Loading...
Riverview Est/FP-CS 970822 AU6 2_ 2. 1997 COPPELL, D~~NTY, TEXAS STATE OF TEXAS § § KNOW ALL PERSONS BY THESE PRESENTS: COUNTY OF DALLAS § THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS (the "Declaration") is made by AUSTIN CATBIRD, L.P., a Texas limited partnership (the "Declarant"). WITNESSETH: WHEREAS, Declarant is the owner of all of those certain Lots (hereinafter defined) located in RIVERVIEW ESTATES, an addition to the City of Coppell, County of Dallas, State of Texas, according to the plat thereof recorded in Volume 'q"ll"14--. , Page ~4-t.t, of the Map Records of Dallas County, Texas (herein the "Final Plat") (all of the land in said additions and the improvements now or hereafter situated thereon by or at the direction of the Declarant being hereinafter referred to as the "Properb'"); WHEREAS, Declarant desires and proposes to establish and implement plans and aesthetic considerations in order to create a residential community on the Property and, to this end, desires to subject the Property to the covenants, conditions, restrictions, and easements hereinafter set forth (sometimes collectively referred to herein as the "'Covenants, Conditions and Restrictions"); WHEREAS, Declarant desires to impose said Covenants, Conditions and Restrictions on the Property and yet retain reasonable flexibility to respond to changing or unforeseen circumstances so as to control and maintain the quality and distinction of the Property; WHEREAS, Declarant has deemed it desirable to create a homeowners' association to own and maintain the Common Properties (hereinafter defined) and to which would be delegated and assigned the powers of administering and enforcing the Covenants, Conditions and Restrictions contained herein and collecting and disbursing the assessments and charges hereinafter created; and WHEREAS, Declarant has caused or will cause such homeowners' association to be incorporated under the Texas Non-Profit Corporation Act, under the name of RIVERVIEW ADDITION HOMEOWNERS ASSOCIATION, INC. (the "Associati0rF). NOW, THEREFORE, Declarant hereby declares that the Property is and shall be held, transferred, sold, conveyed and occupied subject to the Covenants, Conditions and Restrictions, as follows: ARTICLE I DEFINITIONS Section 1.1 The following words, when used in this Declaration (unless the context shall otherwise clearly indicate or prohibit) shall have the following meanings: Page 1 of 22 (a) "Addition" shall mean and refer to RIVERVIEW ESTATES in Coppell, Dallas County, Texas according to the Final Plat, as hereinabove described. (b) "Architectural Control Committee" shall be deemed the Declarant until such time as the Declarant, its successors and assigns no longer owns any Lots in the Addition at which time the Board of Directors of the Association shall appoint three (3) Owners which shall constitute the Architectural Control Committee. (c) "Association" shall mean and refer to RIVERVIEW ADDITION HOMEOWNERS ASSOCIATION, INC. (d) "Board of Directors" shall mean and refer to the Board of Directors of the Association and is also referred to herein as the "Board." (e) "Ci _fy" shall mean and refer to the City of Coppell, Texas. (f) "Common Properties" shall mean all real property (including improvements thereon) now or hereafter owned or controlled by the Association for the common use and enjoyment of the Owners (hereinafter defined) which shall be conveyed to the Association in fee simple title and/or granted to the Association by an easement. (g) "County" shall mean and refer to Dallas County, Texas. (h) "Declarant" shall mean and refer to Austin Catbird, L.P., a Texas limited partnership and any successor and/or assign which receives an explicit assignment from Declarant conveying all or part of its rights hereunder as Declarant, by an instrument expressly purporting to do so. (i) "Lot" shall mean and refer to any one (1) of the enumerated plots or tracts of land shown upon the Final Plat, and "Lots" shall mean and refer to more than one (1) of same. (j) "Owner" shall mean and refer to each and every person or business entity (whether one or more), including Declarant (so long as applicable), that is a record owner of a fee or undivided fee interest in any Lot; provided, however, that (i) the term "Owner" and "Owners" shall not include any person or entity who holds a bona fide lien or interest in a Lot as security merely for the performance of an obligation (specifically including, but not limited to, any mortgagee or trustee under a mortgage or deed of trust) unless and until such mortgagee, beneficiary or trustee has acquired title to such Lot pursuant to foreclosure or any proceeding in lieu thereof; and (ii) with respect to any matter requiring the vote, consent, approval or other action of an Owner, each Lot shall be entitled to only one (1) vote. ARTICLE H CONSTRUCTION OF IMPROVEMENTS AND USE OF LOTS Section 2.1 Residential Use. The Property shall be used for single-family residential purposes and home office only. No building or other structure shall be erected, altered, placed or permitted to remain on any Lot other than one (1) detached single-family residence per Lot, which Page 2 of 22 residence may not exceed three (3) stories in height, and a private garage as provided below, which residence shall be constructed to minimum Federal Housing Authority ("FHA") and Veteran's Administration ("VA") standards, unless otherwise approved in writing by the Committee (as hereinafter defined). Section 2.2 Single-Family Use. Each residence may be occupied by only one (1) family consisting of persons related by blood, adoption or marriage or no more than two (2) unrelated persons living and cooking together as a single housekeeping unit, together with any household employees. Section 2.3 Garage Required. Each residence shall have a garage suitable for parking two (2) standard size automobiles, which garage conforms in design and materials with the main structure. Section 2.4 Driveways. All driveways shall be surfaced with concrete or similar substance approved by the Association. Section 2.5 Uses Specifically Prohibited. (a) No temporary dwelling, shop, trailer or mobile home of any kind or any improvement of a temporary character (except children's playhouses, dog houses, greenhouses, gazebos and buildings for storage of lawn maintenance equipment, which may be placed on a Lot only in places which are not visible from any street on which the Lot fronts) shall be permitted on any Lot except that the builder or contractor may have temporary improvements (such as a sales office and/or construction trailer) on a given Lot during construction of the residence on that Lot or on a different Lot as agreed to between the builder or contractor and the Declarant. No building material of any kind or character shall be placed or stored upon the Property until the Owner thereof is ready to commence construction of improvements, and then such material shall be placed within the property lines of the Lot upon which the improvements are to be erected. (b) No boat, marine craft, aircraft, recreational vehicle, unattached pick- up camper, travel trailer, motor home, camper body or similar vehicle or equipment may be parked for storage in the driveway or front yard of any Lot or parked on any public street on the Property, nor shall any such vehicle or equipment be parked or stored in the side or rear yard of any residence unless completely concealed from public view. No such vehicle or equipment shall be used as a residence or office temporarily or permanently. This restriction shall not apply to any vehicle, machinery or equipment temporarily parked and in use for the construction, maintenance or repair of a residence in the immediate vicinity. (c) Trucks with tonnage in excess of one (1) ton and any vehicle with painted advertisement shall not be permitted to park overnight on the Property except those used by a builder during the construction of improvements. (d) No vehicle of any size which transports inflammatory or explosive cargo may be kept on the Property at any time. (e) No vehicles or similar equipment shall be parked or stored in an area visible from any street except passenger automobiles, passenger vans, motorcycles, sport utility vehicles, pick-up trucks and pick-up trucks with attached bed campers. All vehicles and equipment shall be in good operating condition and have current Page 3 of 22 license plates, inspection stickers and registrations and are in daily use as motor vehicles on the streets and highways of the State of Texas. (f) No animals or livestock shall be raised or bred on the Property except that dogs, cats or other household pets may be kept for the purpose of providing companionship for the private family. Animals are not to be raised, bred or kept for commercial purposes or for food. It is the purpose of these provisions to restrict the use of the Property so that no person shall quarter on the premises cows, horses, hogs, guinea fowls, ducks, chickens, turkeys, skunks or any other animals that may interfere with the quietude, health or safety of the community. Notwithstanding anything to the contrary contained herein, no more than four (4) household pets will be permitted on each Lot. Pets must be restrained or confined by their Owner to the back yard of the applicable Lot, inside a fenced area or within the residence erected thereon provided any such pets may be walked only if such pet is restrained by a leash. It is the Owner's responsibility to keep the front of their Lot clean and free of pet debris. All animals must be properly tagged for identification. (g) No Lot or other area on the Property shall be used as a dumping ground for rubbish or a site for the accumulation of unsightly materials of any kind, including, without limitation, broken or rusty equipment, disassembled or inoperative cars, other vehicles or discarded appliances and furniture. Trash, garbage or other waste shall not be kept except in sanitary containers. All incinerators or other equipment for the storage or other disposal of such material shall be kept in clean and sanitary condition. Materials incident to construction of improvements may be stored on Lots during construction so long as construction progresses without undue delay. (h) No air-conditioning apparatus shall be installed on the ground in front of a residence. No air-conditioning apparatus shall be attached to any front wall or window of a residence. No evaporative cooler shall be installed on the front wall or window of a residence. (i) All antennas shall be located inside the attic of the main residential structure except that: (a) one (1) antenna may be permitted to be attached to the roof of the main residential structure and to extend above said roof a maximum of five feet (5') so long as such antenna is attached to the portion of the roof opposite that facing the front street on which the Lot faces; (b) one (1) satellite dish in excess of twenty-five inches (25") in diameter, or other instrument or structure may be placed in the backyard of each Lot so long as it is completely screened from view from any street, park or other public area (other than from an alley); or (c) one (1) satellite dish which is twenty-five inches (25") or less in diameter may be mounted on the residence or in a tree provided it is mounted in the most inconspicuous location when viewed from the front of the residence. In the event a dispute arises with regard to the determination of the "most inconspicuous location" of any such mounted satellite dish, a majority of the Board Page 4 of 22 of Directors shall determine the most inconspicuous location and such determination shall be final. (j) No Lot or improvement thereon shall be used for commercial or manufacturing purposes of any kind other than a home office. No noxious or offensive activity shall be undertaken on the Property, nor shall anything be done which is or may become an annoyance or nuisance to the neighborhood. Nothing in this subparagraph shall prohibit a builder's use of a residence as a sales office until such builder's last residence on the Property is sold. Nothing in this subparagraph shall prohibit an Owner's use of a residence for quiet, inoffensive activities such as a home office, tutoring or giving lessons so long as such activities do not materially increase the number of cars parked on the street or interfere with the other Owners' reasonable use and enjoyment of their Lots and residences. (k) No fence, wall, hedge or shrub planting which obstructs sight lines at elevations between three feet (3') and six feet (6') above the roadway shall be placed or permitted to remain on any comer Lot within the triangular area formed by the street right-of-way lines and a line connecting them at points ten feet (10') from the intersection of the street right-of-way lines, or, in the case of a rounded property comer, from the intersection of the street right-of-way lines as extended. The same sight-line limitations shall apply On any Lot within ten (10) feet from the intersection of a street right-of-way line with the edge of a private driveway or alley pavement. No tree shall be permitted to remain within such distance of such intersections unless the foliage line is maintained at sufficient height to prevent obstruction of such sight lines. (1) Except for children's playhouses, dog houses, greenhouses, gazebos and buildings for storage of lawn maintenance equipment, no building previously constructed elsewhere shall be moved onto any Lot, it being the intention that only new construction be placed and erected thereon. (m) No sign of any kind shall be displayed to the public view on any Lot, except one (1) professional security service sign of not more than one square foot, one (1) sign of not more than five square feet advertising the property for rent or sale, political signs during election periods only as permitted by the City, or signs used by a builder to advertise the Property during the construction and sales period, each of which shall, in any event, comply with all statues, laws or ordinances governing same. The Board of Directors or its agents shall have the right to remove any sign, billboard or other advertising structure that does not comply with the above, and in so doing shall not be subject to any liability for trespass or otherwise in connection with such removal. (n) The drying of clothes in full public view is prohibited. The Owners and occupants of any Lots at the intersections of streets or adjacent to parks, playgrounds or other facilities where the rear yard is visible to full public view shall construct a fence or other suitable enclosure to screen from public view the equipment and other items which are incident to normal residences, such as clothes drying equipment, yard equipment, wood piles, storage piles and the like. (o) No Owner shall perform, fail to perform or permit anything to be done or not done on his Lot which would violate any laws, statutes, ordinances or regulations of any kind or character. Page 5 of 22 Section 2.6 Minimum Floor Area. The total air-conditioned living area of the main residential structure constructed on each Lot, as measured to the outside of exterior walls but exclusive of open porches, garages, patios and detached accessory buildings, shall be not less than one thousand six hundred square feet (1,600 square feet) or the minimum habitable floor area as specified by the City, whichever is the greater. Section 2.7 Building Materials. Except to the extent a higher percentage is required by the City, the total exterior wall area (as used herein the term "total exterior wall area" shall exclude windows, doors and gables) of the front of each building (all stories) and of the first story of the sides of each building constructed or placed on a Lot shall be not less than one hundred percent (100%) brick (as used herein the term"brick" shall include brick, brick veneer, stone, stone veneer and masonry) and except to the extent a higher percentage is required by the City, the total exterior wall area of each building constructed or placed on a Lot shall be not less than seventy percent (70%) brick in its entirety. Roofing shall be of a substance acceptable to the City and shall have a minimum six foot (6') to twelve foot (12') roof pitch on the major portions of the building. Section 2.8 Fences and Walls. Any fence or wall must be constructed of masonry, brick, wood or other material approved by the Association. No chain link fences are permitted. All wood fences must be either sealed or stained with a clear coat or in an earth-tone shade (including brown tones, rust tones, taupe tones, and gray tones only) immediately after its construction. No fence or wall shall be permitted to extend nearer to any street than five feet (5') from the front of any residence. However, all side yard fencing on comer Lots shall run parallel to the curb and may be placed up to the side Lot line and shall not extend beyond a point of five feet (5') behind the front of the residence on that side. Fences or walls erected by Declarant shall become the property of the Owner of the Lot on which the same are erected and as such shall be maintained and repaired by such Owner except as is provided in Article IV and Article IX. Any fence or portion thereof that faces a public street shall be so construed so that all structural members and posts will be on the side of the fence away from the street so that they are not visible from any public right-of-way. No portion of any fence shall extend more than eight feet and one-half (8-1/2') in height. Section 2.9 Mailboxes and Address Blocks. Mailboxes shall be standardized and shall be constructed of masonry (brick, brick veneer, stone or stone veneer) and shall be of a design approved by the Association. If gangboxes are required by the U.S. Postal Service, the construction of same shall, to the extent allowed by the U.S. Postal Service, be of brick or stone masonry. Section 2.10 Windows and Skylights. Windows, jambs and mullions shall be composed of anodized aluminum or wood. Street-front elevations shall have baked-on painted aluminum divided light windows (i.e., no mill finish) or of a higher quality if approved by the Board of Directors. Flashing around the windows shall be painted to match the paint on the trimming on each residence. Section 2.11 Landscaping. Each builder of a residence upon each Lot shall, upon or before the first occupancy of a house, sod grass in the front and sideyards, plant a minimum of twelve (12) two (2) gallon shrubs in the front yard against the foundation of the house, and shall plant in the front yard, a minimum of two (2) hardwood trees, choosing from the variety of Maple, Pecan, Oak (of any variety except Live Oak), Sweet Gum, Elm or Sycamore, and such trees shall have a caliper of at least three and one-half inches (3-1/2") each. ARTICLE HI ARCHITECTURAL CONTROL Section 3.1 Appointment. Architectural control of the Lots shall be the responsibility of Page 6 of 22 the Architectural Control Committee. Section 3.2 Authority. No building, wall or other structure (except wood fences) shall be commenced, erected, placed, or substantially altered on any Lot, nor shall any exterior painting (other than repainting a structure the same or similar color) of, exterior addition to, or substantial alteration of, such items be made until all plans and specifications and a plot plan have been submitted to and approved in writing by the Architectural Control Committee: (a) quality of workmanship and materials, adequacy of site dimensions, adequacy of structural design, proper facing of main elevation with respect to nearby streets; (b) conformity and harmony of the external design, color, type and appearance of exterior surfaces and landscaping in relation to the various parts of the proposed improvements and in relation to improvements on the Property; and (c) the other standards set forth within this Declaration (and any amendments hereto) or matters in which the Architectural Control Committee has been vested with the authority to render a f'mal interpretation and decision. The Architectural Control Committee is authorized and empowered to consider and review any and all aspects of construction and landscaping which may, in the reasonable opinion of the Architectural Control Committee, adversely affect the living enjoyment of one (1) or more Owners or the general value of the Property. In considering the harmony of external design between existing structures and the proposed building being erected, placed or altered, the Architectural Control Committee shall consider only the general appearance of the proposed building as that can be determined from front, rear and side elevations on submitted plans. Section 3.3 Procedure for Approval. Final plans and specifications shall be submitted in duplicate by certified mail, return receipt requested or hand delivery to the Architectural Control Committee. The plans and specifications shall show the nature, kind, shape, height, materials and location of all landscaping and improvements. The documents shall specify any requested variances from the requirements set forth in this Declaration. The Architectural Control Committee is authorized to request the submission of samples of proposed construction materials and such other information as they reasonably deem necessary to make their determination. At such time as the plans and specifications meet the approval of the Architectural Control Committee, one complete set of plans and specifications will be retained by the Architectural Control Committee, for up to three (3) years only, and the other complete set of plans shall be marked "Approved," signed by a representative of the Architectural Control Committee and returned to the Lot Owner or his designated representative. If disapproved by the Architectural Control Committee, one set of such plans shall be returned marked "Disapproved" and shall be accompanied by a reasonable statement of the reasons for disapproval, which statement shall be signed by a representative of the Architectural Control Committee. Any modification of the approved set of plans and specifications must again be submitted to the Architectural Control Committee for its approval. The Architectural Control Committee's approval or disapproval, as required herein, shall be in writing. In no event shall the Architectural Control Committee give verbal approval of any plans. If the Architectural Control Committee fails to approve or disapprove any such plans and specifications or modification thereto within fifteen (15) days after the date of submission, written approval of the matters submitted shall not be required and compliance with this Section 3.3 shall be deemed to have been completed. In case of a dispute about whether the Architectural Control Committee responded within such time period, the person submitting the plans shall have the burden of establishing that the Architectural Control Committee received the plans. The Architectural Control Committee's receipt of the plans may be established by a signed certified mail receipt. Any builder Page 7 of 22 who is constructing residences on multiple Lots shall have the option of submitting a master set of final plans and specifications for all of the residences it intends to construct within the Property to the Architectural Control Committee in accordance with the provisions of this paragraph. Once the master set of plans have been approved, the builder shall be allowed to construct residences in accordance with such approved plans and no further submittals shall be required unless material deviations have been made to such approved plans. Section 3.4 Standards. The Architectural Control Committee shall have sole discretion with respect to taste, design and all standards specified herein. One objective of the Architectural Control Committee is to prevent unusual, radical, curious, odd, bizarre, peculiar or irregular structures from being built on the Property. The Architectural Control Committee shall also have the authority to require that the colors of roofing materials be earth tones and generally to require that any plans meet the standards of the existing improvements on the Property. The Architectural Control Committee may from time to time publish and promulgate bulletins regarding architectural standards, which shall be fair, reasonable and uniformly applied and shall carry forward the spirit and intent/on of this Declaration. Section 3.5 Liability of Architectural Control Committee. The Architectural Control Committee, and its officers, directors, employees and agents, shall have no liability whatsoever for decisions made by the Architectural Control Committee so long as such decisions are made in good faith and are not arbitrary or capricious. Any errors in or omissions from the plans or the site plan submitted to the Architectural Control Committee shall be the responsibility of the Owner of the Lot to which the improvements relate, and the Architectural Control Committee shall have no obligation to check for errors in or omissions from any such plans, or to check for such plans' compliance with the general provisions of this Declaration, or any codes, ordinances, regulations or other laws, whether statutory or not, and whether the same relate to Lot lines, building lines, easements or any other issue. The Association hereby unconditionally and perpetually indemnifies and holds the Architectural Control Committee, its employees, contractors, agents and other individuals or entities related to or employed by the Architectural Control Committee harmless from and against any claims, liabilities, loss, damage, costs and expenses, including but not limited to attorney's fees, in connection with or arising out of any actions or inactions taken hereunder by the Architectural Control Committee, irrespective of whether or not the Architectural Control Committee, its employees, contractors, agents and other individuals or entities related to or employed by the Architectural Control Committee acted in negligence or with willful misconduct. Section 3.6 Special Rights of Declarant. Notwithstanding anything to the contrary contained herein, any Lot owned by Declarant or its successor or assign, shall not be subject to the provisions of this Article III and Declarant shall not be required to submit plans and specifications, etc. to the Architectural Control Committee nor obtain the consent, permission or approval of the Architectural Conn-ol Committee for the matters otherwise required pursuant to this Article III, and the consent, permission or approval of the Architectural Control Committee shall be deemed given for plans and specifications, plot plans and the like to be used by Declarant, or Declarant's assigns, in the construction of any residence on any Lot owned or sold to a homebuilder by Declarant. DECLARANT ALSO RETAINS SPECIAL AND UNIQUE RIGHTS AND PRIVILEGES IN ARTICLE XII THAT TAKE PRECEDENCE OVER ALL OTHER ARTICLES OR SECTIONS IN THIS DECLARATION. ARTICLE IV SPECIAL FENCING AND LANDSCAPING Section 4.1 Fences, Walls and Screening Landscaping. Declarant and/or the Association shall have the right, but not the obligation, to erect, install, maintain, repair and/or replace fences, walls and/or screening landscaping within (a) that portion of any Lot situated along the perimeter of Page 8 of 22 the Addition, as shown on the Final Plat, or (b) on any portion of the Property not comprising any portion of a Lot or dedicated street or alley. Any fence, wall or sprinkler system shall be the property of the Owner of the Lot on which such fence, wall or sprinkler system is erected or installed, subject to the easements and fights of Declarant and the Association set forth below. Section 4.2 Landscaping. Declarant and/or the Association shall have the fight to grade, plant and/or landscape and maintain, repair, replace and/or change such grading, planting and landscaping on any portion of the Property not comprising any portion of a Lot or a dedicated street or alley or on any portion of a Lot over which an easement has been reserved for the benefit of the Association. Section 4.3 Easement. Declarant and the Association shall have, and hereby reserve, the right and easement to enter upon any portion of the Property for the purpose of exercising the discretionary rights set forth in this Article IV, except that as to any Lot constituting the Property, Declarant and the Association shall only have the fight to enter the portion of any Lot situated along the perimeter of the Addition, as shown on the Final Plat. Section 4.4 Declarant's and the Association's Discretion. Notwithstanding any provisions herein to the contrary, neither Declarant nor the Association shall ever be obligated to erect, install, maintain, repair or replace any fences, wails, sprinkler systems, grading, planting or landscaping on the Property. Section 4.5 Fifteen (15) Year Limitation. The provisions of this Article IV regarding Declarant's rights shall terminate and be of no further force and effect from and after that date which is fifteen (15) years after the recording of this Declaration. The rights of the Association shall continue throughout the term hereof. ARTICLE V LOT MAINTENANCE BY OWNERS Section 5.1 Lot Maintenance. After the installation of the landscaping as provided for in Section 2.11 above, each Owner and occupant of each Lot shall thereafter maintain the yards in a sanitary and attractive manner including adequate watering and immediate replacement of dead vegetation and shall edge the street curbs that run along the boundary lines of the Property. Grass, weeds and vegetation on each Lot must be kept mowed and trimmed at regular intervals so as to maintain the Lot in a neat and attractive manner. No vegetables shall be grown in any portion of a Lot yard that faces a street or is not screened by fencing built in accordance with the terms hereof. No Owner shall permit weeds or grass to grow to a height of greater than six inches (6") upon his property. Section 5.2 Maintenance of Improvements. Subject to the provisions of Article IV, Article V and Article IX, each Owner shall maintain the exterior of ali buildings, fences, walls and other improvements on his Lot in good condition and repair, and shall replace worn and rotten parts, and shall regularly repaint all painted surfaces and shall not permit the roofs, rain gutters, downspouts, exterior walls, windows, doors, walks, driveways, parking areas or other exterior portions of the improvements to deteriorate in an unattractive manner. All fences shall be kept neat, clean and in good repair. Any fence which is damaged, leaning, missing slats or otherwise not in good repair shall be immediately repaired. Page 9 of 22 ARTICLE VI ENFORCEMENT Section 6.1 Special Enforcement Rights of the Board of the Association. In the event that an Owner fails to comply with any provision of this Declaration, including but not limited to any provision in Article V then, prior to the Board or the Association enforcing the compliance of such failure or seeking against such Owner remedies in accordance with this Declaration (or such other remedies as may be available to the Board and/or the Association at law or in equity), the Board shall first be obligated to give such Owner notice of such failure and fourteen (14) days after the date of such notice in which to cure such violation or failure. If the Owner shall not have corrected such failure within fourteen (14) days after the giving of such notice, the Board of Directors shall have the right but not the obligation, to bring the Lot, and any improvements thereon, into full compliance with this Declaration. Ali costs and expenses incurred by the Association in connection with correcting any such failure shall be borne by the Owner. If any Owner does not promptly reimburse the Association for all such costs and expenses, the Board of Directors of the Association shall have the right to assess the Owner for same, such assessment being a special individual assessment under the provisions of Section 10.5 below. Section 6.2 Enforcement. Except as provided in Article XII and subsection 11.1.11 below, only the Board of Directors (and not any individual Lot Owner or third party) shall have the right to have each and all of the Covenants, Conditions and Restrictions and other provisions herein faithfully carried out and performed with reference to each and every Lot, together with the right to bring any suit or undertake any legal process that may be proper to enforce the performance thereof. Failure by the Declarant, or the Board of Directors, to enforce any covenant, condition, agreement or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. ARTICLE VII AMENDMENT AND TERMINATION Section 7.1 Amendment. Except as provided in Article XII below, at any time, the Owners may amend the Covenants, Conditions and Restrictions and/or any provision(s) set forth herein by executing an instrument containing such amendment(s) and recording same in the appropriate Property Records of the County, provided, however, that (i) for the period which the Declarant owns at least one Lot, no such amendment shall be valid or effective without the joinder and consent of Declarant and (ii) except as provided in Article XII below, the procedure for such amendment shall first be approved by a majority vote of the Association's Members taken in accordance with Sections 8.2 and 8.3 below. Section 7.2 Termination. Except as provided in Article XII below, at any time, the Owners may terminate and extinguish these Covenants, Conditions and Restrictions in their entirety by executing an instrument terminating such Covenants, Conditions and Restrictions and recording same in the appropriate Property Records of the County, provided, however, that (i) for the period in which the Declarant owns at least one Lot, no such termination shall be valid or effective without the joinder and consent of Declarant and (ii) except as provided in Article XII below, the procedure for such amendment shall first be approved by at least 60% of the votes of the Association's Members taken in accordance with Sections 8.2 and 8.3 below. Page 10 of 22 ARTICLE VIII MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION Section 8. ! Membership. Ever3' Owner of a Lot shall automatically be a Member of the Association. Membership shall be appurtenant to each Lot and may not be separated from ownership of any Lot which is subject to assessment hereunder. Section 8.2 Classes of Membership. The Association shall have two (2) classes of voting membership: CLASS A. Class A Members shall be all Members with the exception of Declarant. Class A Members shall be entitled to one (1) vote for each Lot in which they hold the interest required for membership; provided, however, that in the event that more than one (1) person holds such interest or interests in any Lot, even though all such persons shall be Members, there shall be only one (1) vote for such Lot, which 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). CLASS B. The Class B Member(s) shall be the Declarant. Until such time as the Declarant has sold all of the Lots in the Property, the Class B Member shall have the sole right to elect the Board of Directors of the Association. Control of the Association shall only be vested in the Owners after completion of transfer to Class A Members of title to all of the Lots in the Property. The Declarant shall have four (4) votes for each Lot it owns. Section 8.3 Quorum and Notice Requirements. 8.3.1. Except as expressly provided herein to the contrary, any action of the Members shall require the assent of a majority of the votes of the Association's Members who are voting in person or by proxy at a meeting duly called for that purpose, written notice of which shall be given to all Members not less than ten (10) days nor more than fifty (50) days in advance and shall set forth the purpose of such meeting. 8.3.2. The quorum required for any action referred to in Section 8.3.1 shall be determined as set forth in this Section 8.3.2. The first time a meeting is called, whether regular or special, the presence at the meeting of Members, or of proxies, entitled to cast at least sixty percent (60%) of all of the votes of the Association's Members, without regards to class, shall constitute a quorum. If the required quorum is not present at the meeting, additional meetings may be called, subject to the notice requirement hereinabove set forth, and the required quorum at such second meeting shall be one-half (1/2) of the required quorum at the preceding meeting; provided, however, that no such second meeting shall be held more than sixty (60) days following the first meeting, or the process must then be repeated. 8.3.3. Except as specifically set forth in this Declaration, notice, voting and quorum requirements of all action to be taken by the Association shall be set forth in its Articles of Incorporation (herein so called) and Bylaws (herein so called), as same may be amended from time to time. Section 8.4. Right of Inspection. Each Owner shall have the right to inspect the financial records and books of the Association, during normal business hours and at the place where such Page 11 of 22 books are kept, and upon reasonable prior notice to the Association. ARTICLE IX THE COMMON PROPERTIES Section 9.1 Initial Common Properties. The Common Properties shall consist of easement rights reserved by the Declarant and conveyed to the Association over the Property, which shall include the Entry Ways, the median located within Riverview Drive, screening wails, including any structures, gates, fences, fountains and the like constructed thereon, such initial Common Properties being more particularly described on Exhibit "A" attached hereto and made a part hereof for all purposes. It shall be the responsibility of the Association to maintain same. In the event the Association refuses or fails to maintain the Common Properties as required hereunder, the City shall have the right to maintain same and shall assess the Association reasonsable costs for the maintance of same only after the City has first provided to the Board and to the Association written notice of such failure and twenty (20) days after the date of such notice in which to cure such failure. Section 9.2 Additional Common Properties. Additional property may be added to the CommOn Properties hereunder only upon the approval of the affirmative vote of sixty percent (60%) of the votes of the Association's Members who are voting in person or by proxy at a meeting duly called for such purpose. Section 9.3 Easement Rights to the Common Properties. The Declarant shall dedicate and convey the easement rights to the Common Properties to the Association prior to the date of the conveyance of the first Lot to an Owner. Section 9.4 Extent of Members' Easement. The rights and easements of enjoyment created hereby shall be subject to the following: 9.4.1 The right of the Association to prescribe regulations governing the use, operation and maintenance of the Common Properties; 9.4.2 Subject to the affirmative vote of sixty percent (60%) of the votes of the Association's Members who are voting in person or by proxy at a meeting duly called for such purpose, to borrow money for the purpose of improving the Common Properties and facilities and in aid thereof to mortgage the Common Properties, and the rights of such mortgagee in the Common Properties shall be subordinate to the rights of the Owners hereunder; 9.4.3 The right of the Association to take such steps as are reasonably necessary to protect the Common Properties against foreclosure; 9.4.4 The right of the Association, as provided in its Bylaws, to suspend the voting rights of any Member and to suspend the right of any individual to use any of the Common Properties and/or common facilities for any period during which any assessment against a Lot resided upon by such individual remains unpaid, and for any period not to exceed sixty (60) days for an infraction of its rules and regulations; 9.4.5 The right of the Association to charge reasonable admission and other fees for the use of recreational facilities on the Common Properties, if any such recreational facilities are ever constructed; and Page 12 of 22 9.4.6 Subject to the affirmative vote of sixty percent (60%) of the votes of the Association's Members, who are voting in person or by proxy at a meeting duly called for such purpose, the right of the Association to acquire additional Common Properties as the Members of the Association may determine. Section 9.5 Dedication of the Common Properties. The Board of Directors of the Association (herein referred to sometimes as the "Board" or "Board of Directors") shall have the right at any time to dedicate or transfer all or any part of the Common Properties to any public agency, authority or utility for such purposes and upon such conditions as the Board of Directors may solely determine. ARTICLE X COVENANT FOR MAINTENANCE ASSESSMENTS Section 10.1 Creation of the Lien and Personal Obligation of Assessments. Each Owner hereby covenants and agrees, and each purchaser 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 to pay to the Association (or to a mortgage company or other collection agency designated by the Association): the following (a) annual assessments or charges; (b) special assessments for capital improvements, such assessments to be fixed, established and collected from time to time as hereinafter provided; and (c) individual special assessments levied against individual Owners to reimburse the Association for extra costs for maintenance and repairs caused by the willful or negligent acts of the individual Owner, his tenant(s) occupying his Lot, if applicable, and their respective family, agents, guests and invitees, or for costs incurred by the Association resulting It-om any Owner tailing to comply with the terms and provisions hereof, such assessments to be fixed, established and collected from time to time as hereinafter provided. The regular annual assessments to be collected by the Association shall constitute the maintenance fund of the Association. The annual, special capital, and special individual assessments, together with such interest thereon 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. Each such assessment, together with such interest thereon and cost of collection thereof as hereinafter provided, shall also be the continuing personal obligation of the person who was the Owner of such property at the time when the assessment fell due. The annual assessment shall be payable in one annual installment as provided in this Article X. Section 10.2 Purpose of Assessments. The assessments levied by the Association shall be used as follows: (a) for the purpose of promoting the recreation, health, safety and welfare of the residents of the Property, and in particular for the improvement and maintenance of the Entry Ways or any other properties, services and facilities devoted to this purpose and comprising or directly relating to the use and enjoyment of the Common Properties, including, but not limited, to the payment of taxes on and insurance in connection with the Common Properties, and the repair, replacement and additions thereto; (b) for paying the cost of labor, equipment (including the expense of leasing any equipment) and materials required for, and management and supervision of, the Common Properties; (c) for carrying out the duties of the Board of Directors of the Association as set forth in Article XI hereafter including, but not limited to, the payment by the Association of all assessments and charges payable in connection with sewer, water and garbage pickup services and the installation and maintenance of lighting (if any) of the Common Properties; (d) for paying the cost of maintenance of the monument sign for the Property in the event the appropriate governmental authority refuses to maintain the same; and (e) for carrying out the purposes of the Association as stated in its Articles of Incorporation. Section 10.3 Basis and Amount of Annual Assessments. Page 13 of 22 10.3.1 The Board of Directors may fix the annual assessment at any amount equal to or less than the maximum annual assessment for that year, as hereinbelow provided. The maximum annual assessment for each Lot for the year 1997 shall be $180. The maximum annual assessment for each Lot for the year 1998 shall be $180. Commencing with the year beginning January 1, 1999, and each year thereafter, the Board of Directors may set the amount of the maximum annual assessment for the following year for each Lot, provided that the maximum annual assessment may not be increased more than ten percent (10%) above the maximum annual assessment for the previous year without a vote of the membership taken in accordance with the provisions of Section 10.3.2. For the years 1997 and beyond, the maximum annual assessment for each unimproved Lot shall be $30.00. Once construction has commenced upon a Lot, the standard annual assessment shall go into effect, prorated from the date of such commencement of construction. 10.3.2 Commencing with the year beginning January 1, 1999, and in each year thereafter, the Board of Directors may set the maximum annual assessment for the following year for each Lot at an amount more than ten percent (10%) above the maximum annual assessment for the previous year; PROVIDED THAT any such increased assessment shall be approved by the affirmative vote of sixty percent (60%) of the votes of the Association's Members who are voting in person or by proxy at a meeting duly called for such purpose. Section 10.4 Special Assessments. In addition to the annual assessments authorized by Section 10.3 hereof, the Association may levy in any assessment year a special assessment, applicable to that year only, for the purpose of defraying, in whole or in part, the costs of any construction or reconstruction, maintenance, unexpected repair or replacement of a described capital improvement upon the Common Properties, including the necessary fixtures and personal property related thereto: PROVIDED THAT any such assessment shall be approved by the affirmative vote of sixty percent (60%) of the votes of the Association's Members who are voting in person or by proxy at a meeting dui3, called for such purpose. Section 10.5 Special Individual Assessments. In the event that any Owner fails to comply with the provisions hereof and the Association incurs any cost or expense in either enforcing the provisions hereof against any such Owner or in carrying out the obligations of any such Owner, the Association shall have the right to assess against such Owner a special individual assessment in the amount of all such costs incurred by the Association, such special individual assessment to be paid by the apphcable Owner upon demand by the Association. Section 10.6 Uniform Rate of Assessments. Both annual and special assessments (excephng therefrom special individual assessments) must be fixed at a uniform rate for all Lots. Section 10.7 Date of Commencement and Due Dates of Assessments. The annual assessments provided for herein shall commence as to all Lots upon conveyance of the Common Properties to the Association and shall be payable in advance, on the first (lst) business day of each January. The due date or dates, if it is to be paid in installments, of any special assessment under Section 10.4 or of any special individual assessment under Section 10.5, shall be fixed in the respective resolution authorizing such assessment. Section 10.8 Duties of the Board of Directors with Respect to Assessments. 10.8.1 The Board of Directors of the Association shall fix the amount of the assessment against each Lot at least thirty (30) days in advance of each annual assessment period and shall, at that time, prepare a roster of the Lots and Page 14 of 22 assessments applicable thereto, which shall be kept in the office of the Association and shall be open to inspection by any Owner. 10.8.2 Only ff such assessment is an amount different from that c. harged for the previous year, written notice of the assessment shall thereupon be delivered or mailed to every Owner subject thereto. 10.8.3 The Board of Directors shall, upon demand, at any time furnish to any Owner liable for said assessments a certificate in writing signed by an officer o.r 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 certificates. Section 10.9 Deed of Trust Assessment Lien to Secure Charges and Assessments. All regular and special maintenance charges or assessments, and the special individual assessments, as hereinabove provided for, shall constitute and be secured by a separate and valid and subsisting deed of trust assessment lien, hereby created and fixed, and which shall exist upon and against each Lot and all improvements and fixtures thereon, for the benefit of the Association, and all members thereof. Notwithstanding any other provision hereof, the lien to secure the payment of assessments or any other sums due hereunder and any other lien which the Association may have on any Lot pursuant to this Declaration shall be subordinated to the lien or equivalent security interest of any first lien mortgage or deed of trust on any Lot. Any foreclosure of any such superior lien under the power of sale of any mortgage, deed of trust or other security instrument, or through court proceedings in which the Association has been made a party, shall extinguish the liens securing maintenance charges or assessments or any other sums due hereunder which became due and payable prior to such foreclosure date, but no such foreclosure shall free any Lot from the liens securing assessments thereafter becoming due and payable, nor shall the liability of any Member personally obligated to pay maintenance charges or assessments which become due prior to such foreclosure be extinguished by any foreclosure, nor shall the lien for future assessments or charges be affected in any manner. Section 10.10 Effect of Nonpayment of Assessment. If any regular or special charge or assessment or special individual assessment is not paid within thirty (30) days from the due date thereof, the same shall bear interest from the due date until paid at the highest nonusurious rate allowed under the laws of the State of Texas, or other applicable law, or if no such limitation imposed then at the rate of fifteen percent (15%) per annum, and if placed in the hands of an attorney for collection or if collected through probate or other judicial proceedings, there shall be reimbursed to the Association reasonable attorneys' fees. The Association, in its sole discretion, shall have the right to waive any part of or all of such interest and/or fees. Section 10.11 Collection and Enforcement. The Association shall have a lien on each Lot against the Owner of said Lot, securing payment of any regular or special charge or assessment, together with interest thereon as provided herein and reasonable attorneys' fees and costs incurred in the collection of same and the enforcement of said lien. The Board of Directors shall take such action as it deems necessary to collect assessments and may settle and compromise the same ff it is in the best interest of the Association. Such liens shall be effective as and in the manner provided for herein and shall have the priorities established in the covenants, conditions and restrictions contained herein. The Board of Directors may bring an action at law against any Owner personally obligated to pay an assessment or foreclose the lien against such Owner's Lot, or both, and interest, costs and reasonable attorney's fees of any such action shall be added to the amount of such assessment. Each Owner, by his acceptance of a deed to a Lot, hereby expressly vests in the Board of Directors of the Association or its agent the fight and power to bring all actions against Page 15 of 22 such Owner personally for the collection of such assessments as a debt and to enforce the aforesaid lien by all methods available for the enforcement of such liens, including, but not limited to, nonjudicial foreclosure pursuant to Texas Property Code Section 51.002 in force and effect on the date of this Declaration, or in accordance with the prescribed manner for foreclosure of deed of trust liens provided by any future amendment to such Section 51.002 or any other statute or article enacted in substitution therefor, and such Owner hereby expressly grants to the Board of Directors a power of sale in connection with said lien. The Association is hereby appointed trustee, unless and until the Board of Directors shall designate a substitute or successor trustee, as hereinafter provided, to post the required notices as provided by law and conduct such foreclosure sale. The lien provided for in this Section shall be in favor of the Association and shall be for the common benefit of all Owners and shall have the same effect as though each Owner had expressly granted to the Association for the benefit of the Owners a deed of trust lien as well as a security interest in said Lot to secure the payment of the assessments provided for herein. In addition to such notices as required by the aforesaid statute, the trustee shall marl to the Owner or Owners and mortgagee of a Lot for which the assessment has not been paid, a copy of the notice of trustee sale at or before the time of posting same by U.S. Postal Service, postage prepaid, certified, return receipt requested, at the Lot or such other address as the Board has been advised in writing for receipt of notices under this Declaration. At any foreclosure, judicial or nonjudicial, the Association shall be entitled to bid up to the amount of its lien, together with costs and attorneys' fees, and to apply as a cash credit against its bid all sums due the Association covered by the lien foreclosed. From and after any such foreclosure, the former Owner or Owners, their heirs and assigns, shall forthwith upon the making of such sale surrender and deliver possession of the property so sold to the purchaser at such sale, and in the event of their failure to surrender possession of said property upon demand, the purchaser, or his heirs or assigns, shall be entitled to institute and maintain an action for forcible detainer of said property in the Justice of the Peace Court in the Justice Precinct in which such Lot, or any part thereof, is situated. The Board of Directors in any event is hereby authorized to appoint a substitute trustee, or a successor trustee, to act in the place of the trustee who posted the original notices without any formality other than the designation in writing of a substitute or successor trustee; and the authority hereby conferred by the Board of Directors shall extend to the appointment of other successor and substitute trustees successively until the delinquent assessment or assessments have been paid in full, or until said property is sold, and each substitute and successor trustee shall succeed to all the rights and powers of the original trustee appointed by the Board of Directors or its agents. Section 10.12 Omission of Assessments. The omission of the Board of Directors, before the expiration of any year, to f'ux the assessments hereunder for that or the next year, shall not be deemed a waiver or modification in any respect of the provisions of this Declaration, or a release of any Owner from the obligation to pay the assessments, or any installment thereof for that or any subsequent year, but the assessment filed for the preceding year shall continue until a new assessment is filed. Section 10.13 Maintenance Fund; Working Capital Fund. 10.13.1 The Association may establish and maintain a maintenance fund for the periodic maintenance of the Common Properties. Subject to the provisions of Section 10.3 above, the Board may at any time ratably increase or decrease the mounts of regular annual assessments in accordance with this Declaration to such level as shall be reasonably necessary in the judgment of the Board to cover obligations of the Association under this Declaration, including provisions of reasonable reserves. 10.13.2 The Association may establish a working capital fund for the init/al operation of the Common Properties in such amount as the Board shall determine. Page 16 of 22 Section 10.14 Exempt Property. The following property subject to this Declaration shall be exempted from the assessments, charges and liens created herein: 10.14.1 All properties dedicated and accepted by the local public auth'ority and devoted to public use; and 10.14.2 All Common Properties. Section 10.15 Loans bv Declarant. The Declarant may (but is not required to) loan up to $ I0,000.00 to the Association on such terms as Declarant and the Association may agree. ARTICLE XI GENERAL POWERS OF THE BOARD OF DIRECTORS OF THE ASSOCIATION Section 11.1 Power and Duties. Except as provided in Article XII below, the Board, for the benefit of the Property and the Owners, shall have the right to do all things which are necessary or advisable in connection with enforcing the provisions of this Declaration. Such powers shall include, but shall not be limited to, the following: 11.1.1 Paying assessments and charges for sewer, water and garbage pickup services for the Properties, installation and maintenance charges for street lighting for the Property, and taxes, assessments and other charges which shall properly be assessed or charged against the Common Properties. 11.1.2 Performing maintenance on the Common Properties which may include, without limitation, the following: (a) maintenance of any driveways, private roadways, jogging paths, walkways and sidewalks; (b) maintenance of grounds, including care of trees, shrubs and grass, lighting systems, sprinkler systems (if installed) and similar facilities on the Common Properties; and (c) maintenance of the entry monument(s) and any screening walls or fences constructed around the perimeter of the Property; PROVIDED, FURTHER, that in the event that the need for maintenance or repair is caused through the willful or negligent act of any Owner, his family, his guests or invitees, the cost of such maintenance or repairs shall be added to and become a part of the assessment to which such Lot is subject. 11.1.3 Managing and maintaining the Common Properties and full maintenance of a utility service for the Common Properties; the furnishing and upkeep of any desired personal property for use in the Common Properties. I 1.1.4 Purchasing a policy or policies of insurance insuring the Association against any liability to the public or to the Owners (and/or invitees or tenants) incident to the operation of the Association, in an amount not less than $100,000.00 to indemnify against the claim of one person, $200,000.00 against the claims of two or more persons in any one occurrence, and property damage insurance in an amount not less than $30,000.00 per occurrence; which policy or policies shall contain an endorsement providing that the rights of the named insured shall not be prejudiced with respect to actions against other named insureds; provided, that under no circumstances shall the Board be authorized to provide or pay for fire, casualty, or other insurance insuring the interest of any Owner in his Lot. Page 17 of 22 1 1.1.5 Executing all replats of the Property and to execute all declarations of ownership for tax assessment purposes with regard to the Common Properties on behalf of all Owners. 1 1.1.6 Borrowing funds to pay costs of operation, secured by assignment or pledge of rights against delinquent Owners, if the Board sees fit. 1 1.1.7 Entering 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, expressly including the power to enter into management and maintenance contracts. 11.1.8 Protecting or defending the Common Properties from loss or damage by suit or otherwise, and to provide adequate reserves for replacements. 11.1.9 Making reasonable rules and regulations for the operation of the Common Properties and amend them from time to time, provided that any rule or regulation may be amended or repealed by an instrument in writing signed by the vote of sixty percent (60%) of the Members, or, with respect to a rule applicable to less than all of the Property, by the vote of sixty percent (60%) of the Members in the portions affected (without limiting the generality of the foregoing language, the rules and regulations may provide for limitations on use of the Common Properties during certain periods by youthful persons, visitors or otherwise). 11.1.10 Adjusting the amount, collecting and using any insurance proceeds to repair damage or replace lost property, and if proceeds are insufficient to repair damage or replace lost property, assessing the Members in proportionate amounts to cover the deficiency. 11.1.11 Enforcing the provisions of this Declaration and any rules made hereunder and to enjoining and seeking damages from any Owner for violation of such provisions or rules. 11.1.12 Exercising the rights granted to the Association in this Declaration. Section 11.2 Board Power, Exclusive. The Board shall have the exclusive right to contract for all goods, services and insurance, payment for which is to be made from the maintenance fund, and the exclusive right and obligation to perform the functions of the Board, except as otherwise provided herein. Section 11.3 Owner's Obligations to Repair. Except for those portions of each Lot constituting the Common Properties, each Owner shall at his sole cost and expense, maintain and repair his Lot and the improvements situated thereon, keeping the same in good condition and repair. In the event that any Owner shall fail to maintain and repair his Lot and such improvements as required hereunder, the Association, in addition to all other remedies available to it hereunder or by law, and without waiving any of said alternative remedies, shall have the right, subject to the notice and cure provisions of Section 6.1 above, through its agents and employees, to enter upon said Lot and to repair, maintain and restore the Lot and the exterior of the buildings and any other improvements erected thereon: and each Owner (by acceptance of a deed for his Lot) hereby covenants and agrees to repay to the Association the cost thereof immediately upon demand, and the failure of any such Owner to pay the same shall carry with it the same consequences as the failure to pay any assessments hereunder when due. Section 11.4 Maintenance Contracts with Owners. The Board, on behalf of the Page 18 of 22 Association, shall have full power and authority to contract with any Owner for the performance by or for the Association of services pursuant to the terms hereof (including, but not limited to, the maintenance and repair of fences owned by any such Owner), 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; provided, however, that same must be commercially reasonable in all circumstances. Section 11.5 Liability of the Board of Directors. The Board of Directors, and its officers, directors, employees and agents, shall have no liability whatsoever for decisions made by the Board of Directors so long as such decisions are made in good faith and are not arbitrary or capricious. Any errors in or omissions from the plans or the site plan submitted to the Board of Directors shall be the responsibility of the Owner of the Lot to which the improvements relate, and the Board of Directors shall have no obligation to check for errors in or omissions from any such plans, or to check for such plans' compliance with the general provisions of this Declaration, or any codes, ordinances, regulations or other laws, whether statutory or not, and whether the same relate to Lot lines, building lines, easements or any other issue. The Association hereby unconditionally and perpetually indemnifies and holds the Board of Directors, its employees, contractors, agents and other individuals or entities related to or employed by the Board of Directors harmless from and against any claims, liabilities, loss, damage, costs and expenses, including but not limited to attorney's fees, in connection with or arising out of any actions or inactions taken hereunder by the Board of Directors, irrespective of whether or not the Board of Directors, its employees, contractors, agents and other individuals or entities related to or employed by the Board of Directors acted in negligence or with willful misconduct. ARTICLE XII AUTHORITY AND CONTROL BY DECLARANT Notwithstanding anything herein to the contrary, so long as Declarant, its successors or assigns, owns at least one (1) Lot, Declarant shall have the sole right, but not the obligation, in its sole discretion, at any time, effective as of the date hereof, to control, perform an~or conduct the following: (1) appoint (including itself) and/or substitute at any time the Board of Directors; (2) terminate the Board of Directors; (3) amend the Covenants, Conditions and Restrictions and any other provisions under this Declaration, in whole or in part; (4) enforce the Covenants, Conditions and Restrictions and other provisions provided for under this Declaration; (5) review, determine and enforce the architectural control of the Lots; and (6) assigns its rights and obligations under this Declaration to any entity at any time, in whole or in part. Declarant's rights set forth above are absolute in its sole discretion and do not require the approval, consent, or joinder of (i) any Owner, (ii) the Association, (iii) the Board of Directors, or (iv) any committees or other parties which may be established with respect hereto. At such time as the Declarant no longer owns a Lot within the Property, all of such rights of enforcement shall Page 19 of 22 revert to the Board of Directors of the Association. In the event any provision herein is in contradiction to this Article XI/, in whole or in part, this Article XII shall prevail. ARTICLE XIII OBLIGATIONS OF BOARD OF DIRECTORS Section 13.1 Obligations of Board of Directors. Notwithstanding anything herein to the contrary, and so long as the Declarant is acting on behalf of the Board of Directors as further described in Section 13.2 below, the sole responsibility and obligation of the Board of Directors shall be to maintain the corporation books of the Association and maintain the Association in good corporate standing with Secretary of State of the State of Texas and in good standing with the Office of the Comptroller of Public Accounts of the State of Texas. Section 13.2 Limitation of Obligations of Board of Directors. Except as specifically provided for in Section 13.1 above, notwithstanding anything herein to the contrary, all acts, duties, responsibilities and obligations of the Board of Directors set forth herein shall be the act, duty, responsibility~and obligation of Declarant herein, in its sole discretion, for so long as the Declarant, its successors or assigns, owns at least one (1) Lot in the Addition. Thereafter, the Association shall elect the Board of Directors to assume all of such acts, duties, responsibilities and obligations provided for herein of the Board of Directors which Board of Directors shall be elected in accordance with the Bylaws (herein so called) of the Association, as same may be amended from time to time. ARTICLE XIV GENERAL PROVISIONS Section 14.1 Mortgages. It is expressly provided that the breach of any of the conditions contained herein shall not defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for value, as to the same premises or any part thereof encumbered by such mortgage or deed of trust, but said conditions shall be binding thereto as to Lots acquired by foreclosure, trustee's sale or otherwise, as to any breach occurring after such acquisition of title. Section 14.2 Term. The foregoing Covenants, Conditions and Restrictions shall run with and bind the land and shall remain in full force and effect for a term of twenty (20) years from the date this Declaration is recorded in the appropriate Real Property Records of the County and shall automatically be extended for three (3) successive ten (10) year periods, unless amended as provided herein. Section 14.3 Severability. If any provision herein contained shall be invalid, which invalidity shall not be presumed until the same is determined by the final (i.e., non-appealable) judgment or order of a court of competent jurisdiction, such invalidity shall in no way affect any other provision hereof, each of which shall remain in full force and effect. Section 14.4 Binding Effect. Each of the Covenants, Conditions and Restrictions and other provisions herein contained is made for the mutual benefit of, and is binding upon, each and every person acquiring any part of the Property, it being understood that such Covenants, Conditions and Restrictions and other provisions are not for the benefit of the owner of any land except that which is a part of the Property. This Declaration, when executed, shall be filed of record in the appropriate Real Property Records of the County, so that each and every Owner or purchaser of any portion of the Property is on notice of the Covenants, Conditions and Restrictions Page 20 of 22 and other provisions herein contained. Section 14.5 Addresses. Any notices or correspondence to an Owner shall be addressed to the street address of the Lot or to such other address as is specified by any such Owner in writing to the Association. Any notices or correspondence to the Association shall be addressed to the address shown opposite the signature of Declarant below or to such other address as is specified by the Association in writing to the Owners. Section 14.6 Transfer Under Deed of Trust. Upon any transfer of the Declarant's interest in and to the Property, or any part thereof, under the terms of any deed of trust lien upon the Property, whether voluntary or involuntary, by foreclosure, deed in lieu of foreclosure or otherwise, all rights, title and interests of Declarant under this Declaration, shall be transferred to and devolve upon the party to whom the Property or any part thereof, is thereby conveyed. Section 14.7 NOTICE OF TRANSFER. IF AT ANY TIME A LOT IS SOLD, THE NEW OWNER SHALL PROMPTLY NOTIFY THE ASSOCIATION OF THE NAME AND ADDRESS OF THE NEW OWNER. Section 14.8 No Liability for Trespass. Whenever the Association, the Board of Directors or the Declarant exercises any right hereunder and in connection therewith enters upon any Lot, such parties shall not be liable for trespass upon such Lot. Section 14.9 Lien Priority.. Notwithstanding any other provision of the Declaration, the lien to secure the payment of assessments and any other lien which the Association may have on any Lot pursuant to the Declaration for (a) assessments or other charges becoming payable on or after the date of recordation of the first mortgage or deed of trust on any Lot, or (b) any fees, late charges, fines or interest that may be levied by the Association in connection with unpaid assessments, shall be subordinated to the lien or equivalent security interest of any first lien mortgage or deed of trust on any Lot. Any foreclosure of any such superior lien under the power of sale of any mortgage, deed of trust or other security instrument, or through court proceedings in which the Association has been made a party, shall extinguish the liens securing maintenance charges or assessments which became due and pa.vahle prior to such foreclosure date, but no such foreclosure shall free any Lot from the liens secunng assessments thereafter becoming due and payable, nor shall the liability of any Owner personally obligated to pay maintenance charges or assessments which become due prior to such foreclosure be extinguished by any foreclosure, nor shall the lien for future assessments or changes be affected in any manner. Any such maintenance charges or assessments which are extinguished pursuant to the foregoing provision shall be reallocated and assessed to all Lots as a common expense. EXECUTED this ~ffday of August, 1997. ADDRESS 8222 Douglas Avenue, Suite 660 Dallas, Texas 75225 DECLARANT: AUSTIN CATBIRD, L.P., a Texas limited partnership By: Bellaire Oaks, Inc., a Texas corporation, its general partner By: Donald B. Huffi~es,~gi~d~Fff[ -w~ Page 21 of 22 STATE OF TEXAS § COUNTY OF DALLAS § This instrument was acknowledged before me on this ~ 6' Vt. day of August, 1997, by Donald B. Huffines, President of Bellaire Oaks, Inc., General Partner of Austin Catbird, L.P., a Texas limited parmership, for the purposes and consideration therein expressed and in the capacities therein stated, on behalf of such partnership. Not~-ry Public in and for the(gta~of Texas AFTER RECORDING, PLEASE RETURN TO: Austin Catbird, L.P. 8222 Douglas Avenue, Suite 660 Dallas, Texas 75225 Page 22 of 22 ARTICLE XIV GENERAL PROVISION~ ~,allig. ll_l.4.,j~ Should the association or its Board fail or refuse to maintain such Common Areas to City specifications for an unreasonable time, not to exceed ninety days after written request to do so, the City of Coppell, by and through a majority of its City Council members, shall have the same right, power and authority as is herein given to the Association and its Board of Directors to enforce these covenants and levy assessments necessary to maintain the Common Areas of City Interest listed in section 4.06. It is understood that in such event, the City of Coppell, Texas, through its City Council, may elect to exercise the rights and powers of the Association or its Board of Directors, to the extent necessary to take any action r~quired and levy any assessment that the Association might have, either in the name of the Association, or otherwise, to cover the cost of maintenance of said Common Areas of City Interest. Page 23 of 23 K~hibit "A" ~ H,OA. 'TO 'MAINTAIN ~ H.O.A.. TO t,f;:,L^ND T~ ~ LI~ OF SAID ~Y L~ ~E ~ ~ ~$ T~N~ ~TH ~D, ~, 15 MIN. ~ ~G. ~T, A DtDTA~E ~ 1DD,~ TH~ ~jTH ~E POINT ~ ~iNNt~ A~ ~NTAINt~ 1~1.~2~ ~A~ FEET HOfvfE~OkIN=~S ASSOC_.,IATION C,O~MON AFE_A ASSOCIATION C_.,OMf'dON A~E~A ARTICLE GENERAL PROVISIONS ~ Should the association or its Board fail or refuse to maintain such Common Areas to City specifications for an unreasonable time, not to exceed ninety days after written request to do so, the City of Copp¢ll, by and through a majority of its City Council members, shall have the same fight, power and authority as is herein given to the Association and its Board of Directors to enforce thc, sc covenants and levy assessments necrssary to maintain thc Common Areas of City Interest listed in section 4.06. It is understood that in such event, thc City of Coppcll, Texas, through its City Council, may elect to exercise thc rights and powers of the Association or its Board of Directors, to the extent necessary to take any action re~luired and levy any assessment that the Association might have, either in the name of the Association, or otherwise, to cover the cost of maintenance of said Common Areas of City Int~r~t. Page 23 of 23