ELECTRONICALLY RECORDED 2017109533 Williamson County, Texas Total Pages: 87 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS LIVELY RANCH [WILLIAMSON COUNTY, TEXAS] Declarant: HWY 29 VENTURES 2015, L.P., a Delaware limited partnership This Declaration of Covenants, Conditions and Restrictions may be used only in connection with the residential community known as Lively Ranch in Williamson County, Texas and the operation of Lively Community HOA, Inc.
2017109533 Page 2 of 87 TABLE OF CONTENTS ARTICLE 1 DEFINITIONS ........................................................................................................................ 1 ARTICLE 2 GENERAL AND USE RESTRICTIONS ............................................................................. 6 2.01 General ............................................................................................................................... 6 2.02 Conceptual Plans .............................................................................................................. 7 2.03 Single-Family Residential Use ........................................................................................ 7 2.04 Subdividing ....................................................................................................................... 9 2.05 Hazardous Activities ....................................................................................................... 9 2.06 Insurance Rates ................................................................................................................. 9 2. 07 Mining and Drilling ......................................................................................................... 9
................................................................ 9 2. 07 Mining and Drilling ......................................................................................................... 9 2.08 Noise .................................................................................................................................. 9 2.09 Animals -Household Pets ............................................................................................. 10 2.10 Rubbish and Debris ........................................................................................................ 10 2.11 Maintenance .................................................................................................................... 10 2.12 Street Landscape Area-Owner's Obligation to Maintain Landscaping .................. 11 2.13 Antennas .......................................................................................................................... 11 2.14 Location of Permitted Antennas .................................................................................. 12 2.15 Signs ................................................................................................................................. 12 2.16 Flags -Approval Requirements ................................................................................... 13 2.17 Flags -Installation and Display ................................................................................... 14 2.18 Tanks ................................................................................................................................ 15 2.19 Temporary Structures .................................................................................................... 15
................................................................... 15 2.19 Temporary Structures .................................................................................................... 15 2.20 Unsightly Articles; Vehicles .......................................................................................... 15 2.21 Mobile Homes, Travel Trailers and Recreational Vehicles ...................................... 16 2.22 On Street Parking ........................................................................................................... 16 2.23 Basketball Goals; Permanent and Portable ................................................................. 16 2.24 Compliance with Restrictions ....................................................................................... 16 2.25 Liability of Owners for Damage to Common Area ................................................... 17 2.26 No Warranty of Enforceability ..................................................................................... 17 2.27 Party Wall Fences and Walls ........................................................................................ 17 2.28 Permitted Hours for Construction Activity ................................................................ 18 2.29 Outdoor Play Equipment and Sports Courts ............................................................. 18 2.30 Decorations and Lighting .............................................................................................. 19 2.31 Tree Removal .................................................................................................................. 19 2.32 Private Utility Lines ....................................................................................................... 19
............................................................... 19 2.32 Private Utility Lines ....................................................................................................... 19 2.33 Windows and Window Covering ................................................................................ 19 2.34 Rentals .............................................................................................................................. 19 2.35 Drones and Other Flying Aircraft.. .............................................................................. 20 ARTICLE 3 CONSTRUCTION RESTRICTIONS ................................................................................. 20 3.01 Approval for Construction ............................................................................................ 20 3.02 Compliance with Restrictions ....................................................................................... 20 Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page i 2017109533 Page 3 of 87 3.03 Masonry Requirements ................................................................................................. 20 3.04 Garages ............................................................................................................................ 21 3.05 Windows .......................................................................................................................... 21 3.06 Fences ............................................................................................................................... 21 3.07 Sidewalks ......................................................................................................................... 22
......................................................... 21 3.07 Sidewalks ......................................................................................................................... 22 3.08 Building Restrictions ...................................................................................................... 22 3.09 Alteration or Removal of Improvements .................................................................... 22 3.10 Trash Containers ............................................................................................................ 22 3.11 Drainage .......................................................................................................................... 23 3.12 Construction Activities .................................................................................................. 23 3.13 Roofing ............................................................................................................................. 23 3.14 Swimming Pools and Hot Tubs .................................................................................... 24 3.15 Compliance with Setbacks ............................................................................................ 24 3.16 Solar Energy Device ....................................................................................................... 24 3.17 Rainwater Harvesting Systems .................................................................................... 25 3.18 Landscaping .................................................................................................................... 26 3.19 Xeriscaping ...................................................................................................................... 26
.......................................................... 26 3.19 Xeriscaping ...................................................................................................................... 26 3.20 Notice Regarding Impervious Cover .......................................................................... 28 ARTICLE 4 LIVELY COMMUNITY HOA, INC. ................................................................................. 28 4.01 Organization ................................................................................................................... 28 4.02 Membership .................................................................................................................... 28 4.03 Governance ..................................................................................................................... 29 4.04 Voting Rights .................................................................................................................. 30 4.05 Powers .............................................................................................................................. 30 4.06 Conveyance of Common Area to the Association ..................................................... 33 4.07 Maintenance .................................................................................................................... 34 4.08 Indemnification .............................................................................................................. 34 4.09 Insurance ......................................................................................................................... 34 4.10 Bulk Rate Contracts ........................................................................................................ 34
................................................................ 34 4.10 Bulk Rate Contracts ........................................................................................................ 34 4.11 Community Systems ...................................................................................................... 35 4.12 Protection of Declarant' s Interests ............................................................................... 35 4.13 Administration of Common Area ................................................................................ 36 4.14 Private Parks and Hike and Bike Trails ...................................................................... 36 4.15 Amenity Building ........................................................................................................... 36 4.16 Right of Action by Association ..................................................................................... 36 ARTICLE 5 INSURANCE ....................................................................................................................... 36 5.01 Insurance ......................................................................................................................... 36 5.02 Restoration ...................................................................................................................... 37 5.03 Mechanic's and Materialmen's Lien ............................................................................ 38 ARTICLE 6 COVENANT FOR ASSESSMENTS .................................................................................. 38 6.01 Assessments .................................................................................................................... 38
............................................................ 38 6.01 Assessments .................................................................................................................... 38 6.02 Maintenance Fund .......................................................................................................... 38 Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page ii 2017109533 Page 4 of 87 6.03 Regular Assessments ..................................................................................................... 39 6.04 Working Capital Assessment ....................................................................................... 39 6.05 Special Assessments ....................................................................................................... 40 6.06 Individual Assessments ................................................................................................. 40 6.07 Amount of Assessment. ................................................................................................. 40 6.08 Late Charges .................................................................................................................... 41 6.09 Owner's Personal Obligation; Interest ....................................................................... .41 6.10 Assessment Lien and Foreclosure ................................................................................ 42 6.11 Exempt Property ............................................................................................................. 43 6.12 Fines and Damages Assessment .................................................................................. 44
............................................................................. 43 6.12 Fines and Damages Assessment .................................................................................. 44 ARTICLE 7 ARCHITECTURAL CONTROL COMMITTEE ............................................................. .44 7.01 Construction of Improvements .................................................................................... 44 7.02 Architectural Control Committee ............................................................................... .45 ARTICLE 8 MORTGAGE PROVISIONS ............................................................................................... 48 8.01 Notice of Action .............................................................................................................. 48 8.02 Examination of Books .................................................................................................... 49 8.03 Taxes, Assessments and Charges ................................................................................. 49 ARTICLE 9 EASEMENTS ....................................................................................................................... 49 9.01 Right of Ingress and Egress ........................................................................................... 49 9.02 Reserved Easements ....................................................................................................... 50 9.03 Utility Easements ............................................................................................................ 50 9.04 Subdivision Entry and Fencing Easement. ................................................................. 50
................................................................................... 50 9.04 Subdivision Entry and Fencing Easement. ................................................................. 50 9.05 Landscape and Monument Sign Easement ................................................................ 50 ARTICLE 10 DEVELOPMENT RIGHTS ............................................................................................... 51 10.01 Development by Declarant ........................................................................................... 51 10.02 Special Declarant Rights ................................................................................................ 51 10.03 Addition of Land ............................................................................................................ 51 10.04 Withdrawal of Land ....................................................................................................... 52 10.05 Assignment of Declarant's Rights ................................................................................ 52 10.06 Reservation By Declarant of Right to Vary Dwellings .............................................. 52 10.07 Common Area ................................................................................................................. 52 ARTICLE 11 DISPUTE RESOLUTION .................................................................................................. 53 11.01 Introduction and Definitions ........................................................................................ 53 11.02 Mandatory Procedures .................................................................................................. 53
.................................................................... 53 11.02 Mandatory Procedures .................................................................................................. 53 11.03 Claim Affecting CommonAreas .................................................................................. 53 11.04 Claim by Lot Owners -Improvements on Lots ......................................................... 55 11.05 Notice ............................................................................................................................... 56 11.06 Negotiation ...................................................................................................................... 56 11.07 Mediation ........................................................................................................................ 56 11.08 Termination Of Mediation ............................................................................................ 57 11.09 Binding Arbitration-Claims .......................................................................................... 57 Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page iii 2017109533 Page 5 of 87 11.10 Allocation Of Costs ........................................................................................................ 59 11.11 General Provisions ......................................................................................................... 59 11.12 Period of Lirnitation ....................................................................................................... 59 11.13 Funding Arbitration and Litigation ............................................................................. 59
........................................................................... 59 11.13 Funding Arbitration and Litigation ............................................................................. 59 ARTICLE 12 GENERAL PROVISIONS ................................................................................................. 60 12.01 Term ................................................................................................................................. 60 12.02 Eminent Domain ............................................................................................................ 60 12.03 Amendment .................................................................................................................... 60 12.04 Roadway and Utility Easements .................................................................................. 60 12.05 Enforcement .................................................................................................................... 61 12.06 Higher Authority ............................................................................................................ 61 12.07 Severability ...................................................................................................................... 61 12.08 Conflicts ........................................................................................................................... 61 12.09 Gender .............................................................................................................................. 61 12.10 Acceptance by Grantees ................................................................................................ 61
.................................................................... 61 12.10 Acceptance by Grantees ................................................................................................ 61 12.11 Damage and Destruction ............................................................................................... 62 12.12 No Partition ..................................................................................................................... 63 12.13 Notices ............................................................................................................................. 63 12.14 View Impairment ........................................................................................................... 63 12.15 Safety and Security ......................................................................................................... 64 12.16 Declarant's Right to Use Similar Name ....................................................................... 64 Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page iv 2017109533 Page 6 of 87 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR LIVELY RANCH This Declaration of Covenants, Conditions and Restrictions for Lively Ranch (this "Declaration") is made by HWY 29 VENTURES 2015, L.P., a Delaware limited partnership (the "Declarant"), and is as follows: RECITALS: A. This Declaration is filed with respect to the real property described on Exhibit A attached hereto and any improvements situated thereon (collectively, the "Property").
Declarant is the owner of the Property.
B. Declarant desires to create and carry out a uniform plan for the development, improvement, and sale of the Property.
thereon (collectively, the "Property").
Declarant is the owner of the Property.
B. Declarant desires to create and carry out a uniform plan for the development, improvement, and sale of the Property.
C. By the filing of this Declaration, Declarant serves notice that the Property will be subjected to the terms and provisions of this Declaration.
NOW, THEREFORE, it is hereby declared: (i) that the Property ( or any portion thereof) will be held sold, conveyed, and occupied subject to the following covenants, conditions and restrictions which will run with such portions of the Property and will be binding upon all parties having right, title, or interest in or to such portions of the Property or any part thereof, their heirs, successors, and assigns and will inure to the benefit of each owner thereof; and (ii) that each contract or deed conveying the Property ( or any portion thereof) will conclusively be held to have been executed, delivered, and accepted subject to the following covenants, conditions and restrictions, regardless of whether or not the same are set out in full or by reference in said contract or deed.
This Declaration uses notes (text set apart in boxes) to illustrate concepts and assist the reader. If there is a conflict between any note and the text of this Declaration, the text of this Declaration will control.
ARTICLE 1 DEFINITIONS Unless the context otherwise specifies or requires, the following words and phrases when used in this Declaration will have the meanings hereinafter specified: "Amenity Building" means the building built on the Common Area and delineated as the "Amenity Building" by the Association or Declarant. The Amenity Building shall be used Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 1
Common Area and delineated as the "Amenity Building" by the Association or Declarant. The Amenity Building shall be used Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 1 2017109533 Page 7 of 87 for personal and family purposes as determined by the Association and is hereby designated as Common Area.
"Applicable Law" means the statutes and public laws and ordinances in effect at the time a provision of the Restrictions is applied, and pertaining to the subject matter of the Restriction provision. Statutes and ordinances specifically referenced in the Restrictions are "Applicable Law" on the date of the Restrictions, and are not intended to apply to the Property if they cease to be applicable by operation of law, or if they are replaced or superseded by one or more other statutes or ordinances.
"Architectural Control Committee" or "ACC" means the committee created pursuant to this Declaration to review and approve or deny plans for the construction, placement, modification, alteration or remodeling of any Improvements on a Lot. As provided in ARTICLE 7 below, the Declarant acts as the ACC and the ACC is not a committee of the Association until the Declarant has assigned its right to appoint and remove all ACC members to the Association in a Recorded written instrument.
11 Assessment" or "Assessments" means assessments imposed by the Association under this Declaration.
"Assessment Unit" has the meaning set forth in Section 6.07(b ).
"Association" means the Lively Community HOA, Inc., a Texas non-profit corporation, which will be created by Declarant to exercise the authority and assume the powers specified in ARTICLE 4 and elsewhere in this Declaration. The Association shall serve as the "property
t corporation, which will be created by Declarant to exercise the authority and assume the powers specified in ARTICLE 4 and elsewhere in this Declaration. The Association shall serve as the "property owners' association" as defined in Section 202.001(2) of the Texas Property Code. The failure of the Association to maintain its corporate charter from time to time does not affect the existence or legitimacy of the Association, which derives its authority from this Declaration and the Bylaws.
"Board" means the Board of Directors of the Association.
"Bulk Rate Contract" or "Bulk Rate Contracts" means one or more contracts that are entered into by the Association for the provision of utility services or other services of any kind or nature to the Lots. The services provided under Bulk Rate Contracts may include, without limitation, cable television · services, telecommunications services, internet access services, "broadband" services, security services, trash pick up services, propane service, natural gas service, lawn and garden maintenance services, wastewater services, and any other services of any kind or nature which are considered by the Board to be beneficial. Each Bulk Rate Contract must be approved in advance and in writing by the Declarant until expiration or termination of the Development Period.
"Bylaws" means the Bylaws of the Association as adopted and as amended from time to time.
Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 2 2017109533 Page 8 of 87 "Certificate" means the Certificate of Formation of the Association, filed in the Office of the Secretary of State of Texas, as the same may be amended from time to time.
"City" means the City of Leander, Texas.
e" means the Certificate of Formation of the Association, filed in the Office of the Secretary of State of Texas, as the same may be amended from time to time.
"City" means the City of Leander, Texas.
"Common Area" means any property and facilities that the Association owns or in which it otherwise holds rights or obligations, including the Amenity Building and any property or facilities held by the Declarant for the benefit of the Association or its Members.
Common Area includes any property that the Association holds under a lease, license, or any easement in favor of the Association, whether in perpetuity or for a limited period. Some Common Area will be solely for the common use and enjoyment of the Owners, while other portions of the Common Area may be for the use and enjoyment of the Owners and members of the public.
"Community Manual" means the community manual, which may be initially adopted and recorded by the Declarant as part of the initial project documentation for the benefit of the Association and the Property. The Community Manual may include the Bylaws, Rules and Regulations and other policies governing the Association. The Community Manual may be amended or supplemented, from time to time, by the Declarant during the Development Period. Any amendment to the Bylaws, Rules and Regulations and other policies governing the Association prosecuted by the Board must be approved in advance and in writing by the Declarant until expiration or termination of the Development Period. Upon expiration or termination of the Development Period, the Community Manual may be amended by a Majority of the Board.
"Community Systems" means any and all cable television, telecommunications,
d. Upon expiration or termination of the Development Period, the Community Manual may be amended by a Majority of the Board.
"Community Systems" means any and all cable television, telecommunications, alarm/monitoring, internet, telephone or other lines, conduits, wires, amplifiers, towers, antennae, satellite dishes, equipment, materials and installations and fixtures (including those based on, containing and serving future technological advances not now known), if installed by Declarant or pursuant to any grant of easement or authority by Declarant within the Property.
"Declarant" means HWY 29 VENTURES 2015, L.P., a Delaware limited partnership, its duly authorized representatives or its successors or assigns; provided that any assignment(s) of the rights of HWY 29 VENTURES 2015, L.P., as Declarant, must be expressly set forth in writing and Recorded.
Declarant enjoys special privileges to help protect its investment in the Property. These special rights are described in this Declaration. Many of these rights do not terminate until either Declarant: (i) has sold and settled all Lots which may be created out of the Property; or (ii) voluntarily terminates these rights by a Recorded written instrument.
"Design Guidelines" means the standards for design, construction, landscaping, and exterior items placed on any Lot adopted pursuant to Section 7.02(c), as the same may be Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 3 2017109533 Page 9 of 87 amended from time to time. The Design Guidelines may consist of multiple written design guidelines applying to specific portions of the Property. Declarant may adopt the initial Design Guidelines and any amendments thereto during the Development Period. Notwithstanding
ple written design guidelines applying to specific portions of the Property. Declarant may adopt the initial Design Guidelines and any amendments thereto during the Development Period. Notwithstanding anything in this Declaration to the contrary, Declarant will have no obligation to establish Design Guidelines.
"Development Agreement" means the Agreement Regarding Consent to Creation of Municipal Utility District and Development of the Lively Tract for the Property dated effective as of April 24, 2015, between the City of Leander, Texas, a Texas home-rule city, and Declarant, as successor to Sentinel Land Company, LLC.
"Development Period" means the period of time beginning on the date when this Declaration has been Recorded, and ending fifteen (15) years thereafter, unless earlier terminated by a Recorded written instrument executed by the Declarant. Declarant may terminate the Development Period by an instrument executed by Declarant and Recorded. The Development Period is the period in which Declarant reserves the right to facilitate the development, construction, and marketing of the Property, and the right to direct the size, shape and composition of the Property. The Development Period is for a term of years and does not require that Declarant own any portion of the Property.
"Governmental Authority" means any and all applicable courts, boards, agencies, commissions, offices, or authorities of any nature whatsoever for any governmental unit (federal, state, county, district, municipal, city or otherwise), whether now or hereafter in existence, including but not limited to the City.
"Homebuilder" means an Owner ( other than the Declarant) who acquires a Lot for the construction of a single-family residence for resale to a third party.
tence, including but not limited to the City.
"Homebuilder" means an Owner ( other than the Declarant) who acquires a Lot for the construction of a single-family residence for resale to a third party.
"Improvement" means all physical enhancements and alterations to the Property, including but not limited to grading, clearing, removal of trees, alteration of drainage flow, and site work, and every structure and all appurtenances of every type and kind, whether temporary or permanent in nature, including, but not limited to, buildings, outbuildings, storage sheds, patios, tennis courts, sport courts, recreational facilities, swimming pools, putting greens, garages, driveways, parking areas and/or facilities, storage buildings, sidewalks, fences, gates, signs, entry monuments, screening walls, retaining walls, stairs, patios, decks, trails, walkways, landscaping, mailboxes, poles, signs, antennae, exterior air conditioning equipment or fixtures, exterior lighting fixtures, water softener fixtures or equipment, and poles, pumps, wells, tanks, reservoirs, pipes, lines, meters, antennas, towers and other facilities used in connection with water, sewer, gas, electric, telephone, regular or cable television, or other utilities.
"Lot" means any portion of the Property designated by Declarant or as shown as a subdivided Lot on a Plat other than Common Area.
"Majority" means more than half.
Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 4 2017109533 Page 10 of 87 "Manager" has the meaning set forth in Section 4.0S(h).
"Maximum Number of Lots" means the number of Lots that are currently contemplated to become subject to the terms and provisions of this Declaration. The Maximum Number of
set forth in Section 4.0S(h).
"Maximum Number of Lots" means the number of Lots that are currently contemplated to become subject to the terms and provisions of this Declaration. The Maximum Number of Lots for the purpose of this Declaration is 1,200. Until expiration or termination of the Development Period, Declarant may unilaterally amend the Maximum Number of Lots that may be created and made subject to the terms and provisions of this Declaration by a written Recorded instrument.
"Members" means every person or entity that holds membership privileges in the Association.
"Mortgage" or "Mortgages" means any mortgage(s) or deed(s) of trust securing indebtedness and covering any Lot.
"Mortgagee" or "Mortgagees" means the holder(s) of any Mortgage(s).
"Owner" means the person(s), entity or entities, including Declarant, holding all or a portion of the fee simple interest in any Lot, but does not include the Mortgagee under a Mortgage prior to its acquisition of fee simple interest in such Lot pursuant to foreclosure of the lien of its Mortgage.
"Plat" means a subdivision plat of any portion of the Property as Recorded, and any amendments thereto, whether recorded before or after this Declaration.
"Private Parks and Hike and Bike Trails" means any parks and hike and bike trails within the Common Area as so delineated on any final Plat and as accepted as Common Area by the Association or Declarant. The Private Parks and Hike and Bike Trails shall be used for personal recreational activities as determined by the Association and is hereby designated as Common Area.
"Property" has the meaning given to it in the Recitals, subject to such additions thereto and deletions therefrom as may be made pursuant to Section 10.03 and Section 10.04 of this Declaration.
Area.
"Property" has the meaning given to it in the Recitals, subject to such additions thereto and deletions therefrom as may be made pursuant to Section 10.03 and Section 10.04 of this Declaration.
"Record, Recording, Recordation and Recorded" means recorded or to be recorded in the Official Public Records of Williamson County, Texas.
"Resident" means an occupant or tenant of a Lot, regardless of whether the person owns the Lot.
"Restrictions" means the restrictions, covenants, and conditions contained in this Declaration, the Design Guidelines, Bylaws, Community Manual, Rules and Regulations or in any other rules and regulations promulgated by the Association pursuant to this Declaration, as adopted and amended from time to time. See Table 1 below for a summary of the Restrictions.
Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 5 2017109533 Page 11 of 87 "Rules and Regulations" means any instrument, however denominated, which is adopted by the Board for the regulation and management of the Property or the Common Area, including any amendments to those instruments.
"Solar Energy Device" means a system or series of mechanisms designed primarily to provide heating or cooling or to produce electrical or mechanical power by collecting and transferring solar-generated energy. The term includes a mechanical or chemical device that has the ability to store solar-generated energy for use in heating or cooling or in the production of power.
TABLE 1: RESTRICTIONS Declaration (Recorded) Creates obligations that are binding upon the Association and all present and future owners of Property.
Certificate of Formation (Recorded) Establishes the Association as a Texas nonprofit corporation.
eates obligations that are binding upon the Association and all present and future owners of Property.
Certificate of Formation (Recorded) Establishes the Association as a Texas nonprofit corporation.
Bylaws (Recorded) Governs the Association's internal affairs, such as elections, meetings, etc.
Community Manual (Recorded) Establishes rules and policies governing the Association.
Design Guidelines (if adopted, Governs the design and architectural standards for the (Recorded)) construction of Improvements and modifications thereto.
Rules and Regulations (if adopted, Regulates the use of property, activities, and conduct (Recorded) within the Property or the Common Area.
Board Resolutions (adopted by the Establishes rules, policies, and procedures for the Board of the Association) Association.
NOTICE The Restrictions are subject to change from time to time. By owning or occupying a Lot, you agree to remain in compliance with the Restrictions, as they may change from time to time.
ARTICLE2 GENERAL AND USE RESTRICTIONS All of the Property shall be owned, held, encumbered, leased, used, occupied, and enjoyed subject to the following limitations and restrictions: 2.01 General.
Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 6 2017109533 Page 12 of 87 (a) Conditions and Restrictions. All Lots within the Property will be owned, held, encumbered, leased, used, occupied and enjoyed subject to the Restrictions. Additionally, all Lots within the Property are subject to the restrictions contained in the Development Agreement.
(b) Ordinances. Ordinances and requirements imposed by local Governmental Authorities are applicable to all Lots within the Property and are superior in
ictions contained in the Development Agreement.
(b) Ordinances. Ordinances and requirements imposed by local Governmental Authorities are applicable to all Lots within the Property and are superior in standing to the terms and conditions herein. Compliance with the Restrictions is not a substitute for compliance with Applicable Law. Please be advised that the Restrictions do not purport to list or describe each restriction that may be applicable to a Lot located within the Property. Each Owner is advised to review all ordinances, requirements, regulations and encumbrances affecting the use and improvement of their Lot prior to submitting plans to the ACC for approval. Furthermore, approval by the ACC should not be construed by the Owner that any Improvement complies with the terms and provisions of any ordinances, requirements, regulations or encumbrances of any local Governmental Authority that may affect the Owner's Lot. Certain encumbrances may benefit parties whose interests are not addressed by the ACC.
2.02 Conceptual Plans. All master plans, site plans, brochures, illustrations, information and marketing materials relating to the Property or the Common Area ( collectively, the "Conceptual Plans") are conceptual in nature and are intended to be used for illustrative purposes only. The land uses and Improvements reflected on the Conceptual Plans are subject to change at any time and from time to time, and it is expressly agreed and understood that land uses within the Property or the Common Area may include uses that are not shown on the Conceptual Plans. Neither Declarant nor any Homebuilder or other developer of any portion of the Property or the Common Area makes any representation or warranty concerning such land
not shown on the Conceptual Plans. Neither Declarant nor any Homebuilder or other developer of any portion of the Property or the Common Area makes any representation or warranty concerning such land uses and Improvements shown on the Conceptual Plans or otherwise planned for the Property or the Common Area and it is expressly agreed and understood that no Owner will be entitled to rely upon the Conceptual Plans or any statements made by the Declarant or any of Declarant' s representatives regarding the proposed land uses, or proposed or planned Improvements in making the decision to purchase any land or Improvements within the Property. Each Owner who acquires a Lot within the Property acknowledges that development of the Property and/or the Common Area will likely extend over many years, and agrees that the Association will not engage in, or use Association funds to support, protest, challenge, or make any other form of objection to development of the Property or the Common Area or changes in the Conceptual Plans as they may be amended or modified from time to time.
2.03 Single-Family Residential Use. The Lots shall be used solely for private single family residential purposes and there shall not be constructed or maintained thereon more than one detached single-family residence and associated single-family residential Improvements.
No professional, business, or commercial activity to which the general public is invited shall be conducted on any Lot, except an Owner or Resident of a residence may conduct business activities within a residence so long as: (i) such activity complies with all Applicable Law; (ii) the business activity is conducted without the employment of persons other than the
conduct business activities within a residence so long as: (i) such activity complies with all Applicable Law; (ii) the business activity is conducted without the employment of persons other than the Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 7 2017109533 Page 13 of 87 residents of the home constructed on the Lot; (iii) the business activity does not involve regular visits from customers, contractors, clients or members of the general public; (iv) the existence or operation of the business activity is not apparent or detectable by sight (i.e., no sign may be erected advertising the business on any Lot), sound, or smell from outside the residence; (v) the business activity conforms to all zoning requirements for the Property; (vi) the business activity does not involve door-to-door solicitation of residents within the Property; (vii) the business does not, in the Board's judgment, generate a level of vehicular or pedestrian traffic or a number of vehicles parked within the Property which is noticeably greater than that which is typical of residences in which no business activity is being conducted; (viii) the business activity is consistent with the residential character of the Property and does not constitute a nuisance, or a hazardous or offensive use, or threaten the security or safety of other Residents of the Property as may be determined in the sole discretion of the Board; and (ix) the business does not require the installation of any machinery other than that customary to normal household operations. In addition, for the purpose of obtaining any business or commercial license, neither the residence nor Lot will be considered open to the public. The terms "business" and "trade", as used in this
ns. In addition, for the purpose of obtaining any business or commercial license, neither the residence nor Lot will be considered open to the public. The terms "business" and "trade", as used in this provision, shall be construed to have their ordinary, generally accepted meanings and shall include, without limitation, any occupation, work, or activity undertaken on an ongoing basis which involves the provision of goods or services to persons other than the provider's family and for which the provider receives a fee, salary, compensation, or other form of consideration, regardless of whether: (x) such activity is engaged in full or part-time; (y) such activity in intended to or does generate a profit; or (z) a license is required.
Leasing of a residence shall not be considered a business or trade within the meaning of this subsection provided such lease is for a lease term of at least 6 months. Garage sales or yard sales (or any similar vending of merchandise) conducted on any Lot shall be not considered business activity provided that no Owner may conduct more than three garage sales or yard sales within any 12 month period or more than one garage sale or yard sale every 120 days. The Association may, but shall not be obligated to, sponsor, organize or otherwise provide for a community wide garage sale which shall not apply against the previous limitations on any Owner. This subsection shall not apply to any activity conducted by the Declarant or a Homebuilder.
Notwithstanding any provision in this Declaration to the contrary, until the earlier to occur of (1) the expiration or termination of the Development Period, or (2) 30 years from the date this Declaration is Recorded: (a) Declarant and/or its licensees may construct and maintain upon portions of
(1) the expiration or termination of the Development Period, or (2) 30 years from the date this Declaration is Recorded: (a) Declarant and/or its licensees may construct and maintain upon portions of the Common Area, any Lot, or portion of the Property owned by the Declarant, such facilities and may conduct such activities which, in Declarant' s sole opinion, may be reasonably required, convenient, or incidental to the construction or sale of single family residences constructed upon the Lots, including, but not limited to, business offices, signs, model homes, sales offices, and parking lots related to the foregoing. Declarant and/or its licensees shall have an easement over and across the Common Area for access and use of such facilities at no charge; and Declaration of Covenants, Conditions and Restrictions for Lively Ranch Page 8 2017109533 Page 14 of 87 (b) Declarant and/or its licensees will have an access easement over and across the Common Area for the purpose of making, constructing and installing Improvements to the Common Area.
2.04 Subdividing. No Lot shall be further divided or subdivided, nor may any easements or other interests therein less than the whole be conveyed by the Owner thereof without the prior written approval of the ACC; provided, however, that when Declarant is the Owner thereof, Declarant may further divide and subdivide any Lot and convey any easements or other interests less than the whole, all without the approval of the ACC.
2.05 Hazardous Activities. No activities may be conducted on or within the Property and no Improvements may be constructed on or within any portion of the Property which, in the opinion of the Board, are or might be unsafe or hazardous to any person or property.
r within the Property and no Improvements may be constructed on or within any portion of the Property which, in the opinion of the Board, are or might be unsafe or hazardous to any person or property.
Without limiting the generality of the foregoing, no firearms or fireworks may be discharged upon any portion of the Property unless discharged in conjunction with an event approved in advance by the Board. No open fires may be lighted or permitted except within safe and well designed fireplaces or in contained barbecue units while attended and in use for cooking purposes. No portion of the Property may be used for the takeoff, storage, or landing of aircraft (including, without limitation, helicopters) except for medical emergencies.
2.06 Insurance Rates. Nothing shall be done or kept on the Property that would increase the rate of casualty or liability insurance or cause the cancellation of any such insurance on the Common Area, or the Improvements located thereon, without the prior written approval of the Board.
2.07 Mining and Drilling. No portion of the Property may be used for the purpose of mining, quarrying, drilling, boring, or exploring for or removing oil, gas, or other hydrocarbons, minerals of any kind, rocks, stones, sand, gravel, aggregate, or earth. This provision will not be construed to prevent the excavation of rocks, stones, sand, gravel, aggregate, or earth or the storage of such material for use as fill provided that such activities are conducted in conjunction with the construction of Improvements and/or the development of the Property by the Declarant.
2.08 Noise. No exterior speakers (other than exterior speakers in the rear yard of a dwelling in compliance with second sentence of this Section), horns, whistles, bells, or other
ty by the Declarant.
2.08 Noise. No exterior speakers (other than exterior speakers in the rear yard of a dwelling in compliance with second sentence of this Section), horns, whistles, bells, or other sound devices ( other than security devices used exclusively for security purposes) shall be located, used, or placed on any of the Lots. No noise or other nuisance shall be permitted to exist or operate upon any portion of the Property so as to be offensive or detrimental to any other portion of the Property or to its Residents. Without limiting the generality of the foregoing, if any noise or nuisance emanates from any Improvement on any Lot, the Association may (but shall not be obligated to) enter any such Improvement and take such reasonable actions necessary to terminate such noise (including silencing any burglar or break-in alarm).
Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 9 2017109533 Page 15 of 87 2.09 Animals -Household Pets. No animals, including but not limited to pigs, hogs, swine, poultry, fowl, wild animals, horses, cattle, sheep, goats, or any other type of animal not considered to be a domestic household pet within the ordinary meaning and interpretation of such words may be kept, maintained, or cared for on or within any Lot (as used in this paragraph, the term "domestic household pet" shall not mean or include non-traditional pets such pot-bellied pigs, miniature horses, exotic snakes or lizards, ferrets, monkeys or other exotic animals). The Board may conclusively determine, in its sole discretion, whether a particular pet is a domestic household pet within the ordinary meaning and interpretation of such words. No Owner may keep on such Owner's Lot more than three cats and dogs, in the aggregate. No
her a particular pet is a domestic household pet within the ordinary meaning and interpretation of such words. No Owner may keep on such Owner's Lot more than three cats and dogs, in the aggregate. No animal may be allowed to make an unreasonable amount of noise, or to become a nuisance, and no domestic pets will be allowed on the Property other than within the Owner's residence, or the fenced yard space associated therewith, unless confined to a leash. The Association may restrict pets to certain areas on the Property. No animal may be stabled, maintained, kept, cared for, or boarded for hire or remuneration on a Lot, and no kennels or breeding operation will be allowed. No animal may be allowed to run at large, and all animals must be kept within enclosed areas which must be clean, sanitary, and reasonably free of refuse, insects, and waste at all times. No pet may be left unattended in yards, porches or other outside area. All pet waste will be removed and appropriately disposed of by the owner of the pet. All pets must be registered, licensed and inoculated as required by Applicable Law. If, in the opinion of the Board, any pet becomes a source of unreasonable annoyance (an unreasonable annoyance shall be deemed to include, but not be limited to, any pet that bites any person or other animal one or more times and any pet that barks incessantly or between the hours of 9:00 p.m and 7:00 a.m. on a regular basis) to others, or the owner of the pet fails or refuses to comply with these restrictions, the Owner, upon written notice, may be required to remove the pet from the Property.
2.10 Rubbish and Debris. As determined by the Board, no rubbish or debris of any kind may be placed or permitted to accumulate on or within the Property, and no odors will be
he pet from the Property.
2.10 Rubbish and Debris. As determined by the Board, no rubbish or debris of any kind may be placed or permitted to accumulate on or within the Property, and no odors will be permitted to arise therefrom so as to render all or any portion of the Property unsanitary, unsightly, offensive, or detrimental to any other property or Residents. The Board may adopt, amend, and repeal rules regulating the disposal and removal of trash from the Property. If the rules fail to establish hours for curbside trash containers, the container may be in the designated area from dusk on the evening before trash pick-up day until dusk on the day of trash pick-up.
At all other times, refuse, garbage, and trash must be kept at all times in covered containers, and such containers must be kept within enclosed structures or appropriately screened from view.
Each Owner will contract with an independent disposal service to collect all garbage or other wastes, if such service is not provided by a Governmental Authority or the Association.
2.11 Maintenance. The Owners of each Lot shall jointly and severally have the duty and responsibility, at their sole cost and expense, to keep their Lot and all Improvements thereon in good condition and repair and in a well-maintained, safe, clean, and attractive condition at all times. The Board, in its sole discretion, shall determine whether a violation of the maintenance obligations set forth in this Section 2.11 has occurred. Such maintenance Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 10 2017109533 Page 16 of 87 includes, but is not limited to the following, which shall be performed in a timely manner, as determined by the Board, in its sole discretion: weeds. (a) (b) (c) (d) (e) (f) (g) (h) (i)
Page 16 of 87 includes, but is not limited to the following, which shall be performed in a timely manner, as determined by the Board, in its sole discretion: weeds. (a) (b) (c) (d) (e) (f) (g) (h) (i) G) Prompt removal of all litter, trash, refuse, and wastes.
Lawn mowing.
Tree and shrub pruning.
Watering.
Keeping exterior lighting and mechanical facilities in working order.
Keeping lawn and garden areas alive, free of weeds, and attractive.
Keeping planting beds free of turf grass or other invasive plants and Keeping sidewalks and driveways in good repair.
Complying with Applicable Law.
Repainting of Improvements to maintain an attractive appearance.
(k) Repair of exterior damage, and wear and tear to Improvements promptly following any damage thereto or as otherwise required as regular preventative maintenance.
2.12 Street Landscape Area-Owner's Obligation to Maintain Landscaping. Each Owner will be responsible, at such Owner's sole cost and expense, for maintaining mowing, replacing, pruning, and irrigating the landscaping between the boundary of such Owner's Lot and the curb of any adjacent public right-of-way, street or alley (the "ST Landscape Area") unless the responsibility for maintaining the ST Landscape Area is performed by the Association.
2.13 Antennas. Except as expressly provided below, no exterior radio or television antennae or aerial or satellite dish or disc, shall be erected, maintained or placed on a Lot without the prior written approval of the ACC; provided, however, that: (i) an antenna designed to receive direct broadcast services, including direct-to-home satellite services, that is one meter or less in diameter; or (ii) an antenna designed to receive video programming
) an antenna designed to receive direct broadcast services, including direct-to-home satellite services, that is one meter or less in diameter; or (ii) an antenna designed to receive video programming services via multipoint distribution services, including multi-channel multipoint distribution services, instructional television fixed services, and local multipoint distribution services, that is one meter or less in diameter or diagonal measurement; or (iii) an antenna that is designed to receive television or radio broadcast signals; (collectively, (i) through (iii) are referred to herein as the "Permitted Antennas") will be permitted subject to reasonable requirements as to location and screening as may be set forth in rules adopted by the ACC, consistent with Applicable Law, in order to minimize obtrusiveness as viewed from streets and adjacent Declaration of Covenants, Conditions and Restrictions for Lively Ranch Page 11 2017109533 Page 17 of 87 property. Declarant and/or the Association will have the right, but not the obligation, to erect an aerial, satellite dish, or other apparatus for a master antenna, cable, or other communication system for the benefit of all or any portion of the Property.
2.14 Location of Permitted Antennas. A Permitted Antenna may be installed solely on the Owner's Lot and shall not encroach upon any street, Common Area, or any other portion of the Property. A Permitted Antenna shall be installed in a location on the Lot from which an acceptable quality signal can be obtained and where least visible from the street and the Property, other than the Lot. In order of preference, the locations of a Permitted Antenna which will be considered least visible by the ACC are as follows: (i) attached to the back of the
eet and the Property, other than the Lot. In order of preference, the locations of a Permitted Antenna which will be considered least visible by the ACC are as follows: (i) attached to the back of the residence constructed on the Lot, with no part of the Permitted Antenna any higher than the roof fascia, soffit, or bargeboard and screened from view of adjacent Lots and the street; then (ii) attached to the side of the principal single-family residence constructed on the Lot, with no part of the Permitted Antenna any higher than the roof fascia, soffit, or bargeboard and screened from view of adjacent Lots and the street. In no event will front yard or street side (if a comer Lot) antenna be permitted. The ACC may, from time to time, modify, amend, or supplement the rules regarding installation and placement of Permitted Antennas.
Satellite dishes one meter or less in diameter, e.g., DirectTV or Dish satellite dishes, are permitted, HOWEVER, you are required to comply with the rules regarding installation and placement. These rules and regulations may be modified by the ACC from time to time. Please contact the ACC for the current rules regarding installation and placement.
2.15 Signs. Unless otherwise prohibited by Applicable Law, no sign of any kind may be displayed to the public view on any Lot without the prior written approval of the ACC, except for: (a) signs which are permitted pursuant to the Design Guidelines or rules adopted by the ACC; (b) signs which are part of Declarant' s or a Homebuilder' s overall marketing sale, or construction plans or activities for the Property; (c) signs which do not exceed five sq. ft., of tasteful design, which advertise a Lot or home for sale or rent or advertise a garage or yard sale that is permitted to be conducted
es for the Property; (c) signs which do not exceed five sq. ft., of tasteful design, which advertise a Lot or home for sale or rent or advertise a garage or yard sale that is permitted to be conducted pursuant to Section 2.03; (d) signs containing information about one or more children residing in the residence and the school they attend shall be permitted so long as the sign is not more than 36 inches by 36 inches and is fastened only to a stake in the ground. There shall be no more than one sign for each child under the age of 18 residing in the residence, and said signs may not be Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 12 2017109533 Page 18 of 87 displayed more than ten days in any calendar month, or for more than three months in a calendar year; (e) political signs may be erected provided the sign: (i) is erected no earlier than the 90th day before the date of the election to which the sign relates; (ii) is removed no later than the 10th day after the date of the election to which the sign relates; and (iii) is ground mounted. Only one sign may be erected for each candidate or ballot item on a Lot. In addition, signs which include any of the components or characteristics described in Section 202.009(c) of the Texas Property Code are prohibited; (f) a religious item on the entry door or door frame of a residence (which may not extend beyond the outer edge of the door frame), provided that the size of the item(s), individually or in combination with other religious items on the entry door or door frame of the residence, does not exceed twenty-five (25) square inches; (g) a maximum of two (2) school or youth affiliated signs shall be permitted,
th other religious items on the entry door or door frame of the residence, does not exceed twenty-five (25) square inches; (g) a maximum of two (2) school or youth affiliated signs shall be permitted, provided the sign(s): (i) is located in the landscaping bed of the front yard and blends in with the existing landscaping; (ii) is no larger than 36" x 42" and does not exceed five feet (5') in height above natural ground; (iii) is constructed of wood, plastic or metal and are not flags or banners, as determined in the sole and absolute discretion of the Board; (iv) is kept in good condition and repair, as determined in the sole and absolute discretion of the Board; (v) does not cause embarrassment, discomfort and/or annoyance to other Owners, as determined in the sole and absolute discretion of the Board; and (vi) does not contain any telephone numbers or commercial advertisements; (h) permits as may be required by legal proceedings; and (i) permits as may be required by any Governmental Authority.
An Owner or resident will be permitted to post a "no soliciting" and "security warning" sign near or on the front door to their residence, provided, that the sign may not exceed 25 square inches. As used in this Section 2.15, the term "signs" shall be given a broad interpretation and shall include, but not be limited to, banners, words, symbols, decorations, slogans, flags (except to the extent certain flags are permitted by Section 2.16 and Section 2.17 below), and other written materials designed for public display. Each owner hereby grants permission to the Declarant and the ACC (or their duly authorized agents) to enter upon a Lot or any part of the Property and remove any sign, billboard or advertising structure that does
ereby grants permission to the Declarant and the ACC (or their duly authorized agents) to enter upon a Lot or any part of the Property and remove any sign, billboard or advertising structure that does not comply with the above requirements and, in doing so, shall not be subject to any liability to any person whatsoever for trespass, conversion, or any claim for damages in connection with such removal.
2.16 Flags -Approval Requirements. An Owner is permitted to display the flag of the United States of America, the flag of the State of Texas, or an official or replica flag of any branch of the United States Military ("Permitted Flag") and permitted to install a flagpole no more than five feet (5') in length affixed to the front of a residence near the principal entry or Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 13 2017109533 Page 19 of 87 affixed to the rear of a residence ("Permitted Flagpole"). Only two Permitted Flagpoles are allowed per residence. A Permitted Flag or Permitted Flagpole attached to the Improvement as described herein need not be approved in advance by the ACC. Approval by the ACC is required prior to installing vertical freestanding flagpoles installed in the front or back yard area of any Lot ("Freestanding Flagpole"). To obtain ACC approval of any Freestanding Flagpole, the Owner shall provide the ACC with the following information: (i) the location of the Freestanding Flagpole to be installed on the Lot; (ii) the type of Freestanding Flagpole to be installed; (iii) the dimensions of the Freestanding Flagpole; and (iv) the proposed materials of the Freestanding Flagpole (the "Flagpole Application"). A Flagpole Application may only be
agpole to be installed; (iii) the dimensions of the Freestanding Flagpole; and (iv) the proposed materials of the Freestanding Flagpole (the "Flagpole Application"). A Flagpole Application may only be submitted by an Owner. The Flagpole Application shall be submitted in accordance with the provisions of ARTICLE 7 of this Declaration.
2.17 Flags -Installation and Display. Unless otherwise approved in advance and in writing by the ACC, Permitted Flags, Permitted Flagpoles and Freestanding Flagpoles, installed in accordance with the Flagpole Application, must comply with the following: (a) No more than one Freestanding Flagpole OR no more than two Permitted Flagpoles are permitted per Lot, on which only Permitted Flags may be displayed; (b) Any Permitted Flagpole must be no longer than five feet (5') in length and any Freestanding Flagpole must be no more than twenty feet (20') in height; (c) Any Permitted Flag displayed on either a Permitted Flagpole or a Freestanding Flagpole may not be more than three feet in height by five feet in width (3'x5'); (d) With the exception of flags displayed on Common Area or any Lot which is being used for marketing purposes by a Homebuilder, the flag of the United States of America must be displayed in accordance with 4 U.S.C. Sections 5-10 and the flag of the State of Texas must be displayed in accordance with Chapter 3100 of the Texas Government Code; ( e) The display of a Permitted Flag, or the location and construction of a Permitted Flagpole or Freestanding Flagpole must comply with all Applicable Law, easements and setbacks of record; (f) Each Permitted Flagpole and Freestanding Flagpole must be constructed of permanent, long-lasting materials, with a finish appropriate to the materials used in the
easements and setbacks of record; (f) Each Permitted Flagpole and Freestanding Flagpole must be constructed of permanent, long-lasting materials, with a finish appropriate to the materials used in the construction thereof and harmonious with the residence; (g) Any Permitted Flag, Permitted Flagpole or Freestanding Flagpole must be maintained in good condition and any deteriorated Permitted Flag or deteriorated or structurally unsafe Permitted Flagpole or Freestanding Flagpole must be repaired, replaced or removed; Declaration of Covenants, Conditions and Restrictions for Lively Ranch Page 14 2017109533 Page 20 of 87 (h) A Permitted Flag may be illuminated by no more than one (1) halogen landscaping light of low beam intensity which shall not be aimed towards or directly affect any neighboring Lot; and (i) Any external halyard of a Permitted Flagpole or Freestanding Flagpole must be secured so as to reduce or eliminate noise from flapping against the metal of the Permitted Flagpole or Freestanding Flagpole.
The requirements of this Section 2.17 shall not apply to any flag or flagpole erected by the Declarant.
2.18 Tanks. No tanks of any kind will be permitted to be placed on any Lot or used in connection with a single-family residential structure. This provision will not apply to a tank used to operate a standard residential gas grill, swimming pool filter tanks (so long as they are screened so as not to be visible from any other part of the Property) or an indoor tank used for heating water. No individual water-supply systems will be permitted on any Lot, including but not limited to water wells, cesspools, or water-collection tanks; however, rain barrels and rain harvesting devices will be permitted in accordance with the terms of Section 3.17.
y Lot, including but not limited to water wells, cesspools, or water-collection tanks; however, rain barrels and rain harvesting devices will be permitted in accordance with the terms of Section 3.17.
2.19 Temporary Structures. No tent, shack, or other temporary building, Improvement, or structure shall be placed upon the Property without the prior written approval of the ACC; provided, however, that temporary structures necessary for storage of tools and equipment, and for office space for architects, Homebuilders, and foremen during actual construction may be maintained with the prior approval of Declarant. ACC approval shall include the nature, size, duration, and location of such structure. Notwithstanding any provision in this Declaration to the contrary, an Owner will be permitted, without ACC approval, to erect one outbuilding on the Owner's Lot if (i) the surface area of the pad on which the outbuilding is placed is less than or equal to 80 square feet, (ii) the height of the outbuilding, measured from the surface of the Lot to the highest portion of the outbuilding is less than or equal to six feet ( 6'), (iii) the outbuilding is constructed within an area completely enclosed by a privacy fence of at least six feet (6') in height, (iv) the exterior of the outbuilding is constructed of the same or substantially similar materials as the exterior of any residence located on the Lot, and (v) the outbuilding is constructed within building setback lines, in accordance with applicable building codes of the Governmental Authority having jurisdiction over the Property, and with all required governmental permits. The ACC is entitled to determine, in its sole and absolute discretion, whether an outbuilding constructed on any Lot complies with the foregoing
e Property, and with all required governmental permits. The ACC is entitled to determine, in its sole and absolute discretion, whether an outbuilding constructed on any Lot complies with the foregoing requirements relating to size, height, fence enclosure, and construction materials.
2.20 Unsightly Articles; Vehicles. No article deemed to be unsightly by the ACC shall be permitted to remain on any Lot so as to be visible from adjoining property or from public or private thoroughfares. Without limiting the generality of the foregoing, trailers, graders, trucks other than pickups, boats, tractors, campers, motorhomes, wagons, buses, motorcycles, motor scooters, all-terrain vehicles and garden maintenance equipment shall be kept at all times, except when in actual use, in enclosed structures or screened from view and no Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 15 2017109533 Page 21 of 87 repair or maintenance work shall be done on any of the foregoing, or on any automobile ( other than minor emergency repairs), except in enclosed garages or other structures. No vehicles of any type shall be constructed, reconstructed, or assembled anywhere on any Lot. Service areas, compost piles and storage areas, shall be appropriately screened from view, and no lumber, grass, plant waste, shrub or tree clippings, metals, bulk materials, scrap, refuse or trash shall be kept, stored, or allowed to accumulate on any portion of a Lot except within enclosed structures or appropriately screened from view. No: (i) racing vehicles; or (ii) other vehicles (including, without limitation, automobiles, motorhomes, motorcycles or motor scooters) which are inoperable or do not have a current license tag shall be permitted to remain visible on any Lot
hicles (including, without limitation, automobiles, motorhomes, motorcycles or motor scooters) which are inoperable or do not have a current license tag shall be permitted to remain visible on any Lot or to be parked on any roadway within the Property or Common Area. Facilities for hanging, drying or airing clothing or household fabrics shall not be permitted in the yard of any Lot.
No garage shall be (a) permanently enclosed or (b) otherwise used for habitation, either on a temporary or permanent basis.
2.21 Mobile Homes, Travel Trailers and Recreational Vehicles. No mobile homes, travel trailers or recreational vehicles shall be parked or placed on any Lot or used as a residence, either temporary or permanent, at any time, and shall otherwise only be parked or stored in such manner as to be visible from any other portion of the Property or adjoining Lot for a period not to exceed (i) 48 consecutive hours or (ii) 72 hours in any 7 day period, during any three month period.
2.22 On Street Parking. Vehicles that are not prohibited by Section 2.20 or Section 2.21 may park on public streets if the city or applicable Governmental Authority allows curbside parking. Parking longer than 48 hours may be controlled by the ACC in its discretion.
2.23 Basketball Goals; Permanent and Portable. Permanent and portable basketball goals are permitted if approved by the ACC. Basketball goals must be properly maintained and painted, with the net in good repair. Portable basketball goals shall only be used on the Lot and not on any public streets, sidewalks, or other right of way including trails. All basketball goals and hoops shall be kept (i) in good condition, and (ii) free of stickers or markings of any kind.
and not on any public streets, sidewalks, or other right of way including trails. All basketball goals and hoops shall be kept (i) in good condition, and (ii) free of stickers or markings of any kind.
2.24 Compliance with Restrictions. Each Owner, his or her family, Residents of a Lot, tenants, and the guests, invitees, and licensees of the preceding shall comply strictly with the provisions of the Restrictions as the same may be amended from time to time. Failure to comply with any of the Restrictions shall constitute a violation of the Restrictions and may result in a fine against the Owner in accordance with Section 6.12 of this Declaration, and shall give rise to a cause of action to recover sums due for damages or injunctive relief, or both, maintainable by the Declarant, the Manager, the Board on behalf of the Association, the ACC, or by an aggrieved Owner. The result of every act or omission that violates any provision of the Restrictions is a nuisance, and any remedy allowed by law against a nuisance, either public or private, is applicable against the violation. Without limiting any rights or powers of the Association, the Board may (but shall not be obligated to) remedy or attempt to remedy any violation of any of the provisions of the Restrictions, and the Owner whose violation has been Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 16 2017109533 Page 22 of 87 so remedied shall be personally liable to the Association for all costs and expenses of effecting (or attempting to effect) such remedy. If such Owner fails to pay such costs and expenses upon demand by the Association, such costs and expenses (plus interest from the date of demand
es of effecting (or attempting to effect) such remedy. If such Owner fails to pay such costs and expenses upon demand by the Association, such costs and expenses (plus interest from the date of demand until paid at the maximum lawful rate, or if there is no such maximum lawful rate, at the rate of one and one-half percent (1.50%) per month) shall be assessed against and chargeable to the Owner's Lot(s). Any such amounts assessed and chargeable against a Lot shall be secured by the liens reserved in this Declaration for Assessments and may be collected by any means provided in this Declaration for the collection of Assessments, including, but not limited to, foreclosure of such liens against the Owner's Lot(s). Each such Owner shall release and hold harmless the Association and its officers, directors, employees and agents from any cost, loss, damage, expense, liability, claim or cause of action incurred or that may arise by reason of the Association's acts or activities under this Section 2.24 (including any cost, loss, damage, expense, liability, claim or cause of action arising out of the Association's negligence in connection therewith), except for such cost, loss, damage, expense, liability, claim or cause of action arising by reason of the Association's gross negligence or willful misconduct. "Gross negligence" as used herein does not include simple negligence, contributory negligence or similar negligence short of actual gross negligence.
2.25 Liability of Owners for Damage to Common Area. No Owner shall in any way alter, modify, add to, or otherwise perform any work upon the Common Area without the prior written approval of the Board and the Declarant during the Development Period. Each Owner,
shall in any way alter, modify, add to, or otherwise perform any work upon the Common Area without the prior written approval of the Board and the Declarant during the Development Period. Each Owner, Owner's family, Resident or other occupant of such Owner's Lot, or any guest or invitee of such Owner, shall be liable to the Association for any and all damages to: (a) the Common Area and any Improvements constructed thereon; or (b) any Improvements constructed on any Lot, the maintenance of which has been assumed by the Association, which damages were caused by the neglect, misuse or negligence of such Owner or Owner's family, or by any tenant or other Resident of such Owner's Lot, or any guest or invitee of such Owner or Resident. The full cost of all repairs of such damage shall be an Individual Assessment against such Owner's Lot, secured by a lien against such Owner's Lot and collectable in the same manner as provided in Section 6.10 of this Declaration.
2.26 No Warranty of Enforceability. Declarant makes no warranty or representation as to the present or future validity or enforceability of the Restrictions. Any Owner acquiring a Lot in reliance on one or more of the Restrictions shall assume all risks of the validity and enforceability thereof and, by acquiring the Lot, agrees to hold Declarant harmless therefrom.
2.27 Party Wall Fences and Walls. A fence or wall located on or near the dividing line between two Lots and intended to benefit both Lots constitutes a "Party Wall" and, to the extent not inconsistent with the provisions of this Section 2.27, is subject to the general rules of law regarding party walls and liability for property damage due to negligence, willful acts, or omissions.
(a) Encroachments & Easement. If the Party Wall is on one Lot due to an
the general rules of law regarding party walls and liability for property damage due to negligence, willful acts, or omissions.
(a) Encroachments & Easement. If the Party Wall is on one Lot due to an error in construction, the Party Wall is nevertheless deemed to be on the dividing line for Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 17 2017109533 Page 23 of 87 purposes of this Section 2.27. Each Lot sharing a Party Wall is subject to an easement for the existence and continuance of any encroachment by the Party Wall as a result of construction, repair, shifting, settlement, or movement in any portion of the Party Wall, so that the encroachment may remain undisturbed as long as the Party Wall stands. Each Lot is subject to a reciprocal easement for the maintenance, repair, replacement, or reconstruction of the Party Wall.
(b) Right to Repair. If the Party Wall is damaged or destroyed from any cause, the Owner of either Lot may repair or rebuild the Party Wall to its previous condition, and the Owners of both Lots, their successors and assigns, have the right to the full use of the repaired or rebuilt Party Wall, and the obligations of Section 2.27(c) below shall apply thereto.
No Party Wall may be constructed, repaired, or rebuilt without the advance written approval of the ACC in accordance with ARTICLE 7 of this Declaration.
(c) Maintenance Costs. The Owners of the adjoining Lots share equally the costs of repair, reconstruction, or replacement of the Party Wall, subject to the right of one Owner to call for larger contribution from the other under any rule of law regarding liability for negligence or willful acts or omissions. If an Owner is solely responsible for damage to or
ht of one Owner to call for larger contribution from the other under any rule of law regarding liability for negligence or willful acts or omissions. If an Owner is solely responsible for damage to or destruction of the Party Wall, that Owner will bear the entire cost of repair, reconstruction, or replacement. If an Owner fails or refuses to pay his share of costs of repair or replacement of the Party Wall, the Owner advancing monies has a right to file a claim of lien for the monies advanced in the Official Public Records of Williamson County, Texas, and has the right to foreclose the lien as if it were a mechanic's lien. The right of an Owner to require contribution from another Owner under this Section 2.27 is appurtenant to the Lot and passes to the Owner's successors in title.
(d) Alterations. The Owner of a Lot sharing a Party Wall shall not cut openings in the Party Wall or alter or change the Party Wall in any manner that affects the use, condition, or appearance of the Party Wall to the adjoining Lot. The Party Wall shall always remain in the same location as when erected unless otherwise approved by the Owner of each Lot sharing the Party Wall and the ACC. Any replacement or repaired Party Wall shall maintain the architectural style and materials existing prior to such replacement or repair unless otherwise approved by the ACC.
2.28 Permitted Hours for Construction Activity. Except in an emergency or when other unusual circumstances exist, as determined by the Board, after the initial construction of residences, outside construction work or noisy interior construction work shall be permitted only between the days of Monday through Saturday from 7:00 A.M. until 7:00 P.M.
2.29 Outdoor Play Equipment and Sports Courts. Outdoor play equipment,
isy interior construction work shall be permitted only between the days of Monday through Saturday from 7:00 A.M. until 7:00 P.M.
2.29 Outdoor Play Equipment and Sports Courts. Outdoor play equipment, including but not limited to playscapes, children's swing sets, jungle gyms, slides and similar outdoor play equipment must be approved in writing by the ACC prior to its installation. All such outdoor play equipment shall be screened from view by walls or mature landscaping and shall be located on the rear of the Lot in a location approved by the ACC. Sport Courts are Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 18 2017109533 Page 24 of 87 permissible at the sole discretion of the ACC. If allowed, these facilities must be properly sited and screened so as to minimize the visual and audio impact of the facility on adjacent Lots and Common Area. Sport Courts shall not be lighted or enclosed with netting. Tennis courts are not permitted.
2.30 Decorations and Lighting. Unless otherwise permitted by this Declaration, no decorative appurtenances such as art, sculptures, birdbaths and birdhouses, fountains, or other decorative embellishments shall be placed on the residence or on the front yard or on any other portion of a Lot that is visible from any street, unless such specific items have been approved in writing by the ACC. Customary seasonal decorations for holidays are permitted without approval by the ACC but shall be removed within 30 days of the applicable holiday. Outside lighting fixtures shall be placed so as to illuminate only the yard of the applicable Lot and so as not to affect or reflect into surrounding residences or yards or into the sky above. No mercury
side lighting fixtures shall be placed so as to illuminate only the yard of the applicable Lot and so as not to affect or reflect into surrounding residences or yards or into the sky above. No mercury vapor, sodium or halogen light shall be installed on any Lot that is visible from any Street unless otherwise approved by the ACC. Exterior lighting controlled by switches that detect movement to tum on automatically shall remain in the 'on' position for no more than 5 minutes.
2.31 Tree Removal. This Section 2.31 only applies once an Owner has occupied a dwelling on a Lot. If a tree on the Owner's Lot is greater than three inches (3") in caliper, measured at a point six inches (6") above grade, it shall not be removed. Nonetheless, a tree of this size may be removed if: (i) it is diseased; (ii) it is dead; (iii) it is unsafe; (iv) it needs to be removed to promote the growth of other trees; or (v) the ACC has approved removal of the tree.
If any subsection other than (iv) applies, the tree shall be replaced by another tree at least 3" in caliper measured at a point 6" above grade. If this Section 2.31 is violated, whether intentionally or unintentionally, the Board, in its sole discretion, may require the violator to replace the removed tree with one or more comparable trees of such size and in such location(s) as the Board, in its sole discretion, may determine necessary to mitigate damages for the violation.
2.32 Private Utility Lines. All electrical, telephone, telecommunication, natural gas and other utility lines and facilities which are located on a Lot that are not owned by a government entity or a public utility company shall be installed underground.
2.33 Windows and Window Covering. Sheets, newspapers, aluminum foil,
es which are located on a Lot that are not owned by a government entity or a public utility company shall be installed underground.
2.33 Windows and Window Covering. Sheets, newspapers, aluminum foil, cardboard, and similar items may not be used as temporary window coverings. No reflective screens, awnings, reflective glass, mirrors, or similar reflective materials of any type shall be placed or installed inside or outside of any windows of a Lot without the prior written approval of the ACC. Window drapes must be lined in a black or white, non-patterned material. No air conditioners, swamp coolers, or similar units may be placed in any window on a Lot.
2.34 Rentals. Nothing in this Declaration shall prevent the rental of any Lot and the Improvements thereon by the Owner thereof for residential purposes, so long as such Lot or the Improvements thereon are not rented for transient or hotel purposes or for a period of less than six months. Whether or not it is so stated in a lease, every lease is subject to the Restrictions. An Declaration of Covenants, Conditions and Restrictions for Lively Ranch-Page 19 2017109533 Page 25 of 87 Owner is responsible for providing his tenant with copies of the Restrictions and notifying him of changes thereto. Failure by the tenant or his invitees to comply with the Restrictions, federal or state law, or local ordinance is deemed to be a default under the lease. When the Association notifies an Owner of his tenant's violation, the Owner will promptly obtain his tenant's compliance or exercise his rights as a landlord for tenant's breach of lease. If the tenant's violation continues or is repeated, and if the Owner is unable, unwilling, or unavailable to
his tenant's compliance or exercise his rights as a landlord for tenant's breach of lease. If the tenant's violation continues or is repeated, and if the Owner is unable, unwilling, or unavailable to obtain his tenant's compliance, then the Association has the power and right to pursue the remedies of a landlord under the lease or state law for the default, including eviction of the tenant. Additionally, the Association has the right to evict any tenant claiming an adverse possession right to occupy any Improvement on a Lot on behalf of an Owner. The Owner of a leased Lot is liable to the Association for any expenses incurred by the Association in connection with enforcement of the Restrictions against his tenant. The Association is not liable to the Owner for any damages, including lost rents, suffered by the Owner in relation to the Association's enforcement of the Restrictions against the Owner's tenant. Notice of any lease, together with such additional information as may be required by the Board, will be remitted to the Association by the Owner on or before the expiration of ten days after the effective date of the lease.
2.35 Drones and Other Flying Aircraft. Drones and similar toy aircraft of any kind ("Drones") are not permitted to be used other than on an Owner's Lot. No Drones shall fly over the Common Area or a neighboring Lot at any time, provided always that Drones being used within designated portions of the Common Area approved by the Board from time to time are permitted. No Drone may be flown after dusk or earlier than 8:00 am any day of the year.
No Drone shall take pictures, video, or other images except within or on the operator's Lot. All Drone use shall require the securing of any necessary permits and approvals from all necessary
he year.
No Drone shall take pictures, video, or other images except within or on the operator's Lot. All Drone use shall require the securing of any necessary permits and approvals from all necessary Governmental Authorities, including but not limited to the Federal Aviation Administration or similar regulating body, in regard thereto prior to any use within the Lot or other designated areas within Lively Ranch as otherwise permitted hereby.
ARTICLE3 CONSTRUCTION RESTRICTIONS 3.01 Approval for Construction. Unless prosecuted by the Declarant, no Improvements shall be constructed upon any Lot without the prior written approval of the ACC in accordance with ARTICLE 7 of this Declaration.
3.02 Compliance with Restrictions. All construction upon any Lot within the Property shall comply with the Restrictions and all Applicable Laws, statutes and ordinances relating thereto, unless a variance is obtained from the ACC and any necessary Governmental Authority.
3.03 Masonry Requirements. The exterior walls of the residence constructed on any Lot shall be composed of such materials as required by the Development Agreement and the Design Guidelines. Masonry or masonry veneer includes stucco, ceramic tile, clay, brick, rock, Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 20 2017109533 Page 26 of 87 fiber cement and all other materials commonly referred to in the Austin, Texas area as masonry.
The Design Guidelines may set different masonry requirements for Lots.
3.04 Garages. Each residence constructed upon a Lot shall have a private garage for not less than two automobiles and off-street parking for a minimum of two automobiles, subject to any more restrictive requirements as may be set forth in the Development Agreement or in
te garage for not less than two automobiles and off-street parking for a minimum of two automobiles, subject to any more restrictive requirements as may be set forth in the Development Agreement or in the Design Guidelines ( e.g., a requirement that a residence include garage space for greater than two automobiles). The location, orientation and opening face of each garage to be located on a Lot shall be approved in advance of construction by the ACC. All garages shall be maintained for the parking of automobiles, shall not be used for storage or other purposes which preclude its use for the parking of automobiles, and no garage shall be permanently enclosed or otherwise used for habitation, whether on a temporary or permanent basis.
3.05 Windows. All windows on each residence shall have a consistent design throughout the residence and shall comply with any other applicable requirements that may be set forth in the Design Guidelines and the Development Agreement.
3.06 Fences. All fences and walls shall comply with all applicable governmental ordinances. In order to ensure a general uniformity of appearance any and all fences erected on areas readily apparent and visible from streets (e.g., between dwellings (i.e., separating front and rear yards) and on all corner Lots along that portion of side or rear yards fronting on side streets) shall be vertical privacy fences (i) consistent to the theme walls of the community, or (ii) as otherwise approved by the ACC on application. Fences along rear Lot lines of those Lots abutting the greenbelt or floodplain may also be constructed of an ornamental iron fence. In no event shall any fence extend any closer to the street fronting a dwelling than the front outermost
Lots abutting the greenbelt or floodplain may also be constructed of an ornamental iron fence. In no event shall any fence extend any closer to the street fronting a dwelling than the front outermost corners of such dwelling. On corner Lots, fences must be set back at least five feet (5') off that side property line abutting the side street. The height of any fence shall be as required by the ACC in its sole discretion.
(a) All perimeter fences must be approved in advance by the ACC and in accordance with the Design Guidelines and the Development Agreement.
(b) Notwithstanding the foregoing, the ACC is empowered to waive the aforesaid fence limitations in connection with retaining walls and decorative walls if, in its sole discretion, such waiver is advisable in order to accommodate a unique, attractive or advanced building concept design or material and the resulting decorative wall and/or retaining wall will not detract from the general appearance of the neighborhood. In addition, nothing herein contained shall be deemed as prohibiting or limiting Declarants right and privilege to erect an entry wall or fence and/or perimeter wall or fence serving the Subdivision, the style and composition of such walls or fences, if applicable, to be determined solely by Declarant.
(c) No chain-link, metal cloth or agricultural fences may be installed or maintained on the Lot.
Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 21 2017109533 Page 27 of 87 (d) No fence, wall, hedge or shrub planting which obstructs sight lines shall be placed or permitted to remain on any corner Lot within the triangular areas formed by the street property lines and a line connecting them at points twenty-five feet (25') from the
ight lines shall be placed or permitted to remain on any corner Lot within the triangular areas formed by the street property lines and a line connecting them at points twenty-five feet (25') from the intersection of the street lines or in the case of a rounded property corner, from the intersection of the street line extended; the same sight line limits shall apply on any Lot within ten feet (10') from the intersection of street property lines with the edge of a driveway or alley pavement. No tree shall be permitted to remain within such distance of such intersections, unless the foliage is maintained at sufficient height to prevent obstruction of such sight lines.
( e) Interior fences on side and rear portions of the Lot may be "good neighbor fences" where the front face alternates in a pattern between the homes provided such fence is not visible from adjacent streets and faces inward to each Lot's yard.
(f) All wood fences shall (i) be stained a uniform color throughout the Property as approved by the ACC and (ii) be stained by the Owner on an every second year basis at the Owner's expense, unless otherwise approved by the ACC.
3.07 Sidewalks. If required by the Plat, the Homebuilder or Owner of each Lot shall construct, at such Homebuilder' s or Owner's sole cost and expense and prior to occupying any Improvement, a sidewalk on such Lot, located and designed in conformance with the Plat and the requirements of any Governmental Authority.
3.08 Building Restrictions. All building materials must be approved in advance by the ACC, and only new building materials shall be used for constructing any Improvements, unless otherwise approved by the ACC. All projections from a dwelling or other structure,
proved in advance by the ACC, and only new building materials shall be used for constructing any Improvements, unless otherwise approved by the ACC. All projections from a dwelling or other structure, including but not limited to chimney flues, vents, gutters, downspouts, utility boxes, porches, railings and exterior stairways, must, unless otherwise approved by the ACC, match the color of the surface from which they project. No highly reflective finishes (other than glass, which may not be mirrored) shall be used on exterior surfaces (other than surfaces of hardware fixtures), including, without limitation, the exterior surfaces of any Improvements.
3.09 Alteration or Removal of Improvements. Any construction, other than normal maintenance, which (i) in any way alters the exterior appearance of any Improvement, or (ii) would result in the removal of any Improvement (unless as a result of an insured loss prior to the Improvement being rebuilt) shall be performed only with the prior written approval of the ACC, which approval may contain conditions or restrictions on such construction as determined appropriate by the ACC.
3.10 Trash Containers. Trash containers and recycling bins must be stored in one of the following locations: (i) inside the garage of the single-family residence constructed on the Lot; (ii) behind the single-family residence constructed on the Lot in such a manner that the trash container and recycling bin is not visible from any street, alley, or adjacent Lot; or (iii) within a trash container shed located on the Lot in a location approved by the ACC and constructed in a manner to minimize the appearance of the shed by using materials and colors Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 22 2017109533 Page 28 of 87
nd constructed in a manner to minimize the appearance of the shed by using materials and colors Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 22 2017109533 Page 28 of 87 consistent to the home on the Lot. The ACC shall have the right to specify additional locations on each Owner's Lot in which trash containers or recycling bins shall be stored.
3.11 Drainage. There shall be no interference with the established drainage patterns over any of the Property, including the Lots, except by Declarant, unless adequate provision is made for proper drainage and such provision is approved in advance by the ACC. Specifically, and not by way of limitation, no Improvement, including landscaping, may be installed which impedes the proper drainage of water between Lots.
3.12 Construction Activities. The Restrictions will not be construed or applied so as to unreasonably interfere with or prevent normal construction activities during the construction of Improvements by an Owner upon or within the Property. Specifically, no such construction activities will be deemed to constitute a nuisance or a violation of the Restrictions by reason of noise, dust, presence of vehicles or construction machinery, posting of signs or similar activities, provided that such construction is pursued to completion with reasonable diligence and conforms to usual construction practices in the area and as otherwise required by the Restrictions. In the event that construction upon any Lot does not conform to usual practices in the area as determined by the ACC in its sole and reasonable judgment, the ACC will have the authority to seek an injunction to stop such construction. During the course of construction
l practices in the area as determined by the ACC in its sole and reasonable judgment, the ACC will have the authority to seek an injunction to stop such construction. During the course of construction upon any Lot construction debris of any kind or any other debris which would render the Lot or any portion thereof unsanitary, unsightly, offensive, or detrimental to it or any other portion of the Property shall be placed in a trash bin on the Lot nightly, and failing which the ACC may contract for or cause such debris to be removed, and the Owner of the Lot will be liable for all reasonable expenses incurred in connection therewith. The Declarant and initial Homebuilder for a Lot shall not be required to comply with this Section 3.12 other than to pursue to completion with reasonable diligence all construction while conforming to usual construction practices in the area.
3.13 Roofing. The roofs of all buildings shall be approved by the ACC. Roofs of buildings may be constructed with "Energy Efficiency Roofing" with the advance written approval of the ACC. For the purpose of this Section 3.13, "Energy Efficiency Roofing" means shingles that are designed primarily to: (i) be wind and hail resistant; (ii) provide heating and cooling efficiencies greater than those provided by customary composite shingles; or (iii) provide solar generation capabilities. The ACC will not prohibit an Owner from installing Energy Efficient Roofing provided that the Energy Efficient Roofing shingles: (a) resemble the shingles used or otherwise authorized for use within the community; (b) are more durable than, and are of equal or superior quality to, the shingles used or otherwise authorized for use within the community; and (c) match the aesthetics of adjacent property. An Owner who desires to
urable than, and are of equal or superior quality to, the shingles used or otherwise authorized for use within the community; and (c) match the aesthetics of adjacent property. An Owner who desires to install Energy Efficient Roofing will be required to comply with the architectural review and approval procedures set forth the Restrictions. In conjunction with any such approval process, the Owner should submit information which will enable the ACC to confirm the criteria set forth in this Section 3.13. Any other type of roofing material shall be permitted only with the advance written approval of the ACC.
Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 23 2017109533 Page 29 of 87 3.14 Swimming Pools and Hot Tubs. Any swimming pool or hot tub constructed on a Lot must comply with the Design Guidelines and be enclosed with a fence or other enclosure device completely surrounding the swimming pool or hot tub that, at a minimum, satisfies all applicable governmental requirements. Nothing in this Section 3.14 is intended or shall be construed to limit or affect an Owner's obligation to comply with any Applicable Law concerning swimming pool enclosure requirements. Above-ground or temporary swimming pools or temporary or hot tubs are prohibited.
3.15 Compliance with Setbacks. The setback requirements for each residence constructed on a Lot are set forth in the Development Agreement.
3.16 Solar Energy Device. Solar Energy Devices may be installed with the advance written approval of the ACC in accordance with the procedures set forth below: (a) Application. To obtain ACC approval of a Solar Energy Device, the Owner shall provide the ACC with the following information: (i) the proposed installation
nce with the procedures set forth below: (a) Application. To obtain ACC approval of a Solar Energy Device, the Owner shall provide the ACC with the following information: (i) the proposed installation location of the Solar Energy Device; and (ii) a description of the Solar Energy Device, including the dimensions, manufacturer, and photograph or other accurate depiction (the "Solar Application"). A Solar Application may only be submitted by an Owner unless the Owner's tenant provides written confirmation at the time of submission that the Owner consents to the Solar Application. The Solar Application shall be submitted in accordance with the provisions of ARTICLE 7 of this Declaration.
(b) Approval Process. The ACC will review the Solar Application in accordance with the terms and provisions of ARTICLE 7 of this Declaration. The ACC will approve a Solar Energy Device if the Solar Application complies with Section 3.16(c) below UNLESS the ACC makes a written determination that placement of the Solar Energy Device, despite compliance with Section 3.16(c), will create a condition that substantially interferes with the use and enjoyment of the Property or neighboring Lots by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities. The ACC' s right to make a written determination in accordance with the foregoing sentence is negated if all Owners of Lots immediately adjacent to the Owner/applicant provide written approval of the proposed placement. Any proposal to install a Solar Energy Device on Common Area or property maintained by the Association must be approved in advance and in writing by the Board, and the Board need not adhere to this Section 3.16 when considering any such request.
on Common Area or property maintained by the Association must be approved in advance and in writing by the Board, and the Board need not adhere to this Section 3.16 when considering any such request.
(c) Approval Conditions. Unless otherwise approved in advance and in writing by the ACC, each Solar Application and each Solar Energy Device to be installed in accordance therewith must comply with the following: (i) The Solar Energy Device must be located on the roof of the residence located on the Owner's Lot, entirely within a fenced area of the Owner's Lot, or entirely within a fenced patio located on the Owner's Lot. If the Solar Energy Device will be located on the roof of the residence, the ACC may designate the location for Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 24 2017109533 Page 30 of 87 placement unless the location proposed by the Owner increases the estimated annual energy production of the Solar Energy Device, as determined by using a publicly available modeling tool provided by the National Renewable Energy Laboratory, by more than 10% above the energy production of the Solar Energy Device if installed in the location designated by the ACC. If the Owner desires to contest the alternate location proposed by the ACC, the Owner should submit information to the ACC that demonstrates that the Owner's proposed location meets the foregoing criteria. If the Solar Energy Device will be located in the fenced area of the Owner's Lot or patio, no portion of the Solar Energy Device may extend above the fence line.
(ii) If the Solar Energy Device is mounted on the roof of the principal residence located on the Owner's Lot, then: (a) the Solar Energy Device may not extend
y Device may extend above the fence line.
(ii) If the Solar Energy Device is mounted on the roof of the principal residence located on the Owner's Lot, then: (a) the Solar Energy Device may not extend higher than or beyond the roofline; (b) the Solar Energy Device must conform to the slope of the roof and the top edge of the Solar Device must be parallel to the roofline; and (c) the frame, support brackets, or visible piping or wiring associated with the Solar Energy Device must be silver, bronze or black so as to reduce visibility.
3.17 Rainwater Harvesting Systems. Rain barrels or rainwater harvesting systems (a 11Rainwater Harvesting System") may be installed with the advance written approval of the ACC.
(a) Application. To obtain ACC approval of a Rainwater Harvesting System on a Lot, the Owner shall provide the ACC with the following information: (i) the proposed installation location of the Rainwater Harvesting System; and (ii) a description of the Rainwater Harvesting System, including the color, dimensions, manufacturer, and photograph or other accurate depiction (the 11Rain System Application1'). A Rain System Application may only be submitted by an Owner, unless the Owner's tenant provides written confirmation at the time of submission that the Owner consents to the Rain System Application.
(b) Approval Process. The decision of the ACC will be made in accordance with ARTICLE 7 of this Declaration. Any proposal to install a Rainwater Harvesting System on Common Area must be approved in advance and in writing by the Board, and the Board need not adhere to this Section 3.17 when considering any such request.
(c) Approval Conditions. Unless otherwise approved in advance and in
roved in advance and in writing by the Board, and the Board need not adhere to this Section 3.17 when considering any such request.
(c) Approval Conditions. Unless otherwise approved in advance and in writing by the ACC, each Rain System Application and each Rainwater Harvesting System to be installed in accordance therewith must comply with the following: (i) The Rainwater Harvesting System must be consistent with the color scheme of the residence constructed on the Owner's Lot, as reasonably determined by the ACC.
(ii) The Rainwater Harvesting System does not include any language or other content that is not typically displayed on such a device.
Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 25 2017109533 Page 31 of 87 (iii) The Rainwater Harvesting System is in no event located between the front of the residence constructed on the Owner's Lot and any adjoining or adjacent street.
(iv) There is sufficient area on the Owner's Lot to install the Rainwater Harvesting System, as reasonably determined by the ACC.
( d) Guidelines. If the Rainwater Harvesting System will be installed on or within the side yard of a Lot, or would otherwise be visible from a street, Common Area, or another Owner's Lot, the ACC may regulate the size, type, shielding of, and materials used in the construction of the Rainwater Harvesting System. Accordingly, when submitting a Rain System Application, the application should describe methods proposed by the Owner to shield the Rainwater Harvesting System from the view of any street, Common Area, or another Owner's Lot. When reviewing a Rain System Application for a Rainwater Harvesting System that will be installed on or within the side yard of a Lot, or would otherwise be visible from a
rea, or another Owner's Lot. When reviewing a Rain System Application for a Rainwater Harvesting System that will be installed on or within the side yard of a Lot, or would otherwise be visible from a street, Common Area, or another Owner's Lot, any additional regulations imposed by the ACC to regulate the size, type, shielding of, and materials used in the construction of the Rainwater Harvesting System, may not prohibit the economic installation of the Rainwater Harvesting System, as reasonably determined by the ACC.
3.18 Landscaping. The front and side yards of all Lots, from the front wall of the house, will be fully sodded in accordance with the Design Guidelines, provided, if the Design Guidelines fail to specify the type of sod required then such yards will be fully sodded with St.
Augustine, Bermuda, Prairie Buffalo Grass, or other sod approved by the ACC.
Notwithstanding the foregoing, pursuant to Section 3.19 of this Declaration, Xeriscaping may be used in lieu of sod. The number of trees required by the Design Guidelines must be planted in the front yard of each Lot before the occupancy of the dwelling constructed on it. EACH OWNER IS ADVISED THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES AS TO THE LIFE EXPECTANCY, VITALITY, OR FITNESS FOR INTENDED PURPOSES OF ANY TREES OR SHRUBS LOCATED ON A LOT.
3.19 Xeriscaping. As part of the installation and maintenance of landscaping on an Owner's Lot, an Owner may submit plans for and install drought tolerant landscaping ("Xeriscaping") upon written approval by the ACC. All Owners implementing Xeriscaping shall comply with the following: (a) Application. Approval by the ACC is required prior to installing Xeriscaping. To obtain the approval of the ACC for Xeriscaping, the Owner shall provide the
caping shall comply with the following: (a) Application. Approval by the ACC is required prior to installing Xeriscaping. To obtain the approval of the ACC for Xeriscaping, the Owner shall provide the ACC with the following information: (i) the proposed site location of the Xeriscaping on the Owner's Lot; (ii) a description of the Xeriscaping, including the types of plants, border materials, hardscape materials and photograph or other accurate depiction and (iii) the percentage of yard to be covered with gravel, rocks and cacti (the "Xeriscaping Application").
A Xeriscaping Application may only be submitted by an Owner unless the Owner's tenant provides written confirmation at the time of submission that the Owner consents to the Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 26 2017109533 Page 32 of 87 Xeriscaping Application. The ACC is not responsible for: (a) errors or omissions in the Xeriscaping Application submitted to the ACC for approval; (b) supervising installation or construction to confirm compliance with an approved Xeriscaping Application or (c) the compliance of an approved application with Applicable Law.
(b) Approval Conditions. Unless otherwise approved in advance and in writing by the ACC, each Xeriscaping Application and all Xeriscaping to be installed in accordance therewith must comply with the following: (i) The Xeriscaping must be aesthetically compatible with other landscaping in the community as reasonably determined by the ACC. For purposes of this Section 3.19, "aesthetically compatible" shall mean overall and long-term aesthetic compatibility within the community. For example, an Owner's Lot plan may be denied if the ACC determines that: (a) the proposed Xeriscaping would not be harmonious with
overall and long-term aesthetic compatibility within the community. For example, an Owner's Lot plan may be denied if the ACC determines that: (a) the proposed Xeriscaping would not be harmonious with already established turf and landscaping in the overall community; and/or (b) the use of specific turf or plant materials would result in damage to or cause deterioration of the turf or landscaping of an adjacent property owner, resulting in a reduction of aesthetic appeal of the adjacent property Owner's Lot.
(ii) No Owners shall install gravel, rocks or cacti that in the aggregate encompass over thirty percent (30%) of such Owner's front yard or fifty percent (50%) of such Owner's back yard.
(iii) The Xeriscaping must not attract diseases and insects that are harmful to the existing landscaping on neighboring Lots, as reasonably determined by the ACC.
(c) Process. The decision of the ACC will be made within a reasonable time, or within the time period otherwise required by the principal deed restrictions which govern the review and approval of Improvements. A Xeriscaping Application submitted to install Xeriscaping on property owned by the Association or property owned in common by members of the Association will not be approved. Any proposal to install Xeriscaping on property owned by the Association or property owned in common by members of the Association must be approved in advance and in writing by the Board, and the Board need not adhere to the requirements set forth in this Section 3.19 when considering any such request.
(d) Approval. Each Owner is advised that if the Xeriscaping Application is approved by the ACC, installation of the Xeriscaping must: (i) strictly comply with the
19 when considering any such request.
(d) Approval. Each Owner is advised that if the Xeriscaping Application is approved by the ACC, installation of the Xeriscaping must: (i) strictly comply with the Xeriscaping Application; (ii) commence within thirty (30) days of approval; and (iii) be diligently prosecuted to completion. If the Owner fails to cause the Xeriscaping to be installed in accordance with the approved Xeriscaping Application, the ACC may require the Owner to: (a) modify the Xeriscaping Application to accurately reflect the Xeriscaping installed on the Property; or (b) remove the Xeriscaping and reinstall the Xeriscaping in accordance with the approved Xeriscaping Application. Failure to install Xeriscaping in accordance with the Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 27 2017109533 Page 33 of 87 approved Xeriscaping Application or an Owner's failure to comply with the post-approval requirements constitutes a violation of this Declaration and may subject the Owner to fines and penalties. Any requirement imposed by the ACC to resubmit a Xeriscaping Application or remove and relocate Xeriscaping in accordance with the approved Xeriscaping Application shall be at the Owner's sole cost and expense.
3.20 Notice Regarding Impervious Cover. There are limits on the amount of impervious cover that may be incorporated into a Lot. "Impervious Cover" and the calculation thereof will mean and be determined in accordance with local City codes, ordinances, or regulations. Pursuant to ARTICLE 7, no Improvement within the Property that increases the impervious cover above the amount constructed by the original builder or developer may be constructed, altered, or modified without the advance written approval of
thin the Property that increases the impervious cover above the amount constructed by the original builder or developer may be constructed, altered, or modified without the advance written approval of the ACC and, where applicable, permits issued by the City. In the event an Improvement to a Lot is added without the advance written approval of the ACC and the City, the Owner responsible for such Improvement may be required to remove the Improvement increasing the impervious coverage, if any, associated therewith at the Owner's sole cost and expense upon demand by the City, the ACC or the Association. Constructing an Improvement without the advance written approval of the City and the ACC will constitute a violation of the terms and provisions of this Declaration and, in addition to any other rights granted to the Association or the Board in the Restrictions, the Board or the Association shall have the right to remove such Improvement at the sole cost of the Owner.
ARTICLE4 LIVELY COMMUNITY HOA, INC.
4.01 Organization. The Association will be a nonprofit corporation created for the purposes, charged with the duties, and vested with the powers of a Texas non-profit corporation. Neither the Certificate nor Bylaws will for any reason be amended or otherwise changed or interpreted so as to be inconsistent with this Declaration.
4.02 Membership.
(a) Mandatory Membership. Any person or entity, upon becoming an Owner, will automatically become a Member of the Association. Membership will be appurtenant to and will run with the ownership of the Lot that qualifies the Owner thereof for membership, and membership may not be severed from the ownership of the Lot, or in any way transferred, pledged, mortgaged or alienated, except together with the title to such Lot.
e Owner thereof for membership, and membership may not be severed from the ownership of the Lot, or in any way transferred, pledged, mortgaged or alienated, except together with the title to such Lot.
Within thirty (30) days after acquiring legal title to a Lot, if requested by the Board, an Owner must provide the Association with: (i) a copy of the recorded deed by which the Owner has acquired title to the Lot; (ii) the Owner's address, email address, phone number, and driver's license number, if any; (iii) any Mortgagee's name and address; and (iv) the name, phone number, and email address of any Resident other than the Owner.
Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 28 2017109533 Page 34 of 87 If you acquire a Lot you automatically become a member of the Association.
Membership is Mandatory! As a Member you will be required to pay dues to the Association on a monthly basis.
(b) Easement of Enjoyment -Common Area. Every Member will have a right and easement of enjoyment in and to all of the Common Area and an access easement by and through any Common Area, which easements will be appurtenant to and will pass with the title to such Member's Lot, subject to the following restrictions and reservations: (i) The right of the Declarant, or the Declarant' s designee, to cause such Improvements and features to be constructed upon the Common Area, as determined from time to time by the Declarant, in the Declarant' s sole and absolute discretion; (ii) The right of the Association to suspend the Member's right to use the Common Area for any period during which any Assessment against such Member's Lot remains past due and for any period during which such member is in violation of any provision of this Declaration;
the Common Area for any period during which any Assessment against such Member's Lot remains past due and for any period during which such member is in violation of any provision of this Declaration; (iii) The right of the Declarant, during the Development Period, and the Board thereafter, to dedicate or transfer all or any part of the Common Area to any public agency, authority or utility for any purpose; (iv) The right of the Declarant, during the Development Period, and the Board thereafter, to grant easements or licenses over and across the Common Area; (v) With the advance written approval of the Declarant during the Development Period, the right of the Board to borrow money for the purpose of improving the Common Area and, in furtherance thereof, mortgage the Common Area; (vi) The right of the Declarant, during the Development Period, and the Board, with the advance written approval of the Declarant during the Development Period, to promulgate Rules and Regulations regarding the use of the Common Area and any Improvements thereon; and (vii) The right of the Association to contract for services with any third parties on such terms as the Board may determine, except that during the Development Period, all such contracts must be approved in advance and in writing by the Declarant.
4.03 Governance. The Board will initially consist of three persons elected at the annual meeting of the Association, or at a special meeting called for such purpose.
Notwithstanding the foregoing provision or any provision in this Declaration to the contrary, until 120 days after 75% of the Maximum Number of Lots have been made subject to the terms and provisions of this Declaration and have been conveyed to Owners other than the
claration to the contrary, until 120 days after 75% of the Maximum Number of Lots have been made subject to the terms and provisions of this Declaration and have been conveyed to Owners other than the Declarant or a Homebuilder, Declarant will appoint and remove all members of the Board Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 29 2017109533 Page 35 of 87 and officers of the Association. Within 120 days after 75% of the Maximum Number of Lots have been made subject to the terms and provisions of this Declaration and have been conveyed to Owners other than the Declarant or a Homebuilder, the Board will call a meeting of Members of the Association for the purpose of electing one-third of the Board (the "Initial Member Election Meeting"), which Board member(s) must be elected by Owners other than the Declarant. Declarant may appoint and remove two-thirds of the Board from and after the Initial Member Election Meeting until expiration or termination of the Development Period.
4.04 Voting Rights. The right to cast votes and the number of votes which may be cast for election of members to the Board ( except as provided by Section 4.03) and on all other matters to be voted on by the Members will be calculated as set forth below.
(a) The Owner of each Lot will have one (1) vote for each Lot so owned.
(b) In addition to the votes to which Declarant is entitled by reason of Section 4.04(a), for every one (1) vote outstanding in favor of any other person or entity, Declarant will have four ( 4) additional votes until the expiration or termination of the Development Period.
(c) When more than one person or entity owns a portion of the fee simple interest in any Lot, all such persons or entities will be Members. The vote or votes ( or fraction
n of the Development Period.
(c) When more than one person or entity owns a portion of the fee simple interest in any Lot, all such persons or entities will be Members. The vote or votes ( or fraction thereof) for such Lot will be exercised by the person so designated in writing to the Secretary of the Association by the Owner of such Lot, and in no event will the vote for such Lot exceed the total votes to which such Lot is otherwise entitled under this Section 4.04.
4.05 Powers. The Association will have the powers of a Texas nonprofit corporation.
It will further have the power to do and perform any and all acts that may be necessary or proper, for or incidental to, the exercise of any of the express powers granted to it by Applicable Law or this Declaration. Without in any way limiting the generality of the two preceding sentences, the Board, acting on behalf of the Association, will have the following powers at all times: (a) Rules and Regulations, Bylaws and Community Manual. To make, establish and promulgate, and in its discretion to am.end from time to time, or repeal and re-enact, such rules, regulations, policies, Bylaws and Community Manual not in conflict with this Declaration, as it deems proper, covering any and all aspects of the Property or the Common Area (including the operation, maintenance and preservation thereof) or the Association. Any Rules and Regulations, policies, Bylaws and Community Manual and any modifications thereto proposed by the Board must be approved in advance and in writing by the Declarant until expiration or termination of the Development Period.
(b) Insurance. To obtain and maintain in effect, policies of insurance that, in the opinion of the Board, are reasonably necessary or appropriate to carry out the Association's functions.
ment Period.
(b) Insurance. To obtain and maintain in effect, policies of insurance that, in the opinion of the Board, are reasonably necessary or appropriate to carry out the Association's functions.
Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 3 0 2017109533 Page 36 of 87 (c) Records. To keep books and records of the Association's affairs, and to make such books and records, together with current copies of the Restrictions available for inspection by the Owners, Mortgagees, and insurers or guarantors of any Mortgage upon request during normal business hours.
(d) Assessments. To levy and collect assessments, as provided in ARTICLE 6 below.
(e) Right of Entry and Enforcement. To enter at any time without notice in an emergency (or in the case of a non-emergency, after 24 hours written notice), without being liable to any Owner or Resident, upon any Lot and into any Improvement thereon for the purpose of enforcing the Restrictions or for the purpose of maintaining or repairing any area, Improvement or other facility to conform to the Restrictions. The expense incurred by the Association in connection with the entry upon any Lot and the maintenance and repair work conducted thereon or therein will be a personal obligation of the Owner of the Lot so entered, will be deemed an Individual Assessment against such Lot, will be secured by a lien upon such Lot, and will be enforced in the same manner and to the same extent as provided in ARTICLE 6 hereof for Assessments. The Association will have the power and authority from time to time, in its own name and on its own behalf, or in the name of and on behalf of any Owner who consents thereto, to commence and maintain actions and suits to enforce, by mandatory
thority from time to time, in its own name and on its own behalf, or in the name of and on behalf of any Owner who consents thereto, to commence and maintain actions and suits to enforce, by mandatory injunction or otherwise, or to restrain and enjoin, any breach or threatened breach of the Restrictions. The Association is also authorized to settle claims, enforce liens and take all such action as it may deem necessary or expedient to enforce the Restrictions; provided, however, that the Board will never be authorized to expend any Association funds for the purpose of bringing suit against Declarant, or its successors or assigns. The Association may not alter or demolish any Improvements on any Lot other than Common Area in enforcing the Restrictions before a judicial order authorizing such action has been obtained by the Association, or before the written consent of the Owner(s) of the affected Lot(s) has been obtained. EACH SUCH OWNER AND RESIDENT WILL RELEASE AND HOLD HARMLESS THE ASSOCIATION, ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS FROM ANY COST, LOSS, DAMAGE, EXPENSE, LIABILITY, CLAIM OR CAUSE OF ACTION INCURRED OR THAT MAY ARISE BY REASON OF THE ASSOCIATION'S ACTS OR ACTIVITIES UNDER THIS SECTION 4.045(e) (INCLUDING ANY COST, EXPENSE, LIABILITY, CLAIM OR CAUSE OF ACTION ARISING OUT OF THE ASSOCIATION'S NEGLIGENCE IN CONNECTION THEREWITH), EXCEPT FOR SUCH COST, LOSS, DAMAGE, EXPENSE, LIABILITY, CLAIM OR CAUSE OF ACTION ARISING BY REASON OF THE ASSOCIATION'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. "GROSS NEGLIGENCE" DOES NOT INCLUDE SIMPLE NEGLIGENCE, CONTRIBUTORY NEGLIGENCE OR SIMILAR NEGLIGENCE SHORT OF ACTUAL GROSS NEGLIGENCE.
(f) Legal and Accounting Services. To retain and pay for legal and
GROSS NEGLIGENCE" DOES NOT INCLUDE SIMPLE NEGLIGENCE, CONTRIBUTORY NEGLIGENCE OR SIMILAR NEGLIGENCE SHORT OF ACTUAL GROSS NEGLIGENCE.
(f) Legal and Accounting Services. To retain and pay for legal and accounting services necessary or proper in the operation of the Association.
Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 31 2017109533 Page 37 of 87 (g) Conveyances. To grant and convey to any person or entity the real property and/or other interest, including fee title, leasehold estates, easements, rights-of-way or mortgages, out of, in, on, over, or under any Common Area for the purpose of constructing, erecting, operating or maintaining the following: (i) (ii) trails and paths; (iii) purposes; Parks, parkways or other recreational facilities or structures; Roads, streets, sidewalks, signs, street lights, walks, driveways, Lines, cables, wires, conduits, pipelines or other devices for utility (iv) Sewers, water systems, storm water drainage systems, sprinkler systems and pipelines; and/or (v) Any similar Improvements or facilities.
Nothing set forth above, however, will be construed to permit use or occupancy of any Improvement or other facility in a way that would violate applicable use and occupancy restrictions imposed by the Restrictions or by any Governmental Authority. In addition, until expiration or termination of the Development Period, any grant or conveyance under this Section 4.04(g) must be approved in advance and in writing by the Declarant.
(h) Manager. To retain and pay for the services of a person or firm (the "Manager"), which may include Declarant or any affiliate of Declarant, to manage and operate the Association, including its property, to the extent deemed advisable by the Board. Personnel
r firm (the "Manager"), which may include Declarant or any affiliate of Declarant, to manage and operate the Association, including its property, to the extent deemed advisable by the Board. Personnel may be employed directly by the Association or may be furnished by the Manager. To the extent permitted by Applicable Law, the Board may delegate any other duties, powers and functions to the Manager. In addition, the Board may adopt transfer fees, resale certificate fees or any other fees associated with the provision of management services to the Association or its Members. THE MEMBERS HEREBY RELEASE THE ASSOCIATION AND THE MEMBERS OF THE BOARD AND COMMITTEE MEMBERS FROM LIABILITY FOR ANY OMISSION OR IMPROPER EXERCISE BY THE MANAGER OF ANY SUCH DUTY, POWER OR FUNCTION SO DELEGATED.
(i) Property Services. To pay for water, sewer, garbage removal, street lights, landscaping, gardening and all other utilities, services, repair and maintenance for any portion of the Property, Common Area, private or public recreational facilities, easements, roads, roadways, rights-of-ways, signs, parks, parkways, median strips, sidewalks, paths, trails, ponds, and lakes.
(j) Other Services and Properties. To obtain and pay for any other property and services, and to pay any other taxes or assessments that the Association or the Board is Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 32 2017109533 Page 38 of 87 required or permitted to secure or to pay for pursuant to Applicable Law or under the terms of the Restrictions or as determined by the Board.
(k) Construction on Common Area. To construct new Improvements or additions to any property owned, leased, or licensed by the Association, subject to the approval
ctions or as determined by the Board.
(k) Construction on Common Area. To construct new Improvements or additions to any property owned, leased, or licensed by the Association, subject to the approval of the Board and the Declarant until expiration or termination of the Development Period.
(1) Contracts. To enter into Bulk Rate Contracts or other contracts or licenses with Declarant or any third party on such terms and provisions as the Board will determine, to operate and maintain any Common Area or other property, or to provide any service, including but not limited to cable, utility, or telecommunication services, or perform any function on behalf of Declarant, the Board, the Association, or the Members. During the Development Period, all Bulk Rate Contracts must be approved in advance and in writing by the Declarant.
(m) Property Ownership. To acquire, own and dispose of all manner of real and personal property, including habitat, whether by grant, lease, easement, gift or otherwise.
During the Development Period, all acquisitions and dispositions of the Association hereunder must be approved in advance and in writing by the Declarant.
(n) Allocation of Votes. To determine votes when permitted pursuant to Section 4.04 above.
(o) Membership Privileges. To establish Rules and Regulations governing and limiting the use of the Common Area and any Improvements thereon.
4.06 Conveyance of Common Area to the Association. The Association may acquire, hold, and dispose of any interest in tangible and intangible personal property and real property.
Declarant, and its assignees, reserves the right, from time to time and at any time, to designate by written and Recorded instrument portions of the Property being held by the Declarant for
property.
Declarant, and its assignees, reserves the right, from time to time and at any time, to designate by written and Recorded instrument portions of the Property being held by the Declarant for the benefit of the Association. Upon the Recording of such designation, the portion of the Property identified therein will be considered Common Area for the purpose of this Declaration. Declarant and its assignees may also assign, transfer or convey to the Association interests in real or personal property within or for the benefit of the Property, for the Property and the general public, or otherwise, as determined in the sole and absolute discretion of the Declarant. All or any real or personal property assigned, transferred and/or conveyed by the Declarant to the Association shall be deemed accepted by the Association upon Recordation, and without further action by the Association, and shall be considered Common Area without regard to whether such real or personal property is designated by the Declarant as Common Area. If requested by the Declarant, the Association will execute a written instrument, in a form requested by the Declarant, evidencing acceptance of such real or personal property; provided, however, execution of a written consent by the Association shall in no event be a precondition to acceptance by the Association. The assignment, transfer, and/or conveyance of real or personal property to the Association may be by deed without warranty, may reserve easements in favor of the Declarant or a third party designated by Declarant over and across Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 33 2017109533 Page 39 of 87 such property, and may include such other prov1s10ns, including restrictions on use,
and across Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 33 2017109533 Page 39 of 87 such property, and may include such other prov1s10ns, including restrictions on use, determined by the Declarant, in the Declarant' s sole and absolute discretion. Property assigned, transferred, and/or conveyed to the Association may be improved or unimproved and may consist of fee simple title, easements, leases, licenses, or other real or personal property interests. Upon Declarant's written request, the Association will re-convey to Declarant any unimproved real property that Declarant originally conveyed to the Association for no payment.
4.07 Maintenance. Pursuant to the Plat, the maintenance of drainage easements, greenbelts and open permeable spaces shown on the Plat shall be the responsibility of the Association and not the responsibility of the City of Leander or Williamson County, unless and until such areas are dedicated to the City of Leander or Williamson County. In addition, the Association may enter into service and/or maintenance agreements with the City of Leander and/or Williamson County relating to entry-ways and public roads within the entries pursuant to which the Association will agree to maintain the same.
4.08 Indemnification. To the fullest extent permitted by Applicable Law but without duplication and subject to any rights or benefits arising under the Certificate or Bylaws of the Association, the Association will indemnify any person who was, or is, a party, or is threatened to be made a party to any threatened pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of the fact that he is, or was, a director,
ned to be made a party to any threatened pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of the fact that he is, or was, a director, officer, committee member, employee, servant or agent of the Association against expenses, including attorneys' fees, reasonably incurred by him in connection with such action, suit or proceeding if it is found and determined by the Board or a court of competent jurisdiction that he (i) acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Association, or (ii) with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by settlement, or upon a plea of nolo contendere or its equivalent, will not of itself create a presumption that the person did not act in good faith or in a manner which was reasonably believed to be in, or not opposed to, the best interests of the Association or, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.
4.09 Insurance. The Board may purchase and cause to be maintained, at the expense of the Association, insurance on behalf of any person who is acting as a director, officer, committee member, employee, servant or agent of the Association against any liability asserted against him or incurred by him in any such capacity, or arising out of his status as such, whether or not the Association would have the power to indemnify him against such liability or otherwise.
4.10 Bulk Rate Contracts. Without limitation on the generality of the Association
tus as such, whether or not the Association would have the power to indemnify him against such liability or otherwise.
4.10 Bulk Rate Contracts. Without limitation on the generality of the Association powers set out in Section 4.04 hereinabove ( except that during the Development Period, all Bulk Rate Contracts must be approved in advance and in writing by the Declarant), the Association will have the power to enter into Bulk Rate Contracts at any time and from time to time. The Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 34 2017109533 Page 40 of 87 Association may enter into Bulk Rate Contracts with any service providers chosen by the Board (including Declarant, and/or any entities in which Declarant, or the owners or partners of Declarant are owners or participants, directly or indirectly). The Bulk Rate Contracts may be entered into on such terms and provisions as the Board may determine in its sole and absolute discretion. The Association may, at its option and election, add the charges payable by such Owner under such Bulk Rate Contract to the Assessments against such Owner's Lot. In this regard, it is agreed and understood that, if any Owner fails to pay any charges due by such Owner under the terms of any Bulk Rate Contract, then the Association will be entitled to collect such charges by exercising the same rights and remedies it would be entitled to exercise under this Declaration with respect to the failure by such Owner to pay Assessments, including without limitation the right to foreclose the lien against such Owner's Lot which is reserved under the terms and provisions of this Declaration. In addition, in the event of nonpayment by any Owner of any charges due under any Bulk Rate Contract and after the lapse of at least 12
is reserved under the terms and provisions of this Declaration. In addition, in the event of nonpayment by any Owner of any charges due under any Bulk Rate Contract and after the lapse of at least 12 days since such charges were due, the Association may, upon five days' prior written notice to such Owner (which may run concurrently with such 12 day period), in addition to all other rights and remedies available pursuant to Applicable Law, terminate, in such manner as the Board deems appropriate, any utility service or other service provided at the cost of the Association and not paid for by such Owner ( or the Resident of such Owner's Lot) directly to the applicable service or utility provider. Such notice will consist of a separate mailing or hand delivery at least five days prior to a stated date of termination, with the title "termination notice" or similar language prominently displayed on the notice. The notice will include the office or street address where the Owner ( or the Resident of such Owner's Lot) can make arrangements for payment of the bill and for re-connection or re-institution of service. No utility or cable television service will be disconnected on a day, or immediately preceding a day, when personnel are not available for the purpose of collection and reconnecting such services.
Notwithstanding the foregoing, no Owner shall be required to receive service under a Bulk Rate Contract.
4.11 Community Systems. The Association is specifically authorized to provide, or to enter into contracts with other persons to provide Community Systems. Any such contracts may provide for installation, operation, management, maintenance, and upgrades or modifications to the Community Systems as the Board determines appropriate. Each Owner
ity Systems. Any such contracts may provide for installation, operation, management, maintenance, and upgrades or modifications to the Community Systems as the Board determines appropriate. Each Owner acknowledges that interruptions in cable television and other Community Systems and services will occur from time to time. Declarant and the Association, or any of their respective successors or assigns shall not be liable for, and no Community System or service user shall be entitled to refund, rebate, discount, or offset in applicable fees for, any interruption in Community Systems and services, regardless of whether or not such interruption is caused by reasons within the service provider's control.
4.12 Protection of Declarant' s Interests. Despite any assumption of control of the Board by Owners other than Declarant, until the expiration or termination of the Development Period, the Board is prohibited from taking any action which would discriminate against Declarant, or which would be detrimental to the sale of Lots owned by Declarant. Declarant shall be entitled to determine, in its sole and absolute discretion, whether any such action Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 3 5 2017109533 Page 41 of 87 discriminates or is detrimental to Declarant and upon the making of any such determination, the Board shall rescind, annul, or terminate the provision that is discriminatory or detrimental to the Declarant and Declarant shall not be bound to comply therewith. The Board will be required to continue the same level and quality of maintenance, operations and services as that provided immediately prior to assumption of control of the Board by Owners other than Declarant until the expiration or termination of the Development Period.
ntenance, operations and services as that provided immediately prior to assumption of control of the Board by Owners other than Declarant until the expiration or termination of the Development Period.
4.13 Administration of Common Area. The administration of the Common Area by the Association shall be in accordance with the provisions of Applicable Law and the Restrictions, and of any other agreements, documents, amendments or supplements to the foregoing which may be duly adopted or subsequently required by any institutional or governmental lender, purchaser, insurer or guarantor of mortgage loans (including, for example, the Federal Home Loan Mortgage Corporation) designated by Declarant or by any governmental or quasi-governmental agency having regulatory jurisdiction over the Common Area or by any title insurance company selected by Declarant to insure title to any portion of the Common Area.
4.14 Private Parks and Hike and Bike Trails. The Association shall be obligated to maintain the Private Parks and Hike and Bike Trails in accordance with Applicable Law. The Private Parks and Hike and Bike Trails shall be included as a part of the Common Area and may be used for personal recreational activities in accordance with the rules adopted by the Association. The Association may modify the areas to be included in the Private Parks and Hike and Bike Trails in its sole discretion.
4.15 Amenity Building. The Association shall be obligated to maintain the Amenity Building in accordance with Applicable Law. The Amenity Building shall be included as a part of the Common Area and may be used for personal and family purposes by the Members in accordance with the rules adopted by the Association. The Association may modify the Amenity Building in its sole discretion.
on Area and may be used for personal and family purposes by the Members in accordance with the rules adopted by the Association. The Association may modify the Amenity Building in its sole discretion.
4.16 Right of Action by Association. The Association shall not have the power to institute, defend, intervene in, settle or compromise litigation or administrative proceedings: (i) in the name of or on behalf of any Lot Owner (whether one or more); or (ii) pertaining to a Claim, as defined in Section 11.01 below, relating to the design or construction of the Improvements on a Lot (whether one or more). This Section 4.16 may not be amended or modified without Declarant' s written and acknowledged consent and Members entitled to cast at least one hundred percent (100%) of the total number of votes of the Association, which must be part of the Recorded amendment instrument.
ARTICLES INSURANCE 5.01 Insurance. Each Owner will be required to purchase and maintain commercially standard insurance on the Improvements located upon such Owner's Lot. The Association will Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 36 2017109533 Page 42 of 87 not be required to maintain insurance on the Improvements constructed upon any Lot. The Association may, however, obtain such insurance as it may deem necessary, including but not limited to such policies of liability and property damage insurance as the Board, in its discretion, may deem necessary. Insurance premiums for such policies will be a common expense to be included in the assessments levied by the Association. The acquisition of insurance by the Association will be without prejudice to the right and obligation of any Owner
will be a common expense to be included in the assessments levied by the Association. The acquisition of insurance by the Association will be without prejudice to the right and obligation of any Owner to obtain additional individual insurance. During the Development Period, Declarant reserves the right to satisfy the insurance obligations of the Association with a master insurance program controlled by Declarant. No Owner should rely for any reason upon such insurance secured by the Association for liability coverage in lieu of separate Owner's insurance.
ARE YOU COVERED?
The Association does not provide insurance that covers an Owner's Lot or any Im rovements or personal property located on a Lot.
5.02 Restoration. In the event of any fire or other casualty, unless otherwise approved by the ACC, the Owner will promptly repair, restore and replace any damaged or destroyed structures to their same exterior condition existing prior to the damage or destruction thereof. Such repair, restoration or replacement will be commenced and completed in a good and workmanlike manner using exterior materials substantially similar to those originally used in the structures damaged or destroyed. To the extent that the Owner fails to commence such repair, restoration or replacement of substantial or total damage or destruction within 120 days after the occurrence of such damage or destruction, and thereafter prosecute same to completion, or if the Owner does not clean up any debris resulting from any damage within 30 days after the occurrence of such damage, the Association may commence, complete or affect such repair, restoration, replacement or clean-up, and such Owner will be personally liable to
mage within 30 days after the occurrence of such damage, the Association may commence, complete or affect such repair, restoration, replacement or clean-up, and such Owner will be personally liable to the Association for the cost of such work; provided, however, that if the Owner is prohibited or delayed by Applicable Law from commencing such repair, restoration, replacement or cleanup, the rights of the Association under this provision will not arise until the expiration of 30 days after such prohibition or delay is removed. If the Owner fails to pay such cost upon demand by the Association, the cost thereof (plus interest from the date of demand until paid at the maximum lawful rate, or if there is no such maximum lawful rate, than at the rate of one and one-half percent (1.50%) per month) will be added to the Assessment chargeable to the Owner's Lot. Any such amounts added to the Assessments chargeable against a Lot will be secured by the liens reserved in this Declaration for Assessments and may be collected by any means provided in this Declaration for the collection of Assessments, including, but not limited to, foreclosure of such liens against the Owner's Lot. EACH SUCH OWNER WILL RELEASE AND HOLD HARMLESS THE ASSOCIATION AND ITS OFFICERS, DIRECTORS, COMMITTEE MEMBERS, EMPLOYEES AND AGENTS FROM ANY COST, LOSS, DAMAGE, EXPENSE, LIABILITY, CLAIM OR CAUSE OF ACTION INCURRED OR THAT MAY ARISE BY REASON OF THE ASSOCIATION'S ACTS OR ACTIVITIES UNDER THIS SECTION 5.02, EXCEPT FOR SUCH COST, LOSS, DAMAGE, EXPENSE, LIABILITY, CLAIM OR COST OF ACTION ARISING BY REASON OF THE ASSOCIATION1S GROSS Declaration of Covenants, Conditions and Restrictions for Lively Ranch-Page 37 2017109533 Page 43 of 87 NEGLIGENCE OR WILLFUL MISCONDUCT. "GROSS NEGLIGENCE" AS USED HEREIN
N OF THE ASSOCIATION1S GROSS Declaration of Covenants, Conditions and Restrictions for Lively Ranch-Page 37 2017109533 Page 43 of 87 NEGLIGENCE OR WILLFUL MISCONDUCT. "GROSS NEGLIGENCE" AS USED HEREIN DOES NOT INCLUDE SIMPLE NEGLIGENCE, CONTRIBUTORY NEGLIGENCE OR SIMILAR NEGLIGENCE SHORT OF ACTUAL GROSS NEGLIGENCE.
5.03 Mechanic's and Materialmen's Lien. Each Owner whose structure is repaired, restored, replaced or cleaned up by the Association pursuant to the rights granted under this ARTICLE 5, hereby grants to the Association an express mechanic's and materialmen' s lien for the reasonable cost of such repair, restoration, or replacement of the damaged or destroyed Improvement to the extent that the cost of such repair, restoration or replacement exceeds any insurance proceeds allocable to such repair, restoration or replacement and delivered to the Association. Upon request by the Board, and before the commencement of any reconstruction, repair, restoration or replacement, such Owner will execute all documents sufficient to effectuate such mechanic's and materialmen' s lien in favor of the Association.
6.01 Assessments. ARTICLE6 COVENANT FOR ASSESSMENTS (a) Established by Board. Assessments established by the Board pursuant to the provisions of this ARTICLE 6 will be levied against each Lot in amounts determined pursuant to Section 6.07 below. The total amount of Assessments will be determined pursuant to Section 6.03, 6.04, 6.05, and/or 6.06.
(b) Personal Obligation; Lien. Each Assessment, together with such interest thereon and costs of collection as hereinafter provided, will be the personal obligation of the Owner of the Lot against which the Assessment is levied and will be secured by a lien hereby
ch interest thereon and costs of collection as hereinafter provided, will be the personal obligation of the Owner of the Lot against which the Assessment is levied and will be secured by a lien hereby granted and conveyed by Declarant to the Association against each such Lot and all Improvements thereon. The Association may enforce payment of such Assessments in accordance with the provisions of this ARTICLE 6.
(c) Declarant Subsidy. Declarant may, but is not obligated to, reduce Assessments which would otherwise be levied against Lots for any fiscal year by the payment of a subsidy to the Association. Any subsidy paid to the Association by Declarant may be treated as a contribution or a loan, in Declarant's sole and absolute discretion. Any subsidy and the characterization thereof may be disclosed as a line item in the annual budget prepared by the Board and attributable to such Assessments. The payment of a subsidy in any given year will not obligate Declarant to continue payment of a subsidy to the Association in future years.
6.02 Maintenance Fund. The Board will establish a maintenance fund into which will be deposited all monies paid to the Association and from which disbursements will be made in performing the functions of the Association under this Declaration. The funds of the Association may be used for any purpose authorized by the Restrictions and Applicable Law.
Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 3 8 2017109533 Page 44 of 87 6.03 Regular Assessments. Prior to the begiruting of each fiscal year, the Board will prepare a budget for the purpose of determining amounts sufficient to pay the estimated net expenses of the Association (the "Regular Assessments") which sets forth: (i) an estimate of the
Board will prepare a budget for the purpose of determining amounts sufficient to pay the estimated net expenses of the Association (the "Regular Assessments") which sets forth: (i) an estimate of the expenses to be incurred by the Association during such year in performing its functions and exercising its powers under the Restrictions, including, but not limited to, the cost of all management, repair and maintenance, the cost of providing street and other lighting, the cost of administering and enforcing the Restrictions, and (ii) an estimate of the amount needed to maintain a reasonable provision for contingencies and an appropriate replacement reserve, and will give due consideration to any expected income and any surplus from the prior year's fund.
Assessments sufficient to pay such estimated net expenses will then be levied at the level of Assessments set by the Board in its sole and absolute discretion, and the Board's determination will be final and binding so long as it is made in good faith. If the sums collected prove inadequate for any reason, including nonpayment of any Assessment, the Association may at any time, and from time to time, levy further Assessments in the same manner. All such Regular Assessments will be due and payable to the Association annually on or before the first day of the month, or in such other manner as the Board may designate in its sole and absolute discretion.
6.04 Working Capital Assessment. Each Owner will pay a one-time working capital assessment (the "Working Capital Assessment") to the Association in such amount, if any, as may be determined by the Declarant, until expiration or termination of the Development Period, and the Board thereafter. Such Working Capital Assessment need not be uniform
in such amount, if any, as may be determined by the Declarant, until expiration or termination of the Development Period, and the Board thereafter. Such Working Capital Assessment need not be uniform among all Lots, and the Declarant or the Board is expressly authorized to levy Working Capital Assessments of varying amounts depending on the size, use and general character of the Lots then being made subject to such levy. The Association may use the working capital to discharge operating expenses. The levy of any Working Capital Assessment will be effective only upon the Recordation of a written notice, signed by the Declarant or a duly authorized officer of the Association, setting forth the amount of the Working Capital Assessment and the Lots to which it applies.
Notwithstanding the foregoing provision, (i) the Working Capital Assessment will be limited to $200.00 per Lot for the first transfer of a Lot from a Homebuilder to a third-party buyer, and (ii) the following transfers will not be subject to the Working Capital Assessment: (A) foreclosure of a deed of trust lien, tax lien, or the Association's Assessment lien; (B) transfer to, from, or by the Association; (C) transfer to a Homebuilder, or (D) voluntary transfer by an Owner to one or more existing co-owners, or to the Owner's spouse, child, or parent.
Additionally, the Declarant and an Owner who acquires a Lot for the purpose of resale to a Homebuilder ( a "Development Owner") will not be subject to the Working Capital Assessment.
The Working Capital Assessment will be payable by any Owner who acquires a Lot from a Homebuilder or Development Owner for residential living purposes or by any Owner who: (1) acquires a Lot and is not principally in the business of constructing single-family residences
es a Lot from a Homebuilder or Development Owner for residential living purposes or by any Owner who: (1) acquires a Lot and is not principally in the business of constructing single-family residences for resale to a third party; or (2) who acquires the Lot for any purpose other than constructing a single-family residence thereon for resale to a third party. In the event of any dispute regarding the application of the Working Capital Assessment to a particular Owner, the determination of Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 3 9 2017109533 Page 45 of 87 the Declarant during the Development Period, and thereafter the Board, regarding the application of the exception will be binding and conclusive without regard to any contrary interpretation of this Section 6.04. The Working Capital Assessment will be in addition to, not in lieu ot any other Assessments levied in accordance with this ARTICLE 6 and will not be considered an advance payment of such Assessments. The Working Capital Assessment hereunder will be due and payable by the transferee to the Association immediately upon each transfer of title to the Lot including upon transfer of title from one Owner of such Lot to any subsequent purchaser or transferee thereof. The Declarant during the Development Period, and thereafter the Board, will have the power to waive the payment of any Working Capital Assessment attributable to a Lot (or all Lots) by the Recordation of a waiver notice, which waiver may be temporary or permanent.
6.05 Special Assessments. In addition to the Regular Assessments provided for above, the Board may levy special assessments (the "Special Assessments") whenever in the Board's opinion such Special Assessments are necessary to enable the Board to carry out the
ments provided for above, the Board may levy special assessments (the "Special Assessments") whenever in the Board's opinion such Special Assessments are necessary to enable the Board to carry out the functions of the Association under the Restrictions. The amount of any Special Assessments will be at the reasonable discretion of the Board. In addition to the Special Assessments authorized above, the Association may, in any fiscal year, levy a Special Assessment for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair or replacement of a capital improvement upon the Common Area. Any Special Assessment levied by the Association for the purpose of defraying, in whole or in part, costs of any construction, reconstruction, repair or replacement of capital improvement upon the Common Area will be levied against all Owners based on Assessment Units.
6.06 Individual Assessments. In addition to any other Assessments, the Board may levy an individual assessment (the "Individual Assessment") against an Owner and the Owner's Lot. Individual Assessments may include, but are not limited to: interest, late charges, and collection costs on delinquent Assessments; reimbursement for costs incurred in bringing an Owner or the Owner's Lot into compliance with this Declaration; fines for violations of the Restrictions; transfer-related fees and resale certificate fees; fees for estoppel letters and project documents; insurance deductibles; reimbursement for damage or waste caused by willful or negligent acts of the Owner, the Owner's guests, invitees or Residents of the Owner's Lot; common expenses that benefit fewer than all of the Lots, which may be assessed according to
sed by willful or negligent acts of the Owner, the Owner's guests, invitees or Residents of the Owner's Lot; common expenses that benefit fewer than all of the Lots, which may be assessed according to benefit received (by way of example and not in limitation of the foregoing language, if any group of Lots within Lively Ranch shall be separated from the rest of the Lots by an entry gate and related improvements, then the costs incurred by the Association to maintain and repair such gate and related improvements will be assessed only against the Lots within the gate as an Individual Assessment against such Lots); fees or charges levied against the Association on a per-Lot basis; and "pass through" expenses for services to Lots provided through the Association and which are equitably paid by each Lot according to the benefit received.
6.07 Amount of Assessment.
Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 40 2017109533 Page 46 of 87 (a) Assessments to be Levied. The Board shall levy Assessments against each "Assessment Unit" (as defined in Section 6.07(b) below). Unless otherwise provided in this Declaration, Assessments levied pursuant to Section 6.03 and Section 6.05 shall be levied uniformly against each Assessment Unit allocated to a Lot.
(b) Assessment Unit. Each Lot shall constitute one "Assessment Unit" unless otherwise provided in Section 6.07(c) and@.
(c) Assessment Exemption. Notwithstanding anything in this Declaration to the contrary, no Assessments shall be levied upon Lots owned by Declarant or a Homebuilder (unless (i) such Homebuilder leases such Lot for 30 days or more to a third party or parties in the aggregate, whereafter such Lot shall no longer be exempt, or (ii) Homebuilder has owned
Homebuilder (unless (i) such Homebuilder leases such Lot for 30 days or more to a third party or parties in the aggregate, whereafter such Lot shall no longer be exempt, or (ii) Homebuilder has owned the Lot for more than 10 months after Homebuilder obtains a building permit for the construction of a home on such Lot and has not sold the Lot to an Owner, in which event the Homebuilder thereafter shall be responsible for the Assessment until such time as the Lot is sold to an Owner).
(d) Other Exemptions. Declarant may, in its sole discretion, elect to: (i) exempt any rm-platted or unimproved portion of the Property or any Lot from any Assessments levied or charged pursuant to this ARTICLE 6; or (ii) delay the levy of Assessments against any rm-platted, unimproved or improved portion of the Property. Declarant or the Board may also exempt any portion of the Property that is dedicated and accepted by public authority from Assessments.
6.08 Late Charges. If any Assessment is not paid by the due date applicable thereto, the Owner responsible for the payment may be required by the Board, at the Board's election at any time and from time to time, to pay a late charge in such amount as the Board may designate, and the late charge (and any reasonable handling costs) will be levied as an Individual Assessment against the Lot owned by such Owner, collectible in the manner as provided for collection of Assessments, including foreclosure of the lien against such Lot; provided, however, such charge will never exceed the maximum charge permitted under Applicable Law.
6.09 Owner's Personal Obligation; Interest. Assessments levied as provided for herein will be the personal and individual debt of the Owner of the Lot against which are levied
ed under Applicable Law.
6.09 Owner's Personal Obligation; Interest. Assessments levied as provided for herein will be the personal and individual debt of the Owner of the Lot against which are levied such Assessments. No Owner may exempt himself from liability for such Assessments. In the event of default in the payment of any such Assessment, the Owner of the Lot will be obligated to pay interest on the amount of the Assessment at the highest rate allowed by applicable usury laws then in effect on the amount of the Assessment from the due date therefor ( or if there is no such highest rate, then at the rate of one and one half percent (1.50%) per month), together with all costs and expenses of collection, including reasonable attorney's fees. Such amounts will be levied as an Individual Assessment against the Lot owned by such Owner.
Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 41 2017109533 Page 47 of 87 6.10 Assessment Lien and Foreclosure. The payment of all sums assessed in the manner provided in this Article is, together with late charges as provided in Section 6.08 and interest as provided in Section 6.09 hereof and all costs of collection, including attorney's fees as herein provided, secured by the continuing Assessment lien granted to the Association pursuant to Section 6.0l(b) above, and will bind each Lot in the hands of the Owner thereof, and such Owner's heirs, devisees, personal representatives, successors or assigns. The aforesaid lien will be superior to all other liens and charges against such Lot, except only for: (i) tax and governmental assessment liens; (ii) all sums secured by a first mortgage lien or first deed of trust lien of record, to the extent such lien secures sums borrowed for the acquisition or
r: (i) tax and governmental assessment liens; (ii) all sums secured by a first mortgage lien or first deed of trust lien of record, to the extent such lien secures sums borrowed for the acquisition or improvement of the Lot in question; and (iii) home equity loans or home equity lines of credit which are secured by a second mortgage lien or second deed of trust lien of record; provided that, in the case of subparagraphs (ii) and (iii) above, such Mortgage was Recorded before the delinquent Assessment was due. The Association will have the power to subordinate the aforesaid Assessment lien to any other lien. Such power will be entirely discretionary with the Board, and such subordination may be signed by an officer, agent or attorney of the Association. The Association may, at its option and without prejudice to the priority or enforceability of the Assessment lien granted hereunder, prepare a written notice of Assessment 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. Such notice may be signed by one of the officers, agents or attorneys of the Association and will be Recorded. Each Owner, by accepting a deed or ownership interest to a Lot subject to this Declaration, will be deemed conclusively to have granted a power of sale to the Association to secure and enforce the Assessment lien granted hereunder. The Assessment liens and rights to foreclosure thereof will be in addition to and not in substitution of any other rights and remedies the Association may have by law and under this Declaration, including the rights of the Association to institute suit against such Owner personally obligated to pay the Assessment and/or for foreclosure of the aforesaid lien.
by law and under this Declaration, including the rights of the Association to institute suit against such Owner personally obligated to pay the Assessment and/or for foreclosure of the aforesaid lien.
In any foreclosure proceeding, such Owner will be required to pay the costs, expenses and reasonable attorney's fees incurred. The Association will have the power to bid (in cash or by credit against the amount secured by the lien) on the property at foreclosure or other legal sale and to acquire, hold, lease, mortgage, convey or otherwise deal with the same. Upon the written request of any Mortgagee, the Association will report to said Mortgagee any unpaid Assessments remaining unpaid for longer than 60 days after the same are due. The lien hereunder will not be affected by the sale or transfer of any Lot; except, however, that in the event of foreclosure of any lien superior to the Assessment lien, the lien for any Assessments that were due and payable before the foreclosure sale will be extinguished, provided that past due Assessments will be paid out of the proceeds of such foreclosure sale only to the extent that funds are available after the satisfaction of the indebtedness secured by the Mortgage. The provisions of the preceding sentence will not, however, relieve any subsequent Owner (including any Mortgagee or other purchaser at a foreclosure sale) from paying Assessments becoming due and payable after the foreclosure sale. Upon payment of all sums secured by a lien of the type described in this Section 6.10, the Association will upon the request of the Owner, and at such Owner's cost, execute a release of lien relating to any lien for which written notice has been Recorded as provided above, except in circumstances in which the Association
st of the Owner, and at such Owner's cost, execute a release of lien relating to any lien for which written notice has been Recorded as provided above, except in circumstances in which the Association Declaration of Covenants, Conditions and Restrictions for Lively Ranch-Page 42 2017109533 Page 48 of 87 has already foreclosed such lien. Such release will be signed by an officer, agent or attorney of the Association. In addition to the lien hereby retained, in the event of nonpayment by any Owner of any Assessment and after the lapse of at least 12 days since such payment was due, the Association may, upon five days' prior written notice (which may run concurrently with such 12 day period) to such Owner, in addition to all other rights and remedies available at law, equity or otherwise, terminate, in such manner as the Board deems appropriate, any utility or cable service provided through the Association and not paid for directly by an Owner or Resident to the utility or service provider. Such notice will consist of a separate mailing or hand delivery at least five days prior to a stated date of disconnection, with the title "termination notice" or similar language prominently displayed on the notice. The notice will include the office or street address where the Owner or the Owner's tenant can make arrangements for payment of the bill and for reconnection of service. Utility or cable service will not be disconnected on a day, or immediately preceding a day, when personnel are not available for the purpose of collection and reconnecting such services. Except as otherwise provided by Applicable Law, the sale or transfer of a Lot will not relieve the Owner of such Lot or such Owner's transferee from liability for any Assessments thereafter becoming due or from the lien
provided by Applicable Law, the sale or transfer of a Lot will not relieve the Owner of such Lot or such Owner's transferee from liability for any Assessments thereafter becoming due or from the lien associated therewith. If an Owner conveys its Lot and on the date of such conveyance Assessments against the Lot remain unpaid, or said Owner owes other sums or fees under this Declaration to the Association, the Owner will pay such amounts to the Association out of the sales price of the Lot, and such sums will be paid in preference to any other charges against the Lot other than liens superior to the Assessment lien and charges in favor of the State of Texas or a political subdivision thereof for taxes on the Lot which are due and unpaid. The Owner conveying such Lot will remain personally liable for all such sums until the same are fully paid, regardless of whether the transferee of the Lot also assumes the obligation to pay such amounts.
The Board may adopt an administrative transfer fee to cover the expenses associated with updating the Association's records upon the transfer of a Lot to a third party; provided, however, that no transfer fee will be due upon the transfer of a Lot from Declarant or a Homebuilder to a third party.
Yes, the Association can foreclose on your Lot!
If you fail to pay assessments to the Association, you may lose title to your Lot if the Association forecloses its assessment lien. The Association will charge you legal costs, interest, and late fees if you default in paying assessments.
6.11 Exempt Property. The following area within the Property will be exempt from the Assessments provided for in this Article: (a) All areas dedicated and accepted by public authority, by the Recordation of an appropriate document; (b) The Common Area;
Property will be exempt from the Assessments provided for in this Article: (a) All areas dedicated and accepted by public authority, by the Recordation of an appropriate document; (b) The Common Area; Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 43 2017109533 Page 49 of 87 (c) Any portion of the Property owned by a Homebuilder, provided, however, that any portion of the Property shall not be considered owned by a Homebuilder after (i) the Homebuilder leases such portion of the Property for more than 30 total days to a third-party or parties in the aggregate or (ii) the Homebuilder has owned the Lot for more than 10 months after the Homebuilder obtains a building permit for the construction of a house on such Lot and has not sold the Lot to an Owner, in which event the Homebuilder thereafter shall be responsible for the Assessment until such time as the Lot is sold to an Owner; and ( d) Any portion of the Property owned by Declarant.
6.12 Fines and Damages Assessment.
(a) Board Assessment. The Board may assess fines against an Owner for violations of the Restrictions that have been committed by an Owner, a Resident, or the Owner or Resident's guests, agents or invitees. Any fine and/or charge levied in accordance with this Section 6.12 will be considered an Individual Assessment pursuant to this Declaration. Each day of violation may be considered a separate violation if the violation continues after written notice to the Owner. The Board may assess damage charges against an Owner for pecuniary loss to the Association from property damage or destruction of Common Area or any facilities caused by the Owner, Resident, or their guests, agents, or invitees. The Manager will have
er for pecuniary loss to the Association from property damage or destruction of Common Area or any facilities caused by the Owner, Resident, or their guests, agents, or invitees. The Manager will have authority to send notices to alleged violators, informing them of their violations and asking them to comply with the Rules and Regulations and/or informing them of potential or probable fines or damage assessments. The Board may from time to time adopt a schedule of fines.
(b) Lien Created. The payment of each fine and/or damage charge levied by the Board against the Owner of a Lot is, together with interest as provided in Section 6.09 hereof and all costs of collection, including attorney's fees as herein provided, secured by the lien granted to the Association pursuant to Section 6.0l(b) of this Declaration. The fine and/or damage charge will be considered an Assessment for the purpose of this Article, and will be enforced in accordance with the terms and provisions governing the enforcement of assessments pursuant to this ARTICLE 6.
ARTICLE7 ARCHITECTURAL CONTROL COMMITTEE Declarant has a substantial interest in ensuring that Improvements within the Property maintain and enhance Declarant' s reputation as a community developer and do not impair Declarant's ability to market and sell all or any portion of the Property. Until Declarant has delegated its right to appoint and remove all members of the ACC to the Board as provided in Section 7.02(a) below, the ACC will be acting solely in Declarant' s interest and will owe no duty to any other Owner or the Association. Notwithstanding any provision in this Declaration to the contrary, Declarant may appoint a single person to exercise the rights of the ACC.
and will owe no duty to any other Owner or the Association. Notwithstanding any provision in this Declaration to the contrary, Declarant may appoint a single person to exercise the rights of the ACC.
7.01 Construction of Improvements. No Improvement may be erected, placed, constructed, painted, altered, modified or remodeled on any Lot, and no Lot may be Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 44 2017109533 Page 50 of 87 re-subdivided or consolidated with other Lots or Property, by anyone other than Declarant, without the prior written approval of the ACC.
7.02 Architectural Control Committee.
(a) Composition. The ACC will be composed of not more than three persons (who need not be Members or Owners) appointed as provided below, who will review Improvements proposed to be made by any Owner (including Homebuilders) other than Declarant. Declarant will have the right to appoint and remove (with or without cause) all members of the ACC. Declarant may assign its right to appoint all members of the ACC to the Association by Recorded written instrument, and thereafter, the Board will have the right to appoint and remove (with or without cause) all members of the ACC. Any assignment by Declarant of the right to appoint and remove all members of the ACC may be withdrawn until expiration of 24 months after the expiration of the Development Period. If Declarant withdraws its assignment of the right to appoint and remove all members of the ACC, then on the date of such withdrawal, Declarant will have the right to appoint and remove (with or without cause) all members of the ACC. Declarant' s right to appoint all members of the ACC will automatically be assigned to the Association upon the expiration of 24 months after the
remove (with or without cause) all members of the ACC. Declarant' s right to appoint all members of the ACC will automatically be assigned to the Association upon the expiration of 24 months after the expiration of the Development Period. Declarant, at its option, may create and assign specific duties and responsibilities to one or more sub-committees consisting of members and/or nonmembers of the ACC. In the event responsibilities and duties are assigned to a sub committee, those responsibilities and duties will no longer be discharged by the ACC unless the sub-committee exercising such duties and responsibilities is dissolved by Declarant. The right to create, dissolve, and appoint members of such sub-committees will reside exclusively with Declarant until such time as Declarant has assigned its right to appoint members of the ACC to the Association. The ACC will have the right to employ consultants and advisors as it deems necessary or appropriate.
(b) Submission and Approval of Plans and Specifications. Construction plans and specifications or, when an Owner desires solely to re-subdivide or consolidate Lots, a proposal for such re-subdivision or consolidation, will be submitted in accordance with the Design Guidelines or any additional rules adopted by the ACC together with any review fee which is imposed by the ACC in accordance with Section 7.02(c) to the ACC at the offices of Declarant, at such address as may hereafter be designated in writing from time to time. Only a Member in good standing with the Association may submit plans and specifications to the ACC. No re-subdivision or consolidation will be made, nor any Improvement placed or allowed on any Lot, until the plans and specifications and the builder which the Owner intends
specifications to the ACC. No re-subdivision or consolidation will be made, nor any Improvement placed or allowed on any Lot, until the plans and specifications and the builder which the Owner intends to use to construct the proposed structure or Improvement have been approved in writing by a Majority of the members of the ACC. The ACC may, in reviewing such plans and specifications consider any information that it deems proper; including, without limitation, the Restrictions, any permits, environmental impact statements or percolation tests that may be required by the ACC or any other entity; and harmony of external design and location in relation to surrounding structures, topography, vegetation, and finished grade elevation. The ACC may postpone its review of any plans and specifications submitted for approval pending receipt of Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 45 2017109533 Page 51 of 87 any information or material that the ACC, in its sole discretion, may require. Site plans must be approved by the ACC prior to the clearing of any Lot, or the construction of any Improvements.
The ACC may refuse to approve plans and specifications for proposed Improvements, or for the re-subdivision or consolidation of any Lot on any grounds that, in the sole and absolute discretion of the ACC, are deemed sufficient, including, but not limited to, purely aesthetic grounds. At any time when the Design Guidelines are in effect, Homebuilder shall be required to submit its plans and specifications to the ACC for approval in accordance with this Section 7.02(b) and to ensure the plans and specifications comply with the Design Guidelines in all respects.
(c) Design Guidelines. Declarant may adopt the initial Design Guidelines
ordance with this Section 7.02(b) and to ensure the plans and specifications comply with the Design Guidelines in all respects.
(c) Design Guidelines. Declarant may adopt the initial Design Guidelines and, during the Development Period, will have the power from time to time, to adopt (unless previously adopted by Declarant), amend, modify, or supplement the Design Guidelines. Upon expiration or termination of the Development Period, the ACC, or any sub-committee thereof created pursuant to Section 7.02(a), will have the power from time to time, to amend, modify, or supplement the Design Guidelines; provided, however, that any amendment to the Design Guidelines made by a sub-committee will only apply to the Improvements under the jurisdiction of such sub-committee, and during the Development Period, any such amendment, modification or supplement must be approved in advance and in writing by the Declarant. In the event of any conflict between the terms and provisions of the Design Guidelines and the terms and provisions of this Declaration, the terms and provisions of this Declaration will control. In addition, the ACC will have the power and authority to impose a fee for the review of plans, specifications and other documents and information submitted to it pursuant to the terms of this Declaration. Such charges will be held by the ACC and used to defray the administrative expenses incurred by the ACC in performing its duties hereunder; provided, however, that any excess funds held by the ACC will be distributed to the Association at the end of each calendar year. The ACC will not be required to review any plans until a complete submittal package, as required by this Declaration and the Design Guidelines, is assembled and
ation at the end of each calendar year. The ACC will not be required to review any plans until a complete submittal package, as required by this Declaration and the Design Guidelines, is assembled and submitted to the ACC. The ACC will have the authority to adopt such additional procedural and substantive rules and guidelines (including, without limitation, the imposition of any requirements for certificates of compliance or completion relating to any Improvement and the right to approve in advance any contractor selected for the construction of Improvements), not in conflict with this Declaration, as it may deem necessary or appropriate in connection with the performance of its duties hereunder.
( d) Actions of the ACC. The ACC may, by resolution unanimously adopted in writing, designate one or more of its members, or an agent acting on its behalf, to take any action or perform any duties for and on behalf of the ACC, except the granting of variances. In the absence of such designation, the vote of a Majority of all of the members of the ACC taken at a duly constituted meeting will constitute an act of the ACC.
(e) Failure to Act. In the event that any plans and specifications are submitted to the ACC as provided herein, and the ACC fails either to approve or reject such plans and specifications for a period of 60 days following such submission, rejection of such Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 46 2017109533 Page 52 of 87 plans and specifications by the ACC will be presumed. In furtherance, and not in limitation of the foregoing, any failure of the ACC to act upon a request for a variance will not be deemed to be a consent to such variance, and the ACC' s written approval of all requests for variances will
on of the foregoing, any failure of the ACC to act upon a request for a variance will not be deemed to be a consent to such variance, and the ACC' s written approval of all requests for variances will be expressly required.
(£) Variances. The ACC may grant variances from compliance with any of the provisions of the Design Guidelines or this Declaration, when, in the opinion of the ACC, in its sole and absolute discretion, such variance is justified. All variances must be evidenced in writing and must be signed by at least a Majority of the members of the ACC. Each variance must also be Recorded; provided however, that failure to record a variance will not affect the validity thereof or give rise to any claim or cause of action against the ACC, including the Declarant or its designee, the Association, or the Board. If a variance is granted, no violation of the covenants, conditions, or restrictions contained in this Declaration or the Design Guidelines will be deemed to have occurred with respect to the matter for which the variance was granted.
The granting of such variance will not operate to waive or amend any of the terms and provisions of this Declaration or the Design Guidelines for any purpose except as to the particular property and in the particular instance covered by the variance, and such variance will not be considered to establish a precedent for any future waiver, modification, or amendment of the terms and provisions of this D~claration or the Design Guidelines.
(g) Duration of Approval. The approval of the ACC of any plans and specifications and any variances granted by the ACC will be valid (i) for a period of 120 days only if the application is made by an Owner; and (ii) for the lesser of either (a) 24 months, or (b)
and specifications and any variances granted by the ACC will be valid (i) for a period of 120 days only if the application is made by an Owner; and (ii) for the lesser of either (a) 24 months, or (b) the period of development of any phase if the application is made by a Homebuilder and the Homebuilder has acquired at least 30 Lots in the phase. If construction in accordance with such plans and specifications or variance is not commenced within such prescribed period and diligently prosecuted to completion within either: (a) one year after issuance of approval of such plans and specifications; or (b) such other period thereafter as determined by the ACC, in its sole and absolute discretion, the Owner or Homebuilder will be required to resubmit such plans and specifications or request for a variance to the ACC, and the ACC will have the authority to re-evaluate such plans and specifications in accordance with this Section 7.02(g) and may, in addition, consider any change in circumstances which may have occurred since the time of the original approval. Notwithstanding the foregoing and provided that a Homebuilder is undertaking the active construction of at least one home, approval periods for all plans and specifications for such Homebuilder will be tolled for the period while any home is then under construction.
(h) No Waiver of Future Approvals. The approval of the ACC to any plans or specifications for any work done or proposed in connection with any matter requiring the approval or consent of the ACC will not be deemed to constitute a waiver of any right to withhold approval or consent as to any plans and specifications on any other matter, subsequently or additionally submitted for approval by the same or a different person, nor will
ver of any right to withhold approval or consent as to any plans and specifications on any other matter, subsequently or additionally submitted for approval by the same or a different person, nor will such approval or consent be deemed to establish a precedent for future approvals by the ACC.
Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 4 7 2017109533 Page 53 of 87 (i) Building Permit. If a submission to the ACC is for work that requires a building permit from a Governmental Authority, the ACC shall first approve such submission provided that the ACC's approval shall be conditioned on the ,issuance of the appropriate permit. An approval letter from the ACC shall be required prior to any submission for review by a Governmental Authority. The ACC's approval of plans and specifications does not mean that they comply with the requirements of the Governmental Authority. Additionally, governmental approval does not ensure ACC approval. A conditional approval by the ACC will be a condition of the applicable Governmental Authority approval and such conditional approval of the ACC cannot be waived or modified by any Governmental Authority. If the conditional approval is not accepted by the governmental authority the Owner or Homebuilder shall be required to resubmit to the ACC in a manner to avoid the previous conditional acceptance by the ACC before securing the governmental approval.
(j) Non-Liability of Committee Members. NEITHER DECLARANT, THE BOARD, THE ACC, NOR ANY MEMBER WILL BE LIABLE TO ANY OWNER, HOMEBUILDER, OR TO ANY OTHER PERSON FOR ANY LOSS, DAMAGE OR INJURY ARISING OUT OF THE PERFORMANCE OF THE ACC'S DUTIES UNDER THIS DECLARATION, UNLESS SUCH LOSS, DAMAGE, OR INJURY IS DUE TO THE WILLFUL
HOMEBUILDER, OR TO ANY OTHER PERSON FOR ANY LOSS, DAMAGE OR INJURY ARISING OUT OF THE PERFORMANCE OF THE ACC'S DUTIES UNDER THIS DECLARATION, UNLESS SUCH LOSS, DAMAGE, OR INJURY IS DUE TO THE WILLFUL MISCONDUCT OR BAD FAITH OF THE ACC OR ONE OR MORE OF ITS MEMBERS, AS THE CASE MAY BE.
ARTICLES MORTGAGE PROVISIONS The following provisions are for the benefit of holders, insurers and guarantors of first Mortgages on Lots within the Property. The provisions of this Article apply to this Declaration and the Bylaws of the Association.
8.01 Notice of Action. An institutional holder, insurer, or guarantor of a first Mortgage which provides a written request to the Association (such request to state the name and address of such holder, insurer, or guarantor and the street address of the Lot to which its Mortgage relates) (thereby becoming an "Eligible Mortgage Holder"), will be entitled to timely written notice of: (a) Any condemnation loss or any casualty loss which affects a material portion of the Property or which affects any Lot on which there is an eligible Mortgage held, insured, or guaranteed by such Eligible Mortgage Holder; (b) Any delinquency in the payment of assessments or charges owed for a Lot subject to the Mortgage of such Eligible Mortgage Holder, where such delinquency has continued for a period of 60 days, or any other violation of the Restrictions relating to such Lot or the Owner or Resident which is not cured within 60 days; and Declaration of Covenants, Conditions and Restrictions for Lively Ranch Page 48 2017109533 Page 54 of 87 (c) Any lapse, cancellation, or material modification of any insurance policy maintained by the Association.
8.02 Examination of Books. The Association will permit Mortgagees to examine the
(c) Any lapse, cancellation, or material modification of any insurance policy maintained by the Association.
8.02 Examination of Books. The Association will permit Mortgagees to examine the books and records of the Association during normal business hours.
8.03 Taxes, Assessments and Charges. All taxes, assessments and charges that may become liens prior to first lien mortgages under Applicable Law will relate only to the individual Lots and not to any other portion of the Property.
ARTICLE9 EASEMENTS 9.01 Right of Ingress and Egress. Declarant, its agents, employees, designees, successors and assigns will have a right of ingress and egress over and the right of access to the Common Area to the extent necessary to use the Common Area and the right to such other temporary uses of the Common Area as may be required or reasonably desirable (as determined by Declarant in its sole discretion) in connection with the construction and development of the Property. The Property shall be subject to a perpetual non-exclusive easement for the installation and maintenance, including the right to read meters, service or repair lines and equipment, and to do everything and anything necessary to properly maintain and furnish the Community Systems and the facilities pertinent and necessary to the same, which easement shall run in favor of Declarant. Declarant shall have the right, but not the obligation, to install and provide the Community Systems and to provide the services available through the Community Systems to any and all Lots within the Property. Neither the Association nor any Owner shall have any interest therein. Any or all of such services may be provided either directly through the Association and paid for as part of the Assessments or
y. Neither the Association nor any Owner shall have any interest therein. Any or all of such services may be provided either directly through the Association and paid for as part of the Assessments or directly to Declarant, any affiliate of Declarant, or a third party, by the Owner who receives the services. The Community Systems shall be the property of Declarant unless transferred by Declarant, whereupon any proceeds of such transfer shall belong to Declarant. Declarant shall have the right but not the obligation to convey, transfer, sell or assign all or any portion of the Community Systems or all or any portion of the rights, duties or obligations with respect thereto, to the Association or to any person or entity. The rights of Declarant with respect to the Community Systems installed by Declarant and the services provided through such Community Systems are exclusive, and no other person or entity may provide such services through the Community Systems installed by Declarant without the prior written consent of Declarant. In recognition of the fact that interruptions in cable television and other Community Systems services will occur from time to time, no person or entity described above shall in any manner be liable, and no user of any Community System shall be entitled to any refund, rebate, discount or offset in applicable fees, for any interruption in Community Systems services, regardless of whether or not same is caused by reasons within the control of the then-provider of such services.
Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 49 2017109533 Page 55 of 87 9.02 Reserved Easements. All dedications, limitations, restrictions and reservations
services.
Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 49 2017109533 Page 55 of 87 9.02 Reserved Easements. All dedications, limitations, restrictions and reservations shown on any Plat and all grants and dedications of easements, rights-of-way, restrictions and related rights made by Declarant or any third party prior to the Property becoming subject to this Declaration are incorporated herein by reference and made a part of this Declaration for all purposes as if fully set forth herein, and will be construed as being adopted in each and every contract, deed or conveyance executed or to be executed by or on behalf of Declarant. Declarant reserves the right to relocate, make changes in, and additions to said easements, rights-of-way, dedications, limitations, reservations and grants for the purpose of most efficiently and economically developing the Property.
9.03 Utility Easements. Declarant hereby reserves unto itself and Declarant's successors and assigns a perpetual non-exclusive easement over and across the Property for: (i) the installation, operation and maintenance of utilities and associated infrastructure to serve the Property and any other property owned by Declarant; (ii) the installation, operation and maintenance of cable lines and associated infrastructure for sending and receiving data and/or other electronic signals, security and similar services to serve the Property and any other property owned by Declarant; and (iii) the installation, operation and maintenance of, walkways, pathways and trails, drainage systems, street lights and signage to serve the Property and any other property owned by Declarant. Declarant will be entitled to unilaterally
d maintenance of, walkways, pathways and trails, drainage systems, street lights and signage to serve the Property and any other property owned by Declarant. Declarant will be entitled to unilaterally assign the easements reserved hereunder to any third party who owns, operates or maintains the facilities and hnprovements described in (i) through (iii) of this Section 9.03. The exercise of the easement reserved herein will not extend to permitting entry into any residence, nor will it unreasonably interfere with the use of any Lot or residence or Improvement constructed thereon.
9.04 Subdivision Entry and Fencing Easement. Declarant reserves for itself and the Association, an easement over and across the Property and any Common Area for the installation, maintenance, repair or replacement of certain subdivision entry facilities, walls, and/or fencing which serves the Property, the Common Area or any other property owned by the Declarant. Declarant will have the right, from time to time, to Record a written notice that identifies the subdivision entry facilities fencing to which the easement reserved hereunder applies. Declarant may designate all or any portion of the subdivision entry facilities, walls and/or fencing as Common Area by Recorded written notice. The exercise of the easements reserved hereunder will not extend to permitting entry into any residence, nor will it unreasonably interfere with the use of any Lot or residence or Improvement constructed thereon.
9.05 Landscape and Monument Sign Easement. Declarant hereby reserves for itself and the Association, an easement over and across the Property and the Common Area for the installation, maintenance, repair or replacement of signs, landscaping, and/or monument signs
erves for itself and the Association, an easement over and across the Property and the Common Area for the installation, maintenance, repair or replacement of signs, landscaping, and/or monument signs which serve the Property, the Common Area or any other property owned by the Declarant.
Declarant will have the right, from time to time, to Record a written notice, which identifies those portions of the Property, Common Area or property owned by the Declarant to which the easement reserved hereunder applies. Declarant may designate all or any portion of the Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 50 2017109533 Page 56 of 87 easement areas reserved hereunder as Common Area. The exercise of the easements reserved hereunder will not extend to permitting entry into any residence, nor will it unreasonably interfere with the use of any Lot or residence or Improvement constructed thereon.
ARTICLE 10 DEVELOPMENT RIGHTS 10.01 Development by Declarant. It is contemplated that the Property will be developed pursuant to a plan, which may, from time to time, be amended or modified.
Declarant reserves the right, but will not be obligated, to pursue the development, construction and marketing of the Property, the right to direct the size, shape, and composition of the Property, the right to create and/or designate Lots and Common Areas and to subdivide with respect to any of the Property pursuant to the terms of this Section 10.01, subject to any limitations imposed on portions of the Property by any applicable Plat. These rights may be exercised with respect to any portions of the Property and the Common Area. As each area is developed or dedicated, Declarant may designate the use, classification and such additional
se rights may be exercised with respect to any portions of the Property and the Common Area. As each area is developed or dedicated, Declarant may designate the use, classification and such additional covenants, conditions and restrictions as Declarant may deem appropriate for that area.
10.02 Special Declarant Rights. Notwithstanding any provision of this Declaration to the contrary, at all times, Declarant (and its assigns, which may include multiple Homebuilders in multiple phases of the Property) will have the right and privilege: (i) to erect and maintain advertising signs (illuminated or non-illuminated), sales flags, other sales devices and banners for the purpose of aiding the sale of Lots or residences in the Property; (ii) to maintain Improvements upon Lots as sales, model, management, business and construction offices; and (iii) to maintain and locate construction trailers and construction tools and equipment within the Property and the Common Area. The construction, placement or maintenance of Improvements by Declarant will not be considered a nuisance, and Declarant hereby reserves the right and privilege for itself to conduct the activities enumerated in this Section 10.02 until two years after expiration or termination of the Development Period.
10.03 Addition of Land. Declarant may, at any time and from time to time, add additional lands to the Property. Upon the filing of a notice of addition of land, such land will be considered part of the Property for purposes of this Declaration, and such added lands will be considered part of the Property subject to this Declaration and the terms, covenants, conditions, restrictions and obligations set forth in this Declaration, and the rights, privileges,
lands will be considered part of the Property subject to this Declaration and the terms, covenants, conditions, restrictions and obligations set forth in this Declaration, and the rights, privileges, duties and liabilities of the persons subject to this Declaration will be the same with respect to such added land as with respect to the lands originally covered by this Declaration. To add lands to the Property, Declarant will be required only to Record a notice of addition of land containing the following provisions: (a) A reference to this Declaration, which reference will state the document number and/or the volume and initial page number of the Official Public Records of Williamson County wherein this Declaration is Recorded; Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 51 2017109533 Page 57 of 87 (b) A statement that such land will be considered Property for purposes of this Declaration, and that all of the terms, covenants, conditions, restrictions and obligations of this Declaration will apply to the added land; and (c) A legal description of the added land.
10.04 Withdrawal of Land. Declarant may, at any time and from time to time, reduce or withdraw from the Property, and remove and exclude from the burden of this Declaration and the jurisdiction of the Association any portion of the Property. Upon any such withdrawal and removal this Declaration and the covenants conditions, restrictions and obligations set forth herein will no longer apply to the portion of the Property withdrawn. To withdraw lands from the Property hereunder, Declarant will be required only to Record a notice of withdrawal of land containing the following provisions: (a) A reference to this Declaration, which reference will state the document
ty hereunder, Declarant will be required only to Record a notice of withdrawal of land containing the following provisions: (a) A reference to this Declaration, which reference will state the document number and/or the volume and initial page number of the Official Public Records of Williamson County wherein this Declaration is Recorded; (b) A statement that the provisions of this Declaration will no longer apply to the withdrawn land; and (c) A legal description of the withdrawn land.
10.05 Assignment of Declarant's Rights. Notwithstanding any prov1S10n in this Declaration to the contrary, Declarant may, by written instrument, assign, in whole or in part, any of its privileges, exemptions, rights and duties under this Declaration to any person or entity and may permit the participation, in whole, in part, exclusively, or non-exclusively, by any other person or entity in any of its privileges, exemptions, rights and duties hereunder.
10.06 Reservation By Declarant of Right to Vary Dwellings. Each Owner, by acceptance of a deed to a Lot, acknowledges and agrees that Declarant expressly reserves the right to impose additional specific use restrictions for the various phases comprising the Property and each Owner further acknowledges and agrees that there is absolutely no requirement that each such set of additional specific use restrictions be the same or similar. In this connection Declarant expressly reserves the right to annex additional phases that are comprised of Lots of different sizes than those heretofore comprising the Property and/or of dwellings that differ in size, style, masomy composition and architecture from dwellings in other phases comprising the Property.
10.07 Common Area. No land within any Common Area will be improved, used, or
ngs that differ in size, style, masomy composition and architecture from dwellings in other phases comprising the Property.
10.07 Common Area. No land within any Common Area will be improved, used, or occupied, except in the maru;ier approved by Declarant, in its sole and absolute discretion. This required approval will extend to the nature and type of use, occupancy, and improvement.
Access to any Common Area may be limited to Owners or Residents currently paying Assessments, fees, and other charges, or otherwise conditioned or restricted, or made available to non-owners, all on the terms and conditions determined by Declarant in its sole and absolute Declaration of Covenants, Conditions and Restrictions for Lively Ranch Page 52 2017109533 Page 58 of 87 discretion. The Declarant' s rights under this Section 10.07 shall automatically be transferred to the Board on the expiration of the Development Period, furthermore, the Declarant may prior to such date, by written instrument, delegate its rights under this Section to the Board.
ARTICLE 11 DISPUTE RESOLUTION 11.01 Introduction and Definitions. The Association, the Owners, Declarant, all persons subject to this Declaration, and any person not otherwise subject to this Declaration who agrees to submit to this Article ( collectively, the "Parties") agree to encourage the amicable resolution of disputes involving the Property and to avoid the emotional and financial costs of litigation and arbitration if at all possible. Accordingly, each Party hereby covenants and agrees that this Article applies to all Claims as hereafter defined. This ARTICLE 11 may only be amended with the prior written approval of the Declarant, the Association ( acting through a
enants and agrees that this Article applies to all Claims as hereafter defined. This ARTICLE 11 may only be amended with the prior written approval of the Declarant, the Association ( acting through a Majority of the Board), and Owners holding 100% of the votes in the Association. As used in this Article only, the following words, when capitalized, have the following specified meanings: (a) "Claim" means: (i) Claims relating to the rights and/or duties of Declarant, the Association, or the ACC, under the Restrictions.
(ii) Claims relating to the acts or ormssrnns of the Declarant, the Association or a Board member or officer of the Association during Declarant' s control and administration of the Association, and any claim asserted against the ACC.
(iii) Claims relating to the design or construction of the Common Area or any Improvements located on the Property.
(b) "Claimant" means any Party having a Claim against any other Party.
(c) "Respondent" means any Party against which a Claim has been asserted by a Claimant.
11.02 Mandatory Procedures. Claimant may not initiate any proceeding before any administrative tribunal seeking redress of resolution of its Claim until Claimant has complied with the procedures of this Article. As provided in Section 11.09 below, a Claim will be resolved by binding arbitration.
11.03 Claim Affecting Common Areas. In accordance with Section 4.16 of this Declaration, the Association does not have the power or right to institute, defend, intervene in, settle, or compromise litigation or administrative proceedings: (i) in the name of or on behalf of any Lot Owner (whether one or more); or (ii) pertaining to a Claim, as defined in Section 11.01 above, relating to the design or construction of Improvements on a Lot (whether one or more).
behalf of any Lot Owner (whether one or more); or (ii) pertaining to a Claim, as defined in Section 11.01 above, relating to the design or construction of Improvements on a Lot (whether one or more).
In the event the Association or a Lot Owner asserts a Claim related to the Common Area, as a Declaration of Covenants, Conditions and Restrictions for Lively Ranch Page 53 2017109533 Page 59 of 87 precondition to providing the Notice defined in Section 11.05, initiating the mandatory dispute resolution procedures set forth in this ARTICLE 11, or taking any other action to prosecute a Claim related to the Common Areas, the Association or a Lot Owner, as applicable, must: (a) Independent Report on the Condition of the Common Areas. Obtain an independent third-party report (the "Common Area Report") from a licensed professional engineer which: (i) identifies the Common Areas subject to the Claim including the present physical condition of the Common Areas; (ii) describes any modification, maintenance, or repairs to the Common Areas performed by the Lot Owner(s) and/or the Association; and (iii) provides specific and detailed recommendations regarding remediation and/or repair of the Common Areas subject to the Claim. For the purposes of this Section, an independent third party report is a report obtained directly by the Association or a Lot Owner and paid for by the Association or a Lot Owner, as applicable, and not prepared by a person employed by or otherwise affiliated with the attorney or law firm that represents or will represent the Association or a Lot Owner in the Claim. As a precondition to providing the Notice described in Section 11.05, the Association or Lot Owner must provide at least ten (10) days prior written
resent the Association or a Lot Owner in the Claim. As a precondition to providing the Notice described in Section 11.05, the Association or Lot Owner must provide at least ten (10) days prior written notice of the inspection, calculated from the date of receipt of such notice, to each party subject to a Claim which notice shall identify the independent third-party engaged to prepare the Common Area Report, the specific Common Areas to be inspected, and the date and time the inspection will occur. Each party subject to a Claim may attend the inspection, personally or through an agent. Upon completion, the Common Area Report shall be provided to each party subject to a Claim. In addition, before providing the Notice described in Section 11.05, the Association or the Lot Owner, as applicable, shall have permitted each party subject to a Claim the right, for a period of ninety (90) days, to inspect and correct, any condition identified in the Common Area Report.
(b) Claim by the Association -Owner Meeting and Approval. If the Claim is prosecuted by the Association, the Association must first obtain approval from Members holding sixty-seven percent (67%) of the votes in the Association to: (i) provide the Notice described in Section 11.05; (ii) initiate the mandatory dispute resolution procedures set forth in this ARTICLE 11; or (iii) take any other action to prosecute a Claim, which approval from Members must be obtained at a special meeting of Members called in accordance with the Bylaws. The notice of meeting required hereunder will be provided pursuant to the Bylaws but the notice must also include: (a) the nature of the Claim, the relief sought, the anticipated duration of prosecuting the Claim, and the likelihood of success; (b) a copy of the Common
the Bylaws but the notice must also include: (a) the nature of the Claim, the relief sought, the anticipated duration of prosecuting the Claim, and the likelihood of success; (b) a copy of the Common Area Report; (c) a copy of any proposed engagement letter, with the terms of such engagement between the Association and an attorney to be engaged by the Association to assert or provide assistance with the claim (the "Engagement Letter"); (d) a description of the attorney fees, consultant fees, expert witness fees, and court costs, whether incurred by the Association directly or for which it may be liable if it is not the prevailing party or that the Association will be required, pursuant to the Engagement Letter or otherwise, to pay if the Association elects to not proceed with the Claim; (e) a summary of the steps previously taken, and proposed to be taken, to resolve the Claim; (f) an estimate of the impact on the value of each Lot if the Claim is prosecuted and an estimate of the impact on the value of each Lot after resolution of the Claim; Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 54 2017109533 Page 60 of 87 (g) an estimate of the impact on the marketability of each Lot if the Claim is prosecuted and during prosecution of the Claim and an estimate of the impact on the value of each Lot during and after resolution of the Claim; (h) the manner in which the Association proposes to fund the cost of prosecuting the Claim; and (i) the impact on the finances of the Association, including the impact on present and projected reserves, in the event the Association is not the prevailing party. The notice required by this paragraph must be prepared and signed by a person other
n, including the impact on present and projected reserves, in the event the Association is not the prevailing party. The notice required by this paragraph must be prepared and signed by a person other than, and not employed by or otherwise affiliated with, the attorney or law firm that represents or will represent the Association or Lot Owner, as applicable, in the Claim. In the event Members approve providing the Notice described in Section 11.05, or taking any other action to prosecute a Claim, the Members holding a Majority of the votes in the Association, at a special meeting called in accordance with the Bylaws, may elect to discontinue prosecution or pursuit of the Claim.
11.04 Claim by Lot Owners -Improvements on Lots. Notwithstanding anything contained herein to the contrary, in the event a warranty is provided to a Lot Owner by the Declarant or a Homebuilder relating to the design or construction of any Improvements located on a Lot, then this ARTICLE 11 will only apply to the extent that this ARTICLE 11 is more restrictive than such Lot Owner's warranty, as determined in the Declarant' s sole discretion. If a warranty has not been provided to a Lot Owner relating to the design or construction of any Improvements located on a Lot, then this ARTICLE 11 will apply. If a Lot Owner brings a Claim, as defined in Section 11.01, relating to the design or construction of any Improvements located on a Lot (whether one or more), as a precondition to providing the Notice defined in Section 11.05, initiating the mandatory dispute resolution procedures set forth in this ARTICLE 11, or taking any other action to prosecute a Claim, the Lot Owner must obtain an independent third-party report (the "Owner Improvement Report") from a licensed professional engineer
in this ARTICLE 11, or taking any other action to prosecute a Claim, the Lot Owner must obtain an independent third-party report (the "Owner Improvement Report") from a licensed professional engineer which: (i) identifies the Improvements subject to the Claim including the present physical condition of the Improvements; (ii) describes any modification, maintenance, or repairs to the Improvements performed by the Lot Owner(s) and/or the Association; and (iii) provides specific and detailed recommendations regarding remediation and/or repair of the Improvements subject to the Claim. For the purposes of this Section, an independent third party report is a report obtained directly by the Lot Owner and paid for by the Lot Owner, and not prepared by a person employed by or otherwise affiliated with the attorney or law firm that represents or will represent the Lot Owner in the Claim. As a precondition to providing the Notice described in Section 11.05, the Lot Owner must provide at least ten (10) days prior written notice of the inspection, calculated from the date of receipt of such notice, to each party subject to a Claim which notice shall identify the independent third-party engaged to prepare the Owner Improvement Report, the specific Improvements to be inspected, and the date and time the inspection will occur. Each party subject to a Claim may attend the inspection, personally or through an agent. Upon completion, the Owner Improvement Report shall be provided to each party subject to a Claim. In addition, before providing the Notice described in Section 11.05, the Lot Owner shall have permitted each party subject to a Claim the right, for a period of ninety (90) days, to inspect and correct, any condition identified in the Owner Improvement Report.
n 11.05, the Lot Owner shall have permitted each party subject to a Claim the right, for a period of ninety (90) days, to inspect and correct, any condition identified in the Owner Improvement Report.
Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 55 2017109533 Page 61 of 87 11.05 Notice. Claimant must notify Respondent in writing of the Claim (the "Notice"), stating plainly and concisely: (i) the nature of the Claim, including date, time, location, persons involved, and Respondent's role in the Claim; (ii) the basis of the Claim (i.e., the provision of the Restrictions or other authority out of which the Claim arises); (iii) what Claimant wants Respondent to do or not do to resolve the Claim; and (iv) that the Notice is given pursuant to this Section. For Claims governed by Chapter 27 of the Texas Property Code, the time period for negotiation in Section 11.06 below, is equivalent to the sixty (60) day period under Section 27.004 of the Texas Property Code. If a Claim is subject to Chapter 27 of the Texas Property Code, the Claimant and Respondent are advised, in addition to compliance with Section 11.06, to comply with the terms and provisions of Section 27.004 during such sixty (60) day period. Section 11.06 does not modify or extend the time period set forth in Section 27.004 of the Texas Property Code. Failure to comply with the time periods or actions specified in Section 27.004 could affect a Claim if the Claim is subject to Chapter 27 of the Texas Property Code. The one hundred and twenty (120) day period for mediation set forth in Section 11.07 below, is intended to provide the Claimant and Respondent with sufficient time to resolve the Claim in the event resolution is not accomplished during negotiation. If the Claim is not
in Section 11.07 below, is intended to provide the Claimant and Respondent with sufficient time to resolve the Claim in the event resolution is not accomplished during negotiation. If the Claim is not resolved during negotiation, mediation pursuant to Section 11.07 is required without regard to the monetary amount of the Claim.
If the Claimant is the Association, the Notice will also include: (a) a true and correct copy of the Common Area Report; (b) a copy of the Engagement Letter; (c) copies of all reports, studies, analyses, and recommendations obtained by the Association related to the Common Area which forms the basis of the Claim; ( d) a true and correct copy of the special meeting notice provided to Members in accordance with Section ll.03(b) above; and (e) reasonable and credible evidence confirming that Members holding sixty-seven percent (67%) of the votes in the Association approved providing the Notice. If the Claimant is not the Association and pertains to the Common Areas, the Notice will also include a true and correct copy of the Common Area Report. If the Claimant is not the Association and pertains to Improvements on a Lot, the Notice will also include a true and correct copy of the Owner Improvement Report.
11.06 Negotiation. Claimant and Respondent will make every reasonable effort to meet in person to resolve the Claim by good faith negotiation. Within sixty (60) days after Respondent's receipt of the Notice, Respondent and Claimant will meet at a mutually acceptable place and time to discuss the Claim. If the Claim involves all or any portion of the Property, then at such meeting or at some other mutually-agreeable time, Respondent and Respondent's representatives will have full access to the Property that is subject to the Claim for
rtion of the Property, then at such meeting or at some other mutually-agreeable time, Respondent and Respondent's representatives will have full access to the Property that is subject to the Claim for the purposes of inspecting the Property. If Respondent elects to take corrective action, Claimant will provide Respondent and Respondent's representatives and agents with full access to the Property to take and complete corrective action.
11.07 Mediation. If the parties negotiate, but do not resolve the Claim through negotiation within one-hundred twenty (120) days from the date of the Notice ( or within such other period as may be agreed on by the parties), Claimant will have thirty (30) additional days within which to submit the Claim to mediation under the auspices of a mediation center or Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 56 2017109533 Page 62 of 87 individual mediator on which the parties mutually agree. The mediator must have at least five (5) years of experience serving as a mediator and must have technical knowledge or expertise appropriate to the subject matter of the Claim. If Claimant does not submit the Claim to mediation within the 30-day period, Respondent may submit the Claim to mediation in accordance with this Section 11.07.
11.08 Termination Of Mediation. If the Parties do not settle the Claim within thirty (30) days after submission to mediation, or within a time deemed reasonable by the mediator, the mediator will issue a notice of termination of the mediation proceedings indicating that the Parties are at an impasse and the date that mediation was terminated. Thereafter, Claimant may file suit or initiate arbitration proceedings on the Claim, as appropriate and permitted by this Article.
Parties are at an impasse and the date that mediation was terminated. Thereafter, Claimant may file suit or initiate arbitration proceedings on the Claim, as appropriate and permitted by this Article.
11.09 Binding Arbitration-Claims. All Claims must be settled by binding arbitration.
Claimant or Respondent may, by summary proceedings ( e.g., a plea in abatement or motion to stay further proceedings), bring an action in court to compel arbitration of any Claim not referred to arbitration as required by this Section 11.09.
(a) Governing Rules. If a Claim has not been resolved after mediation as required by Section 11.07, the Claim will be resolved by binding arbitration in accordance with the terms of this Section 11.09 and the rules and procedures of the American Arbitration Association (" AAA") or, if the AAA is unable or unwilling to act as the arbitrator, then the arbitration shall be conducted by another neutral reputable arbitration service selected by Respondent in Williamson County, Texas. Regardless of what entity or person is acting as the arbitrator, the arbitration shall be conducted in accordance with the AAA's "Construction Industry Dispute Resolution Procedures" and, if they apply to the disagreement, the rules contained in the Supplementary Procedures for Consumer-Related Disputes. If such rules have changed or been renamed by the time a disagreement arises, then the successor rules will apply.
Also, despite the choice of rules governing the arbitration of any Claim, if the AAA has, by the time of Claim, identified different rules that would specifically apply to the Claim, then those rules will apply instead of the rules identified above. Further, notwithstanding anything to the
by the time of Claim, identified different rules that would specifically apply to the Claim, then those rules will apply instead of the rules identified above. Further, notwithstanding anything to the contrary contained herein, the arbitration must be conducted as a "baseball" style arbitration where the arbitrator must rule in favor of one party to the exclusion of the others. In the event of any inconsistency between any such applicable rules and this Section 11.09, this Section 11.09 will control. Judgment upon the award rendered by the arbitrator shall be binding and not subject to appeal except as provided in Section ll.09(d), but may be reduced to judgment or enforced in any court having jurisdiction. Notwithstanding any provision to the contrary or any applicable rules for arbitration, any arbitration with respect to Claims arising hereunder shall be conducted by a panel of three (3) arbitrators, to be chosen as follows: (i) One arbitrator shall be selected by Respondent, in its sole and absolute discretion; Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 57 2017109533 Page 63 of 87 (ii) One arbitrator shall be selected by the Claimant, in its sole and absolute discretion; and (iii) One arbitrator shall be selected by mutual agreement of the arbitrators having been selected by Respondent and the Claimant, in their sole and absolute discretion.
(b) Exceptions to Arbitration; Preservation of Remedies. No provision of, nor the exercise of any rights under, this Section 11.09 will limit the right of Claimant or Respondent, and Claimant and the Respondent will have the right during any Claim, to seek, use, and employ ancillary or preliminary remedies, judicial or otherwise, for the purposes of
of Claimant or Respondent, and Claimant and the Respondent will have the right during any Claim, to seek, use, and employ ancillary or preliminary remedies, judicial or otherwise, for the purposes of realizing upon, preserving, or protecting upon any property, real or personal, that is involved in a Claim, including, without limitation, rights and remedies relating to: (i) exercising self-help remedies (including set-off rights); or (ii) obtaining provisions or ancillary remedies such as injunctive relief, sequestration, attachment, garnishment, or the appointment of a receiver from a court having jurisdiction before, during, or after the pendency of any arbitration. The institution and maintenance of an action for judicial relief or pursuit of provisional or ancillary remedies or exercise of self-help remedies shall not constitute a waiver of the right of any party to submit the Claim to arbitration nor render inapplicable the compulsory arbitration provisions hereof.
(c) Statute of Limitations. All statutes of limitation that would otherwise be applicable shall apply to any arbitration proceeding under this Section 11.09.
(d) Scope of Award; Modification or Vacation of Award. The arbitrator shall resolve all Claims in accordance with the applicable substantive law. The arbitrator may grant any remedy or relief that the arbitrator deems just and equitable and within the scope of this Section 11.09 and subject to Section 11.10 below (attorney's fees and costs may not be awarded by the arbitrator); provided, however, that for a Claim, or any portion of a Claim governed by Chapter 27 of the Texas Property Code, or any successor statute, in no event shall the arbitrator award damages which exceed the damages a Claimant would be entitled to under Chapter 27 of
governed by Chapter 27 of the Texas Property Code, or any successor statute, in no event shall the arbitrator award damages which exceed the damages a Claimant would be entitled to under Chapter 27 of the Texas Property Code. In all arbitration proceedings the arbitrator shall make specific, written findings of fact and conclusions of law. In all arbitration proceedings the parties shall have the right to seek vacation or modification of any award that is based in whole, or in part, on (i) factual findings that have no legally or factually sufficient evidence, as those terms are defined in Texas law; (ii) conclusions of law that are erroneous; (iii) an error of federal or state law; or (iv) a cause of action or remedy not expressly provided under existing state or federal law. In no event may an arbitrator award speculative, consequential, or punitive damages for any Claim.
(e) Other Matters. To the maximum extent practicable, an arbitration proceeding hereunder shall be concluded within one hundred and eighty (180) days of the filing of the Claim for arbitration by notice from either party to the other. Arbitration proceedings hereunder shall be conducted in Williamson County, Texas. The arbitrator shall be Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 5 8 2017109533 Page 64 of 87 empowered to impose sanctions and to take such other actions as the arbitrator deems necessary to the same extent a judge could pursuant to the Federal Rules of Civil Procedure, the Texas Rules of Civil Procedure and Applicable Law. Each party agrees to keep all Claims and arbitration proceedings strictly confidential, except for disclosures of information required in the ordinary course of business of the parties or by Applicable Law or regulation. In no event
aims and arbitration proceedings strictly confidential, except for disclosures of information required in the ordinary course of business of the parties or by Applicable Law or regulation. In no event shall any party discuss with the news media or grant any interviews with the news media regarding a Claim or issue any press release regarding any Claim without the written consent of the other parties to the Claim.
11.10 Allocation Of Costs. Notwithstanding any provision in this Declaration to the contrary, each party bears all of its own costs incurred prior to and during the proceedings described in the Notice, Negotiation, Mediation, and Arbitration sections above, including its attorney's fees. Respondent and Claimant will equally divide all expenses and fees charged by the mediator and arbitrator.
11.11 General Provisions. A release or discharge of Respondent from liability to Claimant on account of the Claim does not release Respondent from liability to persons who are not party to Claimant's Claim.
11.12 Period of Limitation.
(a) For Actions by an Owner. The exclusive period of limitation for any of the Parties to bring any Claim, shall be the earliest of: (i) for Claims alleging construction defect or defective design, two (2) years and one (1) day from the date that the Owner discovered or reasonably should have discovered evidence of the Claim; (ii) for Claims other than those alleging construction defect or defective design, four (4) years and one (1) day from the date that the Owner discovered or reasonably should have discovered evidence of the Claim; or (iii) for all Claims, the applicable statute of limitations under Texas law. In no event shall this Section ll.12(a) be interpreted to extend any period of limitations under Texas law.
f the Claim; or (iii) for all Claims, the applicable statute of limitations under Texas law. In no event shall this Section ll.12(a) be interpreted to extend any period of limitations under Texas law.
(b) For Actions by the Association. The exclusive period of limitation for the Association to bring any Claim, including, but not limited to, a Claim of construction defect or defective design of the Common Areas, shall be the earliest of: (i) for Claims alleging construction defect or defective design, two (2) years and one (1) day from the date that the Association or its agents discovered or reasonably should have discovered evidence of the Claim; (ii) for Claims other than those alleging construction defect or defective design of the Common Areas, four (4) years and one (1) day from the date that the Association discovered or reasonably should have discovered evidence of the Claim; or (iii) for all Claims, the applicable statute of limitations under Texas law. In no event shall this Section ll.12(b) be interpreted to extend any period of limitations under Texas law.
11.13 Funding Arbitration and Litigation. The Association must levy a Special Assessment to fund the estimated costs of arbitration, including estimated attorney's fees, conducted pursuant to this ARTICLE 11 or any judicial action initiated by the Association. The Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 59 2017109533 Page 65 of 87 Association may not use its annual operating income or reserve funds or savings to fund arbitration or litigation, unless the Association's annual budget or a savings account was established and funded from its inception as an arbitration and litigation reserve fund.
ARTICLE 12 GENERAL PROVISIONS
on or litigation, unless the Association's annual budget or a savings account was established and funded from its inception as an arbitration and litigation reserve fund.
ARTICLE 12 GENERAL PROVISIONS 12.01 Term. The terms, covenants, conditions, restrictions, easements, charges, and liens set out in this Declaration will run with and bind the Property, and will inure to the benefit of and be enforceable by the Association, and every Owner, including Declarant, and their respective legal representatives, heirs, successors, and assigns, for a term beginning on the date this Declaration is Recorded, and continuing through and including January 1, 2056, after which time this Declaration will be automatically extended for successive periods of ten years unless a change (the word "change" meaning a termination, or change of term or renewal term) is approved in a resolution adopted by Members entitled to cast at least 70% of the total number of votes of the Association, voting in person or by proxy at a meeting duly called for such purpose, written notice of which will be given to all Members at least 30 days in advance and will set forth the purpose of such meeting; provided, however, that such change will be effective only upon the Recording of a certified copy of such resolution. Notwithstanding any provision in this Section 12.01 to the contrary, if any provision of this Declaration would be unlawful, void, or voidable by reason of any Applicable Law restricting the period of time that covenants on land may be enforced, such provision will expire 21 years after the death of the last survivor of the now living descendants of Elizabeth II, Queen of England.
12.02 Eminent Domain. In the event it becomes necessary for any public authority to
xpire 21 years after the death of the last survivor of the now living descendants of Elizabeth II, Queen of England.
12.02 Eminent Domain. In the event it becomes necessary for any public authority to acquire all or any part of the Common Area for any public purpose during the period this Declaration is in effect, the Board is hereby authorized to negotiate with such public authority for such acquisition and to execute instruments necessary for that purpose. Should acquisitions by eminent domain become necessary, only the Board need be made a party, and in any event the proceeds received will be held by the Association for the benefit of the Owners. In the event any proceeds attributable to acquisition of Common Area are paid to Owners, such payments will be allocated on the basis of Assessment Units and paid jointly to the Owners and the holders of Mortgages or deeds of trust on the respective Lot.
12.03 Amendment. This Declaration may be amended or terminated by the Recording of an instrument executed and acknowledged by: (i) Declarant acting alone; or (ii) by the president and secretary of the Association setting forth the amendment and certifying that such amendment has been approved by Declarant (until expiration or termination of the Development Period) and Members entitled to cast at least 67% of the number of votes entitled to be cast by members of the Association. No amendment will be effective without the written consent of Declarant, its successors or assigns, during the Development Period.
12.04 Roadway and Utility Easements. Declarant reserves the right to create, locate, relocate, construct, erect, and maintain or cause to be created, located, relocated, constructed, Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 60
ght to create, locate, relocate, construct, erect, and maintain or cause to be created, located, relocated, constructed, Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 60 2017109533 Page 66 of 87 erected, and maintained in and on any portion of the Property then owned by Declarant or any streets maintained by the Association, or areas conveyed to the Association, or areas reserved or held as Common Area, roadways, sewer lines, water lines, electrical lines and conduits, and other pipelines, conduits, wires, and any public utility function beneath or above the surface of the ground with the right of access to the same at any time for the purposes of repair and maintenance.
12.05 Enforcement. The Association and the Declarant will have the right to enforce, by a proceeding at law or in equity, the Restrictions. The Association and/or the Declarant may initiate, defend, or intervene in any action brought to enforce any provision of the Restrictions.
Such right of enforcement will include both damages for and injunctive relief against the breach of any provision hereof. Every act or omission whereby any provision of the Restrictions is violated, in whole or in part, is hereby declared to be a nuisance and may be enjoined or abated by Declarant or the Association. Any violation of any Applicable Law pertaining to the ownership, occupancy, or use of any portion of the Property is hereby declared to be a violation of this Declaration and subject to all of the enforcement procedures set forth herein. Failure to enforce any right, provision, covenant, or condition set forth in the Restrictions will not constitute a waiver of the right to enforce such right, provision, covenants or condition in the
Failure to enforce any right, provision, covenant, or condition set forth in the Restrictions will not constitute a waiver of the right to enforce such right, provision, covenants or condition in the future. Failure of the Declarant or the Association to enforce the terms and provisions of the Restrictions shall in no event give rise to any claim or liability against the Declarant, the Association, or any of their partners, directors, officers or agents.
12.06 Higher Authority. The terms and provisions of this Declaration are subordinate to Applicable Law. Generally, the terms and provisions of this Declaration are enforceable to the extent they do not violate or conflict with Applicable Law.
12.07 Severability. If any provision of this Declaration is held to be invalid by any court of competent jurisdiction, such invalidity will not affect the validity of any other provision of this Declaration, or, to the extent permitted by Applicable Law, the validity of such provision as applied to any other person or entity. In addition, the invalid provision shall be deemed to be automatically modified, and, as so modified, to be included in this Declaration, such modification being made to the minimum extent necessary to render the provision valid.
12.08 Conflicts. If there is any conflict between the provisions of this Declaration, the Certificate, the Bylaws, or any Rules and Regulations adopted pursuant to the terms of such documents, the provisions of this Declaration, the Certificate, the Bylaws, and the Rules and Regulations, in such order, will govern.
12.09 Gender. Whenever the context so requires, all words herein in the male gender will be deemed to include the female or neuter gender, all singular words will include the
such order, will govern.
12.09 Gender. Whenever the context so requires, all words herein in the male gender will be deemed to include the female or neuter gender, all singular words will include the plural, and all plural words will include the singular.
12.10 Acceptance by Grantees. Each grantee of Declarant of a Lot or other real property interest in the Property, by the acceptance of a deed of conveyance, or each subsequent Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 61 2017109533 Page 67 of 87 purchaser, accepts the same subject to all terms, restrictions, conditions, covenants, reservations, easements, liens and charges, and the jurisdiction rights and powers created or reserved by this Declaration or to whom this Declaration is subject, and all rights, benefits and privileges of every character hereby granted, created, reserved or declared. Furthermore, each grantee agrees that no assignee or successor to Declarant hereunder will have any liability for any act or omission of Declarant which occurred prior to the effective date of any such succession or assignment. All impositions and obligations hereby imposed will constitute covenants running with the land within the Property, and will bind any person having at any time any interest or estate in the Property, and will inure to the benefit of each Owner in like manner as though the provisions of this Declaration were recited and stipulated at length in each and every deed of conveyance.
12.11 Damage and Destruction. The Association shall undertake the following actions subsequent to damage or destruction to all or any part of the Common Area covered by insurance: (a) Claims. Promptly after damage or destruction by fire or other casualty to
take the following actions subsequent to damage or destruction to all or any part of the Common Area covered by insurance: (a) Claims. Promptly after damage or destruction by fire or other casualty to all or any part of the Common Area covered by insurance, the Board, or its duly authorized agent, will proceed with the filing and adjustment of all claims arising under such insurance and obtain reliable and detailed estimates of the cost of repair of the damage. Repair, as used in this Section 12.ll(a), means repairing or restoring the Common Area to substantially the same condition as existed prior to the fire or other casualty.
(b) Repair Obligations. Any damage to or destruction of the Common Area will be repaired unless a Majority of the Board decides within 60 days after the casualty not to repair. If for any reason either the amount of the insurance proceeds to be paid as a result of such damage or destruction, or reliable and detailed estimates of the cost of repair, or both, are not made available to the Association within said period, then the period will be extended until such information and insurance proceeds have been made available.
(c) Restoration. In the event that it should be determined by the Board that the damage or destruction of the Common Area will not be repaired and no alternative Improvements are authorized, then the affected portion of the Common Area will be restored to its natural state and maintained as an undeveloped portion of the Common Area by the Association in a neat and attractive condition.
( d) Special Assessment. If insurance proceeds are paid to restore or repair any damaged or destroyed Common Area, and such proceeds are not sufficient to cover the cost
neat and attractive condition.
( d) Special Assessment. If insurance proceeds are paid to restore or repair any damaged or destroyed Common Area, and such proceeds are not sufficient to cover the cost of such repair or restoration, the Board will levy a Special Assessment, as provided in ARTICLE 6, against all Owners. Additional Assessments may be made in like manner at any time during or following the completion of any repair.
(e) Proceeds Payable to Owners. In the event that any proceeds of insurance policies are paid to Owners as a result of any damage or destruction to any Common Area, such Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 62 2017109533 Page 68 of 87 payments will be allocated based on Assessment Units and paid jointly to the Owners and the holders of Mortgages or deeds of trust on their Lots.
12.12 No Partition. Except as may be permitted in this Declaration or amendments thereto, no physical partition of the Common Area or any part will be permitted, nor will any person acquiring any interest in the Property or any part seek any such judicial partition unless the Property in question has been removed from the provisions of this Declaration pursuant to Section 10.04 above. This Section 12.12 will not be construed to prohibit the Board from acquiring and disposing of tangible personal property or from acquiring title to real property that may or may not be subject to this Declaration, nor will this provision be constructed to prohibit or affect the creation of a condominium regime in accordance with the Texas Uniform Condominium Act.
12.13 Notices.
(a) Notices to Any Party Other Than Declarant. Any notice permitted or required to be given to any person, other than Declarant, by this Declaration will be in writing
Condominium Act.
12.13 Notices.
(a) Notices to Any Party Other Than Declarant. Any notice permitted or required to be given to any person, other than Declarant, by this Declaration will be in writing and may be delivered either personally or by mail, or as otherwise required by Applicable Law.
If delivery is made by mail, it will be deemed to have been delivered on the third day ( other than a Sunday or legal holiday) after a copy of the same has been deposited in the United States mail, postage prepaid, addressed to the person at the address given by such person to the Association for the purpose of service of notices. Delivery by any other method shall only be effective upon receipt of delivery. Such address may be changed from time to time by notice in writing given by such person to the Association.
(b) Notices to Declarant. Any notice permitted or required to be given to the Declarant by this Declaration will be in writing and may be delivered either personally, by certified mail, postage prepaid, return receipt requested, by nationally recognized overnight delivery service such as FedEx, or as otherwise required by Applicable Law. If delivery is made by certified mail, it will be deemed to have been delivered on the third day ( other than a Sunday or legal holiday) after a copy of the same has been deposited in the United States mail, postage prepaid, addressed to the Declarant at the address set forth below. Delivery by any other method shall only be effective upon receipt of delivery. Declarant' s address may be changed from time to time by changing its registered office with the Texas Secretary of State.
Declarant' s address for notice purposes until changed as set forth in the preceding sentence is: Hwy 29 Ventures 2015, L.P.
Attn: President
ng its registered office with the Texas Secretary of State.
Declarant' s address for notice purposes until changed as set forth in the preceding sentence is: Hwy 29 Ventures 2015, L.P.
Attn: President 9111 Jollyville Road, Suite 212 Austin, Texas 78759 12.14 View Impairment. Neither Declarant nor the Association guarantee or represent that any view over and across the Lots, or any open space or Common Area within the Property will be preserved without impairment. Neither the Declarant, the ACC nor the Association Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 63 2017109533 Page 69 of 87 shall have any obligation to relocate, prune, or thin trees or perform other landscaping. The Association (with respect to any Common Area) will have the right to add trees and other landscaping from time to time, subject to Applicable Law. Such landscaping shall mature over time and the plants and trees will grow, however the Association will not be required to thin, shape, replace, or remove any landscaping or trees except as the Association may determine in its sole discretion. There shall be no express or implied easements for view purposes or for the passage of light and air.
12.15 Safety and Security. Each Owner and Resident of a Lot, and their respective guests and invitees, shall be responsible for their own personal safety and the security of their property within the Property and the Common Area. The Association may, but shall not be obligated to, maintain or support certain activities within the Property and the Common Area designed to promote or enhance the level of safety or security that each person provides for himself or herself and his or her property. However, neither the Association nor Declarant shall
ommon Area designed to promote or enhance the level of safety or security that each person provides for himself or herself and his or her property. However, neither the Association nor Declarant shall in any way be considered insurers or guarantors of safety or security within the Property or the Common Area, nor shall either be held liable for any loss or damage by reason of failure to provide adequate security or ineffectiveness of security measures undertaken. No representation or warranty is made that any systems or measures, including security monitoring systems or any mechanism or system for limiting access to the Property or the Common Area, cannot be compromised or circumvented; or that any such system or security measures undertaken will in all cases prevent loss or provide the detection or protection for which the system is designed or intended. Each Owner acknowledges, understands, and shall be responsible for informing any Residents of such Owner's Lot that the Association, its Board and committees, and the Declarant are not insurers or guarantors of security or safety and that each person within the Property assumes all risks of personal injury and loss or damage to the property, including any residences or Improvements constructed upon any Lot and the contents thereof, resulting from acts of third parties. Each Owner and Resident of a Lot, and their respective guest and invitees, by entering the Property acknowledges that the Property is accessed from public roads and contains public roads and, further, that such public roads are not restricted in any way and may be accessed by the public as a whole.
12.16 Declarant's Right to Use Similar Name. The Association irrevocably consents to
ds and, further, that such public roads are not restricted in any way and may be accessed by the public as a whole.
12.16 Declarant's Right to Use Similar Name. The Association irrevocably consents to the use by any other profit or nonprofit corporation that may be formed or incorporated by Declarant of a corporate name that is the same or deceptively similar to the name of the Association, provided one or more words are added to the name of the other corporation to make the name of the Association distinguishable from the name of such other corporation.
Within five days after being requested to do so by the Declarant, the Association shall sign all letters, documents, or other writings as may be required by the Texas Secretary of State ( or any other Governmental Authority) in order for any other entity formed or incorporated by the Declarant to use a corporate name that is the same or deceptively similar to the name of the Association.
[SIGNATURE PAGE FOLLOWS] Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 64 2017109533 Page 70 of 87 EXECUTED to be effective on the date this instrument is Recorded.
THE STATE OF TEXAS § § COUNTY OF TRAVIS § DECLARANT: HWY 29 VENTURES 2015, L.P., a Delaware limited partnership By: Sentinel Lively GP LLC, a Texas limited liability company, its Acting General Partner David Nairne, Vice President This instrument was acknowledged before me on the 2,0 11 David Nairne, Vice President of Sentinel Lively GP LLC, a Texas limited liability company, the Acting General Partner of Hwy 29 Ventures 2015, L.P., a Delaware limited partnership, on behalf of said limited liability company and limited partnership.
(SEAL) After Recording Return To: Alex C. Oliver
ing General Partner of Hwy 29 Ventures 2015, L.P., a Delaware limited partnership, on behalf of said limited liability company and limited partnership.
(SEAL) After Recording Return To: Alex C. Oliver Cramer Weatherbie Richardson Oliver LLP 2301 S. Capital of Texas Hwy, Bldg J-102 Austin, Texas 787 46 email: [email protected] ,,111r,,, Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Page 64 2017109533 Page 71 of 87 CONSENT OF MORTGAGEE The undersigned, being the sole owners and holders of the lien created by the Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing dated October 1, 2015, recorded under Document Number 2015088165 of the Official Public Records of Williamson County, Texas, securing a note of even date therewith, executes this Declaration solely for the purpose of evidencing consent to this Declaration and recordation of same.
THE STATE OF TEXAS § § COUNTY OF TRAVIS § GIBRAL T US, INC., a Colorado corporation 369 TERMINAL HOLDINGS, LTD., a British Columbia corporation n/" This instrument was acknowledged before me this ~"day of November, 2017 by David Nairne, as an authorized signatory of Gibralt US, Inc., a Colorado corporation, on behalf of said corporation.
(SEAL) fr:·-::i::?f!%, Notary Public, State of Texas
Gibralt US, Inc., a Colorado corporation, on behalf of said corporation.
(SEAL) fr:·-::i::?f!%, Notary Public, State of Texas 5;,J,;fRt;~%," Notary ID 131095054 Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Consent of Mortgagee 2017109533 Page 72 of 87 THE STATE OF TEXAS § § COUNTY OF TRAVIS § 1-"""Nairne, as an authorized signatory of 369 Terminal Holdings, Ltd., a British Columbia corporation, on behalf of said corporation.
(SEAL) Notary Puhlic Signature Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Consent of Mortgagee 2017109533 Page 73 of 87 CONSENT OF MORTGAGEE The undersigned, being the sole owner and holder of the liens created by the Deed of Trust and Security Agreement dated January 6, 2017, recorded under Document Number 2017003245 of the Official Public Records of Williamson County, Texas, and the Second Lien Deed of Trust and Security Agreement dated January 6, 2017, recorded under Document Number 2017003246 of the aforementioned records, each securing a note of even date therewith, executes this Declaration solely for the purpose of evidencing consent to this Declaration and recordation of same.
THE STATE OF TEXAS COUNTY OF § § § FC-IV FINANCIAL LLC, a Delaware limited liability company By: FC-IV MGMT, LLC, a Texas limited liability company, its Ma day of "--------'--""5L..K2017 by
Delaware limited liability company By: FC-IV MGMT, LLC, a Texas limited liability company, its Ma day of "--------'--""5L..K2017 by limited liability ,company, Manager of FC-IV FINANCIAL LLC, Delaware limited liability company, on behalf of said limited liability compan· (SEAL) CAROLINE BAKER MY COMMISSION EXPIRES MayS,2019 Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Consent of Mortgagee 2017109533 Page 74 of 87 EXHIBIT II A" LEGAL DESCRIPTION OF THE PROPERTY Being all of that certain 437.04 acre tract of land described on Exhibit II A-1" attached hereto SA VE AND EXCEPT The following interests in that certain 1.00 acre tract of land described in Exhibit II A-2" attached hereto: An undivided one-eighth (l/8th) interest therein conveyed by Grantor to Kristi Allen by Special Warranty Deed dated September 8, 2014 and recorded in the Official Public Records of Williamson County, Texas as of or about even date herewith; An undivided one-eighth (l/8th) interest therein conveyed by Grantor to Andrew Bell by Special Warranty Deed dated September 8, 2014 and recorded in the Official Public Records of Williamson County, Texas as of or about even date herewith; An undivided one-eighth (1/8th) interest therein conveyed by Grantor to Aaron Googins by Special Warranty Deed dated September 8, 2014 and recorded in the Official Public Records of Williamson County, Texas as of or about even date herewith; An undivided one-eighth (l/8th) interest therein conveyed by Grantor to Justin Lang by Special Warranty Deed dated September 8, 2014 and recorded in the Official Public Records of Williamson County, Texas as of or about even date herewith; and
erein conveyed by Grantor to Justin Lang by Special Warranty Deed dated September 8, 2014 and recorded in the Official Public Records of Williamson County, Texas as of or about even date herewith; and An undivided one-eighth (l/8th) interest therein conveyed by Grantor to Brad Zamzow by Special Warranty Deed dated September 8, 2014 and recorded in the Official Public Records of Williamson County, Texas as of or about even date herewith.
Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Exhibit II A" 2017109533 Page 75 of 87 EXHIBIT" A-1" LEGAL DESCRIPTION OF 437.04 ACRES [see attached six (6) pages] Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Exhibit "A-1" Profumcmal l~nd Surveying, Inc.
Surveying and Mapping 437.04 ACRES GREENLEAF FISK SURVEV 1 ABSTRACT NO, 6~ BARTHOLEMEW MANLOVE SURVEY, ASSTAACT NO. 420 WlLUAMSON COUNTY, TEXAS 2017109533 Page 76 of 87 Of'floe: 512"443-1724 Fax: !.'H i .. a.aG..0943 3500 Mo~ll laM Ausiln, ·rexas 18144 A DESCRIPTION OF 437,04 ACRES (APPROXIMATELY 19,0311576 SQ. FT.)i IN THE GREENLEAF FISK SURVEY ASBSTRACT NO. 51 WILUAMSON COUNTY, TFJ<AS AND THE BARTHOLEMEW MANLOVE SURVEVf ABSTRACT NO. 420, WILLIAMSON COUNTY, TEXAS, BEING All OF A 3!Y STRIP {FIRST TRACT) ANO All OF A 437.64 ACRE TRACT (SECOND TRACT), DESCRIBED IN A SPECIAL WARRANTY DEED TO DON H. LJVELY FAMILY PARTNERSHIP, LTD., DATED DECEMBER 29, . 1998 ANO RECORDED IN DOCUMENT NO. 9901118 OF THE OFFICIAL RECORDS OF WILLIAMSON COUNTY, TEXAS AND BEING ALL OF A 2.84 ACRE TRACT DESCRIBED IN A SPECIAL WARRANTY DEED TO DON K LIVELY FAMILY PARTNERSHIP 1 lT0. 1 DATED JULY 3, 2013 AND RECORDED IN DOCUMENT NO. 2013063744 OF THE OFFICIAL PUBLIC RECORDS OF WILUAMSON COUNTY, TEXAS; SAID 437.04 ACRES BEING MORE PARTlCULARLY
DON K LIVELY FAMILY PARTNERSHIP 1 lT0. 1 DATED JULY 3, 2013 AND RECORDED IN DOCUMENT NO. 2013063744 OF THE OFFICIAL PUBLIC RECORDS OF WILUAMSON COUNTY, TEXAS; SAID 437.04 ACRES BEING MORE PARTlCULARLY DESCRIBED BY METES ANO BOUNDS AS FOU.OWS: of Staie Highway 29 (rlgtrt,-0f.:way width varies), for the northeast oo~r hereot, being the northeast e:orner of said 30' mp; and being the northwest oomer of a 491.95 acre tracl dascribed in Volume 5701 Page 483 of the Deed Records of Wllliamson County, Taxaa-; THSNCE, leaving said State Highway 29, with the west nne of said 491.96 acre tract, as found fenced, occupied and used upon the gro1md~ In part befog the tract, the following eighteen (18) courses and distances: 1. South 21"44'5~ Ea.st, a distanoo of 1251.15 feet to a 1/2" rabar with northeast oorner of said 431.64 acre tract; 2. South 12"17'52~ West. a dlstanc:e of 47.71 feat to a 1/211 rebar wlth 11Chaparrar1 cap set; Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Exhibit "A-1" 2017109533 Page 77 of 87 Page2 ffCh~pam:1.d1r cap set; 4. South 20J!j38146fj East, a distan~ of 385.75 feet to a 1/2" rebar with o1chaparral't cap set; 5. South 20"36'3P Ea:1ti a distance of ;no.61 feet to a 1/2fl rel:mr with 1'Chaparrat11 cap set; 6, Sooth 20"M3:145.11 East, a distance of 851.86 mm to a 112° rebar with 1'Chaparraf' cap~; 7, South 20',)59'2011 East. a dlst~nce of 822.02 feet to a t/2n rabar with llChaparral" cap ~t;
t11 cap set; 6, Sooth 20"M3:145.11 East, a distance of 851.86 mm to a 112° rebar with 1'Chaparraf' cap~; 7, South 20',)59'2011 East. a dlst~nce of 822.02 feet to a t/2n rabar with llChaparral" cap ~t; 8. Sout1 21.i49•53m Eam:1 a distance of 493.25 feet to a 112"' rebar with "Chaparral11 cap set; 9. South 21"3t:V00" East1 a distance of 253,35 feet to a 1/2° rebar with 11Chaparrar cap set; 1CtSouih 21"3511711 east, a dis,tanca of 184.35 feet to a 112" rebar with "Chaparral'' cap set; 11. South 21 "23105n Eait, a dl$tance of 002,59 met to a 112.i rebar With 11Chap1:uYalif. cap Ht; 12.South 21"27'49'r East1 a distance of 804.43 feet to a 11:2u rebar with llChap,analt1 cap set; 14.South 21"22'39ll East, a distance of 235.69 feet to a 112" rebar with uchaparrar' cap set; nchaparral1' oop set; 16,South 21"W53'' East, a distance of 338.11 feet to a 112u rebar with 11Chaparral'1 cap $et; 17,Sou:th 09"27'5711 East, a dlsta.nre of 103.90 met ro a 1/211 rebar with riChaparrar1 cap $et 18.South 21li00'01#, Em¼ti a distance of 141. 14 feet to a 11:21' rebar with "Chaparra(ffi cap set for the. wuthal:lst oorn&r of said 437.64 acre tract\ Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Exhibit II A-1" 2017109533 Page 78 of 87 being in the west line of sald 491.95 acre tract and also being an angle pofint in the north UM of an 00,9157 acra tract described In Document No.
2011081794 of the Official PubUc Reoor~ of Williamson County, Te:xasi for the southeast comer hereof; THENCE South 6ft'12r32" West1 with the south line of said 437J34 acre tract, in
ed In Document No.
2011081794 of the Official PubUc Reoor~ of Williamson County, Te:xasi for the southeast comer hereof; THENCE South 6ft'12r32" West1 with the south line of said 437J34 acre tract, in part being the north line of said 80.Q15'/ acrtiil tract, and In part being the north l'ine of a 121.45 acre tract d~tlbed In in a deed to Texas Parks and Recreation foundation, of record In Dooument Na. 2008092876 of the Official Public Records of WillmmizWn Coumy1 Texas, a dl'stEmoe of 1589.92 feat to a 1/2" rebar wtth "Ch~fH!lirral14 cap set fn the oonteriins of the south fork 9f the S-an Gabrlel River.
THENCE with the centerline of th~ south fork of the San Gabriel River, contim.dng wfth the south line of said 431J34 1:1ore tract; in part being the oorth lme of sald 121.45 acre tram, and 111 part being the north line of a 200.57 acre tract described in Oooumem No, :201$115216 of the Official Public Records of Wdiiamson County, Texas1 the following five. (5) courses and distan~: 1. North 7St;03151u W~t. a. distance of 516.(:)5 feet to a 1/211 rebar wfth 11Chaparra1r. cap set; ' 2. North 83"'25'10" Wett a dl$tance of 471.95 f~t to a 1/24 ' rebar with uchaparraJ1 cap set; 3, South 88"03144'4 West, a distance of S6.03 feet to a 1/2'1 rebar with ,ichapamlit, cap set fur the r'lorthwest oorner of said 121.45 acre troot, being the northeast corner of ~id 206.57 acre tract; 4, South 88"0314411 West, a distance of 67 A4 feet to a 112'f r~bar wffll "Chaparral" cap set; 5, South 75"'21128" West, a distance. of 56,85 met ro a 1/2m rebar Vllfth uchaparral11 cap set for the $outhwest comer cl smd 437 .64 acre fract, being an angle point in the north line of said 208.57 acre tract and also
et for the $outhwest comer cl smd 437 .64 acre fract, being an angle point in the north line of said 208.57 acre tract and also subdM$ion of reoord In Cabinet S, Side 218 of the Plat Records of WSliamson County, Texas; for the southwest comar hereof; Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Exhibit "A-1" 2017109533 Page 79 of 87 Page.4 Lots. 10S.. 115, said Gab rielsmOverlook Section One* the following mo (2) oourses and diffl'anooi: 1, North 21,,36'0911 West,~ distance of 1228.40feetto a 112n rebarfound; 2. North 18"33'0ft' West a dfltanoo of 381.17 feat to a 2# metal fence post found for an angle point in east Hne of said Lot 108, being the southem Cotner of a 49.404 acre tract deicrlboo. in Document No. 2013103448 of the Official Publk:: Reicords ofWifliamson County, Texa~; THENCE with. the west line of said 437 .64 aore tractj same being the east lme of said 49..404 acre tract, the f-Otlowlng seven (7) oourses and distances: 1, North 18°1t49'11 West, a distarn:re of 212.09 feet to a 211 metal fence po$!
found; 2. North 20"4Er27" West, a dis~oo of 758.41 fast to a 2" metal fence post: 3, North 201}52126w WMt, a distance of 600,26 fe$t to a. 112:a rsbarfound; 4, North 21 /j,32'38rn West1 a distance. of 344.62 feet to a 1/2tt rebar found; 5. North 20"28'31" West; a di:staIJce of 177, 79 feet to a 112" reba:r found; 7. North 21 °11 '57'1 W~ a dlmnce of 271 Jl2 feet to a 2" metal fence p0$!
di:staIJce of 177, 79 feet to a 112" reba:r found; 7. North 21 °11 '57'1 W~ a dlmnce of 271 Jl2 feet to a 2" metal fence p0$!
THENCE with the west line m safd 437.84 aor9' tract, same bsing the east line of lots 7 .. 24 of satd Gabriels-Overlook Seci:ion One. the following seven (7) courses and dlsianc:es: · 1. North 22;;5212211 Wast'; a dismn-00 of 44A9 feet to a 1/211 rebar with ''Chaparralu cap ~; 3, North 19"27'58" We$t, a dimance of 302.58 feat to a 1/21t r~bar with "Chaparral" cap set; Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Exhibit "A-1" 2017109533 Page 80 of 87 5. North 084155154" West, a distanre of 832,85 feet to a 112" rebar INith 11Chaparral11 cap set; a, Not1h 08"'2510511 'West, ~ di8tance of 789.61 feet ro a 1/21 rebar found; 7. North OSQ49'1511 West, a distance of 328.34 feet to a 1/21t tebar found for the m:irlhwesl comer-of said 431.64 acre tract, being the northe8$t comer of $aid lot 1 and wso being !l:trt angle point In the sooth ine of Lot 6, sard hereof; THENCe with the north fine of said 437 JW acre tract, in part being the south Un& of Lem 6 and 6 of said Gabriets-Ovarlook Section One, and in part being tha $OUth line of said 48.567 acre tmci1 the foilowing five (5} oourses and distanooa: 1, North 85[;0311011 Eastr a distance of 180A3 feet to a 1/~ rebar found; 2, North 85r,01'20u East a d!smnoo of 357.83 feat ro a 1/Z' reoor found; 3. North 82,;1910011 Eastj a distance of 113.06 feet to a 1 /21' rebar with "Pate Surveyors" cap found; 4. North 82"'13'591
nd; 2, North 85r,01'20u East a d!smnoo of 357.83 feat ro a 1/Z' reoor found; 3. North 82,;1910011 Eastj a distance of 113.06 feet to a 1 /21' rebar with "Pate Surveyors" cap found; 4. North 82"'13'591 ' Eam1 a distance of 348.44 feet to a 112n rebar w:tth "Pate Sur,u'£;yore" cap found; 5. North 83,.06'231tt East1 a di$fam::e of 1129.71 feet to a 112" rebar with 11Chaparrar cap set for the southwest corner of $aid 2.84 acre tract, from which a 1/2.'r reb1r with cap found near a fence oomer post in ihe north line strip and also being the southeast oomer of said 2.64 acre tract, beam North 83"'06'23" Eaat, a di$tanoo of95.70 feet; THENCE with the west line of sakl :2J34 a<:te tract, the fonowing threa (3) courses and distances: 11Ch~parral'1 cap seit; 2. North 22Q11'1'1' West ~ distanoo of 670.90 feet to a 112n rebar wtth "Chaparral" cap set 3. North 22 .. 44'1T' West, a d1stanoo of 496.30 feet to a 112/' rebar wHh 11Chaparrar cap :set on the south rlght..rn~way lioo of said State Highway 29, being the northwest corner of said 2.64 acre tract, for ihe northernmost northwest comer hereof; Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Exhibit II A-1" 2017109533 Page 81 of 87 THENCE witJi the sooth right..-Of..way ffn,e, of State Highway :29, in part being the oort:h lined stllid 2.64 acre tract, and in pa.rt bmng the oorttl tlrm said 30 foot strip, wnh a omve to the righti having a radius of 5679.58 foot, a delta angle of Ea:st, a distance of 150.69 feet to the POINT OF BEGINNING. containing 437.04 oores of !'and, more or fess.
elta angle of Ea:st, a distance of 150.69 feet to the POINT OF BEGINNING. containing 437.04 oores of !'and, more or fess.
Surveyed on the gromld AprU 25, 2014, ~rfng basis: The Texas Coordinate Systam of 19831 Central Zone, based 011 GPS solutions from the National Geodetic suway (NGS) On:~jine PooloonJng User Service (OPUS).
Attachme~:. Drawing 143,-034-BASE.
;4 "7/z1)f Paul L Easley Registered Pro:fasskmal Land Surveyor State of Texas No.4432 TJC..B.P.LS. firm No. 10124500 Declaration of Covenants, Conditions and Restrictions for Lively Ranch-Exhibit" A-1" 2017109533 Page 82 of 87 EXHIBIT "A-2' LEGAL DESCRIPTION OF 1.00 ACRE [see attached three (3) pages] Declaration of Covenants, Conditions and Restrictions for Lively Ranch- Exhibit "A-2" 2017109533 Page 83 of 87 Profenional Land Surveying, loo.
Surveying and Mapping 1.00 ACRE BARTHOLEMEW MANLOW SURV!Y, ABSTRACT NO. 420 WU.UAMSON COUNTY. TEXAS Office: 612-44$-1124 Fwi:512~389--0043 3500 MoCall t~ Auatlri, Texa£i 787 44 fl A DESCRIPTION Of 1.00 ACRE (APPROX!MATEt. Y 431680 SQ. FT~) OF LAND, IN THE BARTHOLEMEW MANLOVE SURVEY, ABSTRACT NO. 420, WILLIAMSON COUNTY, TEXAS, BEING A PORTiON OF THAT TRACT OF LAND CALLED 437.64 ACRES (SECOND TRACT) IN A SPECIAL WARRANTY DEED TO DON H. llVELY FAMILY PARTNERSHIP, LTTlt DATED DECEMBER 29f 1998 ANO RECORDED lN DOCUMENT NO. 9901719 OF THE OFFICIAL RECORDS OF WILLIAMSON COUNTY 1 TEXAS; SAID 1.00 ACRE BEING MORE PARTICULARl Y DESCRIBED BY METES AND BOUNDS AS FOLLOWS: BEGINNING at a 1/Z" rebar with 11Chapam'.dl'I cap set on the wMt line of said 431.64 oore tract fur the northwest oomer, being on the east line of Lot 115l
Chapam'.dl'I cap set on the wMt line of said 431.64 oore tract fur the northwest oomer, being on the east line of Lot 115l an angle point in the eal$t line of said Gabriels-Overtook Seooon One beam North 21 "'3510fr Woot1 a dl1:1mnca of 935.72 feat; THENCE, leaving said Gabrlels,,-Overlook Section One and cr0$$irlg &aid 437.64 1. North 66Q24'51" East, a distance of 149.86 feet to a 112.'' rebar with mcnaparral'' cap 1et for tile northeam comer hereof; 2. Sooth 21 [1}35109" East, a distanoo of 290.138 feet to a catoolated point, for the southeast comer hereof; 3. South aa24J!W1 W$t, a distance of 149.86 feet to a calculated po1nt in center of the south fork of the San Gabriel Rlv&r for the 101.tthWffflf COl'l'ler of said 437.64 acre tract, being the southeast oomer of said Lot 115, and also being an angle point 111 the north line of a 206.51 a.om tract described in Doctlment No. 2013115216 of the Official PubliCt Records of Williamson Counfy1 Texas, fortha smlthwest oomer hereof; Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Exhibit II A-2" I i 2017109533 Page 84 of 87 being the eaS,t line of lot 1151 a distance of 290.68 feet t:n the POINT OF BEGfNNING, conmfnfng 1,00 Acre of land, more or Jass.
Surveyed on the ground AprU and September, 2014.
Bearing basis: The Texas Coon::!inate Syswm of 1983, Central Zone, based on GPS solutions frQm the National G~etic Survey (NGS) On"llne Positioning User SetvirAJ (OPUS).
Attachments; Drawing 143,.034-MUD DL
Texas Coon::!inate Syswm of 1983, Central Zone, based on GPS solutions frQm the National G~etic Survey (NGS) On"llne Positioning User SetvirAJ (OPUS).
Attachments; Drawing 143,.034-MUD DL Paul L. Easley Registered Professional Land surveyor State of Texas No.4432 T.X.B,P.LS. Firm No.10124500 Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Exhibit "A-2" LOT 114 LOT 115 206.57 ACRES CffY OF GEORGETOWN (2013115216) 2017109533 Page 85 of 87 1" "" HID' tm~D 0 1/2" REBAR WITH "ct!APAAAAL" CAP :SET A CAf.CW . .A"l'IID POil-IT 437,84 ACRES SECONO TRAar DON H. LIVELY FAMILY PAfITNf::RSHIP, LTD.
(9901719) f.!E'ARINQ aA,i,iS! ii£ TEXAS COOl'IDlNAnt SYS'raM OF 1983 COORAL 20!'-E, FR® THE NATIONAL GlOtll:'.'i1C SURI/EY (NGS) OW-lJ!'15: ATIACHMOOS: ME:'f'fS ANO BOUNl)S DIE:SC~lP'nOJ.l 143-034-MUD OL Declaration of Covenants, Conditions and Restrictions for Lively Ranch -Exhibit "A-2" Chicago Tffle 1501 s. Mopac, Suite 130 Austin, TX 78746 2017109533 Page 86 of 87 Chicago Trtl~ . ..
ELECTRONICALLY RECORDED OFFICIAL PUBLIC RECORDS 2017109533 Pages: 87 Fee: $361.00 11/29/2017 12:15 PM Nancy E. Rister,County Clerk Williamson County,Texas 2017109533 Page 87 of 87