After Recording Return To: Blue Rhodes, PLLC Attn: Michael N. Blue 1120 S. Capital ofTexas Hwy Bldg. 2, Suite 270 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR OAK CREEK 64 PGS REST 2015046528 This Declaration of Covenants, Conditions and Restrictions for Oak Creek (this "Declaration") is made by SENTINEL/COTTER LEANDER LLC, a Texas limited liability company (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").
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.
n 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 for personal and family purposes as determined by the Association and is hereby designated as Common Area.
Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page I "Approved Lots" means the number of Lots that are currently contemplated to become subject to the terms and provisions of this Declaration. The Approved Lots for the purpose of this Declaration is 650. 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.
"Architectural Control Committee" or "ACC" means the committee created pursuant to this Declaration to review and approve 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 until the Declarant has assigned its right to appoint and remove all ACC members to the Association
modeling of any Improvements on a Lot. As provided in ARTICLE 7 below, the Declarant acts as the ACC until the Declarant has assigned its right to appoint and remove all ACC members to the Association in a Recorded a written instrument.
"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 Oak Creek 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 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 ofthe 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.
"Bylaws" means the Bylaws of the Association as adopted and as amended from time to time.
ter services, and any other services of any kind or nature which are considered by the Board to be beneficial.
"Bylaws" means the Bylaws of the Association as adopted and as amended from time to time.
"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.
"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. 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.
The Community Manual may include the Bylaws, Rules and Regulations and other policies governing the Association. The Community Manual may be amended, from time to time, by the Declarant during the Declaration of Covenants, Conditions and Restrictions for Oak Creek -Page 2 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, alarm/monitoring, internet, telephone or other lines, conduits, wires, amplifiers, towers, antennae, satellite
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 SENTINEL/COTTER LEANDER LLC, a Texas limited liability company, its duly authorized representatives or its successors or assigns; provided that any assignment(s) of the rights of SENTINEL/COTTER LEANDER LLC, 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 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. Notwithstanding anything in this Declaration to the contrary, Declarant will have no obligation to establish Design Guidelines.
"Development Period" means the period of time beginning on the date when this Declaration has
ing in this Declaration to the contrary, Declarant will have no obligation to establish Design Guidelines.
"Development Period" means the period of time beginning on the date when this Declaration has been Recorded, and ending at such time as Declarant no longer owns any of the Property, unless earlier terminated by 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.
"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.
"Homebuilder" means a professional homebuilder who acquires a Lot for the construction of a single-family residence for resale to a third party.
"Improvement" means 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, screening walls, retaining walls, stairs, patios, decks, 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
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.
Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 3 "Majority" means more than half. A reference to "a majority of Owners" in any document or applicable law means owners of at least a majority of the Lots, unless a different meaning is specified.
"Manager" has the meaning set forth in Section 4.05(h).
"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
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 I 0.03 and Section I 0.04 of this Declaration. The name of the Property is Oak Creek. The Property is located on the real property described on Exhibit A, and includes every lot and any common area thereon.
"PUD" means the Oak Creek Planned Unit Development for the Property as approved by the City of Leander and set forth in the Oak Creek PUD Planned Unit Development approved on July I7, 20 I4 in Ordinance No I4-039-00.
"Record, Recording, Recordation and Recorded" means 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, PUD, or in any rules and regulations promulgated by the Association pursuant to this Declaration, as adopted and amended from time to time. See Table I below for a summary of the Restrictions.
"Rules and Regulations" means any instrument, however denominated, which is adopted by the Board for the regulation and management of the Property, including any amendments to those instruments.
"Solar Energy Device" means a system or series of mechanisms designed primarily to provide
y the Board for the regulation and management of the Property, 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.
Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 4 "Underwriting Lender" means Federal Home Loan Mortgage Corporation (Freddie Mac), Federal Housing Administration (HUD/FHA), Federal National Mortgage Association (Fannie Mae), or U. S. Department of Veterans Affairs (VA), singly or collectively. The use of this tenn and these institutions may not be construed as a limitation on an owner's financing options nor as a representation that the Property is approved by any institution.
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.
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.
PUD (Recorded) Governs the lot layout, building materials, setback requirements and certain construction requirements for the Property.
corded)) construction of Improvements and modifications thereto.
PUD (Recorded) Governs the lot layout, building materials, setback requirements and certain construction requirements for the Property.
Rules and Regulations (if adopted, Regulates the use of property, activities, and conduct within (Recorded) the Property.
Board Resolutions (adopted by the Establishes rules, policies, and procedures for 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 the All of the Property shall be owned, held, encumbered, leased, used, occupied, and enjoyed subject to the following limitations and restrictions: 2.01 General.
(a) Conditions and Restrictions. All Lots within the Property will be owned, held, encumbered, leased, used, occupied and enjoyed subject to the Restrictions.
(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 such ordinances and regulations. 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,
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, Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 5 requirements, regulations or encumbrances 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 (collectively, the "Conceptual Plans") are conceptual in nature and are intended to be used for il1ustrative 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 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 makes any representation or warranty concerning such land uses and Improvements shown on the Conceptual Plans or otherwise planned for the Property and it is expressly agreed and understood that no Owner wiii be entitled to rely upon the Conceptual Plans 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 wiii likely extend over many years, and agrees that the Association wiii not engage in, or use Association funds to support, protest, chaiienge, or make any other form of objection to development of the Property or changes in the Conceptual Plans as they may be amended or modified from time to time.
iation funds to support, protest, chaiienge, or make any other form of objection to development of the Property 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 shaH 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 the applicable zoning ordinances; (ii) the business activity is conducted without the employment of persons other than the residents of the home constructed on the Lot; (iii) 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 smeii from outside the residence; (iv) the business activity conforms to all zoning requirements for the Property; (v) the business activity does not involve door-to-door solicitation of residents within the Property; (vi) 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; (vii) 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
o business activity is being conducted; (vii) 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 (viii) 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 wiii 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, Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 6
2 month period or more than one garage sale or yard sale every 120 days. The Association may, but shall not be obligated to, Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 6 sponsor, organize or otherwise provide for a community wide garage sale. 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 the Common Area and any Lot 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 (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
pproval 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 any portion of a Lot that, in the opinion of the ACC, 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 and 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
s, 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 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 Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 7 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).
2.09 Animals- Household Pets. No animals, including 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,
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 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 9:00p.m and 7:00a.m. on a regular basis) to
o 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 9:00p.m and 7:00a.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. No rubbish or debris of any kind may be placed or permitted to accumulate on or within a Lot, 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. During the Development Period, the Declarant, or its assigns, shall, in its sole discretion, determine whether a
nd repair and in a well-maintained, safe, clean, and attractive condition at all times. During the Development Period, the Declarant, or its assigns, shall, in its sole discretion, determine whether a violation of the maintenance obligations set forth in this Section 2.11 has occurred. After the Development Period has expired, the ACC, in its sole discretion, shall determine whether a violation of the maintenance obligations set forth in this Section 2.11 has occurred. Such maintenance includes, but is not limited to the following, which shall be performed in a timely manner, as determined by the Declarant or ACC, as applicable, in its sole discretion: (a) Prompt removal of all litter, trash, refuse, and wastes.
(b) Lawn mowing.
Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 8 (c) Tree and shrub pruning.
(d) Watering.
(e) Keeping exterior lighting and ·mechanical facilities in working order.
(f) Keeping lawn and garden areas alive, free of weeds, and attractive.
(g) Keeping planting beds free of turf grass.
(h) Keeping sidewalks and driveways in good repair.
(i) Complying with all government, health and police requirements.
U) Repainting of Improvements.
(k) Repair of exterior damage, and wear and tear to Improvements.
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.
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 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") wiii 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 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.
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 principal single-family residence constructed on the Lot, with no part of the Permitted Antenna any higher than the lowest point of the roofline 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 lowest point of the roofline and screened from view of adjacent Lots and the street. In no event will front yard or street side (if a corner Lot) antenna be permitted. The ACC may, from time to time, modify, amend, or supplement the rules regarding installation and placement of Permitted Antennas.
Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 9 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 lacement.
2.15 Signs. Unless otherwise prohibited by applicable law, no sign of any kind may be
ed by the ACC from time to time. Please contact the ACC for the current rules regarding installation and lacement.
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 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 displayed more than ten days in any calendar month, 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 I o•h 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
e 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) permits as may be required by legal proceedings; and (h) 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 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.
Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 1 0 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
ge 1 0 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 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: (a) the location of the Freestanding Flagpole to be installed on the Lot; (b) the type of Freestanding Flagpole to be installed; (c) the dimensions of the Freestanding Flagpole; and (d) 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 Disolav. 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;
e 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 any 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-l 0 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; (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) 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; (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
n 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 eliminate noise from flapping against the metal of the Permitted Flagpole or Freestanding Flagpole.
Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page II 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 .1 7.
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,
oval 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 (a) the surface area of the pad on which the outbuilding is placed is less than or equal to 80 square feet, (b) 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'), (c) the outbuilding is constructed within an area completely enclosed by a privacy fence of at least six feet ( 6 ') in height, (d) 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 (e) 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 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, 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
oats, tractors, campers, 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 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 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, 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. Compost piles and facilities for hanging, drying or airing clothing or household fabrics shall not be permitted in the yard of any Lot.
No garage shall be permanently enclosed or otherwise used for habitation.
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 Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 12 visible from any other portion of the Property or adjoining Lot for a period not to exceed (i) 48
d in such manner as to be Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 12 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 basketball goals are permitted if approved by the ACC. Basketball goals must be properly maintained and painted, with the net in good repair.
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. 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 Restrictions, and the Owner whose violation has been so remedied shall be personally liable to the Association for all costs and expenses of effecting (or attempting to effect) such
the provisions of Restrictions, and the Owner whose violation has been 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 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 indemnify 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,
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, which approval may be arbitrarily withheld. 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 Occupant of such Owner's Lot, or any guest or invitee of such Owner. The full cost of all repairs of such damage shall be an 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 6.1 0 of this Declaration.
2.26 No Warrantv of Enforceabilitv. 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 Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 13 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. 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
rom.
2.27 Party Wall Fences. 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 error in construction, the Party Wall is nevertheless deemed to be on the dividing line for 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.
(c) Maintenance Costs. The Owners of the adjoining Lots share equally the costs of repair, reconstruction, or replacement of the Party Wall, including due to any damage or destruction 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 responsible for
, 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 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 7:00A.M. until 7:00P.M.
r 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 7:00A.M. until 7:00P.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 permissible at the sole discretion of the ACC. If allowed, these facil'ities must be properly sited and screened so as to minimize the visual and audio impact Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 14 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
thin 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 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: (a) it is diseased; (b) it is dead; (c) it is unsafe; (d) it needs to be removed to promote the growth of other trees; or (e) the ACC has approved removal of the tree. 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, cardboard, and similar items may not be used as temporary window coverings. No reflective screens, awnings, reflective
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 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 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
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 Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 15 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.
ARTICLE3 CONSTRUCTION RESTRICTIONS 3.0 I 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 shaH comply with the Restrictions and ail applicable laws, statutes and ordinances relating thereto, unless a variance is obtained from the ACC and any necessary Governmental Authority.
3.03 Masonry Reguirements. That portion of the exterior walls of the main residence building constructed on any Lot which are within eight feet (8') from the ground level of such Lot shall be composed of such materials as required by the Design Guidelines. The minimum masonry
sidence building constructed on any Lot which are within eight feet (8') from the ground level of such Lot shall be composed of such materials as required by the Design Guidelines. The minimum masonry requirement specified shaH apply to the lower floor only for a two-story residence. Masonry or masonry veneer includes stucco, ceramic tile, clay, brick, rock, fiber cement and all other materials commonly referred to in the Austin, Texas area as masonry.
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 PUD 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 shaH be permanently enclosed or otherwise used for habitation.
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 PUD.
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 comer
nsure 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 comer Lots along that portion of side or rear yards fronting on side streets, shall be six foot (6') vertical privacy fences composed of masonry, block, or other similar materials as may be approved from time to time by the ACC. Fences along rear Lot lines of those Lots abutting the greenbelt or floodplain may also be constructed of a six foot ( 6 ') high wrought iron fence. In no event shall any fence extend any closer to the street fronting a dwelling than the front outermost comers of such dweHing. On comer Lots, fences must be set back at least five feet (5') off that side property line abutting the side street.
(a) All perimeter fences must be approved in advance by the ACC and in accordance with the Design Guidelines and the PUD.
(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 Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 16 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.
rivilege 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.
(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 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 (I 0') 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 other portions of the Lot may not be "good neighbor fences" where the front face alternates in a pattern between the homes but shall present a uniform appearance on both sides of the fence and facing 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.
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.
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. 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 .I 0 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; or (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. The ACC shall have the right to
d 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. 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.
Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 17 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, dus4 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
nform 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 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 roof on any building on any Lot shall, unless otherwise approved in writing by the ACC, have a pitch of no less than 6: 12 and comply with any other applicable requirements that may be set forth in the Design Guidelines and the PUD. 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: (a) be wind and hail resistant; (b) provide heating and cooling efficiencies greater than those provided by customary composite shingles; or (c) provide solar generation capabilities. The ACC will not prohibit an Owner from installing Energy Efficient Roofing provided that the Energy Efficient Roofing shingles: (i) resemble the shingles used or otherwise authorized for use within the community; (ii) are more durable
from installing Energy Efficient Roofing provided that the Energy Efficient Roofing shingles: (i) resemble the shingles used or otherwise authorized for use within the community; (ii) are more durable than, and are of equal or superior quality to, the shingles used or otherwise authorized for use within the community; and (iii) 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.
3.14 Swimming Pools. Any swimming pool 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 that, at a minimum, satisfies all applicable governmental requirements. Nothing in this Section 3.14 is intended or shaii be construed to limit or affect an Owner's obligation to comply with any applicable governmental regulations concerning swimming pool enclosure requirements. Above-ground or temporary swimming pools are prohibited.
3.15 Compliance with Setbacks. The setback requirements for each residence constructed on a Lot are set forth in the PUD.
3.16 Solar Ener!!V Device. During the Development Period this Section 3.16 does not apply and the Declarant must approve in advance and in writing the installation of a Solar Energy Device. Until Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 18
16 does not apply and the Declarant must approve in advance and in writing the installation of a Solar Energy Device. Until Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 18 expiration or termination of the Development Period, the Declarant may prohibit the installation of any Solar Energy Device. After expiration or termination of the Development Period, Solar Energy Devices may be installed with the advance written approval of the ACC.
(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. 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.
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.
(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 shall designate the location for 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 I 0% 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
e 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 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; (C) the frame, support brackets, or visible piping or wiring associated with the Solar Energy Device must be bronze or black so as to reduce visibility.
3.17 Rainwater Harvesting Systems. Rain barrels or rainwater harvesting systems (a "Rainwater Harvesting System") may be installed with the advance written approval of the ACC.
Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 19 (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 "Rain System Application"). A Rain System Application shall only be submitted by an Owner.
(b) Approval Process. The decision of the ACC will be made in accordance with ARTICLE 7 of this Declaration. No Rainwater Harvesting System shall be proposed on Common Area unless the Board is undertaking the installation on behalf of the Association, and the Board need not adhere to this Section 3.17 when undertaking such an installation.
(c) Approval Conditions. Unless otherwise approved in advance and in writing by
on behalf of the Association, and the Board need not adhere to this Section 3.17 when undertaking such an installation.
(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.
(iii) The Rainwater Harvesting System shall not be located between the front of the residence 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.
(v) 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. See Section 3.17(v) for additional guidance.
(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 Device Application, the application should describe methods proposed by the Owner to shield the Rainwater Harvesting System from the vi~w of any
Harvesting System. Accordingly, when submitting a Rain Device Application, the application should describe methods proposed by the Owner to shield the Rainwater Harvesting System from the vi~w 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 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. At least three trees 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.
Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 20 .
VITALITY. OR FITNESS FOR INTENDED PURPOSES OF ANY TREES OR SHRUBS LOCATED ON A LOT.
3.19 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 codes, ordinances, or regulations. Pursuant to
mpervious cover that may· be incorporated into a Lot. "Impervious Cover" and the calculation thereof will mean and be determined in accordance with local 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 the ACC and, where applicable, permits issued by the municipality. In the event an Improvement to a Lot is added without the advance written approval of the ACC, the Owner responsible for such Improvement may be required to remove the Improvement and impervious cover, if any, associated therewith at the Owner's sole cost and expense upon demand by the ACC or the Association. Constructing an Improvement without the advance written approval of 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 cost of the Owner.
ARTICLE4 OAK CREEK COMMUNITY HOA, INC.
4.0 I 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. Notwithstanding the foregoing, to the fullest
claration.
4.02 Membership.
(a) Mandatory Membership. Any person or entity, upon becoming an Owner, will automatically become a Member of the Association. Notwithstanding the foregoing, to the fullest extent permitted by law, no Homebuilder shall be considered a Member of the Association; provided, however, the foregoing shall not prohibit the Homebuilder from exercising its voting rights as an owner of a portion of the Property as required by Texas Property Code section 209.0059. 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.
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 monthl 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 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; Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 21 (ii) The right of the Association to suspend the right to use the Common Area for any period during which any Assessment against such Member's Lot remains past due
Restrictions for Oak Creek -Page 21 (ii) The right of the Association to suspend the 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; (iii) The right of the Association and Declarant (during the Development Period) 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 Association and Declarant (during the Development Period) to grant easements or licenses over and across the Common Area; ( v) The right of the Association 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 thereafter, 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 Association may determine.
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°/o of the Approved Lots have been made subject to the terms and provisions of this Declaration and have been conveyed by Owners other than the Declarant, Declarant will appoint and remove all members of the Board. Within 120 days after 75% of the Approved Lots have been made subject to the terms and provisions of this Declaration and have been conveyed to Owners other than the
d remove all members of the Board. Within 120 days after 75% of the Approved Lots have been made subject to the terms and provisions of this Declaration and have been conveyed to Owners other than the Declarant, 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.
(a) Transfer of Control. When the Development Period ends, the Members shall accept control of the Association from the Declarant and full responsibility for the operation of the Association and administration of the Property as provided in the Restrictions, and Declarant shall have no further responsibility for any future acts or omissions with respect to the operation of the Association and administration of the Property (other than as an Owner of a Lot) ("Transfer Date"). Any claims ofthe Association or any Owners against the Declarant for present or past acts or omissions of the Declarant or its members with respect to the operation of the Association or the administration of the Property (including the availability or sufficiency or any reserves) shall be waived, unenforceable, and released if not commenced within one year from the end of the Development Period.
(i) Prior to such time as the Development Period ends: (A) The Declarant shall commission a study of the available reserves of the Association by an independent third party ("Study") familiar with (I) the operations of associations similar to the Association, and (2) the type of Common Area
study of the available reserves of the Association by an independent third party ("Study") familiar with (I) the operations of associations similar to the Association, and (2) the type of Common Area elements that may require maintenance, repair and/or replacement on a longer term basis.
The Study shall determine which of the Common Area elements of the Association Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 22 should be considered within a reserve account for maintenance, and the estimated timing for preventative or restorative maintenance, and the projected cost therefore applicable to the 60 month period following the end of the Development Period ("Repairs"). The Study shall indicate the required annual contribution from Assessments required to ensure all Common Area elements are properly maintained or replaced as needed. The Study shall be available for review by all Owners prior to the transfer of control to the Members upon any Owner's request.
(B) The Study shall also determine the dollar amount of the additional reserves to be contributed by the Declarant calculated as of the date of the end of the Development Period ("Payment"). This Payment shall equal to the difference between (I) the balance then existing in the operating capital account, including, available reserves, on the date the Development Period ends, and (2) the I 00% funding level shown in the Study to undertake the Repairs as of the Transfer Date. The Payment shall be made within seven days of date of end of the Development Period and upon such delivery any obligations and any claims of the Association or any Owners against the Declarant relating to such reserves or the sufficiency thereof shall be waived, unenforceable, and released.
n such delivery any obligations and any claims of the Association or any Owners against the Declarant relating to such reserves or the sufficiency thereof shall be waived, unenforceable, and released.
(C) In addition to the above Payment, the Declarant shall transfer within seven days of the end of Development Period, all Association bank accounts in good standing and free from any claim whatsoever other than outstanding checks issued on behalf of the Association. Such good standing determination shall take into consideration the operating capital accounts payables, receivables (including unpaid Assessments outstanding), and disputed items.
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 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 vote outstanding in favor of any other person or entity, Declarant will have four 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 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. Should the Owner's fail to provide the name of a person designated to vote to the
ent will the vote for such Lot exceed the total votes to which such Lot is otherwise entitled under this Section 4.04. Should the Owner's fail to provide the name of a person designated to vote to the Association, then no vote shall be cast for that Owner's Lot. In no event shall fractional voting be allowed.
(d) Subject to the voting rights set forth in Texas Property Code section 209.0059 and 209.0055 (if applicable), if an Owner's account has been delinquent for at least 30 days, the Owners' right to vote shall be automatically suspended until the account is no longer delinquent.
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 the laws of Texas or this Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 23 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, Bylaws and Community Manual. To make, establish and promulgate, and in its discretion to amend from time to time, or repeal and re-enact, such rules, regulations, Bylaws and Community Manual not in conflict with this Declaration, as it deems proper, covering any and all aspects of the Property (including the operation, maintenance and preservation thereof) or the Association. Any Rules and Regulations, and any modifications to existing Rules and Regulations, or the Bylaws proposed by the Board must be approved in advance and in writing by the Declarant until expiration or termination of the Development Period.
ifications to existing Rules and Regulations, or the Bylaws 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 and to provide appropriate insurance for the Members of the Board while they are acting for or carrying out their duties to the Association as provided in Section 4.09 hereof.
(c) Records. To keep written 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
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 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 INDEMNIFY 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 TIDS SECTION 4.05(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
ILITY, 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 Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 24 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.
(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) Parks, parkways or other recreational facilities or structures; (ii) Roads, streets, sidewalks, signs, street lights, walks, driveways, trails and paths; (iii) Lines, cables, wires, conduits, pipelines or other devices for utility purposes; (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 4.05(g) must be approved in advance and in writing by the Declarant.
ental Authority. In addition, until expiration or termination of the Development Period, any grant or conveyance under this Section 4.05(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 may be employed directly by the Association or may be furnished by the Manager. Each contract entered into between the Association and the Manager will be terminable by the Association without cause upon 60 days written notice to the Manager. To the extent permitted by 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 Common Area or public recreational facilities, easements, roads, roadways, rights-of-ways, signs, parks, parkways, median strips, sidewalks, paths, trails, ponds, and lakes, or any of the foregoing on the Property that is not within a Lot.
G) 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 required or
is not within a Lot.
G) 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 required or Declaration of Covenants, Conditions and Restrictions for Oak Creek -Page 25 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 of the Board and the Declarant until expiration or termination of the Development Period.
{I) 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.
mine 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 Acceptance of Common Area. The Association may acquire, hold, and dispose of any interest in tangible and intangible personal property and real property. Declarant and its assignees may transfer or convey to the Association interests in real or personal property within or for the benefit of the Property, or the Property and the general public, and the Association will accept such transfers and conveyances. Such property may be improved or unimproved and may consist of fee simple tit1e, easements, leases, licenses, or other real or personal property interests. Such property will be accepted by the Association and thereafter will be maintained as Common Area by the Association for the benefit of the Property and/or the general public subject to any restrictions set forth in the deed or other instrument transferring or assigning such property to the Association. 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 to the extent conveyed in error or needed to make minor adjustments in property lines, as determined in the sole and absolute discretion of the Declarant.
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 A~sociation and not the responsibility of the City of Leander or Williamson County, unless and until such areas are dedicated to
n permeable spaces shown on the Plat shall be the responsibility of the A~sociation 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, officer, committee member, employee, servant or agent of the Association against expenses, including attorneys' fees, Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 26 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
awful. 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 powers set out in Section 4.05 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 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
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 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 at law, equity or otherwise, 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
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 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 Declaration of Covenants. Conditions and Restrictions for Oak Creek-Page 27 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
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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 discriminates or is detrimental to Declarant. 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.
4.13 Administration of Common Area. The administration of the Common Area by the Association shall be in accordance with the provisions of Texas 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 governmental regulations. The Private Parks and Hike and Bike Trails shall be included as a part of the Common Area and may be used
Private Parks and Hike and Bike Trails in accordance with applicable governmental regulations. 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 governmental regulations. 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.
ARTICLE 5 INSURANCE 5.0 I 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 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 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
tion 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?
Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 28 The Association does not provide insurance that covers an Owner's Lot or any Im rovements or ersonal ro e 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 identical 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 the Association for the cost of such work; provided, however, that if the Owner is prohibited or delayed by law, regulation or
ion, 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 law, regulation or administrative or public body or tribunal 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 coilected 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 INDEMNIFY 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 TIDS SECTION 5.02, EXCEPT FOR SUCH COST, LOSS, DAMAGE, EXPENSE, LIABILITY, CLAIM OR COST 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.
OCIATION'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.
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.
6.0 I 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 Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 29 6.07 below. The total amount of Assessments will be determined by the Board pursuant to Section 6.03, 6.04, 6.05, 6.06, and/or 6.07.
(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 granted and conveyed by
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 will 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 the Texas Business Organizations Code, as each may from time to time be amended.
6.03 Regular Annual Assessments. Prior to the beginning of each fiscal year, the Board will estimate the expenses to be incurred by the Association during such year in performing its functions and exercising its powers under this Declaration, including, but not limited to, the cost of all management,
the expenses to be incurred by the Association during such year in performing its functions and exercising its powers under this Declaration, 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 covenants and restrictions contained herein, and will estimate 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 at the beginning of the fiscal year, or in such other manner as the Board may designate in its sole and absolute discretion.
(a) Maximum Regular Annual Assessment. Until January 1 of the year immediately following the conveyance of the first Lot to an Owner, the maximum initial annual assessment shall be $1,080.00, or such lesser amount as determined by Declarant.
(i) From and after January 1 of the year immediately following the conveyance of the first Lot to an Owner, the maximum the annual assessment may be increased each year shall be not more than ten percent (10%) annually above the maximum assessment for
y following the conveyance of the first Lot to an Owner, the maximum the annual assessment may be increased each year shall be not more than ten percent (10%) annually above the maximum assessment for the previous year without a Majority vote of the membership. Such right to increase the assessment shall be available every anniversary thereafter.
(ii) The Board shall fix the annual assessment at an amount not in excess of the maximum.
Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 30 (iii) The foregoing cap on the regular annual assessment shall only apply to an Assessment imposed under this Section 6.03 and shall in no way limit the Assessments imposed under any other provision of this Declaration.
6.04 Working Capital Assessment. Each Owner (other than Declarant or a Homebuilder) of a Lot will pay upon becoming a Member a one-time working capital assessment to the Association in such amount as may be determined by the Board from time to time in its sole and absolute discretion.
Such working capital assessment need not be uniform among all Lots, and 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 levy of any working capital assessment will be effective only upon Recordation of a written notice, signed by 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, the following transfers will not be subject to the working capital assessment: (i) foreclosure of a deed of trust lien, tax lien, or the Association's assessment
twithstanding the foregoing provision, the following transfers will not be subject to the working capital assessment: (i) foreclosure of a deed of trust lien, tax lien, or the Association's assessment lien; (ii) transfer to, from, or by the Association; (iii) the first transfer of any Lot from a Homebuilder to a third party buyer; or (iv) voluntary transfer by an Owner to one or more existing co-owners, or to the Owner's spouse, child, or parent. Additionally, an Owner who (a) is a Homebuilder; or (b) 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: (I) 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 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 wi11 be in addition to, not in lieu of, 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
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 annual Assessments provided for above, the Board may levy 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 applicable to that fiscal year only 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 against an Owner and the Owner's Lot. Individual Assessments may include, but
ment Units.
6.06 Individual Assessments. In addition to any other Assessments, the Board may levy an 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 Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 3 I 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 benefit received; fees or charges levied against the Association on a per-Lot basis; and "pass through" expenses for services to Lots provided through the Association and which are equitably paid by each Lot according to the benefit received.
6.07 Amount of Assessment.
(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
tion 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 the Lot for more than 24 months and has not sold the Lot to an Owner, in which event the Homebuilder shall be responsible for 50% of 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 un-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 un-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
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 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 attorneys fees. Such amounts will be levied as an Individual Assessment against the Lot owned by such Owner.
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 Declaration of Covenants. Conditions and Restrictions for Oak Creek-Page 32 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 liens; (ii) all sums secured by a first mortgage lien or first deed of
cessors or assigns. The aforesaid lien will be superior to all other liens and charges against such Lot, except only for: (i) tax 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 Assessment lien is subordinate and inferior to a recorded deed of trust lien that secures a first or senior purchase money mortgage, an FHA-insured mortgage or a V A-guaranteed mortgage. 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 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 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
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. 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
owever, 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 6.1 0. the Association will upon the request of the Owner execute a release of lien relating to any lien for which written notice has been filed as provided above, except in circumstances in which the Association has already foreclosed such lien. Such release will be signed by an officer 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 p~id for directly by a Owner or Resident to the utility 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
ted 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 associated therewith. If an Owner conveys its Lot Declaration of Covenants. Conditions and Restrictions for Oak Creek-Page 33 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 ou default in a in assessments.
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 ou default in a in assessments.
6.11 Exempt Property. The following area within the Property will be exempt from the Assessments provided for in this Article: (a) All area dedicated and accepted by public authority, by the Recordation of an appropriate document; (b) The Common Area; (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 24 months and has not sold the Lot to an Owner, in which event the Homebuilder shall be responsible for SOo/o of 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, an occupant of the Owner's Lot, or the Owner or occupant's family, guests, employees, contractors, agents or invitees. Any fine and/or charge for damage 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
inues 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 located by the Owner or the Owner's family, guests, agents, occupants, or tenants. 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/or informing them of potential or probable fines or damage assessments. The Board may from time to time adopt a schedule of fines.
(b) Procedure. The procedure for assessment of fines and damage charges will be as follows: Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 34 (i) the Association, acting through an officer, Board member or Manager, must give the Owner notice of the fine or damage charge not later than 30 days after the assessment of the fine or damage charge by the Board; (ii) the notice of the fine or damage charge must describe the violation or damage; (iii) or damage charge; the notice of the fine or damage charge must state the amount of the fine (iv) the notice of a fine or damage charge must state that the Owner will have 30 days from the date of the notice to request a hearing before the Board to contest the fine or damage charge; and (v) the notice of a fine must allow the Owner a reasonable time, by a specified date, to cure the violation (if the violation is capable of being remedied) and avoid the fine unless the Owner was given notice and a reasonable opportunity to cure a similar violation within the preceding six months.
(c) Due Date. Fine and/or damage charges are due immediately after the expiration
s the Owner was given notice and a reasonable opportunity to cure a similar violation within the preceding six months.
(c) Due Date. Fine and/or damage charges are due immediately after the expiration of the 30-day period for requesting a hearing. If a hearing is requested, such fines or damage charges will be due immediately after the Board's decision at such hearing, assuming that a fine or damage charge of some amount is confirmed by the Board at such hearing.
(d) 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. Unless otherwise provided in this Section 6.12, 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.
6.13 Association Budget Deficits. If, at any time during the period following the date this Declaration is recorded until the Transfer Date, the amounts collected by the Association under this ARTICLE 6 prove inadequate to fund the Association's obligations under this Declaration, then Declarant will be obligated to fund the deficits in the Association's budget until there are enough Members of the Association regularly paying Assessments in order to provide the Association with sufficient funds to satisfy the Association's obligations and fund the Association's budget, including reasonable reserves.
ARTICLE7 ARCHITECTURAL CONTROL COMMITTEE
der to provide the Association with sufficient funds to satisfy the Association's obligations and fund the Association's budget, including reasonable reserves.
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.
Declaration of Covenants. Conditions and Restrictions for Oak Creek-Page 35 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 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
point 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 12 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 12 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
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 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 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
approval pending receipt of 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. Notwithstanding the foregoing to the contrary, at any time when the Design Guidelines are in effect, no Homebuilder will be required to submit its plans and specifications to the ACC for approval in accordance with this Section 7.02(b) as long as such plans and specifications comply with the Design Guidelines in ali respects.
Declaration of Covenants. Conditions and Restrictions for Oak Creek-Page 36 (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
elopment 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 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
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 such plans and specifications strictly conform to requirements and construction specifications contained in this Declaration and in the Design Guidelines then in effect, and the ACC fails either to approve or reject such plans and specifications for a period of 60 days following such submission, approval of such plans and specifications by the ACC will be presumed if after I 0 days following written notice to the ACC of such failure after the expiration of such 60-day period the ACC fails to either approve or reject such plans and specifications. Notwithstanding 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.
(f) 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
t 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 Declaration of Covenants. Conditions and Restrictions for Oak Creek-Page 3 7 considered to establish a precedent for any future waiver, modification, or amendment of the terms and provisions of this Declaration 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) the period of development of any phase if the application is made by a Homebuilder and the Homebuilder has acquired at least 75 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: (i) one year after issuance of approval of such plans and specifications; or (ii) such other period thereafter as determined by
prescribed period and diligently prosecuted to completion within either: (i) one year after issuance of approval of such plans and specifications; or (ii) 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 tore 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.
(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 such approval or consent be deemed to establish a precedent for future approvals by the ACC.
(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. A letter from the ACC shall be required prior to any 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.
Alternatively, governmental approval does not ensure ACC approval. A conditional approval by the ACC
specifications does not mean that they comply with the requirements of the Governmental Authority.
Alternatively, 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.
0) 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 TIDS 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 lien or purchase money 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: Declaration of Covenants. Conditions and Restrictions for Oak Creek-Page 38 (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;
oss 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 occupant which is not cured within 60 days; and (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.
8.04 Communication with Mortgagee. If the Restrictions or public law require the consent of Mortgagees for an act, decision, or amendment by the Association, the approval of a Mortgagee is implied when the Mortgagee fails to respond within 30 days after receiving the Association's written request for approval of a proposed amendment, provided the Association's request was delivered by certified mail, return receipt requested.
8.05 Underwriting Lenders. If a Mortgagee requests from the Association compliance with the guidelines of an Underwriting Lender, the Board, without approval of Owners or Mortgagees, may amend this Article and other provisions of the Restrictions, as necessary, to meet the requirements of the
uidelines of an Underwriting Lender, the Board, without approval of Owners or Mortgagees, may amend this Article and other provisions of the Restrictions, as necessary, to meet the requirements of the Underwriting Lender. This Article is supplemental to, not a substitution for, any other provision of the Restrictions.
8.06 Mortgagee in Possession. Any Mortgagee in possession of a Lot or any portion of the Property must (i) comply with this Declaration and all of the other Restrictions, including, without limitation paying all Assessments and maintaining the Lot (or other portion of the Property it is in possession of) in accordance with the Restrictions, (ii) secure Improvements from vandals and thieves as necessary (but no boarding of windows or doors or making any exterior change to Improvements without the prior approval of the ACC), (iii) defend any adverse possession claims and evict squatters in an expedient manner, and (iv) secure Association approval of any lease of the Improvements.
8.07 Relationship to Association. The Association shall owe no duty to any Mortgagee other than those that are expressly described in this Declaration. Notwithstanding anything to the contrary contained in any Mortgage document or in this Declaration, the Restrictions shall control over all of the terms contained in any Mortgage document and each Mortgagee making a loan secured by any of the Property agrees to be bound by and comply with the Restrictions, as the same may be amended from time to time.
ARTICLE9 EASEMENTS 9.0 I Right of Ingress and Egress. Declarant, its agents, employees and designees will have a right of ingress and egress over and the right of access to the Common Area to the extent necessary to use
9.0 I Right of Ingress and Egress. Declarant, its agents, employees and designees will have a right of ingress and egress over and the right of access to the Common Area to the extent necessary to use Declaration of Covenants. Conditions and Restrictions for Oak Creek-Page 39 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 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
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. 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 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.
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 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
s 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 asso~iated 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 assign the easements reserved hereunder to any third party who owns, operates or maintains the facilities and Improvements 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 for the installation, maintenance, repair or
nstructed thereon.
9.04 Subdivision Entry and Fencing Easement. Declarant reserves for itself and the Association, an easement over and across the Property for the installation, maintenance, repair or replacement of certain subdivision entry facilities and fencing which serves the Property. 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 Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 40 the subdivision entry facilities 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 for the installation, maintenance, repair or replacement of all monument signs that serve the Property. Declarant will have the right, from time to time, to Record a written notice, which identifies those portions of the Property to which the easement reserved hereunder applies. Declarant designates the 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.
9.06 Declarant as Attorney in Fact. To secure and facilitate Declarant's exercise of the
ce, nor will it unreasonably interfere with the use of any Lot or residence or Improvement constructed thereon.
9.06 Declarant as Attorney in Fact. To secure and facilitate Declarant's exercise of the rights reserved by Declarant pursuant to the terms and provisions of this Declaration, each Owner, by accepting a deed to a L~t and each Mortgagee, by accepting the benefits of a Mortgage against a Lot, and any other third party by acceptance of the benefits of a mortgage, deed of trust, mechanic's lien contract, mechanic's lien claim, vendor's lien and/or any other security interest against any Lot, will thereby be deemed to have appointed Declarant such Owner's, Mortgagee's, and third party's irrevocable attorney in-fact, with full power of substitution, to do and perform, each and every act permitted or required to be performed by Declarant pursuant to the terms of this Declaration. The power thereby vested in Declarant as attorney-in-fact for each Owner, Mortgagee and/or third party, will be deemed, conclusively, to be coupled with an interest and will survive the dissolution, termination, insolvency, bankruptcy, incompetency and death of an Owner, Mortgagee and/or third party and will be binding upon the legal representatives, administrators, executors, successors, heirs and assigns of each such party. The aforesaid power shall be vested in Declarant, its successors and assigns, for a period of 25 years from the date the first Lot is conveyed to an individual purchaser, or until the expiration or termination of the Development Period, whichever occurs first. Declarant hereby reserves for itself, its successors and assigns the right to execute on behalf of each Owner, Mortgagee, and third party claiming a legal or equitable interest in the
er occurs first. Declarant hereby reserves for itself, its successors and assigns the right to execute on behalf of each Owner, Mortgagee, and third party claiming a legal or equitable interest in the Common Area, any such agreements, documents, amendments or supplements to the Restrictions which may be 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.
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 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. 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.
1 0.02 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
ry, 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 Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 41 (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. 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 I 0.02 until two years after expiration or termination of the Development Period.
I 0.03 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, 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:
h 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; (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.
I 0.04 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 renewal 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 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 provision in this Dec~aration
his 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 provision in this Dec~aration 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 Varv Dwellings. Each Owner, by acceptance of a deed to a Lot, acknowledges and agrees that Declarant expressly reserves the right to impose additional Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 42 specific use restrictions for the various phases compnsmg 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, masonry composition and architecture from dwellings in other phases comprising the Property.
1 0.07 Common Area. No land within any Common Area will be improved, used, or occupied, except in the manner approved by Declarant, in its sole and absolute discretion. This required approval will extend to the nature and type of use, occupancy, and improve.ment. Access to any Common Area may be limited to Owners or Residents currently paying Assessments, fees, and other charges, or otherwise
l extend to the nature and type of use, occupancy, and improve.ment. 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 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 Agreement to Encourage Resolution of Disputes Without Litigation.
(a) Bound Parties. Declarant, the Association and its officers, directors, and committee members, Owners and all other parties subject to this Declaration {'4Bound Party", or collectively, the 44Bound Parties"), agree that it is in the best interest of all concerned to encourage the amicable resolution of disputes involving the Property without the emotional and financial costs of litigation. Accordingly, each Bound Party agrees not to file suit in any court with respect to a Claim described in subsection (b), unless and until it has first submitted such Claim to the alternative dispute resolution procedures set forth in Section 11.02 in a good faith effort to resolve such Claim.
(b) Claim(s). As used in this Article, the term 44Ciaim" or 44Ciaims" will refer to any claim, grievance or dispute arising out of or relating to: (i) (ii) Restrictions; or The interpretation, application, or enforcement of the Restrictions; The rights, obligations, and duties of any Bound Party under the (iii) The design or construction of Improvements by Owners or Homebuilders
rpretation, application, or enforcement of the Restrictions; The rights, obligations, and duties of any Bound Party under the (iii) The design or construction of Improvements by Owners or Homebuilders (i.e. not Declarant) within the Property, other than matters of aesthetic judgment under ARTICLE 6, which will not be subject to review.
(c) Not Considered Claims. The following will not be considered 44Claims" unless all parties to the matter otherwise agree to submit the matter to the procedures set forth in Section 11.02: (i) Any legal proceeding by the Association to collect assessments or other amounts due from any Owner; (ii) Any legal proceeding by the Association to obtain a temporary restraining order (or emergency equitable relief) and such ancillary relief as the court may deem Declaration of Covenants. Conditions and Restrictions for Oak Creek-Page 43 necessary in order to maintain the status quo and preserve the Association's ability to enforce the provisions of this Declaration; (iii) Any legal proceeding which does not include Declarant or the Association as a party, if such action asserts a Claim which would constitute a cause of action independent of the Restrictions; (iv) Any legal proceeding in which any indispensable party is not a Bound Party; (v) Any action by the Association to enforce the Restrictions; and (vi) Any legal proceeding as to which any applicable statute of limitations would expire within 180 days of giving the Notice required by Section 11.02(a), unless the party or parties against whom the Claim is made agree to toll the statute of limitations as to such Claim for such period as may reasonably be necessary to comply with this Article.
11.02 Dispute Resolution Procedures.
gainst whom the Claim is made agree to toll the statute of limitations as to such Claim for such period as may reasonably be necessary to comply with this Article.
11.02 Dispute Resolution Procedures.
(a) Notice. The Bound Party asserting a Claim ("Claimant") against another Bound Party ("Respondent") will give written notice to each Respondent and to the Board stating plainly and concisely: (i) The nature of the Claim, including the Persons involved and the Respondent's role in the Claim; (ii) The legal basis of the Claim (i.e., the specific authority out of which the Claim arises); (iii) The Claimant's proposed resolution or remedy; and (iv) The Claimant's desire to meet with the Respondent to discuss in good faith ways to resolve the Claim.
(b) Negotiation. The Claimant and Respondent will make every reasonable effort to meet in person and confer for the purpose of resolving the Claim by good faith negotiation. If requested in writing, accompanied by a copy of the Notice, the Board may appoint a representative to assist the parties in negotiating a resolution of the Claim.
(c) Mediation. If the parties have not resolved the Claim through negotiation within 30 days of the date of the notice described in Section 11.02(a) (or within such other period as the parties may agree upon), the Claimant will have 30 additional days to submit the Claim to mediation with an entity designated by the Association (if the Association is not a party to the Claim) or to an independent agency providing dispute resolution service in Williamson County, Texas (if the Association is a party to the Claim). Notwithstanding the foregoing, if one of the Respondents is the Declarant, the Board, the Association or the ACC, then prior to submitting such Claim to mediation, the Claimant must deposit
he Claim). Notwithstanding the foregoing, if one of the Respondents is the Declarant, the Board, the Association or the ACC, then prior to submitting such Claim to mediation, the Claimant must deposit $1,000 per Claim (the "Claim Deposit") with the Association as a good faith deposit regarding the Claim.
(i) If the Claimant does not submit the Claim to mediation or the Claim Deposit, if applicable, to the Association within such time, or does not appear for the mediation Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 44 when scheduled, the Claimant will be deemed to have waived the Claim, the Respondent will be relieved of any and all liability to the Claimant (but not third parties) on account of such Claim, and any Claim Deposit submitted to the Association will be forfeited to the Association and shall become the property of the Association.
(ii) Upon proper submission of the Claim to mediation and timely payment of the Claim Deposit, if applicable, the mediation shall be conducted as a "baseball" style mediation where each party makes their best settlement offer and presents it to the mediator and then the mediator has the option of choosing one of the settlements offered by any party to the exclusion of the others, with no ability of the mediator to change any portion of the settlement selected.
(iii) If the parties do not settle the Claim within 60 days after submission of the matter to mediation and deposit of the Claim Deposit, if applicable, or within such time as determined 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
ch time as determined 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. The Claimant will thereafter be entitled to file suit or to initiate administrative proceedings on the Claim, as appropriate.
(iv) Each party will bear its own costs of the mediation, including attorney's fees, and each Party will share equally all fees charged by the mediator.
(d) Settlement. Any settlement of the Claim through negotiation or mediation will be documented in writing and signed by the parties. If any party thereafter fails to abide by the terms of such agreement, then any other party may file suit or initiate administrative proceedings to enforce such agreement without the need to again comply with the procedures set forth in this ARTICLE 11. In such event, the party taking action to enforce the agreement or award will, upon prevailing, be entitled to recover from the non-complying party (or if more than one noncomplying party, from all such parties in equal proportions) all costs incurred in enforcing such agreement or award, including, without limitation, attorneys' fees and court costs.
(e) Claim Against Declarant. Notwithstanding anything to the contrary contained herein, if a Claim against Declarant, the HOA, the Board or the Association relates to any portion of the Common Area and not just to a particular Lot or Lots, then such Claim may only be brought with the consent of a Majority of the Members, not including the Declarant.
11.03 Attorneys' Fees. In the event of any dispute, litigation or other proceeding relating to the Restrictions that is not settled in accordance with Section 11.02, each party will bear its own costs and
3 Attorneys' Fees. In the event of any dispute, litigation or other proceeding relating to the Restrictions that is not settled in accordance with Section 11.02, each party will bear its own costs and expenses, including attorney's fees, provided, however, if the Association is the prevailing party in such dispute, litigation or other litigation, then the non-prevailing party will pay to the Association all of its reasonable attorney's fees incurred after any mediation proceedings required in this ARTICLE 11.
11.04 Waiver of Damages. IN NO EVENT WILL ANY PARTY IN ANY DISPUTE, LITIGATION OR OTHER PROCEEDING RELATING TO THE RESTRICTIONS BE LIABLE TO ANY OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR INDIRECT DAMAGES OF ANY KIND.
Declaration of Covenants. Conditions and Restrictions for Oak Creek-Page 45 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 I, 2054, 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
itled 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 Texas 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 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 (until expiration or termination of
ctive 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 (until expiration or termination of the Development Period); 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. Specifically, and not by way of limitation, Declarant may unilaterally amend this Declaration: (a) to bring any provision into compliance with any applicable governmental statute, rule, regulation, or judicial determination; (b) to enable any reputable title insurance company to issue title insurance coverage on any Lot; (c) to enable any institutional or governmental lender, purchaser, insurer or guarantor of mortgage loans, including, for example, the Federal Home Loan Mortgage Corporation, to make, purchase, insure or guarantee mortgage loans on Lots; or (d) to comply with any requirements promulgated by a local, state or governmental agency, including, for example, the Department of Housing and Urban Development.
12.04 Roadway and Utility Easements. Declarant reserves the right to locate, relocate, construct, erect, and maintain or cause to be located, relocated, constructed, erected, and maintained in and on any streets maintained by the Association, or areas conveyed to the Association, or areas reserved
erect, and maintain or cause to be located, relocated, constructed, erected, and maintained in and on 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.
Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 46 12.05 Enforcement. The Association and the Declarant will have the right to enforce, by a proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens, charges and other tenns now or hereafter imposed by the provisions of this Declaration against any Owner, Homebuilder, or Mortgagee in possession. Failure to enforce any right, provision, covenant, or condition granted by this Declaration will not constitute a waiver of the right to enforce such right, provision, covenants or condition in the future.
12.06 Higher Authority. The tenns and provisions of this Declaration are subordinate to federal and state law, and local ordinances. Generally, the tenns and provisions of this Declaration are enforceable to the extent they do not violate or conflict with local, state, or federal law or ordinance.
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 pennitted by applicable law, the validity of such provision as applied to any
t jurisdiction, such invalidity will not affect the validity of any other provision of this Declaration, or, to the extent pennitted 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 prov1s1ons of this Declaration, the Certificate, the Bylaws, or any rules and regulations adopted pursuant to the tenns of such documents, the provisions of this Declaration 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 wi11 include the plural, and all plural words will include the singular.
12.1 0 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 purchaser, accepts the same subject to all tenns, 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. Furthennore, 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
eunder 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.
(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 12.11 (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 Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 4 7 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
n 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 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 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 1 0.04 above. This Section 12.12 will not be construed to prohibit the Board from acquiring and disposing of tangible personal
been removed from the provisions of this Declaration pursuant to Section 1 0.04 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 Partv 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
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: Declaration of Covenants. Conditions and Restrictions for Oak Creek -Page 48 Sentinel/Cotter Leander LLC 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 within the Property will be preserved without impairment. Neither the Declarant, the ACC nor the Association shall have an obligation to relocate, prune, or thin trees or 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. 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. The Association may, but shall not be obligated to, maintain or support certain activities within the Property designed to promote or enhance the level of safety or security that each person provides for
Association may, but shall not be obligated to, maintain or support certain activities within the Property 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, nor shall either b~ held liable for any loss or damage by reason of failure to provide adequate security or ineffectiveness of security measures undertaken. 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 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 Oak Creek -Page 49
nt 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 Oak Creek -Page 49 EXECUTED to be effective on the date this instrument is Recorded.
STATE OF TEXAS § § COUNTY OF TRAVIS § DECLARANT: SENTINEL/COTTER LEANDER LLC, a Texas limited liability company By: Sentinel Land Company, LLC, a Texas limited liability company, its manager ("' This instrument was acknowledged before me on the 1t_ day of May, 2015, by Thomas J. Rielly, President of Sentinel Land Company , LLC, a Texas limited liability company, the manager of Sentinel/Cotter Leander LLC, a Texas limited liability company, on behalf of said corporation and limited liability company.
(SEAL) Declaration of Covenants, Conditions and Restrictions for Oak Creek-Page 50 CONSENT OF MORTGAGEE The undersigned, being the sole owner and holder of the liens created by the two Deeds of Trust, Assignment of Rents, Security Agreement and Fixture Filing dated September 16, 2013 and December 13, 2013, respectively (collectively, the "Liens"), recorded under Document Numbers 2013089236 and 2014023231, 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 Tt.fAJ COUNTY OF 1llAvfJ § § 686342 B.C LTD., a British Columbia Company
ation and recordation of same.
THE STATE OF Tt.fAJ COUNTY OF 1llAvfJ § § 686342 B.C LTD., a British Columbia Company said British Columbia Company.
(SEAL) Declaration of Covenants. Conditions and Restrictions for Oak Creek-Consent of Mortgagee CONSENT OF OWNER The undersigned, being the owner of a portion of the Property which was conveyed to the undersigned pursuant to a Special Warranty Deed dated January 26, 2015, recorded under Document Number 2015007507, of the Official Public Records of Williamson County, Texas (the "Owner's Property "), executes this Declaration solely for the purpose of evidencing consent to this Declaration and recordation of same and its intent for the Owner's Property to be subject to such Declaration for all purposes.
THE STATE OF Te.x:.c6 COUNTY OF Tt:rAV 1~ § § PACESETTER HOMES, LLC, a Texas limited liability company This instrument was acknowledged before me this 2hd day of :J (A a e.-, 20 IS by behalf of said limited liability company.
,,, .... ,, Declaration of Covenants, Condition s and Restrictions for Oak Creek-Consent of Owner CONSENT OF OWNER
J KATHLEEN WYCOFF Declaration of Covenants, Condition s and Restrictions for Oak Creek-Consent of Owner CONSENT OF OWNER The undersigned, being the owner of a portion of the Property which was conveyed to the undersigned pursuant to a Special Warranty Deed dated January 21, 2015, recorded under Document Number 2015005182, of the Official Public Records of Williamson County, Texas ("Sentinel Il's Property"), executes this Declaration solely for the purpose of evidencing consent to this Declaration and recordation of same and its intent for the Sentinel IT's Property to be subject to such Declaration for all purposes.
THE STATE OF TEXAS § COUNTY OF TRAVIS § SENTINEL/COTTER LEANDER II LLC, a Texas limited liability company )f" President of Sentinel/Cotter Leander II LLC, a Texas limited liability company , on behalf of said limited liability company.
(SEAL) ~.d-.J"(.i.J Notary Public, State ot Texas '"'""''' October 12, 2016 Declaration of Covenants, Conditions and Restrictions for Oak Creek -Consent of Owner EXHIBIT A PROPERTY DESCRIPTION (SEE ATTACHED) Declaration of Covenants. Conditions and Restrictions for Oak Creek -Exhibit A .. . .
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WATERSTONE MICHELLE. LP. Office: 612-443-1724 Fmc: 612 889-0943 3500 McCall Lane Austin, Texas 78744
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Surveying and Mapping Page 1 ~1.&78 AC.
WATERSTONE MICHELLE. LP. Office: 612-443-1724 Fmc: 612 889-0943 3500 McCall Lane Austin, Texas 78744 A DESCRIPTION OF 125.676 ACRES (APPROXIMATELY 5,470,044 SQUARE FEET) IN THE CHARLES COCHRAN SURVEY, ABSTRACT NO. 134, IN WILLIAMSON COUNTY, TEXAS, BEING A PORTION OF A 184.488 ACRE TRACT DESCRIBED IN A SPECIAL WARRANTY DEED WITH VENDOR'S LIEN TO WATERSTONE MJCHELLE. LP., DATED AUGUST 6, 2004 AND RECORDED IN DOCUMENT NO.
2004083388 OF THE OFFICIAL PUBUC RECORDS OF WILLIAMSON COUNTY, TEXAS; SAID 126.675 ACRES BEING MORE PARTICUUARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS: COMMENCING at a 1/Z' mbar found for the southeast comer of the aald 184.486 acre tract. befng aJao the northeast comer of a 78.878 acre tract recorded In Document No.
2003003109 of the Official Publfc Recorda of WJtllamson County, Texas and belng also rn the west right-of-way line of us Hfghway 183 (rfght-of.way width vades): THENCE South 76°04'1011 West. with the south llna of the 184.468 acre tract and the north ltne of the 78.978 acre tract. a dlalance of 803AO feet to a 112• rebar with Chaparral cap set for lhe POINT OF BEGINNING: THENCE with the south line of the 184.488 aCI8 tract and the north line of the 78.978 acra tract. the following five (6) couraes and distances: 1. South 7S004'1fr West, a distance of 30.83 feet to a con~te monument found: 2. South 7&-04-a1a West, a distance of 1,312.45 feet to a concrete monument found: ~ .
4. South 801122'18" West, a distance of 27.71 feet to 1/Z' rebar found: ...
6. South ee•38'W West. a distance of 21.7i feet to a 1/Z' rebar found fn the south
~ .
4. South 801122'18" West, a distance of 27.71 feet to 1/Z' rebar found: ...
6. South ee•38'W West. a distance of 21.7i feet to a 1/Z' rebar found fn the south Una of the 184.488' acre tract, befng also the northweit comer of the 78.978 aaa tract, being arao the northeast comer of Lot 88 lilock A. Estates of North Craek Ranch Section Two, a aubdlvfa!on of record rn Ceblnef V, Slide 293 of the Plat Recorda ofWllllamaon County, Texas: · . .
THENCE South 89°09'11u West with the south One of the 184A88 acre tract and the north line of the said Estates of North Creek Rimch Sectfon Two, a distance of 389.12 ' . .
Page2 .
feet to a 112• rebar with stanley QUJ found for the southeast comer of Lot 1, Block A.
Heritage Glen Section One, a subdlvJsfon of record In Cabinet CC, Slide 389 of the Plat Records of Williamson County, Texas; THENCE crosatng the 184.488 8018 tract. with the perimeter of aald Heritage Glen Section One, the foUowtng ten (10) cowses and dtstances: 1. Nodh 21;07'13, West. a distance of 18B.S7 feet to a 11i rebar with AD Points (64' right-of-way width), being also In the south Una of Lot 1, Block D. Heritage Glen SecUon One: .
..
2. North 8r61'6r East. with the south llne of Lot 1, a distance of 164.83 feet to a 112• rebar with Chapanal cap found for a point of curvature: -3. With a curve to the left fn the south line of Lot 1. having a radius of 15.00 feet. a delta angle of 89°43'31'*, an an: length of 23.49 feet. and a chord which bears North 23°68'24'* East. a distance of21.18 feet to a 1/Z' rehar wllh Chaparral cap found for a point of tangency In the east Une of LDt 1; . .
31'*, an an: length of 23.49 feet. and a chord which bears North 23°68'24'* East. a distance of21.18 feet to a 1/Z' rehar wllh Chaparral cap found for a point of tangency In the east Une of LDt 1; . .
4. North 21°08'1411 West. with the east Una of lot 1, a distance of 744.15 feet to a · Mag naU with Chaparral washer set fer the northeBat«arner of Lot 1: . . . . .
5. South 88°63'22' West. with the north Une of Lot 1, a distance of 760.35 feet to a 1rr l8bar wHh Chaparral cap found for the nolthweat comer of Lot 1: . . , ~ ' e. South 18'24'23" East. with the west Una of Lot 1, a distance of 213.39 feet to a 112• rebar with Chaparral cap found tor a point of curvature: 7. With a curve to the daht ln the west line of Lot 1, JUivrno a radtua of 931;58 feet. a delta angfe of 01°63'09", an arc length of 30.88.feet. and a choJd which bears South 17'29'03" East. a distance of 30.88 feel to a 112• rebar with All Points cap found In the east rfght-of-way ot the tenn!natfon of Coulee Ddve (80' rfght-of-way width): .
. ' . a. South 73"28'22" West. with the north termlnatlon of Coulee Drive. a distance of 69.85 feet td a 112• rebar with All Points cap fOund fn the west right-of-way One of Coulee Drive: 9. With a curve to the right In the west ftne of Coulee Drive, having a radius of 871.68feet. a delta angle of01°05~. an arc fength of 18.88 feet. and a chord Page3 which bears South 15°68'W Eat. a dfatance of 18.87 feet to a 112• rebar'"wfth All Points cap found for the northeast comer of Lot 10, Block C of Heritage Glen Section one: . ..-.
10.South 74°30'40" West. with the north Una of said Lot 10, a distance of 148.22 feet to a 112• rebar with Stanley cap found for the northweaf comer of lot 10, being also In the east line of LOt 13, Blodc H, Benbrook Ranch, Sectfon One, Phase
a of said Lot 10, a distance of 148.22 feet to a 112• rebar with Stanley cap found for the northweaf comer of lot 10, being also In the east line of LOt 13, Blodc H, Benbrook Ranch, Sectfon One, Phase Two, a subdivision racorded In cabinet Y, Slide 345 of the Plat Records of WDIIamaon County, Texas, and belng also In ·the west Una of the 184.488 acre bact; THENCE North 18~9'5411 West. with the west Ifni of utct 184.466 acre tract. same being the east Una of said Block H, a dlalance of 1,009.33 feel to a 112•ra&arfound for an angle pcfnt rn the west Dna of the 184.488 acre tract. bafng also .In the southeast Dna of Lot 3, Brack H, Benbrook Rapch Spclfon Two, Phase One, a subdMalon of record In Cabinet CC, Slide 3 of the Plat Recorda ofwmfamaon County, Texas; THENCE with the northweat line of the 184.488 acait tract and the southeast flne of said Lol3, lhe following five (6) COUI888 and distances: 4. North 1 0°03'6311 East. a dlalfnce of 17.15 feet to 8 112• rebar found: . . .
6. North 19°16'4411 West. a dJslance of 37.17 feet to a calculated point In the centerllnll of Brushy ~reek;.
THENCE wfth the north lfne of the t84.488 acre tract. being the centerflne of Brushy Creek. and being the seuth Una of Lot 8, the fallowing stx (8) COUI888 and distances: • 1. · North 34°38'67" East, a dllfance of 89.98 feet to a calculated point; 2. North &r3~'4r East, 8 dlatance of 149.82 feel to a calculated pornt . . .
3. North 62°34'67" East. a distance ot 241.82 feet to a calculated point;
a dllfance of 89.98 feet to a calculated point; 2. North &r3~'4r East, 8 dlatance of 149.82 feel to a calculated pornt . . .
3. North 62°34'67" East. a distance ot 241.82 feet to a calculated point; • 4. North 68°42'22a East, a distance of 108.28 feet to a calculated potnt: ..
Page4 6. North 69°49'32" EallJ, a distance of 135.35 feet to a ca!culated point - ..
8. North 77°47'62!' East. a distance of 180.43 feet to a calculated point for the southeast bomer df Lot a. being-also tht southWest comer of a 107.928 acre tract deacrfbed In Document No. 2004083370 of the Official Publfc Recorda of West. a distance of 55.92 feet; .
THENCE with cantaltlne of Brushy Cleek, being also the north lfne of the 164.488 acre tract and the south llne of the 107.928 acre tract. the following fifteen (15) courses and 1. South 7r13'1r East. a clatance of 144.19 f'aet to a calculated potnt; . " .
2.. South 25°33'17" East. a dlatan~ of 69.71 feet to a calculated point 3. South 130S1'17" East. a dlstance of 73.80 (eat to a calculated point . .
4. South 35°10'17" East. a distance of78.89 feet to a point . . .
5. North 80003'43° East, a ~ce of 151.18 feet to a calculated potnt; 8. North esocl8'43" East. a dfstance of 246.27 feet to a calculated point; . . ' 7. South 48°69'1-r' East. a distance of76.24 feet to a cafculated point .... . .
8. South 82°30'17" East. a dfstance of 435.20 feet to a calculated point .. .
9. Norlh &r03'43" East. a distance of 68.81 feet to a ca!culated point; ' 10. North 75°34'43a East. a distance of 148.11 feet to a calculated point; -.. ~ 11.South.39"63'1r' East. a distance of 143.77 feet to a calculated point
68.81 feet to a ca!culated point; ' 10. North 75°34'43a East. a distance of 148.11 feet to a calculated point; -.. ~ 11.South.39"63'1r' East. a distance of 143.77 feet to a calculated point 12.North 70°10'43" East. a distance of 89.94 tept to a ca!culated point; -, .. ' Page5 15.South 86°45'17" East. a distance of 11.33 feet to a calculated point for the northwest earner of a 3.150 acre tract r~corded in Document No. 2000053933 of the Official Public Records of Williamson County, Texas; THENCE leaving Brushy Creek, with the north line of the 164.466 acre tract, being also the west line of the 3.150 acre tract. the"ollowing two (2) courses and distances: 1. South 00°45'2811 East, a distance of 22.26 feet to a 1/2" rebar found; -~ ' 2. South 00°45'28p East, a distance of 95.51 feet to a 112" rebar found for the southwest comer of the 3.150 acre tract; \ THENCE with the north line of the 164.466 acre tract. being also the south line of the 3.150 .acre tract, the following two (2) courses and distances: 1. North 88°19'34" East, a distance of 440.91 feet to a 1/2" rebar found, from which a nail found in a concrete dam bears North 11°52'18" West, a distance of 168.04 feet: 2. North 88°34'02" East, a distance of 234.28 feet to a 1/2" rebar with Chaparral cap set, from which a 112" rebar found in the west right-of-way line of U.S. 183, being also the northeast comer of the 164.466 acre tract, being also the southeast comer of the 3.150 acre tract, bears North 88°34'02" East, a distance of 636.85 feet; THENCE South 21°01'11" East. crossing the 164.466 acre tract, a distance of 1,478.67
act, being also the southeast comer of the 3.150 acre tract, bears North 88°34'02" East, a distance of 636.85 feet; THENCE South 21°01'11" East. crossing the 164.466 acre tract, a distance of 1,478.67 to the POINT OF BEGI~NING, containing 125.575 acres of land, more or tess.
Surveyed on the ground July 17,2013. Bearing basis Is Grid Azimuth for Texas Central Zone, 1983/93 HARN values from LCRA control network. Attachments: Survey Drawing No. 942·001-TI1.
-AA»-1-?Robert C. Watts, Jr.
Registered Professional Land Surveyor State of Texas No. 4995 ·.
Ch~ EXHIBIT ''A'' Professional Land Surveying, Inc.
Surveying and Mapping ti1IRC.3 WATERSTONE TYLERVILLE. LP. CHBce:612~1724 Fax: 512-s&9-0843 3500 McOaD Lane Austin, Texas 78744 CHARLES COCHRAN SURVEY, ABSTRACT NO. 134, IN WILLIAMSON COUNTY, TEXAS, BEING A PORTION OF A 107.928 ACRE TRACT CONVEYED TO WATERSTONE TVLERVILLE, L.P. IN A SPECIAL WARRANTY DEED WITH VENDOR•s UEN DATED AUGUST 6, 2004 AND RECORDED IN DOCUMENT NO.
2004083370 OF THE OFFICIAL PUBUC RECORDS OF WILLIAMSON COUNTY, TEXAS: SAID 26.318 ACRES BEING MORE PARTICUUARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS: BEGINNING at a 112" rebar with Chaparral cap set In the west fine of the safd 107.928 acre tract. being also In the south right-of-way lfne of San Gabriel Parkway (right-of-way wfdth varies) as described In Document No. 2005011119 of the Official Public Recorda of Williamson County, Texas, and being In the east line of a 34.705 acre tract described In Document No. 2005008808 of the Official Public Records of WIIDamson County, Texas. from which a 112• rebar found for the northwest comer of the 107.928 acre tract bears North 20°44'42• West. a distance of 453.14 feet
5008808 of the Official Public Records of WIIDamson County, Texas. from which a 112• rebar found for the northwest comer of the 107.928 acre tract bears North 20°44'42• West. a distance of 453.14 feet THENCE with the south line of San Gabriel Parkway, over and across the 107.928 acra tract. the foUowlng four (4) courses and dlstances: 1. South 77°11'17" East. a distance of 208.18 feel to a 112• rebar with 'ZWA cap found; 2. South 7S033'22u East, a distance of 999.84 feet to a 112• rebar with ZWA cap found; 3. South 78°1 0'26'* East. a distance of 3D8.67 feet to a 11%' rebar wllh Chaparral cap aat, from which a 112• rebar folll1d with an Ufeglble C!P found bears South 4. With a curve to the left. having a radius of 2150.00 feet. a delta angle of 14°13'24°, an aro length of 533.72 feet. and a chord which bears South 83°17'07" East. a distance of 632.35 feet to a 112" rebar with Chaparral cap set; · THENCE continuing over and across the 107.928 acre tract. the following two (4) courses and distances: .. .
Page2 1. South 00°24'10• East. a distance of 20.00 feet to a 112" rebar with Chaparral cap set; set; 3. North 88°14'4711 West. a distance of 20.00 feet to a 1/r rebar with ChapanaJ cap set: 4. South 01°45'1311 West. a distance of 284.57 feet to a calculated point In the aouth llne of the 107.828 acre tract. baing also the north line of a 184.468 acre tract described In Document No. 2004083388 of the Official Pubftc Records of Wi!Uamaon County, Texas, being atso an agreed boundary line described In Volume 1456, Page 298 of the Official PubRc Records of Williamson County,
ment No. 2004083388 of the Official Pubftc Records of Wi!Uamaon County, Texas, being atso an agreed boundary line described In Volume 1456, Page 298 of the Official PubRc Records of Williamson County, Texas, from which a 112• rebar found In the common One of the 107.928 acre tract and the 164.488 acre tract. and betng In the wast Dna of a 3.160 acre tract described fn Document No. 2000053933 of the Official Public Records of WDJfamaon County, Texas bears North 83'61'43• East. a distance of 66.17 teet.
and South 88°45'1r East, a distance of 11.33 feet for the northwest comer of the 3.150 acre tract. and South 00°45'2SO East. a distance of 22.28 feet THENCE with the south tine of the 107.928 acre tract, being also the north line of the 184.488 acre tract. being also the agreed boundary line, and being the center of Brushy Creek. the following fourteen (14) cou11ea and distances: 1. South 83°61'43a West, a distance of 205.44 feat to a calculated point: 2. South 1tr32'43a West. a distance of 105.29 feet to a calculated point; 3. ,South 70°1 0'43" West. a distance of 89.94 feet to a calculated point; 4. North 39°53'17" West. a distance of 143.77 feet to a calculated potnt; 6. South 75°34'43" West. a distance of 148.11 feet to a calculated point 8. South 67°03'43" West. a distance of 58.81 feet to a calculated point; 7. North 82°30'17• West, a distance of 435.20 feet to a calculated point; 8. North 41J8069'1'7" West, a distance of 76.24 feet to a calculated point; ' ·.
Page3 9. South 69°06'43" West a distance of 245.27 feet to a calculated point; 10.South 80°03'43" West a distance of 151.16 feet to a ca1culated point; 11. North 35°1 0'17" West, a distance of 76.69 feet to a calculated point; 12.North 13°32'17°West, a distance of73.80 feet to a calculated point,
West a distance of 151.16 feet to a ca1culated point; 11. North 35°1 0'17" West, a distance of 76.69 feet to a calculated point; 12.North 13°32'17°West, a distance of73.80 feet to a calculated point, 13. North 25°33'17" West, a distance of 89.71 feet to a calculated point; 14.North 77°13'17" West, a distance of 144.19 feet to a calculated point for the southwest comer of the 107.928 acre tract. being also the southeast comer of lot 3, Block H. Benbrook Ranch Section Two, Phase One, a subdivision of record In Cabinet CC, Slide 3 of the Plat Records of Williamson County, Texas: THENCE North 20°44'4211 West, with the west line of the 107.928 acre tract, being afso the east line of lot 3, Block H, and being the east line of the 34.705 acre tract, at 55.92 feet passing a 112" rebar found, and continuing for a total distance of 747.56 feet to the POINT OF BEGINNING, containing 25.319 acres of land, more or less.
Surveyed on the ground September 12,2013. Bearing basis Is Grid Azimuth for Texas Central Zone, 1983/93 HARN values from LCRA control network. Attachments: Survey Robert C. Watts. Jr. \ Registered Professional Land Surveyor ~ State of Texas No. 4995 b Q r i ~ ~-f t j ~ ~ i ~ $ ' \ ~ f : l· ~ ~ f J ~ ' .
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J PAPE·DAWSON ,.. ENGINEERS lAID BlVUDPHEHT EHYIRDKlUNTAl TRAHSPDRIATIOH WATER RUDUBCEI SURYEYIHB FIELD NOTES FOR A 0.310 of an acre.. or 13.492 square feet more or less. 1ract of lond out of lhe remaining ponion Records of WUUamson County, Texas. situate in the Charles Cochran Survey. Abstract No. 134.
ln lheCityofLeaoder, Texas. WUIIamsonCounty, Texas. Sald0.310 of an acre uact being more
Records of WUUamson County, Texas. situate in the Charles Cochran Survey. Abstract No. 134.
ln lheCityofLeaoder, Texas. WUIIamsonCounty, Texas. Sald0.310 of an acre uact being more fully clescrlbed as follows, with bearlop based on the North American Datum of J 983 (NA 2011) epoch 2010.00, from the Texas Coordinate System established for abe Central Zone: COMMENCING: At a calcuJar.ecl point. a nonbeast comer of said remainblg portion of a called 107.928 cere tract. the soUiheasl comer of San Gabriel Parkway, a variable width right of way recorded In Document No. 200S01Jll9 of rhe Official Public Reconls of Williamson County. Texas and a point in lhe southwest right of way line of U.S. IDgbway 183, a variable width right of way.
THENCE: S 71 °51'39" W, departing the southwes& right or way line of said U.S.
Hipway 183. alons and with the south rlsht of way line of sAid San Oabriel Parkway. a distance of 444.82 feet to a calculated point; THENCE: Southwesterly, alona a taogent curve to lhe right. said curve having a radius of 2.150.00 feet. a central aoaie of 17'44'2311 , a chcml beariDg and dlslanco or rod with cap marked ''Cbapamd", a point In dle south right of way line of sald San Oabriel Parkway; THENCE: Depanlng the south right of way line or said San Gabriel Parkway, over and across said remaining portion or said called 107.928 acre tract lhe roUowins calls and dis~ances: madced "Qapmal"; S 46002'4811 W, a distance of 3S.IS feet to a found fh• Iron rod wllb cap marked "Culpmal''; N 88° 14'47" W, a distance of 20.00 feet 10 a found K• iron rod wilh cap madced "Chapmal'';
adced "Qapmal"; S 46002'4811 W, a distance of 3S.IS feet to a found fh• Iron rod wllb cap marked "Culpmal''; N 88° 14'47" W, a distance of 20.00 feet 10 a found K• iron rod wilh cap madced "Chapmal''; . ~ .
'-' .. . .
Job No. 50'784-00 Pqe2of2 THENCE: cap marked "Pape·Dawson". the POINT OF BEOINNJNOi Continuing over and across said remaining portion or a called 107.928 acre marked "Pape-DawsOD•; marked "Pape-Dawson•: cap marked "Pope-Dawson•; N 01 °45'13• E. a distance of 98.01 feet 10 the POINT OF BEOINNINO end coutainins 0.310 of an acre iD the Clty of Leander, Williamson Counly.
Texas. Said tract beins llCC01'dance wllb a survey mado on lhe around ad a survey map prepaNCI under Job No. S0784-00 by Pape Dawson Engineers, me.
PREPARED BY: P;pe•DilWJOD &alna:rs.lnc.
DATE: December II, 2013 RBYJSI!D: December II. 2013 JOB No.: '0784-00 TBPE Finn Reglandon 1410 TBPLS Firm BesJaratlon 11100288-00 ...
..J PAPE-DAWSON p-ENGINEERS FILED AND RECORDED OFFICIAL PUBLIC RECORDS 2015046528 Nancy E. Rister, County Clerk Williamson County, Texas June 04, 2015 04:14PM