DECLARATION OF COVENANTS, RESTRICTIONS AND EASEMENTS FOR . WHITESTONE RANCH, PHASE 2 •.
DECLARATION OF COVENANTS, RESTRICTIONS AND EASEMENTS FOR WHITESTONE RANCH, PHASE 2 THIS DECLARATION OF COVENANTS, RESTRlCTIONS AND EASEMENTS FOR WHITESTONE RANCH, PHASE 2 (the "Declaration") is made effective as ofthe ~ .':3 . day of A~1() sj .,2002, by SRJ RlDGEHA VEN P ARTNERS, LTD., a Texas limited partnership (hereinafter referred to as "Declarant"). . .
BACKGROUND STATEMENT Declarant is the owner of certain real property in Tarrant County, Texas, being known as WHITESTONERANCH,PHASE2,asrecordedinCabinet A . ,Slide 7&17 ,Deed Records, Tarrant County, Texas. . .
Declarant intends to develop on lands, including, but not ·1imited . to, the real property described above, Ii development to be known as WHITESTONE RANCH, PHASE 2 (hereinafter .
referred to as the "Developmentfl). Declarant intends by this Declaration to impose mutually beneficial restrictions under a general plan ofimprovement for the benefit ofall owners ofresidentIal property within the Development by the recording of this Declaration and amendments thereto.
Declarant desires to provide a flexible and reasonable procedure for the overall development ofthe Development. Declarant also desires to establish a method for the administration; maintenance, preservation, uses and enjoyment of the property that is now or hereafter subjected to this Declaration and certain other properties described in this Declaration. .
Declarant has caused the Association to be formed as a Texas non~profit corporation to . perform certain functions for the common good and general welfare ofthe Owners (as heremafter defined).
Declarant hereby declares that all ofthe real property described above shall be held, sold and
. perform certain functions for the common good and general welfare ofthe Owners (as heremafter defined).
Declarant hereby declares that all ofthe real property described above shall be held, sold and conveyed subject to this Declaration, which is for the purpose ofenhancing and protecting the value, desirability and attractiveness ofthe Property (as hereinafter defined). The Covenants, Restrictions and Easements set forth herein shall run with the Property, and shall bebinding on all parties having or acquiring any right, title or interest in the Property or any part thereof, and shall, subject to the limitations herein provided, inure to the benefit ofeach Owner,his heirs, grantees, distributees, legal . representatives, successors, and assigns, and to the benefit of the Association.. .
ARTICLE!
DEFINITIONS The following words, when used in this Declaration, shall have the foUowingmeanings: 1.01 Association." Association" means Whitestone Ranch Homeowners Association, hic., a Texas non-profit corporation organized under the Texas Non,.. Profit Corporation Act,its successors and assigns ..
1.12 Owner. "Owner" means the record owner (including Declarant), whether one or more persons or entities,of fee simple title to any Lot; provided, however, that where fee simple title has been transferred and is being held merely as security for the repayment ofa loan, the person or entity who would own the Lot in fee simple ifsuch loan were paid in full shall be considered the Owner.
1.13 Parcel. "Parcel" shall mean and refer to separately designated residential areas comprised ofvarious types ofhousing initially or by annexation made subject to this Declaration.
For example, and by way of illustration and not limitation, a condominium development, a
idential areas comprised ofvarious types ofhousing initially or by annexation made subject to this Declaration.
For example, and by way of illustration and not limitation, a condominium development, a townhouse development, an apartment complex,and a single family detached home subdivision may all be designated as separate Parcels. Ifseparate Parcel status is desired for a given residential area; the Declarant shall designate such area as a Parcel in an amendment to this Declaration. In the absence of specific designation of separate Parcel status, all property made subject to· this Declaration shall be considered a part ofthe same Parcel. The Board may also grantParcel status to any area ifso requested in writing by the Owners holding at least seventy-five percent (75%) of the total votes entitled to vote thereon in such area.
1.14 Perimeter Wall. "Perimeter Wall" shall mean a screening wall approximately six feet high, with brickcolumns and masonry panels, constructed byDeclarant and/or the Association along· and immediately south of the northerly lot lines of the following lots, and lying within the· boundaries ofsuch lots: Lots 6-10 and Lots 19-26, Block 5; and Lot 1, Block 8 ofthe Development.'
1.15 Perimeter Wall Landscaping. "Perimeter Wall Landscaping" shall mean any grass, •.
. trees, shrubbery, groundcover or other plantings, and any sprinkler system or systems, that are !
installed by Applicant and/or the Association between the Perimeter Wall and the southerly edge of the pavement on Jerry Dunn Parkway.
1.16 Property. "Property" means that certain real property being known as Whitesto·ne .
Ranch, Phase 2,together with such additional real property as may be subjected to ·the provisions
Dunn Parkway.
1.16 Property. "Property" means that certain real property being known as Whitesto·ne .
Ranch, Phase 2,together with such additional real property as may be subjected to ·the provisions ofthis Declaration in accordance with the provisions ofArticle x hereof. .
1.17 Residence. "Residence" shall mean a Structure situated upon a Lot intended for independent use and occupancy as a residence for a single family. A ~tructure situated on a Lot shali .
not become a Residence until a certificate ofoccupancy shall have been issued by the appropriate governmental authorities as a prerequisite to the occupancy ofsuch Residence and until the Lot and structure located thereon shall have been conveyed to a third party other than the builder thereof unless the builder intends to use the structure as his or her primary residence. The Owner of a Residence shall notify the Association or its designee immediately upon issuance ofa certificate of occupancy for the Residence.
1.18 Restrictions. "Restrictions" means all covenants, restrictions, easements, charges, liens and other obligations created or imposed by this Declaration.
1.19 Structure. "Structure" means: (a) any thing or object the placement ofwhich upon any Lot may affect the appearance of such Lot, including by way of illustration and not limitation, any building or part thereof, garage, porch, shed, greenhouse or bathhouse, coop or cage, 3 . covered oruncovered patio, swimming pool, dock, fence, curbing, paving, wall, tree, ' shrub (and all other forms oflandsca.ping), sign, signboard, temporary or pennanent living quarters (including any house trailer) or any other temporary or pennanent improvement to such Lot; (b) any excavation, grading, fill, ditch, diversion dam orother thing or device
or pennanent living quarters (including any house trailer) or any other temporary or pennanent improvement to such Lot; (b) any excavation, grading, fill, ditch, diversion dam orother thing or device which affects or alters the natural flow ofsurface waters from, upon or across any Lot, or which affects or alters the flow ofany waters in any natural or artificial creek, stream, wash or drainage channel from, upon or across any Lot; and (c) any change in the grade at any point on a Lot ofmore than six (6) inches,' whether or not subsection (b) ofthis Section 1.17 applies to such change.
ARTICLE II COMMON PROPERTY 2.01 Conveyance of Common Property; (a) The Declarant may from time to time convey to the Association or grant' easements to the Association, at no expense to the Associationandin accordance with this Section, real and personal property for the common use and enjoyment of the Owners ofResidence (such real and personal property is hereinafter collectively Teferred to as "Common Property") and, to the extent set forth inthis Declaration, the general public. The Association hereby covenants and agrees to accept from the , Declarantall such conveyances ofCommon Property.
(b) It is contemplated by the Declarant that the Declarant will convey to the . Association Common Property for access, ingress and egress ofboth vehicular traffic and pedestrians, as well as for landscaping and security purposes. The Declarant may, atDeclarant's sole discretion, modify, alter, increase, reduce and otherwise change the Common Property (or the use to be made thereof) contemplated to be· conveyed to the Association in accordance with this subsection (b) of this Section 2.01 at any time prior to conveyance ofsuch Common Property to the Association.
be made thereof) contemplated to be· conveyed to the Association in accordance with this subsection (b) of this Section 2.01 at any time prior to conveyance ofsuch Common Property to the Association.
(c) In addition to the property described in subsection (b) ofthis Section2.0i, the Declarant may convey to the Association in accordance with this Section 2.01 such other real and personal property as the Declarant may detennine to be necessary or proper for the completion ofthe Development.
(d)Notwithstanding any legal presumption to the contrary, the 'fee title to, and .
all rights in any portion ofthe Property owned by the Declarant and designated as Common Property or designated for public use shall be reserved to the Declarant until such time as the same· shall be conveyed to the Association or to any municipality or other governmental body~ agency or authority.
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(e) "Common Property" shall also include all real and personal property .
acquired by the Association forthe common use and enjoyment ofthe Owners, and to the extent set forth in this Declaration, the general pUblic.
2.02 Right ofEnjoyment. Every Owner of a Residence shall have a right and easement· to use the Common Property, which right shall be appurtenant to and shall pass withthe title to every Lot upon transfer; provided, however, that no Owner shall do any act which interferes with the free· use and enjoyment of the Common Property by all other Owners. The Association may permit ~rsonswho are not Owners ofResidences to use part ofall ofthe Common Property subject tosuch limitations, and upon such terms and conditions,. as it may from time to time establish. The right and .
easement of enjoyment granted or permitted by this Section 2.02 is subject to suspension by the
limitations, and upon such terms and conditions,. as it may from time to time establish. The right and .
easement of enjoyment granted or permitted by this Section 2.02 is subject to suspension by the Association as provided in Sections 2.03(e) and 3.05. .
. 2.03· Rights ofThe Association. The rights and privileges conferred in Section 2.02 hereof shall be subject to the right, and where applicable, the obligation, ofthe Association acting through the Board to: .
(a) promulgate niles and l,"egulations relating to. the use, operation and maintenance ofthe Common Property; (b) borrow. money for the purpose of carrying out the activities of the Association, including the acquisition, construction, improvements, equipping and maintenance ofCommon Property, and in aid thereof to encwnber by deed oftrust, mortgage or other security interest any or all ofthe Association's property including Common Property and revenues from assessments, user fees and other sources; and provided, however, that, during the period when the Declarant has the right to appoint members ofthe Board, the Association ~hall not grant or convey to anyone any mortgage, deed oitrust or other security interest on or in Common Property constituting real estate without approval by Declarant and a two-thirds (2/3rds) vote ofthe Members who are present in person or by proxy and voting at a meeting of Members duly held in accordance with the Bylaws ofthe Association; .
(c) grant easements or rights of way over Common Property to any municipality or other governmental body, agency or authority, to any quasi.;.public agency or to any utility company or cable television system; (d) dedicate or transfer all or any part ofthe Common Property or interests
r governmental body, agency or authority, to any quasi.;.public agency or to any utility company or cable television system; (d) dedicate or transfer all or any part ofthe Common Property or interests therein to any municipality or other governmental body, agency orauthority for such purposes and subject to such provisions and conditions as may be agreed upon by the Association and such grantee, including a prOVision that such property or interest . shall, ifsuch d~dication or transfer is approved by a two-thirds (2/3rds) vote ofthe Members who are present in person orby proxy and voting at a meeti.J;lg ofMembers .
duly held in accordance with the Bylaws of the Association, cease to be subject to this Declaration or all or any part of the Restrictions while held by any such municipality or other governmental body, agency or authority: 5 ..
(e) suspend, pursuant to Section 3.05, the voting rights ofany Member and the right of enjoyment granted or permitted by Section 2,02; (f) sell, lease or otherwise convey all or any part ofits properties and interests therein; .
(g) enforce all applicable provisions of valid agreements ofthe Association relating to the Common Property or any part thereof; (h) maintain any and all landscaping treatments previously installed by the Declarant, to the extent that such landscaping is not otherwise maintained by the appropriate county andlor municipal entity having jurisdiction over the roads for Tarrant COimty, Texas; (i) maintain and keep in good repair the P.erlmeter Wall and the Perimeter .
obligation ofthe Association. .
''''- . . 0) contract on behalf of all Lots for garbage and rubbish pickup, and to"
meter .
obligation ofthe Association. .
''''- . . 0) contract on behalf of all Lots for garbage and rubbish pickup, and to" share to be determined by dividing the number ofLots being served into the total cost of providing such garbage and rubbish pickup,· If the Association so elects, the charge to each Owner for garbage and rubbish pickup shall be in addition to the Assessments described in Article IV hereof; and (k) contract on behalf of all Lots for security andlor emergency medical .
ambulance services, and to charge the Owner ofeach Lot forhis prorata share ofthe cost thereof, such prorata share to be determined by dividing the number of Lots being served into the total cost ofproviding such security andlor emergency mec.lical ambulance service. If the Association so .elects, the charge to each Owner for security andlor emergency medical ambulance service shall be ill addition to the., Assessments described in Article IV hereof.
2.04 Conveyance ofCommon Property by DeClarant to Association. The Declarant may transfer or convey to the Association any personal property and any improved or unimproved property, leasehold, easement or other property interest which is or'may be subjected to the terms ofthis Declaration, Such conveyance shall be accepted by the Association, and the property shall -thereafter be Common Property to be maintained by the Association for the benefit of all of its Members.
2.05 Types of Common Property. At the time ofthe conveyance ofany real property or .
grant ofeasement by the Declarant to the Association to be used as Common Property, the Declarant
l of its Members.
2.05 Types of Common Property. At the time ofthe conveyance ofany real property or .
grant ofeasement by the Declarant to the Association to be used as Common Property, the Declarant shall designate in the deed of conveyance of easement that such real property is to be Common Property, and further may designate in the deed of conveyance or easement the specific or general purpose or purposes for which such real property or any portion thereof may be used and in such event, such real property or portion thereof shall not, without a two-thirds (2/3rds) vote of the 6 ..
Members, be used for any different purpose ot purposes without the prior written consent ofthe Declarant..
2~06 Delegation of Use. Any Owner may delegate to the members ofhis family or his tenants y.rho reside on a Lot, in accordance with the Bylaws, his right to use and enjoy the Common Property.
2.07 Maintenance and Other Common Expenses: (a) The Association shall maintain and keep in good repair the Common Property including, without limitation, all landscaping and improvements situated on .
the Common Property. In addition to the maintenance ofthe Common Property, the.
Association shall have the obligation to maintain, repair, .and replace aU grass, trees, .
shrubbery or other plantings, sidewalks, fences, walls, street lights, benches, trash receptacles, sprinkler systems, informational and directional street signage installed by Declarant, security gates, and any other property Declarant or the.City of Benbrook designates as a maintenance obligation of the Association by an amendment to this Declaration. .
(b) The Association shall maintain and keep in good repair the Perimeter Wall and the Perimeter wall Landscaping. The Association shall maintain and replace all
by an amendment to this Declaration. .
(b) The Association shall maintain and keep in good repair the Perimeter Wall and the Perimeter wall Landscaping. The Association shall maintain and replace all grass, trees, shrubbery, ground cover or other plantings, and repair arid replace any (c) The Common Property is private, and is owned and maintained by the Association. The City ofBenbrook has no obligation to maintain or reconstruct the Common Property; however, the City of Benbrook may assume· the duty of performing the maintenance ofthe Common P~o'perty, the Perimeter Walland the Perimeter Wall Landscaping· if the Association dissolves or in any way fails or refuses to perform its obligations. The City of Benbrookmay use the outstanding balance ofthe Common Property Maintenance Reserve Fund for maintenance ofthe Common Property, the Perimeter Wall and the Perimeter Wall Landscaping or to make the Common Property suitable for public use. In the event the outstanding balance of the Common Proper Maintenance Reserve Fund is ·insufficient to cover this cost, the City ofBenbrook may levy an assessment upon each Lot on a pro rata basis for the cost ofperforming the maintenance obligations ..
(d) The Association shall be responsible for contacting the City ofBenbrook Inspection Department every two (2) years, or as needed, from time ofconstruction to schedule an inspection by city staff and/or their designee ofthe Common Property, the Perimeter Wall and the Perimeter Wall Landscaping. .
ARTICLE III WHITESTONE RANCH HOMEOWNERS ASSOCIATION 3.01 Put:poses, Powers and Duties of The Association. The Association shall be formed
erty, the Perimeter Wall and the Perimeter Wall Landscaping. .
ARTICLE III WHITESTONE RANCH HOMEOWNERS ASSOCIATION 3.01 Put:poses, Powers and Duties of The Association. The Association shall be formed as a non-profit corporation for the sole purpose ofperforming certain functions for the common good 7 and general welfare ofthe residents of the Development. The Association shall have no power or duty to do or perform any act or thing other than those acts and things which will promote in some way the common good and general welfare ofthe Members. To the extent, and only to the extent, necessary to carry out such purpose, the Association (a) shall have all ofthe powers ofa Texas non profit c~rporation organized under the Texas Non-Profit Corporation Act, and (b) shall have the power and duty to exercise all ofthe rights, pow~rs and privileges and to perform all of the duties and obligations of the Association as set forth in this Declaration.
3.02 Membership in the Association. Every Owner shall automatically be a member of the Association and such membership shall terminate only as provided in this Declaration. For purposes of voting, there shall be two (2) classes of Members as set forth in Section 3.03.
3.03· V oting Rights ..
(a) Each Owner ofa Residence, with the exception ofDedarant, shall be a Class A Member and shall be entitled to one (I) Class A vote per Residence. Where such Owner is a group or entity other than one individual person, the vote on behalf of such Owner shall be exercised only by such individual person as shall be designated in a proxy instrument duly executed by or on behalf of such group or . entity and delivered to the secretary of the Association.
(b) The Declarant shall be the sole Class RMember and shall be entitled to
a proxy instrument duly executed by or on behalf of such group or . entity and delivered to the secretary of the Association.
(b) The Declarant shall be the sole Class RMember and shall be entitled to nine (9) votes for each Lot or Residence owned; provided, however, in no event shall the Class B Member have less than the total number of Class A votes plus one (I).
The Class B Membership shall cease and be converted to Class A Membership at such time as Declarant no longer retains the right to appoint and remove members of .
the Board and officers ofthe Association pursuantto Section 3.08-below.
(c) The Development will be composed of Lots to be developed in phases containing unequal numbers ofLots. Each such phase will be platted ofrecord in the Office· ofthe Clerk of Tarrant County, Texas, in accordance with Article X ofthis Declaration. The Declarant shall notify the Association in writing when the final phase of the Development has been so platted of record. By acceptance of a deed conveying a Lot, each Owner acknowledges that, upon the filing by Declarant ofthe .
subdivision plats covering such phases, the total votes outstanding in the Association will automatically increase based upon the number ofLots in the phases added and in accordance with the formula set forth in subsection (bYofthis Section 3.03 and in no event shall Class B Membership cease and be converted to Class A Membership [as provided in subsection (b) of this Section 3.03] until after the Association receives the written notice provided for in the preceding sentence; provided, however, nothing contained herein shall .obligate the Declarant to develop any .
proposed phase of the Development unless such phase is subjected to· this Declaration.
he preceding sentence; provided, however, nothing contained herein shall .obligate the Declarant to develop any .
proposed phase of the Development unless such phase is subjected to· this Declaration.
3.04 Board ofDirectors. The affairs ofthe Association shall be managed by a Board of Directors. The number of Directors and the method of election ofDirectors shall be as set forth in the Bylaws ofthe Association.
8 I " 3 . .05 Suspension ofMembership Rights. The Board may suspend the voting rights ofany Member and the right ofenjoyment ofthe Common Property ofany person 'who: (a) shall be subject to the Right ofAbatement, as defmed in Section 8.02, by reason ofhaving failed to take the reasonable steps to remedy a violation or breach ofeither the Restrictions orthe Design Standards (as hereinafter defined) ofthe ACC (as hereinafter defined) within thirty (30) days after having received 'notice ofthe same pursuant to the provisio:p.s of Section 5.11, 6,16 or 8.02 hereof; (b) shall be delinquent in the payment of any assessment levied by the Association pursuant to the provisions ofArticle IV hereof; or (c) shall be in violation ofthe rules and regulations ofthe Association relating to the use, operation and maintenance ofCommon Property .
Such suspension shall be for the balance ofthe period in which said Member or person shall remain in violation, breach or default, as aforesaid, except that in the case ofa violation described in subsection ( c) ofthis Section 3.05, the suspension may be for a period not to exceed 60. days after ' the cure or termination ofsuch violation. No such suspension shall prevent an Owner's ingress to or egress from his Lot.
3.06 Termination ofMembership. Membership shall cease only when a person ceases to \ be an Owner.
ation ofsuch violation. No such suspension shall prevent an Owner's ingress to or egress from his Lot.
3.06 Termination ofMembership. Membership shall cease only when a person ceases to \ be an Owner.
3.07 Voting Procedures. The procedures for the election ofDirectors ofthe Association and the resolution ofsuch other issues as may be broughtbefore the membership ofthe Association , shall be governed by this Declaration, the Texas Non-Profit'torporation Act, the Articles of Incorporation ofthe Association, and the Bylaws ofthe Association, as each shall from time to time be in force and effect.
3.08 Control by Declarant.
(a) Notwithstanding any other language or provision to the contrary in this Declaration, in the Articles of Incorporation, or in the Bylaws of the Association, Declarant hereby retains the right to appoint and remove any member ofthe Board ofthe Association and any officer or officers ofthe Association until 15 days after the first ofthe following events shall occur: (i) the expiration oftwenty (20) years after the date ofthe recording ofthis Declaration, (ii) the date upon which all ofthe Lots intended by Declarant to be a part ofthe Development have been conveyed by Declarant to Owners other than a person or persons constituting Declarant; or (iii) the surrender by Declarant ofthe authority to appoint and remove directors and officers .
by an express amendment tO'this Declaration executed and recorded by Declarant; provided, however, that the Owners shall be·entitled to elect certain members ofthe Board of the Association in accordance with the terms or' the Bylaws of the Association which shall not be removable bythe Declarant acting alone.
9 (b) Upon the expiration of the period of Declarant's right to appoint and .
in accordance with the terms or' the Bylaws of the Association which shall not be removable bythe Declarant acting alone.
9 (b) Upon the expiration of the period of Declarant's right to appoint and .
remove directors and officers ofthe Association pursuant to the provisions ofthis Section, such right shall automatically pass to the Owners, including Declarant if Declarant then, owns one or more Lots, and a special meeting ofthe Association shall be called at such time. At such special meeting the Owners shall elect a new Board ofDirectors which shall undertake the responsibilities ofthe Board, and Declarant shall deliver the books, accounts, and records, ifany, which Declarant has kept on behalf ofthe Association and any agreements or contracts executed by or on behalf of the Association during such period which Declarant has in its possession .. Each Owner, by acceptance of a deed to or other conveyance ofa Lot v<;:sts in Declarant such authority to appoint and remove directors and officers of the Association as provided in this Section. The Association may exercise any other right or privilege given to it expressly by this Declaration or by law and any other right or privilege reasonably to be implied from the existence of any right or privilege given to it herein or reasonably necessary to effectuate any such right or privilege ..
ARTICLE IV ASSESSMENTS· 4.01 Covenant for Assessments and Creation of Lien and Personal Qbligation. Each Owner ofa Residence, jointly and severally, for himself, his heirs, distributees, legal representatives, successors and assigns, by acceptance of a deed for a Residence, whether or not the covenants contained herein shall be expressed in any such deed, hereby covenants and agrees as follows:
esentatives, successors and assigns, by acceptance of a deed for a Residence, whether or not the covenants contained herein shall be expressed in any such deed, hereby covenants and agrees as follows: (a) to timely pay to the Association the'rumual assessments which mayor shall be levied by the Association pursuant to this Declaration against all Residences owned by him; .
. (b) to timely pay to the Association any special assessments for capital .
improvements and other charges which mayor shall be levied by the Association pursuant to this Declaration against all Residences owned by him; (c) that there is hereby created a continuing charge and lien upon all Residences owned by him against which all such assessments are made to secure payment ofsuch assessments and any interest thereon as provided in Section 4.09 hereof and costs of.collection including reasonable attorneys' fees; (d) that such continuing charge and lien on such Residence binds such Residence in the hands of the then Owner, and the Owner's heirs, devisees, legal representatives, successors and assigns. Such charge and lien is superior to any and all charges, liens or encumbrances which may hereafter in any manner arise or be imposed upon such Lots whether arising from or imposed by jUdgment or decree or by any agreement, contract, mortgage, deed oftrust or other instrument,except (i) such liens for taxes or other public charges as are by applicable law made superior, and (ii) all deeds to secure debt given to secure a loan the proceeds ofwhich are used 10 (1) to purchase a Residence or Residences (together with any and all Structures which may from time to time be placed or located thereon), and (2) to finance the· construction repair or alteration ofStructures. A person or entity acquiring a lien or
er with any and all Structures which may from time to time be placed or located thereon), and (2) to finance the· construction repair or alteration ofStructures. A person or entity acquiring a lien or encumbrance on a Residence after this Declaration is recorded shall acknowledge, by the act of filing an instrument creating such lien, that such lien or encumbrance is inferior tb the continuing lien for the charge and lien provided for herein, whether or not such acknowledgment is specifically stated in the instrument creating the lien or encumbrance, except as provided by Subsections (i) aJ;ld (ii) above; . ( e) that no sale or transfer at foreclosure or in lieu offoreclosure shall relieve . any Residence from liability for any assessment thereafter assessed; (f) that all annual, special and specific assessments (together with interest thereon as provided in Section 4.09 of this Declaration and costs of collection including reasonable attorneys' fees) levied against any Residence owned by him during the period that he is an Owner shall be [in addition to being a continuing charge and lien against such Residence as provided inSection 4.01(c)of this Declaration] a personal obligation which will survive any sale or transfer of the .
Residence owned by him, provided,. however, that such personal· obligation for delinquent assessments shall not pass to an Owner's successor in title unless expressly assumed by such successor, and (g) failure to pay any assessment when due shall constitute a default ofthe Owner's obligations hereunder, and shall entitle the Association to exercise the remedies provided under the terms ofthis Declaration.
4.02PUI]Jose of Assessment. The assessments levied1bythe Association shall be used
ns hereunder, and shall entitle the Association to exercise the remedies provided under the terms ofthis Declaration.
4.02PUI]Jose of Assessment. The assessments levied1bythe Association shall be used exclusively for the purpose ofproviding for the common good ~dgenera1welfare ofthe Residents of the Development, including,but not limited to, security, the acquisition, construction, improvement, maintenance, insuring, and equipping ofCommon Property, maintenarice ofprivate driveways or other improvements or landscaping which are designated by Declarant to be maintenance obligations ofthe Association, the enforcement of the Restrictions contained in this Declaration, the enforcement ofthe Design Standards ofthe ACC, the payment ofoperating costs and expenses of the Association including, without limitation, any ad. valorem real and personal property taxes on any real and personal property owned by the Association, and the payment ofall principal and interest when due on all debts owed by the Association.
4.03 Accumulation ofFunds Permitted. The Association shall not be obligated to spend in any calendar year all the sums collected in such year by way ofannual assessments or otherwise, and may carry forward, as surplus, any balances remaining, noR shall the Association be obligated to apply such surplus to the reduction ofthe amount ofthe Annual Assessments in any succeeding .
year, but may carry forward from year to year such surplus as the Board may deemto be desirable for the greater financial security ofthe Association and the effectuation ofits purposes.
4.04 Annual Assessment.
11 ..
(a) Beginning on the Commencement Date and continuing thereafter until .
January.l ofthe year immediately following the CommencementDate~ eachLotshall .
n ofits purposes.
4.04 Annual Assessment.
11 ..
(a) Beginning on the Commencement Date and continuing thereafter until .
January.l ofthe year immediately following the CommencementDate~ eachLotshall .
be subject to an Annual Assessment ofTwo Hundred and Noll00 Dollars ($200.00) per Residence, provided, however, in the event that the Commencement Date falls on a day othe:r than January l, the Annual Assessment for suchyear shall be prorated .
so that each Owner pays an Annual Assessment proportional to the number ofdays remaining in the calendar year .. The Annual Assessment may include the Reserve Fund fee as provided in Section 4.05. The words "Assessment Year'~ as used herein shall mean the caIendaryear, withthe first Assessment Yearcommencing onJanuary" Declarant has the right to appoint and remove Directors and Officers of the Association, the. Annual Assessment shall not be reduced below $2pO.00 without the express written consent ofDeclarant.
(b) Commencing with the first Assessment Year and' continuing thereafter,.
the anpual assessment may be increased at any time and from time to time during each Assessment Year by Declarant, provided, however~ such increase shall not be more than twenty percent (20%) . above the' Annual Assessment for the previous .
Assessment Year without a vote ofthe Membership. . .
(c) Commencing with the first ASsessment Year and continuing thereafter, the Annual Assessment for each Assessment Year may at any time and from time to time be increased more than twenty percent (200/0) above the maximum. annual Assessment for the previous Assessment Year ifsuch increase is approved 'by a two
nt Year may at any time and from time to time be increased more than twenty percent (200/0) above the maximum. annual Assessment for the previous Assessment Year ifsuch increase is approved 'by a two thirds (2/3) vote ofthe Members ofthe Association who are present In person or by proxy and voting at a meeting of Members duly held in accordance with the (a)TheAssociation shall establish a Common Property MainteD.anceReserve .Fund (the "Reserve Fund") for the maintenance, repair and reconstruction of the Common Property, the Perimeter Wall and the Perimeter Wall' Landscaping. The Reserve Fund shall not be co-mingled with any otherAssociation fund. The Reserve· Fund fee may be a part of the Annual Assessment, subject to the limitations established in this Section. " (b) Every Owner shall be assessed an annual Reserve Fund fee by the Association~ The annual aggregate Reserve Fund fee duefor theAssociation $allnot be less than $1.00 for each front foot for all Lots in the Development. The annual \ Reserve Fund fee shall be deposited into theReserve Fund. On the fifth anniversary .
of its creation and on each anniversary thereafter, the accum~aied balance ofthe Reserve Fund shall not be less than $5.00 per front foot for ail Lots in the Development.
(c) The formula for calculating the annual Reserve Fund fee may bereviewed and amended by the Association as needed, upon approval by the City ofBenbrook 12 UpQn request, the Association shall provide the City of Benbrook an audited .
statement ofthe Reserve Fund's balance.
(d) If the Association desires, it may maintain an insurance policy in effect .
12 UpQn request, the Association shall provide the City of Benbrook an audited .
statement ofthe Reserve Fund's balance.
(d) If the Association desires, it may maintain an insurance policy in effect .
for the specific purpose ofany required repair, maintenance or reconstruction ofthe I ..
Common Property, the Perimeter Wall and the Perimeter Wall Landscaping; and such insurance shall be in a form acceptable to the City ofBenbrook. The preqliums .
for such insurance policy will be paid directly from the funds collected hi the annual assessment by the' Association. Maintaining such an insurance policy . shall not, however, release the Association from its obligation to maintain aIld keep in good . repair. the Common Property, the Perimeter Wall and the Perimeter Wall Landscaping in the manner herein provided .
. 4.06 Special and Parcel Assessments .
. (a) In addition to the Annual Assessments authorized by this Article IV, the' Association may levy, in any Assessment Year and with such frequency as the Association shall deem necessary, Special Assessments for the purpose of paying, ..
inwhole or in part, any unanticipated operating expenses, as well as the cost ofany construction, reconstruction, repair or replacement ofa capital improvement on the Common Property or on any private drives designated by Declarant to' be a maintenance obligation ofthe Association. Such Special Assessments may be levied by the Board in any Assessment Year without the approval ofthe Members, which special assessments in the aggregate do not exceed an amount equal to the Annual .
Assessment then iIi effect. Special Assessments exceeding said amountshall require the approval of two-thirds (2/3) of the Members who are 'present in person or by
ceed an amount equal to the Annual .
Assessment then iIi effect. Special Assessments exceeding said amountshall require the approval of two-thirds (2/3) of the Members who are 'present in person or by proxy at a meeting ofMembers duly held in aCGPrdance with the provisions ofthe Bylaws ofthe Association and this Declaration.
(b) The Association shall also be authorized to levy, in any Assessment Year and with such frequency as the Association shall deem necessary, Parcel Assessments for the purpose of paying, in whole or in part, the cost of estimated expenses for the sole benefit ofa particular Parcel, which Parcel Assessments shall be allocated equally among the Residences in a ParceL 4.07 Assessment Procedure.
(a) The Board shall establish the Annual Assessment for each Assessment Year at an amountnot in excess ofthe maximum Annual Assessment as determined by the provisions of this Article IV and shall also establish the date during the .
Assessment Year on which the Annual Assessment shall be due and 'payable (such date is hereinafter referred to as the "Due Date"). The Board shall also establish an annual budget which shall list the estimated operating expenses and shall contain an .
amount to be set aside each year into a Reserve Allowance to be used for future repair and replacement of the Common Property; provided, however, in no event ..
shall the Board be required to provide for a reserve sufficient to cover all such future repair and replacement ofthe Common Property, it being intended that aportion of 13 such costs will be covered by Special Assessments. The Reserve Allowance shall not be co-mingled with the Reserve Fund established in Section 4.05. The Board shall cause the Association to send to each Owner at least thirty (30) days inadvance of
nts. The Reserve Allowance shall not be co-mingled with the Reserve Fund established in Section 4.05. The Board shall cause the Association to send to each Owner at least thirty (30) days inadvance of theDue Date written notice setting forth the amount ofthe annual assessment and the ' Due Date. ,The annual assessment shall become due on the thirtieth (30th) day following such written notice or the Due Date, whichever is later. The Board may establish reasonable payment procedures to allow or require payment ofthe annual assessment in installments during the Assessment Year. The Board shall also establish payment procedures for payment of any special assessments for capital , improvements which may be levied in: accordance with the provisions ofthis Article IV.
(b) All Members ofthe Association shall be giveri written notice by the Board not less than thirty (30) nor more than sixty (60) days in advance afany meeting of the Members of the Association at which the Board shall propose taking action pursuant to Section 4.04(c) and Section 4.05 ofthis Article IV. Such written notice shall specify under which Section or Sections the Board will propose action. At such.
meeting, the presence ofMembers or ofparties entitled to cast fifty percent (50%) ofthe total votes outstanding shall constitute a quorum. If-the required quorum is not present at such meeting, a second meeting may be called by the Board subject to the same notice requirement, and the required quorum at such second meeting shallbe thirty percent (30%) ofthe total votes outstanding. No such second meeting shall be held more than sixty (60) days following the first meeting; Ifthe required quorum is not present at the second meeting, the Board may take such action without ' approval oithe Members. '
ting shall be held more than sixty (60) days following the first meeting; Ifthe required quorum is not present at the second meeting, the Board may take such action without ' approval oithe Members. ' 4.08 Uniform Rate ofAssessment. Both Annual and-6pecial Assessments must be fixed at a uniform rate for all Residences.
4.09 Contributionby Declarant. For so long as Declarant has the authority to appoint and remove Directors and Officers oftheAssociation, Declarant shall not be liable for this payment of .
any assessments, provided, however, during said period Declarant shall advance funds to the Association sufficient to satisfy the deficit, if any, between the actual operating expenses of the Association (but specifically not including an allocation for the reserve allowance), and the'sum of Annual, Special and Specific Assessments collected by the Association in any Assessment Year, and such advances shall be evidenced by promissory notes from the Association to Declarant.
4.10 Effect ofNon-payment of Assessments. Any Assessment which is not paid on or before the Due Date shall bear interest after the Due Date at the lower of(i) the highest legal rate of interest which can be charged, or (ii) the rate ofeighteen percent (18%) per annum, or (iii) at such rate as the Board may from time to time establish; provided, however,that in no event shall the .
Board have the power to establish a rate ofinterest in violation ofthe laws ofthe State ofTexas. In the event ofdefault inthe payment ofanyone ormore installments ofan Assessment, the Board may declare any remaining balance' of the Assessment at· once due and payable. In the event that an Owner shall fail to pay fully any portion ofany Assessment prior to the date on which payment is
ard may declare any remaining balance' of the Assessment at· once due and payable. In the event that an Owner shall fail to pay fully any portion ofany Assessment prior to the date on which payment is due, such unpaid portion (including any remaining balance declared immediately due and payable in accordance with the preceding sentence), together with interest and ~osts ofcollection including 14 " reasonable attorneys' fees shall be a binding personal obligation ofsuch Owner, as well as a lien on .
such Owner's Residence enforceable in accordance with the provisions ofthis Declaration.
·4.11 Certificate of Payment. Upon written demand by ail Owner, the Association shall within ~ reasonable period oftime issue and furnish to such Owner a written certificate stating that all Assessments (including penalties, interest and costs, if any) have been paid with respect to any Lot owned by said Owner as ofthe date ofsuch certificate, or that all Assessments, interest and costs have not been paid, setting forth the amount then due and payable. The Association may make a reasonable charge for the issuance of such certificate, Any such certificate,. when duly issued as herein provided, shall be conclusive and binding with regard to any matter therein stated as between the Association and any bone fide purchaser of, or lender on, the Lot in question.
4.12 Approval by Declarant. Notwithstanding anything to the contrary contained herein, .
no Special Assessment shall be made without the approval ofDeclarant for so long as Declarant has the right to appoint officers and directors ofthe Association ..
4.13 Specific Assessments. The Board shallhave the power to specifically assess any Owner pursuant to this Section as in-its discretion it shall deem appropriate. Failure ofthe Board·
e Association ..
4.13 Specific Assessments. The Board shallhave the power to specifically assess any Owner pursuant to this Section as in-its discretion it shall deem appropriate. Failure ofthe Board· to exercise its authority under this Section shall not be grounds for any action against the Association or the Board and shall not constitute a waiver ofthe Board's right to exercise its authority under this ' Section in the future with respect to any expenses, including an expense for which the Board has not previously exercised its authority under this Section. The Board may specifically assess Owners for the following expenses, except for expenses incurred for maintenance and repair ofitems which are the maintenance responsibility ofthe Association as provided herein: (a) Expenses ofthe Association which benefit less than all ofthe Residences, which may be specifically assessed equitably aDtong all ofthe Residences which are .
benefitted according to the benefit received; (b) Expenses incurred bythe Association pursuant to Section 6.16 hereof, and . (c) Reasonable nnes as may be i~posed in accordance with the terms ofthis .
Declaration and the Bylaws, ARTICLE VI ARCHITECTURAL CONTROL 5.01 Architectural Control Committee -Creation and Composition ..
(a) An Architectural Control Committee (the "ACC") shall be established consisting of not less than three (3) nor more than five (5) individuals, provided, however, .that the ACC shall always have an uneven number of members.
Notwithstanding anything to the contrary contained herein, Declarant shall have the right, but not the obligation, to appoint all members ofthe ACe until the plans for all ofthe Residences for all ofthe Lots in the Development have been approved by 15
herein, Declarant shall have the right, but not the obligation, to appoint all members ofthe ACe until the plans for all ofthe Residences for all ofthe Lots in the Development have been approved by 15 the ACC. Thereafter, the Board shall appoint the merribers ofthe ACC. All costs of operating the ACC may, at the discretion ofDeclarant, be borne by the Association.
(b) Each initial member ofthe ACe shall be appointed for a term ofone (1) .
year. ·Thereafter each member ofthe ACC shall be appointed for a calendar-year term. Ifany vacancy shall occur in the membership ofthe ACC by reason ofdeath, .
incapacity, resignation, removal Or otherwise, the remaining members ofthe ACC shall continue to act and such vacancy shall, subject to the provisions of5.01(a), be . filled by the Declarant (or Board if at the time the Board has the right to appoint members ofthe ACC) at the earliest possible time. Any ACC member may resigil.
at any time by giving written notice ofsuch resignationto the Chairman ofllie ACC and such resignation shall take effect on receipt thereof by the Chairman. Any member of the ACC may be removed at any time with or without cause by the Declarant (or Board ifat the time the Board has the right to appoint members ofthe ACC).
any installation, construction oralteration ofany Structure on any Lot shall be submitted to the ACC for approval (i) as to whether the proposed installation, construction or alteration is in conformity.
and harmony ofexternal design and general quality with the existing standards ofthe Development " and the Design Standards, and (ii) as to the location of Structures with respect to topography,
rmity.
and harmony ofexternal design and general quality with the existing standards ofthe Development " and the Design Standards, and (ii) as to the location of Structures with respect to topography, finished ground elevation and surrounding Structures. To the extent necessary to carry out such purpose, the ACC shall have all of the powers and duties to do each and every thing necessary, suitable, convenient orproper for, or in connection with or incidental to the accomplishment ofsuch purpose, including, withoutbeing limited to, the power and duty to approve or disapprove plans and specifications for any installation, constnlction or alteration ofany Structure on any Lot.
5.03 Officers, Subcommittees and Compensation. The members ofthe ACe shall appoint . a Chairman from among their number and mayappoint from among their number such other officers and subcommittees ofmembers ofthe ACC as they shall from time to time determine n~essary.
The members ofthe ACC shall be reimbursed by the Association for traveling expenses and other reasonable out-of-pocket costs incurred in the performance oitheir duties as members ofthe ACC.
5.04 Operations ofthe ACC.
(a) Meetings. The ACC shall hold regular meetings at least once every three (3) months or more often as may be established by the ACe. Special meetings may be called by the Chairman and shall be called by the Chairman upon the written request ofa majority ofthe members ofthe ACC then in office. Regular and special meetings ofthe ACC shall be held at such time and at such place as the ACC shall specify. Notice of each regular or special meeting of the ACC shall be mailed to .
each memberthereof at his residence or at his usual place ofbusiness at least ten (10)
at such place as the ACC shall specify. Notice of each regular or special meeting of the ACC shall be mailed to .
each memberthereof at his residence or at his usual place ofbusiness at least ten (10) days before the day the meeting is to be held. Notice ofregular and special meetings need not specify the purpose or purposes for which the meeting is called. Notice of a meeting need not be given to any member ofthe ACC who signs a waiver ofnotice either before or after the meeting. Attendance of a member of the ACC shall constitute a waiver ofnotice ofsuch meeting, and shall constitute a waiver ofany and 16 all objections to the place ofthe meeting, the time ofthe meeting, or the manner in which it has been called or convened, except when the member states, at the beginning of the meeting, any such objection or objections to the transaction of business. At each meeting ofthe ACC, the presence ofa majority ofthe members then in office shall constitute a quorum for the transaction ofbusiness. Except as otherwise provided herein, the act ofa majority ofthe members ofthe ACC present at any regular or special meeting thereof at which a quorUm is present'shallconstitute the act ofthe ACC. In the absence ofa quorum, any member oftheACC present at the time and place ofthe meeting may adjourn the meeting from time to time until a quorum shall be present. At any adjourned meeting at which a quorum is present, any business may be transacted which might have been transacted at the meeting as originally called. The ACC shall maintain both a record of votes. and minutes for . each of its meetings. The ACC shall make such records and minutes available at reasonable places and times for inspection by Members ofthe Association and by the
h a record of votes. and minutes for . each of its meetings. The ACC shall make such records and minutes available at reasonable places and times for inspection by Members ofthe Association and by the Association's Secretary. Any action required to be taken at a meeting ofthe ACC, .
or any action which may be taken at a meeting ofthe ACC, may be taken without a: meeting ifwritten consent, setting forth the action so taken, shall be signed. by all the members ofthe ACC and be filed with the minutes ofthe proceedings ofthe ACC. " Such consent shall have the same force and effect as a unanimous vote, . and may be stated as such in any document filed by the ACC.
(b) Activities.
(i) The ACC shall adopt and promulgate the Design Standards described in Section 5.05 hereof and shall, as required, make findings, determinations, rulings and orders with respect to the conformity with said Design Standards ofplans and specificatttms submitted for approval to the .
,~ .
ACC pursuant to the provisions of this Declaration. The ACC shall, as required, issue permits, authorizations or approvals, which may include specific requirements or conditions, pursuant to the provisions of this Declaration.
(ii) Any two (2) or more members ofthe ACC may be authorized by the ACC to exercise the full authority ofthe ACC with respect to all matters over which the ACC has authority as may be specified by resolution ofthe . ACe, except with respect to the adoption or promulgation of the Design Standards. The unanimous action of the two (2) or more members with respect to the matters specified shall be final and binding upon the ACC and upon any applicant for an approval, permit or authorization, subject, however, to review and modification by the ACC on its own motion or appeal by the
fied shall be final and binding upon the ACC and upon any applicant for an approval, permit or authorization, subject, however, to review and modification by the ACC on its own motion or appeal by the applicant to the ACe as provided in this paragraph (ii). Written notice ofthe . decision ofsuch two (2) or more members shall, within five (5) working days thereof, be given to any applicant for an approval, permit or authorization.
The applicant may, within ten (1 0) days after receipt ofnotice ofany decision which he deems to be unsatisfactory, file a written request to have the matter in question reviewed by the ACe. Upon the fjling ofany such request, the matter with respect to which such request was filed shall be submitted to, and 17 reviewed promptly by, the ACe, but in no event later than thirty (30) days after the filing ofsuch request. The decision ofa majority ofthe members of the ACC with respect to such matter shall be fmal and binding.
5.05 Design Standards.
(a) The ACC shall from time to time adopt,promulgate, amend, revoke and enforce guidelines (the "Design Standardsll ) for the purposes of: . .
(i) governing the form and content ofplans and specifications to be.
submitted to the ACC for approval pursuant to the provisions of this Declaration; .(ii) governing the procedure for such submission of plans and specifications; .
(iii) . establishing guidelines. with respect to· the approval and disapproVal of design features, architectural styles,. exterior colors and materials, details ofconstruction, location and size ofStructures and all other matters that require approval by the ACC pursuant to this Declaration; and (iv) assuring the conformity and harmony of external design and general quality ofthe Development. .
Structures and all other matters that require approval by the ACC pursuant to this Declaration; and (iv) assuring the conformity and harmony of external design and general quality ofthe Development. .
(b) The ACC shall make a published copy of its current Desi~ Standards readily available to Members and prospective Members ofthe Association and to all applicants seeking the ACe's approval.
5.06 Submission 6fPlans and Specifications. No Structure shall be commenced, erected, placed, moved onto orpermitted to remain on any Lot, nor shall any existing Structure upon any Lot unless plans and specifications therefor shall be in such form and shall contain such. information as may be reasonably required by the ACC in the Design Standards, including, without being limited to: . .
(a) a site plan showing the location ofall proposed and existing Structures on the Lot including building setbacks, open space~ driveways, walkways and parking . spaces, including the number thereof, and all siltation and erosion control measures; (b) a foundation plan; (c) a floor plan; (d) exterior elevations of all proposed Structures and alterations to existing Structures, as such Structures will appear after all back-filling and landscaping are completed; , 18 (e) specifications of materials, color scheme, lighting scheme and other details effecting the exterior appearance ofall proposed Structures and alterations to .
existing Structures; and (f) plans for landscaping and grading.
5.07 Approval ofPlans and Specifications. Upon approval by the ACC ofanyplans and specifications submitted pursuant to this Declaration, two (2) copies of'such plans and specifications,
g and grading.
5.07 Approval ofPlans and Specifications. Upon approval by the ACC ofanyplans and specifications submitted pursuant to this Declaration, two (2) copies of'such plans and specifications, as approved, shall be deposited for permanent record with the ACC and a copy ofsuch plan~ and specifications bearing such approval, in writing, shall be returned to the applicant SUbmitting the same. Approval for use in connection with any Lot or Structure ofany plans and specifications shall not be deemed a waiver of the ACC's right, in its discretion, to' disapprove similar plans and specifications or . any of the features or elements included therein if such 'plans, speCifications, features or elements are subsequently submitted for use in connection with any other Lot. or Structure. Approval ofany such plans and specifications relating to any Lot or Structure, however, shall be final as to that Lot or structure and such approval may not be revoked· or rescinded' thereafter, provided that there has been adh~rence to, and compliance with, such plans and specifications, as approved, and any conditions attached to any such approvaL' 5.08 Disapproval ofPlans and Specifications. The A CC shall have the right to disapprove any plans and specifications submitted pursuant to this Declaration because ofany ofthe following: (a)the failure to include information in such plans and specifications as may have been reasonably requested; (b) the failure ofsuch plans or specifications to comply with this Declaration or the Design Standards; or . '/) (c) any other matter which, inthe judgment ofthe ACC, would be likely to cause the proposed installation, construction or alteration ofa Structure (i) to fail to be in conformity and harmony of external design and general quality with the
ment ofthe ACC, would be likely to cause the proposed installation, construction or alteration ofa Structure (i) to fail to be in conformity and harmony of external design and general quality with the , standards for' the Development as set· forth in the Design Standards or the Development-Wide Standard, or (ii) as to location to be. incompatible with topography, finished ground elevation and surrounding Structures. In any case in which the ACC shall disapprove any plans and specifications submitted hereunder, or shall approve the same only as modified or upon specified conditions, .such disapproval or qualified approval shall be accompanied by astatertlentofthe grounds upon which such action was based. In any such case the ACC shall, if requested, make reasonable efforts to assist and advise the applicant in order that an acceptable proposal may be prepared and submitted for approvaL .
5.09 .. Obligation to Act. The ACC shall take action on any plans and specifications submitted as herein provided within thirty (30) days after receipt thereof. Approval by the ACC, if granted, together with apy conditions imposed by the ACC, shall be placed in writing on the plans and specifications and shall be returned to the applicant. Failure by the ACC to take action within thirty (30) days of receipt of plans and specifications submitted for. approval shall be deemed approval of such plans and specifications. ' 19 ..
5.10 Inspection Rights. Any employee or agent ofthe Association or the ACC may, after reasonable notice, at any reasonable times or times, enter upon any Lot and Structure thereon for the purpose of ascertaining whether the installation, construction, alteration or maintenance of any
r reasonable notice, at any reasonable times or times, enter upon any Lot and Structure thereon for the purpose of ascertaining whether the installation, construction, alteration or maintenance of any Structure or the use ofany Lot or Structure is in compliance with the provisions ofthis Declaration, and neither the Association, nor the ACC, nor any such agent shall be deemed to have committed a trespass or other wrongful act solely by reason of such entry or inspection, provided such inspection is carried out in accordance with the terms ofthis Section.
5.11 Violations. Ifany Structure shall be erected, placed, maintained or altered upon any Lot, otherwise than in accordance with the plans and specifications approved by the ACC pursuarit to the provisions ofthis Article, such erection, placement, maintenance or alteration shall be deemed to have been undertaken in violation ofthis Article and without the approval required herein. Ifin the opinion ofthe ACC such violation shall have occurred, the ACC shall notify the Association and the Board shall take appropriate measures to correct the violation, the Board shall provide written notice to the Owner by certified mail, setting forth in reasonable detail the nature ofthe violation and the specific action or actions required to remedy the violation. Ifthe Owner shall not have taken reasonable steps toward the required remedial action within thirty (30) days after the mailing ofthe aforesaid notice ofviolation, then the Association shall have the Right ofAbatement as provid,ed in Section 8.02 hereof.
5.12 Certification ofCompliance ..
(a) Upon completion of the installation, construction or alteration of any Structure in accordance with plans and specifications approved by the ACC, the ACC
hereof.
5.12 Certification ofCompliance ..
(a) Upon completion of the installation, construction or alteration of any Structure in accordance with plans and specifications approved by the ACC, the ACC shall, upon written request ofthe Owner thereof or upon the Ace's own initiative, issue a Certificate ofCompliance, identifying !;luchStructure and the Lot Upon which such Structure is placed, and stating that the plans and specificatiogs have been approved and that such Structure complies with such plans and specifications. A copy of said Certificate shallbe filed for permanent'record with the plans and specifications on file with the ACC. .
(b) Any Certificate of Compliance issued in accordance with the provisions ofthis Section shall be prima facie evidence ofthe facts therein stated; and as to any purchaser or encumbrancer in good faith and for value, or as to any title insurer, such· certificate shall be conclusive evidence that all Structures on the Lot comply with all the requirements ofthis Article, provided, however, that the Certificate shall in no way be construed to certify the acceptability, sufficiency or approval by the ACC of the actual construction of Structures or of the workmanship, or to represent or warrant to anyone the quality, function or operation of the Structures or of any construction, workmanship, engineering, materials or equipment.
The issuance ofthe Certificate shall in no way be construed to certify to any party that the Structures have been built in accordance with any applicable rule or regulation.
20 " 5.13 Fees, The ACC may impose and collect a reasonable and appropriate fee to cover the cost ofreview ofplans and ofinspections performed pursuant to Section 5.10. The fee shall be
or regulation.
20 " 5.13 Fees, The ACC may impose and collect a reasonable and appropriate fee to cover the cost ofreview ofplans and ofinspections performed pursuant to Section 5.10. The fee shall be established from time to time by the ACC and published in the Design Standards. .
5.14 Nondiscrimination by ACC. The ACC shall not discriminate against any applicant requesting its approval of plans and specifications because of such applicant's race, color, sex, religion, ageor national origin. Further, the ACC in the exercise ofits powers grahted pursuant to this Declaration shall not take any. action the intent or effect of which is to discriminate against persons of a particular race, color, sex, religion, age or national origin. .
5.15 . Disclaimer as to ACC Approval. Plans and specifications are not reviewed for all systems, mechanical, plumbing, electrical, engineering, or structural design or quality ofmaterials , and by approving such plans and specifications neither the ACC, the members thereof, nor the Association assumes liability or responsibility therefor, nor for any defect in any. StructUre constructed from such plans and specifications. NeitherDeclarant, the Association, the ACC, the Board, nor the officers, directors, members, employees, and agents ofany ofthem shall be liable,iIi damages to anyone submitting plans and specifications to any ofthem for approval, or to any Owner .
of property affected by these Restrictions, by reason of mistake in judgment, negligence, or .
nonfeasance arising. out of or in connection with the approval or disapproval or failw;e to approve .
or disapprove any such plans or specifications. Every person who submits plans or specifications
.
nonfeasance arising. out of or in connection with the approval or disapproval or failw;e to approve .
or disapprove any such plans or specifications. Every person who submits plans or specifications and every Owner agrees that he will not bring any action or suit against Declarant, the Association, the ACC, the Board, or the officers, directors, members, employees, and agents of any ofthem to recover any such damages and hereby releases, quitclaims, and covenants not to sue for anyclaims, demands, and causes of action arising out of or in connection with any judgment, negligence, or nonfeasance, and hereby waives the provisions ofany law which provides that a general release does not extend to claims, demands, and causes of action not known at the time the release is given.
. . ~ 5.16 Modification Committee.
(a) The ACC shall establish a modifications committee (the "Modifications Committee") to exercise exclusive jurisdiction over the modifications, additions, or alterations made on, or to, existing Structures as provided in Section 5.06 hereof, and (b) The Modifications Committee will set standards, review and act upon all proposed modifications or improvements to those Lots where Residences have-been constructed and sold and are owned by someone other than· the Declarant, its successors or assigns or a builder. This Committee will be comprised ofno less than three (3) members with at least two (2) members required to be members of the Association. The Modifications Committee will be governed by the Board and shall generally adhere to all the provisions set forth in this Declaration for the ACC pertaining to approval ofplans and specifications.
The Modifications Committee will be governed by the Board and shall generally adhere to all the provisions set forth in this Declaration for the ACC pertaining to approval ofplans and specifications.
(c) The Modifications Committee shall promulgate· detailed standards and procedures goveming its area ofresponsibility and practice. In: addition thereto, the following shall apply: plans and specifications showing the nature, kind, shape, color, size, materials and location of such modifications, additions, or alterations, 21 shall be submitted to the Modifications Committee for approval as to quality of· workmanship and design and harmony of external design with existing Structures and as to location in relation to surrounding Structures, topography, and finish grade elevation. Nothing contained herein shall be construed· to limit the right of the Owner to remodel the interior ofa Structure or to paint the interior ofa Structure any .
color desired. .
ARTICLE VI GENERAL COVENANTS AND RESTRICTIONS 6.0 I Application. The covenants and restrictions contained in Article VI shall pertain and apply to all Lots and to all StructureS erected or placed thereon.
6.02 Restriction ofUse. All buildings, Residences, Structures,.and other improvements erected, altered, or placed on a Lot shall be of new construction,and no structure of a temporary character, trailer, mobile home, tent, shack, garage, barn,. or outbuilding shall be used on a Lot at any time as a Residence, either temporarily or permanently. No part ofthe Property shall ever be used or caused to be used or allowed or authorized in any way, directly ·or indirectly, for any business, commercial, manufacturing, mercantile, storing, vending, or other non-:residential purposes~No
used or caused to be used or allowed or authorized in any way, directly ·or indirectly, for any business, commercial, manufacturing, mercantile, storing, vending, or other non-:residential purposes~No duplexes or other attached housing for more than one dwelling unit shall be erected on any Lot· Temporary structures and model homes may be used as building offices and other related.
purposes by Declarant or a builder who is currently constructing homes for resale within the Property. No builder shall be allowed to maintain an office or model home for the purpose ofthe sale ofhomes unless said builder is conducting an active sales program within the Property and not for the purpose of sales in other subdivisions outside ofthe Pro'Perty.
6.03 Resubdivision of Property. No Lot may be split, divided or subdivided for· sale, resale, gift, transfer, or otherwise, without the prior written approval of the ACe of plans and specifications for such split, division or subdivision. Notwithstanding the foregoing, nothing herein shall prevent Declarant or the Owners ofany Lots from combining two or more Lots into one Lot for construction ofa single Residence thereon; provided, however, that such combined Lot may not be subdivided thereafter; and provided further, that the Owner ofthe Residence on such Lot shall· be responsible for annual and special assessments based upon the number ofL6ts combined into one Lot.
6.04 Erosion Control. No activity which may create erosion or siltation problems shall be undertaken on any Lot without the prior written approval ofthe ACC ofplans and specifications for the prevention and control ofsuch erosion or siltation. The ACC may, as a ~ondition ofapproval
hall be undertaken on any Lot without the prior written approval ofthe ACC ofplans and specifications for the prevention and control ofsuch erosion or siltation. The ACC may, as a ~ondition ofapproval ofsuch plans and specifications, require the use ofcertain means ofpreventing and controlling such erosion or siltation. Such means may include (by way of example and .not oflimitation) physical devices for controlling the run-off and drainage of water, special precautions in grading and otherwise changing the natural landscape and required landscaping as provided for in Section 6.05..
Guidelines for the prevention and control of erosion and siltation may be included in the Design Standards ofthe ACC.
22 '.
6.05 Landscaping. No construction or alteration ofany Structure shall take place without the prior written approval by the ACC ofplans and specifications for the landscaping to accompany· such construction or'alteration, A written plan oflandscaping must be submitted to the ACC prior to installation of any materials; this plan shall include a drawing to show location and description of all lI'hardscape" items such as fences, walls, rocks and so forth. A minimum landscaping allowance of$1,500.00 per Lot for the front yard, excluding sod and irrigation system, shall be established for all new construction. This allowance may be increased or decreased at the discretion ofthe ACC. Owner shall be required to sod the front yard-and all side yards which ate visible from a street with a permanent, heat tolerant grass (Le. Bermuda, St. Augustine, or other gras:s approved by the ACC). Ground cover composed of living material such as ivy or asiatic jasmine may be allowed if approved by the ACC.
No "desert style" landscaping, rock covered yards or other stone yard cover will be .
C). Ground cover composed of living material such as ivy or asiatic jasmine may be allowed if approved by the ACC.
No "desert style" landscaping, rock covered yards or other stone yard cover will be .
allowed.
Owner must plant at least two 4" caliper or better trees in the front yard,. The Street facing side yards or comer lots shall also be irrigated and install sod or hydro seed according to the same seasonal schedule and plant at least two 4" .caliper trees in the side yard. The 4" caliper trees requirement maybe waived ifthe front yard contains three (3) or more existing trees; All rear yards visible from a street must be sodded within sixty (60) days of occupancy of a Res~dence.
Landscaping shall be complete in accordance with approved plans not later than sixty (60) days after: (1) final inspection by the City ofBenbrook, Texas, building inspector and/or the Tarrant County building inspector as may be applicable, or (2) occupancy ofa Residence, whichever is earlier. In the case of existing homes, proposed changes and additions in landscaping must be submitted for approval by the ACC in the same detail as new construction. Once theplan.s have been approved by the ACC, a time frame for compietion ofthe approved changes shall be agreed upon· between the ACC .and the homeowner. ,;: 6.06 Existing Trees; No tree having a diameter ofthree (3) inches or more [measured from a point two (2) feet above ground level]· shall be removed from any Lot unless such removal is in conformity with approved landscaping plans and specifications submitted pursuant to the provisions of Section 6.05 hereof.
6.07 Temporary Buildings. No temporary building, trailer, garage or building under construction shall be used, temporarily or permanently, as a residence on any Lot except as
s of Section 6.05 hereof.
6.07 Temporary Buildings. No temporary building, trailer, garage or building under construction shall be used, temporarily or permanently, as a residence on any Lot except as temporary sleeping or living quarters required or desirable for security purposes in accordance with plans and specifications therefor approved by the ACC. Temporary structures andmodel homes may be used as building offices pursuant to the provisions of Section 6.02.
6.08 Outbuildings. No metal storage outbuildings shall be erected, placed. or maintained .
upon any Lot in the Property. No treehouse or children's playhouse shall be permitted on any Lot in the Development without prior written approval of the ACC. Outbuildings or other structures, temporary or permanent, other than the Residence or garage shall be limited to eight feet (8') in height and shall be subject to approval by the ACC. Any other type ofpermitted outbuilding must be in keeping with the overall character and aesthetics of the Residence located on the Lot. The ACC shall require prior approval of, but not limited to, all outbuildings, play structures,shade 23 structures or pool buildings. Any outbuilding will be required to be constructed with material and .
ofa design that is determined by the ACC to be compatible with the design ofthe Residence. All playground and recreational equipment shall be placed at the rear ofa Lot. No outbuilding or play structure will be permitted to be placed on easements; be located nearer than five feet (5') to an interioiside line ofthe Lot; ,or forward ofthe front building line. The ACC is hereby authorized to.
determine what constitutes a violation ofthis .restriction. .
6.09 Prefabricated Structur~s.Prefabricated or factory built structures shall. not be
ront building line. The ACC is hereby authorized to.
determine what constitutes a violation ofthis .restriction. .
6.09 Prefabricated Structur~s.Prefabricated or factory built structures shall. not be permitted within the Property, and such manufactured units shall not be employed as elements in the construction ofStructures affixed to Lots or Residences within the Property except by express written consent of the ACC. . . '.
6.10 ~.
(a) No signs whatsoever (including but not limited to commercial and similar· signs) shall, without the ACC's prior written approval of plans and specifications therefor, be installed, alteredor maintained on any Lot,or on any portion of a Structure visible from the exterior thereof, except: (i) such signs as may be required by legal proceedings; .
(ii) not more than one "For Sale" sign, such sign having a maximum face area offoUr square feet, provided that such sign may only be displayed in the front yard of a Lot; and, provided, further, that if, at the time of any desired use ofsuch sign, the Association is making "F or Sale" signs available for the use of Owners, the signs made available by the Association must be used; 'Ii (iii) directional signs for vehicular or pedestrian safety in accordance with plans andspecifications approved by the ACC; .
(iv) any sign required by any governmental authority having appropriate jurisdiction; and (v) temporary signs (i.e. garage, lawn sales, etc.).
(b) In no event during approved construction ofany Structure shall more than' one job identification sign be approved by the ACC.
(c) All "for rent" or "for lease~' signs are prohibited.
(d) The number oftemporary signs must be kept to a minimum and may be put up no sooner than 24 hours in advance of a sale. Signs must be removed
c) All "for rent" or "for lease~' signs are prohibited.
(d) The number oftemporary signs must be kept to a minimum and may be put up no sooner than 24 hours in advance of a sale. Signs must be removed promptly after a sale has ended.
(e) No sign may be placed on the Common Property or the entrance areas to the Development without written approval ofthe ACC.
24 '.
6.11 Setbacks. Building area setbacks shall be within the building lines indicated on the recorded subdivision plats of the Property and as specified in the City of Benbrook Zoning· Ordinance (hereinafter referred to as "Zoning Ordinance"). In no event shall the setbacks be less than those required by the Zoning Ordinance unless a variance is· granted by the appropriate governinental authority and approved by the ACe. In approving plans and·specifications for any .
proposed Structure, the ACC may require more restrictive setbacks than the minimum specified in the Zoning Ordinance for the location ofsuch Structure. Notwithstanding the preceding sentence, the maximum front set back shall be thirty feet. All such setbacks shall be established such that they do not violate the provisions ofapplicable ordinances, laws, rules, regulations or the provisions of the subdivision plate s) establishing the Development. No Structure shall be erected or placed on any Lot unless its location is consistent with such setbacks. .
6.12 Retaining Walls and Fences. No fence or wall of any kind shall be erected, maintained, or altered on any Lot without the prior written approval of the ACC of plaps ai:ld specifications for such fences and walls. No fence shall be constructed in violation ofany applicable ordinances, laws, rules, regulations, or the provisions of the subdivision plates) establishing the Development.
. .
such fences and walls. No fence shall be constructed in violation ofany applicable ordinances, laws, rules, regulations, or the provisions of the subdivision plates) establishing the Development.
. .
Fences and screening may be used with the Property to defme private spaces orto attract or to divert attention to or from particular views: Certain objects which may be fenced or screened include: (1) free standing utility apparatus, e.g. transformers, switching equipment, etc.; (2) exterior, ground level machinery,e.g. heating and airconditioning equipment; (3) outside storage and service areas for equipment and supplies; and (4) refuse containers and related storage areas.
Acceptable methods of screening are as follows: (1) Earth banks and berms which shall have a maximum slope of2: 1 and be covered with plant material as approved by the ACC; (2) landscaping planting screens, hedges, etc.; (3) masonry walls or other materials which would be compatible with the approved retaining walls; (4) decorative ir~nas approved by the ACC; or (5) fencing as approved by the ACC. All such fence plans must be submitted to and approved by the ACC prior to construction .
. General guidelines for fences shall include: (1) no fence shall be constructed more than 6' above grade in height; (2) landscape planting as an integral component; (3) no woven metal or chain link fences will be allowed except as approved by the ACC as small area pet enclosure (Le.
dog run), such pet enclosures to be screened by privacy fencing from direct view from the street as well as other fencing and/orplant materials as may be required and approved by the ACC; and (4) no fence which completely blocks vision shall be constructed except where the need for privacy is evident and approved by the ACe.
orplant materials as may be required and approved by the ACC; and (4) no fence which completely blocks vision shall be constructed except where the need for privacy is evident and approved by the ACe.
6.13 Roads and Driveway. No road or driveway shall be constructed or portion altered on any Lot without the prior written approval ofthe ACC ofplans and specifications for such roads and driveways. Guidelines relating to the design and location of roads and driveways may be included in the Design Standard ofthe ACC. No road or driveway shall be constructed in violation of any applicable ordinances, laws, rules, regulations,or the provisions of the subdivision plates) . establishing the Development.
25 .. .
6.14 Antennae, Etc. No antennae, satellite dish, or electronic device ofany type shall be placed on any Residence, Structure or Lot so as to be visible from a street. No antennae shall be installed or used for the purpose oftransmitting ofelectronic signals .
.
6.15 Clotheslines, Garbage Cans, Etc. All clothesline, equipment, garbage cans and woodpiles shall be kept screened by adequate planting or fencipg so as to conceal them from view by neighboring residences and streets, and may be maintained in the rear yard on a Lot only.
6.16 . Maintenance. The owner ofeach lot shall maintain the same and adjacent street right of:-way, and the improvements, sod, trees, hedges, and plantings thereon, in a neat and attractive· condition. Such maintenance shall include regular mowing, edging ofturf areas, weeding ofplant beds, fertilizing, weed control and watering ofthe turf and landscape areas on each Lot. Diseased or dead plants or trees must be removed and replaced within a reasonable time frame. On front
ofplant beds, fertilizing, weed control and watering ofthe turf and landscape areas on each Lot. Diseased or dead plants or trees must be removed and replaced within a reasonable time frame. On front lawns and wherever visible from any street, there shall be no decorative appurtenances placed, such as sculptures, birdbaths, birdhouses, fountains or other decorative embellishments unless such specific item(s) has been approved in writing by the ACe. The As.sociation or Declarant shall have the right, after ten (10) days' notice to the Owner ofany Lot setting forth the action intended to be taken by the Association or Declarant, provided at the end ofsuch time such action has not already been taken by such Owner, (i) to ~ow or edge the grass thereon, (ii) to remove any debris therefrom, (iii) to trim or prime any tree, hedge, or planting that, in the opinion ofthe Association or Declarant, by reason of its location or height or the manner in which it has been permitted to grow, 'is detrimental to the enjoyment ofadjoining property or is unattractive in appearance, (iv) to repair or . stain/paint any fence thereon that is out of repair or not in harmony, with respect to color, with fencing on adjacent property, and (v) to do any and all things necessary or desirable in the opinion ofthe Associationor Declarant to place such property in a neat and attractive condition consistent with the intention of this Declaration. The person who is the Owner ofsuch property at the time such work is performed by the Association shall be personally obligated· to reimburse the Association for the cost ofsuch work within ten (10) days after itis performed by the·Association, and ifsuch amount is not paid within said period oftime, such Owner shall be obligated thereafter
the Association for the cost ofsuch work within ten (10) days after itis performed by the·Association, and ifsuch amount is not paid within said period oftime, such Owner shall be obligated thereafter to pay interest thereon at the maximum rate allowable by law, and to pay attorneys' fees and court costs incurred by the Association in collecting said obligation, and all ofthe same shall be secured bya lien on such Owner's property, subject to liens then existing thereon. Such lien shall be enforceable as any other assessment lien as provided in this Declaration.
6.17 Commercial and Recreational Vehicles and Trailers. No commercial vehicle, commercial use truck, bus, trailer, mobile home, recreational vehicle, camper, truck with camper top, boat, boat trailer, self-propelled or towable equipment .or machinery ofany sort or any item deemed offensive by Declarant, ACC, or Association or like equipment shall be permitted on any Lot on a permanent basis. Nor shall any such equipment be allowed on any street right-of-way without movement for a period oftwenty-four (24) hours or more,during a period ofseven (7) consecutive . days. No junk vehicles or vehicles in disrepair or neglect shall be stored, repaired or displayed on . anyLot, street or otherwise in the Development. Notwithstanding the foregoing, any such vehicles or equipment may be stored on a Lot, provided such vehicle or equipment is kept in an enclosed space and is concealed from view by neighboring residences and streets. During the construction of improvements on a Lot, necessary construction vehicles may be parked thereon for and during the time of construction ofthe Residence.
26 " This restriction shall not apply to automobiles or small passenger trucks in good.
, necessary construction vehicles may be parked thereon for and during the time of construction ofthe Residence.
26 " This restriction shall not apply to automobiles or small passenger trucks in good.
repair and attractive condition, provided that any . such vehicles are parked on an improved driveway which has been approved by the ACC. No vehicle shall ever be permitted to be parked on the front or side !awn within view ofthe public. .
The ACC 'and Board reserve the right to restrict street right-of-way parking on specific streets within the Development when street parking could detract from the architectural harmony of an area or cause restricted street access to normal traffic flow or emergency vehicles.
6.18 Recreational Equipment. Recreational and playground equipment shall be placed or .
installed only upon the rear of a Lot as approved by the ACC. . Basketball goals may. be placed adjacent to the. driveway if the backboards are installed behind the front building line and are constructed ofa clear plexiglass as approved by the ACC .. No above ground pools shall be allowed.
6.19 Non-Discrimination. No Owner orperson authorized toact for an Owner shall refuse to sell or rent, after receiving a bona fide offer, or refuse to negotiate for the sale or rentBl of, or otherwise make unavailable or deny the purchase orrental ofany Lot to any persons becaUse ofrace, color, religion; sex, age or national origin.· Anything in this Declaration to the contrary ..
notwithstanding, . this covenant shall run with the land and shall remain in effect wjthout any limitation in time. .
. 6.20 Animals .. No agricultural animals may be kept on any Lot and no aninlals, including birds, insects, reptiles, sheep, goats, horses, cattle, poultry, dangerous animals (the determination as
. .
. 6.20 Animals .. No agricultural animals may be kept on any Lot and no aninlals, including birds, insects, reptiles, sheep, goats, horses, cattle, poultry, dangerous animals (the determination as to what is a dangerous animal shall be in the sole discretion ofthe Association's Board), livestock ofany kind shall ever be kept in the Development except that dogs, cats or other co:rri:riton household pets (not to exceed a total ofthree animals) may be kept by the Owner or tenant ofany Residence, household must be confined to its Owner's Lot either by constraints ofa backyard fence, a leash or within the residence. No animal shall be permitted to run freely away from its Owner's Lot aIldmust be controlled by a leash or trained to walk with the Owner unleashed. All applicable leash and.
licensing laws in effect in the City ofBenbrook and Tarrant County shall also apply to this animal husbandry provision. No animal shall be allowed to become a nuisance. NoStructure for the care, housing or confinement ofany animal shall be constructed, placed or altered on any Lot unless plans and specifications for said Structure have been approved by the ACC.
6.21 Trash and Rubbish Removal. No trash, rubbish, garbage, manure, or debris ofany kind shall be kept or allowed to remain on any Lot. The Owner of each Lot shall remove such prohibited matter from his Lot at regular intervals at his expense, and prior to such removal all such prohibited matter shall be placed in sanitary refuse containers with tight fitting lids in an area adequately screened by planting or fencing so as not to be seen from neighboring Lots or public or
ch prohibited matter shall be placed in sanitary refuse containers with tight fitting lids in an area adequately screened by planting or fencing so as not to be seen from neighboring Lots or public or pri~ate streets. Ifrubbish, garbage, or any other form ofsolid waste is to be disposed of by being collected on a regUlar and recurring basis, containers may be placed in the open on any day that a pick-up is to be made, in order to provide access to persons making such pick-Up. Except during approved construction and as approved by the appropriate governmental authority, no person shall burn rubbish,garbage, or any other form ofsolid waste on any Lot or on COmmon Property. Except for building materials employed during the course ofconstruction ofany Structure approved by the ACC, no lumber, metals, bulk materials or solid waste ofany kind shall be kept, stored, or allowed 27 : .
to accumulate on anyLot unless screened or otherwise handled in a manner set forth in the Design Standards. Reasonable amounts ofconstruction materials and equipment may be stored upon a Lot for reasonable periods oftime during the construction of improvements thereon.
6.22 Reasonable Enjoyment. No nuisance shall ever be erected, placed, or suffered to remain upon any Lot in the Property and no Owner of, or resident on, any Lot in the Property shall use the same so as to endanger the health or distUrb the reasonable enjoyment of any other Owner.
or resident. No noxious or offensive activity shall be carried on upon any Lot, nor shall anything be done thereof which may be or may become an annoyance or nuisance to the community. The Association's Board is hereby authorized to determinewhat constitutes a violation ofthis restriction ..
ything be done thereof which may be or may become an annoyance or nuisance to the community. The Association's Board is hereby authorized to determinewhat constitutes a violation ofthis restriction ..
6.23 Chimney Stacks. Chimney stacks on front ofResidences may not be cantilevered and hang in the air. They must sit on foundations veneered with brick, stone or other approved masonry material as applicable to each individual Residence. . ..
6.24 Exterior Surfaces. All Residences shall be constructed ofat least 75% masonry on brick, stone, stucco, wood lap sidirig and hard board lap siding. Large sheet siding (Le. 4' x 8' sheets) shall not be used unless approved by the ACC. There shall be no bright red, orange or unusual ..
looking brick .. All brick mortar shall be in subdued colors and samples must be submitted for ACC ..
approval. Old usedbrick will be accepted in special circumstances, as will be the painting ofbrick.
Allgables which face the front ofthe Residence or which face a side street, ifon acorner-Lot, shall . be constructed or faced with the same masonry material as the rest ofthe Residence. All chimneys shall be of masonry material unless otherwise approved by the ACC.
a special request and only after the ACC agrees in writing that stucco fits the street scape and overall community standards. The builder may only use a stucco as outlined in the specifications which will accompany the written approval, ifgranted.
6.25 Roofing. Roo:fing material and color shall be specified in the plans submitted to the
may only use a stucco as outlined in the specifications which will accompany the written approval, ifgranted.
6.25 Roofing. Roo:fing material and color shall be specified in the plans submitted to the ACC for approval. All roof stacks and flashing must be painted to blend with the roof color..
ACC. Certain architectural sryles,e.g. Georgian, do not require as steep a minimum roof pitch and . will be analyzed on a case by case basis by the ACC. Minimum roof pitch on rear ·elevations and certain front to back elevation shall be 6 to 12, unless approved by the ACC.
Roof material shall be a quality composition shingle. Other roofing materials may include natural or approved artificial slate, fire treated wood shingle or #2 shake, or better, or clay or concrete tile of a type, style or color as approved by the ACC. In no event shall the pitched portion of the roofbe comprised of more than one material.
6.26· Driveways. Driveways shall be constructed with concrete or other hard surface material such as paving stones or brick that is compatible with the overall landscape flatwork scheme and as approved by the ACC. Existing trees, topography and landscape planning should be taken 28 into consideration and where possible driveways should curve. Front yard circular driveways and offstreet parking areas may be approved at the discretion ofthe ACC.
6.27 Pool and Spa Equipment. Plans for proposed swimming pools, hot tubs, Slirrounding .
decks, fencing and screening must be submitted for approval before any cleaning, grading or construction is commenced;' All swimming pools and hot tubs must be fenced in accordance with
Slirrounding .
decks, fencing and screening must be submitted for approval before any cleaning, grading or construction is commenced;' All swimming pools and hot tubs must be fenced in accordance with the applicable City ofBenbrook Ordinance. No above-ground pools will be approved ..
6.28 Mailboxes. All mailboxes shall be constructed ofbrick, ornamental iron or masonry material to match orbe comparable with the style and material& ofthe Residence or community box.
6.29· Oil and Milling Operations. No oil or natural gas drilling, oil or natural gas .
development, or oil refining, quarrying, or mining operations ofany kind,no oil, nawraI gas or water wells, tanks, tunnels,mineral excavations or shafts, and no derricks or other structures for use in boring for oil, natural gas, minerals or water shall be erected, maintained or pennitted in the .
Development.
6.30 Commercial Use. No activity, whether for profit or not, which is not related to single~ . family residential purposes, shall be carried on any Lot, excep~. on those Lots -which' may be designated by the ACC for use as sales offices, construction offices, and storage facilities for a period oftime commensurate with home construction and sales within the Property. Except for this temporary use on selected Lots, no noxious or offensive activity ofany sort shall be permitted, nor .
shall anything be done, on ally Lot which may be or become an annoyance or nuisance to the neighborhood.
6.31 Septic Tanks .. No cesspool, septic tank or privy shall be placed or maintained on any Lot. ,~ ,~ 6.32 Declarant's Rights During Development Period. During that period oftime while any' parcels of land or Lots located within the Property are being developed and marketed . (the
ed on any Lot. ,~ ,~ 6.32 Declarant's Rights During Development Period. During that period oftime while any' parcels of land or Lots located within the Property are being developed and marketed . (the "Development Period "), the Declarant, with the right ofassignment, shall h~ve and hereby reserves the right to reasonable use ofthe COmmon Area and land owned by Dechirant within the Property in connection with the promotion and marketing ofland within the boundaries ofthe Development.
Without limiting the generality of the foregoing, Declarant may erect and maintain such signs, temporary buildings, model homes, and other structures as Declarant may reasonably deem necessary or proper with the promotion, development, and marketing of land within the Property during the Development Period.
6.33 Builder Rights. During the Development Period, the ACC shalilulvethe right to allow an approved builder in the Development the right to erect and maintain such signs, model homes, and other structures as the ACC may reasonably deem necessary or proper. in connection with builder's promotion, development, and marketing ofLots and Residences located within the Development. The approvals granted by the ACC, as described above, are discretionary and may be revoked ifin the opinionofthe Declarant the builder does not comply with guidelines established by the ACC or the Declarant. Builder shall be given atleast ten (10) days notice to comply with any revocation ofapproval by the ACC.
29 6.34 Construction Work. Except in an emergency, or when other unusual circumstances exist as determined by the Board, outside construction work or noisy interior construction work shall be permitted only after 6:00 A.M. and before 9:00 P.M.
rgency, or when other unusual circumstances exist as determined by the Board, outside construction work or noisy interior construction work shall be permitted only after 6:00 A.M. and before 9:00 P.M.
6.35 Electrical, Telephone and Other Utility Lines. All electrical, telephone and other utility lines and facilities which (i) are located on a Lot, (ii) are not within orpart ofany Structure, and (iii) are not owned by agovernmental entity, a public utility company, or the Association, shall be installed in underground conduits or other underground facilities. Lighting fixtures may be installed above ground if approved in writing by the ACC.
6.36 Window Coolers. No window or wall type airconditioners or water coolers'shall be permitted to be used,erected, placed or maintained on, Or in, any Residence on any part ofthe Lot.
6.37 Minimum Home Size. No single family residence shall be located on any Lot unless 'said Structure shall meet or exceed the minimwn'square feet (heated living area) requirement established by any applicable zoning ordinance or in no event shall the minimum square feet be less than 1,700. 'First floor must be a minimum of 1,700 square feet(heated living area). The above , minimum floor space requirements may be reduced by 10% on any lot ifapproved in writing by the ACe.
6.38 Garages. All garage doors which are visible from a street must be kept closed at all times except for allowing for ingress and egress. No carports ,visible from the street shall be , permitted on any Lot.
ARTICLE VII EASEMENTS. ZONING AND OTHER RESTRICTIONS 7.01 Easements.
(a) Declarant hereby expressly reserves to the Declarant, its successors and , assigns forever, the right to create perpetual easements in, on, over and under any
ND OTHER RESTRICTIONS 7.01 Easements.
(a) Declarant hereby expressly reserves to the Declarant, its successors and , assigns forever, the right to create perpetual easements in, on, over and under any part of the Property owned by Declarant for any purpose which Declarant deems necessary, including, by way of example~ and not limitation, the following: ' (i) the erection, installation, construction and maintenances ofwires, lines, conduits and poles and the necessary or proper attachments in connection with the transmission of electricity, telephone, cable television cables and other utilities and similar facilities; (ii) the erection, installation, construction and maintenance ofstorm water drains, land drains, public and private sewers, irrigation systems, pipelines for supplying gas, water and heat, and for any other public or quasi public facility, service or function; (iii) slope control purposes, including the right to grade and plant slopes and prevent the doing ofany activity which might interfere with slopes 30 or which might create erosion or sliding problems or which might change, ..
obstruct or retard drainage flow; and .
(iv) the planting or re-planting of hedges, shrubbery, bushes, trees, flowers and plants ofany nature.
(b) An easement is hereby granted to all police', fIre protection, 8mbulance and other emergency vehicles and other service vehicles to enter upon the Common Property including, but not limited to, private streets, in the performance oftheir duties and further, an easement is hereby granted to the Association, its office~, agent, employees, and management personnel to enter the Common Property to render any service.
(c) Each Lot and its Owner is hereby declared to' have an easement, and the
the Association, its office~, agent, employees, and management personnel to enter the Common Property to render any service.
(c) Each Lot and its Owner is hereby declared to' have an easement, and the same is hereby granted to Declarant, over all adjoining Lots and Common Property for the purpose of accommodating any encroachment due to engineering errors, errors in original construction, settlemerit or shifting of any Structure, or any other cause. There shall be easements for the maintenance ofsaid encroachment, settling .
or shifting, provided, however, that in no event shall an easement for encroachment' be created in favor ofan Owner or Owners ifsaid encroachment occurred due to the willful misconduct ofsaid Owner or Owners. In the event a Structure on any Lot is partially ortotally destroyed and then repaired or rebuilt, the Owners of each Lot agree that minor ericroachments over adjoining Lots shall be permitted and there shall be easements for the maintenance ofsaid encroachments so long as they shall exist. Each of the easements hereinabove referred to shall be deemed to be established upon the recordation ofthis Declaration and shall be appurtenant to the Lot being serviced and shall pass with each cony~yance of saidLot. . .
. (d) In the event that audio and video communication services and utilities are made available to any ofsaid Lots by means ofan underground coaxial cable system, the company furnishing such services and facilities shall have a two foot (2') wide easement along and centered on the underground wire or cable when and as installed by said company from the utility easement nearest to the point ofconnection on the permanent improvement or Structure constructed, orto be constructed upon said Lot,
ire or cable when and as installed by said company from the utility easement nearest to the point ofconnection on the permanent improvement or Structure constructed, orto be constructed upon said Lot, and in a direct line from said nearest utility easement to said point ofconnection~ . (e) No Owner shall have any right to use any easement retailled by the Declarant or conveyed by Declarant to the Association in a manner which is inconsistent or which interferes with the intended use for such easement.
7.02 Easement Area. The words "Easement Area"as used herein shall mean those areas on any Lot or any other portion ofthe Property with respect to which easements are shown on a recorded deed, easement agreement or on any flIed or recorded map or plat relating thereto.
7.03 En!;ry. The Declarant and its employees, agents, successors and assigns, shall have the right at all reasonable times to enter upon all parts ofeach Easement Areafor any ofthe purposes for which such Easement Area is reserved, without being deemed to have committed a trespass or 31 wrongful act solely by reason ofsuch entry and the carrying out ofsuch purposes, provided the same are done in accordance with the provisions ofthis Section. The Declarant and its employees, agents, successors, and assigns shall be responsible for leaving each Lot in good condition and repair following any work or activity undertaken in an Easement Area pursuant to the provisions ofSection .
7.01. .
7.04 Zoning arid Private Restrictions. None of the covenants, restrictions or easements created or imposed by this Declaration shall be construed as permitting any action prohibited by the recorded subdivision plat of the Development, applicable zoning laws, or by the laws, rules or
ents created or imposed by this Declaration shall be construed as permitting any action prohibited by the recorded subdivision plat of the Development, applicable zoning laws, or by the laws, rules or regulations of any governmental body. In the event of any conflict between such laws, rules or regulations and the covenants, restrictions and easements created or imposed by this Declaration, the most restrictive provision shall govern and control.
ARTICLE VIII ENFORCEMENT 8.01 Right ofEnforcement. This Declaration and the Restrictions contained herein shall inure to the benefit ofandshall be enforceable by (i) the Declarant so long as it is an Owner, (ii) the.
Association, (iii) each Owner, his legal representatives, heirs, successors and assigns. .
8.02 Rights of Abatement.
(a) Except where different notice provisions are provided in Sections 5.11 and 6.16, in the event of a violation or breach of any Restriction contained in this Declaration, the AssoCiation shall give written notice by certified mail to the Owner setting forth in reasonable detail the nature of such violation or breach and the specific action or actions needed to be taken to remedy such violation or breach. If the Owner shall fail to take reasonable steps to· remedy such violation or breach within thirty (30) days after the mailing of said written notice, then the Association shall have the. right ofabatement ("Right of Abatementll). .
(b) The Right ofAbatement, as used in this Section and in Sections 5.11 and 6.16 hereof, means the right of the Association, through its agents and employees, ..
to enter at ali reasonable times upon any Lot or Structure as to which a violation, breach or other condition to be remedied existS, and to take the actions speciIied in
h its agents and employees, ..
to enter at ali reasonable times upon any Lot or Structure as to which a violation, breach or other condition to be remedied existS, and to take the actions speciIied in the notice to the Owner to abate, extinguish, remove, or repair such violation, breach or other condition which may exist thereon contrary to the provisions hereof, without being deemed to have committed a trespass or wrongful act solely by reason ofsuch entry and such actions, provided such entry and such actions are carried out in accordance with the provisions ofthis Section, and with the costs thereof including the costs ofcollection and reasonable attorney's fees, together with interest thereon at the lower ofthe highest rate permitted by Law or 18% per annum to be a binding . personal obligation of such Owner enforceable in law, as well as a lien on such Owner's Lot enforceable pursuant to the provisions ofSect ion 8.04 hereof. Such lien shall be superior to any and all charges, liens or encumbrances which may in any manner arise to be imposed upon the Lot after such entry whether arising from or 32 ..
imposed by judgment or decree or by an agreement, contract, mortgage, deed to, secure debt, or other instrument, excepting only (i) such liens for taxes or other public charges as are by applicable law made superior, (ii) the liens created byArticle IV hereof, and (iii) all deeds oftrust or mortgage given to secure a loan the proceeds ofwhich are 'used (1 )to purchase a Lot or Lots (together with any and all Structures which may from time to time be placed or located thereon); or (2) to finance the construction, repair or alteration ofStructures.' .
8.03 Specific Performance. Nothing ,contained in this Declaration shall be deemed to
me to time be placed or located thereon); or (2) to finance the construction, repair or alteration ofStructures.' .
8.03 Specific Performance. Nothing ,contained in this Declaration shall be deemed to affect or limit the rights ofthe Declarant, the Association or any OWIier to enforce the Restrictions by appropriate judicial proceedings or to recover damages. However, it is hereby declared that it may be impossible to measure accurately in money the damages which will accrue to a beneficiary , hereof, its transferees, successorS or assigns, by reason ofa violation of, or failure to perfonn any of the obligations provided by, this Declaration, and therefore, any beneficiary hereof shall be entitled to relief by way ofinjunction or specific performance, as well' as any other relief available at law or in equity, to enforce the provisions hereof. ' 8.04 Collection ofAssessments and Enforcement ofLien.
(a) Ifany Assessment, interest, cost or other charge is not paid as'required by this Declaration, the Association may (i) bring an action at la:wagainst the Owner personally obligated to pay the same, (ii) bring an action to foreclose any lien created by this Declaration against the Lot or Lots subject to the lien (which shall include the right, but not the obligation; to file a notice of lien against said Lot in the Deed Records of Tarrant County, Texas), or both, for the purpose of collecting such , Assessment, cost or charge, plus any interest,~ thereon and costs of collection" including reasonable attorney's fees. .~ . , , ' (b) As' an additional remedy, but in no way as a limitation on the ,remedies, ifany Assessment, interest, cost or other charge is not paid as required by this Declaration, each Owner hereby grants to the Association and" its assigns the
no way as a limitation on the ,remedies, ifany Assessment, interest, cost or other charge is not paid as required by this Declaration, each Owner hereby grants to the Association and" its assigns the following irrevocable power ofattorney. To sell the said Lot or Lots subjec~ tethe lien at auction, at the usual place for conducting sales at the Court House in Tarrant County, Texas, to the highest bidder for cash, after providing to the Owner all notices and performing all acts required by Section 51.002 ofthe Texas PropertyCode and amendments thereto, all other notice being hereby waived by each Owner, and the , , Association or any person on behalf of the Association, or assigns, may bid and purchase at such sale and thereupon execute and deliver to the purchaser or purchasers at such sale a conveyance of said property in fee simple, which conveyance shall contain recitals as to the happenings ofthe default upon which the execution, of the power of sale herein granted depends, and each Owner hereby , constitutes and appoints the Association and its assigns, the agent and attorney in fact of each Owner to make, such recitals, and hereby covenants and agrees that the recitals so to be made by the Association, {)r its' assigns, shall be binding and conclusive upon the Owner whose property is the subject matter ofsuch sale, and the heirs, executors, administrators and assigns ofsuch Owner,andthe Association or assigns shall collect the proceeds of such sale, and after reserving therefrom the 33 .. .
entire amount of Assessment, interest, cost or other charge due, together with all .
costs and expenses of sale and fifteen percentum of the aggregate a.tTI.ount due for attomeis fees, shall pay any excess to such Owner, orto the heirs or assigns ofsuch
charge due, together with all .
costs and expenses of sale and fifteen percentum of the aggregate a.tTI.ount due for attomeis fees, shall pay any excess to such Owner, orto the heirs or assigns ofsuch Owner as provided by law. The power and agency hereby granted are coupled with an interest and are irrevocable by death, incapacity, or otherwise and· are granted as .
cumulative to the remedies for collection ofsaid indebtedness provided by law.
(c) WAIVER EACH OWNER, BY ACCEPTANCE OF A DEED CONVEYING A LOT SUBJECT TO THIS DECLARATION, TO THE FULLEST EXTENT PERMITTED BY LAW WAIVES ANY RIGHT WHICH OWNER MAY HAVE UNDER THE CONSTITUTION OR THE LAWS OF THE STATE OF TEXAS, (EXCEPTING SECTION 51.002 OF THE TEXAS PROPERTY CODE AND AMENDMENTS THERETO) OR THE CONSTITUTION OR THE LAWS OF THE UNITED STATES OF AMERICA TO NOTICE OR TO A JUDICIAL HEARING PRIOR TO THE EXERCISE OF ANY RIGHT OR· REMEDY PROVIDED BY THIS DECLARATION, AND EACH OWNER WAIVES OWNER'S RIGHTS, IF ANY, TO SET ASIDE OR INVALIDATEANY SALE DULY CONSUMMATED IN ACCORDANCE WITH THE PROVISIONS OF THIS DECLARATION ON THE GROUND (IF SUCH BE THE CASE) THAT THESALEWASCONSUMMATEDWITHOUTAPRIORJUDICIAL·HEARING.
ALL WAIVERS BY OWNER IN THIS PARAGRAPH HAVE BEEN MADE VOLUNTARILY, INTELLIGENTLY AND KNOWINGLY, AFTER OWNER HAS FIRST BEEN ALLOWED THE OPPORTUNITY TO CONSULT LEGAL COUNSEL WITH RESPECT TO OWNER'S POSSIBLE RIGHTS ..
8.05 ·No Waiver. The failure ofthe Declarant, the AssoCiation, or the Owner of any Lot, his or its respective Jegal representatives, heirs, successors and assigns, to enforce any Restrictions . herein contained shall in no event be considered a waiver ofthe right to do so thereafter, as to the same violation or breach or as to any violation or breach occurring prior or subsequent thc;:reto.
,.. ARTICLE IX
ed shall in no event be considered a waiver ofthe right to do so thereafter, as to the same violation or breach or as to any violation or breach occurring prior or subsequent thc;:reto.
,.. ARTICLE IX DURATION AND AMENDMENT 9.01 Duration. This Declaration and the Restrictions contained herein shall run with and bind the Property for perpetuity. The provisions ofthis Section requiTing that this Declaration and the Restrictions bind the Property in perpetuity shall not be subject to amendment.
9.02 Amendments by Declarant. During any period in which Declarant retains the right to appoint and remove any directors and officers of the Association, Declarant . may amend this Declaration by an instrument in writing filed and recorded in the Deed Records ofTarrant County, Texas, without the approval ofany Member or mortgagee; provided, however, that (i) in the event that such amendment materially alters or changes any Owner's rights to the use and enjoyment of such Owner's Lot or ofthe Common Property as set forth in this Declaration or ifsuch amendment adversely affects the title to any Lot, such amendment shall be valid only upon the written consent thereto by a majority in number ofthe then existing Members affected thereby; or (ii) in theeveilt that such amendment would materially and adversely affect the lien status, security and interest of 34 any mortgagee, such amendment shall be valid only upon the written consent thereto of all such, mortgagees so affected. Any amendment made pursuant to this Section 9.02 Shall be certified by Declarant as having been duly approved by Declarant, and such Members and mortgagees if requireg, and shall be effective only upon recordation orat such later date as shall be specified in the
fied by Declarant as having been duly approved by Declarant, and such Members and mortgagees if requireg, and shall be effective only upon recordation orat such later date as shall be specified in the amendment itself. Each O,wner, by acceptance ofa deed or other conveyance to a Lot, agr-ees to be bound by such amendments as are permitted by this Section 9.02 and further agrees that, ifrequested to do so by Declarant, such Owner will consent to the amendment ofthis Declaration or any other instlilments relating to the Development (i) ifsuch amendment is necessary to bring any provision hereof or'thereof into compliance or conformity withthe provisions ofany applicable governmental statute, rule or regulation or any judicial deterniination which shall be in conflict therewith, (ii) if ' such amendment is necessary to enable any reputable title insurance company to issue tide insurance coverage with respect to any Lots subject to this Declaration, (iii) ifsuch amendment is required by , ' an institutional or governmental lender, purchaser or guarantor of mortgage loans, inCluding, for example, the Federal National Mortgage Association, or Federal Home Loan Mortgage Corporation, to enable such lender or purchaser to makeor purchase mortgage loans on any Lotsubject to this Declaration, (iv) if any such amendment is necessary to enable any 'governmental agency or reputable private insurance company to insure mortgage loans on the Lots subject to this Declaration, or ( v) ifsuch amendment is necessary to correct ascrivener's error inthe drafting ofthis Declaration.
, , 9.03 Amendments by Association. Amendments to this Declaration, other than those authorized by Section 9.02 hereof, shall be proposed and adopted in the following'manner:
fting ofthis Declaration.
, , 9.03 Amendments by Association. Amendments to this Declaration, other than those authorized by Section 9.02 hereof, shall be proposed and adopted in the following'manner: (a) Notice ofthe subject matter ofthe proposed amendment shall be included' in the notice ofthe meeting. ofthe Association at Which such proposed amendment is to be considered and shall be delivered to each member ofthe Association; (b) At such meeting, a resolution adopting a proposed amendment may be proposed by either the Board or by Members ofthe Association. ~uch amendment must be approved by Members holding at least two-thirds (2/3rds)ofthe toUtl votes in the Association provided, however, (i).that any amendment which materially and adversely affects the lien status, security and interest ofaIiy mortgagee must be approved by such mortgagee, and (ii) during any period inwhich Declaration has the right to' appoint and remove officers and directors of the Association, such amendment must be approved by Declarant; and (c) The agreement of the required percentage of the Owners, and, where required, the Declarant and any mortgagee, to any amendment ofthis Declaration shall be evidenced by their execution ofsuch amendment, or, in the alternative, and provided that Declarant does not, have the right to approve such amendment, the sworn statement of the President and any Vice President or the Secretary of the Association 'attached to or incorporated in the amendment executed by the Association, which sworn statement shall state unequivocally that the agreement of the required parties was lawfully obtained. Any such amendment ofthis Declaration shall become effective only when recorded or at such later date as may be specified in the amendment itself. .
35 /
of the required parties was lawfully obtained. Any such amendment ofthis Declaration shall become effective only when recorded or at such later date as may be specified in the amendment itself. .
35 / 9.04 Amendment Restrictions. Notwithstanding any other language or provision to the contrary in this Declaration, the Articles of Incorporation, or the Bylaws of the Association, the Association and/or the Declarant may not amend provisions contained herein regarding the Common Property Maintenance Fund, and regarding maintenance of the Common Property. the Perimeter Wall and .the Peri:rneter Wall Landscaping, without the express written approval of the City of Benbrook, Texas.
ARTICLE X ANNEXATION AND FUTURE DEVELOPMENT 10.01 Annexation. For so long as Declarant has authority to appoint and remove Directors and Officers of the Association, additional real property may be annexed to the.Proper:ty by the Declarant without the consent ofthe Class A Members. Such annexation may be accomplished by (i) filing in the Deed Records ofTarrant County, Texas, an approved subdivision plat describing the real property to be annexed to the Property and by including on such subdivision plat a statement that expressiy sets forth the Declarant's intention t6 make such annexed real property subject to the provisions of this Declaration; or (ii) filing an amendment to the· Declaration which has been consented to by the owners of the real property to be annexed if such real property is owned by·, someone other than Declarant; or (iii) amending the existing subdivision plat to include the real property to be annexed. EachOwner, by acceptance ofa deed to his or her Lot, shall be deemed to have consented to and approved ofall such amendments to the Declaration, ameridments to any
ude the real property to be annexed. EachOwner, by acceptance ofa deed to his or her Lot, shall be deemed to have consented to and approved ofall such amendments to the Declaration, ameridments to any existing subdivision plats and new subdivision plats placed ofrecord which are to be subject to the provisions ofthis Declaration. At the expiration ofDeclarant's right to appointand remove Directors and Officers of the Association, no real property may be annexed to the Property unless such annexation is approved by a two-thirds (2/3rds) vote of the Members ofthe Association who are present in person or by proxy and voting at a meeting ofMembeh duly held in ac(;ordance with the provisions ofthe Bylaws ofthe Association ..
10.02 Future Development. Notwithstanding any other provision contained herein to the contrary, and subject to applicable zoning regulations, Declarant shall have the right, for so long as .
Declarant has· the authority to appoint and remove Directors and Officers of the Association, to annex real property according to the procedure set forth in Section 10.01, which real property may be developed as office, retail, commercial property, apartment complexes, condominiums, attached· townhomes, or single family residences. At the time ofsuch annexation, Declarant shall determine, on an equitable basis, the proportional share ofthe Assessments payable by and the number ofvotes allocated to such property, which determination will be based upon the .de.gree to which the . Occupants of said property have the right to use and are benefited by the Common Areas. Such determination shall be made by amendment to this Declaration, which shall not require the approval ofany Member or third party. Notwithstanding the foregoing, in no event shall the Owner( s) ofsuch
ch determination shall be made by amendment to this Declaration, which shall not require the approval ofany Member or third party. Notwithstanding the foregoing, in no event shall the Owner( s) ofsuch property annexed pursuant to this Section 10.02 be entitled to more than one (1) vote per 4 apartment .
units, with respect to an apartment complex.
36 \ ARTICLE XI MISCELLANEOUS } 1.01 No Reverter. No restriction herein is intended to be, or shall be conStrued as, a condition subsequent or as creating a possibility ofreverter.
11.02 Severability. A determination by a court that any provision hereofis invalid for any reason shall not affect the validity of any other provision hereof. .
11.03 Headings. The headings oftheArticles and Section hereof are for convenience only .
and shall not affect the meaning or interpretation ofthe contents ofthis Declaration.
11.04 Gender. Throughout this Declaration, the masculine gender shall be deemed to include the feminine and neuter, and the singular, the plural, -and vice versa.
11.05. Notices. All amendments, notices, requests, objections, waivers,rejections, agreements, approvals, disclosures or consent ofany kind made pursuant to this Declaration, whether made by the Declarant, the Association, the ACC, the Owner, or any other person, shall be in ..
writing. All such writings shall be sufficient only if deposited in the United States Mail,. certified·, or registered, return receipt requested, with sufficient postage, and sent to the following addresses: (a) Declarant: SRJ Ridgehaven Partners, Ltd.
P. O. Box 16712 Fort Worth, Texas 76162 (b) Owners: . Each Owner's address as registered with the Association in accordance with the Byl~ws.
Any written communication. transmitted in accordance with this Section 11.05 shall be deemed
6162 (b) Owners: . Each Owner's address as registered with the Association in accordance with the Byl~ws.
Any written communication. transmitted in accordance with this Section 11.05 shall be deemed received on the third (3rd) day following the day such written notice is deposited inthe United States MaiL 11.06 No Liability. Declarant has, using best efforts and all due diligence, prepared and recorded this Declaration so that each and every Owner shall have the right and the power to enforce' the terms and provisions ofthis Declaration against every other Owner. However, in the event that this Declaration is, for any reason whatsoever, unenforceable by an Owner (or any other person) in a court of law or otherwise, Declarant shall have no liability of any kind as a. result of such unenforceability, and each and every Owner, by acceptance of a deed conveying a Lot, acknowledges that declarant shall have no such liability.
11.07 Insurance.
(a) At all times during the term of this Declaration, the Association, its successors and assigns, shall be required to keep all improvements located on the Common Property fully insured by a reputable insurance company authorized to transact business in the State ofTexas with (i) fire, vandalism, malicious mischief and extended coverage insurance in an. amount adequate to cover the cost or 37 ..
replacement of such improvements in the event of loss of any andlor all of such improyements, fixtures and contents thereof; and (ii) public liability insurance in such amounts as shall be determined by the Board ofDirectors as appropriate for the Common Property.
(b) Immediately after the damage or destruction by fire or other casualty to all or any portion ofany improvement covered 'byinsmance written in the name of
ors as appropriate for the Common Property.
(b) Immediately after the damage or destruction by fire or other casualty to all or any portion ofany improvement covered 'byinsmance written in the name of the Association, the Board or its duly authorized agent shall proceed with the filing and adjustment of all claims arising under'such insurance and obtain reliable and , detailed estimates of the costs of repair or reconstruction of the damaged' or ' destroyed property. Repair or reconstruction, as used in this paragraph, means repairing or restoring the property to substantially the same condition and location, that existed prior to the fire or other casualty.
Any damage or destruction shall be repaired or reconstructed unless, within sixty (60) days after the casualty, at least seventy-five percent (75%) ofihe total Association entitled to vote thereon, 'and, so long as the Declarant has the right to appoint and remove directors, the Declarant, otherwise agree. If for any reason . either the amount ofthe insurance proceeds to be paid as a result of such damage or destruction, or reliable and detailed estimates of the . cost of repair' or reconstruction, or both, are not made available to the Association within such period, then the period shall be extended until such information shall be made available; provided, however, such extension shall not exceed one hundred twenty (120) days. No Mortgagee shall have right to participate in the determination of whether damage or destruction shal,l be repaired or reconstructed ..
Ifthe damage or destruction for which tlie insurance proceeds are paid is to be repaired or reconstructed and such proceeds are not sufficient to defray the cost thereof, the Board shall, without the necessity of a vote of the Association's
ie insurance proceeds are paid is to be repaired or reconstructed and such proceeds are not sufficient to defray the cost thereof, the Board shall, without the necessity of a vote of the Association's Members, "levy a Special Assessment. Additional Assessments may be made in like ' manner at any time . during or·folloWing' the completion' of any repair. or reconstruction. Ifthe funds available from insurance' exceed the' costs ofrepair or reconstruction or ifthe improvements are not repaired or reconstructed, such excess shall be deposited for the benefit ofthe Association.
In the event that it should be determined by the Association in the manner described above that the damage or destruction shall not be repaired or reconstructed andnoaltemative improvements are authorized, then inthat event the property shall be restored to its natural state and maintained as an undeveloped , ,,--portion ofthe Development in, a neat and attractive condition.
(c) The deductible' for any casualty insurance policy carried by the Association shall, in the event of damage or destruction, be allocated among the persons who are responsible hereunder for maintenance of the damaged or destroyed property.
38 (d) In addition to the coverage described hereinabove, the Association shall obtain such additional amounts and types of insurance as may be required from time to time, by either the Veterans Administration or Federal Housing Administration, their successors and assigns, for similar type residential subdivision communities. I.
11.08 Indemnification and Hold Harmless.
(a) The Association shall indemnify every officer and director against any and . all expenses, including counsel fees reasonably incurred by or imposed upon any
1.08 Indemnification and Hold Harmless.
(a) The Association shall indemnify every officer and director against any and . all expenses, including counsel fees reasonably incurred by or imposed upon any officer or director in connection with any action,suit, or other proceeding (including settlement of any suit or proceeding, ifapproved by the then Board of .
Directors) to which he or she may be a party by reason ofbeing, or having been, an . officer or director. The officers anddirectors shall not be liable for any mistake of .
judgment, negligent or otherwise, except for their own . individual' willful misfeasance, malfeasance, misconduct or bad faith. The officers and directors shall have no personal liability with respect to any contract or other commitinent made by them, in good faith, on behalf ofthe Associatio~ (except to the extent that such officers or directors may also be members ofthe Association), and the Association . shall indemnify and forever hold each such officer and director free and harmless against any and' all liability to others on account. of any' such contract or· commitment. Any right to indemnification provided for herein shall not be exclusive ofany other rights to which any officer or director, or former officer or director, may be entitled. The Association shall, as a common expense, maintain adequate general liability and officers' and directors' liability insurance to fund this obligation.
,~.
(b) Each Owner shall. be liable to the Association for any damage to the Common Property ofany type or to any equipment thereon which may bes'UStained by reason of the negligence of said Owner, his tenants, employees, agents, customers, guests or invitees, to the extent that any such damage shall not be
o any equipment thereon which may bes'UStained by reason of the negligence of said Owner, his tenants, employees, agents, customers, guests or invitees, to the extent that any such damage shall not be covered by insurance. Each Owner does further, by the acceptance ofa deed, agree .
to indemnify each and every other Owner, and to hold harn:lless each and every other Owner, from any claim ofany person for personal injuries orproperty damage occurring within or upon his Lot.
(c) THE ASSOCIATION AGREES TO FULLY INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY OF.BENBROOK, ITS .OFFICERS, AGENTS, AND E~vIPLOYEES,FROM ANY AND ALL CLAIMS,LAWSUITS, JUDGMENTS, . COSTS OR CAUSES OR ACTION OF ANY NATURE WHATSOEVER, WHETHER REAL OR ASSERTED, BROUGHT FOR OR ON ACCOUNT OF AJ~YINJURIES OR DAMAGES TO PERSONS. OR PROPERTY INCLUDING DEATH, RESULTING FROM OR IN ANY WAY CONNECTED WITH THE CONSTRUCTION, MAINTENANCE OR OPERATION OF THE COMMON PROPERTY.
39 ; ARTICLE XII MORTGAGEE PROVISIONS ,)'he following provisions are for the benefit ofholders offirst mortgages oil Residences in , the Development. The provisions ofthis Article apply to both this Declaration and to the Bylaws, notwithstanding any other provisions contained therein.
12.01 Notices ofAction. An institutional holder, insurer, or guarantor ofafirst mortgage, who provides written request to the Association (such request to state the name and address ofsuch holder, insurer, guarantor and the Residence number, therefore becoming an "eligible holder"), will be entitled to timely written notice of:' , . , (a) any condemnation loss or any casualty loss which affects a material portion ofthe Development or which affects any Residence on which there is a first mortgage held, insured, or guaranteed by such eligible holder;
ion loss or any casualty loss which affects a material portion ofthe Development or which affects any Residence on which there is a first mortgage held, insured, or guaranteed by such eligible holder; (b) any delinquency in the payment of Assessments or charges owed by an Owner ofa Residence subject to the mortgage of,such eligible holder where such . " delinquency has continued for a period of sixty (60) days; provided, however, ".
notwithstanding this provision, any holder of a first mortgage, upon request, is entitled to written notice from the Association ofany default in the performance by an Owner ofa Residence ofany obligation under the Declarationor Bylaws ofthe Association which is not cured within sixty (60) days; or (c) any proposed action which would require the' consent of a specified percentage of eligible mortgagees.
12.02 Special FHLMC Provision. So long as requited by the ,Federal Home Loan ,Mortgage Corporation, the following provisions apply in addition to andnot in lieu ofthe foregoing.
Unless at least two-thirds (2/3rds) ofthe first mortgagees or at least two-thirds (2/3rds) ofthe total Members ofthe Association entitled to vote thereon consent, the Association shall'not: (a) by act or omission seek to abandon, partition, subdivide, encumber, sell, or transfer the Common Property which the Association owns, directly orindirectly (the granting ofeasements for public utilities or other similar purposes consistent with the intended use of the Common Property shall not be deemed atransfer within the meaning ofthis subsection); (b) change the method ofdetermining the obligations, assessments, dues, or , other charges which may be levied against an Owner of a Residence; (c) by act or omission change, waive, or abandon any scheme of regulations
hod ofdetermining the obligations, assessments, dues, or , other charges which may be levied against an Owner of a Residence; (c) by act or omission change, waive, or abandon any scheme of regulations or enforcement thereof pertaining, to the architectural design or the exterior appearance and'maintenance of Residences and of the Common Property (the issuance and amendment of architectural standards, procedures, rules and regulations, or use restrictions shall not constitute a change, waiver, or abandonment within the meaning of this provision); 40 " (d) fail to maintain insurance, as required by this Declaration; or (e) use hazard insurance proceeds for any Common Property losses for other: than the repair, replacement,or reconstruction of such property.
I in default and which mayor have become a charge against the Common Property' and may pay overdue premiums on casualty insurance policies or secure new casualty insurance coverage upon the lapse of an Association policy, and fIrst mortgagees making such payments shall be entitled to immediate reiinbursement . from the Association. ..
12.03 . No Priority. No provision of this Declaration or the Bylaws gives or shall be .
construed as giving any Owner or other party priority over any rights ofthe fIrst mortgagee ofany Residence inthe cases ofdistribution to such Owner-ofinsurance proceeds or condemnation awards.
for losses to or a taJcing ofthe Common Property. . . . . .
12.04 Notice to Association. Upon request, e~ch Owner shall be obligated to furnish to the Association the name and address of the holder of any mortgage encumbering such Owner's Residence .
. 12.05 Amendment by Board. Should the Veterans Administration, the Federal National
furnish to the Association the name and address of the holder of any mortgage encumbering such Owner's Residence .
. 12.05 Amendment by Board. Should the Veterans Administration, the Federal National Mortgage Association, or the Federal Home Loan Mortgage Corporation subsequently delete any oftheir respective requirements which necessitate the provisions ofthis Article or make any such requirements less stringent, the Board, without approval ofthe Owners, may cause an amendment to this Article to be recordedto reflect such changes. ,~ 'Ii 12.06 Veterans Administration Approval. As long as the Declarant has an option unilaterally to subject property to this Declaration as provided in Article X, the following actions shall . require the prior approval of the Veterans Administration so .long as the Veterans Administration is guaranteeing any mortgage in the Development: annexation ofadditional property to the Development, except for annexation by Declarant in accordance with Artide X, pursuant to a plan ofannexation previously approved by the Veterans Administration; dedication of Common Property to any public entity; and material amendment ofthe Declaration, Bylaws or Articles of Incorporation.
12.07 Applicability of Article XII. Nothing contained in this Article shall be construed to reduce the percentage vote that must otherwise be obtained under the Declaration, Bylaws, or Texas law for any ofthe acts set out in this Article.
12.08 Failure ofMortgagee to Respond. Any mortgagee who receives a written request from the Board to respond to or consent to any action shall be deemed to have approved such action ifthe Association does not receive a written response from the Mortgagee within thirty (30) days of the date ofthe Association's request.
41 ARTICLE XIII CONDEMNATION
emed to have approved such action ifthe Association does not receive a written response from the Mortgagee within thirty (30) days of the date ofthe Association's request.
41 ARTICLE XIII CONDEMNATION }3.01 Condemnation or Other Goverrunental Taking. If all or any part ofthe Common Property is taken by any authority having the power of condemnation or eminent domain, or is .
conveyed in lieu thereof by the Association with the approval ofat leastseventy-five percent (75%) ofthe Class A Members and ofDeclarant, as long as Declarant owns at least one (1) Lot or has the right to annex property to the Development, the award orproceeds made or collected for such taking or sale in lieu thereof are payable to the Association. The association shall disburse or hold such award or proceeds as follows: (a) If the taking or sale in lieu thereof involves a portion of the Common Property on which improvements have been construed, then, unI~ss wit1:rin sixty (60) days after such taking, Declarant, as long as Declarant owns at least one (1) Lot or has the right to annex property to the Development, together with at least seventy-five percent (75%) of the Class A Members, decide otherwise, the Association shall restore or replace the improvements to the extent practicable, on other existing Common Property, in accordance with the plans approved by the . Association, the ACC, and by Declarant. I(the a';V8Ids or proceeds are not sufficient to defray the cost of repair and replacement of the improvements and such deficiency cannot be appropriated from a reserve fund established for such purpose, the Association may levy one or more Special Assessments, in an amount sufficient to provide funds to pay such excess cost of repair or reconstruction. If
a reserve fund established for such purpose, the Association may levy one or more Special Assessments, in an amount sufficient to provide funds to pay such excess cost of repair or reconstruction. If such improvements are not repair€?d or restored, the Association shall retain the award or proceeds for the benefit ofthe Association; .
(b) Ifthe taking or sale in lieu thereof does not involve any improvements to the Common Property, or ifthere are excess funds remaining after any restoration or replacement ofthe improvements, then the Association shall retain the award, proceeds, or excess funds for the benefit ofthe Association; and .
(c) Ifthe taking or sale in lieu thereof includes all or any part ofthe Common Property. then a court of competent jurisdiction shall apportion stich award or .proc~eds between the Association and the Owners ofthe other property taken so as .
to 'give just compensation to each. In lieu ofseeking judicial apportionment, (i) the Association, (ii) the Owners and their lenders ofalI Lots and Residences wholly or partially taken, and (iii) Declarant, as long as Declarant owns at least one (1) Lot or has the right to annex property to the Development, may mutually agree on the method ofapportionment.
13.02 Condemnation ofLots.
(a) If all or any part of a Lot is taken by an authority having the power of condemnation or eminent domain, or is conveyed in lieu thereof, and the Owner elects not to restore the remainder of the Lot, then the Owner shall promptly remove any remaining improvements damaged or destroyed by such taking or 42 , \ . conveyance and shall leave the Lot in a clean,orderly, safe, and sightly condition. .
In addition, ifthe size or configuration of the Lot remaining after such taking or
oyed by such taking or 42 , \ . conveyance and shall leave the Lot in a clean,orderly, safe, and sightly condition. .
In addition, ifthe size or configuration of the Lot remaining after such taking or conveyance is insufficient to permit the restoration ofthe remaining imp:rovements thereon or therein to their condition prior to such taking .or conveyance in compliance with all applicable standards, restrictions, and provisions of this Declaration and all applicable zoning, subdivision, building, and other governmental regulations, then the Owner, after removing' all . remaining improvements and placing the Lot in a clean, orderly, safe, and sightly condition, may deed' the remaining portion of the Lot to the Association as a part of the . Common Property. Upon the conveyance by an Owner ofhis remaining portion of a Lot, the Owner shall not be a Member.
. . . .
(b) If any part of a Lot is taken· by any authority having the power of condemnation or eminent domain, or is conveyed in lieu thereof; and the Owner.
elects to restore the remainder of the Lot, then the Owner shall restore the remainder ofthe Lot in nearly as practicable to the same condition it was in prior to such· taking or conveyance and in accordance with all applicable standard" restrictions, and provisions of this Declaration and all applicable' zoning, subdivision, building, and other governmental regulations. The Owner shall commence the restoration within sixty (60) days after the taking or conveyance and . .
shall proceed diligently in a good and workmanlike manner to completion.
IN WITNESS WHEREOF, the Declarant has caused this Declaration to be duly executed as providedinthe ackriowledgment set forth hereinafter but to be effective as of A 'jII~ .::t 2002.
SRJ RIDGEHA V£N PARTNERS, LID., a Texas
he Declarant has caused this Declaration to be duly executed as providedinthe ackriowledgment set forth hereinafter but to be effective as of A 'jII~ .::t 2002.
SRJ RIDGEHA V£N PARTNERS, LID., a Texas limited partnership' BY: STEVE S CUSTOM HOMES, INC~' to. H;Jrtnc'$:al Partner BY: 43 " t .
THE STATE OF TEXAS § § COUNTY OF TARRANT § 2002, by Steve Hawkins" President of STEVE HAWKINS CUSTOM HOMES, INC., Texas corporation, on behalf ofsaid corporation, as General Partner ofSRJ RIDGEHA YEN PARTNERS, LID., a Texas limited partnership.
MY COMMISSION EXPIRES: The Association, by the execution hereof, acknowledges and agrees that the Association is ,hereby bound by all of the Association's obligations under this Declaration of Covenants, Restrictions and Easements.'
, " IN WITNESS WHEREOF, the Association, actin, g ~ duly authorized officer, bas ' caused this Declaration to be executed this c:2.3 day of _. ,2002.
WHITESTON C HOMEOWNERS' ASSOCIN C BY: 44 THE STATE OF TEXAS § § COUNTY OF TARRANT § 2002, by Steve Hawkins, President ofWHITESTONE RANCH HOMEOWNERS AS CiAN, . INC., a Texas non-profit corporation, on behalf ofsaid corporation. ' .
ATE OF TEXAS OTARY MY COMMISSION EXPIRES: AFTER RECORDING RETURN TO: American Title Company 2900 S. Hulen, Suite 50 Fort Worth, Texas 76109