 degrees 45 minutes 34 seconds West, 82.52 feet to a one-half inch iron rod set for corner;
74 degrees 49 minutes 48 seconds West, 73.07 feet to a one-half inch iron rod set for corner; THENCE North 87 degrees 45 minutes 34 seconds West, 82.52 feet to a one-half inch iron rod set for corner; THENCE North 00 degrees 03 minutes 51 seconds East, 109.48 feet to a one-half inch iron rod set for corner; THENCE North 89 degrees 56 minutes 68 seconds West, 50.00 feet to a one-half inch iron rod set for corner; THENCE North 44 degrees 56 minutes 09 seconds West, 21.21 feet to a one-half inch iron rod set for corner; THENCE North 89 degrees 56 minutes 09 seconds West, 90.00 feet to a one-half inch iron rod set for corner; THENCE South 45 degrees 03 minutes 51 seconds West, 21.21 feet to 2 one-half inch iron rod set for corner; THENCE South 00 degrees 03 minutes 51 seconds West, 910.32 feet to a monument set for corner; THENCE North 89 degrees 47 minutes 53 seconds West, 50.00 feet to a "P-K" nail set for corner in the centerline of Bobtown Road; THENCE North 00 degrees 03 minutes 51 seconds East, 1,855.20 feet along the centerline of Bobtown Road to THE POINT OF BEGINNING and containing 1,330,876 square feet or 30.553 acres of land.
CYPRESS COVE PHASE 2 (28.850 acres of land) BEING part of a 326.422 acre tract described in Deed to D.R. Horton-Texas, Ltd. as recorded in Doc. No. 200503632072, Deed Records of Dallas County, Texas, and being more particularly described as follows: BEGINNING at a one-half inch iron rod found in the south line of Cypress Cove, Phase 1, Addition to the City of Garland as recorded in Document No. Deed Records of Dallas County, Texas, said point also being the southwest corner of a comer clip at the intersection of the east line of Bobtown Road (a variable width right-of-way) and the south line of Lakeway Drive (a 50 foot right-of-way);
point also being the southwest corner of a comer clip at the intersection of the east line of Bobtown Road (a variable width right-of-way) and the south line of Lakeway Drive (a 50 foot right-of-way); THENCE along the south line of said Cypress Cove, Phase 1 the following: North 45 degrees 03 minutes 51 seconds East, 21.21 feet to a one-half inch iron rod set for corner; South 89 degrees 56 minutes 09 seconds East, 90.00 feet to a one-half inch iron rod set for corner; South 44 degrees 56 minutes 09 seconds East, 21.21 feet to a one-half inch iron rod set for corner; South 89 degrees 56 minutes 08 seconds East, 50.00 feet to a one-half inch iron rod set for corner; South 00 degrees 03 minutes 51 seconds West, 109.48 feet to a one-half inch iron rod set for corner; South 87 degrees 45 minutes 34 seconds East, 82.52 feet to a one-half inch iron rod set for corner; South 74 degrees 49 minutes 48 seconds East, 73.07 feet to a one-half inch iron rod set for corner; South 65 degrees 37 minutes 06 seconds East, 73.07 feet to a one-half inch iron rod set for corner; North 28 degrees 59 minutes 15 seconds East, 170.00 feet to a one-half inch iron rod set for corner; Northwesterly 10.83 feet along a non-tangent curve to the left having a radius of 625.00 feet and a central angle of 0 degrees 59 degrees 33 minutes, a tangent of 5.41 feet and a chord bearing and distance of North 61 degrees 30 minutes 32 seconds West, 10.83 feet to a one-half inch iron rod set for corner; North 19 degrees 57 minutes 25 seconds West, 22.03 feet to a one-half inch iron rod set for corner; Northeasterly 110.02 feet along a non-tangent curve to the left having a radius of 425.00 feet and a central angle of
57 minutes 25 seconds West, 22.03 feet to a one-half inch iron rod set for corner; Northeasterly 110.02 feet along a non-tangent curve to the left having a radius of 425.00 feet and a central angle of 14 degrees 49 degrees 55 minutes, a tangent of 55.32 feet and a chord bearing and distance of North 14 degrees 21 minutes 05 seconds West, 109.71 feet to a one-half inch iron rod set for corner; South 60 degrees 29 minutes 38 seconds East, 287.36 feet to a one-half inch iron rod set for corner; South 72 degrees 15 minutes 42 seconds East, 94.17 feet to a one-half inch iron rod set for corner; North 42 degrees 06 minutes 35 seconds East, 29.38 feet to a one-half inch iron rod set for corner; North 46 degrees 33 minutes 58 seconds East, 61.07 feet to a one-half inch iron rod set for corner; North 58 degrees 11 minutes 29 seconds East, 90.60 feet to a one-half inch iron rod set for corner; North 01 degrees 51 minutes 28 seconds East, 78.73 feet to a one-half inch iron rod set for corner; North 13 degrees 59 minutes 15 seconds West, 117.30 feet to a one-half inch iron rod set for corner; North 66 degrees 13 minutes 20 seconds East, 93.54 feet to a one-half inch iron rod set for corner; South 89 degrees 56 minutes 09 seconds East, 80.44 feet to a one-half inch iron rod set for corner; North 00 degrees 03 minutes 51 seconds East, 78.57 feet to a one-half inch iron rod set for corner; South 89 degrees 56 minutes 09 seconds East, 180.00 feet to a one-half inch iron rod set for corner; THENCE South 00 degrees 03 minutes 51 seconds West, 1283.34 feet to a one-half inch iron rod set for corner; THENCE North 89 degrees 47 minutes 53 seconds West, 1282.71 feet to a one-half inch iron rod set for corner;
egrees 03 minutes 51 seconds West, 1283.34 feet to a one-half inch iron rod set for corner; THENCE North 89 degrees 47 minutes 53 seconds West, 1282.71 feet to a one-half inch iron rod set for corner; THENCE North 00 degrees 03 minutes 51 seconds East, 910.32 feet to the POINT OF BEGINNING and containing 1,256,725 square feet or 28.850 acres of land.
(End of Appendix A) APPENDIX A TO DECLARATION OF CYPRESS COVE Page 2 DESCRIPTION OF SUBJECT LAND APPENDIX B TO DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS FOR CYPRESS COVE DECLARANT'S RIGHTS & RESERVATIONS FOR BUILD-OUT & SELL-OUT B.1. GENERAL PROVISIONS.
B.1.1. Introduction. Declarant intends the Declaration to be perpetual and understands that provisions that are warranted for a complete and orderly Build-Out and Sel!l-Out of the Property will eventually become obsolete. As a courtesy to future users of the Declaration, who may be frustrated by then-obsolete terms, most of the provisions relating to the roles of Declarant and Builders (if any) are compiled in this Appendix.
B.1.2. Continuity. The role of Declarant is significant for many reasons and in different ways through BuildQut and Sell-Out of the Property. One reason is to buffer the for-profit businesses of Declarant and Builders who create housing opportunities for the community in the Property from the nonprofit homeowner-controlled volunteer-led Association. Accordingly, the role of Declarant will continue, without interruption, until the Property is fully expanded and platted, every vacant lot in the Property and on the Additional Land that is capable of improvement has been improved with a dwelling that has been sold to an owner.
the Property is fully expanded and platted, every vacant lot in the Property and on the Additional Land that is capable of improvement has been improved with a dwelling that has been sold to an owner.
This Appendix “Rules” until Build-Out & Sell-Out B.1.3. Superiority. The terms and provisions of this Appendix are superior to the terms and provisions of the Specifications SourceBook, Bylaws, Articles, and the main body of the Declaration. Except for a few provisions which expressly survive Sell-Gut, most of the terms and provisions of this Appendix will cease to apply to the Property upon Sell-Out.
8.1.4. General Reservation & Construction. Declarant hereby reserves exclusively unto itself and its successors, assigns, and designees, the rights and reservations contained in this Appendix. No other provision in a Governing Document may be construed to prevent or interfere with Declarant’'s exercise of its rights and reservations.
Nor many any mortgagee, other owner, or the Association, prevent or interfere with Declarant’s exercise of its rights and reservations. The terms and provisions of this Appendix must be construed liberally to give effect to Declarant's intent to ensure a complete and orderly Build-Out and Sell-Out of the Property, which is ultimately for the benefit and protection of homeowners and mortgagees, as well as to protect the interests and investments of Declarant and Builders (if any), and Declarant's reputation as a community developer.
B.1.5. Ownership Not Required, This Appendix intends for Declarant's rights and reservations to be extant until certain statuses are attained, such as Build-Out or Sell-Out, whether or not Declarant owns any part of the Property
d, This Appendix intends for Declarant's rights and reservations to be extant until certain statuses are attained, such as Build-Out or Sell-Out, whether or not Declarant owns any part of the Property or the Additional Land. In other words, Declarant need not be an owner to exercise the rights and reservations of Declarant. If the laws of Texas are amended or interpreted retroactively to predicate al! or any of Declarant’s rights on an interest in real property subject to the Declaration, for the purpose of satisfying such a requirement, Dectarant hereby reserves an independent right to acquire or re-acquire real property already subject to the Declaration, or to subject additional real property to this Declaration by means of a supplemental declaration or amendment of annexation.
B.1.6. Statutory Reservation. Declarant hereby reserves for itself each and every right, reservation, privilege, and exception available or permissible under applicable law for declarants and developers of residential subdivisions, if and to the full extent that such right, privilege, or exception is beneficial to or protective of Declarant or Builders. If the benefit or protection of applicable law is predicated on an express provision being in this Declaration or other Governing Document, such provision is hereby incorporated by reference unless Declarant executes an instrument to disavow such benefit or protection.
B.1.7. Amendment. An amendment, restatement, supplement, or termination of this Appendix or any of its provisions is void and unenforceable without Declarant's prior written approval of the instrument, as evidenced by Declarant's acknowledged signature on the instrument that is publicly recorded.
f its provisions is void and unenforceable without Declarant's prior written approval of the instrument, as evidenced by Declarant's acknowledged signature on the instrument that is publicly recorded.
B.1.8. Reserved Periods. This Appendix creates a number of periods of time for the exercise of certain reserved rights, such as Declarant Control Period, Development Period, Expansion Period, Build-Out, and Sell-Out. Each reservation period is independent of the others. Each reservation period is for a term of years or until a stated status is attained, and does not require that Declarant own a lot or any other land. No act, statement, or omission by the APPENDIX B FO DECLARATION OF CYPRESS COVE Page B-1 DECLARANT'S RIGHTS & RESERVATIONS FOR BUILD-OUT & SELL-OUT Association, a Builder, or any other party may effect a change or termination of any reservation period. Declarant, however, may unilaterally change any reservation period by amending this Appendix. To document the end of a reservation period, Declarant may (but is not required to} execute and pubiicly record a notice of termination of the period.
B.2. DEFINITIONS. Words and phrases defined in Article 1 of the Declaration and in Appendix C have the same meanings when used in this Appendix. As used in this Appendix and elsewhere in the Governing Documents, the following words and phrases have the following specified meanings, subject to Declarant's right to amend or supplement this Section: B.2.1. "Additional Land" means real property that may be added to the Property and subjected to this
the following specified meanings, subject to Declarant's right to amend or supplement this Section: B.2.1. "Additional Land" means real property that may be added to the Property and subjected to this Declaration by Declarant, including real property: (1) any portion of which is contiguous with, adjacent to, across the street from, or within 1,000 feet of any real property that is subject to this Declaration, (2) in an addition or subdivision platted by the City of Garland or the City of Dallas as a phase or section of Cypress Cove, or (3) located in a planned development district created by the City of Garland or the City of Dallas for the property subject to this Dectaration.
B.2.2. "Builder" means a person or entity which owns or contracts to purchase a vacant lot for the purpose of constructing or completing a new dwelling for speculative sale or pursuant to a construction contract with a prospective owner. As used in this Declaration, Builder does not refer to Declarant or to a home building or home marketing company that is an affiliate of Declarant.
These defined terms are used in other parts of the Declaration B.2.3. "Build-Out" is the status that the Property attains when the Property is fully expanded by the Additional Land, fully platted, fully developed, and every lot that is capable of being improved has been improved with a compieted dwelling and customary appurtenances, at which time the Property will be "Built-Out". As used in this definition, "fully" and "every" means 100 percent.
B.2.4.. "Development Period" means the period of time that runs continuously from the date this Declaration is recorded, during which Declarant reserves the right to facilitate the expansion, development, construction,
nt Period" means the period of time that runs continuously from the date this Declaration is recorded, during which Declarant reserves the right to facilitate the expansion, development, construction, and marketing of the Property as enlarged by the Additional Land, and the right to direct the size, shape, and composition of the Property as enlarged by the Additional Land, pursuant to the rights and reservations contained In this Dectaration, particularly in this Appendix and Appendix C, to the full extent permitted by applicable law. Declarant hereby states the length of the reserved Development Period as 25 years, and reserves the right to increase or decrease the length by amendment of this Declaration. The Development Pericd is for a term of years and does not require that Declarant own land or lots in the Property or in the Additional Land. If applicable law requires an event of termination as an alternative to a stated number of years, the Development Period runs continuously from the date this Declaration is recorded until three years after the date on which every lot that may be created in the Property as enlarged by the Additional Land is (1) made subject to this Declaration, (2) improved with a completed dwelling, and (3) conveyed to an owner other than a Builder, Declarant, or their respective affiliates.
B,.2.5. "Expansion Period" means the 20-year period, beginning on the date this Declaration is recorded, during which Declarant has unilateral rights (1) to expand the size of the Property by subjecting additional real property to this Declaration by supplementation, annexation, phasing, merger, or consolidation, (2) to increase the number of
ights (1) to expand the size of the Property by subjecting additional real property to this Declaration by supplementation, annexation, phasing, merger, or consolidation, (2) to increase the number of lots in the Property by platting or replatting a portion thereof, (3) to exercise every other Expansion Period right reserved in this Declaration, including without timitation the right to reduce the size of the Property and the number of lots.
B.2.6. "Sell-Out" is the status that the Property attains when the Property is Built-Out and every home is occupied or owned by a person other than a Builder or Declarant. Until Setl-Out, Builders and Declarant have protective rights established by this Declaration to market vacant lots and new homes in the Property. Sell-Out will be deemed to have occurred two years after Build-Out, if it has not occurred prior to that time. No act, statement, or omission by the Association, a Builder, or any other party may effect the attainment of "Sell-Out" before Build-Out.
B.2.7.. "Unilateratly" means that the Declarant may take the authorized action without the consent, approval, vote, or joinder of any other person, such as owners, mortgagees, Builders, and the Association. Certain provisions in this Appendix and elsewhere in the Governing Documents authorize the Declarant to act unilaterally. Unilateral action by Decjarant is favored for purposes of efficiency and to protect the interests of Declarant.
B.3. LAND USE RIGHTS & RESERVATIONS. Declarant reserves the following rights, reservations, and easements, exercisable at Declarant's sole discretion, from time to time, and at any time prior to Build-Out (unless a different period is i APPENDIX B TO DECLARATION OF CYPRESS COVE Page B-2
ons, and easements, exercisable at Declarant's sole discretion, from time to time, and at any time prior to Build-Out (unless a different period is i APPENDIX B TO DECLARATION OF CYPRESS COVE Page B-2 DECLARANT'S RIGHTS & RESERVATIONS FOR BUILD-OUT & SELL-OUT © 2011. Sharon Revler, P.C. All Rights Reserved. FAOP- RO Tdoes CERe Origin Cypress Come xd pAsG/1Oy13 fasyt0y13 specified), without requiring that Declarant own land described in Appendix A or in any supplemental declaration at the time or times Declarant exercises its right or reservation.
B.3.1. Platting. Any unplatted parcel in the Property may be platted in whole or in part, and in phases.
Additionally, any platted portion of the Property may be replatted, in whole or in part, to change lot boundaries, to increase or decrease the number of lots in the Property, to convert lots into common area and common area into lots, to impose or remove easements, and to effect any other land use which, in the sole discretion of Declarant, is conducive to Build-Out and Sell-Out of the Property. The right to plat or replat belongs to the owner of the unplatted parcel, subject to the acknowledged consent of Declarant in a publicly recorded instrument.
8.3.2. Expansion. The Property is subject to expansion. During the Expansion Period, Declarant may - but is not required to - subject any or all of the Additional Land to this Declaration in one or more installments. Declarant subjects real property this Declaration by executing a supplemental declaration or an amendment of this Declaration, and recording same in the Real Property Records of Dallas County, Texas. The supplemental declaration or amendment of annexation must include a description of the additional real property or a reference to the recorded plat that describes
y Records of Dallas County, Texas. The supplemental declaration or amendment of annexation must include a description of the additional real property or a reference to the recorded plat that describes the additional real property. If Additional Land is conveyed under color of being subject to the Declaration, before the required supplemental declaration or amendment has been publicly recorded, Declarant may remedy the omission in the public record by recording the instrument required by this Subsection with an effective date that is prior to the date of the first conveyance in the land being annexed. "Under color of being subject to the Declaration” means that a feature of the Property or a combination of circumstances would cause a reasonable person to presume that the property is properly subject to this Declaration. When real property is made subject to this Declaration, it is presumed to be within the jurisdiction of the Association, unless the supplemental declaration or amendment of annexation provides otherwise.
B.3.3. Withdrawal. Until Build-Out, Declarant may withdraw real property from the Property and the effect of this Declaration (1) if the owner of the withdrawn property consents to the withdrawal, and (2) if the withdrawal does not significantly and detrimentally change the overall appearance, character, operation, or use of the Property.
B.3.4. Re-Acquired Interest. If applicable law requires that Declarant own an interest in the Property as a condition of exercising the rights reserved by Declarant in this Declaration, Declarant hereby reserves the right to acquire or re-acquire the required interest.
B.3.5. Neighborhoods. In developing future phases of the Property, Declarant may impose additional or
s Declaration, Declarant hereby reserves the right to acquire or re-acquire the required interest.
B.3.5. Neighborhoods. In developing future phases of the Property, Declarant may impose additional or different restrictions on a "neighborhood," which may be subject to an additional "neighborhood assessment," and which may have exclusive use of "neighborhood common areas." If a portion of the Property were gated, for example, the gated portion could be a "neighborhood" within the Property, with the private street as its "neighborhood common area.”
B.3.6. Utility Easernents. Utilities may include, but are not limited to, water, sewer, trash removal, electricity, gas, telephone, television, cable, internet service, and security. Untii Build-Out, Declarant may grant permits, licenses, and easements over, in, on, under, and through the Property for utilities, roads, and other purposes necessary for the proper development and operation of the Property. Declarant hereby reserves an easement across every utility, drainage, access, or firelane easement shown on a recorded plat (the "platted easements") for the installation, operation maintenance, repair or removal of a utility serving any portion of the Property or the Additional Land, together with a full right of ingress and egress at all times over the burdened lot for the stated purposes, and the right to remove any obstruction that interferes with the use or exercise of the easement. Declarant reserves the right to make changes in and additions to the easements on common areas and vacant lots to more efficiently or economically install utilities or other improvements. To exercise this right on a lot that is not owned by Declarant, Declarant must have the prior
common areas and vacant lots to more efficiently or economically install utilities or other improvements. To exercise this right on a lot that is not owned by Declarant, Declarant must have the prior consent of the lot owner, which may not be unreasonably withheld. Declarant may assign and convey the easements and easement rights reserved by this Section, in whole or in part, to one or more public or private utilities, the Association, a public or quasi-public entity, or any other person.
B.3.7. Utility Contracts. Declarant, in its name or in the name of the Association, may enter into contracts for utility equipment and services for all or portions of the Property, including bulk rate service agreements. Such contract may provide for installation, operation, management, maintenance, and upgrades or modifications to the utility as Declarant determines appropriate. After the Declarant Control Period, Declarant's right to contract for utilities is limited to vacant lots. Until Build-Out, Declarant must approve any contract for utility service to a vacant lot.
B.3.8. Completion. Until Sell-Out, Declarant has (1) the right to complete or make improvements indicated on the plat; (2) the right to seil or lease any lot owned by Declarant; and (3) an easement and right to erect, construct, and maintain on and in the common area, and lots owned or leased by Declarant whatever Declarant determines to be necessary or advisable in connection with the construction, completion, management, maintenance, leasing, and APPENDIX B TO DECLARATION OF CYPRESS COVE Page B-3 DECLARANT'S RIGHTS & RESERVATIONS FOR BUILD-OUT & SELL-OUT
N OF CYPRESS COVE Page B-3 DECLARANT'S RIGHTS & RESERVATIONS FOR BUILD-OUT & SELL-OUT marketing of the Property, including, without limitation, parking areas, temporary buildings, temporary fencing, portable toilets, storage areas, dumpsters, traiters, and commercial vehicles of every type.
B.3.9. Easement to Inspect & Right to Correct. For five years after Build-Out, Declarant reserves for itself and Builders, and their respective architects, engineers, other design professionals, materials manufacturer, and general contractors, the right, but not the duty, to inspect, monitor, test, redesign, correct, relocate, and replace any structure, improvement, material, or condition that may exist on any portion of the Property, including the lots, and a perpetual nonexclusive easement of access throughout the Property to the extent reasonably necessary to exercise this right.
Declarant or Builder, as applicable, will promptly repair, at its sole expense, any damage resulting from the exercise of this right. By way of illustration but not limitation, relocation of a screening wall located on a lot may be warranted by a change of circumstance, imprecise siting of the original wall, or desire to comply more fully with public codes and ordinances. This Section may not be construed to create a duty for Declarant, a Builder, or the Association.
B.3.10. Termination. Declarant may voluntarily and affirmatively terminate the Development Period at any earlier time by signing and acknowledging a notice of voluntary termination that is recorded in the Real Property Records
rant may voluntarily and affirmatively terminate the Development Period at any earlier time by signing and acknowledging a notice of voluntary termination that is recorded in the Real Property Records of Dallas County, Texas. A writing by Declarant may not be construed to be a notice of termination unless that purpose is clearly stated in the writing.
B.4. RIGHTS & RESERVATIONS TO MAKE CHANGES. Until Build-Out, Declarant reserves the following exclusive rights which Declarant may exercise unilaterally from time to time when circumstances warrant.
B.4.1. Changes in Development Plan. Declarant may modify the initial development plan to respond to perceived or actual changes and opportunities in the marketplace. Subject to approval by (1) a public or quasi-public entity, if applicable, and (2) the owner of the land or lots to which the change would directly apply (if other than Declarant), Declarant may (a) change the sizes, dimensions, and configurations of lots and streets; (b} change the minimum or maximum dwelling size; (c) change the building setback requirements; and (d) eliminate or modify any other feature of the Property.
B.4.2. Change of Architectural Styles. Declarant reserves the right to periodically change the types of architectural styles, building materials, and elevations that are eligible for architectural approval.
B.4.3. Change of Construction Specifications. Declarant has the right to establish specifications for the construction of all initial improvements in the Property, to establish different specifications for each category of lots, or for each phase or neighborhood within the Property, and to grant variances or waivers for certain lots, phases, or neighborhoods within the Property.
erent specifications for each category of lots, or for each phase or neighborhood within the Property, and to grant variances or waivers for certain lots, phases, or neighborhoods within the Property.
B.4.4. Change of Community Features. The initial plans for use and development of the Property may change in response to a number of circumstances, influences, and opportunities that may not be apparent or applicable at the inception of the development. An owner who acquires a lot while the Property is being developed is hereby given notice that a common area improvement or community feature that is not installed at the time an owner contracts is subject to change. Representations given to a prospective purchaser about a proposed community feature are based on a development plan that makes assumptions that are subject to change.
Declarant is THE architectural! authority for new homes B.5. ARCHITECTURAL COVENANTS FOR VACANT LOTS. Until Build-Out, Declarant has the absolute unilateral right of architectural control over vacant lots and lots owned by Builders, and is the exclusive Architectural Reviewer for vacant lots and lots owned by Builders. Neither the Association, the board of directors, the ARC, nor any other committee appointed by the Association or board (no matter how the committee is named) may involve itself with the approval of new homes and related improvements on vacant lots.
B.5.1. Declarant's Rights Reserved. Each owner, by accepting an interest in or title to a lot, whether or not it is so expressed in the instrument of conveyance, covenants and agrees that Declarant has a substantial interest in ensuring that the improvements within the Property enhance Declarant's reputation as a community developer and do
ument of conveyance, covenants and agrees that Declarant has a substantial interest in ensuring that the improvements within the Property enhance Declarant's reputation as a community developer and do not impair Declarant's ability to market its property or the ability of Builders to sell homes in the Property. Accordingly, each owner agrees that - during the Development Period - no improvements will be started or progressed on owner's lot without the prior written approval of Declarant, which approval may be granted or withheld at Declarant's sole discretion. In reviewing and acting on an application for approval, Declarant may act solely in its self-interest and owes APPENDIX B TO DECLARATION OF CYPRESS COVE Page B-4 DECLARANT'S RIGHTS & RESERVATIONS FOR BUILD-OUT & SELL-OUT no duty to any other person or any organization. Declarant may designate one or more persons from time to time to act on its behalf in reviewing and responding to applications.
B.5.2. Delegation by Declarant. Declarant may from time to time, but is not obligated to, detegate all or a portion of its rights and authority as Architectural Reviewer, subject to the unilateral rights of Declarant (1) to revoke such delegation at any time and reassume jurisdiction over the matters previously delegated and (2) to veto any decision which Declarant in its sole discretion determines to be inappropriate or inadvisable for any reason.
B.5.3. Improvements by Declarant. Notwithstanding anything to the contrary in this Declaration or the Specifications SourceBook, any improvement to a vacant lot made by Declarant or an affiliate of Declarant is deemed
ts by Declarant. Notwithstanding anything to the contrary in this Declaration or the Specifications SourceBook, any improvement to a vacant lot made by Declarant or an affiliate of Declarant is deemed to have been approved by the Architectural Reviewer. If the improvement is of a nature that would require a variance or waiver by the Architectural Reviewer, such variance or waiver is deemed to have been granted.
B.5.4. Improvements by Builder. Without the Architectural Reviewer's prior written approval, a Builder or other person may not construct a dwelling or any appurtenant improvement on a vacant lot. An application to the Architectural Reviewer will follow the same procedures and adhere to the same time frames as required by the Declaration for submissions to the ARC for modifications on improved lots, which procedures are hereby incorporated by reference. The Architectural Reviewer has the right but not the duty to evaluate every aspect of construction, landscaping, and property use that may adversely affect the general value or appearance of the Property. Without the Architectural Reviewer's prior written approval for a variance, improvements to a vacant lot must have the characteristics described in construction and landscape specifications provided by Declarant or, otherwise, the Specifications SourceBook.
B.5.5. Approval of Builder Plans. If a Builder intends to construct a number of pre-designed homes in a phase of the Property, the Builder may submit the set of house plans and elevations to Declarant for approval by Declarant.
Such plans may be submitted and approved prior to Builder's purchase of lots in the Property. House plans and elevations that are pre-approved by Declarant for use by Builder in a particular phase of the Property may be constructed
approved prior to Builder's purchase of lots in the Property. House plans and elevations that are pre-approved by Declarant for use by Builder in a particular phase of the Property may be constructed by Builder without re-submitting plans on a lot by lot basis as the houses are constructed, unless the actual house plan or elevation deviates substantially from the pre-approved plan and elevation. Examples of substantial deviation include (1) reversing a garage from rear entry to front entry, (2) reducing the size of the dwelling by more than 15 percent, (3) reducing the amount of masonry exterior material by more than 15 percent, (4) changing the style of the front elevation, such as from Cape Cod to Spanish, and (5) replacing a garage with a porte cochere. Builder must apply to Declarant for approval of any substantial modifications or variations from or additions to the pre-approved plans for the Property, as well as the plot plan for each house.
B.6. GOVERNING DOCUMENTS RIGHTS & RESERVATIONS.
B.6.1. Adoption. Throughout the Declarant Control Period, Declarant may adopt one or more Governing Documents for the Property and for the benefit of the Association, either in its capacity as Declarant, or in the name of the Association. The exercise of this right by Declarant may not be construed as an act or decision of the board.
8.6.2. Amendment. Until Build-Out, Declarant may amend and/or restate this Declaration and every other Governing Document, unilaterally, for any purpose. In addition to exercising this right on its own initiative, Declarant may exercise this right at the request of the Association to address a concern of the membership. For illustration only, the following are examples of some of the purposes for which Declarant may amend the Governing Documents:
the request of the Association to address a concern of the membership. For illustration only, the following are examples of some of the purposes for which Declarant may amend the Governing Documents: (1) To add real property to the Property.
(2) To withdraw real property from the Property.
(3) To create lots, easements, and common areas within the Property.
(4) To subdivide, combine, or reconfigure lots.
(5) To convert [ots into common areas, and common areas into lots.
(6) To change the maximum number of lots that may be made subject to this Declaration.
(7) To allocate the use of certain common areas to specified lots as limited common areas.
(8) To modify - even to increase - Declarant's rights and reservations.
(9) To change any aspect of the Specifications SourceBook.
(10) To change the designation of Highly-Visible Lots or any other aspect of Appendix D.
(11) To merge the Association with another property owners association.
(12) To conform to applicable jaw.
(13) To resolve conflicts, clarify ambiguities, and to correct misstatements, errors, or omissions.
(14) To qualify the Property or the Association for mortgage underwriting, tax exemption, insurance coverage, and any public or quasi-public program or benefit.
eee APPENDIX B TO DECLARATION OF CYPRESS COVE Page 8-5 DECLARANT'S RIGHTS & RESERVATIONS FOR BUILD-OUT & SELL-OUT (15) To enable a reputable company to issue title insurance coverage on the lots.
(16) To change the name or entity of Declarant.
(17) To change the name of the addition in which the Property is located.
(18) To change the name of the Association.
(19} For any other purpose.
Declarant can amend Governing Documents UNILATERALLY.
(17) To change the name of the addition in which the Property is located.
(18) To change the name of the Association.
(19} For any other purpose.
Declarant can amend Governing Documents UNILATERALLY.
B.7. MARKETING RIGHTS & RESERVATIONS. Declarant reserves the following rights, reservations, and easements, exercisable at Declarant's sole discretion, from time to time, and at any time prior to Sell-Out.
B.7.1. Promotion. Until Sell-Out, Declarant reserves for itself an easement and right to place or install signs, banners, flags, display lighting, potted plants, exterior decorative items, seasonal decorations, temporary window treatments, and seasonal landscaping on the Property, including items and locations that are prohibited to other owners and residents, for purposes of promoting, identifying, and marketing the Property and/or Declarant's houses, lots, developments, or other products located outside the Property. Declarant reserves an easement and right to maintain, relocate, replace, or remove the same from time to time within the Property. Declarant also reserves the right to sponsor marketing events - such as open houses, MLS tours, and brokers parties - at the Property to promote the sale of lots.
During the Development Period, Declarant also reserves (1) the right to permit Builders to place signs and promotional materials on the Property and (2) the right to exempt Builders from the sign restriction in this Declaration.
B.7.2. Offices. Until Sell-Out, Declarant reserves for itself the right to use dwellings owned or leased by Declarant as models, storage areas, and offices for the marketing, management, maintenance, customer service, construction, and leasing of the Property and/or Declarant's developments or other products located outside the Property.
eas, and offices for the marketing, management, maintenance, customer service, construction, and leasing of the Property and/or Declarant's developments or other products located outside the Property.
Also, Declarant reserves for itself the easement and right to make structurai changes and alterations on and to lots and dwellings used by Declarant as modeis, storage areas, and offices, as may be necessary to adapt them to the uses permitted herein.
B.7.3. Access. Until Sell-Out, Declarant has an easement and right of ingress and egress in and through the Property for purposes of constructing, maintaining, managing, and marketing the Property and the Additional Land, and for discharging Declarant’s obligations under this Declaration. Declarant also has the right to provide a reasonable means of access for the homebuying public through any existing or future gate that restricts vehicular access to the Property or to the Additional Land in connection with the active marketing of lots and homes by Declarant or Builders, including the right to require that the gate be kept open during certain hours and/or on certain days. This provision may not be construed as an obfigation or intent to gate the Property.
B.7.4. Marketing Other Locations. This Declaration grants to Declarant a number of significant rights to market the Property. Declarant hereby reserves for itself and its affiliates the right to use each and every such right and privilege for the additional purposes of promoting, identifying, and marketing off-site developments of Declarant or its affiliates. After Sel!-Out, if Declarant desires to use or to authorize the use of one or more model homes in the Property
omoting, identifying, and marketing off-site developments of Declarant or its affiliates. After Sel!-Out, if Declarant desires to use or to authorize the use of one or more model homes in the Property to market homes to be built in other locations, After Sell-Out, if Declarant desires to use or to authorize the use of one or more model homes in the Property to market homes to be built in other locations, Declarant may do so for up to 24 months after Sell-Out. This Subsection survives Sell-Out.
DIFFERENT RULES Declarant and Builders (if any) have rights and privileges to use the property in ways that are not available to other owners and residents.
B.7.5. Model Home Notice. In connection with its development and marketing of the Property, Declarant may create or authorize one or more marketing centers in the Property, with homes that serve as models of what may be constructed in the Property. The designation of a lot or lots as models is entirely within the discretion of Declarant. The use of a model home does not require that the model be reproduced in the Property. The sizes, styles, appearances, materials, and construction specifications of model homes may differ significantly from other homes in the immediate vicinity. A model may be approved for construction in one part of the Property, although it markets homes in other parts of the Property. A model home may be substantially remodeled from time to time, or may be replaced by a different home on the same lot. All exterior aspects of a model home are deemed to have been approved by the Architectural Reviewer, with variances if necessary to allow the home to remain in a portion of the Property with different construction APPENDIX B TO DECLARATION OF CYPRESS COVE Page B-6
roved by the Architectural Reviewer, with variances if necessary to allow the home to remain in a portion of the Property with different construction APPENDIX B TO DECLARATION OF CYPRESS COVE Page B-6 DECLARANT'S RIGHTS & RESERVATIONS FOR BUILD-OUT & SELL-OUT specifications. Neither the Association nor the ARC may enact rules, guidelines, or specifications that - by intent or effect - are disproportionally adverse to the homes that are or have been used as models. This Section may not be amended without the prior written consent of Declarant and the owner of any model home lot that would be affected by the amendment.
B.8. RELATIONSHIP WITH BUILDERS. Declarant, in its own name or through its affiliates, intends to construct dwellings on the fots in connection with the sale of the lots. However, Declarant may, without notice, sell some or ail of the lots to one or more Builders to improve the lots with dwellings to be sold and occupied. This Section applies in the event Declarant sells lots to Builders. Until Sell-Out, Declarant may authorize Builders to exercise any or all of the promotional rights, reservations, and easements that Declarant reserves for itself in this Declaration. Without the prior written approval of Declarant, a Builder may not market its off-site products from its offices, models, or signs in the Property.
Declarant plays an important role in the life of Cypress Cove until Sell-Out.
B.9. SUCCESSOR DECLARANT. One role of Declarant may be to buffer the process of building-out and marketing the Property from the possible desire of the Association and homeowners to impose their views on Build-Out and Sell-Out. The
ole of Declarant may be to buffer the process of building-out and marketing the Property from the possible desire of the Association and homeowners to impose their views on Build-Out and Sell-Out. The intent of this Section is for the role of "Declarant" to be extant through Build-Out until Sell-Out, whether or not Declarant is the builder and seller of new homes in the Property, whether or not Declarant owns a lot or Additional Land. The rights, reservations, and roles of Declarant under this Declaration may be transferred, in whole or in part, pursuant to this Section.
B.9.1. Voluntary Designation. Declarant may designate one or more Co-Declarants or Successor Declarants for specified designated purposes (such as architectural control over new homes) and/or for specified portions of the Property, or for all purposes and all of the Property. To be effective, the designation must be in writing, signed and acknowledged by Declarant and by the Co- or Successor Declarant, and recorded in the Real Property Records of Datlas County, Texas. The designation instrument may subject the Co- or Successor Declarant to limitations and restrictions.
B.9.2. Involuntary Designation. A person who acquires substantially alt of Declarant’s interest in the Property by an involuntary method, such as court order, deed in lieu of foreclosure, foreclosure, or bankruptcy proceeding, may but is not required to - designate itself, or its successor or assign, as Declarant for all purposes, or for specified purposes (such as architectural controt over new homes). To be effective, the designation must be in a writing that (1) describes the involuntary circumstance, (2) is signed and acknowledged by the designee, and by the designator, if any, and (3)
ew homes). To be effective, the designation must be in a writing that (1) describes the involuntary circumstance, (2) is signed and acknowledged by the designee, and by the designator, if any, and (3) is recorded in the Real Property Records of Dallas County, Texas. This Subsection is not invalidated by temporary interim ownership of the Property, such as by a trustee, beneficiary, or executor.
B.9,3. Presumption. The rights, reservations, and responsibilities of Declarant may not be informally acquired or transferred. A Co- or Successor Declarant has the burden of proving its authority with appropriate pubticly recorded documentation. The legal role of Declarant may not be presumed from events, circumstances, or the informal use of the "Declarant" title. Mere ownership of all or portions of the Property does not bestow the rank of Declarant.
B.9.4. Subsequent Designations. Unless the designation of Successor Declarant provides otherwise, a Successor Declarant has the rights of Declarant under this Section and may designate further Successor Declarants.
B.9.5. Reinstated Role. If by act or omission the role of Declarant appears to have been abandoned, abdicated, vacated, or refuted, the following procedures may be used to reinstate the role of Declarant. Any Builder or owner of a vacant lot or unimproved jand in the Property or (if any) Additional Land may call a meeting of alt Builders and all owners of vacant lots or unimproved land in the Property and Additional Land, if any, for the purpose of adopting a plan to fill the role of Declarant. The plan may provide for (1) the appointment of one or more persons to fill the role of Declarant to shepherd the Property through Expansion (if applicable), Build-Out, and Sell-Out, (2) the hiring of one
plan may provide for (1) the appointment of one or more persons to fill the role of Declarant to shepherd the Property through Expansion (if applicable), Build-Out, and Sell-Out, (2) the hiring of one or more consultants to fill the role of Declarant, or (3) a petition to a court to appoint one or more persons to serve as Declarant. Written notice of the proposed plan must be given to every person or entity who has been previously designated as Declarant in a publicly recorded document affecting the Property. If within a reasonable period of time no previous Declarant asserts its status as then-Declarant, the owners of two-thirds (by acreage) of the vacant lots or unimproved land in the Property and (if any) Additional Land may sign and acknowledge an instrument that (1) describes the circumstances and plan for reinstating the role of Declarant, (2) references the Declaration to which the vacant lots or unimproved land are subject, (3) describes with specificity the vacant lots or unimproved land in the Property and (if any) Additional Land, (4) is signed and acknowledged by each person or entity that accepts appointment to the role of Declarant, and (5) provides contact information for the appointed Declarant. A copy of the recorded instrument must be delivered to the Association.
APPENDIX B TO DECLARATION OF CYPRESS COVE Page B-7 DECLARANT'S RIGHTS & RESERVATIONS FOR BUILD-OUT & SELL-OUT B.9.6. Association as Declarant. This Section may not be construed to prevent Declarant from voluntarily designating the Association as a Successor Declarant. Absent a voluntary designation by Declarant, in the form of publicly
rant. This Section may not be construed to prevent Declarant from voluntarily designating the Association as a Successor Declarant. Absent a voluntary designation by Declarant, in the form of publicly recorded designation executed by Declarant and an officer of the Association, the Association has no basis, authority, or right to be or perform as a successor Declarant.
B.10. COMMON AREAS. Before Build-Out, title to the common areas will be conveyed to the Association or, if appropriate, to a public or quasi-public entity, by one or more deeds - with or without warranty of title, and with or without warranty of improvements. At the time of conveyance to the Association, the common areas will be free of encumbrance, except for unpaid or accruing property taxes which are a common expense of the Association. Declarant’s conveyance of title is a ministerial task that does not require and is not subject to acceptance by the Association or the owners. The transfer of control of the Association at the end of the Declarant Control Period is not a transfer of common areas requiring inspection, evaluation, acceptance, or approval of common area improvements by the owners.
B.11. PARDON OUR DUST. A person who occupies a home during Build-Out is living in a construction site that may experience periodic and temporary inconveniences during the Build-Out and Setl-Out of the Property. Declarant - for itself and the Builders - apologizes in advance for these disturbances, many of which cannot be avoided. The sooner the construction work is completed, the sooner residents will be able to enjoy the community of which they are a part. Declarant hopes BuildOut occurs swiftly and with minimal disruption of residents’ lives and households. Declarant thanks residents in advance for
ble to enjoy the community of which they are a part. Declarant hopes BuildOut occurs swiftly and with minimal disruption of residents’ lives and households. Declarant thanks residents in advance for their patience and tolerance of what may be a relatively short but challenging period for the Cypress Cove community.
(End of Appendix B) APPENDIX B TO DECLARATION OF CYPRESS COVE Page B-8 DECLARANT’S RIGHTS & RESERVATIONS FOR BUILD-OUT & SELL-OUT APPENDIX C TO DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS FOR CYPRESS COVE DECLARANT'S RIGHTS & RESERVATIONS FOR ASSOCIATION GOVERNANCE Ci. GENERAL PROVISIONS.
C.1.1. Introduction. Declarant intends the Declaration to be perpetual and understands that provisions that are warranted for Declarant's control of the Association's governing and budgetary functions will eventually become obsolete. As a courtesy to future users of the Declaration, who may be frustrated by then-obsolete terms, most of the provisions relating to Declarant's role, rights, and responsibilities towards the Association and governance of the Property are compiled in this Appendix.
C.1.2. Superiority. The terms and provisions of this Appendix are superior to the terms and provisions of the Bylaws, the Articles, and the main body of the Declaration. Except for a few provisions which expressly survive Sell-Out, most of the terms and provisions of this Appendix will cease to apply to the Property upon Sel!-Out.
C.1.3. General Reservation & Construction. Declarant hereby reserves exclusively unto itself and its successors, assigns, and designees, the rights and reservations contained in this Appendix. No other provision in a
eservation & Construction. Declarant hereby reserves exclusively unto itself and its successors, assigns, and designees, the rights and reservations contained in this Appendix. No other provision in a Governing Document may be construed to prevent or interfere with Declarant's exercise of its rights and reservations.
Nor many any mortgagee, other owner, or the Association, prevent or interfere with Declarant's exercise of its rights and reservations. The terms and provisions of this Appendix must be construed liberally to give effect to Declarant’s intent to control the governing and budgetary functions of the Association for the maximum period of time permitted by applicable law, which is ultimately for the benefit and protection of homeowners and mortgagees, as well as to protect the interests and investments of Declarant and Builders (if any), and Declarant's reputation as a community developer.
C.1.4. Ownership Not Required. This Appendix intends for Declarant's rights and reservations to be extant until certain statuses are attained, whether or not Declarant owns any part of the Property. In other words, Declarant need not be an owner to exercise the rights and reservations of Declarant. If the laws of Texas are amended or interpreted retroactively to predicate Declarant's rights on an interest in real property subject to the Declaration, Declarant hereby reserves the right to acquire or re-acquire a lot, or to annex additional real property in order to satisfy the requirement.
C.1.5. Statutory Reservation. Declarant hereby reserves for itself each and every right, reservation, privilege, and exception available or permissible under applicable law for declarants and developers of residential subdivisions, if
arant hereby reserves for itself each and every right, reservation, privilege, and exception available or permissible under applicable law for declarants and developers of residential subdivisions, if and to the full extent that such right, privilege, or exception is beneficial to or protective of Declarant or Builders. If the benefit or protection of applicable law is predicated on an express provision being in this Declaration or other Governing Document, such provision is hereby incorporated by reference unless Declarant executes an instrument to disavow such benefit or protection.
C.1.6. Amendment. An amendment, restatement, supplement, or termination of this Appendix or any of its provisions is void and unenforceable without Declarant's prior written approval of the instrument, as evidenced by Declarant's acknowledged signature on the instrument that is publicly recorded.
C.2. DEFINITIONS. Words and phrases defined in Article t of the Declaration and in Appendix B have the same meanings when used in this Appendix. As used in this Appendix and elsewhere in the Governing Documents, the following words and phrases have the following specified meanings, subject to Declarant's right to amend or supplement this Section: C.2.1. "Declarant Control Period" means that period of time during which Declarant has the right to control the operation and management of the Association by appointing officers and directors of the Association, pursuant to the rights and reservations contained in this Appendix, to the full extent permitted by applicable law. If applicable law requires a stated term, the Declarant Control Period runs continuously from the date this Declaration is recorded until
this Appendix, to the full extent permitted by applicable law. If applicable law requires a stated term, the Declarant Control Period runs continuously from the date this Declaration is recorded until the earlier of the following events: (1) 15 years after the date on which this Declaration is publicly recorded, and (2) 120 days after 90 percent of the lots that may be created (included property subject to annexation) have been improved with dwellings and conveyed to owners other than Builders or Dectarant (also referred to as "at 90 percent of Build-Out and Sell-Out"). To the fullest extent possible, the term "Declarant Control Period” as defined by this Declaration will be given effect for the purposes of this Declaration and the other Governing Documents. In event of conflict between this definition and a subsequently enacted statutory definition of "Declarent Control Period,” the statutory definition controls for the limited purpose of compliance with the applicable statute.
APPENDIX C TO DECLARATION OF CYPRESS COVE Page C-1 DECLARANT'S RIGHTS & RESERVATIONS FOR ASSOCIATION GOVERNANCE © 2011. Sharon Reuler, P.C. All Rights Reserved. UAU?-2021 docs CCRs-Originad Cypress Cove xi paeiih07i3 nim6y10/19 C.2.2. "Shortfall" is used in this Appendix with the following terms and meanings.”Actual Shortfall” is the difference between actual and available cash in the Association's operating account having been contributed by owners other than Declarant, and the Association's actual cash outlays for operating expenses, whether budgeted or not.
"Expected Shortfall” is the difference between the Association’s actual cash outlays for budgeted operating expenses and the assessments payable - collectively - by owners other than Declarant, as if all of those owners paid their
fference between the Association’s actual cash outlays for budgeted operating expenses and the assessments payable - collectively - by owners other than Declarant, as if all of those owners paid their assessments in full and on time. “Shortfall Loan” is money paid by Declarant to the Association or for the Association's benefit to fund some or all of the difference between the actual shortfall and the expected shortfall.
C.3. CLASSES OF MEMBERS. From the date this Declaration is recorded through Sell-Out, the Association may have as many as three classes of members - Homeowner Class, Homebuilder Class, and Declarant Class, as described below. Each class exists to the extent it has qualified members. On the date this Declaration is recorded, there is one class of members Declarant Class - which continues to exist until Sell-Out. On the date of recording the first improved lot deed to an owner, the Homeowner Class comes into existence. If a Builder acquires a vacant lot, the date of recording the first vacant lot deed to a Builder establishes the Homebuilder Class. Each fot has only one membership and one class of membership at a time. Except for the Declarant Class, membership is automatic, mandatory, appurtenant to ownership of a lot, and terminates when the member is divested of his ownership interest in the lot to which it is tied and from which it may not be separated. If a lot is owned by more than one person, the co-owners share the membership and decide for themselves how it will be exercised. The board may require satisfactory evidence of transfer of ownership before a purported owner is recognized by the Association as a member. One purpose of the membership classes is to allow (but not require) Declarant to maintain membership in the
transfer of ownership before a purported owner is recognized by the Association as a member. One purpose of the membership classes is to allow (but not require) Declarant to maintain membership in the Association unti! Sell-Out, even during periods when Declarant does not own property subject to this Declaration. References to "members of the Association" in the Governing Documents and applicable law apply to Association members in each class.
C.3.1. Homeowner Class. A lot owner who is not a member of another class is a Homeowner Class member of the Association, ownership of a lot being the sole qualification for membership.
C.3.2. Homebuilder Class. Homebuilder Class members consist of owners (other than Declarant and its affiliates) who are Builders, owners of unplatted or unimproved land in the Property, and owners of lots with never-occupied dwellings that are being offered for sale or lease. If this dass has members at Sell-Out, such as a Builder who occupies a house or who owns a house that is occupied, the Homebuilder Class membership automatically converts to Homeowner Class membership at Sell-Out. Declarant and its affiliates are not members of the Builder Class. During any period when no owner qualifies as a Builder, as defined above, the Homebuilder Class does not exist.
C.3.3. Declarant Class. Declarant Class members of the Association are (1) Declarant, whether or not Declarant owns land in the Property or Additional Land, and (2) any affiliate of Declarant who owns land in the Property or Additional Land. If there are co-Declarants, each co-Declarant is a member of the Declarant Class, The Declarant Class member enjoys the same membership rights as the Homeowner and Homebuilder Class members, except that
there are co-Declarants, each co-Declarant is a member of the Declarant Class, The Declarant Class member enjoys the same membership rights as the Homeowner and Homebuilder Class members, except that Declarant's membership does not require ownership of a lot. If a Declarant Class member owns property subject to the Declaration, the member may cast votes for any fot it owns. If a Declarant Class member owns an occupied house at Sell-Out, the membership automatically converts to Homeowner Class membership for any lot with an occupied house owned by a Declarant Class member.
Declarant is a voting member - with or without a lot.
C.4. VOTING. This Section pertains to voting by owners and members of the Association between the date this Declaration is recorded and Sell-Out. The vote appurtenant to each lot is indivisible. Cumulative voting is not allowed.
C.4.1. Number of Lots for Voting Purposes. If the Property contains unplatted tracts of land, each fifteenth of an acre is treated as a lot for voting purposes. When unplatted tracts are platted, the number of voting lots will be automatically adjusted by the number of platted lots. Until a plat is recorded, the number of voting lots may be based on the most recent preliminary plat or unrecorded final plat. If additional property is made subject to this Declaration, the number of voting lots will be increased automatically by the number of additional jots. If the number of lots in the Property changes with final platting or replatting, the number of voting lots will be adjusted accordingly.
C.4.2. Number or Weight of Votes Per Lot. At Sell-Out, each tot will have one vote, and ail votes will be uniform in weight. Prior to Sell-Out, the voting power of each lot is determined by its owner's membership class. For
of Votes Per Lot. At Sell-Out, each tot will have one vote, and ail votes will be uniform in weight. Prior to Sell-Out, the voting power of each lot is determined by its owner's membership class. For each lot owned by a Homeowner Class member, the vote is counted once, as one vote per lot with a weight of one. For each lot owned by a Homebuilder Class member prior to Sell-Out, the vote is counted twice or is tallied as two votes per lot, or is weighted twice that of a Homeowner Class member's vote. For each lot owned by a Declarant Class member nO ee APPENDIX C TO DECLARATION OF CYPRESS COVE Page C-2 DECLARANT'S RIGHTS & RESERVATIONS FOR ASSOCIATION GOVERNANCE prior to Sell-Out, the vote is counted thrice or is tallied as three votes per lot, or is weighted three times that of a Homeowner Class member's vote.
C.4.3. Tailying Votes. Prior to Sell-Out, if applicable law or a Governing Document requires consent by a percentage or share of owners, members, or total votes, the percentage or share will be determined by the percentage of share of total number or weights of votes based on membership class.
C.4.4. Declarant Class Member. The Declarant Class membership is a voting membership, even if the Declarant Class member does not own a lot in the Property. Prior to Sell-Out, during any period in which no lot is owned by the Declarant Class member, the Declarant Class member may cast one vote, the weight of which is one.
cS. BOARD CONTROL RIGHTS & RESERVATIONS. Declarant hereby reserves the Declarant Control Period by which Declarant may unilaterally appoint, remove, and replace officers and directors of the Association, subject to the following
ESERVATIONS. Declarant hereby reserves the Declarant Control Period by which Declarant may unilaterally appoint, remove, and replace officers and directors of the Association, subject to the following conditions and provisions. Declarant's reservation and right to control the Association by appointing officers and directors is independent of Declarant’s reservations and rights to control the development, expansion, Build-Out, and Sell-Out of the Property.
C.5.1. Duration. The duration of the Declarant Control Period will be from the date this Declaration is recorded until four months after 95 percent of the lots that may be created in the Property and on the Additional Land have been improved with homes and conveyed to owners other than Builders. No act, statement, or omission by the Association may effect termination of the Declarant Control Period earlier than the term stated in this Section. Declarant, however, may terminate the Declarant Control Period at any earlier time by signing and acknowledging a notice of votuntary termination that is recorded in the Real Property Records of Dallas County, Texas.
C.5.2. Independent Reservation. Notwithstanding badly written applicable laws that link a declarant's control of real property development with its control of the governing body, Declarant and this Declaration recognize the independence of those realms and functions. Declarant may terminate its reserved right to appoint officers and directors of the Association without affecting any of Declarant's other rights and reservations under this Declaration or applicable law.
C.5.3. Number of Lots. To satisfy a requirement of applicable law that the Declaration state the maximum
ting any of Declarant's other rights and reservations under this Declaration or applicable law.
C.5.3. Number of Lots. To satisfy a requirement of applicable law that the Declaration state the maximum number of lots that may be created and made subject to the Declaration, Declarant hereby states that number as 400, and reserves the right to increase or reduce that number by amendment of this Declaration.
C.5.4. Officers & Directors. During the Declarant Control Period, the Board may consist of 3 persons, or any larger number chosen by Dectarant. During the Declarant Control Period, Declarant may appoint, remove, and replace any officer or director of the Association, none of whom need be members or owners, and each of whom is indemnified by the Association as a "Leader," subject to the following limitation, To the extent required by applicable law [TX Prop Code Sec, 209.00591], within 120 days after the conveyance of 75 percent of the lots that may be created (including property subject to annexation, if any), at least one-third of the board must be elected by owners other than Declarant.
Declarant construes the applicable law as only applying to improved lots that have been conveyed to owners other than Builders, and not applying to vacant lots conveyed to Builders or to affiliates of Declarant. However, because the statute does not so state, Declarant will exercise the votes of Builders, if any. Declarant's unilateral right to remove and replace officers and directors applies only to Declarant's appointees.
Declarant appoints HOA leaders until almost all the homes are built and sold.
C.6. ASSOCIATION GOVERNANCE.
C.6.1. Annual Meetings. During the Declarant Control Period, the board may use its discretion in setting the
nts HOA leaders until almost all the homes are built and sold.
C.6. ASSOCIATION GOVERNANCE.
C.6.1. Annual Meetings. During the Declarant Control Period, the board may use its discretion in setting the agenda for meetings of the Association, and is not bound by the order of business stated in the Bylaws. Annual meetings during the Declarant Control Period may be informationai only. If the Association gives notice of one meeting of members during the year, the meeting will be deemed to be the annual meeting of the Association whether or not it is so designated in the notice.
C.6.2. Board Meetings. During the Declarant Control Period, to the extent not prohibited by applicable law, meetings of the board of directors are permitted but not required. The Bylaws provision that requires periodic board meetings becomes effective when the Declarant Control Period ends.
a nor APPENDIX C TO DECLARATION OF CYPRESS COVE Page C-3 DECLARANT'S RIGHTS & RESERVATIONS FOR ASSOCIATION GOVERNANCE C.6.3. Bylaws. During the Declarant Control Period, the board may use its discretion in applying the provisions aspirational, and within the sole discretion of the board, to the extent permitted or not prohibited by applicable law.
C.6.4. Power of Attorney or Proxy. In connection with its sale of lots to Builders, Declarant may obtain a specific power of attorney and/or a general appointment of proxy to exercise the voting rights of owners who are members of the Builder Class in order to retain Declarant's reserved right to control the appointment of all officers and
a general appointment of proxy to exercise the voting rights of owners who are members of the Builder Class in order to retain Declarant's reserved right to control the appointment of all officers and directors of the Association for the maximum period permitted by applicable law.
C.6.5. Transition Meeting. Within 120 days after the end of the Declarant Control Period, or sooner at the Declarant's option, Declarant will call a special meeting of the members of the Association for the purpose of transitioning control of the Association's governance. At the transition meeting, the owners will elect directors to the board. Written notice of the transition meeting must be given to an owner of each lot at least 10 days before the meeting. For the transition meeting, owners present in person or by proxy constitute a quorum. Regardless of the timing specified in the Bylaws for the annual meeting, in the year of the transition meeting, the annual meeting may be scheduled to coincide with the transition meeting to avoid the cost of conducting two membership meetings in a one year period.
C.6.6. Notice and Quorum. During the Declarant Control Period, notice of each Association meeting must be given to Declarant, whether or not Declarant owns a jot in the Property. The presence of Declarant, in person or by proxy, is required to attain a quorum for any meeting of the Association during the Declarant Control Period. Declarant may waive this requirement in writing on a meeting-by-meeting basis. However, Declarant's waiver may not be assumed, deemed, or construed from circumstances, omissions, or verbal statements. A meeting of the Association called during the Declarant Control Period is not valid without Declarant’s presence or a written waiver signed by
ued from circumstances, omissions, or verbal statements. A meeting of the Association called during the Declarant Control Period is not valid without Declarant’s presence or a written waiver signed by Declarant prior to the start of the meeting.
C7, VETO OVER CERTAIN BOARD DECISIONS. Certain decisions by the board, such as choice of management and adoption of an annual budget, may affect the appearance and condition of the Property, the quality of life for residents, the costs of home acquisition and ownership, and marketability of homes in the Property. For itself and Builders, Declarant may have a vested interest in the way the Property is maintained and the Association managed until Sell-Out. Between the end of the Declarant Control Period and Sell-Out, as long as Declarant makes a financial contribution of any kind to the Association, even in the form of in-kind services, Declarant has the continuing unilateral right to veto decisions by the board which Declarant has reason to believe will adversely impact the Build-Out or Sell-Out of the Property. This Section applies even if Declarant voluntarily terminates control of the Association earlier than the maximum period of Declarant control. The Association may not evade the effect of this Section by refusing to accept money or other types of contributions from Declarant.
C8. DECLARANT AS EX-OFFICIO BOARD MEMBER. Declarant hereby reserves the right to serve on the board in an ex-officio capacity when the Declarant Control Period ends, for the remainder of the Declarant Class membership. Only Declarant may appoint the person who serves as the ex-officio director, with full power to remove and replace the appointee, who serves
ends, for the remainder of the Declarant Class membership. Only Declarant may appoint the person who serves as the ex-officio director, with full power to remove and replace the appointee, who serves at the pleasure of Declarant. As an ex-officio member of the board, Declarant has the same rights and privileges as do all other directors, including the right to vote. As an ex-officio director, Declarant is not subject to recall, removal, or term limits.
C9. ADVISORY & ARCHITECTURAL COMMITTEES. During the Declarant Control Period, the board may appoint any number of committees pursuant to the authority and procedures stated in the Bylaws. This Section pertains to two committees that may be of particular interest during the Declarant Control Period. Although committee appointments are made by the board, the board may invite nominations from owners, or may provide owners with a straw poll opportunity to recommend candidates.
C.9.4. Advisory Committees. During the Declarant Controi Period, the board may appoint one or more committees comprised of owners or residents to assist the board in an advisory capacity by contributing the perspectives of residents and owners. The committee may be referred to as an “advisory committee," "advisory board,” “shadow board," or by any other name that is commonly used by property owners associations. The board may adopt a policy of delegating to the Association's manager the responsibility for appointing and working with such committees, The policy may provide that all duties of the board under the Bylaws article titled "Committees" will be construed to mean "the board or the manager pursuant to a policy adopted by the board.”
C.9.2. Architectural Review Committee. During the Declarant Control Period, the board appoints the ARC,
will be construed to mean "the board or the manager pursuant to a policy adopted by the board.”
C.9.2. Architectural Review Committee. During the Declarant Control Period, the board appoints the ARC, which may consist of (1) Declarant only as a "committee of one," (2) principals or employees of Declarant, (3) independent design professionals, such as architects and engineers, (4) one or more Builders, (5) owners appointed by Declarant, (6) owners recommended by owners other than Dectarant, or (7) any combination of the forgoing. At all times, the chair and members of the ARC serve at the pleasure of the board, which may remove and replace appointees.
a APPENDIX C TO DECLARATION OF CYPRESS COVE Page C-4 DECLARANT'S RIGHTS & RESERVATIONS FOR ASSOCIATION GOVERNANCE Declarant may, from time to time, and solely at Deciarant's discretion, appoint an ARC comprised solely of owners other than Declarant and Builders. Decisions by the ARC are at all times subject to review and veto by the board. The ARC has no authority over vacant lots and no authority over lots owned by Declarant or Builders. No authority granted to improvements on vacant lots.
C.10. FINANCIAL RIGHTS & RESERVATIONS. Declarant hereby reserves the following financia! rights, reservations, and duties regarding the Association's budget and financial functions, The financial rights, reservations, and duties are independent of Deciarant's reservation and right to control the appointment of officers and directors, and Declarant's reservation
nancial functions, The financial rights, reservations, and duties are independent of Deciarant's reservation and right to control the appointment of officers and directors, and Declarant's reservation and right to control the development, build-out, and sell-out of improvements in the Property.
During Build-Out, the HOA's budget may be based on projections and assumptions that may or may not be realized. So, rates of assessment may change during and after Build-Out.
C.10.1. Annual Budget. Before the first lot closing to an owner other than a Builder, Declarant or the Declarant-appointed board will approve an estimated projected annual budget for the Association on which regular assessments are based. From time to time during the Declarant Control Period, as Declarant deems appropriate, Declarant may unilaterally revise and republish the Association's annual operating budget and the corresponding rate of assessment for the lots. Such a budget adopted by Declarant for the Association does not require approval by the board. Alternately, assessment and budget changes may be adopted by the board.
C.10.1.1. Purposes. During the Declarant Control Period, the annual budget has three primary purposes. First, to inform homebuyers about the types and relative sizes of expenses that the Association may be expected to incur in the future when their community is Built-Out, Sold-Out, and they control their Association. Second, to yield a rate of assessment that is more affordable for the initial homebuyers than if the Association's expenses were divided among only owners of completed homes prior to Build-Out. Third, to serve as a budget snapshot that can be used in the home marketing program for a relatively long period of time during the community's development.
ners of completed homes prior to Build-Out. Third, to serve as a budget snapshot that can be used in the home marketing program for a relatively long period of time during the community's development.
C.10.1.2. No Warranty. For itself and the Association, Declarant hereby disclaims and disavows any warranty or representation that may be attributed to the annual budget adopted during the Declarant Control Period. The annual budget is not a warranty or representation by Declarant or by the Association that the types of budgeted expenses or their relative sizes are accurate or complete. Nor is it a warranty or representation that the Property or the Association will achieve the budget’s assumptions. Nor is it a warranty or representation by Declarant or the Association that the Association will annually incur or fund every category of expense that is shown on the budget, or that the relative size of an expense category will be achieved. Neither the Association nor any owner has a right or expectation of being reimbursed by Declarant or by the Association for a budgeted line item that is not realized, or that is not realized at the projected level.
C.10.1.3. Assumptions. The annual budget may be based on any number of assumptions that are customary for Declarant-prepared budgets in the local marketplace, such as assumptions that (1) the Property is Built-Out, Sold-Out, and fully occupied, (2) owners of all lots subject to assessment pay assessments in full and on time, (3) the Property enjoys a level of service and maintenance that is typical for similar types of developments in the general area of the Property, and (4) no inflation or increase in the costs of goods and
the Property enjoys a level of service and maintenance that is typical for similar types of developments in the general area of the Property, and (4) no inflation or increase in the costs of goods and services from the date on which the budget is prepared. All such assumptions are presumed to be reasonable for this purpose.
C.10.2. Deciarant's Financial Responsibility. A lot owned by Declarant or by an affiliate of Declarant is not subject to mandatory assessment by the Association and will not become subject to assessment by the Association until the date title is transferred to an owner other than Declarant or a Declarant affiliate. Because Declarant establishes the Association's budget and the rate of assessment during the Declarant Control Period, Declarant has an obligation to ensure that the Association's operating expenses are paid for that period. During the Declarant Control Period only, Declarant is responsible only for the Expected Shortfall, For any budget period during the Declarant Control Period in which the Actual Shortfall exceeds the Expected Shortfall, Declarant may (a) fund some or all of the difference, (b) direct the board to reduce the Association's expenses by reducing services, and/or (c) direct the board to fund the difference by raising the rate of assessment. On termination of the Declarant Control Period, Declarant ceases being responsible for shortfafls and the owner-elected board of directors will adopt a budget for the Association that is capable of being funded completely by owners without any contribution by Declarant. Under any circumstance, Declarant is not liable to the Association for more than the amount that Declarant would pay if Declarant were liable for assessments APPENDIX C TO DECLARATION OF CYPRESS COVE Page C-5
y circumstance, Declarant is not liable to the Association for more than the amount that Declarant would pay if Declarant were liable for assessments APPENDIX C TO DECLARATION OF CYPRESS COVE Page C-5 DECLARANT'S RIGHTS & RESERVATIONS FOR ASSOCIATION GOVERNANCE on the unsold lots in the same manner as any other owner. This may not be construed to create a per lot assessment liability for Declarant.
C.10.3. Reserves. The annual budget may show an annual contribution to reserves or to a contingency fund to illustrate to homebuyers the types of expenses they may expect to fund after the Declarant Control Period. During the Declarant Control Period, a budgeted line item for reserves is not a guaranty that the Association's reserves will be funded from regular assessments or from any other source. Declarant has no duty to contribute to the Association's reserve accounts. If the Declarant-controlled Association does not collect initial reserve contributions from owners at time of purchase, after the Declarant Control Period the Association will levy a special assessment to establish initial reserve accounts, and will thereafter collect initial reserve contributions in connections with transfers of title.
Reserves aren't funded by Declarant.
C.10.4. Commencement of Assessments. Declarant may elect to postpone the Association's initial levy of regular assessments until a certain number of lots are sold. Prior to the first ievy, Declarant is responsible for the operating expenses of the Association as they accrue.
C.10.5. Budget Control. During the Declarant Control Period, the right of owners to veto assessment increases
vy, Declarant is responsible for the operating expenses of the Association as they accrue.
C.10.5. Budget Control. During the Declarant Control Period, the right of owners to veto assessment increases or special assessments is not effective and may not be exercised.
C.10.6. Enhancements. Until Sell-Out, Declarant - solely at Declarant's discretion - may voluntarily provide enhancements for the Property, such as higher levels of maintenance, management, insurance, seasonal color in landscaping, and recreational personnel. If such enhancements are included in the Association's annual operating budget they must be identified as voluntary contributions by Declarant.
C.10.7. Loans. Nothing in this Appendix may be construed to prevent Declarant from making a loan or voluntary monetary donation to the Association, provided it is so characterized in the books and records of the Association.
C.10.8. HOA Sale Fees. The Association may not change any aspect of HOA Sale Fees that pertain to vacant lots and to new home sales without Declarant's prior consent in a writing that is dated, signed, and acknowledged by Declarant, which consent may not be deemed from any act, omission, or other writing.
C.10.9. Declarant's Right to Inspect & Correct Accounts. For a period of 5 years after the end of the Declarant Controt Period, Declarant reserves for itself and for Declarant’s accountants and attorneys, the right, but not the duty, to inspect, correct, and adjust the Association's financial books, records, and accounts from the Declarant Controt Period.
The Association may not refuse to accept an adjusting or correcting payment made by or for the benefit of Declarant.
By way of illustration but not limitation, Declarant may find it necessary to recharacterize an expense or payment to
accept an adjusting or correcting payment made by or for the benefit of Declarant.
By way of illustration but not limitation, Declarant may find it necessary to recharacterize an expense or payment to conform to Declarant's obligations under the Governing Documents or applicable law. This Section may not be construed to create a duty for Declarant or a right for the Association. In support of this reservation, each owner, by accepting an interest in or title to a fot, hereby grants to Declarant a right of access to the Association's books, records, and accounts that is independent of Declarant’s rights during the Declarant Control and as the Declarant Class member of the Association, for the limited purpose of this Section and only to the extent necessary to enable Declarant to exercise its rights under this Section.
No deep pocket.
Declarant isn't required to fill holes in the budget created by owners who don't pay assessments.
C.11. RIGHT OF REIMBURSEMENT FOR SHORTFALL LOANS. While Declarant controls the Association, Declarant may provide financial assistance to the Association. The purpose of this Section is to describe the relationship between Declarant and the Association regarding Declarant's financial support and the duty of the Association to reimburse Declarant for some of Declarant’s contributions under certain circumstances. In case of conflict between this Section and other provision of the Declaration, this Section controls.
C.11.1. Reservation. Declarant hereby reserves the right to be reimbursed by the Association for any shortfall joan and hereby creates an affirmative duty for the Association to fund the reimbursement if and when Declarant APPENDIX C TO DECLARATION OF CYPRESS COVE Page C-6 DECLARANT'S RIGHTS & RESERVATIONS FOR ASSOCIATION GOVERNANCE
an affirmative duty for the Association to fund the reimbursement if and when Declarant APPENDIX C TO DECLARATION OF CYPRESS COVE Page C-6 DECLARANT'S RIGHTS & RESERVATIONS FOR ASSOCIATION GOVERNANCE exercises this right. The Association's duties under this Section do not terminate at the end of the Declarant Control Period.
C.11.2. Examples. Circumstances that are capable of resulting in shortfall loans include without limitation: (1) the failure of owners to pay assessments to the Association; (2) expenses pre-paid by the Association for which an owner or a third party is liable; and (3) any expense pre-paid by the Association for which a special assessment or increase in regular assessments is subsequently levied, or for which the Association obtains bank funding.
C.11.3. Shortfall Loan. A shortfall loan arises automatically, with or without formality. A shortfall loan may be evidenced by a promissory note executed by the Association in favor of Declarant or a person or entity designated by Declarant. A shortfall loan may be further secured by a lien against the common areas contained in a publicty recorded lien instrument executed by the Association. The Association will execute loan and security documents if so requested by Declarant. A shortfall loan incurs no interest and will be repaid - without demand - as the Association receives reimbursement of prepaid expenses, payment of delinquent assessments, or funding from loans or levied assessments. If a rate of interest on the shortfall loan will be imputed, the rate will be six percent per annum. Unless
id expenses, payment of delinquent assessments, or funding from loans or levied assessments. If a rate of interest on the shortfall loan will be imputed, the rate will be six percent per annum. Unless a promissory note specifies a different plan of payment, the Association will budget for shortfall loan repayment in a manner that retires 10 percent of the shortfall loan each year for 10 years.
C.11.4, Shortfall Monitoring. The Association is responsible for monitoring expected and actual shortfalls, identifying the differences that are eligible for reimbursement, and for reimbursing Declarant as targeted funds are received, without demand by Declarant.
C.12. HOA SALE FEES ON VACANT LOTS. This Section pertains to the sale and purchase of vacant lots or tracts of land prior to Build-Out. A request to the Association for a "payoff" or statement of assessments in connection with the purchase or closing of a vacant lot or tract may be satisfied with an assessment estoppel letter, and may not be treated as a request for “subdivision information" which triggers a resale certificate. On a bulk sale (multiple ots or tracts), a request to the Association for a resale certificate will be satisfied with a single resale certificate for the multi-lot or multi-tract transaction. In this Section, the term “Declarant” applies to its affiliates and successors. The conveyance of a vacant iot or tract to Declarant is not subject to HOA Sale Fees unless so provided in the contract of sale to which Declarant is a party. This exemption applies to a successor Declarant who was a Builder prior to the assignment. The conveyance of a vacant jot or tract by Declarant to a Builder is treated
e to which Declarant is a party. This exemption applies to a successor Declarant who was a Builder prior to the assignment. The conveyance of a vacant jot or tract by Declarant to a Builder is treated as a "New Home Sale” for purposes of collecting HOA Sale Fees from the Builder, subject to the exclusive right of Declarant to modify or waive the obligation for HOA Sale Fees by contract with the Builder. Declarant may negotiate different modifications or waivers with each Builder and for each contract. Conveyances of vacant lots or tracts between Builders are treated like New Home Sales for purposes of cotlecting HOA Sale Fees. Declarant is never liable for HOA Sales Fees, whether or not collected from another party to a transaction.
C.13. HOA SALE FEES ON NEW HOME SALES. This Section pertains to "New Home Sales", meaning the sale by Declarant or a Builder to a homeowner of a Jot that is improved with a newly constructed dwelling, or a vacant lot with a contract for construction of the first dwelling. The request for or issuance of a "resale certificate” does not convert a New Home Sale into a Home Resale for purposes of this Declaration.
C.13.1. Amounts. On or before the closing of a New Home Sale to a purchaser other than Dectarant, a Successor Declarant, or a Declarant-affiliate, the purchaser is liable for the below-stated HOA Sale Fees: (1) $250.00 payable to the Association for its reserve funds.
(2) $2506.00 payable to the Association for its operating funds.
(3) If any, the customary administrative HOA Sale Fees, payable to the Association or its manager.
C.13.2. Operating Funds. The contribution to the Association's operating funds may be used to defray
(3) If any, the customary administrative HOA Sale Fees, payable to the Association or its manager.
C.13.2. Operating Funds. The contribution to the Association's operating funds may be used to defray Declarant's obligation, if any, for the Association's operating expenses that are not funded by regular assessments received from other owners during the Declarant Control Period. After the Declarant Control Period, the Association will transfer to Declarant the initial operating fund contributions received from buyers of New Homes.
C€.13.3. Liability. If HOA Sale Fees are not collected from a New Home purchaser at closing, Declarant is not thereafter liable for the contribution, and Declarant reserves the right (but not the duty) to waive the purchaser's liability for HOA Sale Fees on a case by case basis. Declarant acknowledges that this condition may create an inequity among the owners, but deems it a necessary response to the volume and diversification of closing New Home Sales.
(End of Appendix C) APPENDIX C TO DECLARATION OF CYPRESS COVE Page C-7 DECLARANT'S RIGHTS & RESERVATIONS FOR ASSOCIATION GOVERNANCE © 2011. Sharon Reuler, P.c. All Rights Reserved. ENOP- 2A YloceYLCRL Original Cypress COMLYE BEG/IOIEE eve IO/13 APPENDIX D TO DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS FOR CYPRESS COVE REQUIREMENTS FOR HIGHLY-VISIBLE LOTS D.1. GENERAL PROVISIONS. Although the Architectural Reviewer is interested in the condition and appearance of all fots in the Property, certain potions of certain lots are of particular concern to the extent they are readily visible to residents and potential purchasers of the Property. Therefore, on recording this Declaration, Declarant imposes the
of certain lots are of particular concern to the extent they are readily visible to residents and potential purchasers of the Property. Therefore, on recording this Declaration, Declarant imposes the below-described Curb Appeal Restrictions on the Highly-Visible Lots designated below. The purpose of the Curb Appeal Restrictions is to permit, but not require, the Architectural Reviewer to controi the condition and attractiveness of the Highly-Visible Lots.
D.1.1. Duration. The applicability of the Curb Appeal Restrictions to a particular Highly-Visible Lot terminates on the earliest of the following events: (1) Sell-Out of the Property, (2) the date on which a notice of termination for the particular lot, executed by Declarant, is publicly recorded in the county in which the lot is located, or (3) the date on which this Appendix D is amended by Declarant to eliminate a particular lot's designation as a Highly-Visible Lot. A change of circumstance is one basis for termination or elimination.
D.1.2. Owner's Duties. The owner of a Highly-Visible Lot, at the owner's expense, must continually comply with the Curb Appeal Restrictions or obtain a waiver or variance of same in writing from the Architectural Reviewer.
D.1.3. Uniformity and Variance. Declarant may change, enlarge, or reduce the designation of HighlyVisible Lots and the Curb Appeal Restrictions by amendment of or supplement to this Declaration.
D.2. DESIGNATION OF LOTS AND ADJACENT FEATURES. The following lots are hereby designated as HighlyVisible Lots as to the portion of each lot that is Highly-Visible from the designated feature: D.2.1. Along Bobtown Road. The back or side yards of lots that are on or along Bobtown Road, specifically: » Lots 1 - 11, Block 1, Cypress Cove, Phase 1
is Highly-Visible from the designated feature: D.2.1. Along Bobtown Road. The back or side yards of lots that are on or along Bobtown Road, specifically: » Lots 1 - 11, Block 1, Cypress Cove, Phase 1 » Lots 1 - 8, Block 5, Cypress Cove, Phase 2 (preliminary platted) » Lots 1 - 3, Block 7, Cypress Cove, Phase 2 (preliminary platted) D.2.2. Near Lakeway Drive Entrance. The street-facing front and side yards of lots at the intersection of Hidden Creek Road and Lakeway Drive, specifically: » Lot 1, Block 1, Cypress Cove, Phase 1 » Lot 1, Block 2, Cypress Cove, Phase 1 » Lot 1, Block 4, Cypress Cove, Phase 1 » Lot 8, Block 5, Cypress Cove, Phase 2 (preliminary platted) 0.2.3. Near Westlake Drive Entrance. The street-facing front and side yards of lots at the intersection of Hidden Creek Road and Westlake Drive, specifically: » Lot 1, Block 5, Cypress Cove, Phase 2 (preliminary platted) » Lot 1, Block 6, Cypress Cove, Phase 2 (preliminary platted) » Lots 1 & 6, Block 7, Cypress Cove, Phase 2 (preliminary platted) D.2.4. Next to Certain Common Areas. Yards facing certain common areas, specifically: » Lot 5, Block 6, Cypress Cove, Phase 2 (preliminary platted) - facing Common Area Lot 6, Block 6.
APPENDIX D TO DECLARATION OF CYPRESS COVE Page D-1 REQUIREMENTS FOR HIGHLY-VISIBLE LOTS D.3. CURB APPEAL RESTRICTIONS. The designated portions of Highly-Visibie Lots are hereby subject to the following Curb Appeal Restrictions to ensure the attractiveness of the Highly-Visible Lots when viewed from the designated locations. Because the standard of review is largely subjective, and because the degree of visibility is subject to change
the attractiveness of the Highly-Visible Lots when viewed from the designated locations. Because the standard of review is largely subjective, and because the degree of visibility is subject to change as maturing plants begin to screen a lot, the owner of a Highly-Visible Lot may apply to the Architectural Reviewer for a waiver or variance on a lot-by-lot and item-by-item basis.
D.3.1. Fencing. Chapter B of the Specifications SourceBook, titled “Fence Specifications," contains restrictions that apply specifically to a Highly-Visible Lot with a See-Through Fence on at least one of its borders.
Those restrictions are incorporated herein by reference.
D.3.2. Accessory Sheds. Accessory sheds and yard structures of any kind are not permitted anywhere on a lot if visible through or above a See-Through Fence.
D.3.3. Furniture & Equipment. Patio furniture, athletic and playground equipment, and all other items on any portion of a Highly-Visible Lot that is visible through or above a See-Through Fence must be attractive or largely unnoticeable.
D.3.4. Appearance of Yards. Any portion of a Highty-Visible Lot that is visible through a See-Through Fence must be fully landscaped and maintained in a healthy, neat, and attractive condition. Such a yard may not be used for storage or for any other purpose that detracts from its use and appearance as a landscaped yard.
D.3.5. Flags & Signs. To the full extent permitted by applicable law, flags, flagpoles, windsocks, and signs (as defined in the Specifications SourceBook) are not permitted on any portion of a Highly-Visible Lot that is visible through or above a See-Through Fence.
D.3.6. Attracting Attention. A yard that is visible through a See-Through Fence may not be used for an
tted on any portion of a Highly-Visible Lot that is visible through or above a See-Through Fence.
D.3.6. Attracting Attention. A yard that is visible through a See-Through Fence may not be used for an activity that is exposed to public view through or above a See-Through Fence and which the Architectural Reviewer deems to be inappropriate, offensive, or unseemly to prospective purchasers of the Property. The Architectural Reviewer may adopt rules prohibiting specific activities on Highly-Visible Lots, as they arise. For example, naked trampolining is not permitted on Highly-Visibte Lots.
D.4. STANDARD OF REVIEW. The Architectural Reviewer is the sole and exclusive arbiter of attractiveness for the Property and has sole discretion to determine circumstances that denigrate the curb appeal of the Property. As a general rule, the Curb Appeal Restrictions will be applied uniformly to comparable circumstances on Highly-Visible Lots within the same feature category. However, because no two lots or conditions are identical, the Architectural Reviewer may vary the interpretation and enforcement of the Curb Appeal Restrictions on a case-by-case basis, and may grant variances as warranted by circumstances. For example, the Architectural Reviewer may disallow a swingset that is brightly colored or in a location that is minimally screened from public view, while tolerating a swingset in a less noticeable color or in a location that is more substantially screened from public view.
D.5. DETERMINATION OF UNSUITABILITY. If the Architectural Reviewer determines that an aspect of a yard that is visible through or above a See-Through Fence is unsightly or otherwise detracts from the Property's curb appeal,
NSUITABILITY. If the Architectural Reviewer determines that an aspect of a yard that is visible through or above a See-Through Fence is unsightly or otherwise detracts from the Property's curb appeal, the Architectural Reviewer may require the owner, at the owner's expense, to repair, relocate, remove, cover or screen the detracting item or condition, or cease the activity or use.
(End of Appendix D) Filed and Recorded Official Public Records John F. Warren, County Clerk Dallas County, TEXAS 06/12/2013 09:39:46 AM $260.00 201300183489 APPENDIX D FO DECLARATION OF CYPRESS COVE Page D-2 REQUIREMENTS FOR HIGHLY-VISIBLE LOTS