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DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
FOR HILLTOP ESTATES
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
(this "Declaration") is made on this date hereinafter set forth by
Dallas-Flower Mound Associates, a California limited partnership
qualified to do business in Texas, hereinafter referred to as the
"Declarant".
W I T N E S S E T H
WHEREAS, the Declarant is the owner of certain real property in
the Town of Flower Mound, Denton County, Texas, which is described
in Exhibit "A" attached hereto and made a part hereof (the
"Property").
WHEREAS, Declarant desires to create an exclusive planned
community known as Hilltop Estates on the Property and such other
land as may be added thereto pursuant to the terms and provisions
of this Declaration;
NOW, THEREFORE, the Declarant declares that the Property shall
be held, sold and conveyed subject to the restrictions, covenants
and conditions declared below, which shall be deemed to be
convenants running with the land and imposed on and intended to
benefit and burden each Lot and other portions of the Property in
order to maintain within the Property a planned community of high
standards,. Such covenants shall be binding on all parties having
any right, title or interest therein or any part thereof, their
respective heirs, personal representatives, successors and assigns,
and shall inure to the benefit of each Owner thereof.
ARTICLE 1
DEFINITIONS
Section 1. "Property" shall mean and refer to the real
property described in Exhibit "A", and such additions thereto as
may be brought within the jurisdiction of the Association and be
made subject to this Declaration.
Section 2. "Association" shall mean and refer to Hilltop
Estates Homeowners Association, Inc., a Texas not-for-profit
corporation established for the purpose set forth herein.
Section 3. "Lot" shall mean and refer to any plot of land
indicated upon any recorded subdivision map of Property or any part
thereof creating single-family homesites, with the exception of the
Common Area and areas deeded to the governmental authority or
utility, together with all improvements thereon.
Section 4. "Unit" shall mean and refer to any residential
dwelling situated upon a lot.
Section 5. "Owner" shall mean and refer to the record owner,
whether on or more persons or entities, of a fee simple title to
any Lot, including contract seller, but excluding those having an
interest merely as security for the performance of an obligation.
Section 6. "Declarant" shall mean and refer to Dallas-Flower
Mound Associates, a California limited partnership, and its
successors and assigns who are designated as such in writing by the
Declarant, and who consent in writing to assume the duties and
obligations of the Declarant with respect to the Lots acquired by
such successor or assign.
Section 7. "Common Areas" shall mean and refer to that portion
of the Property, if any conveyed to the Association for the use
and benefit of the Owners.
Section 8. "Common Maintenance Areas" shall mean and refer to
the Common Areas, if any, and the entrance monuments, drainage
facilities, detention ponds, right-of-way landscaping, and such
other areas lying within dedicated public easements or right-of-way
as deemed appropriate by the Board of Directors of the Association
for the preservation, protection and enhancement of the property
values and the general health, safety or welfare of the Owners.
Section 9. "Declaration" shall mean and refer to this
Declaration of Covenants, Conditions and Restrictions for Hilltop
Estates, and any amendment, annexations and supplements thereto
made in accordance with its terms.
ARTICLE II
HILLTOP ESTATES HOMEOWNERS ASSOCIATION, INC.
Section 1. Membership. The Declarant and every other Owner of
a Lot shall be a member of the Association. Membership shall be
appurtenant to and shall not be separated from ownership of any
Lot. Every member shall have the right to all reasonable times
during business hours to inspect the books of the Association.
Section 2. Funding. Subject to the terms of this Article,
Declarant, for each Lot owned by Declarant, hereby covenants to
pay, and each Owner of any Lot by acceptance of a deed therefor,
whether or not it shall be so expressed in such deed, covenants and
agrees to pay to the Association: (1) annual assessments or
charges, and (2) special assessment for capital improvements, such
assessments to be established and collected as hereinafter
provided. Such assessments will remain effective for the full term
(and extended term, if applicable) of this Declaration. The annual
and special assessments, together with interest, costs, and
reasonable attorney's fees, shall be a charge on the land and shall
be a continuing lien upon the Lot against which each such
assessment is made. Each such assessment, together with the interest
costs and reasonable attorney's fees shall also be the personal
obligation of the person who was the Owner of such Lot at the time
when the assessment fell due. The personal obligation for
delinquent assessments shall not pass to the successor in title of
such Owner unless expressly assumed by them.
Section 3. Assessment.
(a) Units Owned by Class A Member. Subject to the terms
of this Article, each Lot is hereby subject to an initial maximum
maintenance charge of $10.00 per month of $120.00 per annum (until
such maintenance charge shall be increased in the Bylaws of the
Association), for the purpose of creating a fund to be designated
and known as the "maintenance fund", which maintenance charges and
assessments will be paid by the Owner or Owners of each Lot in
advance in monthly an,quarterly or annual installments,commencing as
to all lots as of the completion of the Unit thereon. The rate at
which each Lot will be assessed and whether such assessment shall
be payable monthly, quarterly, or annually, will be determined by
the Board of Directors of the Association at least thirty (30) days
in advance of each affected assessment period. Said rate may be
adjusted from time to time by the Board of Directors as the needs
of the Association may, in the judgment of the Directors, require.
The assessment for each lot shall be uniform except as provided in
Subsection (b) of this Section 3. The Association shall, upon
Written demand and for reasonable charge, furnish a certificate
signed by an officer of the Association setting forth whether or
not the assessment has been paid for the assessment period.
(b)Units or Lots by Declarant.Notwithstanding the foregoing,
the Declarant shall be exempt from the annual maintenance
assessment charges to Owner so long as there is a Class B
membership as set forth in Section 6. The Declarant hereby agrees
that for such period of time as there is a Class B membership in
effect and Declarant's Lot are exempt from assessment as provided
above, that in the event that the annual maintenance fund revenues
are insufficient to pay the operation expenses of the Association,
Declarant shall provide the funds necessary to make up the deficit,
within thirty (30)days of the receipt of request for payment thereof
from the Association, provided that if such deficit is the result
of the failure or refusal of an Owner or Owners to pay their annual
maintenance assessments, the Association shall diligently pursue
all available remedies against such defaulting Owners, including
the immediate institution of litigation to recover the unpaid
assessments and shall reimburse the Declarant the amounts, if any,
so collected.
(c) Purpose of Maintenance Fund. The Association shall
establish a maintenance fund composed of Owners' annual maintenance
assessments and shall use the proceeds of such fund in providing
for normal, recurring maintenance charges for the Common
Maintenance Areas for the use and benefit of all members of the
Association. Such uses and benefits to be provided by the
Association may include, by way of clarification and not
limitation, any and all of the following: normal, recurring
maintenance of the Common Maintenance Areas (including, but not
limited to, mowing, edging, watering, clipping, sweeping, pruning,
raking, and otherwise caring for existing landscaping) and the
improvements to such Common Maintenance Areas, such as sprinkler
systems and private streets, if any, provided the Association shall
have no obligation (except as expressly provided hereinafter) to
make capital improvement to the Common Maintenance Areas; payment
of all legal and other expenses incurred in connection with the
enforcement of all recorded covenants, restriction and conditions
affecting the property to which the maintenance fund applies;
payment of all reasonable and necessary expenses in connection with
the collection and administration of the maintenance charge and
assessment; employment of policeman and watchmen, if any caring
for vacant lots; and doing any other thing or things necessary or
desirable in the opinion of the Board of Directors of the
Association to keep the Property neat and in good order, or which
is considered of general benefit to the Owners of occupants of the
Property, it being understood that the judgment of the Board of
Directors in the expenditure of said funds and the determination of
what constitutes normal, recurring maintenance shall be final and
conclusive so long as such judgment is exercised in good faith.
The association shall, in addition , establish and maintain an
adequate reserve fund for the periodic maintenance, repair and
replacement of improvements of the Common Maintenance Area. The
fund shall be established and maintained out of regular annual
assessments
(d)Special Assessment for Working Capital Fund. Nonrecurring
Maintenance and Capital Improvements. In addition to the annual
assessments authorized above, the Association may levy special
assessments as follows:
(i) Upon sales of the first Lot by Declarant to a Class A
Member, a special assessment equal to ten (10) months
estimated regular assessment may be assessed which shall be
due and payable upon conveyance of the lot to a Class A
Member. Such special assessment shall be available for all
necessary expenditures of the Association
(ii) In any assessment year, a special assessment
applicable to that year only for the purpose of defraying
in whole or in part the cost of any nonrecurring
maintenance , or the acquisition , construction,
reconstruction, repair or replacement of a capital
improvement upon any Common Maintenance Area, including
fixtures and personal property related thereto, may be
assessed. The Association shall not commingle the proceeds
of such special assessment with the maintenance fund. Such
proceeds shall be used solely and exclusively to fund the
nonrecurring maintenance or improvements in question.
Section 4. Non - payment of Assessment: Remedies of the
Association. Any assessment not paid within ten (10) days after
the due date shall bear interest from the due date at the highest
non - usurious rate of interest allowed by Texas Law or 18% per
annum, whichever is less. The Association shall have the authority
to impose late charges to compensate for the administrative and
processing costs of late payments on such terms as it may establish
by duly adopted resolutions and the Association may bring an action
at law against the Owner personally obligated to pay the same, or
foreclose the lien retained herein against such Owner's property.
No Owner may waive or otherwise escape liability for the
Assessments provided for herein by non - use of the Common
Maintenance Area or abandonment of such Owners property
Section 5. Subordinated Lien to Secure Payment. To secure the
payment of the maintenance charge and assessment established hereby
and to be levied on individual lots as above provided, there is
hereby reserved a lien for the benefit of the Association, said
lien to be enforceable through appropriate proceedings at law or in
equity by such beneficiary; however, that each such lien
shall be specifically made secondary, subordinate and inferior to
all liens, present and future, given granted and created by or at
the insistence and request of the Owner of any such Lot to secure
the payment of monies advanced or to be advanced on account of the
purchase price and/or the improvement of any such lot; and further
provided that as a condition precedent to any proceeding to enforce
such lien upon any log upon which there is an outstanding valid and
subsisting first mortgage lien, said beneficiary shall give the
holder of such first mortgage sixty (60) days written notice of
such proposed action, such notice, which shall be sent to the
nearest office of the lien holder by prepaid U.S. registered mail,
to contain the statement of the delinquent maintenance charges upon
which the proposed action is based. Upon the request of any such
first mortgage lien holder, and beneficiary shall acknowledge in
writing its obligation to give the foregoing notice with respect to
the particular property covered by such first mortgage lien to the
particular property covered by such first mortgage lien to holder
thereof. Sale or transfer of a lot shall not affect the assessment
lien. However, the sale or transfer of any lot pursuant to
mortgage foreclosure shall extinguish the lien of such assessment
as to payments which became due prior to such a sale or transfer. No
sale, foreclosure or transfer shall relieve such lot from liability
for any assessments thereafter becoming due or from the lien
thereof. The Association shall have the right to file notices of
liens in favor of such Association in the Official Records of
Denton County, Texas
Section 6. Voting Rights. The Association shall have two
classes of voting membership:
(a) Class A. Class A members shall be all Owners with the
exception of Declarant and shall be entitled to one (1) vote for
each Lot owned. When more than on person holds an interest in any
lot, all such persons shall be members, but the vote for such lot
shall be exercised as they among themselves determine, and in no
event shall more than one (1) vote be cast with respect to any Lot
(b) Class B. The Class B member shall be the Declarant who
shall be entitled to three (3) votes for each unoccupied lot owned
by it. The Class B membership shall cease and be converted to
Class A membership one hundred twenty (120) days after the
conveyance of the Lot which causes the total votes outstanding in
the Class A membership to equal the total votes outstanding in the
Class B membership, or ten (10) years after conveyance of the first
Lot by the Declarant, whichever occurs earlier. Class B membership
shall be reinstated at any time before the expiration of twenty
(20) years from the date of conveyance of the first Lot if
additional lots owned by a Class B member are annexed to this
Declaration in sufficient numbers to restore a ratio of at least one
Class B lot for each three Class A Lots in Property
(c) Suspension. All voting rights of an Owner shall be
suspended during any period in which such Owner is delinquent in
the payment of any assessment duly established pursuant to this
Article or is otherwise in default hereunder of under the Bylaws or
Rules and Regulations of the Association and such suspension shall
apply to the proxy authority of the voting representative, if any.
Section 7. Notice and Quorum. Written notice of any meeting
called for the purpose of taking any action authorized here in shall
be sent to all members, or delivered to their residences, not less
then thirty (30) days nor more than sixty (60) days in advance or
the meeting. At any such meeting called, the presence of members
or of proxies or voting representative entitled to cast two-thirds
(2/3) of all votes of each class of membership shall constitute
a quorum. If the required quorum is not present another meeting
may be call subject to the same notice requirement, and the
required quorum at such subsequent meeting shall be two-thirds
(2/3) of the quorum requirement for such prior meeting. The
Association may call as many subsequent meeting as may be required
to achieve a quorum (the quorum requirement being reduced for each
such meeting). No such subsequent meeting shall be held more than
sixty (60) days following the preceding meeting.
ARTICLE III
GENERAL POWERS AND DUTIES OF
BOARD OF DIRECTORS OF THE ASSOCIATION
Section 1. Purpose of Maintenance Fund. The Board for the
benefit of the owners, shall provide and shall pay out of the
maintenance fund provided for in Article II above the following:
(a) Taxes and assessments and other liens and encumbrances
which shall properly be assessed or charged against the Common
Areas rather than against the individual Owners, if any.
(b) Care and preservation of the Common Maintenance Area.
(c) The services of a professional person or management firm to
manage the Association or any separate portion thereof to the
extent deemed advisable by the Board (provided that any contract
for management of the Association shall be terminable bye the
Association, with no penalty upon ninety (90) days prior written
notice to the managing party) and the services of such other
personnel as the Board shall determine to the necessary or proper
for the operation of the Association, whether such personnel are
employed directly by the Board or by the manager
(d) Legal and accounting services.
(e) 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
any amount or amounts as determined by the Board of Directors,
including a policy or policies of insurance as provided herein in
Article IV.
(f) Workers compensation insurance to the extent necessary to
comply with any applicable laws.
(g) Such fidelity bonds as may be required by the Bylaws or as
the Board may determine to be advisable.
(h) Any other materials, supplies, insurance, furniture, labor,
services, maintenance, repairs, structural alteration, taxes or
assessments (including taxes or assessments assessed against an
individual Owner) which the Board is required to obtain or pay for
pursuant to the terms of this Declaration or by laws or which in its
opinion shall be necessary or proper for the enforcement of this
Declaration.
Section 2. Powers and Duties of Board. The Board, for the
benefit of the Owners, shall have the following general powers and
duties, in addition to the specific powers and duties provided for
here in an in the Bylaws of the Association.
(a) To execute all declarations of ownership for tax assessment
purposes with regard to the common Areas, if any , on behalf of all
owners.
(b) To borrow funds to pay costs of operation secured by
assignment or pledge of right against delinquent Owners, if the
Board sees fit.
(c) To enter into contract, maintain one or more bank accounts,
and generally to have all the power necessary or incidental to the
operation of management of the association.
(d) To protect or defined the Common Areas from loss or damage
by suit or otherwise and to provide adequate reserves for
replacements.
(e) To make reasonable rules and regulation for the operation
of the Common Maintenance Area and to amend them from time to
time; provided that, any rule or regulation may be amended or
repealed by an instrument in writing signed by Owners constituting a
majority of the votes of the Association, or with respect to a
rule applicable to less than all of the common Areas, by a majority
of the votes of the Owners in the portions affected.
(f) To make available for inspection by Owners within sixty
(60) days after the end of each year an annual report and to make
all books and records of the Association available for inspection
by Owners at reasonable times and intervals.
(g) To adjust the amount, collect and use any insurance
proceeds to repair damages or replace lost property, and if proceeds
are insufficient to repair damage or replace lost property, to
assess the Owners in proportionate amounts to cover the deficiency
(h) To enforce the provisions of any rules mad hereunder and to
enjoin and seek damages from any Owner for violation of such
provisions or rules
(i) To collect all assessments and enforce all penalties for
non-payment including the filing of liens and institution of legal
proceedings.
Section 3. Board Powers Exclusive. The Board shall have the
exclusive right to contract for all goods, services and insurance,
payment of 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 4. Maintenance Contracts. The Board, on behalf of the
Association, shall have full power and authority to contract with
any Owner or other person or entity for the performance by the
Association of services which the Board is not 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 in the best interest of the
Association.
ARTICLE IV
TITLE TO COMMON AREAS
Section 1. Association to Hold The Association shall assume
all maintenance obligations with respect to any Common Areas which
may be hereafter established. Nothing contained herein shall
create an obligation on the part of Declarant o establish any
Common Area.
Section 2. Liability Insurance. From and after the date on
which title to any Common Area vests in the Association, the
Association shall purchase and carry a general comprehensive public
liability insurance policy for the benefit of the association and
its members, covering occurrences on the Common Areas. The policy
limits shall be as determined by the Board of Directors of the
Association. The Association shall use its best efforts to see
that such policy shall contain, if available, cross-liability
endorsements of other appropriate provisions for the benefit of the
members, Directors, and the management company and other insureds,
as their interests may be determined.
Section 3. Condemnation. In the event of condemnation or a
sale in lieu thereof of all or any portion of the Common Areas, the
funds payable with respect thereto shall be payable to the
Association and shall be used by the Association to purchase
additional Common Areas to replace that which has been condemned or
to take whatever steps are it deems reasonably necessary to repair
or correct any damage suffered as a result of the condemnation. In
the event that the Board of Directors of the Association determines
that the funds cannot be used in such a manner due to lack of
available land for additional common areas of for whatever reason,
any remaining funds may be utilized by the Association for the
general maintenance fund.
ARTICLE V
EASEMENTS
Section 1. Utility Easements. As long as Class B membership
shall be in effect, the Declarant hereby reserves the right to
grant perpetual, nonexclusive easements for the benefit of the
Declarant or its designees, upon, across, over, through and under
any portion of the Common Area or any portion of any Lot outside of
the permitted building area of such Lot, for ingress, egress,
installation, replacement, repair, maintenance, use and operation
of all utility and service lines and service systems, public and
private, including, without limitation, cable television.
Declarant, for itself and its designees, reserves the right to
retain title to any such easements. Upon cessation of Class B
membership, the Association shall have the right to grant the
easements described herein.
Section 2. Declarant's Easement of Correct Drainage. As long
as Class B membership shall be in effect, Declarant hereby reserves
a blanket easement on, over and under the ground within the
Property to maintain and correct drainage of surface waters and
other erosion controls in order to maintain reasonable standards of
health, safety and appearance and shall be entitled to remove trees
or vegetation, without liability for replacement or damages, as may
be necessary to provide adequate drainage for any portion of the
Property. Notwithstanding the foregoing, nothing herein shall be
interpreted to impose any duty upon Declarant to correct or
maintain any drainage facilities within the Property
Section 3. Easement for Unintentional Encroachment. The
Declarant hereby reserves an exclusive easement for the
unintentional encroachment by any structure upon the Common Area
caused by or resulting from, construction, repair, shifting
settlement or movement of any portion of the Property, which
exclusive easement shall exist at all times during the continuance
of such encroachment as an easement appurtenant to the encroaching
property to the extent of such encroachment.
Section 4. Entry Easement. In the vent that the Owner fails
to maintain the Lot as required herein, or in the event of
emergency repairs and to do the work reasonably necessary for the
proper maintenance and operation of the Property. Entry upon the
Lot as provided herein shall not be deemed a trespass, and the
Association shall not be liable for any damage so created unless
such damage is caused by the Association's willful misconduct or
gross negligence.
Section 5. Drainage Easements. Easements for the installation
and maintenance of utilities, stormwater retention/detention ponds,
and/or a conservation area are reserved as may be sworn on the
recorded plat. Within these easement areas, no structure, plant or
material shall be place or permitted to remain which may damage or
interfere with the installation and maintenance of utilities, or
which may hinder or change the direction or flow of drainage
channels or slopes in the easements. The easement area of each Lot
and all improvements contained therein shall be maintained
continuously by the Owner of the Lot, except for those improvements
for which a public authority, utility company or the Association is
responsible
Section 6. Temporary Completion Easement. All lots shall be
subject to easement of ingress and egress for the benefit of the
Declarant, its employees, subcontractors, successors and assigns,
over an upon the front, side and rear yards of the Property as may
be expedient or necessary for the construction servicing and
completion of dwellings and landscaping upon lots adjacent to the
Property, provided that such easement shall terminates twelve (12)
months after the date such Lot is conveyed to the Owner by the
Declarant.
ARTICLE VI
USE AND OCUPANCY
All Lots and dwellings shall be used and occupied for
single-family residence purposes. No Lot or dwelling may be used
for commercial, institutional or other non-residential purpose if
such use involves the attendance or entry of non-residents upon the
Lot or otherwise diminishes the residential character of the Lot or
neighborhood. This prohibition shall not apply to "garage sales"
conducted with prior written consent of the Association provided
that no Owner shall conduct more than two (2) garage sales of no
more than two (2) days duration each during any twelve (12) month
period.
ARTICLE VII
PROPERTY RIGHTS
Section 1. Owners' Easement of Enjoyment. Every Owner shall
have a right and easement in and to the Common Areas and a right
and easement of ingress and egress to, from and through said Common
Areas, and such easement shall be appurtenant to and shall pass
with the title to every Lot, subject to the following provisions.
(a) The right of the Association to establish and publish rules
and regulations governing the use of the Common Areas affecting the
welfare of the association members;
(b) The right of the Association to suspend the right of use of
the Common Areas and the voting rights of an Owner for any period
during which any assessment against his lot remains unpaid; and for
a period not to exceed sixty (60) days for any infraction of its
published rules and regulations;
(c) The right of the Association, subject to the provisions
hereof, to dedicate or transfer all or any part of the Common
Area, if any, to any public agency, authority or utility for such
purposes and subject to the conditions as may be agreed by the
Association. No such dedication or transfer shall be effective
unless an instrument signed by Owners entitled to cast two-thirds
(2/3) of the votes of each class of membership has been recorded
agreeing to such dedication or transfer;
(d) All easements herein described are easements appurtenant to
and running with the Land; they shall at all times inure to the
benefit of and be binding upon the Owners, and all of their
grantees, and their respective heirs, successors, personal
representatives and assigns, perpetually and in full force.
Section 2. Effect of Declaration. Reference in any deed,
mortgage, trust deed or any other recorded documents to the
easements, restrictions and covenants herein described or to this
Declaration shall be sufficient to create and reserve such
easements and covenants to the respective grantees, mortgagees, or
trustees of said parcels as fully and completely as if those
easements, restriction and covenants were fully related and set
forth in their entirety in said documents.
Section 3. Rezoning Prohibited. No Lot shall b e rezoned to
any classification allowing commercial, institutional or other
nonresidential use without the express consent of the Association
and Declarant (as long as Declarant owns any Lot subject to this
Declaration), which may be withheld in Declarant's sole discretion.
Declarant or the Association may enforce this covenant by obtaining
an injunction against any unapproved rezoning at the expense of the
enjoined party.
ARTICLE VIII
USE RESTRICTIONS
Section 1. Nuisances. No noxious or offensive activity shall
be carried on upon any Lot, nor shall anything be done which may be
or may become an annoyance or nuisance to the neighborhood.
Section 2. Development Activity. Notwithstanding any other
provision herein, Declarant and its successors and assigns shall be
entitled to conduct on the property all activities normally
associated with and convenient to the development of the Property
and the construction and sale of dwelling units on Property
Section 3. Temporary Structures. No structures of a temporary
character, including, without limiting the generality thereof, any
trailer, tent shack, garage, barn, motor home or mobile home or
other outbuilding, shall be used on any Lot at any time as a
residence, either temporarily or permanently.
Section 4. Signs and Picketing. No sign or emblem of any kind
may be kept or placed upon any Lot or mounted, painted or attached
to any Unit, fence or other improvement upon such Lot so as to be
visible from public view except the following:
(a) For Sale Signs. An Owner may erect one (1) sign not
exceeding 2' x 3' in area, fastened only to a stake in the ground
and extending not more than three (3) feet above the surface of the
ground advertising the Property for sale.
(b) Declarant's Sign. Signs or billboards may be erected by the
Declarant.
(c) Political Signs. Political signs may be erected upon a Lot
by the Owner of such Lot advocating the election of one or more
political candidates or the sponsorship of a political party, issued
or proposal provided that such signs shall not be erected more than
ninety (90) days in advance of the election to which they pertain
and are removed within fifteen (15) days after the election.
In addition to the foregoing, to protect the safety and harmony
of the community, no person shall engage in picketing on any Lot,
easement, right-of-way or Common Area within or adjacent to the
Property, nor shall any vehicle parked, stored or driven in or
adjacent to the Property bear or display any signs, slogans,
symbols, words or decorations intended to create controversy,
invite ridicule or disparagement or interfere in any way with the
exercise of the property rights, occupancy or permitted business
activities of any Owner or Declarant.
Section 5. Campers, Trucks, Boats and Recreational Vehicles.
No campers, vans, pickup trucks, boats, boat trailers, recreational
vehicles and other types of non-passenger vehicles, equipment,
implements or accessories may be kept on any Lot unless the same
are fully enclosed within the garage located on such Lot and/or
said vehicles and accessories are screened from view by a screening
structure or fence and said vehicles and accessories are in an
operable condition.
Section 6. Livestock and Poultry. No animals, livestock or
poultry of any kind shall be raised, bred or kept on any Lot,
except that dogs, cats, or other household pets may be kept,
provided that they are not kept, bred, or maintained for any
commercial purpose.
Section 7. Garbage and Refuse Disposal. No Lot shall be used
or maintained as a dumping ground for rubbish. Trash, garbage or
other waste shall not be kept except in sanitary containers. All
incinerators or other equipment for the storage or disposal of such
material shall be kept in a clean sanitary condition.
Section 8. Sight Distance at Intersections. No fence wall
hedge or shrub planing which obstructs sight lines at elevations
between two (2) and six (6) feet above the roadway shall be placed
or permitted to remain on any corner Lot within the triangular area
formed by the street boundary lines an a line connecting them a
points twenty-five (25) feet from the intersection of the street
boundary lines, or in the case of the rounded property corner, from
the intersection of the street boundary lines extended. The same
sight line limitations shall apply on any Lot within ten (10) feet
from the intersection of a street boundary line with the edge of a
driveway or alley pavement. No tree shall be permitted to remain
within such distances of such intersections unless the foliage line
is maintained at sufficient height to prevent an obstruction of such
sight lines.
Section 9. Parking. No vehicle, trailers, implements or
apparatus may be driven or parked in the Common Maintenance Area or
any easement.
Section 10. Commercial or Institutional Use. No Lot, and no
building erected or maintained on any Lot shall be used for
manufacturing, industrial, business, commercial, institutional or
other non-residential purposes.
Section 11. Building Standards. No building shall be erected
or maintained on any Lot unless it complies with all applicable
standards, including any governmental ordinances.
Section 12. Detached Buildings. No detached accessory
buildings, including, but not limited to detached garages and
storage buildings, shall be erected, placed or constructed upon any
Lot without prior consent of the Association.
Section 13. Fences. No fence, wall or hedge shall be erected
or maintained on any lot nearer to the street than the building
setback line for the front and side yards.
Section 14. Antennae, Satellite Dishes or Solar Collectors.
No Owner may erect or maintain a television or radio receiving or
transmitting antenna, satellite dish or similar implement or
apparatus, or solar collector panels or equipment upon any Lot
unless such apparatus is erected and maintained in such a way that
it is screen from public view at a point in the center of the
public right-of-way directly in front of the house erected on such
Lot
Section 15. Chimney. All fireplace flues, smoke stacks, and
spark arrectors shall be completely enclosed and concealed from
public view in finished chimneys of materials architecturally
compatible with the principle finish material of the exterior walls
of the dwelling.
Section 16. Clothes hanging Devices. Exterior cloths hanging
devices shall not be permitted.
Section 17. Window Treatment. No aluminum foil, reflective
film or similar treatment shall be placed on window or glass doors.
ARTICLE IX
ANNEXATION
Section 1. Annexation by Declarant. At any time during the
initial term of this Declaration, the Declarant may, at its sole
option, annex additional property to this Declaration to be subject
to the terms hereof to the same extent as if originally included
herein and subject to such other terms, covenants, conditions,
easements and restrictions as may be imposed thereon by Declarant.
(a) Declaration of Annexation. Annexation shall be evidenced
by a written Declaration of Annexation executed by Declarant
setting forth the legal description of the property being annexed
and the restrictive covenants to be applied to such annexed
property.
(b) FHA/VA Approval. Declarant shall submit a written request
for approval of any annexation under this Section to the Federal
Housing Administration ("FHA") and Veterans Administration
("VA") accompanied by a copy of the Declaration of Annexation. If
neither FHA nor VA notifies Declarant of objections to the
annexation within fifteen (15) days of the date Declarant's
request for approval, such approval shall be deemed to have been
granted.
Section 2. Annexation by Action of Members. At any time the
Board of Directors may request approval of the membership for the
annexation of additional property into the Association to be
subject to all of the terms of this Declaration to the same extent
as if originally included herein. No such annexation shall be
effective unless approved in writing by members entitled to cast
two-thirds (2/3) of a total votes in both classes of membership,
and by FHA and VA as set forth in Subsection 1(b) above. Any
property that is contiguous to existing property to this
Declaration may be annexed hereto according to the foregoing
requirements, provided however, that no such annexation shall be
effective without the consent and join?? of the owners of the
property to be annexed. Such annexation must be evidenced by a
Declaration of Annexation as set forth in Subsection 1(a) above
executed by the parties herein described.
Section 3. No Duty to Annex. Nothing herein contained shall
establish any duty or obligation on the part of the Declarant or
any member to annex any property to this Declaration and no owner
of property excluded from the Declaration shall have any right to
have such property annexed hereto.
Section 4. Effect of Annexation on Class B Membership. In
determining the number of Lots owned by Declarant for the Purpose
of Class B Membership status according to Article II, Section 6,
the total number of Lots covered by the Declaration including all
Lots annexed thereto shall be considered. If Class B Membership
Has previously expired but annexation of additional property
restores the ration of Lots owned by Declarant to the number
required for Class B Membership, such Class B Membership shall be
reinstated.
ARTICLE X
GENERAL
Section 1. Remedies. In the event of any default by any Owner
under the provisions of the Declaration, Bylaws or rules and
regulations of the Association, the Association and any Owner shall
have each and all the rights and remedies which may be provided
for in this Declaration, the Bylaws and said rules and regulations,
and those which may be available at low or in equity, and may
prosecute and action or other proceedings against such defaulting
Owner and/or others for enforcement of any lien, statutory or
otherwise, including foreclosure of such lien and the appointment
of a receiver for the Lot and ownership interest of such Owner, or
for damages or injunction, or specific performance, or for judgment
for the payment of the money and collection thereof, or for any
combination of the remedies, or for any other relief. No remedies
herein provided or available at laws or in equity shall be deemed
mutually exclusive of any other such remedy. All expenses of the
Association in connection with any such actions or proceedings,
including court costs and attorney's fees and other fees and
expenses, and all damages, permitted by law but, with reference to
any Lots financed by FHA insured loans, not in excess of the
maximum rate of FHA loans at the time of delinquency, from the due
date until paid, shall be charged to and assessed against such
defaulting Owner, and shall be added to an deemed part of
respective maintenance assessment (to the same extent as the lien
provided herein for unpaid assessments), upon the Lot and upon all
of his additions and improvement thereto, and upon all of his
personal property upon the Lot. Any and all of such rights and
remedies may be exercised at any time and from time to time,
cumulatively or otherwise, by the Association or any Owner.
Section 2. Term and Amendments. The covenants and
restrictions of this Declaration shall run with and bind the land
for a term of twenty-five (25) years from the data this Declaration
is recorded, after which time they shall be automatically extended
for successive periods of ten (10) years, unless seventy-five
percent (75%) of the votes outstanding shall have voted to
terminate the covenants and restriction of this Declaration and
prior approval has been obtained from the Town of Flower Mound upon
the expiration of the initial twenty-five (25) year period or any
extension thereof, which termination shall be by written instrument
signed by seventy-fie percent (75%) of the Owners and counter
signed by a duly authorized representative of the Town of Flower
Mound and properly recorded in the Denton County, Texas land
records. This Declaration may be amended by an instrument signed
by Owners constituting not less than seventy-five percent (75%) of
the votes of the Association, provided that as long as there is a
Class B membership, such amendment has been approved by the U.S.
Department of Housing and Urban Development (acting through the
area office having jurisdiction over the Association) and by the
prior written consent of the Town of Flower Mound. Any amendment
must be recorded.
Section 3. Severability. Invalidation of any one of these
covenants or restrictions by judgment or court order shall in no
way affect any other provisions which shall remain, in full force
and effect.
Section 4. Right and Obligations. The provision of this
Declaration and the Articles of Incorporation and Bylaws and the
rights and obligations established thereby shall be deemed to be
covenants running with the land and shall inure to the benefit of
and be binding upon, each and all of the Owners and their
respective heirs, representatives, successors, assigns, purchasers,
grantees and mortgagees. By the recording or the acceptance of a
deed conveying a Lot of any ownership interest in the Lot
whatsoever, the person to whom such Lot or interest is conveyed
shall be deemed to accept and agree to be bound by an subject to
all of the provisions of this Declaration and the Articles of
Incorporation and Bylaws, whether or not mention thereof is main in
said deed.
Section 5. Miscellaneous Provisions. Any provisions of this
Declaration or of the Articles of Incorporation and Bylaws to the
contrary notwithstanding, the following provisions shall control:
(a) FHA/VA Approval. If any prospective Owner applies for FHA
or VA mortgage financing and receives a commitment therefor, the
following actions will require approval of the Federal Housing
Administration and the Veterans Administration as applicable: (1)
addition of properties except as set forth in Article X, (2)
dedication of Common Areas, and (3) amendment of this Declaration
(b) The following actions will require notice to all
institutional holders of first mortgage liens: (1) abandonment or
termination of the Association; or (2) material amendment to the
Declaration.
(c) Upon the request of any first mortgagee of a dwelling on a
lot, the Association shall furnish to such mortgagee a written
notice of any default by the Owner of such dwelling in the
performance of such Owner's obligations under this Declaration or
the Bylaws of Association rules and regulations which is not cured
within thirty (30) days. Any first mortgagee of a dwelling who
comes into possession of such dwelling pursuant to the remedies
provided in the mortgage a foreclosure of the mortgage, or deed
(or assignment) in lieu of foreclosure, shall take such property
free of any claims for unpaid assessments or charges in favor of
the Association against the mortgaged dwelling which accrued prior
to the time such holder comes into possession of the dwelling.
(d) Unless at least seventy-five percent (75%) of the first
mortgagees (based upon one vote for each mortgage) have given their
prior written approval, neither the Association nor the Owners
shall be entitled to:
(i) by act or omission seek to abandon, partition
encumber, or transfer the Common Areas, if any, or
any portion thereof of interest therein;
(The granting of easements for public utilities or
other public purposes consistent with the intended
use of such property shall not be deemed a
transfer within the meaning of this clause)
(ii) substantially change the method of determining the
obligations, assessments, dues or other charges
which may be levied against an Owner by the
Association;
(iii) by act or omission change, waive, or abandon any
scheme of regulation or enforcement thereof
pertaining to the architectural design or the
exterior appearance of the dwelling or maintenance
of the dwelling or Lots;
(iv) fail to maintain liability and extended coverage
insurance on insurable property comprising a part
of the Common Area on a current replacement cost
basis in an amount not less than one hundred
percent (100%) of the insurable value (based on
current replacement costs).
(e) All personal pronouns used in this Declaration, whether
used in the masculine, feminine or neuter gender, shall
include all other genders; the singular shall include the
plural, and vice versa.
Section 6. 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 document.
Section 7. Conflicts. In the event of conflict between the
terms of this Declaration and the Bylaws, rules, regulations or
Articles of Incorporation of the Association, this Declaration
shall control.
Section 8. Failure of Association to Perform Duties. Should
the Association fail to carry out its duties as specified in this
Declaration, the Town of Flower Mound or its lawful agents shall
have the right and ability, after due notice to the Association, to
remove any landscape systems, features or elements that cease to be
maintained by the Association; to perform the responsibilities of
the Association if the Association fails, to do so in compliance
with any of the provisions of this Declaration or of any applicable
Town codes or regulation; to assess the Association for all costs
incurred by the Town in performing said responsibilities if the
Association fails to do so; and/or will avail itself of any other
enforcement actions available to the Town pursuant to state law or
Town codes and regulations. Should the Town exercise its rights as
specified above, the Association shall indemnify and hold harmless
the Town of Flower Mound from any and all costs, expenses, suits,
demands, liabilities or damages, including attorney's fees and costs
of suit, incurred or resulting from the Town's removal of any
landscape systems, features or elements that cease to be maintained
by the Association or from the Town's performance of the
responsibilities of the Association due to the Association's
failure to perform said duties.
IN WITNESS WHEREOF, the Declarant has caused this instrument to
be executed on its behalf, attested and its corporate seal to be
hereunto affixed as of the day and year first above written.
DECLARANT:
DALLAS-FLOWER MOUND ASSICIATES
A California limited partnership,
By:____________________________
Lewis E. Cook, Jr.,
Its General Partner
STATE OF California
COUNTY OF San Francisco
The foregoing instrument was acknowledged before me this 7th
day of October , 1992, by Lewis E. Cook, Jr., General
Partner of Dallas-Flower Mound Associates, a California limited
partnership, on behalf of said limited partnership.
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