AFTER RECORDING RETURN TO: Tim Hagen Hagen & Parsons, P.C.
14643 Dallas Parkway, Suite 570 Dallas, Texas 75254 I/ I // II Ill I II Ill I llllll I lllllll I I II I I I llll llll I / 1111 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR GREENSPOINT, PROSPER. TEXAS THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR GREENSPOINT, PROSPER, TEXAS (this "Declaration") is made this Js-1-day of ,,, June. , 2006, by WILBOW-PROSPER ONE DEVELOPMENT CORPORATION, a Texas corporation (hereinafter referred to as "Declarant").
WITNESSETH: WHEREAS, Declarant is the owner of the real property referred to in Article II hereof and described on Exhibit "A" attached hereto and made a part hereof for all purposes, and desires to create thereon a residential community with residential lots, open spaces, landscaping, sprinkler systems, streets, common lighting, fencing, drives, screening walls, and other common improvements for the benefit of the community; and WHEREAS, Declarant desires to provide for, among other matters, the preservation of the values and amenities in said community and for the maintenance of said open spaces, landscaping, sprinkler systems, streets, common lighting, fencing, drives, screening walls, and other common improvements; and, to this end, desires to subject the real property referred to in Article II, together with such additions as may hereafter be made thereto (as provided in Article II) to the covenants, conditions, restrictions, easements, charges and liens hereinafter set forth, each and all of which is and are for the benefit of said property and each and every owner of any part thereof; and WHEREAS, Declarant has deemed it desirable, for the efficient preservation of the values
and all of which is and are for the benefit of said property and each and every owner of any part thereof; and WHEREAS, Declarant has deemed it desirable, for the efficient preservation of the values and amenities in said community, to create an owners' association to which would be delegated and assigned the powers of {i) maintaining and administering the common properties and facilities, (ii) administering and enforcing the covenants and restrictions contained herein, and (iii) collecting and disbursing the assessments and charges hereinafter created; and WHEREAS, Declarant has caused or will cause a non-profit corporation to be incorporated under the laws of the State of Texas forthe purpose of effecting the intents and objectives herein set forth.
NOW, THEREFORE, Declarant declares that the real property referred to in Article II, and such additions thereto as may hereafter be made pursuant to Article II hereof, is and shall be held, transferred, sold, conveyed and occupied subject to the covenants, conditions, restrictions, easements, charges and liens (sometimes referred to as "Covenants and Restrictions") hereinafter set forth.
ARTICLE I DEFINITIONS The following words when used in this Declaration or any Supplemental Declaration (unless the context shall otherwise provide) shall have the following meanings: (a) "Architectural Control Committee" shall mean and refer to the architectural control committee described in Article X hereof.
(b) "Association" shall mean and refer to Greenspoint Prosper Residential Association, Inc., a Texas non-profit corporation or another non-profit corporation formed by Declarant, which will have the power, duty and responsibility of maintaining and
point Prosper Residential Association, Inc., a Texas non-profit corporation or another non-profit corporation formed by Declarant, which will have the power, duty and responsibility of maintaining and administering the Common Properties, and collecting and disbursing the assessments and charges hereinafter prescribed, and will have the right to administer and enforce the Covenants and Restrictions.
( c) "Board" or "Board of Directors" shall mean and refer to the board of directors of the Association.
( d) "Bylaws" shall mean and refer to the bylaws of the Association, as may be amended from time to time.
(e) "Certificate of Formation" shall mean and refer to the certificate of formation of the Association as may be amended from time to time.
(f) "Class A Members" shall have the meaning set forth in Section 3.02 hereof.
(g) "Class B Members" shall have the meaning set forth in Section 3.02 hereof.
(h) "Common Properties" shall mean and refer to those certain streets, drives, street lights, street signs, traffic control devices, parkway areas, landscaped medians, landscaping improvements, plantings, screening walls, fencing, sprinkler systems, and easements, among other amenities, which are now or hereafter designated by the Declarant or the Board of Directors as Common Properties intended for or devoted to the common use and enjoyment of the Owners, together with any and all improvements that are now or may hereafter be constructed thereon. In certain circumstances, Common Properties may not be owned by the Declarant or the Association in fee, but may, in some instances, be held as an easement, be leased or may simply be areas of land that are not owned or leased by the
Properties may not be owned by the Declarant or the Association in fee, but may, in some instances, be held as an easement, be leased or may simply be areas of land that are not owned or leased by the Declarant or the Association but which are maintained by the Association or the Declarant for the use and benefit of the Owners and the Properties. The Declarant may hold record title to all or a portion of the Common Properties, consistent with the objectives envisioned herein and subject to the easement rights herein of the Owners to use and enjoy the Common Properties, for an indefinite period of time and at a point in time (deemed appropriate and reasonable by the Declarant) after the Association has been incorporated, record title to those portions of the Common Properties which are owned by the Declarant in fee, as an easement or otherwise will be transferred from the Declarant to the Association.
(i) "Declarant" shall mean and refer to Wilbow-Prosper One Development Corporation, a Texas corporation, and its successors and assigns, if such successors and/or assigns become same by written assignment by Wilbow-Prosper One Development Corporation of its rights as Declarant hereunder or by operation oflaw. No person or entity purchasing one or more Lots from Wilbow-Prosper One Development Corporation in the ordinary course of business shall be considered as "Declarant."
G) "Lot" shall mean and refer to any plot or tract of land shown upon any recorded subdivision map(s) or plat(s) of the Properties, as amended from time to time, which is designated as a lot thereon and which is or will be improved with a residential dwelling. Some portions of the Common Properties may be platted as a "lot" on the recorded
d from time to time, which is designated as a lot thereon and which is or will be improved with a residential dwelling. Some portions of the Common Properties may be platted as a "lot" on the recorded subdivision plat, however, these lots shall be excluded from the concept and definition of Lot as used herein. The term "Lot" shall mean a Type I Lot or a Perimeter Lot.
(k) hereof. "Member" shall mean and refer to each Owner as provided in Article III (1) "Owner" shall mean and refer to every person or entity who is a record owner of a fee or undivided fee interest in any Lot which is subject to this Declaration. The foregoing is not intended to include persons or entities who hold an interest merely as security for the performance of an obligation.
(m) "Plat" shall mean and refer to the Final Plat ofGreenspoint, an addition to the City of Prosper, according to the map or plat thereofrecorded in Volwne 0(.-345 , Page 6"-"!.lf (,, of the Plat Records of Collin County, Texas.
(n) "Prooerties" shall mean and refer to the properties subject to this Declaration as described on Exhibit "A" attached hereto, together with such additions as may hereafter be made thereto (as provided in Article II).
ARTICLE II PROPERTY SUBJECT TO THIS DECLARATION; ADDITIONS THERETO 2.01 Existing Properties. The Properties which are, and shall be, held, transferred, sold, conveyed, and occupied subject to this Declaration are located in Prosper, Collin County, State of Texas, and are more particularly described on Exhibit "A" attached hereto and incorporated herein by reference for all purposes.
2.02 Additions to Properties. Additional land(s) may become subjectto this Declaration in any of the following manners:
hibit "A" attached hereto and incorporated herein by reference for all purposes.
2.02 Additions to Properties. Additional land(s) may become subjectto this Declaration in any of the following manners: (a) The Declarant may add or annex additional real property (whether owned by Declarant or others) to the scheme of this Declaration by filing of record a Supplemental Declaration of Covenants, Conditions and Restrictions ("Supplemental Declaration") which shall extend the scheme of the Covenants and Restrictions of this Declaration to such property; provided, however, that such Supplemental Declaration may contain such additions and modifications of the Covenants and Restrictions contained in this Declaration as may be necessary to reflect the different character, if any, of the added properties and as may be approved by Declarant.
(b) In the event any person or entity other than the Declarant desires to add or annex additional residential and/or common areas to the scheme of this Declaration, such proposed annexation must have the prior written consent and approval of the majority of the outstanding votes within each voting class of the Association, as evidenced by a certificate or document executed by an officer of the Association and recorded in the Real Property Records of Collin County, Texas.
(c) Any additions made pursuant to Paragraphs Ca) and (b) of this Section 2.02, when made, shall automatically extend the jurisdiction, functions, duties and membership of the Association to the properties added.
(d) The Declarant shall have the right and option [without the joinder, approval or consent of any person(s) or entity(ies)] to cause the Association to merge or consolidate with any similar association then having jurisdiction over real property located (in whole or
der, approval or consent of any person(s) or entity(ies)] to cause the Association to merge or consolidate with any similar association then having jurisdiction over real property located (in whole or in part) within one-half(\!,) mile of any real property then subject to the jurisdiction of the Association. Upon a merger or consolidation of the Association with another association, its properties, rights and obligations may, by operation of law, be transferred to another surviving or consolidated association or, alternatively, the properties, 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 corporation pursuant to a merger. The surviving or consolidated association may administer the Covenants and Restrictions established by this Declaration within the Properties together with the covenants and restrictions established upon any other properties as one scheme.
(e) Notwithstanding the fact that the Declarant may not be an Owner by virtue of its sale, transfer or conveyance of all of its right, title, and interest in the Properties, the Declarant shall continue to be entitled to implement and exercise all its rights under and pursuant to this Section 2.02 and all of the subsections hereof. Even though the Declarant may not be a Class A or Class B Member prior to an annexation, merger or consolidation permitted by this Section 2.02, subsequent to such annexation, merger or consolidation, the Declarant shall be reinstated and become a Class B Member with respect to the Lots owned by it within the Properties, as such Properties have been expanded or increased by the
er or consolidation, the Declarant shall be reinstated and become a Class B Member with respect to the Lots owned by it within the Properties, as such Properties have been expanded or increased by the annexation, merger or consolidation. The Declarant's rights as a Class B Member shall be governed by and set forth in this Declaration and the Certificate of Formation and Bylaws of the Association, as same may be amended or altered by, and in accordance with, the annexation, merger or consolidation.
ARTICLE III MEMBERSffiP AND VOTING RIGHTS IN THE ASSOCIATION 3.01 Membership. Every Owner of a Lot shall automatically be a Member of the Association. The foregoing is not intended to include persons or entities who hold an interest merely as security for the performance of an obligation. Membership shall be appurtenant to and may not be separated from ownership of any Lot. The Board of Directors may declare that an Owner is not a Member in good standing because of unpaid dues, fines, late charges, interest, legal fees, and/or any other Assessment of any nature. The Board of Directors may temporarily suspend the voting rights of any Member who is not in good standing until such unpaid amounts are paid in full.
3.02 Classes of Membership. The Association shall have two (2) classes of voting membership: CLASS A. Class A Members shall be all Members with the exception of Class B Members. Class A Members shall be entitled to one ( 1) vote for each Lot in which they hold the interest required for membership. When more than one person holds such interest or interests in any Lot, all such persons shall be Members, and the vote for such Lot shall be exercised as they, among themselves, determine, but in no event shall more than one (I) vote be cast with respect to any such Lot.
all such persons shall be Members, and the vote for such Lot shall be exercised as they, among themselves, determine, but in no event shall more than one (I) vote be cast with respect to any such Lot.
CLASS B. Class B Members shall be Declarant and any bona fide Owner who is engaged in the process of constructing a residential dwelling on any Lot for sale to consumers.
Declarant shall be entitled to six (6) votes for each Lot owned by all Class B Members.
Class B Members other than Declarant shall be non-voting Members of the Association. The Class B membership shall cease, and each Class B Member shall become a Class A Member, upon the earlier to occur of the following (the "Conversion Date"): (i) when the total number of votes outstanding in the Class A membership is eight (8) times greater than the total number of votes outstanding in the Class B membership; or (ii) when Declarant no longer owns record title to any of the Lots; or (iii) on the tenth (10th) anniversary of the date this Declaration was recorded in the Office of the County Clerk of Collin County, Texas.
Notwithstanding the voting rights within the Association, until the Declarant no longer owns record title to any Lot or the tenth (10th) anniversary of the date this Declaration was recorded in the Office of the County Clerk of Collin County, Texas, whichever occurs first in time, the Association shall take no action with respect to any matter whatsoever without the prior written consent of the Declarant.
Owners of exempt properties as described in Section 5.11 hereof shall be Members but shall not have voting rights.
3.03 Quorum, Notice and Voting Requirements.
(a) Subject to the provisions of Paragraph (c) of this Section, any action taken at
Section 5.11 hereof shall be Members but shall not have voting rights.
3.03 Quorum, Notice and Voting Requirements.
(a) Subject to the provisions of Paragraph (c) of this Section, any action taken at a meeting of the Members shall require the assent of the majority of all eligible votes of those who are voting in person or by proxy, regardless of class, at a meeting duly called, written notice of which shall be given to all Members not less than ten ( 10) days nor more than sixty (60) days in advance.
(b) The quorum required for any action referred to in Paragraph (a) of this Section shall be as follows: The presence, in person or by proxy, of Members entitled to cast, or of proxies entitled to cast, at least fifty percent (50%) of the votes of all Members of the Association, regardless of class, shall constitute a quorum for any action except as otherwise provided in the Certificate of Formation, the Bylaws or this Declaration or as provided by the laws of the State of Texas.
( c) As an alternative to the procedure set forth above, any action referred to in Paragraph (a) of this Section may be taken without a meeting if a consent in writing, approving the action to be taken, shall be signed by all Members entitled to vote at such meeting.
( d) Except as otherwise specifically set forth in this Declaration, notice, voting and quorum requirements for all actions to be taken by the Association shall be consistent with its Certificate of Formation and Bylaws, as same may be amended from time to time.
ARTICLE IV PROPERTY RIGHTS IN THE COMMON PROPERTIES 4.01 Members' Easements of Enjoyment. Subject to the provisions of Section 4.03 of this Article, every Member and every tenant of every Member, who resides on a Lot, and each
IN THE COMMON PROPERTIES 4.01 Members' Easements of Enjoyment. Subject to the provisions of Section 4.03 of this Article, every Member and every tenant of every Member, who resides on a Lot, and each individual who resides with either of them, respectively, on such Lot shall have a non-exclusive right and easement of use and enjoyment in and to the Common Properties, and such easement shall be appurtenant to and shall pass with the title of every Lot; provided, however, such easement shall not give such person the right to make alterations, additions or improvements to the Common Properties.
4.02 Title to the Common Properties. The Declarant shall dedicate and convey the fee simple title to the Common Properties to the Association at such point in time deemed reasonable and appropriate by the Declarant. Prior to the date the Common Properties are conveyed to the Association, the Declarant shall retain the right to sell portions of the Common Properties to Owners if Declarant, in its sole discretion, deems such sale to be for the best interest of the development.
4.03 Extent of Members' Easements. The rights and easements of enjoyment created hereby shall be subject to and limited by the following: (a) The right of the Association to prescribe regulations governing the use, operation and maintenance of the Common Properties.
(b) Liens of mortgages placed against all or any portion of the Common Properties with respect to monies borrowed by the Declarant to develop and improve the Common Properties or by the Association to improve or maintain all or any portion of the Common Properties; ( c) The right of the Declarant and/or the Association to enter into and execute
improve the Common Properties or by the Association to improve or maintain all or any portion of the Common Properties; ( c) The right of the Declarant and/or the Association to enter into and execute contracts with parties (including the Declarant or an affiliate of the Declarant) for the purpose of providing maintenance for all or a portion of the Common Properties or providing materials or services consistent with the purposes of the Association; ( d) The right of the Association to take such steps as are reasonably necessary to protect the Common Properties against foreclosure; ( e) The right of the Association, as may be provided in its Bylaws, to suspend the voting rights of any Member and to suspend the right of any individual to use any of the Common Properties for any period during which any assessment against a Lot owned by such individual remains unpaid, and for any period not to exceed sixty (60) days for an infraction of its rules and regulations; (f) The right of the Declarant or the Association, subject to approval by written consent by the Member(s) having a majority of the outstanding votes of the Members, in the aggregate, regardless of class, to dedicate or transfer all or any part of the Common Properties to any public agency, authority, or utility company for such purposes and upon such conditions as may be agreed to by such Members; (g) The right of the Declarant or the Association, at any time, to make such reasonable amendments to the Plat, as it deems advisable, in its sole discretion. All Members are advised that a portion of the Common Properties may be located within the platted and dedicated public rights-of-way and in connection therewith the public shall have
sole discretion. All Members are advised that a portion of the Common Properties may be located within the platted and dedicated public rights-of-way and in connection therewith the public shall have rights of use and enjoyment of Common Properties located within the public rights-of-way; and (h) With respect to any and all portions of the Common Properties, Declarant, until the Conversion Date, shall have the right and option (without the joinder and consent of any person or entity, save and except any consent,joinder or approval required by the City of Prosper or any other governmental agency having appropriate jurisdiction over the Common Properties) to: (i) alter, improve, landscape and/or maintain the Common Properties; (ii) rechannel, realign, darn, bridge, bulwark, culvert and otherwise employ or utilize construction and/or engineering measures and activities of any kind or nature whatsoever upon or within the Common Properties; (iii) zone, rezone, or seek and obtain variances or permits of any kind or nature whatsoever upon or within the Common Properties; (iv) replat or redesign the shape or configuration of the Common Properties; and (v) seek and obtain any and all permits, licenses or exemptions from any and all governmental agencies exercising jurisdiction over the Common Properties and/or the uses or activities thereon.
ARTICLEV COVENANTS FOR ASSESSMENTS 5.01 Creation of the Lien and Personal Obligation of Assessments. Declarant, for each Lot owned by it, hereby covenants and agrees, and each purchaser of any Lot by acceptance of a deed or other conveyance document creating in such Owner the interest required to be deemed an Owner,
ach Lot owned by it, hereby covenants and agrees, and each purchaser of any Lot by acceptance of a deed or other conveyance document creating in such Owner the interest required to be deemed an Owner, whether or not it shall be so expressed in any such deed or other conveyance document, shall be deemed to covenant and agree (and such covenant and agreement shall be deemed to constitute a portion of the consideration and purchase money for the acquisition of the Lot), to pay to the Association (or to an entity or collection agency designated by the Association): (1) annual maintenance assessments or charges (as specified in Section 5.04 hereof), such assessments to be fixed, established and collected from time to time as herein provided; (2) special assessments for capital improvements and other purposes (as specified in Section 5.05 hereof), such assessments to be fixed, established and collected from time to time as hereinafter provided; and (3) individual special assessments levied against one or more Owners for those items specified in Section 5.05 hereof, all of such assessments to be fixed, established and collected from time to time as hereinafter provided. The annual maintenance, special capital, and special individual assessments described in this Section 5. 01 (hereinafter, the "Assessment" or the "Assessments," together with interest thereon, attorneys' fees, court costs and other costs of collection thereof, as herein provided, shall be a charge on the land and shall be a continuing lien upon each Lot against which any such Assessment is made.
Each such Assessment, together with interest thereon, attorneys' fees, court costs, and other costs of collection thereof shall also be the continuing personal obligation of the Owner of such Lot at the
ch such Assessment, together with interest thereon, attorneys' fees, court costs, and other costs of collection thereof shall also be the continuing personal obligation of the Owner of such Lot at the time when the Assessment fell due. Further, no Owner may exempt himself from liability for such Assessments or waive or otherwise escape liability for the Assessments by non-use of the Common Properties or abandonment of his Lot. Existing obligations of an Owner to pay Assessments and other costs and charges shall not pass to bona fide first lien mortgagees which become Owners by reason of foreclosure proceedings or an action at law subsequent to the date the Assessment was due; provided, however, any such foreclosure proceeding or action at law shall not relieve such new Owner of such Lot from liability for the amount of any Assessment thereafter becoming due nor from the lien securing the payment of any subsequent Assessment.
S.02 Purpose of Assessments. The Assessments levied by the Association shall be used exclusively for (i) the purpose of promoting the recreation, comfort, health, and welfare of the Members and/or the residents of the Properties; (ii) managing the Common Properties and, if approved by the Board, the public parks adjacent to the Properties (the "Park Land"); (iii) enhancing the quality of life in the Properties and the value of the Properties; (iv) improving and maintaining the Common Properties, the Park Land, the properties, services, improvements and facilities devoted to or directly related to the use and enjoyment of the Common Properties and/or the Park Land, including, but not limited to, the payment of taxes on the Common Properties and insurance in
ies devoted to or directly related to the use and enjoyment of the Common Properties and/or the Park Land, including, but not limited to, the payment of taxes on the Common Properties and insurance in connection therewith and the repair, replacement and additions thereto; ( v) paying the cost oflabor, equipment (including the expense of leasing any equipment) and materials required for, and management and supervision of, the Common Properties and/or the Park Land; (vi) carrying out the powers and duties of the Board of Directors of the Association as set forth in this Declaration and the Bylaws; (vii) carrying out the purposes of the Association as stated in its Certificate of Formation; and (viii) carrying out the powers and duties relating to the Architectural Control Committee and any other committee created by the Association, after Declarant has delegated or assigned such powers and duties to the Association.
S.03 Improvement and Maintenance of the Common Properties Prior to Conveyance to the Association. Initially, all improvement of the Common Properties shall be the responsibility of the Declarant and shall be undertaken by Declarant at its sole cost and expense with no right to reimbursement from the Association. After the initial improvements to the Common Properties are substantially completed and until the date of the conveyance of the title to the Common Properties to the Association, the Declarant, on behalf of the Association, shall have the responsibility and duty (but with right of assessment against all Owners) of maintaining the Common Properties, including, but not limited to, the payment of taxes on and insurance in connection with the Common Properties and the cost of repairs, replacements and additions thereto, and for paying the cost of labor,
uding, but not limited to, the payment of taxes on and insurance in connection with the Common Properties and the cost of repairs, replacements and additions thereto, and for paying the cost of labor, equipment (including the expense of leasing any equipment) and materials required for, and management and supervision of, the Common Properties. In this regard, and until such time as the Common Properties are conveyed to the Association, all Assessments collected by the Association (less such amount required for the operation of the Association) shall be forthwith paid by the Association to Declarant, to the extent that such Assessments are required by Declarant to maintain the Common Properties as set forth in this Paragraph. The Association may rely upon a certificate executed and delivered by the Declarant with respect to the amount required by Declarant to maintain the Common Properties hereunder.
S.04 Annual Maintenance Assessments.
(a) Commencing with the year beginning January I, 2007, and each year thereafter, each Member shall pay to the Association an annual maintenance assessment in such amount as set by the Board of Directors, at its annual meeting next preceding such January I, 2007, and each successive January 1 thereafter.
(b) Subject to the provisions of Section 5.04(c) hereof, the rate of annual maintenance assessments may be increased by the Board. The Board may, after consideration of current maintenance, operational and other costs and the future needs of the Association, fix the annual maintenance assessments for any year at a lesser amount than that of the previous year.
( c) An increase in the rate of the annual maintenance assessments as authorized
the Association, fix the annual maintenance assessments for any year at a lesser amount than that of the previous year.
( c) An increase in the rate of the annual maintenance assessments as authorized by Section 5.04(b) hereof in excess of twenty-five percent (25%) of the preceding year's annual maintenance assessments must be approved by the Members in accordance with Section 3.03 hereof.
( d) When the annual maintenance assessment is computed for all Lots, all or a portion of such annual maintenance assessment shall be payable to the Association by the Member according to the status of the Lot owned by such Member as follows: (i) As to a Lot owned by a Class A Member, the full annual maintenance assessment shall be payable.
(ii) As to a Lot owned by a Class B Member, one-quarter (114) of the annual maintenance assessment shall be payable.
Notwithstanding the foregoing for a period of five (5) years after the date hereof or until the Conversion Date, whichever occurs first, at Declarant's option, Declarant shall not be required to pay any Assessments with respect to any Lot owned by Declarant which has not been improved with a completed dwelling structure thereon; provided, however, that in the event Declarant elects not to pay any such Assessments during such period for so long as Declarant is the Owner of any Lot, Declarant shall subsidize the Association to the extent necessary to cover all net operating losses incurred by the Association in the operation or maintenance of the Common Properties, but Declarant shall not be required to subsidize the Association in an amount in excess of the Assessments which Declarant would otherwise have been required to pay hereunder. If Declarant subsidizes the Association and the
be required to subsidize the Association in an amount in excess of the Assessments which Declarant would otherwise have been required to pay hereunder. If Declarant subsidizes the Association and the Association thereafter accumulates a surplus or positive account balance, the Association shall reimburse the Declarant for the amount of such subsidies to the extent of the surplus or positive account balance. IfDeclarant subsidizes the Association in an amount in excess of the Assessments which Declarant would otherwise have been required to pay pursuant to this Declaration, all of such excess amounts shall constitute loans from Declarant to the Association which shall be payable by the Association to Declarant on demand. After the expiration of such period, Declarant shall be required to pay Assessments in accordance with the provisions hereof, but Declarant shall not be required to subsidize the Association in an amount in excess of the Assessments which Declarant would otherwise have been required to pay hereunder.
(e) Notwithstanding anything herein contained to the contrary, prior to January 1, 2008, the maximum annual maintenance assessment chargeable against any Lot for which a full assessment is payable shall not exceed $ 10 ~ per month.
(f) The Board of Directors may provide that annual maintenance assessments shall be paid quarter-annually, semi-annually or annually on a calendar year basis. Not later than thirty (30) days prior to the beginning of each fiscal year of the Association, the Board shall (i) estimate the total common expenses to be incurred by the Association for the forthcoming fiscal year, (ii) determine, in a manner consistent with the terms and provisions
ociation, the Board shall (i) estimate the total common expenses to be incurred by the Association for the forthcoming fiscal year, (ii) determine, in a manner consistent with the terms and provisions of this Declaration, the amount of the annual maintenance assessments to be paid by each Member, and (iii) establish the date of commencement of the annual maintenance assessments. Written notice of the annual maintenance assessments to be paid by each Member and the date of commencement thereof shall be sent to every Member, but only to one (I) joint Owner. Each Member shall thereafter pay to the Association his annual maintenance assessment in such manner as determined by the Board of Directors.
(g) The annual maintenance assessments may include reasonable amounts, as determined by the Members or by the Board, collected as reserves for the future periodic maintenance, repair and/or replacement of all or a portion of the Common Properties and/or for fulfillment of future obligations of the Association. All amounts collected as reserves, whether pursuant to this Section or otherwise, shall be deposited in a separate bank account to be held in trust for the purposes for which they were collected and are to be segregated from and not commingled with any other funds of the Association. Assessments collected as reserves shall not be considered to be advance payments of regular annual maintenance assessments.
5.05 Special Capital Assessments and Special Individual Assessments.
(a) In addition to the annual maintenance assessments authorized in Section 5. 04 hereof, the Board of Directors of the Association may levy in any assessment year a special capital assessment for the purpose of (i) defraying, in whole or in part, the cost of any
d in Section 5. 04 hereof, the Board of Directors of the Association may levy in any assessment year a special capital assessment for the purpose of (i) defraying, in whole or in part, the cost of any construction or reconstruction, unexpected repair or replacement of a capital improvement upon the Properties or Common Properties, including the necessary fixtures and personal property related thereto (ii) maintaining portions of the Common Properties and improvements thereon, or (iii) carrying out other purposes of the Association; provided, however, that any such special capital assessment levied by the Association shall have the approval of the Members in accordance with Section 3.03 hereof. Any special capital assessment levied by the Association shall be paid by the Members directly to the Association on such date or dates as determined by the Board of Directors. All such amounts collected by the Association may only be used for the purposes set forth in this Section 5.05.
(b) The Board of Directors of the Association may levy special individual capital assessments against one or more Owners for (i) reimbursement to the Association of the costs for repairs to the Properties or Common Properties and improvements thereto occasioned by the willful or negligent acts of such Owner or Owners and not ordinary wear and tear; or (ii) for payment of fines, penalties or other charges imposed against an Owner or Owners relative to such Owner's failure to comply with the terms and provisions of this Declaration, the Bylaws of the Association or any rules or regulation promulgated hereunder.
Any special individual assessment levied by the Association shall be paid by the Owner or Owners directly to the Association. All amounts collected by the Association as special
promulgated hereunder.
Any special individual assessment levied by the Association shall be paid by the Owner or Owners directly to the Association. All amounts collected by the Association as special individual assessments under this Section 5.05 shall belong to and remain with the Association.
5.06 Rate of Annual Maintenance Assessments and Special Capital Assessments.
Other than as specifically set forth in Section 5.04(d) above and as may be set forth in any Supplemental Declaration, both annual maintenance assessments and special capital assessments (excepting therefrom special individual capital assessments) must be fixed at a uniform rate for all Lots, and be payable as set forth herein. It is anticipated that Declarant may add additional lots to the scheme of this Declaration as provided in Section 2.02 hereof and that the annual maintenance assessments and special capital assessment for such added lots may not be fixed at a uniform rate for all such added lots and may not be the same rate as the annual maintenance assessments and special capital assessments for the Lots initially covered by this Declaration.
5.07 Date of Commencement of Assessments; Due Dates; No Offsets. The annual maintenance assessments provided for herein shall commence on the date fixed by the Board of Directors to be the date of commencement and, except as hereinafter provided, shall be payable quarter-annually, semi-annually or annually, in advance, on the first day of each payment period thereafter, as the case may be and as the Board of Directors shall direct. The first annual maintenance assessment shall be made for the balance of the calendar year in which it is levied. The
period thereafter, as the case may be and as the Board of Directors shall direct. The first annual maintenance assessment shall be made for the balance of the calendar year in which it is levied. The amount of the annual maintenance assessment which may be levied forthe balance remaining in the first year of assessment shall be an amount which bears the same relationship to the annual maintenance assessment provided for in Section 5 .04 hereof as the remaining number of months in that year bears to twelve; provided, however, that ifthe date of commencement falls on other than the first day of a month, the annual maintenance assessment for such month shall be prorated by the number of days remaining in the month. The due date or dates, if to be paid in installments, of any special capital assessment or special individual assessment under Section 5.05 hereof shall be fixed in the respective resolution authorizing such assessment. Annual maintenance, special capital and special individual assessments may be established, collected and enforced by the Declarant at any time prior to the incorporation of the Association. All Assessments shall be payable in the amount specified by the Association and no offsets against such amount shall be permitted for any reason.
5.08 Duties of the Board of Directors with Respect to Assessments.
(a) The Board of Directors shall fix the date of commencement and the amount of the annual maintenance assessment against each Lot for each assessment period at least thirty (30) days in advance of such date or period and shall, at that time, prepare a roster of the Lots and assessments applicable thereto which shall be kept in the office of the Association and shall be open to inspection by any Owner, at such Owner's sole cost and expense.
repare a roster of the Lots and assessments applicable thereto which shall be kept in the office of the Association and shall be open to inspection by any Owner, at such Owner's sole cost and expense.
(b) Written notice of all assessments shall be delivered or mailed to every Owner at the address of the Lot owned by such Owner unless an alternate address is provided to the Association in writing specifically directing the Association where such notices are to be delivered. Each Owner is also required to provide the Association with the name of any tenant residing in the residence situated on the Lot owned by such Owner.
( c) The omission of the Board of Directors to fix the assessments within the time period set forth above for any year shall not be deemed a waiver or modification in any respect of the provisions of this Declaration, or a release of any Owner from the obligation to pay the assessments, or any installment thereof for that or any subsequent year, but the assessment fixed for the preceding year shall continue until a new assessment is fixed.
S.09 Non-Payment of Assessment.
(a) Delinquency. Any Assessment, or installment thereof, which is not paid in full when due shall be delinquent on the day following the due date (herein, "delinquency date") as specified in the notice of such Assessment. The Association shall have the right to reject partial payment of an Assessment and demand full payment thereof. If any Assessment or part thereof is not paid within ten ( 10) days after the delinquency date, the unpaid amount of such Assessment shall bear interest from and after the delinquency date until paid at a rate equal to the lesser of (i) eighteen percent (18%) per annum or (ii) the
inquency date, the unpaid amount of such Assessment shall bear interest from and after the delinquency date until paid at a rate equal to the lesser of (i) eighteen percent (18%) per annum or (ii) the maximum lawful rate. In addition to the foregoing, if any Assessment remains unpaid at the expiration of fifteen ( 15) days after the due date established by the Board, a late charge in the amount of$15.00 may be assessed against the non-paying Owner for each month that any portion of any Assessment remains unpaid. A service charge in the amount of $25.00, plus any applicable bank charges or fees, shall be charged for each check that is returned because of insufficient funds. The amounts of late charges and services charges may be adjusted, from time to time, by the Board consistent with any changes in the amounts of regular or special Assessments.
(b) Lien. The unpaid amount of any Assessment not paid by the delinquency date is and shall be, together with the interest thereon as provided in Section 5.09(a) hereof and the cost of collection thereof, including reasonable attorneys' fees, a continuing debt, secured by, and there is hereby impressed upon and created against each Lot, a lien and charge on the Lot of the non-paying Owner, which shall bind such Lot in the hands of the Owner, and his heirs, executors, administrators, devisees, personal representatives, successors and assigns.
The lien shall be superior to all other liens and charges against the Lot, except only for tax liens and the lien of any bona fide first mortgage or fust deed of trust now or hereafter placed upon such Lot. A subsequent sale or assignment of the Lot shall not relieve the Owner from liability for any Assessment made prior to the date of sale or assignment and thereafter
or hereafter placed upon such Lot. A subsequent sale or assignment of the Lot shall not relieve the Owner from liability for any Assessment made prior to the date of sale or assignment and thereafter becoming due nor from the lien of any such Assessment. The Board shall have the power to subordinate the lien securing the payment of any Assessment rendered by the Association to any other lien. Such power shall be entirely discretionary with the Board. As hereinbefore stated, the personal obligation of the Owner incurred at the time of such Assessment to pay such Assessment shall remain the personal obligation of such Owner and shall not pass to such Owner's successors in title unless expressly assumed by them in writing. Liens for unpaid Assessments shall not be affected by any sale or assignment of a Lot and shall continue in full force and effect. No Owner may exempt himself from liability for such Assessments or waive or otherwise escape liability for the Assessments by non-use of the Common Properties or abandonment of his Lot.
To evidence any lien, the Association shall prepare a written notice of lien setting forth the amount of the unpaid indebtedness, the name of the Owner of the Lot covered by such lien and a description of the Lot covered by such lien. Such notice shall be executed by one of the officers of the Association and shall be recorded in the Office of the County Clerk of Collin County, Texas.
( c) Remedies. The lien securing the payment of the Assessments shall attach to the Lot belonging to such non-paying Owner upon recordation of this Declaration with the priority set forth in this Section. Subsequent to the recording of a notice of the lien, the
ts shall attach to the Lot belonging to such non-paying Owner upon recordation of this Declaration with the priority set forth in this Section. Subsequent to the recording of a notice of the lien, the Association may institute an action at law against the Owner or Owners personally obligated to pay the Assessment and/or for the foreclosure of the aforesaid lien. In any foreclosure proceeding the Owner shall be required to pay the costs, expenses and reasonable attorneys' fees incurred by the Association. In the event an action at law is instituted against the Owner or Owners personally obligated to pay the Assessment there shall be added to the amount of any such Assessment: (i) the interest provided in this Section, (ii) the costs of preparing and filing the complaint in such action, (iii) the reasonable attorneys' fees incurred in connection with such action, and (iv) any other costs of collection; and in the event a judgment is obtained, such judgment shall include interest on the Assessment as provided in this Section and a reasonable attorneys' fee to be fixed by the court, together with the costs of the action.
Each Owner, by acceptance of a deed to a Lot, hereby expressly vests in the Association or its agents or trustees the right and power to bring all actions against such Owner personally for the collection of such charges as a debt, and to enforce the aforesaid liens by all methods available for the enforcement of such liens, including non-judicial foreclosure pursuant to Section 51.002 of the Texas Property Code, and such Owner hereby expressly grants to the Association the private power of sale in connection with said liens.
The Association may also suspend the Association membership and voting rights of any
and such Owner hereby expressly grants to the Association the private power of sale in connection with said liens.
The Association may also suspend the Association membership and voting rights of any Owner who is in default in the payment of any Assessment due in accordance with this Declaration and/or the Bylaws until paid in full.
( d) Notice to Mortgagees. The Association may, and upon the written request of any mortgagee holding a prior lien on any part of the Properties shall, report to said mortgagee any Assessments remaining unpaid for longer than thirty (30) days after the delinquency date of such Assessment.
( e) Notice to Owners. Notwithstanding anything to the contrary contained in this Declaration, before the Association may suspend an Owner's right to use the Common Properties, file a suit against an Owner other than a suit to collect the regular maintenance assessments or any special assessment or foreclosure under a lien granted to the Association, charge an Owner for property damage or levy a fine for a violation of the restrictions or bylaws or rules of the Association, the Association or its agent shall give written notice to the Owner in accordance with Section 209.006 of the Texas Residential Property Owners Protection Act.
S.10 Subordination of the Lien to Mortgages. The lien securing the payment of the Assessments shall be subordinate and inferior to the lien of any bona fide first lien mortgage or deed of trust now or hereafter recorded against any Lot; provided, however, that such subordination shall apply only to the Assessments which have become due and payable prior to a sale, whether public or private, of such property pursuant to the terms and conditions of any such mortgage or deed of
shall apply only to the Assessments which have become due and payable prior to a sale, whether public or private, of such property pursuant to the terms and conditions of any such mortgage or deed of trust. Such sale shall not relieve the new Owner of such Lot from liability for the amount of any Assessment thereafter becoming due nor from the lien securing the payment of any subsequent assessment S.11 Exempt Property.
The following property subjectto this Declaration shall be exempted from the assessments, charges and liens created in Section 5.04 and Section 5.0S(a) hereof: (a) All properties dedicated and accepted by the local public authority and devoted to public use.
(b) All Common Properties.
S.12 Estoppel Information from Board with Respect to Assessments. The Board shall upon demand at any time furnish to any Owner liable for an Assessment, such Owner's agent, a title company or such title company's agent, a resale certificate signed by an officer or agent of the Association, setting forth whether said Assessment has been paid and any and all other information requested and to which such parties are entitled under Section 207 of the Texas Property Code. The Association or its agent may charge a reasonable fee to assemble, copy, and deliver the information required by Section 207 of the Texas Property Code and may charge a reasonable fee to prepare and deliver an update of any resale certificate.
S.13 Working Capital Contributions. Upon acquisition of record title to a Lot by the first Owner other than Declarant or a home builder, a contribution shall be made by or on behalf of such first Owner to the working capital of the Association in an amount equal to
ontribution shall be made by or on behalf of such first Owner to the working capital of the Association in an amount equal to to, not in lieu oC e Annual Maintenance Assessment levied on the Lot and shall not be considered an advance payment of any portion thereof. This amount shall be paid to the Association and shall be used for operating and other expenses incurred by the Association pursuant to the terms of this Declaration and the bylaws of the Association.
S.14 Transfer Fees and Fees for Issuance of Resale Certificates. The Association may, at its sole discretion, enter into contracts with third parties to oversee the daily operation and management of the Association. These third parties may, and probably will, have fees, which will be charged to an Owner for the transfer of a significant estate or fee simple title to a Lot and the issuance of a resale certificate. Transfer fees and fees for the issuance of a resale certificate are not refundable and may not be regarded as a prepayment of or credit against Annual Maintenance Assessments or Special Capital Assessments; and are in addition to the Working Capital Contribution in Section 5.13 above. This section does not obligate the Association or any third party to levy such fees.
ARTICLE VI GENERAL POWERS AND DUTIES OF BOARD OF DIRECTORS OF THE ASSOCIATION 6.01 Powers and Duties. The affairs of the Association shall be conducted by its Board of Directors. Prior to the Conversion Date, Declarant shall select and appoint the Board ofDirectors, each of whom shall be a Class A or Class B Member, or an officer, employee, representative or agent
f Directors. Prior to the Conversion Date, Declarant shall select and appoint the Board ofDirectors, each of whom shall be a Class A or Class B Member, or an officer, employee, representative or agent of a Class A or Class B Member. Thereafter, the Board of Directors shall be selected in accordance with the Certificate of Formation and Bylaws of the Association. The Board, for the benefit of the Properties, the Common Properties and the Owners, shall provide and pay for, out of the funds(s) collected by the Association pursuant to Article Y above, the following: (a) Care and preservation of the Common Properties and the furnishing and upkeep of any desired personal property for use in the Common Properties. Expenditures forthe repair or installation of capital improvements, not included in the annual maintenance budget, may be paid from the reserve fund as specifically provided in Section 6.05 herein.
(b) Care and maintenance of the fencing, irrigation, landscaping, screening walls, and entry features, and other items which may be constructed on and constitute a part of the Common Properties. Maintenance includes all repair, rebuilding or cleaning deemed necessary by the Board of Directors.
( c) Should the Board so elect, maintenance of exterior grounds, drives, parkways, private streets and access areas, including care of trees, shrubs and grass, the exact scope of which shall be further specified by the Board from time to time. In particular, the Board shall be empowered to contract with persons or entities who shall be responsible for the maintenance of landscaping, trees, shrubs, grass and like improvements which are located on the Common Properties and/or the Lots, except for landscaping and other like
ho shall be responsible for the maintenance of landscaping, trees, shrubs, grass and like improvements which are located on the Common Properties and/or the Lots, except for landscaping and other like improvements which are located within rear yards or side yards enclosed by a solid fence, which shall be maintained by the individual Lot Owner. Maintenance services contracted for by the Board in accordance with this paragraph shall be paid for out of Association funds.
( d) The services of a person or firm to manage and/or provide consultation to the Association or any separate portion thereof, to the extent deemed advisable by the Board, and the services of such other personnel as the Board shall determine to be necessary or proper for the operation of the Association, whether such personnel are employed directly by the Board or by the manager.
( e) Legal and accounting services.
(f) A policy or policies of insurance ensuring the Association, its officers and directors against any liability to the public or to the Owners (and/ or their invitees or tenants) incident to the operation of the Association, including, without limitation, officers' and directors' liability insurance.
(g) Workers' compensation insurance to the extent necessary to comply with any applicable laws.
(h) Such fidelity bonds as may be required by the Bylaws or as the Board may determine to be advisable.
(i) Any other materials, supplies, insurance or property owned by the Association, furniture, labor, services, maintenance, repairs, alterations, taxes or assessments which the Board is required to obtain or pay for pursuant to the terms of this Declaration or by law or which in its opinion shall be necessary or proper for the operation or protection of
assessments which the Board is required to obtain or pay for pursuant to the terms of this Declaration or by law or which in its opinion shall be necessary or proper for the operation or protection of the Association or for the enforcement of this Declaration.
(j) To execute all declarations of ownership for tax assessment purposes and to pay all taxes with regard to the Common Properties.
(k) To enter into agreements or contracts with insurance companies, taxing authorities and the holders of mortgage liens on one or more Lots with respect to: (i) taxes on the Common Properties and (ii) insurance coverage of the Common Properties, as they relate to the assessment, collection and disbursement process envisioned in this Declaration.
(1) To borrow funds to pay costs of operation, secured by assignment or pledge of rights against delinquent Owners, if the Board sees fit.
(m) To enter into contracts, maintain one or more bank accounts, and generally, to have all the powers necessary or incidental to the operation and management of the Association and the Common Properties, expressly including the power to enter into management and maintenance contracts.
(n) If, as, and when the Board, in its sole discretion, deems necessary it may take action to protect or defend the Common Properties from loss or damage by suit or otherwise, to sue or defend in any court of law on behalf of the Association and to provide adequate reserves for repairs and replacements.
(o) To make reasonable rules and regulations for the operation and use of the Common Properties and to amend them from time to time, provided that any rule or regulation may be amended or repealed by an instrument in writing signed by a majority of
the operation and use of the Common Properties and to amend them from time to time, provided that any rule or regulation may be amended or repealed by an instrument in writing signed by a majority of the Members, or, with respect to a rule applicable to less than all of the Properties, by a majority of the Members in the portions affected.
(p) Subsequent to incorporation, to make available to each Owner, within one hundred twenty ( 120) days after the end of each year, an unaudited annual report.
(q) Pursuant to Article VII herein, to adjust the amount, collect, and use any insurance proceeds to repair damage or replace lost property; and if proceeds are insufficient to repair damage or replace lost property, to assess the Members in proportionate amounts to cover the deficiency.
(r) If, as and when the Board, in its sole discretion, deems necessary, it may take action to enforce the provisions of this Declaration, the provisions of any Supplemental Declaration and any rules made hereunder and to enjoin and/or seek damages from any Owner for violation of such provisions or rules.
6.02 Board Powers. From and after the date on which the title to the Common Properties has been conveyed to the Association, the Board shall have the right to contract for all goods, services and insurance, and the exclusive right and obligation to perform the functions of the Board, except as otherwise provided herein.
6.03 Maintenance Contracts. The Board, on behalf of the Association, shall have full power and authority to contract with any Owner or any third party for the performance by the Association of services upon such terms and conditions and for such consideration as the Board may
ave full power and authority to contract with any Owner or any third party for the performance by the Association of services upon such terms and conditions and for such consideration as the Board may deem proper, advisable and in the best interest of the Association.
6.04 Liability Limitations. No Member, officer, or agent of the Association, or member or agent of the Board of Directors shall be personally liable for debts contracted for, or otherwise incurred by the Association, or for a tort of another Member, whether such other Member was acting on behalf of the Association or otherwise. Neither Declarant, the Association, its directors, officers, agents, or employees shall be liable for any incidental or consequential damages for failure to inspect any premises, improvements or portion thereof or for failure to repair or maintain the same.
The Common Properties may be subject to storm water overflow, natural bank erosion and other natural or man-made events or occurrences to extents which cannot be defined or controlled.
Under no circumstances shall Declarant ever be held liable for any damages or injuries of any kind or character or nature whatsoever resulting from: (i) the occurrence of any natural phenomena; (ii) the failure or defect of any structure or structures situated on or within the Common Properties; and (iii) any act, conduct, omission or behavior of any individual, group of individuals, entity or enterprise occurring on, within or related to the Common Properties.
6.05 Reserve Funds. The Board may establish capital reserve funds, for such purposes as may be determined by the Board, including, but not limited to the maintenance, repair and/or replacement of capital assets, which funds may be maintained and accounted for separately from
purposes as may be determined by the Board, including, but not limited to the maintenance, repair and/or replacement of capital assets, which funds may be maintained and accounted for separately from other funds maintained for annual operating expenses and may establish separate, irrevocable trust accounts in order to better demonstrate that the amounts deposited therein are capital contributions and are not net income to the Association. Expenditures from any such fund will be made at the direction of the Board. The reserve fund provided for herein shall be used for the general purposes of promoting the recreation, health, welfare, common benefit, and enjoyment of the Owners and occupants of the subdivision, and maintaining the subdivision and improvements therein, all as may be more specifically authorized from time to time by the Board of Directors.
ARTICLE VII INSURANCE; REPAIR AND RESTORATION 7.01 Right to Purchase Insurance. The Association shall have the right and option to purchase, carry and maintain in force insurance covering any or all portions of the Common Properties, the improvements thereon and appurtenant thereto, for the interest of the Association and of all Members thereof, in such amounts and with such endorsements and coverage as shall be considered good sound insurance coverage for properties similar in construction, location and use to the subject property. Such insurance may include, but need not be limited to: (a) Insurance against loss or damage by fire and hazards covered by a standard extended coverage endorsement in an amount which shall be equal to the maximum insurable replacement value, excluding foundation and excavation costs as determined annually by the insurance carrier.
d extended coverage endorsement in an amount which shall be equal to the maximum insurable replacement value, excluding foundation and excavation costs as determined annually by the insurance carrier.
(b) Public liability and property damage insurance on a broad form basis.
( c) Fidelity bond for all directors, officers and employees of the Association having control over the receipt or the disbursement of funds in such penal sums as shall be determined by the Association in accordance with its Bylaws.
( d) Officers and directors liability insurance.
7.02 Insurance Proceeds. Proceeds of insurance shall be disbursed by the insurance carrier to the Association or contractors designated by the Association as the Board of Directors may direct. The Association shall use the net insurance proceeds to repair and replace any damage or destruction of property, real or personal, covered by such insurance. Any balance from the proceeds of insurance paid to the Association, as required in this Article, remaining after satisfactory completion of repair and replacement, shall be retained by the Association as part of a general reserve fund for repair and replacement of the Common Properties.
7 .03 Insufficient Proceeds. If the insurance proceeds are insufficient to repair or replace any loss or damage, the Association may levy a special assessment as provided for in Article V of this Declaration to cover the deficiency. If the insurance proceeds are insufficient to repair or replace any loss or damage for which an Owner is bound hereunder, such Owner shall, as such Owner's undivided responsibility, pay any excess costs of repair or replacement 7.04 Mortgagee Protection. There may be attached to all policies of insurance against
reunder, such Owner shall, as such Owner's undivided responsibility, pay any excess costs of repair or replacement 7.04 Mortgagee Protection. There may be attached to all policies of insurance against loss or damage by fire and other hazards, a mortgagee's or lender's loss payable clause; provided, however, that amounts payable under such clause to the mortgagee may be paid to the Association to hold for the payment of costs of repair or replacement, subject to the provisions of Section 7 .02 hereof. The Association shall be responsible to hold said monies or to collect additional monies if the proceeds are insufficient to pay for the cost of all repairs or replacements and shall ensure that all mechanics', materialmen's and similar liens which may result from said repairs or replacements are satisfied.
7.05 Destruction oflmprovements on Individual Lots. In the event of destruction (total or partial) to the improvements on any individual Lot due to fire or any other cause each Owner covenants and agrees to clear and remove any and all debris resulting from such damage within two (2) months after the date that the damage occurs or longer with the written consent of the Association and to complete all necessary repairs or reconstruction of the damaged improvements within one (l) year after the date that the damage occurs or longer with the written consent of the Association.
ARTICLE VIII USE OF COMMON PROPERTIES The Common Properties may be occupied and used as follows: 8.01 Restricted Actions by Owners. No Owner shall permit anything to be done on or in the Common Properties which would violate any applicable public law or zoning ordinance or
ed and used as follows: 8.01 Restricted Actions by Owners. No Owner shall permit anything to be done on or in the Common Properties which would violate any applicable public law or zoning ordinance or which will result in the cancellation of or increase of any insurance carried by the Association. No waste shall be committed in or on the Common Properties.
8.02 Damage to the Common Properties and Public Parks. Each Owner shall be liable to (i) the Association for any damage to the Common Properties and/or (ii) to the City of Prosper for any damage to the public parks, caused by the negligence or willful misconduct of the Owner or such Owner's family, guests, pets, tenants or invitees.
8.03 Rules of the Board. All Owners and occupants shall abide by any rules and regulations adopted by the Board. The Board is granted the right to prescribe rules and regulations governing the use and enjoyment of the Common Properties. Such rules and regulations may designate various portions of the Common Properties to the exclusive use and enjoyment of one or more Owners. The Board shall have the power to enforce compliance with said rules and regulations by all appropriate legal and equitable remedies, and an Owner determined by judicial action to have violated said rules and regulations shall be liable to the Association for all damages and costs, including reasonable attorney's fees, incurred by the Association in connection therewith.
ARTICLE IX USE OF PROPERTIES AND LOTS; PROTECTIVE COVENANTS The Properties and each Lot situated thereon shall be constructed, developed, reconstructed, repaired, occupied and used as follows: 9.01 Public Use Permitted. Any restrictions contained herein shall not be intended to
each Lot situated thereon shall be constructed, developed, reconstructed, repaired, occupied and used as follows: 9.01 Public Use Permitted. Any restrictions contained herein shall not be intended to restrict or prohibit, and shall not restrict or prohibit the State of Texas or any political subdivision thereof, including independent school districts, from using any of the property affected hereby for public purposes, regardless of the nature of said use.
9.02 Residential Purposes. Except as hereinafter provided, no Owner or other occupant shall use or occupy such Owner's Lot, or permit the same or any part thereof to be used or occupied, for any purpose other than as a private single family detached residence for the Owner or such Owner's tenant and their families and domestic servants employed on the premises. As used herein the term "single family residential purposes" shall be deemed to prohibit specifically, but without limitation, the use of any Lot for a duplex apartment or other apartment use. Accessory buildings that allow for domestic servants, "granny flats," or guests may be built on the same Lot as the primary residence; provided, however, neither all nor any part of such assessory building may be leased to parties unrelated to the Owner of the primary residence on the Lot. Notwithstanding anything contained herein to the contrary, Owners or tenants of dwellings that actually occupy such dwelling may use such dwelling for limited business purposes consistent with rules and regulations promulgated by Declarant or the Board. In no event shall such limited business use unreasonably interfere with the quiet enjoyment of the other Owners of the residences constructed on their Lots
tions promulgated by Declarant or the Board. In no event shall such limited business use unreasonably interfere with the quiet enjoyment of the other Owners of the residences constructed on their Lots or involve the sale of goods or merchandise to the public, where members of the public visit the residence on a daily or frequent basis. In addition, consultation with clients or customers at a residence constructed on a Lot shall be permitted between 9:00 a.m. and 5:00 p.m. on regular working days, or as otherwise permitted in the rules and regulations promulgated by Declarant or the Board. The use of a dwelling constructed on a Lot for the maintenance of a personal or professional library; for the keeping of personal, business or professional records of accounts; or for the handling of personal or professional telephone calls or correspondence shall not be deemed to be a violation of these restrictions.· 1n addition, so long as a Class B Member owns any Lot which is for sale, the Class B Members and their employees, representatives and agents may maintain business, leasing and/or sales offices, sale models and other sales facilities within the Properties as Declarant shall deem appropriate.
Garage sales, moving sales, rummage sales, or similar activities on any Lot shall not be permitted except upon such dates as the Association may establish from time to time. Any such sales shall be subject to such other restrictions as may be imposed by the Association from time to time.
9.03 Minimum Lot Area. Each Lot shall contain at least ten thousand ( 10,000) square feet. No Lot shall be resubdivided; provided, however, that Declarant shall have and reserves the right, at any time, or from time to time, upon the joinder and consent of the appropriate county and/or
eet. No Lot shall be resubdivided; provided, however, that Declarant shall have and reserves the right, at any time, or from time to time, upon the joinder and consent of the appropriate county and/or municipal authorities, and with the joinder and consent of the directly affected Owners, to file a rep lat of the Plat to effect a resubdivision or reconfiguration of any Lots then owned by Declarant, so long as, such replat results in each resubdivided Lot containing not less than the minimum lot size prescribed by the zoning ordinances of the City of Prosper, Texas. Owners shall not unreasonably withhold or delay their joinder in or consent to the replat or amendments to the Plat. The privilege to replat Lots owned by the Declarant reserved in this Section 9.03 shall be exercisable only by Declarant.
9.04 Minimum Floor Space. All floor areas referenced below are for air-conditioned floor areas, exclusive of porches, garages, or breezeways attached to the main dwelling. Each dwelling constructed on Lots I through 15 of Block B of the subdivision, as shown on the Plat, shall contain a minimum of two thousand five hundred (2,500) square feet. Each dwelling constructed on a Lot other than on Lots I through 15 of Block B of the subdivision, as shown on the Plat, shall contain a minimum of two thousand (2,000) square feet. Future phases of the subdivision may have minimum square footage requirements that are greater or less than the requirement set forth above.
The exact minimum square footage requirement will be set forth in the Supplemental Declaration adding such phase to the scheme of this Declaration.
9.05 Combining Lots. Any person owning two or more adjoining Lots may consolidate,
e Supplemental Declaration adding such phase to the scheme of this Declaration.
9.05 Combining Lots. Any person owning two or more adjoining Lots may consolidate, by replatting, such Lots into a single building location for the purpose of constructing one (!)
residential structure thereon and such other improvements as are permitted herein; provided, however, any such consolidation must comply with the rules, ordinances and regulations of any governmental authority having jurisdiction over the Properties. In the event of any such consolidation, the consolidated Lots shall be deemed to be a single Lot, shall be entitled to one (1) vote, shall be assessed as a single Lot, and shall be treated as a single Lot for all other purposes of applying the provisions of this Declaration. Any such consolidation shall give consideration to easements as shown and provided for on the Plat and any required abandonment or relocation of any such easements shall require the prior written approval of Declarant as well as the prior written approval of any utility company having the right to the use of such easements. Combining of portions of Lots into a single building site is prohibited.
9.06 Setback Requirements and Building Location. All front, side and rear setbacks must be approved by the Architectural Control Committee, and must meet the requirements of the City of Prosper and the requirements of the Plat. The location of the main residence on each Lot and the facing of the main elevation with respect to the street shall be subject to the written approval of the Architectural Control Committee. No building or structure of any type shall be erected on any
he facing of the main elevation with respect to the street shall be subject to the written approval of the Architectural Control Committee. No building or structure of any type shall be erected on any Lot nearer to the property lines indicated by the minimum building setback line on the Plat; provided, however, one-story living areas, side-entry garages that are one and one-half(! Y,) stories or less, and/or porches may encroach, not more than ten feet (10'), into the front yard of the Lot.
9.07 Height. No building or structure on any Lot shall contain more than two (2) stories or exceed, in height, the maximum height allowed by the City of Prosper, such heightto be measured and determined in accordance with the method approved by the City of Prosper.
9.08 Driveways, Walks, and Hardscape. Each Lot must be accessible to the adjoining street by a driveway suitable for such purposes and approved in writing as to design, materials and location by the Architectural Control Committee before the residential structure located on such Lot may be occupied or used. All driveways shall have all-weather surface and shall accommodate at least two (2) standard sized vehicles. Circular driveways are not allowed without the prior written approval of the Architectural Control Committee; provided, however, comer Lots may have two (2) curb cuts (one on each street), with the prior written approval of the Architectural Control Committee. Front lead walks shall be at least four and one-half feet ( 4-1/2') wide from the sidewalk or driveway to the porch or stoop attached to the residence. The homebuilder constructing the initial residence on each Lot shall construct a concrete walk adjacent to each street and connect the walk
or driveway to the porch or stoop attached to the residence. The homebuilder constructing the initial residence on each Lot shall construct a concrete walk adjacent to each street and connect the walk to any common area walk adjacent to the Lot. Driveways constructed to the side yard Lot line shall be constructed so as to provide a continuation of the side yard drainage swale to allow storm water runoff from the Lot to the public street. All such driveways conveying storm water runoff shall be continuously paved. In addition, all parking and maneuvering portions of a driveway shall be paved.
Straight portions of drives and pass through drives to rear yard detached garages may be all weather pea gravel, decomposed granite mulch or other material approved in writing by the Architectural Control Committee.
9.09 Access. No driveways or roadways may be constructed on any Lot to provide access to any adjoining Lot except as expressly provided on the Plat, or otherwise approved in writing by the Architectural Control Committee.
9.10 Drainage. Neither the Declarant nor its successors or assigns shall be liable for any loss of, use of, or damage done to, any shrubbery, trees, flowers, improvements, fences, walks, sidewalks, driveways, or buildings of any type or the contents thereof on any Lot caused by any water levels, rising waters, or drainage waters. After the residence to be constructed on a Lot has been substantially completed, the Lot will be graded so that surface water will generally flow to streets, drainage easements, or Common Properties, and in conformity with the general drainage plans for the subdivision. The Owner or Owners of each Lots shall be responsible for maintaining the
w to streets, drainage easements, or Common Properties, and in conformity with the general drainage plans for the subdivision. The Owner or Owners of each Lots shall be responsible for maintaining the drainage on such Owner's Lot in accordance with this Section and any rules or regulations established by the Association.
9.11 Utilities. Each residence situated on a Lot shall be connected to the water and sewer lines as soon as practicable after same are available at the Lot line. No privy, cesspool, or septic tank shall be placed or maintained upon or in any Lot. However, portable toilets will be required during building construction. The installation and use of any propane, butane, LP Gas or other gas tank, bottle or cylinder of any type (except portable gas grills), shall require the prior written approval of the Architectural Control Committee, and, if so approved, the Architectural Control Committee may require that such tank, bottle or cylinder be installed underground. Any control boxes, valves, connections, utility risers or refilling or refueling devices shall be completely landscaped with shrubbery or screened with fencing so as to obscure their visibility from the streets within or adjoining the Properties or from any other Lot.
9.12 Construction Requirements.
(a) The front elevation of the first floor exterior surface (exclusive of openings for windows and doors) and the front elevation of all of the second floor exterior surface (exclusive of gables and openings for windows and doors) in the same vertical plane as the first floor exterior surface of all residential dwellings shall be not less than eighty-five percent (85%) Unit Masonry (as such term is hereinafter defined) or hand-troweled cement
ical plane as the first floor exterior surface of all residential dwellings shall be not less than eighty-five percent (85%) Unit Masonry (as such term is hereinafter defined) or hand-troweled cement based, 3-coat stucco. The side and rear elevations of the first floor exterior surface (exclusive of openings for windows and doors) of all residential dwellings shall be not less than seventy-five percent (75%) Unit Masonry or hand-troweled cement-based, 3-coat stucco. The second floor exterior surfaces (exclusive of gables and openings for windows and doors) not in the same vertical plane as the first floor exterior surface of all residential dwellings and other exterior surfaces not constructed of Unit Masonry shall be covered by wood shake shingles, cement-based troweled stucco, lap siding of a 25-year guaranteed cementitious material, or other materials approved in writing by the Architectural Control Committee. The term "Unit Masonry" shall mean brick, natural stone, or concrete cast stone (or a combination of these materials) laid up by unit and set in mortar. To facilitate enforcement of these standards, all plans submitted to the Architectural Control Committee in accordance with Section 10.02 of this Declaration shall indicate the size of the surface areas subject to these masonry requirements and the size of the surface areas purposed to be constructed or covered by masonry. No previously used materials, other than fired antique brick, shall be permitted on the exterior of the residential structures located within the Properties, without the prior written approval of the Architectural Control Committee.
(b) Roofs shall be covered in slate, tile, standing seam metal, heavy weight
ential structures located within the Properties, without the prior written approval of the Architectural Control Committee.
(b) Roofs shall be covered in slate, tile, standing seam metal, heavy weight architectural grade composition shingles, simulated tile or slate materials, or other materials approved in writing by the Architectural Control Committee; provided, however, no wood shingle roofs will be allowed on any dwelling. The Architectural Control Committee will only approve roofing materials which are of a quality consistent with the external design, color and appearance of other improvements within the subdivision. The minimum roof pitch shall be 8" x 12" for the rooflines in profile and visible from the public street in front of the residence. Split pitches shall be permitted so that rooflines not in profile and visible from the public street in front of the residence may have a minimum roof pitch of 6" x 12".
Porch roofs and breezeway roofs may have a minimum roof pitch of 3" x 12", if roofed in standing seam metal, and, if roofed in composition shingle, the minimum roof pitch may be 4" x 12". Detached garages and accessory buildings shall be roofed in the same materials as the main residence and shall have a minimum roof pitch of 4" x 12". Deviations in roof pitch shall be permitted, with the written approval of the Architectural Control Committee, in certain architectural styles, such as lower pitched roofs for Mediterranean, Texas Regional, Farmhouse style, or Tuscan style residences. Vent stacks shall be painted to match the roof and shall be located, to the extent possible, on roof surfaces not visible from public streets.
(c) Construction of a new single family dwelling on any Lot shall include the
painted to match the roof and shall be located, to the extent possible, on roof surfaces not visible from public streets.
(c) Construction of a new single family dwelling on any Lot shall include the placement of a four ( 4) foot wide concrete sidewalk across the entire frontage of such Lot.
Such sidewalks shall be constructed in conformity with the then existing ordinances, standards and codes promulgated by the City of Prosper. Each Owner shall be responsible for the maintenance, repair, and replacement of any sidewalk or walkway situated on such Owner's Lot.
(d) No above ground-level swimming pools shall be installed on any Lot. This provision is not intended to prohibit inflatable pools, no greater than twenty-fourinches (24 ") in depth, typically used by toddlers.
( e) All exterior construction of the primary residential structure, garage, porches, and any other appurtenances or appendages of every kind and character on any Lot and all interior construction (including, but not limited to, all electrical outlets in place and functional, all plumbing fixtures installed and operational, all cabinet work, all interior walls, ceilings, and doors shall be completed and covered by paint, wallpaper, paneling, or the like, and all floors covered by wood, carpet, tile or other similar floor covering) shall be completed not later than one (1) year following the commencement of construction. For the purposes hereof, the term "commencement of construction" shall be deemed to mean the date on which the foundation forms are set.
(f) No projections of any type shall be placed or permitted to remain above the roof of any residential building with the exception of one or more chimneys and one or more vent stacks without the written permission of the Architectural Control Committee.
itted to remain above the roof of any residential building with the exception of one or more chimneys and one or more vent stacks without the written permission of the Architectural Control Committee.
(g) All chimney risers projecting through the roof surface will be clad in cementitious siding, cementitious stucco board sheathing, cultured masonry, or stucco. No wood or wood based composite siding or board and batten facing will be permitted for any chimney projecting above the roof surface. Chimney stackers will be fitted with a black or near black, in color, metal diffuser to hide any turbine.
9.13 Garages and Servants Quarters. Each residential dwelling erected on any Lot shall provide garage space for a minimum of two (2) conventional automobiles. All garage doors shall be equipped with an automatic and remote controlled door opener, and shall be closed at all times when not in use. In the event a residential dwelling erected on a Lot has three (3) garage stalls attached to the dwelling, only one (I) single garage door may face a public street. In the event a residential dwelling erected on a Lot has four ( 4) or more garage stalls attached to the dwelling, only two (2) garage stalls may face a public street. Garages shall be outside swing types or, if facing a public street, shall be set back at least an additional ten feet (10') behind the building setback line for the Lot. All garage doors facing a public street, any portion of the Common Properties, or a park shall be detailed with batten stripes, faced with rough sawn wood, or utilize a high quality inlaid panel door, either covered with a projecting roof canopy or recessed from the plane of the adjacent
shall be detailed with batten stripes, faced with rough sawn wood, or utilize a high quality inlaid panel door, either covered with a projecting roof canopy or recessed from the plane of the adjacent wall surface at least eighteen inches (18") or otherwise treated in an architectural manner, approved in writing by the Architectural Control Committee, in order to reduce the scale and mass of the garage doors; provided, however, any garage door set back more than twenty feet (20') from the front or side building setback line or obstructed from view from the public street, Common Properties, or park with a wall or facade will not need a roof canopy. Detached garages, servants quarters, and storage rooms must be located behind the main residence and must be approved in writing by the Architectural Control Committee. Detached garages may be attached to the main residence with a covered breezeway approved in writing by the Architectural Control Committee. Carports and porte cocheres must be approved in writing by the Architectural Control Committee. No garage shall ever be changed, altered, reconstructed or otherwise converted for any purpose inconsistent with the garaging of automobiles, unless a new garage is constructed to meet the requirements of this Section.
No garage shall face a residential street or any of the Common Properties, unless the garage is located behind the main residence and is approved in writing by the Architectural Control Committee. Notwithstanding anything to the contrary set forth above, Declarant and/or builders may utilize the garage of a residence as a sales or construction office during the construction and sales of residences within the Properties.
9.14 Landscaping and Sprinkler System. Any and all plans forthe landscaping of front
residence as a sales or construction office during the construction and sales of residences within the Properties.
9.14 Landscaping and Sprinkler System. Any and all plans forthe landscaping of front yards and of side yards not enclosed by solid fencing, including alterations, changes or additions thereto, shall be subject to the written approval of the Architectural Control Committee. Each Lot on which a residential dwelling is constructed shall have and contain an underground water sprinkler system for the purpose of providing sufficient water to all front yards and all side yards not enclosed by solid fencing. Each Lot shall be fully landscaped within 120 days after the date the residence on the Lot is 95% complete. Each Lot Owner shall be responsible for maintaining his own lawn and landscaping in a healthy and attractive condition. Each Lot shall contain at least three (3) hardwood shade trees, two (2) of which will be located in the front yard of the Lot between the front building line of the residence and the right-of-way of the public street; provided, however, corner Lots shall contain at least four ( 4) hardwood shade trees, three (3) of which will be located in the front yards of the Lot. All trees shall be at least three (3) inch caliper, measured at twelve inches (12") above the ground. All hardwood trees shall be either Cedar Elm, Red Oak, Shumard Red Oak, Chinese Pistache, Live Oak, Bald Cypress, Lacebark Elm, Chinquapin Oak or other species approved in writing by the Architectural Control Committee. Multi-trunk trees are encouraged and the combination of trunks shall be added to meet the tree size requirements set forth above. All required
proved in writing by the Architectural Control Committee. Multi-trunk trees are encouraged and the combination of trunks shall be added to meet the tree size requirements set forth above. All required trees shall be installed and the portions of the front and side yards visible from the public street, Common Properties, or a park shall be sodded prior to the issuance of a certificate of occupancy for the residence situated on the Lot. A continuous landscape bed shall be constructed, planted and maintained along the front foundation of each residence and along the front and side (the side between the residence and the public street) foundations of all corner Lots. Landscape beds may extend from the residence along driveways and walks toward the street. The foundation beds are encouraged to connect to foundations beds in adjacent Lots at the common side yard Lot line. In order to protect the water quality of ponds, lakes, and streams, the use of non-organic fertilizers, herbicides, and pesticides is prohibited, without the prior written consent of the Architectural Control Committee.
9.15 Patios and Porches. Each Lot shall contain at least fifty (50) square feet of outdoor covered patio or porch area; provided, however, Lots I through 14 of Block A of the subdivision, as shown on the Plat, shall contain at least seventy-five (75) square feet of outdoor covered patio or porch area. The minimum outdoor covered patio or porch area requirements set forth above may be satisfied with enclosed screened-in porches or glass enclosed sunrooms attached to the residence.
Each Lot shall also contain at least two hundred (200) square feet of outdoor all-weather surface area patios composed of concrete, decking, flagstone, stone mulch area, or other substance approved in
Each Lot shall also contain at least two hundred (200) square feet of outdoor all-weather surface area patios composed of concrete, decking, flagstone, stone mulch area, or other substance approved in writing by the Architectural Control Committee. The total outdoor all-weather surface area may include courtyards situated in the front and rear yards of the residence.
9.16 Fences. No fence, wall or hedge shall be erected, placed or altered on any Lot without the prior written approval of the Architectural Control Committee and the design of and materials used in the construction of fences shall be subject to the prior written approval of the Architectural Control Committee. No fence, wall or hedge shall be erected, placed or altered on any Lot nearer to any street than the minimum building setback line indicated on the Plat, unless otherwise permitted by the Architectural Control Committee and in accordance with the requirements of the City of Prosper. No fence, wall or hedge shall exceed eight (8) feet in height unless otherwise specifically approved by the Architectural Control Committee. No chain link fence or other wire type fence shall be erected on any Lot except for temporary chain link fencing installed along the perimeter of the subdivision for interim security. Chain link fencing on tennis courts and dog runs will only be allowed with the express written approval of the Architectural Control Committee. All service and sanitation facilities, clothes lines, wood piles, tool sheds, air conditioning equipment, trash receptacles, and gas meters must be screened from view by fences, walls and/or landscaping so as not to be visible from the adjoining Lots and residential streets. Any
ir conditioning equipment, trash receptacles, and gas meters must be screened from view by fences, walls and/or landscaping so as not to be visible from the adjoining Lots and residential streets. Any landscaping used to screen the above-described items shall screen the view within two growing seasons. Upon submission of a written request, the Architectural Control Committee may, from time to time, at its sole discretion, permit Owners to construct fences or walls which are in variance with the provisions of this paragraph where, in the opinion of the Architectural Control Committee, the fence or wall is an integral part of the home. Fencing shall be constructed in accordance with the following restrictions based on the location of such fencing.
(a) Fencing adjacent to any portion of the Common Properties or to a public park shall be hollow steel tubular fencing (hereinafter referred to as "wrought iron style"), shall not exceed six feet ( 6') in height, shall be painted in a low gloss black or near black with an oil based paint or have a powder-coated black finish, and shall have a flat top rail. Each such fence may contain a pedestrian gate adjacent to the Common Property or public park.
(b) All Lots that are not adjacent to a Common Property or public park may utilize privacy fencing between Lots, not to exceed eight feet (8') in height. Such fencing shall have metal posts and a flat-top cap, as specified in the Architectural Standards Bulletins and Design Guidelines.
( c) The finish side of wood fencing shall face to the south or face to the east, regardless of the Lot on which the fence is constructed; provided, however, the finish side
ins and Design Guidelines.
( c) The finish side of wood fencing shall face to the south or face to the east, regardless of the Lot on which the fence is constructed; provided, however, the finish side of a wood fence shall always face a public street. Solid privacy fencing situated in the side yard of a Lot shall commence at least twenty feet (20') behind the farthest front projecting portion of the facade of the main residence constructed on the Lot.
( d) In situations where an interior side yard fence has been erected, the second side yard fence on an adjacent Lot shall continue in the same plane and setback as the existing fence to the extent reasonably possible.
( e) Side yard wrought iron style fencing shall be located at least eighteen inches (18") behind the portion of the front facade where the fence abuts the main residence constructed on the Lot.
(f) Wrought iron style fencing on comer Lots shall not exceed six feet (6') in height; shall be setback at least ten feet (IO') from the farthest projecting plane of the front facade of the main residence constructed on the Lot.
(g) Comer Lots may have privacy fencing of wood, but shall have eighteen inch (18") stone columns at the comers of the wood fence. Wood privacy fences on a comer Lot adjacent to a public street shall not exceed six feet (6') in height. At Lot comers, a stone column may encroach onto the adjacent Lot so as to be centered on the common Lot line.
The stone columns shall be six feet, six inches (6' 6") tall and shall be capped with the same stone as the column. The fencing on comer Lots may be wrought iron style, masonry, or wood.
(h) All wood fences shall be cedar or better, butt joint, and pre-stained with DuraSeal "Medium Brown #88" or as specified in the Architectural Standards Bulletins and
ht iron style, masonry, or wood.
(h) All wood fences shall be cedar or better, butt joint, and pre-stained with DuraSeal "Medium Brown #88" or as specified in the Architectural Standards Bulletins and Design Guidelines, capped with a horizontal trim board as specified in the Architectural Standards Bulletins and Design Guidelines.
(i) The cost of a perimeter fence shall be borne by the first Owner to construct the fence.
The maintenance, repair, and replacement of fences situated on the Lots shall be the responsibilities of the Owner and/or Owners who own the Lot or Lots on which such fences are located, and in no event shall the Association be responsible for the maintenance, repair, and replacement of such fences. In addition, issues involving the maintenance, repair, and/or replacement of fences situated on the Lots shall be resolved by the Owner of such Lots and not by the Association.
9.17 Trash Receptacles and Collection. Each Lot Owner shall make or cause to be made appropriate arrangements with the City of Prosper, Texas, for collection and removal of garbage and trash on a regular basis. If the Owner fails to make such provisions, the Association may do so and assess the costs thereof to the Owner. Each and every Owner shall observe and comply with any and all regulations or requirements promulgated by the City of Prosper, Texas, and/or the Association, in connection with the storage and removal of trash and garbage. No cans, bags, containers, or receptacles for the storing or disposal of trash, garbage, waste, rubbish, or debris shall be stored, kept, placed, or maintained on any Lot where visible from any street or from any of the Common
or receptacles for the storing or disposal of trash, garbage, waste, rubbish, or debris shall be stored, kept, placed, or maintained on any Lot where visible from any street or from any of the Common Properties, except solely on a day designated for removal of garbage and rubbish by the party responsible for such removal. On such designated days, and only on such days, such cans, bags, containers, and/or receptacles may be placed in front of a residence and beside a street for removal, but shall be removed from view from any street or from view from any of the Common Properties prior to the following day. All Lots shall at all times be kept in a well maintained, healthful, sanitary and attractive condition. No Lot shall be used or maintained as a dumping ground for garbage, rubbish, debris, trash, junk or other waste matter. All trash, garbage, or waste matter shall be kept in adequate containers which shall be constructed of metal, plastic or masonry materials, with tightly-fitting lids, or other containers approved by the City of Prosper, Texas, and which shall be maintained in a clean and sanitary condition. An Owner may place trash on the street curb abutting his Lot only on those days designated by the City of Prosper, Texas, as trash collection days; provided, however, such trash must be kept neatly contained in a sanitary, tightly-sealed metal, plastic or other container. No Lot shall be used for open storage of any materials whatsoever, except that new building materials used in the construction of improvements erected on any Lot may be placed upon such Lot at the time construction is commenced and may be maintained thereon for a reasonable time, so long as the construction progresses without unreasonable delay, until completion
y be placed upon such Lot at the time construction is commenced and may be maintained thereon for a reasonable time, so long as the construction progresses without unreasonable delay, until completion of the improvements, after which the materials shall either be removed from the Lot or stored in a suitable enclosure on the Lot. No garbage, trash, debris, or other waste matter of any kind shall be burned on any Lot.
9.18 Exterior Lighting. No exterior light, including landscape lighting, shall be installed or maintained on any Lot without the prior written approval of the Architectural Control Committee.
Further, and notwithstanding such prior written approval, upon being given notice by the Architectural Control Committee that any exterior light is objectionable, the Owner of the Lot on which same is located will immediately remove said light or shield the same in such a way that it is no longer objectionable.
9.19 Window Coolers. No window or wall type air-conditioners or water coolers shall be permitted to be used, erected, placed or maintained on or in any residential building on any part of the Properties.
9.20 Antennas Restrictions, Satellite Dishes, Playground Structures, and Other Rear Yard Uses. No radio or television aerial wires or antennas shall be maintained on the outside ofany building nor shall any free standing antennas of any style be permitted. All radio or television aerial wires or antennas must be built within the main structure and must not be visible from outside of such structure. The location of all satellite dishes shall be subject to the prior written approval of the Architectural Control Committee. No satellite dish, playground structure, dog run, or vegetable
ch structure. The location of all satellite dishes shall be subject to the prior written approval of the Architectural Control Committee. No satellite dish, playground structure, dog run, or vegetable gardens shall be visible from public streets, Common Properties or adjoining Lots.
9.21 Temporary Structures and Vehicles. No temporary structure of any kind shall be erected or placed upon any Lot. No trailer, mobile, modular or prefabricated home, tent, shack, or barn shall be placed on any Lot, either temporarily or permanently, and no residence, house, garage, shed or other structure appurtenant thereto shall be moved upon any Lot from another location, except for a sale, pre-sale or construction trailer; provided, however, that Declarant reserves the exclusive right to erect, place and maintain, and to permit builders to erect, place and maintain such facilities in and upon the Property as in its sole discretion may be necessary or convenient during the period of and in connection with the sale of Lots, construction and selling of residences and constructing other improvements on the Properties. Such facilities may include, but not necessarily be limited to, a temporary office building, storage area, signs, portable toilet facilities and sales office. Declarant and builders shall also have the temporary right to use a residence situated on a Lot as a temporary office or model home during the period of and in connection with the construction and sales operations on the Properties, but in no event shall a builder have such right for a period in excess of one (1) year after the date of substantial completion of his last residence on the Properties. Any truck, bus, boat, boat trailer, trailer, recreational vehicle, sports vehicles,
a period in excess of one (1) year after the date of substantial completion of his last residence on the Properties. Any truck, bus, boat, boat trailer, trailer, recreational vehicle, sports vehicles, campmobile, camper or any vehicle other than conventional automobile shall, if brought within the Properties, be in good working order, with evidence of current inspection and current registration, and shall be stored, placed or parked within the garage of the appropriate Owner or located behind the applicable setback line and screened or concealed from view from adjoining Lots, Common Properties, or public streets, unless approved in writing by the Architectural Control Committee.
The term "recreational vehicle" shall mean any mobile unit (motorized or under tow) designed, converted, or modified for use as a sleeping, cooking, gathering, or any use other than human transport and material transport typically associated with a car, sport utility vehicle, or pick-up truck, and the term "sports vehicle" shall mean a vehicle designed for, or modified for, off-road or other recreational use, which is not a standard car, sport utility vehicle, or pick-up truck.
9.22 Parking. On-street parking is restricted to approved deliveries, pick-up or short-time guests and invitees and shall be subject to such reasonable rules and regulations as shall be adopted by the Board of Directors. Parking in driveways is permitted; provided, however, no inoperable vehicles, no stored vehicles, or vehicles not utilized on a daily basis shall be permitted to be parked or stored in driveways or in streets, which are not screened by solid fencing.
9.23 Signs. No signs, flags or flag poles shall be displayed to the public view on any Lot
hall be permitted to be parked or stored in driveways or in streets, which are not screened by solid fencing.
9.23 Signs. No signs, flags or flag poles shall be displayed to the public view on any Lot without the prior written approval of the Architectural Control Committee, with the following exceptions: (i) Declarant and home builders may erect and maintain one or more signs or flags for the construction, development, operation, promotion and sale of the Lots; (ii) the patriotic display of flags not exceeding 4' x 6' in size shall be permitted on customary holidays; and (iii) signs of customary dimensions (3' x 4' maximum) advertising said property or portions thereof for sale. No sign of any kind or character, including (a) any signs in the nature of a "protest" or complaint against Declarant or any home builder, (b) or that describe, malign, or refer to the reputation, character, or building practices ofDeclarant or any home builder, or ( c) discourage or otherwise impact or attempt to impact anyone's decision to acquire a lot or residence in the Subdivision shall be displayed to the public view on any Lot or from any home on any Lot. Declarant, any home builder, or their agents shall have the right, without notice, to remove any sign, billboard, or other advertising structure that does not comply with the above, and in so doing shall not be subject to any liability for trespass or any other liability in connection with such removal. The failure to comply with this restriction will also subject any Owner to a fine of $50.00 per day that such Owner fails to comply with this restriction. The non-payment of such fine can result in a lien against said Lot, which lien may be
ion will also subject any Owner to a fine of $50.00 per day that such Owner fails to comply with this restriction. The non-payment of such fine can result in a lien against said Lot, which lien may be foreclosed on in order to collect such fine. Notwithstanding anything herein contained to the contrary, any and all signs, if allowed, shall comply with all sign standards of the City of Prosper, Texas, as such standards may be applicable to the Properties.
9.24 Removal of Dirt. The digging of dirt or the removal of any dirt from any Lot is prohibited, except as necessary in conjunction with landscaping or construction of improvements thereon.
9.25 Drilling and Mining Operations. No oil drilling, water drilling or development operations, oil refining, quarrying or mining operations of any kind shall be permitted upon or in any Lot, nor shall oil wells, water wells, tanks, tunnels, mineral excavations or shafts be permitted upon or in any Lot. No derrick or other structure designed for use in boring for oil, natural gas or water shall be erected, maintained or permitted upon any Lot.
9.26 Offensive Activities. No noxious or offensive activity shall be conducted on any Lot nor shall anything be done thereon which is or may become an annoyance or nuisance to the other Owners. No animals, livestock or poultry of any kind shall be raised, bred or kept on any residential Lot, except that dogs, cats or other household pets [not to exceed three (3) adult animals] may be kept, provided that they are not kept, bred or maintained for commercial purposes. No person owning or in custody of an animal shall allow it to stray or go upon another Lot without the consent of the Owner of such Lot. Dogs shall be on a leash when outside the Owner's Lot. Owners shall be
on owning or in custody of an animal shall allow it to stray or go upon another Lot without the consent of the Owner of such Lot. Dogs shall be on a leash when outside the Owner's Lot. Owners shall be required to clean up his or her dog's defecation within the subdivision. The Association may adopt reasonable rules and regulations governing the size, weight, and keeping of animals, which rules may include the adoption of fines for violations thereof.
9.27 Duty of Maintenance.
(a) Owners and occupants (including lessees) of any Lot shall, jointly and severally, have the duty and responsibility, at their sole cost and expense, to keep the Lot so owned or occupied, including buildings, improvements, grounds or drainage easements or other rights-of-way incident thereto, and vacant land, in a well-maintained, safe, clean and attractive condition at all times. Such maintenance includes, but is not limited to, the following: (i) Prompt removal of all litter, trash, refuse and waste; (ii) Lawn mowing and edging of all curbs and edgeways on a regular basis; (iii) Tree and shrub pruning; (iv) Watering landscaped areas in a regular manner so as to maintain harmony with the overall standards of the subdivision; ( v) Keeping exterior lighting and maintenance facilities in working order; (vi) Keeping lawn and garden areas alive, free of weeds, and attractive; (vii) Keeping parking areas, driveways and curbs in good repair; (viii) Complying with all government health and police requirements; (ix) Repair of exterior damages to improvements; (x) Cleaning oflandscaped areas lying between street curbs and Lot lines, unless such streets or landscaped areas are expressly designated to be Common
(ix) Repair of exterior damages to improvements; (x) Cleaning oflandscaped areas lying between street curbs and Lot lines, unless such streets or landscaped areas are expressly designated to be Common Properties maintained by applicable governmental authorities or the Association; and (xi) Repainting of improvements.
(b) If, in the opinion of the Association, any such Owner or occupant has failed in any of the foregoing duties or responsibilities, then the Association may give such person written notice of such failure and such person must within ten (10) days after receiving such notice, perform the repairs and maintenance or make arrangements with the Association for making the repairs and maintenance required. Should any such person fail to fulfill this duty and responsibility within such period, then the Association, through its authorized agent or agents, shall, after notice, if any, required pursuant to Section 5.09Ce) hereof, have the right and power to enter onto the premises and perform such repair and maintenance without any liability for damages for wrongful entry, trespass or otherwise to any person.
( c) Notwithstanding the provisions of Section 9 .26(b) above, if, at any time, an Owner shall fail to control weeds, grass and/or other unsightly growth, the Association shall, after notice, if any, required pursuant to Section 5.09(e) hereof, have the authority and right to go onto the Lot of such Owner for the purpose of mowing and cleaning said Lot and shall have the authority and right to assess and collect from the Owner of said Lot a sum up to two (2) times the cost incurred by the Association for mowing or cleaning said Lot on each respective occasion of such mowing or cleaning. If, at any time, weeds or other unsightly
aid Lot a sum up to two (2) times the cost incurred by the Association for mowing or cleaning said Lot on each respective occasion of such mowing or cleaning. If, at any time, weeds or other unsightly growth on the Lot exceed six inches ( 6") in height, the Association shall have the right and authority to mow and clean the Lot, as aforesaid.
( d) The Owners and occupants (including lessees) of any Lot on which work is performed pursuant to Sections 9.26(b) and(!;). above shall, jointly and severally, be liable for the cost of such work [such costs constituting a special individual assessment as specified in Section 5.05(bl hereof] and shall promptly reimburse the Association for such cost. If such Owner or occupant shall fail to reimburse the Association within thirty (30) days after receipt of a statement for such work from the Association, then said indebtedness shall be a debt of all said persons, jointly and severally, and shall constitute a lien against the Lot on which said work was performed. Such lien shall have the same attributes as the lien for assessments and special assessments set forth in this Declaration, and the Association shall have the identical powers and rights in all respects, including but not limited to the right of foreclosure.
9.28 Maintenance of Common Properties. All landscaping and improvements placed or erected on the Common Properties by Declarant shall be owned and maintained by the Association.
9.29 Retaining Walls. All retaining walls in front of the house and to the side of the house that are visible from the streets or Common Properties or are situated on or adjacent to a Common Lot line shall match the stone and the pattern used by Declarant within the subdivision.
of the house that are visible from the streets or Common Properties or are situated on or adjacent to a Common Lot line shall match the stone and the pattern used by Declarant within the subdivision.
9.30 Mailboxes. All mailboxes shall have iron or cast alloy posts and shall be consistent in design, color, size, and shape and in accordance with promulgated architectural standards bulletins. No masonry mailboxes shall be permitted. Double headed mailboxes on a single pole shall be permitted at the common lot line of two adjacent Lots.
9.31 Basketball Goals/Hoops. With the prior written consent of the Architectural Control Committee, basketball goals, hoops, backboards and nets shall be permitted; provided, however, in no event shall such structures be allowed above any garage door which faces a public street or any portion of the Common Properties. Basketball goals or hoops which are located perpendicular to the street, such as above a side-entry garage, are permitted, with the prior written consent of the Architectural Control Committee.
ARTICLEX ARCHITECTURAL CONTROL COMMITTEE 10.01 Architectural Control Committee. As long as Declarant holds title to any of the Lots, the Architectural Control Committee, hereinafter called the "Committee", shall be composed of three (3) or more individuals selected and appointed by the Declarant. After the Conversion Date, the Committee shall be composed of such individuals selected by a vote of the Board of Directors of the Association. The Committee shall use its best efforts to promote and ensure a high level of quality, harmony and conformity throughout the Properties. The Committee shall function as the representative of the Owners for the purposes herein set forth as well as for all other purposes
level of quality, harmony and conformity throughout the Properties. The Committee shall function as the representative of the Owners for the purposes herein set forth as well as for all other purposes consistent with the creation and preservation of a first-class residential development.
A majority of the Committee may designate a representative to act for it In the event of the death or resignation of any member of the Committee, the remaining members shall have full authority to designate and appoint a successor. Other than as set forth in Section 10.02 hereof, no member of the Committee shall be entitled to any compensation for services performed hereunder nor be liable for claims, causes of action or damages (except where occasioned by gross negligence or arbitrary and capricious conduct) arising out of services performed, actions take, or inactions in connection with any undertaking, responsibility, or activity hereunder or request for action hereunder. At any time, the Declarant may delegate and assign to the Board of Directors, all of the Declarant's power and right to change the membership of the Committee, to withdraw or add powers and duties from or to the Committee, or to restore the powers and duties of the Committee. Such action by the Declarant shall be effective upon recordation of a written instrument properly reflecting same in the Office of the County Clerk of Collin County, Texas.
10.02 Architectural Approval. No building, structure, shed, fence, wall or improvement of any kind or nature shall be erected, constructed, placed, altered, changed or modified on any Lot until the plot plan showing the location of such building, structure, driveways, public and lead walks,
ny kind or nature shall be erected, constructed, placed, altered, changed or modified on any Lot until the plot plan showing the location of such building, structure, driveways, public and lead walks, patios, fences, walls, paving, improvements, and all side, front, and rear building setback lines; construction plans and specifications thereof; and landscaping and grading plans therefor have been submitted to and approved in writing by the Committee or a representative or agent designated by the Committee to act on behalf of the Committee as to: (i) location with respect to Lot lines; topography; finished grades elevation; height and dimensions of improvements; intended use of the proposed improvements; impact and relationship to neighboring Lots and improvements situated or to be situated thereon; effect of location and use on neighboring Lots and improvements situated thereon; and any drainage arrangement, (ii) conformity and harmony of external design, color, texture, type and appearance of exterior surfaces and landscaping with existing structures and existing landscaping, (iii) quality of workmanship and materials; adequacy of site dimensions; adequacy of structural design; proper facing of main elevation with respect to nearby streets; and (iv) the other standards set forth within this Declaration (and any amendments hereto) or as may be set forth in bulletins promulgated by the Committee. In connection with the submission of such plot plan, construction plans and specifications, and landscaping and grading plans, the Committee may require that the submitting party pay a fee of up to $250.00 per submission, which fee shall be payable to the Committee or, if the Committee elects, to a representative designated by the
ommittee may require that the submitting party pay a fee of up to $250.00 per submission, which fee shall be payable to the Committee or, if the Committee elects, to a representative designated by the Committee to review such plans and specifications. The Committee is authorized to request the submission of samples of proposed construction materials or colors of proposed exterior surfaces.
Final plans and specifications shall be submitted in duplicate to the Committee for approval or disapproval. At such time as the plans and specifications meet the approval of the Committee, one complete set of plans and specifications will be retained by the Committee and the other complete set of plans will be marked "Approved" and returned to the Owner. If found not to be in compliance with these Covenants and Restrictions, one set of such plans and specifications shall be returned marked "Disapproved", accompanied by a reasonable statement of items found not to comply with these Covenants and Restrictions. Any modification or change to the approved set of plans and specifications which affects items (i) through (iv) of the preceding paragraph must again be submitted to the Committee for its inspection and approval. The Committee's approval or disapproval as required herein shall be in writing. If the Committee or its designated representative fails to approve or disapprove such plans and specifications within thirty (30) days after they have been submitted, then Committee approval shall be presumed; provided, however, that nothing in this paragraph shall affect in any way the method for seeking or granting variances, as described in Section 10.03 hereof, nor shall any failure of the Committee to act on a variance request within any
his paragraph shall affect in any way the method for seeking or granting variances, as described in Section 10.03 hereof, nor shall any failure of the Committee to act on a variance request within any particular period of time constitute the granting or approval of any such variance request.
The Committee is authorized and empowered to consider and review any and all aspects of dwelling construction, construction of other improvements and location, quality and quantity of landscaping on the Lots, and may disapprove aspects thereof which may, in the reasonable opinion of the Committee, adversely affect the living enjoyment of one or more Owner(s) or the general value of the Properties. As an example, and not by way oflimitation, the Committee may impose limits upon the location of window areas of one residential dwelling which would overlook a rear or side yard of an adjacent residential dwelling. Also, the Committee is permitted to consider technological advances in design and materials and such comparable or alternative techniques, methods or materials may or may not be permitted, in accordance with the reasonable opinion of the Committee.
THE COMMITIEE MAY, FROM TIME TO TIME, PUBLISH AND PROMULGATE ARCHITECTURAL STANDARDS BULLETINS AND/OR DESIGN GUIDELINES WHICH SHALL BE FAIR, REASONABLE AND UNIFORMLY APPLIED AND SHALL CARRY FORWARD THE SPIRIT AND INTENTION OF THIS DECLARATION. SUCH BULLETINS AND GUIDELINES SHALL SUPPLEMENT THESE COVENANTS AND RESTRICTIONS AND ARE INCORPORATED HEREIN BY REFERENCE. THE COMMITTEE SHALL HA VE THE AUTHORITY TO MAKE FINAL DECISIONS IN INTERPRETING THE GENERAL INTENT, EFFECT AND PURPOSE OF THESE COVENANTS AND RESTRICTIONS.
PRIOR TO ACQUIRING ANY LOT OR CONSTRUCTING ANY STRUCTURE ON A
LL HA VE THE AUTHORITY TO MAKE FINAL DECISIONS IN INTERPRETING THE GENERAL INTENT, EFFECT AND PURPOSE OF THESE COVENANTS AND RESTRICTIONS.
PRIOR TO ACQUIRING ANY LOT OR CONSTRUCTING ANY STRUCTURE ON A LOT, EACH PROSPECTIVE PURCHASER, TRANSFEREE, MORTGAGEE, AND/OR OWNER IS STRONGLY ENCOURAGED TO CONTACT THE ARCHITECTURAL CONTROL COMMITIEE TO OBTAIN AND REVIEW THE MOST RECENT ARCHITECTURAL STANDARDS BULLETINS AND DESIGN GUIDELINES WHICH WILL CONTROL THE DEVELOPMENT, CONSTRUCTION, LANDSCAPE AND USE OF THE LOT AND THE STRUCTURES TO BE CONSTRUCTED THEREON.
THE ARCHITECTURAL STANDARDS BULLETINS AND DESIGN GUIDELINES MAY CONTAIN STANDARDS, REQUIREMENTS, OR LIMITATIONS IN ADDITION TO THOSE EXPRESSLY SET FORTH OR REFERRED TO IN THIS DECLARATION AND MORE STRINGENT STANDARDS, REQUIREMENTS, OR LIMITATIONS THAN THE SPECIFIC STANDARDS,REQUIREMENTSORLIMITATIONSSETFORTHORREFERREDTOINTHIS DECLARATION.
10.03 Variances. Upon submission ofa written request for same, the Committee may, from time to time, in its sole discretion, permit Owners to construct, erect, or install improvements which are in variance from the architectural standards, the Covenants and Restrictions, or the previously published architectural bulletins which are provided in this Declaration or which may be promulgated in the future. In any case, such variances shall be in basic conformity with and shall blend effectively with the general architectural style and design of the community. No member of the Committee shall be liable to any Owner or other person claiming by, through, or on behalf of any Owner, for any claims, causes of action, or damages arising out of the granting or denial of, or other action or failure to act upon, any variance requested by an Owner or any person acting for or on
Owner, for any claims, causes of action, or damages arising out of the granting or denial of, or other action or failure to act upon, any variance requested by an Owner or any person acting for or on behalf of any Owner. Each request for a variance submitted hereunder shall be reviewed separately and apart from other such requests and the grant of a variance to any Owner shall not constitute a waiver of the Committee's right to strictly enforce the Covenants and Restrictions, architectural standards or published architectural bulletins provided hereunder against any other Owner. Each such written request must identify and set forth in detail the specific restriction or standard from which a variance is sought and describe in complete detail the exact nature of the variance sought.
Any grant of a variance by the Committee must be in writing and must identify in narrative detail both the standards from which a variance is being sought and the specific variance being granted.
10.04 Nonconforming and Unapproved Improvements. The Association may require any Owner to restore such Owner's improvements to the condition existing prior to the construction thereof (including, without limitation, the demolition and removal of any unapproved improvement) if such improvements were commenced or constructed in violation of this Declaration. In addition, the Association may, but has no obligation to do so, cause such restoration, demolition and removal and levy the amount of the cost thereof as a special individual assessment against the Lot upon which such improvements were commenced or constructed.
10.05 No Liability. Neither Declarant, the Association, the Committee, the Board, nor the
as a special individual assessment against the Lot upon which such improvements were commenced or constructed.
10.05 No Liability. Neither Declarant, the Association, the Committee, the Board, nor the officers, directors, members, employees and agents of any of them, shall be liable in damages to anyone submitting plans and specifications to any of them for approval, or to any Owner by reason of mistake in judgment, negligence, or nonfeasance arising out ofor in connection with the approval or disapproval or failure to approve or disapprove any such plans or specifications. Every person who submits plans or specifications and every Owner agrees that he will not bring any action or suit against Declarant, the Association, the Committee, the Board, or the officers, directors, members, employees or agents of any of them, to recover any such damages and hereby releases and quitclaims all claims, demands and causes of action arising out of or in connection with any judgment, negligence ornonfeasance and hereby waives the provisions of any law which provides that a general release does not extend to claims, demands and causes of action not known at the time the release is given. Plans and specifications are not approved for engineering or structural design or adequacy of materials, and by approving such plans and specifications neither the Committee, the members of the Committee, the Declarant nor the Association assumes liability or responsibility therefor, nor for any defect in any structure constructed from such plans and specifications.
ARTICLE XI EASEMENTS 11.01 Ingress and Egress by the Association. The Association shall, at all times, have full rights of ingress and egress over and upon each Lot for the maintenance and repair of each Lot
XI EASEMENTS 11.01 Ingress and Egress by the Association. The Association shall, at all times, have full rights of ingress and egress over and upon each Lot for the maintenance and repair of each Lot and the Common Properties in accordance with the provisions hereof, and for the carrying out by the Association of its functions, duties and obligations hereunder; provided, that any such entry by the Association upon any Lot shall be made with as little inconvenience to the Owner as practical, and any damage caused by the Association's entry, other than damages caused by the Owner, shall be repaired by the Association at the expense of the Association.
11.02 General The rights and duties of the Owners with respect to sanitary sewer, water, electricity, natural gas, telephone and cable television lines and drainage facilities shall be governed by the following: any other cause. There shall be easements for the maintenance of said encroachment, settling or shifting; provided, however, that in no event shall an easement for encroachment be created in favor of an Owner or Owners if said encroachment occurred due to willful misconduct of said Owner or Owners. Each of the easements hereinabove referred to shall be deemed to be established upon the recordation of this Declaration and shall be appurtenant to the Lot being serviced and shall pass with each conveyance of said Lot.
11.07 Wall and Landscape Easement. An easement of varying width has been established on the Plat for the maintenance and repair of the perimeter screening wall and the associated landscape and irrigation. Owners shall not alter, paint or otherwise use such walls even though such
ished on the Plat for the maintenance and repair of the perimeter screening wall and the associated landscape and irrigation. Owners shall not alter, paint or otherwise use such walls even though such walls and easements may be located on or adjacent to such Owner's Lot. It is the responsibility of each Owner to maintain that portion of the landscaping within this easement which is enclosed by the wall on their respective Lot, however, the Association retains the right to enter upon the Properties and perform such maintenance as necessary.
11.08 Drainage Easement. Easements over the Lots and the Common Properties for the drainage and flow of surface water, as shown on the grading and drainage plans for the subdivision, are hereby reserved and retained for the benefit of the Association and/or its successors and assigns.
In addition, each Owner covenants to provide easements for drainage and water flow as contours of land and the arrangements of improvements, approved by the Architectural Control Committee, thereon required. Each Owner shall be responsible for maintaining his Lot so that there is no interference with the drainage patterns established by the grading and drainage plans, and, in the event any Owner shall interfere with the drainage patterns established by the grading and drainage plans, the Association shall have the right to enter such Lot to re-establish the proper drainage patterns.
ARTICLE XII GENERAL PROVISIONS 12.01 Duration. The Covenants and Restrictions of this Declaration shall run with and bind the land subject to this Declaration, and shall inure to the benefit of and be enforceable by the Association and/or any Owner, their respective legal representatives, heirs, successors and assigns,
d the land subject to this Declaration, and shall inure to the benefit of and be enforceable by the Association and/or any Owner, their respective legal representatives, heirs, successors and assigns, for a term of fifty (50) years from the date that this Declaration is recorded in the Office of the County Clerk of Collin County, Texas, after which time these Covenants and Restrictions shall be automatically extended for successive periods of ten (10) years unless an instrument signed by the Members entitled to cast seventy percent (70%) of the votes of the Association, in the aggregate, regardless of class, has been recorded in the Office of the County Clerk of Collin County, Texas, agreeing to abolish or terminate these Covenants and Restrictions; provided, however, that no such agreements to abolish shall be effective unless made and recorded one ( 1) year in advance of the effective date of such abolishment.
12.02 Amendments. Notwithstanding the terms and provisions of Section 12.01 hereof, this Declaration may be amended, modified and/or changed as follows: (a) during the time Declarant is the Owner of any Lot, the Declarant may amend or change this Declaration with the consent of at least fifty-one percent (51 %) of the outstanding votes of the Association, regardless of class; (b) in all other situations, this Declaration may be amended or changed either upon the express written consent of Members entitled to cast at least seventy percent (70%) of the outstanding votes of the Association who are in attendance at a meeting called and held in accordance with Section 3.03 hereof, regardless of class, or at least seventy percent (70%) of the outstanding votes of the Association, regardless of class, whether or not a
eeting called and held in accordance with Section 3.03 hereof, regardless of class, or at least seventy percent (70%) of the outstanding votes of the Association, regardless of class, whether or not a meeting is called.
Any and all amendments to this Declaration, shall be recorded in the Office of the County Clerk of Collin County, Texas. Notwithstanding the prior provisions of this Section 12.02, (a) the Declarant may execute and record amendments to this Declaration without such consent or approval if the amendment is for the purpose of correcting technical or typographical errors or for clarification only, and (b) as long as the Declarant is the Owner of any Lot, no amendment to this Declaration shall be effective without the prior written consent of the Declarant.
12.03 Enforcement. Enforcement of these Covenants and Restrictions may be brought by Declarant, the Association, or any Owner, and shall be by any proceeding at law or in equity against any person or persons violating or attempting to violate them, or to recover damages, or to enforce any lien created by these Covenants and Restrictions; and failure by the Association or any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. In addition, should Declarant or the Association prevail in any such litigation, the prevailing party shall be entitled to recover its reasonable attorneys' fees.
12.04 Severability. Invalidation of any one of these Covenants and Restrictions by judgment or court order shall in no way affect any other provision of this Declaration or the remainder of these Covenants and Restrictions which shall remain in full force and effect.
Restrictions by judgment or court order shall in no way affect any other provision of this Declaration or the remainder of these Covenants and Restrictions which shall remain in full force and effect.
12.05 Headings. The headings contained in this Declaration are for reference purposes only and shall not in any way affect the meaning or interpretation of this Declaration.
12.06 Notices to Member/Owner. Any notice required to be given to any Member or Owner under the provisions of this Declaration shall be deemed to have been properly delivered when deposited in the United States mai~ postage prepaid, addressed to the last known address of the person who appears as a Member or Owner on the records of the Association at the time of such mailing.
12.07 Notices to Mortgagees. If a holder of a mortgage on a Lot shall notify the Association of its address and the identity of the Lot and Owner covered by and granting such mortgage, then such holder(s) shall be entitled to receive, written notification from the Association of any default by the respective Owner in the performance of such Owner's obligations as established by this Declaration.
12.08 Disputes. Matters of dispute or disagreement between Owners with respect to interpretation or application of the provisions of this Declaration or the Bylaws of the Association shall be determined by the Board of Directors, whose determination shall be final and binding upon all Owners. In the event a dispute arises between the Association and one or more Owners, such parties shall submit the dispute to arbitration in accordance with the rules of the American Arbitration Association, and the result thereof shall be binding and conclusive to the parties. Upon
, such parties shall submit the dispute to arbitration in accordance with the rules of the American Arbitration Association, and the result thereof shall be binding and conclusive to the parties. Upon the written request of either party to the dispute, each party to the dispute shall appoint one person as an arbitrator to hear and determine the dispute and if the two arbitrators so chosen shall be unable to agree, then they shall select a third arbitrator whose decision shall be final and conclusive upon the parties. The expenses of such arbitration shall be borne by the losing party, or in such proportions as the arbitrators shall decide. The arbitration shall be conducted in accordance with the rules of the American Arbitration Association.
12.09 Termination of and Responsibility of Declarant. IfDeclarant shall convey all of its right, title and interest in and to the Properties and assign all its rights, benefits and obligations as Declarant hereunder to any partnership, individual or individuals, corporation or corporations, then and in such event Declarant shall be relieved of the performance of any further duty or obligation hereunder, and such partnership, individual or individuals, corporation or corporations, shall be obligated to perform all such duties and obligations of the Declarant.
12.10 Limitation on Interest. All agreements between any Owner and the Association or Declarant are hereby limited so that in no event shall the interest contracted for, charged or received by such party exceed the maximum amount permissible under applicable law. All interest paid or agreed to be paid to such party shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread throughout the full period until payment in full of the indebtedness
d or agreed to be paid to such party shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread throughout the full period until payment in full of the indebtedness so that interest thereon for such full period shall not exceed the maximum amount permitted by applicable law. If, from any circumstance whatsoever, interest would otherwise be payable to such party in excess of the maximum lawful amount, the interest shall be reduced to the maximum amount permitted under applicable law; and if, from any circumstance, such party shall ever receive anything of value deemed interest by applicable law in excess of the maximum lawful amount, such excess shall be refunded to the applicable Owner.
IN WITNESS WHEREOF, the Declarant has caused this instrument to be executed as of the '2.S"°" day of MA 'f , 2006.
WILBOW-PROSPER ONE DEVELOPMENT CORPORATION, By: STATE OF TEXAS § § COUNTY OF DALLAS § CHAS FITZGERALD, President of WILBOW-PROSPER ONEDELOPMENT CORPORATION, a Texas corporation, on behalf of said corporation.
My Commission Expires: os-. 3 c! -.::i-<.iu r Exhibit A GF-Nurnber 04R09194 BEING all that certain lot, tract or parcel of land situated in the William H.
Thomason Survey, Abstract No. 895, and being out of the 80.344 acre tract of land described in a Special Warranty Deed from Henry A. Barlow and Martina L.
Barlow, as Trustees for the Henry A. and Martina L. Barlow Family Trust to Swisher Properties, L.P., as recorded in Volume 5468 at Page 6173 of the Land Records of Collin County, Texas, and being more particularly described by metes and bounds as follows:
low Family Trust to Swisher Properties, L.P., as recorded in Volume 5468 at Page 6173 of the Land Records of Collin County, Texas, and being more particularly described by metes and bounds as follows: COMMENCING at a 1/2' iron rod found for the Southwest corner of said William H.
Thomason Survey at the junction center of County Road No. 80 from the North, County Road No. 79 from the East, County Road No. 74 from the South and County Road No. 78 from the West, same being the Southwest corner of said Swisher 80.344 acre tract, same being the Southeast corner of the Sexton Farms Ltd., 140.542 acre tract as recorded in Volume 4673 at Page 778, same being the Northeast corner of Mustang Midway Plano, Ltd., 38.8052 acre tract as recorded in County Clerk's File Number 96 -0038753 and the Northwest corner of the W.
H. Rasor III 127.988 acre tract as recorded in County Clerks File Numbe 97-0088102 of the Land Records of Collin County, Texas; THENCE North O degrees 01 minute 30 seconds East along the West line of said Swisher 80.344 acre tract and being common to the West line of said William Thomason Survey and following the center of County Road No. 80 for a distance of 1052.00 feet to a point for the POINT OF BEGINNING for this tract; THENCE North 00 degrees 01 minute 30 seconds East and continuing along the West line of said Swisher 80.344 acre tract and the center of CoWlty Road No. 80 for a distance of 253.22 feet to a 1/2" iron rod found for the Northwest corner of said Swisher 80.344 acre tract, said point also being recognized as the Southwest corner of a called 25.029 acre tract of land conveyed to Mary Ann Barlow Vowen by deed recorded in Volume 2172 at Page 526 of the Land Records of Collin County, Texas;
eing recognized as the Southwest corner of a called 25.029 acre tract of land conveyed to Mary Ann Barlow Vowen by deed recorded in Volume 2172 at Page 526 of the Land Records of Collin County, Texas; THENCE South 89 degrees 57 minutes 57 seconds East along the North line of said Swisher 80.344 acre tract and being common to the Mary Ann Vowen called 25.029 acre tract for a distance of 2284.37 feet to a point for corner, the Northeast corner of said Swisher 80.344 acre tract being South 89 degrees 58 minutes 24 seconds East at a distance of 388.78 feet; THENCE generally along the meanders of a creek as determined by a survey of 23.7371 acres of land performed by Dal Tech Engineering, Inc., dated October 27, 2003 as follows' (1) THENCE South 45 degrees 13 minutes 08 seconds West for a distance of 104.91 feet to a point for corner; (2) THENCE South 49 degrees 58 minutes 14 seconds West for a distance of 156.27 feet to a point for corner; (3) THENCE South 39 degrees 31 minutes 44 seconds West for a distance of 62.10 feet to a point for corner; Exhibit A (Continued) GF-Number 04R09194 (4) THENCE North 71 degrees 57 minutes 15 seconds West for a distance of 114.79 feet to a point for corner; (5) THENCE South 22 degrees 32 minutes 54 seconds West for a distance of 55.79 feet to a point for corner; (6) THENCE South 22 degrees 38 minutes 28 seconds East for a distance of 90.43 feet to a point for corner; (7) THENCE South 47 degrees 26 minutes 03 seconds West for a distance of 71.88 feet to a point for corner; (8) THENCE South 59 degrees 20 minutes 58 seconds West for a distance of 75.45 feet to a point for corner; (9) THENCE South 43 degrees 32 minutes 53 seconds East for a distance of 41.05 feet to a point for corner;
uth 59 degrees 20 minutes 58 seconds West for a distance of 75.45 feet to a point for corner; (9) THENCE South 43 degrees 32 minutes 53 seconds East for a distance of 41.05 feet to a point for corner; (10) THENCE South 13 degrees 25 minutes 13 seconds East for a distance of 39.45 feet to a point for corner; (11) THENCE South 07 degrees 13 minutes 37 seconds West for a distance of 107.47 feet to a point for corner; (12) THENCE South 14 degrees 18 minutes 48 seconds East for a distance of 77.74 feet to a point for corner; (13) THENCE South 52 degrees 13 minutes 58 seconds East for a distance of 95.12 feet to a point for corner; (14) THENCE South 16 degrees 47 minutes 29 seconds East for a distance of 42.69 feet to a point for corner; (15) THENCE South 31 degrees 42 minutes 36 seconds West for a distance of 31.79 feet to a point for corner; (16) THENCE South 69 degrees 52 minutes 51 seconds West for a distance of 84.25 feet to a point for corner; (17) THENCE South 39 degrees 23 minutes 53 seconds West for a distance of 33.38 feet to a point for corner; (18) THENCE South 15 degrees 38 minutes 32 seconds West for a distance of 80.55 feet to a point for corner; (19) THENCE South 01 degree 13 minutes 45 seconds East for a distance of 41.20 feet to a point for corner; (20) THENCE South 50 degrees 38 minutes 08 seconds West for a distance of 43.39 feet to a point for corner; (21) THENCE South 78 degrees 00 minutes 18 seconds West for a distance of 34.52 feet to a point for corner; Exhibit A {Continued) GF-Number 04R09194 (22) THENCE South 89 degrees 08 minutes 38 seconds West for a distance of 40.60 feet to a point for corner; (23) THENCE South 84 degrees 19 minutes 35 seconds West for a distance of 37.90 feet to a point for corner;
th 89 degrees 08 minutes 38 seconds West for a distance of 40.60 feet to a point for corner; (23) THENCE South 84 degrees 19 minutes 35 seconds West for a distance of 37.90 feet to a point for corner; (24) THENCE South 34 degrees 35 minutes 40 seconds West for a distance of 42.00 feet to a point for corner; {25) THENCE South 29 degrees 25 minutes 15 seconds East for a distance of 48.00 feet to a point for corner; {26) THENCE South 33 degrees 00 minutes 57 seconds East for a distance of 31.52 feet to a point for corner; (27) THENCE South 44 degrees 53 minutes 23 seconds East for a distance of 52.59 feet to a point for corner; (28) THENCE South 13 degrees 20 minutes 11 seconds East for a distance of 16.71 feet to a point for corner; (29) THENCE South 04 degrees 10 minutes 07 seconds East for a distance of 9.02 feet to a point for corner; (30) THENCE South 21 degrees 36 minutes 51 seconds West for a distance of 7.72 feet to a point for corner; {31) THENCE South 55 degrees 11 minutes 53 seconds West for a distance of 35.56 feet to a point for corner; (32) THENCE South 63 degrees 56 minutes 03 seconds West for a distance of 14.03 feet to a point for corner; (33) THENCE South 49 degrees 59 minutes 32 seconds West for a distance of 68.56 feet to a point for corner,(34) THENCE South 39 degrees 38 minutes 10 seconds West for a distance of 61.51 feet to a point for corner; (35) THENCE South 17 degrees 43 minutes 33 seconds West for a distance of 27.90 feet to a 1/2" iron rod found for corner in the Center of the aforementioned County Road No. 79 and also in the South line of the aforesaid Swisher 80.344 acre tract, the Southwest corner of said Swisher 80.344 acre tract being South 89 degrees 37 minutes 30 seconds East at a distance of 1057.81 feet;
so in the South line of the aforesaid Swisher 80.344 acre tract, the Southwest corner of said Swisher 80.344 acre tract being South 89 degrees 37 minutes 30 seconds East at a distance of 1057.81 feet; THENCE North 89 degrees 36 minutes 34 seconds West along the South line of said Swisher 80.344 acre tract and the center of said County Road No. 79 for a distance of 763.03 feet to a 5/8 inch iron rod set for corner; THENCE North and departing the South line of said Swisher 80.344 acre tract for a distance of 479.94 feet to a point for corner,- said point being the beginning of a curve to the left having a radius of 182.00 feet and a chord bearing North Exhibit A (Continued) GF-Number 04R09194 22 degrees 30 minutes 00 seconds West at a distance of 13930 feet; THENCE Northwesterly along said curve to the left for an arc distance of 142.94 feet to a 5/8" iron rod set for corner; THENCE North 45 degrees 00 minutes 00 seconds West for a distance of 559.50 feet to a 5/9" iron rod set for corner, said point being the beginning of a curve to the left having a radius of 182.00 feet and with a chord bearing North 67 degreees 30 minutes 00 seconds West at a distance of 139.30 feet; THENCE Northwesterly along said curve to the left for an arc distance of 142.92 feet to a S/811 iron rod set for corner; THENCE West for a distance of 257.47 feet to the POINT OF BEGINNING and CONTAINING 39.3071 ACRES OF LAND, more or leas.
CONSENT, JOINDER AND SUBORDINATION OF MORTGAGEE RBC CENTURA BANK, the mortgagee holding a current deed of trust lien on all or a portion of the Properties, does hereby consent to the execution and recordation of the foregoing, Declaration of Covenants, Conditions and Restrictions for Greenspoint, Prosper, Texas, and agrees
or a portion of the Properties, does hereby consent to the execution and recordation of the foregoing, Declaration of Covenants, Conditions and Restrictions for Greenspoint, Prosper, Texas, and agrees that all liens currently held by it shall be subject and subordinate to the provisions of the foregoing Declaration.
EXECUTED this the '2006.
RBCCE STATE OF TEXAS § § COUNTY OF DALLAS § This instrument was acknowledged before me on !fl fN:4. ~ i , 2006, by DlfV/l) ,) /30Ul?G , VICE P&g1@tL6fRBCCE URABANK,onbehalfof said bank.
My Commission Expires: 03-!J/-O!J "® KAllfV 5HOR'IER My Commtas1on e.,,.,_ March I, 2009 --• • , .
Filed and Recorded Official Public Records Brenda Taylor, County Clerk Collin County, TEXAS $196.00 TFOSTER 20060601000743060