THIRD AMENDED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR WILLOW BEND LAKES
THIS THIRD AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR WILLOW BEND LAKES (this "Declaration") is effective as of the 1st __ day of __________ October, 2002, by the WILLOW BEND LAKES HOMEOWNERS ASSOCIATION, INC. (hereinafter referred to as the "Association").
W I T N E S S E T H:
WHEREAS, Willow Bend Homeowners Association, Inc., adopted and recorded an instrument entitled "Second Amended and Restated Declaration of Covenants, Conditions and Restrictions for Willow Bend Lakes, a Village of Willow Bend, and for Willow Bend Lakes Homeowners Association, Inc. in the City of Plano, Collin County, Texas" on September 10, 1996, under Collin County Clerks Index No. 96-0077497 (the "Second Restated Declaration"); and
WHEREAS, Article X, Section 10.02(a) of the Second Restated Declaration provides for amendment of that instrument upon the express written consent of at least seventy percent (70%) of the outstanding votes of the Members of the Association; and
WHEREAS, the proposed amendments to the Second Restated Declaration as set forth in this Declaration have been approved by Members representing at least seventy percent (70%) of the outstanding votes of the Association.
NOW, THEREFORE, this Declaration does hereby replace and supersede the Second Restated Declaration (save and except as to any Architectural Standards Bulletins, rules, policies or other dedicatory instruments previously promulgated and recorded in the Land Records of Collin County, Texas, under the Second Restated Declaration or any prior declaration governing the Property, which instruments shall remain in full force and effect) and from and after the date of the recording of this Declaration in the Deed Records of Collin County, Texas, all of the Property set forth on Exhibit "A" attached hereto and incorporated herein by reference, shall be owned, held, transferred, leased, sold, conveyed and occupied subject to the covenants, conditions, restrictions, easements, liens and charges hereinafter set forth.
The following words when used in this Declaration or any amendment or supplement hereto (unless the context shall otherwise clearly indicate or prohibit) shall have the following meanings:
(a) "Architectural Standards Bulletins" shall mean and refer to those particular standards, restrictions, guidelines, recommendations and specifications applicable to most of the aspects of construction, placement, location, alteration, maintenance and design of any improvements to or within the Property, and all amendments, bulletins, modifications, supplements and interpretations thereof.
(b) "Articles of Incorporation" or "Articles" shall refer to the Articles of Incorporation of Willow Bend Lakes Homeowners Association, Inc., as filed with the Secretary of State of the State of Texas, and attached hereto as Exhibit "C" and incorporated by reference, as they may be amended from time to time.
(c) "Association" shall mean and refer to Willow Bend Lakes Homeowners Association, Inc., a Texas non-profit corporation which has the power, duty and responsibility of collecting the assessments and charges hereinafter prescribed, and has the right of administering and enforcing this Declaration.
(d) "Board" shall mean and refer to the Board of Directors of the Association.
(e) "Bylaws" shall mean the bylaws of the Association attached hereto as Exhibit "B" and incorporated by reference, as they may be amended from time to time.
(f) "City" shall mean and refer to the City of Plano, Collin County, Texas.
(g) "Committee" shall mean the Architectural Control Committee designated and constituted as provided in Article X.
(h) "Declarant" shall mean and refer to WILLOW BEND PROPERTIES, a Texas Joint Venture and its predecessors in title.
(i) "Declaration" shall mean this Third Amended Declaration of Covenants, Conditions and Restrictions for Willow Bend Lakes, and all amendments thereto, as recorded in the Deed Records of Collin County, Texas.
(j) "Deed of Trust" or "Mortgage" shall mean a first lien security interest, mortgage or lien granted by an Owner in and to, or against, a Lot given to a creditor as security for repayment of a loan made to the Owner, said interest to be evidenced by an instrument duly and properly recorded in the Real Property Records of Collin County, Texas.
(k) "Dwelling" or "Residence" shall mean and refer to any residential dwelling situated upon any Lot.
(l) "Existing Property" shall mean and refer to the real property which is, and shall be, held, transferred, sold, conveyed and occupied subject to this Declaration pursuant to Article II hereof.
(m) "Governing Documents" shall mean this Declaration, the Bylaws, the Articles of Incorporation, and Architectural Standards Bulletins of the Association, the rules and regulations of the Association from time to time in effect, and all amendments and supplements to any of the foregoing.
(n) "Greenbelt(s)" shall mean and refer to those areas of land marked as "Landscape and Drainage Easement" or "Landscape, Utility and Drainage Easement" on the Subdivision Plats.
(o) "Lot" shall mean and refer to any plot or tract of land shown upon any recorded subdivision map(s) or plat(s) of the Property, as amended from time to time, which plot or tract is designated as a lot therein and which is or will be improved with a residential dwelling
(p) "Master Association" shall mean and refer to Willow Bend Lakes Master Homeowners Association, Inc. which has the power, duty and responsibility of maintaining and administering the Master Common Properties and other properties described in the Master Supplementary Declaration, as hereinafter defined, and making the assessments, charges and disbursements hereinafter prescribed, and which has the right of administering and enforcing the covenants, conditions and restrictions of the Master Supplementary Declaration.
(q) "Master Common Properties" shall mean and refer to all of the following:
(i) Lots 1, 2, 3 and 4, Block G, Phase I;
(ii) Lot 4R, Block G, Phase Five-R;
(iii) Lots 1 and 2, Block H, Phase I;
(iv) Lot 11, Block F, Phase IV;
(v) The bridge at the eastern boundary of Lot 11, Block F, Phase IV;
(vi) Lots 26 and 27, Block L, Phase VII-R;
(vii) Lot 28, Block B, Phase I;
(viii) Lot 12, Block S, Phase XI;
(ix) Lot 2, Block U, Phase XI;
(x) Lot 12, Block R, Phase XI;
(xi) Median landscaping and irrigation equipment in Winding Hollow Lane;
(xii) All lakes, landscaping, walls, planters, pillars, entry ways, walkways, berms, sprinkler or irrigation systems, signs, wood structures, markers, lights, lighting systems, poles, flags, water features, fountains, equipment, machinery, pumps, buildings, spillways, fishing piers and any other improvements installed by the Association, Declarant or the Declarants predecessors in title upon any of the real property described in (i) - (xi) above, inclusive;
(xiii) Jogging path located on the southern boundary of Lots 1, 2 and 3, Block G, Phase I and Lot 4, Block G, Phase Five-R and any additions or replacements to such jogging path;
(xiv) Landscape, Drainage and Utility Easement set forth at the southernmost portion of Willow Bend Lakes, Phase VI-A;
(xv) Any masonry screening wall constructed at the rear of Lots 1R and 2R, Block E, Phase Three-R, and Lots 3R-14R, inclusive, Block E, Phase Five-R, or on the southern boundary of Lot 14R, Block E, Phase Five-R;
(xvi) Masonry screening wall constructed along the eastern boundary of Lot 2, Block A, Phase VIII and along the eastern and southern boundaries of the right-of-way along Mariners Drive east of the masonry wall described in (xv) above; and
(xvii) Future additions to any of the foregoing permitted by the applicable documents together with any and all improvements that may hereafter be constructed thereon.
Notwithstanding any language to the contrary contained herein, such Master Common Properties shall not include any right, title or interest in land owned by any utility or by any governmental entity or dedicated to public use, except that the median landscaping and irrigation equipment in Winding Hollow Lane shall be maintained and operated by the Master Association.
(r) "Master Supplementary Declaration" shall mean and refer to that certain Master Supplementary Declaration of Covenants and Restrictions for Willow Bend Lakes, A Village of Willow Bend, executed by Declarants predecessors in title on January 18, 1982, and recorded in Volume 1467, Page 905, Land Records, Collin County, Texas, including any amendments thereof or supplements thereto, such Master Supplementary Declaration governing, among other matters, the use, maintenance and designation of Master Common Properties and other properties, more particularly described therein, created and set aside for the use and benefit of the Owners of Lots contained within the Property, as well as the Owners of Lots elsewhere within the property covered by the Master Supplementary Declaration.
(s) "Member" shall mean and refer to each Owner of a Lot.
(t) "Mortgagee" shall mean the beneficiary or holder of any Deed of Trust or Mortgage.
(u) "Owner" shall mean and refer to each and every Person or business entity who is a record owner of a fee or undivided fee interest in any Lot subject to this Declaration; provided, however, the word "Owner" shall not include Person(s) or entity(ies) who hold a bona fide lien or interest in a Lot as security for the performance of an obligation.
(v) "Person" shall mean a natural person, a corporation, a partnership, a trustee, a limited liability company or any other legal entity.
(w) "Property" shall mean and refer to all the real property described in Exhibit "A" and any additions thereto, as are subject to this Declaration, or any amendment or supplement hereto, prepared and filed of record pursuant to the provisions of Article II hereof.
(x) "Subdivision Plats" shall mean and refer to the maps or plats which have been filed with respect to the Property in the Map or Plat Records of Collin County, Texas, or as such may be amended from time to time.
PROPERTY SUBJECT TO THIS DECLARATION; ADDITIONS THERETO
Section 2.01. Existing Property. The Existing Property is located in the City of Plano, Collin County, Texas, and is more particularly described in Exhibit "A-1" through "A-4" attached hereto and incorporated herein by reference for all purposes.
Section 2.02. Additions to the Properties. Additional land(s) may become subject to this Declaration in any of the following manners:
(a) In the event any Person desires to add or annex additional residential and/or common areas to the scheme of this Declaration, such proposed annexation must have the prior written consent and approval of the Board and a majority of the outstanding votes of the Association.
(b) Any additions made pursuant to Paragraph (a) of this Section 2.02, when made, shall automatically extend the jurisdiction, functions, duties and membership of the Association to the properties added.
(c) The Association may, with the prior written consent or vote of a majority of the outstanding votes of the Association (and upon the joinder, approval or consent of such associations), cause the Association to merge or consolidate with any similar association then having jurisdiction over real property located (in whole or in part) within one-half (½) mile of any real property then subject to the jurisdiction of this Association. Upon a merger or consolidation of the Association with another association, its properties, rights and obligations may, by operation of law, be transferred to another surviving or consolidated association or, alternatively, the properties, rights and obligations of another association may, by operation of law, be added to the properties, rights and obligations of the Association as a surviving corporation pursuant to a merger. The surviving or consolidated association may administer this Declaration within the Existing Property, together with the covenants and restrictions established upon any other properties as one scheme.
MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION AND IN THE MASTER ASSOCIATION
Section 3.01. Membership. Every Owner of a Lot shall automatically be and must remain a Member of the Association in good standing. The foregoing is not intended to include Persons who hold an interest merely as security for the performance of an obligation. Memberships shall be appurtenant to and may not be separated from ownership of any Lot. Any Member who has unpaid assessments, fines, late charges, interest, attorneys fees or any other amount due to the Association shall not be in good standing and such Members voting rights shall automatically be suspended without notice until such time as all unpaid amounts are paid in full.
In the event a Lot is owned by more than one Person, all co-Owners shall be entitled to the privileges of membership, subject to reasonable Board regulation and the restrictions on voting set forth in Section 3.02 and in the Bylaws, and all such co-Owners shall be jointly and severally obligated to perform the responsibilities of Owners hereunder. The membership rights of an Owner which is not a natural person may be exercised by any officer, director, partner, or trustee, or by the individual designated from time to time by the Owner in writing provided to the Secretary of the Association. A Persons membership in the Association shall terminate automatically whenever such Person ceases to be an Owner, but such termination shall not release or relieve any such Person from any liability or obligation incurred under or in any way connected with the Association or the Governing Documents during the period of such ownership, or impair any rights or remedies which the Association or any other Owner has with regard to such former Owner.
Section 3.02. Voting Rights. Except as provided in Section 3.04(b), Members shall be entitled to one (1) vote for each Lot in which such Member holds the interest required for membership. When more than one Person holds such interest or interests in any Lot, all such Persons shall be Members, and the vote for such Lot shall be exercised as they, among themselves, determine, but in no event shall more than one (1) vote be cast with respect to any such Lot.
Section 3.03. Quorum, Notice and Voting Requirements. The quorum, notice and voting requirements of and pertaining to the Association are set forth within the Articles of Incorporation and Bylaws of the Association, as same may be amended from time to time.
Section 3.04. The Master Association. The Master Supplementary Declaration is made a part hereof by reference for all purposes of this Section 3.04. The Lots hereunder constitute part of and are included within the property (hereinafter sometimes referred to as the Master Property) covered by the Master Supplementary Declaration for all purposes thereof except as follows:
(a) Except as set forth in Article I(q) of this Declaration, no part of the Lots or the Property hereunder shall constitute Common Properties under the Master Supplementary Declaration.
(b) The President and the First Vice-President of the Association shall serve as the representatives to vote all the votes of the Members of the Association permitted under the Master Supplementary Declaration. The Association shall collect and pay to the Master Association any assessments payable by Owners in accordance with the Master Supplementary Declaration.
PROPERTY RIGHTS IN THE MASTER COMMON PROPERTIES
Section 4.01 Members Easement of Enjoyment to Master Common Properties. Subject to the provisions of the Master Supplementary Declaration, every Member and every tenant of every Member, who resides on a Lot, and each individual who resides with either of them, on such Lot shall have a right and easement of use, recreation and enjoyment in and to the Master Common Properties and such easement shall be appurtenant to and shall pass with the title of every Lot, provided, however, such easement shall not give such the right to make alterations, additions or improvements to the Master Common Properties.
Section 4.02. Extent of Members' Easements. The rights and easements of use, recreation and enjoyment created hereby shall be subject to the following:
The right of the Master Association to prescribe reasonable regulations governing the use, operation and maintenance of the Common Properties, including the right to impose reasonable monetary fines for any infractions thereof;
(b) The right of the Association to enter into and execute contracts with any party for the purpose of providing maintenance or such other materials or services consistent with the purposes of the Association; and
All rights, titles and interests of the Master Association, under or arising from the Master Supplementary Declaration, including any amendments thereof and supplements thereto.
RIGHTS AND OBLIGATIONS OF THE ASSOCIATION
Section 5.01. Greenbelts. The Association, subject to the rights of the Owners set forth in this Declaration, shall have the right and obligation, to maintain any landscaping or improvements within the Greenbelts.
Section 5.02. Personal Property and Real Property for Common Use. The Association may acquire, hold and dispose of tangible and intangible personal property and real property, subject to such restrictions as are set forth in the Governing Documents.
Section 5.03. Rules and Regulations. The Board may make and enforce reasonable rules and regulations governing the use of the Property, Lots and Greenbelts, which rules and regulations shall be consistent with the rights and duties established by this Declaration. Such regulations shall be binding upon all Owners, occupants, invitees and licensees, if any, until and unless overruled, canceled or modified in a regular or special meeting of the Association by the vote of a majority of the Members. At least 30-days before the effective date, the Board will give written notice to the members of any revisions, termination, or adoption of a rule that is part of the Governing Documents. The Board shall at all times maintain the then current and complete rules in a written form which from time to time are distributed to the members and are on file and available through the Associations management company.
Section 5.04. Compliance and Enforcement. Every Owner and occupant of a Lot shall comply with the Governing Documents. The Association shall be authorized to impose sanctions for violations of the Governing Documents. Sanctions may include, without limitation, the following:
(a) Imposing reasonable monetary fines in accordance with Section 13.04 hereof, which shall constitute a lien upon the violator's Lot;
(b) Suspending an Owner's right to vote and the Owners right to use or enjoy any Master Common Properties for any period during which any assessment and/or fines against a Lot resided upon by such Member remains unpaid;
(c) Suspending any services provided by the Association to an Owner or the Owner's Lot if the Owner is more than thirty (30) days delinquent in paying any assessment or other charge owed to the Association;
(d) Exercising self-help, consistent with the rights and duties established by this Declaration (specifically including, but not limited to, towing of vehicles that are parked or stored in violation of the Governing Documents); and
(e) Levying an Individual Special Assessment pursuant to Section 6.06.
In addition to any other enforcement rights, the Association may bring suit in law or in equity, or both, to enjoin any violation or to recover monetary damages, or both. All remedies set forth in the Governing Documents shall be cumulative of any remedies available at law or in equity. If the Association prevails in any action to enforce the Governing Documents, it shall be entitled to recover all costs, including, without limitation, attorney's fees, court costs and administrative or management fees reasonably incurred in such action. Failure by the Association to enforce any of the foregoing or any other right or remedy of the Association shall in no event be deemed a waiver of the right to do so thereafter.
Section 5.05. Implied Rights. The Association may exercise any other right or privilege given to it expressly by the Governing Documents. The Association may also exercise every other right or privilege reasonably implied from or reasonably necessary to effectuate any such right or privilege.
Except as otherwise specifically provided in the Governing Documents, or by law, all rights and powers of the Association may be exercised by the Board without a vote of the membership.
Section 5.06. Indemnification. The Association shall indemnify every officer, director and committee member to the full extent permitted by Section 1396-2.22.A of the Texas Non-Profit Corporation Act, as amended (but, in the case of any such amendment, only to the extent that such amendment permits broader indemnification than permitted prior to such amendment). Any right to indemnification provided for herein shall not be exclusive of any other rights to which any present or former, officer, director or committee member may be entitled. The Association shall, as a common expense, maintain adequate general liability and officers' and directors' liability insurance to fund this obligation, if such insurance is reasonably available. The officers and directors shall have no personal liability with respect to any contract or other commitment made or action taken in good faith on behalf of the Association.
Section 5.07. Security. The Association may maintain or support certain activities within the Property designed to enhance the security of the Property, including, without limitation, the use of patrol services unless directed otherwise by written consent of the Members having a majority of the outstanding votes of the Association. THE ASSOCIATION SHALL NOT IN ANY WAY BE CONSIDERED AN INSURER OR GUARANTOR OF SECURITY WITHIN THE PROPERTY, NOR SHALL SUCH THE ASSOCIATION BE HELD LIABLE FOR ANY LOSS OR DAMAGE FOR FAILURE TO PROVIDE ADEQUATE SECURITY OR INEFFECTIVENESS OF SECURITY MEASURES UNDERTAKEN.
THE ASSOCIATION AND ARCHITECTURAL CONTROL COMMITTEE MAKE NO REPRESENTATION OR WARRANTY THAT ANY SYSTEMS OR MEASURES, INCLUDING ANY MECHANISM, DEVICE OR PERSON EMPLOYED TO MONITOR, LIMIT OR RESTRICT ACCESS TO THE PROPERTY CANNOT BE COMPROMISED OR CIRCUMVENTED; OR THAT ANY SUCH SYSTEMS OR SECURITY MEASURES UNDERTAKEN WILL IN ANY CASE PROVIDE THE DETECTION OR PROTECTION FOR WHICH THE SYSTEM IS DESIGNED OR INTENDED. EACH OWNER AND ALL TENANTS, GUESTS AND INVITEES OF ANY OWNER, ACKNOWLEDGE AND UNDERSTAND THAT THE ASSOCIATION, ITS BOARD AND COMMITTEE MEMBERS, ARE NOT INSURERS AND THAT EACH PERSON WITHIN THE PROPERTY ASSUMES ALL RISKS FOR PERSONAL INJURY AND LOSS OR DAMAGE TO PROPERTY, INCLUDING LOTS AND THE CONTENTS THEREOF, RESULTING FROM ACTS OF THIRD PARTIES.
COVENANTS FOR ASSESSMENTS
Section 6.01. Creation of Lien and Personal Obligation of Assessments. Each Owner of any Lot by acceptance of a deed therefor, whether or not it shall be so expressed in any such deed or other conveyance, shall be deemed to covenant and agree (and such covenant and agreement shall be deemed to constitute a portion of the purchase money consideration for acquisition of the Lot), to pay to the Association (or to an entity or agency which may be designated by the Association to receive such monies):
(a) Annual Assessments or charges for those matters described in Section 6.02;
(b) Special Assessments for capital improvements or unbudgeted or unanticipated expenses or unusual or emergency matters; such assessments to be fixed, established and collected from time to time as provided in Section 6.04; and
(c) Individual Special Assessments levied against individual Owners in accordance with Section 6.06 to reimburse the Association for the extra cost for maintenance and repairs caused by the willful or negligent acts of the individual Owner and not caused by ordinary wear and tear, or to recover fines levied against individual Owners for violations of rules and regulations pertaining to the Association, such assessment to be fixed, established and collected from time to time as hereinafter provided.
The Annual, Special and Individual Special Assessments, together with late charges, interest and costs of collection thereof as hereinafter provided, shall be a charge on the land and shall be a continuing lien upon each Lot against which each such assessment is made and shall also be the continuing personal obligation of the Owner of such Lot at the time when the assessment fell due.
Section 6.02. Purpose of Assessments. The assessments levied by the Association shall be used exclusively for the purpose of :
(a) Promoting the recreation, and welfare of the residents of the Property;
(b) Paying assessments to the Master Association for maintenance, repair, replacement, and improvement of the Master Common Properties and such other and further purposes and functions of the Master Association as authorized under the Master Supplementary Declaration;
(c) Paying all costs incurred by the Association in connection with the maintenance, repair, replacement, and improvement of the Greenbelts;
(d) Paying the cost of labor, equipment (including the expense of leasing any equipment) and materials required for, and management and supervision of, the Area of Common Responsibility;
(e) Paying all insurance premiums, all taxes, all administrative expenses and all other expenses incurred in connection with the conduct of Association business;
(f) For carrying out the duties of the Board as set forth in Article VII; and
(g) For carrying out the various matters set forth or envisioned herein or in any amendment or supplement hereto.
Section 6.03. Basis and Amount of Annual Maintenance Assessments.
(a) The Board may establish the maximum annual assessment for each Lot, provided that the maximum annual assessment may not be increased more than twenty-five percent (25%) above the maximum annual assessment for the previous year unless otherwise approved by the Members representing a majority of the votes in the Association who are present, in person or by proxy, at a duly called meeting of the Association.
(b) After consideration of current maintenance costs and the future needs of the Association, the Board may fix the actual regular assessment at an amount equal to or less than the then-existing maximum annual assessment.
(c) The Board may establish a time-price differential schedule of the payment of the annual assessment in which discounts may be offered for early payment.
Section 6.04. Special Assessments for Capital Improvements. In addition to the annual assessments authorized by Section 6.03, the Association may levy in any fiscal year a special assessment, applicable to that year only, although payable in annual installments at the discretion of and as fixed by the Board , for the purpose of defraying, in whole or in part, the cost of any unbudgeted or unanticipated expenses; provided that any such assessment shall have the affirmative approval of at least a majority of the Members of the Association who are present, in person or by proxy, at a duly called meeting of the Association.
Section 6.05. Uniform Rate of Annual and Special Assessments. Both annual and special assessments must be fixed at a uniform rate for all Lots.
Section 6.06. Individual Special Assessments. The Board shall have the power to levy individual special assessments against a particular Lot or Lots constituting less than all Lots within the Property as follows:
(a) To cover the costs, including overhead and administrative costs, of providing benefits, items or services to any Lot upon request of the Owner, which benefits, items or services the Board may (but shall not be obligated to) offer from time to time; such assessments may be levied in advance of the provision of the requested benefit, item or service as a deposit against charges to be incurred;
(b) To cover costs incurred in bringing the Lot into compliance with the terms of the Governing Documents, or costs incurred as a consequence of the conduct of the Owner of the Lot, their tenants, licensees, invitees or guests;
(c) For fines levied pursuant to the Governing Documents; and
(d) For any other costs or expenses specifically authorized by the Governing Documents to be levied against a particular Lot or Lots.
Failure of the 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 of the 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.
Section 6.07. Due Dates of Assessments. The annual maintenance assessments provided herein as prescribed by the Board , shall be payable annually or semi-annually, in advance, on the first day of each year or on the first day of January and July as the case may be. The due date or dates, if it is to be paid in installments, of any annual assessment, special assessment or individual special assessment under Sections 6.03, 6.04 and 6.06 hereof, shall be fixed in the respective resolution authorizing such assessment. If any Owner is delinquent in paying any assessments or other charges levied on his or her Lot, the Board may require any unpaid installments of all outstanding assessments to be paid in full immediately.
Section 6.08. Duties of the Board with Respect to Assessments.
(a) The Board shall fix the date of commencement and the amount of the assessment against each Lot for each assessment period at least thirty (30) days in advance of such date or period; and the Board shall, at that time, prepare a roster of the Lots and assessments applicable thereto which shall be kept in the office of the Association.
(b) Written notice of the assessment shall thereupon be delivered or mailed to every Owner subject thereto at least thirty (30) days in advance of the due date.
(c) The Board shall upon ten (10) days prior written demand furnish to any Owner liable for said assessments, a certificate in writing signed by an Officer or duly authorized agent of the Association, setting forth whether said assessment has been paid. Such certificate shall be conclusive evidence of payment of any assessment therein stated to have been paid. A reasonable charge may be made by the Board for the issuance of such certificate.
Section 6.09. Assessment Lien.
(a) There has heretofore been reserved to the Association a lien against each Lot to secure the payment of any assessment which may be levied pursuant to this Declaration, and the expenses incurred in connection with the enforcement thereof, including, without limitation, interest at the maximum rate permitted by law, late charges, costs and reasonable attorneys fees. Such lien may be enforced in accordance with Section 6.10 below by appropriate judicial or non-judicial proceedings, and the amount secured thereby shall be the obligation of and chargeable to the Owner. Such lien shall be prior and superior to all other liens, except: (a) assessments, liens and charges in favor of the State of Texas and any political subdivision thereof, and (b) the lien or charge of any first Mortgage of record (meaning any recorded Mortgage with first priority over other Mortgages) made in good faith and for value, provided, however, that such subordination shall apply only to the assessments which have become due and payable prior to the foreclosure sale, whether public or private, of such property pursuant to the terms and conditions of any such Mortgage or Deed of Trust. Such sale shall neither relieve such Lots from liability for the amount of the assessments thereafter becoming due nor from the lien of any such subsequent assessment.
(b) All sums assessed but unpaid, including late charges and interest thereon at the maximum rate permitted by law from the date such assessments are due until said assessments are paid (subject to the provisions limiting the interest contracted for, charged or received to the maximum permitted by applicable law), shall constitute a lien on the Lot superior to all other liens and encumbrances, except as provided in Section 6.09(a) above. The Board or its duly authorized agent, may (but shall not be required to) prepare a written notice setting forth the amount of such unpaid indebtedness, the name of the Owner and a description of the Lot. Such notice shall be signed by a member of the Board or its duly authorized agent and may be recorded in the office of the County Clerk of Collin County, Texas. Such lien may be enforced by the foreclosure of it upon the Lot by the Declarant or the Board or its duly authorized agent in accordance with Section 6.10 hereof. In any such proceeding, the Owner shall be required to pay the costs, expenses and attorneys fees incurred in connection therewith, including attorneys fees to file the lien. The Board or its duly authorized agent or any other Person shall have the power to bid on the Lot at foreclosure or other legal sale and to acquire and hold, lease, mortgage, convey or otherwise deal with the same.
(c) Any Mortgagee holding a lien on the Lot may pay, but shall not be required to pay, any unpaid assessments owing with respect to the Lot, but such payment shall not be deemed a waiver of Owners default by either the Board or such Mortgagee.
(d) In the event the Association is dissolved, all existing property liens and assessments will remain valid.
Any assessment owed to the Association at the time the Association is dissolved will be collected and equally returned to the Members of the Association in good standing at the date of the passage of the resolution for dissolution.
(f) The Associations assessment lien may not be foreclosed if the debt securing the lien consists solely of (i) fines assessed by the Association or (ii) attorneys fees incurred by the Association solely associated with fines assessed by the Association.
Section 6.10. Effect of Nonpayment of Assessment; the Personal Obligation of the Owner; Remedies of Association.
(a) If any assessment or any part thereof is not paid on the date(s) when due, then the unpaid amount of such assessment shall be considered delinquent and shall, together with late charges, service charges [hereinafter defined in subparagraph (e)], and interest thereon at the highest permitted lawful rate per annum, and costs of collection thereof, thereupon become a continuing debt secured by a lien on the Lot of the non-paying Owner which shall bind such Lot in the hands of the Owner, his heirs, executors, devisees, personal representatives and assigns. The Association shall have the right to reject partial payments of an assessment and demand the full payment thereof. The amount of the assessments assessed against the Lot shall also be a personal obligation or indebtedness of the Owner thereof at the time the assessments are made. The personal obligation of the then-existing Owner to pay such assessment, however, shall remain his personal obligation and shall not pass to his successors in title unless expressly assumed by them. However, the lien for unpaid assessments shall be unaffected by any sale or assignment of a Lot and shall continue in full force and effect.
(b) No Owner may waive or otherwise escape liability for the assessment provided herein by abandonment of his Lot or for any other reason, including, without limitation, a dispute with the Association concerning the performance of its obligations under the Governing Documents or from any action taken by the Association to comply with any law, ordinance or with any order or directive of any municipal or other governmental authority, the obligation to pay such assessments being a separate and independent covenant on the part of each Owner.
(c) Owner, by acceptance of the deed to his Lot, hereby expressly vests in the Association, the Board or its agents the right and power to bring all actions against Owner personally for the collection of such charges as a debt, and to enforce the aforesaid liens by all methods available for the enforcement of such liens. Suit to recover a money judgment for unpaid assessments shall be maintainable without foreclosing or waiving the lien securing same.
(d) The Association may also give written notification to the holder(s) of the Mortgage on the Lot of the non-paying Owner of such Owner's default in paying any assessment when such default has not been cured within thirty (30) days of the original date due, provided that the Association has theretofore been furnished in writing with the correct name and address of the holder(s) of such Mortgage and a written request to receive such notification.
(e) If any assessment remains unpaid at the expiration of fifteen (15) days from and after the due date established by the Board, a late charge shall be assessed against the non-paying Owner for each month, or any part thereof, that any portion of an assessment remains unpaid. The late charges shall be in the amount of Twenty-five and No/100 Dollars ($25.00) per month. A service charge in the amount of Twenty and No/100 Dollars ($20.00) shall be charged for each check that is returned because of insufficient funds. The amounts of late charges and services charges shall be established and may be adjusted, from time to time, by the Board.
(f) If any assessment or part thereof, late charge or service charge, is not paid when due, the unpaid amount of such assessment, together with the second half of the annual assessment if the first half of the annual assessment is not paid when due, all late charges, and service charges shall bear interest from and after the date when due at the rate set by the Board, not to exceed the highest permitted lawful rate per annum, and the Association may, at its election, retain the services of an attorney for collection and there shall also be added to the amount of such unpaid assessment, late charge or service charge, any and all collection costs incurred hereunder by the Association, including reasonable attorney's fees.
(g) In the event of default in the payments of any assessment or part thereof, the Association may elect to institute an action at law against the Owner or Owners personally obligated to pay such lien and may elect to foreclose against such Lot judicially or non-judicially pursuant to Texas Property Code Section 51.002, or any applicable successor legislation thereto (the "Foreclosure Statute"); provided, however, that a lawsuit seeking foreclosure shall not be filed nor shall a non-judicial foreclosure sale be conducted unless and until the total indebtedness of the defaulting Owner exceeds the amount of the Annual Assessment then in effect at the time of the lawsuit or sale, as applicable. In connection with the right of non-judicial foreclosure, each Owner grants the Association a power of sale to be exercised in accordance with the Foreclosure Statute. The conveyance to the purchaser or purchasers, shall be with general warranty binding such Owner, his heirs and assigns, and out of the money arising from such sale, the Association shall pay first all the expenses of advertising the sale and making the conveyance, and then to the Association the full amount of principal, late charge, service charge, interest, attorney's fees and other charges due and unpaid on said Lot and all other indebtedness secured by such lien hereunder, rendering the balance of the sales price, if any, to such Owner, his heirs or assigns; and the recitals in the conveyance to the purchaser or purchasers shall be full and conclusive evidence of the truth of the matters therein stated, and all prerequisites to said sale shall be presumed to have been performed, and such sale and conveyance shall be conclusive against such Owner, his heirs and assigns.
(h) The Associations assessment lien may not be foreclosed if the debt securing the lien consists solely of (i) fines assessed by the Association or (ii) attorneys fees incurred by the Association solely associated with fines assessed by the Association.
Section 6.11. Exempt Property. The following property otherwise subject to this Declaration shall be exempted from the assessments, charges and liens created herein.
(a) All properties dedicated and accepted by the local public authority and devoted to public use; and
(b) Any and all areas which may be reserved on the Subdivision Plats of the Property.
Section 6.12. Assessments of Master Association. As indicated in Section 3.04 above, the Master Supplementary Declaration covering the Property (among other property) may contain provisions relating to the collection, purpose, use, basis, amount, type, uniformity, due dates, lien and effect of non-payment of assessments. Such provisions for assessments shall relate to and be administered by the Board of Directors of the Master Association and the assessments collected by the Association on behalf of the Master Association shall be paid to and used by the Master Association for the members of each of the Associations which make up the Master Association, and in connection with the Master Common Properties.
GENERAL POWERS AND DUTIES OF THE BOARD
Section 7.01. Powers and Duties. The affairs of the Association shall be conducted by its Board of Directors (hereinafter referred to as the "Board"). The Association may employ or contract for the services of an Association Management Company to act for the Association and the Board. The Board may delegate to its Association Management Company, subject to the Board's supervision, all of the powers granted to the Board by the Governing Documents. Such powers and duties may include, without limitation, the authority to communicate with Owners regarding violations of the Governing Documents and the authority to notify Owners of any fines imposed under the Governing Documents. Neither the Board nor any officer of the Association shall be liable for any omission or improper exercise by the Associations Management Company of any such duty, power, or function so delegated by written instrument executed by or on behalf of the Board. In addition, the Board may delegate any of its authority to any committee (in addition to the Architectural Control Committee) or other entity that the Board may choose to form to perform specific functions under the supervision of the Board. The Board shall be selected in accordance with the Articles of Incorporation and Bylaws of the Association. The Board, for the benefit of the Association and the Owners, shall provide, and shall pay for out of the Associations fund(s) the following:
(a) Taxes, insurance premiums, utilities charges and other liabilities of the Association;
(b) The services of a Person or firm to manage the Association or any separate portion thereof, to the extent deemed advisable by the Board, and the services of such other personnel as the Board shall determined to be necessary or proper for the operation of the Association, whether such personnel are employed directly by the Board or by the Associations Management Company designated by the Board;
(c) Legal and accounting services; and
(d) Any other materials, supplies, furniture, labor, services, maintenance, repairs, structural alteration, taxes or assessments which the Board is required to obtain or pay for pursuant to the terms of this Declaration or which in its opinion shall be necessary or proper for the operation or protection of the Association or for the enforcement of this Declaration.
The Board shall have the following additional rights, powers and duties:
(a) Subject to the approval of at least seventy-five percent (75%) of the members of the Board, to borrow funds to pay costs of operation or fund capital improvements, either unsecured or secured by assignment or pledge of future assessments or secured by such assets of the Association as deemed appropriate by the lender and the Association;
(b) To enter into contracts, maintain one or more bank accounts, and, generally, to have all the powers necessary or incidental to the operation and management of the Association;
(c) To make reasonable rules and regulations binding upon all Owners, occupants, invitees and licensees, if any, for the operation of the Greenbelts and the use, occupancy, leasing or sale, maintenance, repair, modification, and appearance of Lots and to amend them from time to time;
(d) To make available to each owner at the annual meeting a written annual report which shall include an income statement and balance sheet;
(e) Pursuant to Article VIII herein, to adjust the amount, collect and use any insurance proceeds to repair damage or replace lost property; if proceeds are insufficient to repair damage or replace lost property, to assess the Members in equal amounts to cover the deficiency; and
(f) To enforce the provisions of this Declaration and any rules made hereunder, including the right to impose reasonable monetary fines for infractions of the Governing Documents as more particularly set forth in Section 13.04, and to enjoin and seek damages from any Owner for violation of such provisions or rules.
Section 7.02. Board Powers Exclusive. The Board shall have the exclusive right to contract for all goods, services and insurance, and the exclusive right and obligation to perform the functions of the Board, except as otherwise provided herein.
Section 7.03. Maintenance Contracts. The Board, on behalf of the Association, shall have full power and authority to contract with any Owner in writing for the performance by the Association of services which the Board is otherwise required to perform pursuant to the terms hereof, such contracts to be upon such terms and conditions and for such consideration as the Board may deem proper, advisable and to the best interest of the Association.
Section 7.04. Liability Limitations. Neither any Member, the Board, any Director nor any Officer of the Association shall be personally liable for debts contracted for, or otherwise incurred by the Association, or for a tort of any other Member, whether such other Member was acting on behalf of the Association or otherwise. Neither the Association, its directors, officers, agents or employees shall be liable for any incidental or consequential damages for failure to inspect any premises, improvements or portion thereof or for failure to repair or maintain the same. The Association or any other Person, firm or corporation liable to make such repairs or maintenance shall not be liable for any personal injury or other incidental or consequential damages occasioned by any act or omission in the repair or maintenance of any premises, improvements or portion thereof.
Section 7.05. Reserve Funds. The Board may maintain and establish funds which may be maintained and accounted for separately from other funds maintained for annual operating expenses and may establish separate, irrevocable trust accounts in order to better demonstrate that the amounts deposited therein are capital contributions and not net income to the Association.
INSURANCE; REPAIRS AND RESTORATION
Section 8.01. Right to Purchase Insurance. The Association shall have the right and option, but not the obligation, to purchase, carry and maintain in force insurance , in such amounts and with such endorsements and coverage as shall be considered good sound insurance coverage. Such insurance may include, but need not be limited to:
(a) Public liability insurance on a broad form basis.
(b) Fidelity bond for all officers and employees of the Association having control over the receipt or disbursement of funds.
(c) Officer's and directors' liability insurance.
Section 8.02. Destruction of Improvements on Individual Lots. In the event of damage or destruction (total or partial) of the improvements on any individual Lot due to fire or any other cause, each Owner covenants and agrees to commence all necessary repairs, reconstruction or removal of the damaged improvements within sixty (60) days of the date the damage occurs unless an alternate plan of action increasing the 60-day requirement is approved by the Board and to complete such repairs, reconstruction or removal within a reasonable time from the commencement of such work. In the event repair, reconstruction or removal of such improvements is not commenced within such sixty (60) day period or other time period approved by the Board and such failure continues for a period of fifteen (15) days following delivery of written notice to the owner via certified mail, return receipt requested, the Association may cause the improvements to be removed and the Lot cleared and all costs incurred by the Association in so doing shall constitute an individual special assessment against such Lot, shall be repayable by such Owner within fifteen (15) days after request or demand therefor by the Association, and shall be secured by a lien which shall have the same attributes as the lien for other assessments as set forth in this Declaration, and the Association shall have identical powers and rights in all respects, including but not limited to, the right of foreclosure. In the event of such removal and clearing, the Association shall not be liable in trespass or for damages, expenses, costs or otherwise for such removal and clearing. Neither the Board nor the Association shall be obligated to enforce the covenants set forth in this Section.
CONSTRUCTION OF IMPROVEMENTS AND USE OF LOTS - PROTECTIVE COVENANTS
The Property (and each Lot situated therein) shall be occupied and used as follows:
Section 9.01. Occupants Bound. All provisions of the Governing Documents which govern the conduct of Owners and which provide for sanctions against Owners shall also apply to all occupants, guests and invitees of any Lot. Every Owner shall cause all occupants of his or her Lot to comply with the Governing Documents. Every Owner shall be responsible for all violations and losses to the Association caused by such occupants, notwithstanding the fact that such occupants of a Lot are fully liable and may be sanctioned for any such violation or loss.
Section 9.02. Residential Use. All Lots shall be used for residential purposes only. No Lot shall be used for the operation of a day care or any other business or professional purposes of any kind or for any commercial or manufacturing purpose, except that the resident of a Lot may conduct business activities within the Lot so long as (a) the existence or operation of the business activity is not apparent or detectable by sight, sound or smell from outside the Lot; (b) the business activity conforms to all zoning requirements for the Property; (c) the business activity does not involve regular visitation of the Lot by clients, employees, customers, suppliers or other business invitees or door-to-door solicitation of residents of the Property; and (d) the business activity is consistent with the residential character of the Property and does not constitute a nuisance, or a hazardous or offensive use, or threaten the security or safety of other residents of the Property, as may be determined in the sole discretion of the Board.
The terms "business" and "trade", as used in this provision, shall be construed to have their ordinary, generally accepted meanings and shall include, without limitation, any occupation, work or activity undertaken on an ongoing basis which involves the provisions of goods or services to Persons other than the provider's family and for which the provider receives a fee, compensation or other form of consideration, regardless of whether (a) such activity is engaged in full or part time, (b) such activity is intended to or does generate a profit, or (c) a license is required. The leasing of a Lot shall not be considered a business or trade within the meaning of this subsection.
No building or structure shall be erected, altered, placed or permitted to remain on any Lot other than a single-family dwelling and a private garage for two (2) or more automobiles. No building or structure on any Lot shall exceed two (2) stories in height.
Section 9.03. Minimum Floor Space. Each dwelling constructed on any Lot shall contain a minimum of 2,500 square feet of air-conditioned floor area, exclusive of porches, garages or breezeways attached to the main dwelling. Each one and one-half (1-1/2) story or two (2) story dwelling constructed on any Lot shall contain a minimum of 2,500 square feet of air-conditioned ground floor area (exclusive of porches, garages or breezeways attached to the main dwelling). The second floor of each one and one-half (1-1/2) story or two (2) story dwelling shall not contain more than eighty percent (80%) of the number of square feet contained in the ground floor area.
Section 9.04. Garages and Porte Cochere. Each single-family residential dwelling erected on any Lot shall provide garage space or porte cochere for a minimum of two (2) conventional automobiles. Except as to those Lots on which the original Dwellings were constructed prior to August 1, 2000 with front facing garages, each garage shall open only to the side of the Lot so as not to directly face a residential street or any of the Common Properties.
Section 9.05 Roof. All roofs shall be constructed of wood shingle, wood shake, slate, standing seam metal, aluminum, concrete or other materials as may be specifically approved in writing by the Architectural Control Committee, taking into account harmony, conformity, color, appearance, quality and similar considerations. No rounded Spanish tile or three tab asphalt strip shingles will be permitted.
Laminated, multiple-ply composition shingles will be allowed should they meet all of the following conditions:
GENERAL PRODUCT DESCRIPTION
(a) Must carry a minimum thirty (30) year manufacturers warranty.
(b) Must be a premium, super-heavyweight multi-dimensional appearance with the greatest resemblance to weathered wood shake or shingles, in depth and perception.
(c) Overlayment with the new roofing will not be permitted over the existing wood shake or shingles. Original or existing roofing material must be removed and a new, exterior grade plywood decking material installed.
(d) Must be of a color most closely resembling weathered wood.
(e) Must be specifically approved in writing by the Board of Directors.
The intent of the restriction with respect to the use of laminated and multi-ply composition shingles is to ensure the use of the highest quality, premium roofing material available as of the date of installation in order to preserve, protect and enhance the value of the Property.
Section 9.06 Setback Requirements. No building or structure of any type shall be erected on any Lot nearer to the front property line than indicated by the minimum building setback line on the recorded plat of the Property. No building or structure of any type shall be erected on any Lot nearer than three (3) feet to the side property line as shown on the recorded plat of the Property. Except as otherwise provided herein, detached garages not attached to the main single-family dwelling shall not be located within fifteen (15) feet of the boundary line of the landscaped easement nearest to the rear of each Lot and no portion of any structure, such as eaves or steps, shall encroach upon another Lot. On all Lots where the landscaped greenbelt easement on the rear of the Lot exceeds fifteen (15) feet in width, the Architectural Control Committee reserves the right and has the power, in its sole discretion, to permit the Owner of such Lot to construct or locate a detached garage and/or the main single-family dwelling within fifteen (15) feet of the rear landscaped greenbelt easement line.
Section 9.07 Fences.
(a) No fence, wall or hedge shall be erected, placed or altered on any Lot nearer to any street than the minimum building setback line indicated on the recorded plat of the Property. No fence, wall or hedge shall exceed eight (8) feet in height unless otherwise specifically required by the City of Plano.
(b) Except as hereinafter provided, any fencing located more than fifteen (15) feet from the rear easement line of each Lot which extends across all or any part of such Lot must be of masonry, masonry and wrought iron or wrought iron construction; however, any masonry used must be identical to the type of masonry used on the residence located on such Lot.
(c) Wood fencing approved by the Architectural Control Committee will be allowed to extend from the outer perimeter of a home to the side property line a distance not to exceed approximately ten percent (10%) of the Lot width on any side of the home. The Architectural Control Committee may allow some flexibility on this dimension in the case of pie-shaped or irregularly shaped lots. This wood fencing will be allowed only if such fence is to be located between the front and rear boundaries of the dwelling and approval will be subject to thorough consideration of the effect such proposed fencing might have on adjoining Lots and/or dwellings. In addition, such wood fencing must be recessed from the front building line of the dwelling a minimum distance of ten (10) feet.
(d) Any fencing located more than fifteen (15) feet from the rear easement line to the rear of each Lot extending from the front of the Lot to the back of the Lot (perpendicular to front property line) may be of wood material.
(e) All wood fencing, regardless of location, shall (i) be double-faced (i.e., no stringers or posts shall be visible from any residential street, greenbelt or adjoining Lot), (ii) be composed of cedar or redwood, (iii) have slats measuring between four (4) and eight (8) inches wide which are installed vertically only (not horizontally or diagonally) (iv) have an even flat top and (v) not be painted or stained on any surface which is visible from a street, greenbelt or adjoining Lot.
(f) Any fencing located within fifteen (15) feet of the rear easement line of each Lot must be not less than four (4) feet and not more than six (6) feet in height and must be made of wrought iron of a design and style which is in conformance with the existing wrought iron fencing within the Property and which is approved by the Architectural Control Committee. All such wrought iron fencing shall be painted black.
(g) All service and sanitation facilities must be enclosed within fences, walls or landscaping so as not to be visible from any residential street.
(h) Given the great variety of potential fencing and screening configurations and materials, it is understood that the fencing restrictions contained in this Section 9.07 may not be exhaustive; therefore, no fence, wall or hedge shall be erected, placed or altered on any Lot without the approval of the Architectural Control Committee. Upon submission of a written request for same, the Architectural Control Committee may, from time to time, at its sole discretion, permit Owners to construct fences or walls which are in variance with the provisions of this Section 9.07 where, in the opinion of the Architectural Control Committee, the fence or wall is an integral part of the architectural style or design of the home. No member of the Architectural Control Committee shall be liable to any Owner for any claims, causes of action or damages arising out of the grant of any such variance to any Owner. Each request for a variance submitted under this paragraph shall be reviewed separately and apart from other such requests and the grant of a variance to an Owner shall not constitute a waiver of the Architectural Control Committees right to strictly enforce the restrictions provided hereunder against any other Owners.
(i) The solid masonry screening wall along the eastern boundary of Phase IX, such boundary being more particularly described as the eastern boundary of Lot 7, Block O; Lot 36, Block M; Lot 35, Block M to its intersection with the northern boundary of Lot 33, Block M; and the northern boundary of Lots 32 and 33, Block M, shall be maintained by the individual owners of the Lots upon which such wall is built.
Section 9.08. Signs.
(a) No signs of any kind shall be placed on the Master Common Properties of the Master Association or on the parkway between sidewalks and the street, except as permitted by the Board from time to time.
(b) No sign or signs shall be displayed to the public view on any Lot, except that: (1) a dignified for sale, open house or for rent sign (of not more than nine (9) square feet in size) may be utilized on the respective Lot by the Owner for the applicable sale or rent situation (the open house sign to be displayed no more than a few hours before the open house period and removed when the house is no longer open); (2) signs displaying the name of a security company shall be permitted, provided that such signs are (i) ground mounted, (ii) limited to two (2) in number (one in the front yard and one in the back yard); (iii) of a reasonable size; and (iv) subject to the written approval of the Architectural Control Committee.
(c) Other small signs, such as those announcing the involvement of teenagers in football, cheerleading, etc., shall be allowed, but homeowners are encouraged to limite the length of time they are displayed.
(d) Political signs may be displayed for a reasonable period before the election, but they should be tasteful, small and there should be no more than one of a kind on the Lot.
(e) Any sign erected in violation of this Section may be removed by the Association at the Owners expense, and the Association shall not be liable in trespass or for damages, expenses, costs or otherwise for such removal.
Section 9.09. Easements; Utilities. Where so shown on the Subdivision Plats, a fifteen foot (15') wide strip along and parallel with the rear property line of each Lot has been reserved as an easement area for landscaping, drainage and utilities. No Owner may erect any structure of any type or plant in these easement areas, nor may an Owner use the surface of the easement area for any private use. Other easements for utilities and drainage facilities may be depicted on the Subdivision Plats or filed of record by separate document. With respect to these easement areas, as well as any other areas described within recorded easement documents, and the Master Common Properties, any and all bona fide public utility service companies (including but not limited to telephone, gas, cable, and electric utility companies) shall have the right of access, ingress, egress, regress and use of the surface estate for the installation and maintenance of utility facilities.
Except as to special street lighting or other aerial facilities which may be required by the City of Plano or may be required by the franchise of any utility company, no aerial utility facilities of any type (except meters, risers, service pedestals and other surface installations necessary to maintain or operate appropriate underground facilities) shall be erected or installed within the Property, whether upon Lots, easements, streets, or rights-of-way of any type, either by the utility company or any other person or entity, (including but not limited to any person owning or acquiring any part of the Property) and all utility service facilities (including but not limited to water, sewer, gas, electricity and telephone) shall be buried underground, under recreational easements, Master Common Properties, streets, or utility easement areas for the purpose of serving any structure located on any part of the Property. All utility meters, equipment, air-conditioning compressors and similar items must be located in areas designated by the Architectural Control Committee and must be visually screened from view (i.e. not visible from any angle or point of view from any residential street, any neighbors view, or any Master Common Properties). The screening of air conditioning compressors must be constructed or composed of solid masonry of the type used on the Dwelling and/or landscape shrubbery; provided, however, that any screening materials or shrubbery must be approved in writing by the Architectural Control Committee prior to the beginning of construction or planting. Any transformers located on the Property shall be screened with landscape shrubbery in front of and on all sides of the transformer. It is the recommendation of the electric utility that the shrubbery on the side of the transformer nearest to the point of access be a distance of four (4) to five (5) feet from the transformer to allow access for repair. Neither the electric utility, nor the Association shall be responsible for any damage to shrubbery caused by agents or employees of the electric utility in the course of repairing a transformer. If a transformer is located on a property line, the Owner of the abutting property shall be responsible for screening the side of the transformer adjacent to his property line.
Section 9.10. Temporary Structures and Greenhouses. No temporary structure of any kind shall be erected or placed upon any Lot. Furthermore, all greenhouses, storage sheds and other unattached buildings of all types are prohibited.
Section 9.11. Vehicles. Any truck, bus, boat, boat trailer, watercraft, trailer, mobile home, motor home, motorcycle, recreational vehicle, campmobile, camper, commercial vehicle, any vehicle with commercial writing on their exteriors, any vehicle primarily used or designed for commercial purposes, any golf cart, stored vehicle, inoperable vehicle, tractor or any vehicle bearing license plates other than those issued for conventional automobiles must, if brought within the Property, be stored, placed, or parked within the garage of the appropriate Owner so as to be completely hidden from view.
For purposes of this Section, a vehicle shall be considered "stored", and therefore must be placed within the garage, if it is put up on blocks or covered with a tarpaulin or other covering and remains on blocks or so covered for fourteen (14) consecutive days. For purposes of this Section, a vehicle shall be considered "inoperable" if it is obviously not capable of being operated as a vehicle or if it does not have current registration or operating licenses. Notwithstanding the above, service and delivery vehicles may be parked in the Property for such period of time as is reasonably necessary to provide service or to make a delivery to a Lot. Any vehicle parked in violation of this Section or parking rules promulgated by the Board may be towed at the vehicle owners expense.
Section 9.12. Garbage; Weeds.
No Lot shall be used or maintained as a dumping ground for rubbish, trash or garbage. All garbage shall be kept in City approved containers. All garbage containers shall be situated and enclosed or screened so as not to be visible from any residential street, or other landscaped easement area. If, at any time, an Owner shall fail to control weeds, grass and/or other unsightly growth, the Board of Directors shall have the authority and right to go onto said Lot for the purpose of mowing and cleaning said Lot and shall have the authority and right to assess and collect from the Owner of said Lot a sum not to exceed five hundred dollars ($500.00) for mowing or cleaning said Lot on each respective occasion of such mowing or cleaning. The assessments, together with interest (at the highest permitted lawful rate per annum) thereon and any costs of collection thereof, shall be a charge on the Lot and shall be a continuing lien upon the Lot against which such assessment is made. Each such assessment, together with interest thereon and costs of collection thereof, shall also be the continuing personal obligation of the Owner of such Lot at the time when the assessment occurred. The lien securing any such assessment shall be subordinate and inferior to the lien of any Mortgage and any renewals or extensions thereof existing prior to the assessment date.
Section 9.13. Offensive Activities; Pets. No noxious or offensive activity shall be conducted on any Lot nor shall anything be done thereon which is or may become an annoyance or nuisance within the Property or any portion thereof. The Board, in its reasonable discretion, shall determine what constitutes a noxious or offensive activity.
Nothing shall be done or maintained on any part of a Lot which emits foul or obnoxious odors outside the Lot or creates noise or other conditions which tend to disturb the peace, quiet, safety, comfort or serenity of the occupants of other Lots. There shall not be maintained any plants or animals or device or things of any sort whose activities or existence in any way is noxious, dangerous, unsightly, unpleasant or of a nature as may diminish or destroy the enjoyment of the Property.
No animals, livestock or poultry of any kind shall be raised, bred or kept on any Lot, except that dogs, cats or other common and usual household pets may be kept, provided that (a) they are not kept, bred or maintained for commercial purposes and (b) the Association shall have the right and authority to limit the number and variety of household pets permitted. Horses, ponies, goats, sheep, hogs, pigs (including, but not limited to, pot bellied pigs), monkeys, chickens, ducks, peacocks, pigeons and Guinea fowl shall not be deemed as household pets and are expressly prohibited. Animals which are permitted to roam free or, in the sole discretion of the Board, are of a known vicious or dangerous breed, make objectionable noise, endanger the health or safety of, or constitute a nuisance or inconvenience to the residents of other Lots, shall be removed at the request of the Board. If the animal owner fails to honor such request, the Board may remove the animal on behalf of the Owner.
Section 9.14. Exterior Surfaces Other Than Roofs. The exterior surface of all residential dwellings shall be constructed of glass, brick, brick veneer, stone or stone veneer, masonry, wood or other comparable materials approved by the Architectural Control Committee. Installation of all types of exterior items and surfaces such as address numbers or external ornamentation, lights, mail chutes, exterior paint or stain, shall be subject to the prior written approval of the Architectural Control Committee. Any exterior surface of an improvement on a Lot, including fences, shall be well maintained, safe, clean and properly repaired. If, any Owner has failed in any of the foregoing duties or responsibilities, then the Association may give such Owner written notice of such failure and such Owner must, within thirty (30) days after receiving such notice, perform the requisite work or make arrangements with the Association for making the repairs or maintenance required. Should any such Owner fail to fulfill this duty and responsibility within such time period, then the Association, through its authorized agent or agents, shall have the right and power to enter into such Lot and perform such care and maintenance without any liability for damages for wrongful entry, trespass or otherwise to any person. The Owner of such Lot on which such work is performed shall be liable for the costs of such work (such costs constituting a special individual assessment as specified in Section 6.01 hereof) and shall promptly reimburse the Association for such costs.
Section 9.15. Awnings. Awnings may be mounted over exterior windows and entry doors. The awnings must be tailed to the window or door size. The awnings must be made of fade resistant canvas and stretched on a rigid metal frame or retractable mechanism securely mounted to the house so that the frame will not become detached during strong winds. The canvas color and design must receive prior written approval from the Architectural Control Committee.
Section 9.16. Recreation and Play Equipment. No recreation or play equipment of any kind shall be erected, constructed or placed upon any Lot unless it has been approved in writing by the Architectural Control Committee, and meets the following specific guidelines:
(a) The height of the unit at its tallest point may not exceed 10 feet.
(b) No Flags, tassels, etc. of any kind may be attached to the top of the system.
(c) Any non-wood or metal components must be of a neutral color. Chains may not be painted or covered with any colored shielding. Colorless, transparent shielding may be used. Based upon the specific placement relative to streets, common areas and neighboring properties, the Architectural Control Committee may stipulate the specific color to be used.
(d) Wooden components may not be stained or painted. However, the wood may be sealed using a clear sealing material.
(e) Systems must be placed on the Lot to minimize visibility to the street, common areas and neighboring properties. Generally, this will require such systems to be at least 15 feet from the side and rear property lines and be placed closest to the installing property owners residence.
(f) To protect other residents, certain elements of recreational systems may not be permitted where, in the view of the Architectural Control Committee the units cannot be adequately screened.
Section 9.17. Mail Boxes. All mail boxes shall be affixed to posts made of wood or brick (of the same type as used on the Dwelling); and mail boxes and supporting posts shall be of a design approved in writing by the Architectural Control Committee.
Section 9.18. Antennas and Aerials. No television, radio or other electronic towers, aerials, antennae, satellite dishes or device of any type for the reception or transmission of radio or television broadcasts or other means of communication shall be erected, constructed, placed or installed upon a Lot or upon any improvement thereon unless located inside the attic or under the roof, except that this prohibition shall not apply to those antennae specifically covered by 47 C.F.R. Part 1, Subpart S, Section 1.4000 (or any successor provision) promulgated under the Telecommunications Act of 1996, as amended from time to time. The Association shall be empowered to adopt rules governing the types of antennae that are permissible hereunder and establishing reasonable, non-discriminatory restrictions relating to safety, location and maintenance of antennae.
To the extent that reception of an acceptable signal would not be impaired or the cost of installation would not be unreasonably increased, an antenna permissible pursuant to this provision or rules of the Association may only be installed in a side or rear yard location, not visible from the street or neighboring property, and integrated with the surrounding landscape. Antennae shall be installed in compliance with all state and local laws and regulations, including zoning, land-use and building regulations.
Section 9.19. Landscaping and Retaining Walls. Weather permitting, each Residence shall be fully landscaped within ninety (90) days from the date such Residence is occupied. The use of railroad ties for landscaping or fencing purposes shall be prohibited. Retaining walls may be employed only to achieve even grades for pools, driveways or house foundations. Such retaining walls must be uniform in height with a flat top and must be constructed of brick or masonry which is consistent with the overall appearance of the Dwelling. Each Owner shall be responsible for proper grading of his or her Lot both during and after construction to insure water does not flow from his or her property to the adjacent Lots. All water must be diverted to the streets in accordance with the requirements of the City.
Section 9.20. Tennis Courts. Tennis courts and sport courts shall not be permitted upon any Lot.
Section 9.21. Gazebos. No gazebo, pool pavilions, trellises, lanai or other similar structure shall be erected, constructed or placed upon any Lot without prior written approval by the Architectural Control Committee. All approved structures must be maintained and repaired to ensure a high level of quality, harmony and conformity throughout the Property.
Section 9.22. Pools and Pool Equipment. No pool may be erected, constructed or installed on any Lot without the prior written approval of the Architectural Control Committee. No above ground pools are permitted. All pool service equipment shall be located in either (a) a side yard between the front and rear boundaries of the dwelling; or (b) in the rear yard adjacent to the dwelling. On a case by case basis the Architectural Control Committee may allow Owners to locate pool equipment within fifteen (15) feet of the rear Lot line or landscaped greenbelt at the rear of the Lot; provided, however, all such equipment, wherever located, must be adjacent to the dwelling and screened on three (3) sides by a solid masonry wall of the same material as the dwelling (or may be screened by wood fencing, if approved by the Architectural Control Committee) and screened on the fourth side by landscaping. The wall of the dwelling shall serve as one side of the three (3) solid screening walls. One of the screening walls shall be fully landscaped with landscaping of a type, quality and quantity approved by the Architectural Control Committee. The Architectural Control Committee may, in its reasonable discretion, permit an Owner to place lattice-work screening or other decorative screening within the appropriate set back lines of that Owners Lot.
Section 9.23. Miscellaneous Restrictions. The following provisions shall apply to the specific Lots referred to herein:
(a) Owners of Lots 17 through 25 of Block L, Phase VII-R shall maintain and landscape the land located between the back line of such Lots, and the waters edge of the lake located on Lot 2 of Block L, Phase VII-R.
(b) An access area twenty (20) feet in width has been platted as part of Lot 26, Block L, and is hereby reserved as a walkway and/or jogging path to the existing fishing pier for use only by the Members of the Association and the Master Association.
(c) A drainage easement fifteen (15) feet in width has been platted between Lots 13 and 14 of Block P, Phase VII. No improvements or landscaping shall be located upon or within this easement by persons other than the Association without the prior approval of the Architectural Control Committee. This drainage easement will be maintained by the Association.
Section 9.24. Leasing of Lots. "Leasing", for purposes of this Declaration, is defined as regular, exclusive occupancy of a Lot by any Person, other than the Owner for which the Owner receives any consideration or benefit, including, but not limited to, a fee, service, gratuity or emolument. All Leases shall be in writing. Lots may be leased only in their entirety. No fraction or portion may be leased. There shall be no subleasing of Lots or assignment of leases unless prior written approval is obtained from the Board. No transient tenants may be accommodated in a Lot. All leases shall be in writing and shall be for an initial term of not less than six (6) months, except with the prior written consent of the Board. Notice of any lease, together with such additional information as may be required by the Board, shall be given to the Board by the Owner within ten (10) days of execution of the lease. The Owner must provide to the lessee copies of the Governing Documents. The Board may adopt reasonable rules regulating leasing and subleasing.
Section 9.25 Single Family Occupancy. No Lot shall be occupied by more than a single family. For purposes of this restriction, a single family shall be defined as any number of persons related by blood, adoption or marriage living with not more than two persons who are not so related as a single household unit, or no more than three (3) persons who are not so related living together as a single household unit, and the household employees of either such household unit; provided, however, that nothing herein shall be interpreted to restrict the ability of one or more adults meeting the definition of a single-family from residing with any number of persons under the age of eighteen (18) over whom such persons have legal authority.
Section 10.01. Architectural Control. Architectural Control shall be supervised by an Architectural Control Committee, hereinafter called the "Committee", selected by the Board , in the following manner unless the Board chooses to act as the Committee. In such case all references in the Documents to the Committee are construed to mean the Board:
(a) The Committee shall be composed of three (3) or more individuals the chairman being selected and appointed by the Board with the other members being selected by the Chairman and approved by the Board. The Committee shall use its best efforts to promote and ensure a high level of quality, harmony and conformity throughout the Property. In addition to its authority to approve plans and specifications subject to at least one Board member approval for the construction of improvements within the Property as set forth in this Article X, the Committee shall have the authority to enforce violations of Article IX and to delegate to the Associations Management Company the authority to administer enforcement of such violations including, without limitation, inspecting the Property for violations and notifying an Owner of the existence of a violation and any fines approved by the Board against such violating Owner in accordance with Section 13.04.
(b) A majority of the members of the Committee may act on behalf of the entire Committee. In the event of death or resignation of any member of the Committee, the remaining members shall have full authority to designate and appoint a successor. No member of the Committee shall be entitled to any compensation for services performed hereunder and neither the Board, the Committee, nor any of its members shall be liable to any Owner, for any claims, causes of action or damage of what ever kind (except where occasioned by gross negligence) arising out of service performed, actions taken, or inaction in connection with any undertaking, responsibility, or activity hereunder or request for same including, without limitation, the approval or disapproval or failure to approve or disapprove any plans or specifications.
Section 10.02. Review Standards. No building, structure, fence, wall or improvement of any kind or nature shall be erected, placed, repaired, in whole or in part, or altered on any Lot until (i) the Owner has submitted to the Association an Architectural Request Form (as defined below) containing all plans and specifications (including, but not limited to, elevation plans), a plot plan showing the requested improvement(s), and any other information required by the Committee and (ii) the Committee has notified the Owner in writing of its approval of such plans as to:
(i) Quality of workmanship and materials; adequacy of site dimensions; proper facing of main elevation with respect to nearby streets;
(ii) Conformity and harmony of the external design, color, type and appearance of exterior surfaces and landscaping;
(iii) Location with respect to topography and finished grade elevation and effect of location and use on neighboring Lots and improvements situated thereon ;
(iv) The other standards set forth within this Declaration (and any amendments hereto) or as may be set forth within bulletins promulgated by the Committee (herein referred to as "Architectural Standards Bulletins"), or matters in which the Committee has been vested with the authority to render a final interpretation and decision.
The Board may from time to time publish, promulgate and amend a submission form (herein referred to as an "Architectural Request Form") to be completed and submitted to the Committee under this Section 10.02.
Section 10.03. Architectural Standards Bulletins. The Board may from time to time publish, promulgate and amend architectural standards and bulletins (collectively, the "Architectural Standards Bulletins") which shall be fair, reasonable and uniformly applied and shall carry forward the spirit and intention of this Declaration. Such bulletins shall supplement this Declaration and are incorporated herein by reference. Any amendments to the Architectural Standards Bulletins shall be prospective only and shall not apply or require modifications to or removal of structures previously approved once the approved construction or modification has commenced. There shall be no limitation on the scope of amendments to the Architectural Standards Bulletins; the Board is expressly authorized to amend the Architectural Standards Bulletins to remove requirements previously imposed or otherwise to make the Architectural Standards Bulletins less restrictive. The Architectural Standards Bulletins may contain general provisions applicable to all of the Property, as well as specific provisions which vary from one portion of the Property to another depending upon location and unique characteristics. Although the Committee shall not have unbridled discretion with respect to taste, design and any absolute standards specified herein, the Committee shall be responsive to technological advances or general changes in architectural designs and related conditions in future years and use its best efforts to balance the equities between matters of taste and design (on the one hand) and use of private property (on the other).
Section 10.04. Submission of Plans. Final plans and specifications shall be submitted in duplicate to the Committee for approval or disapproval. At such time as the plans and specifications meet the approval of the Committee, one complete set of plans and specifications will be retained by the Committee and the other complete set of plans will be marked "Approved" and returned to the Owner or his designated representative marked "Approved", and accompanied by a statement of complete approval or approval based on certain conditions and specifications. If found not to be in compliance with this Declaration , one set of such plans and specifications shall be returned marked "Disapproved", accompanied by a reasonable statement of items found not to comply with this Declaration. Any modification or change to the approved set plans and specifications must again be submitted to the Committee for its inspection and approval. The approval or disapproval of the Committee, as required herein, shall be in writing. The Committee shall make a good faith effort to approve or disapprove such plans and specifications within 30-days after the date of submission. If the Committee, or its respective designated representative, fails to approve or disapprove such plans and specifications within thirty (30) days after the date of submission, then the applicant may give the Associations Management Company written notice of such failure to respond, by certified mail, return receipt requested, stating that, unless the Committee responds within thirty (30) days of receipt of such notice, then the Committees approval shall be presumed; provided, however, that nothing in this paragraph shall affect in any way the method for seeking or granting variances, as described in Section 10.07 , nor shall any failure of the Committee to act on a variance request within any particular period of time constitute the granting or approval of any such variance request.
Section 10.05. Appeal Process. Within ten (10) days after the Committees disapproval of final plans and specifications, the applicant may make a written request for a hearing before the Board to reconsider the application. If the applicant timely requests a hearing under this Section 10.05, the hearing shall be held in executive session of the Board, affording the applicant a reasonable opportunity to be heard. The Board shall notify the applicant in writing of its decision within ten (10) days after the hearing.
10.06. Assistance. The Committee shall with Board approval and consent of the applicant be entitled, at any time and from time to time, and after not less than ten (10) days notice to the applicant, to seek and obtain professional advice and counsel (including but not limited to architects, attorneys, designers, engineers and landscape technicians) in connection with the performance of its duties with all reasonable costs and expenses related thereto paid for or reimbursed by the Association. The Association may, in turn, reasonably recoup some or all of these expenses from the applicants seeking review and approval of plans and specifications.
Section 10.07. Variances. Upon submission of an Architectural Request Form seeking approval for a variance from this Declaration or the Architectural Standards Bulletins, the Committee shall refer the applicants request to the Board for review and approval (or disapproval). Any request for a variance must be approved by at least 75% of the directors; provided, however, that any such variance shall be in basic conformity with and shall blend effectively with the general architectural style and design of the Property as determined by the Board in its sole discretion. Written requests for variances shall be deemed to be disapproved if the Board has not expressly, and in writing, approved such request within thirty (30) days of the submission of the Architectural Request Form to the Committee. No member of the Board or the Committee shall be liable to any Owner or other person claiming by, through, or on behalf of any Owner, for any claims, causes of action, or damages arising out of the granting or denial of, or other action or failure to act upon, any variance request by any Owner or any person acting for or on behalf of any Owner. Each request for a variance submitted hereunder shall be reviewed separately and apart from other such requests and the grant of a variance to any Owner shall not constitute a waiver of the Boards right to strictly enforce this Declaration against any other Owner. Each such written request must identify and set forth in narrative detail the specific restriction or standard from which a variance is sought and describe in complete detail the exact nature of the variance sought. Any grant of a variance by the Board must be in writing and must identify in narrative detail both the standard from which a variance is being sought and the specific variance being granted. Any variance granted by the Board shall be considered a rule made under this Declaration.
Section 10.08. Enforcement. Any improvement placed or made in violation of this Article shall be deemed to be nonconforming. Upon written request from the Board, the violating Owner shall, at his or her own cost and expense, remove such improvement and restore the land to substantially the same condition as existed prior to the nonconforming work. Should an Owner fail to remove and restore as required, the Board or its designees shall have the right, but not the obligation, in addition to any other remedy provided herein for the enforcement of this Declaration, to enter the property, remove the violation and restore the property to substantially the same condition as previously existed without any liability for damages for wrongful entry, trespass or otherwise to any Person. All costs, together with the interest at the maximum rate then allowed by law, may be assessed against the benefitted Lot and collected as an individual special assessment as specified in Section 6.06 of this Declaration.
Section 11.01. Association's Right to Maintain. The Association shall be obligated to, maintain and keep in good repair the Greenbelts. This maintenance may include, without limitation, maintenance, repair and replacement, subject to any insurance then in effect, of all landscaping and improvements situated within the Greenbelts. Such maintenance, repair and replacement may include, but not be limited to, regular mowing, weeding, pruning, trimming and repairing improvements within the Greenbelts. In addition, the Association shall have the right, but not the obligation, to maintain property not owned by the Association, whether within or outside the Property including, without limitation, publicly-owned property and property dedicated to public use, where the Board has determined that such maintenance is necessary or desirable to maintain the overall appearance of the Property.
Section 11.02. Duty of Maintenance. The Owners of each Lot and their tenants shall, at their sole cost and expense, keep their respective Lots and the improvements constructed thereon in a well-maintained, safe, clean and attractive condition at all times. Such maintenance includes, but is not limited to, the following:
(a) Prompt removal of litter, trash, refuse and waste;
(b) Lawn mowing on a regular basis;
(c) Tree and shrub pruning (excluding Greenbelts);
(d) Watering landscaped areas;
(e) Keeping lawn and garden areas alive, free of weeds and attractive;
(f) Complying with all government, health and police requirements;
(g) Repair of exterior damages to improvements; and
(h) Painting and repainting of improvements as often as is reasonably necessary to ensure the attractiveness and aesthetic quality of such Lot or improvement as determined by the Committee. The approval of the Committee otherwise required herein shall not be required for such repainting so long as neither the color scheme nor the arrangement of the colors of any improvements, nor the color of paint thereon, is substantially altered.
Section 11.03. Enforcement. If, any such Owner or occupant has failed in any of the foregoing duties or responsibilities, then the Association may give such written notice of such failure and such Person must within fifteen (15) days after receiving such notice, perform the care or make arrangements with the Board for making the repairs and maintenance required. Should any such Owner fail to fulfill this duty and responsibility within such period, then the Board, through its authorized agent or agents, shall have the right and power to enter onto the premises and perform such care and maintenance without any liability for damages for wrongful entry, trespass or otherwise to any Person. The Owners and occupants of any part of the Property on which such work is performed shall jointly and severally be liable for the cost of such work (such costs constituting an individual special assessment as specified in Section 6.06 hereof) and shall promptly reimburse the Association for such cost. Each Owner and occupant agrees by the purchase or occupation of the Lot, to pay such statement within fifteen (15) days following receipt thereof. The costs incurred by the Association pursuant to the provisions of this Section 11.03 shall be secured by a lien which shall have the same attributes as the lien for assessments set forth in this Declaration, and the Association shall have identical powers and rights in all respects, including but not limited to, the right of foreclosure.
Section 12.01. Utility Easements. Easements for installation, maintenance, repair and removal of utilities and drainage facilities over, under and across the Property are reserved as set forth in Section 9.09. Full rights of ingress and egress shall be had by the Association and any bona fide utility company at all times over the easement areas for the installation, operation, maintenance, repair or removal of any utility together with the right to remove any obstruction that may be placed in such easement that would constitute interference with the use of such easement, or with the use, maintenance, operation or installation of such utility.
Section 12.02. Ingress, Egress and Maintenance by the Association. Full rights of ingress and egress shall be had by the Association at all times over and upon the Greenbelts , as applicable, for the purpose of maintaining the Greenbelts as set forth herein.
Section 12.03. Police Power Easement. With respect to the Master Common Properties and streets, easements and rights-of-way within the Properties, the City and all other governmental agencies and authorities shall have full rights of ingress, egress, regress and access for personnel and emergency vehicles for maintenance, police and fire protection, drainage and other lawful police powers designed to promote the health, safety and general welfare of the residents within the Properties.
Section 13.01. Duration. The covenants and restrictions of this Declaration shall run with and bind the land subject to this Declaration and shall inure to the benefit of and be enforceable by the Association and/or the Owners subject to this Declaration, their respective legal representatives, heirs, successors and assigns, for a term of fifty (50) years commencing on August 25, 1978, after which time said covenants and restrictions shall be automatically extended for successive periods of ten (10) years unless an instrument is signed by the Members entitled to cast seventy percent (70%) of the votes of the Association and recorded in the Land Records of Collin County, Texas; which contains and sets forth an agreement to abolish the covenants and restrictions; provided, however, no such agreement to abolish shall be effective unless made and recorded one (1) year in advance of the effective date of such abolishment.
Section 13.02. Amendments. Notwithstanding Section 13.01 of this Article, this Declaration may be amended and/or changed in part by either of the following means:
(a) Upon the vote or express written consent, or any combination thereof, of at least seventy percent (70%) of the total eligible votes of the Association.
(b) The Board, upon obtaining the vote or the express written consent of at least fifty-one percent (51%) of its members present at a duly called regular or special meeting where a quorum is present, may alter or modify this Declaration for the express purpose of correcting errors or omissions and to provide clarification or further detail without in any way abrogating the terms and conditions hereof.
Any and all amendments, if any, shall be recorded in the office of the County Clerk of Collin County, Texas. Any procedural challenge to an amendment must be made within six (6) months of its recordation or such amendment shall be presumed to have been validly adopted.
Section 13.03. Enforcement. Enforcement of this Declaration shall be by a proceeding initiated by a Person(s) owning any Lot in the Property, by the Association, when directed by the Board, or by the City of Plano against any Person(s) violating or attempting to violate any covenant or restriction contained herein, either to restrain or enjoin violation or to recover damages for the violation, or both, or to enforce any lien created by this instrument. The Association, and each of its Board members, shall have an election and right, but not an obligation or duty, to enforce this Declaration by a proceeding or proceedings at law or in equity. Failure by the Association or any party to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. Further, and with respect to any litigation brought against the Committee or the Board or any of their members or representatives arising out of any action, failure to act or performance or non-performance of duties imposed hereby by the Committee or the Board or their members or representatives, the Committee or the Board or their members or representatives so sued shall be entitled to recover their reasonable attorney's fees from the Person bringing such action against it or them, unless the Committee or the Board or their members or representatives shall specifically be adjudicated liable to such claimant.
To the extent that the provisions of this Declaration add new restrictions, which are not merely a clarification of the previous restrictions, then any condition, use or activity which existed prior to the date hereof shall not be deemed a violation of this Declaration. Notwithstanding the foregoing, at such time as an improvement which is not deemed a violation for the reasons set forth in the preceding sentence requires repair or replacement, the Owner must perform such repair or replacement work such that the improvement will be in compliance with this Declaration. Moreover, the Owner of a Lot wherein a condition, use or activity exists which would be a violation of the terms hereof but for the effect of this paragraph, upon the sale of the Lot shall advise the potential purchaser of such condition, use or activity and the Committee, prior to the transfer of title, shall determine what remedial work must be undertaken by the new Owner to cure the violation.
Section 13.04. Imposition of Violation Fines.
(a) In the event that any Owner fails to cure (or fails to commence and proceed with diligence to completion) the work necessary to cure any violation of the covenants and restrictions contained herein, or fails to request a hearing before the Board, within thirty (30) days after receipt of written notice from the Board or its duly authorized agent designating the particular violation and such other matters as required by law, the Board shall have the power and authority to impose upon that Owner a reasonable fine (the "Violation Fine") not to exceed Five Hundred and No/100 Dollars ($500.00). If, after the imposition of the Violation Fine, the violation has not been cured or the Owner has still not commenced the work necessary to cure such violation, the Board shall have the power and authority, upon ten (10) days written notice, to impose another Violation Fine which shall also not exceed Five Hundred and No/100 Dollars ($500.00). There shall be no limit to the number or the aggregate amount of Violation Fines which may be levied against an Owner for the same violation. The Violation Fines shall be an individual special assessment as described in Article VI hereof, shall be due and payable in accordance with Article VI, and together with interest at the highest lawful rate per annum and any costs of collection, including attorney's fees, shall be a continuing lien upon the Lot against which such Violation Fine is made.
(b) Upon notification of a violation of this Declaration, the Board or its duly authorized agent will issue written notice to the Owner of such violation as provided by this Section 13.04, including a copy of this Section 13.04; provided, however, that the failure to provide a copy of this Section 13.04 shall not invalidate any fine levied hereunder.
(c) Whenever an Owner, upon curing a violation of this Declaration after receiving written notice thereof as described in (b) above, receives written notice for the second time detailing a separate violation of the same provision of this Declaration within six (6) months from the date the Owner received the first written notice, such second written notice shall also contain a copy of this Section 13.04.
(d) If a subsequent and separate violation of the same covenant by the same Owner is noted, that being the third separate violation of the same covenant within six (6) months from the date the Owner received the first written notice, then the Owner will automatically be assessed a Violation Fine in an amount not to exceed Five Hundred Dollars ($500.00) as provided and authorized by this Section 13.04 without the necessity of providing the Owner with the written notice requesting corrective action described in Section 13.04(a) and (b) above.
(e) If a hearing is requested within the allotted thirty (30) day period as described in Section 13.04(a) above, the hearing shall be held before the Board in executive session. The hearing shall be held no later than the 30th day after the date the Board of Directors receives the violators request for a hearing. The Board or the Management Company shall notify the violator of the date, time and place of the hearing no later than the 10th day before the date of the hearing. The alleged violator shall be afforded a reasonable opportunity to be heard. The minutes of the meeting shall contain a written statement of the results of the hearing and the sanction, if any, imposed.
Section 13.05. Severability. If any of these covenants or restrictions is held to be invalid. Illegal or unenforceable, the validity, legality and enforceability of the remaining covenants and restrictions shall not be affected thereby.
Section 13.06. Headings. The headings contained in this Declaration are for reference purposes only and shall not in any way affect the meaning or interpretation of this Declaration.
Section 13.07. Notices to Owners. Any notice required to be given to any Owner under the provisions of this Declaration shall be deemed to have been properly delivered when deposited in the United States mails, postage prepaid, addressed to the last known address of the Person who appears as an Owner on the records of the Association at the time of such mailing.
Section 13.08. Notices to Mortgagees. Any Mortgagee may be furnished with written notification from the Association of (i) any default by the respective mortgagor/Member/Owner in the performance of such mortgagor's/Member's/Owner's obligation(s) as established by this Declaration, (ii) of any lapse, cancellation or material modification of any insurance policy or fidelity bond maintained by the Association, or (iii) any proposed action that requires the consent of a specific percentage of Mortgagees, provided that the Association has been theretofore furnished, in writing, with the correct name and address of such Mortgagee and a request to receive such notification.
Section 13.09. Disputes. Matters of dispute or disagreement between Owners with respect to interpretation or application of the provisions of the Governing Documents shall be determined by the Board of Directors, whose reasonable determination shall be final and binding upon all Owners.
Section 13.10. Disclaimer of Usury. All provisions contained in this Declaration, whether now existing or hereafter arising, are hereby limited so that in no contingency or event whatsoever, shall the interest paid or agreed to be paid by any party to any other party exceed the maximum amount permissible under applicable law. If, from any circumstance whatsoever, interest would otherwise be payable at a rate in excess of that permitted under applicable law, then the interest so payable shall be reduced to the maximum amount permitted under applicable law and if from any circumstance any party shall ever receive anything of value from any other party deemed interest by applicable law which would exceed interest at the highest lawful rate, an amount equal to any excessive interest shall be applied to the reduction of the principal amount of the debt and should such excessive interest exceed the unpaid balance of principal, such excess shall be refunded to the party paying same. All interest paid or agreed to be paid by any party or to any party shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread throughout the full period until payment in full of the principal so that the rate of interest is uniform throughout the term of such debt. This Section 13.10 shall control all provisions of this Declaration.
Section 13.11 Singular; Plural; Gender. Wherever in this Declaration the context so permits the singular shall include the plural and the plural shall include the singular and any one gender shall include the other gender.
IN WITNESS WHEREOF, the undersigned officer of the Willow Bend Lakes Homeowners Association, Inc., has caused this instrument to be executed effective as of the date first written above.
WILLOW BEND LAKES HOMEOWNERS
By: Jaci D. Crawford
Its: 1st Vice President
STATE OF TEXAS §
COUNTY OF COLLIN §
BEFORE ME, the undersigned Notary Public, on this day personally appeared Jaci D. Crawford, 1st Vice President of Willow Bend Lakes Homeowners Association, Inc., a Texas non-profit corporation, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said corporation for the purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 3rd day of January, 2003.
Rita E. Rasberry
Architectural Standards' Bulletins Jan 2004
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