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HomeMy WebLinkAboutORD 76-34ORDINANCE NO ' L ENTITLED AN ORDINANCE FOR THE ISSUANCE OF A SPECIFIC USE PERMIT FOR CLUSTER HOUSING DEVELOPMENT FOR A 30.629 ACRE TRACT HEREIN DESCRIBED IN ACCORDANCE WITH A PLAN FOR DEVELOPMENT;.PROVIDING FOR THE FILING OF A DECLARATION COVERING A 22.787 ACRE TRACT; PROVIDING FOR THE FILING OF A SUBSEQUENT DECLARATION COVERING THE REMAINDER OF SAID 30.629 ACRE TRACT. WHEREAS,.on January. 19, 1976, the Planning and Zoning Commis- sion of The City of Beaumont recommended the issuance of a specific use permit for cluster housing development to New Land Development Company, a joint venture, and its successors and assigns, for that certain 30.629 acre tract of land hereinafter described; and, WHEREAS, the City Council is of the opinion that the issuance of such specific use permit is in the best interest of The City of Beaumont, and its citizenry, subject to the hereinafter described con- ditions; NOW, THEREFORE, BE IT ORDAINED BY THE CITY OF BEAUMONT: Section 1. THAT a specific use permit for cluster housing development in accordance with Section 42-20.1 and Section 42-20.4, as amended, be granted to New Land Development Company, a joint venture, and to its successors and assigns, for that certain 30.629 .acre tract of land, more particularly described as follows: BEING .a 30.629 acre tract of land out of the Hezekiah Williams League Abstract No. 56 in Beaumont, Jefferson County, Texas, being also a portion of that certain 202.932 acre tract of land that was conveyed by J. B. and H. A. Hooks to the Yount -Lee Oil Company on the 5th of May, 1933, said deed being recorded in Vol- ume 365, Page 406 of the Deed Records of Jef- ferson County, Texas and said 30.629 acre tract of land being more particularly de- scribed by metes and bounds as follows: FOR locative corner begin at an iron stake in the North right-of-way line of Delaware Street and in the West line of the Calder Highlands Addition; THENCE North 3 degrees 02 minutes 51 seconds West with the West line of Calder Highlands Addition 420 feet to an iron stake loca- ting the Southeast and the beginning cor- ner of the tract of land herein described; THENCE North 3 degrees 02 minutes 51 se- conds West with the West line of Calder Highlands Addition 1408.60 feet to an iron stake for corner; THENCE South 86 degrees 26 minutes 14 se- conds West with the South line of a 75 foot width drainage right-of-way 950 .feet to an iron stake for corner; THENCE South 3 degrees 02 minutes 23 se- conds East 1400.06 feet to an iron stake for corner; THENCE North 86 degrees 57 minutes 09 se- conds East 950.15 feet to the place of be- ginning containing 30.629 acres of land. Section 2. THAT this specific use -permit herein granted is expressly S Y4 issued for and in accordance with that certain plan for development for the park on Thomas Road, Section 1, Beaumont, Texas, dated De- cember 17, 1976, which plan of development is attached hereto as "Exhibit A" and made a part hereof for all purposes. Also attached hereto as "Exhibit B" is that certain "Declaration of Covenants, Conditions and Restrictions, .The Park on Thomas Road, Section 1, Beaumont, Texas", which "Exhibit B" is made a part of this specific use"; permit as fully and completely as though copied verbatim herein. Said "Exhibit B" is a Declaration of Covenants, Conditions, and Restric- tions affecting a certain 22.787 acre portion of the tract of land de- scribed in Section 1 hereinabove, said portion so.included in "Exhibit B" being more particularly described as follows: BEING a 22.787 acre tract of land out of the J. B. and H. A. Hooks 202 acre tract of land in the H. Williams League in Beau- mont, Jefferson County, Texas, and being a part of that certain 27.75 acre tract of land conveyed by Amoco Production Company to New Land Development Company and being a part of that certain 12.442 acre tract of land conveyed by Jack S. Josie to New Land Development Company and said 22.787 acre tract of land being more particularly described by metes and.bounds as follows: -2- FOR locative point begin at an iron stake in the West line of Lucas Drive and the North line of Delaware Street; THENCE South 89 degrees 02 minutes 34 se- conds West with the North line of Delaware Street 163.33 feet to a concrete monument in the West line of Calder Highlands Addi- tion, a plat of which is recorded in Vol. 4 Page 155 of the Map Records of Jefferson County, Texas; said concrete monument also locating the Southeast corner of said 12.442 acre tract of land,and the Southeast and the beginning corner of the tract of land herein described; THENCE North 0 degrees 47 minutes West with the West line of Calder Highlands Addition 1026.0 feet to an iron stake locating the Northeast corner; THENCE South 89 degrees 13 minutes West 950 feet to an iron stake for corner in the West line of the'said 27.75 acre tract of land conveyed by Amoco Production Company to the New Land Development Company; THENCE South O'degrees 47 minutes East with the said West line 1051.63 feet to an iron stake for corner in the North line of Dela- ware Street; said iron stake also locating the Southwest corner of said 27.75 acre tract of land conveyed by Amoco to New Land Develop- ment Company; THENCE in an Easterly direction with the North line of Delaware Street the following courses and distances: North 89 degrees 07 minutes 31 seconds East 423.69 feet; North 89 degrees 10 minutes 41 seconds East 160.21 feet; North 83 degrees 32 minutes.04 seconds East 247.27 feet; - North 89 degrees 02 minutes 34 seconds East 120.21 feet to THE PLACE OF BEGINNING contain- ing 22..787 acres of land. As a condition to the issuance of this permit, the declarant of'!Exhibit B" hereof shall file in the appropriate records of the County Clerk of Jefferson County, Texas, a copy of said "Exhibit B" prior to the issuance of a Certificate of Occupancy by The City of Beaumont for any residential unit within the 22.787 acre tract of land hereinabove described in "Exhibit B". =19 Section 3. THAT this specific use permit is expressly issued subject to the condition that no building certificate for a residential unit not included within the boundaries of the 22.787 acre tract of land described in Section 2 hereof, but included within the boundaries of the 30.629 acre tract of land described in Section 1 of this ordi- nance, shall be issued until a Declaration.of Covenants, Conditions and Restrictions substantially in compliance with "Exhibit B" hereof, and, in any event, in full compliance with Sections 42-20.1 and 42-20.4 of the Code of Ordinances of The City of Beaumont, has been reviewed and approved by the City Attorney of Beaumont. Further, no Certificate of Occupancy for,any residence within the area not included in "Exhibit B" hereof shall be issued until declarant shall have filed in the appro- priate records of the County Clerk of Jefferson County, Texas, said ap- proved declaration. This permit is expressly issued subject to compliance.with ,all appropriate revisions of the Code of Ordinances.of The City of Beau- mont. F� Mayor -4- PASSED BY THE CITY COUNCIL of The City of Beaumont this the day of �,�� ) , 1976. F� Mayor -4- '/ j o I DECLARATION -OF COVENANTS, CONDITIONS AND RESTRICTIONS THE PARK ON THOMAS ROAD, SECTION ONE, BEAUMONT, TEXAS THIS DECLARATION, made on.the date hereinafter set forth by NEW LAND DEVELOPMENT COMPANY, a Joint Venture formed and existing under the laws of the State of Texas, having its -,principal offices inBeaumont, Jefferson County, Texas, and hereinafter referred to as ."Declarant". W I T N E S SETH:: WHEREAS, Declarant is the owner of certain property known as THE PARK ON THOMAS ROAD, SECTION ONE, an Addition -to the City of Beaumont, County of Jefferson, State of Texas, which is more particu- larly described as: BEING a 22.787 acre tract of land out of the J. B. and H. A. Hooks.202 acre tract of land in the H. Williams League in Beaumont, Jefferson County, Texas, and being a part of that certain 27.75 acre tract of land conveyed by Amoco Production Company to New Land Development Company and being apart of that certain 12.442 ::acre tract of land conveyed by Jack S. Josie to New Land Development Company and said 22.787 acre tract of land being more particularly described by metes and bounds as follows: FOR locative point begin at an iron stake in the West line of Lucas Drive and the North line of Delaware Street; THENCE South 89 degrees 02 minutes 34 seconds West with the North line.of Delaware Street 163.33 feet to a concrete monument in the West line of Calder Highlands Addition, a plat of which is recorded in Vol. 4 Page 155 of the Map Records of .Jefferson County, Texas; said concrete monument also locating the Southeast corner of said 12.442 acre tract of land and the Southeast and.the beginning corner of the tract of land herein described; THENCE North 0 degrees 47 minutes West with the West line of Calder Highlands Addition 1026.0 feet to an iron stake locating the Northeast corner; THENCE South 89.degre.es 13 minutes West 950 feet to an iron stake for corner in the West line of the said 27.75 acre tract of land.conveyed by Amoco Production Company to the New Land.Development Company; THENCE South 0 degrees 47 minutes East.with the said West line 1051.63 feet to an iron stake for corner in the North line of Delaware Street;.said iron stake also locating the Southwest corner of said 27.75 acre tract of land conveyed by Amoco to New Land Development Company; Cct, THENCE in an Easterly direction with the North. line of Delaware Street the following courses and distances: North 89 degrees 07 minutes 31 seconds East 423.69 feet; North 89 degrees 10.minutes 41 seconds East 160.21 feet; North 83 degrees-32.minutes 04.seconds East 247.27 feet; .North 89 degrees 02 minutes 34 seconds East 120.21 feet to THE PLACE OY BEGINNING containing 22.787.acres of land; as shown and reflected by the -Final -Plat thereof recorded in the Office of the County Clerk of Jefferson County,.Texas, reference to which is here made for all purposes. NOW, THEREFORE, for the purposes of enhancing and protecting the value, attractiveness and desirability of Lots constituting the Addition,. Declarant hereby declares that all of the properties de- scribed above shall be held, sold and conveyed subject to the follow- ing easements, restrictions, covenants and conditions, which shall constitute covenants running with the land and shall be binding on all parties having any right, title or interest in the described properties or.any part thereof,their heirs, successors and assigns, and shall inure to the benefit of each owner thereof. ARTICLE I DEFINITIONS Section 1. "Association" shall mean and refer -to THE PARK ON THOMAS ROAD HOME OWNERS ASSOCIATION, a Texas Non -Profit Corporation, its successors and assigns.. Section 2. "Owner" shall mean.and refer to the record owner, whether one or more persons or entities, of.a. fee simple title to. any Lot which is a part of the Addition, including contract sellers, but excluding those having such interest merely as security for the. performance of an obligation. Section 3. "Addition';' shall mean. and refer to the subdivided real property hereinbefore -described, and such additions thereto as.: may hereafter be brought within the jurisdiction of the -Association as hereinafter provided. 2, Section 4. "Common Area" shall mean all real property (including the improvements thereto) owned by the Association for the common use. and enjoyment of the Owners. The Common Area to be owned by the Association shall be all' of the property in the Addition, excluding (i) Lots -reflected upon the Plat of the Addition and the improvements. thereon; (ii) water, sewer and other utility lines and appurtenances thereto lying, installed and maintained within the utility easements. reflected and designated as.such upon the Plat of the Addition; and (iii) public streets lying, constructed and maintained within the street easements reflected and designated as such upon the Plat of the Addition. Section 5. "Recreation Area" shall mean and -refer to that certain portion of .the Common,Area,-containing fifty five thousand three hundred (55,300) square feet of land, more or less, reflected and designated as the "Recreation Area" upon the recorded Plat of. the Addition, together with all improvements thereto and recreational facilities thereon. Section 6. "Lot" shall mean and refer to.any plot of land shown upon the recorded Plat of the Addition, with the exception of (i) the Common Area; and (ii) the public street easements reflected and designated as such upon the Plat of the Addition.The Lots in the Addition, for the purpose of reference and distinction later in this Declaration, shall be divided into two classes,. as follows: Class One: Class One Lots'shall be deemed to include only Lots Numbers One (1) through and including Five (5)1? in Block Number One (1), and Lots Numbers One (1) through and including Seven (7), in Block Number Two (2), of THE PARK ON THOMAS ROAD, SECTION ONE; Class Two: Class Two Lots shall be deemed to'include all Lots in the Addition, except those. designated.above as Class One Lots. 3. c cL 7 39 Section 7. "Member".shall mean every person or entity who holds membership in the Association..-. Section 8. "Declarant" shall mean NEW LAND DEVELOPMENT COMPANY or its successors; provided, however, inasmuch as NEW LAND DEVELOP- MENT COMPANY contemplates that ANDERSON CONSTRUCTION COMPANY, a Texas Corporation, or some other person or entity, shall acquire from NEW LAND DEVELOPMENT COMPANY for the purpose of resale all (or sub- stantially all) of the Lots in the Addition, the term "Declarant". shall also include the said ANDERSON CONSTRUCTION COMPANY and its successors, or such other person -or entity, who shall acquire from - NEW LAND DEVELOPMENT COMPANY or its successors for the purpose of resale all'(or substantially all) of the Lots in the -Addition. ARTICLE II PROPERTY SUBJECT TO THIS DECLARATION; ADDITIONS THERETO Section 1. Existing Property. The real property which is,.., ,and.shall be, held, transferred, sold, conveyed, and occupied subject. to this Declaration is designated as THE PARK ON THOMAS ROAD, SECTION. ONE, and is more particularly described as follows: BEING a 22.787 acre tract of land out of the J. B. and H. A.. Hooks 202 acre tract of land in the H. Williams League in Beaumont, Jefferson County, Texas, and being apart of that ..certain 27.75 acre tract of land conveyed by Amoco Production, Company to New Land Development Company and being a part of that certain 12.442 acre tract of land conveyed by -Jack S. Josie to New Land Development Company and said 22.787 acre tract,of land being more particularly described by metes and bounds as follows: ..FOR locative point begin at an iron stake in the West line of Lucas Drive and the North line of Delaware Street; THENCE South 89 degrees 02 minutes 34 seconds West with the North line of Delaware Street 163.33 feet to a concrete monument in the West line of Calder Highlands Addition, a plat of which is recorded in Vol. 4 Page 155 of the Map Records of Jefferson County, Texas; said concrete monument also locating the Southeast corner of said 12.442 acre tract of land and the -Southeast and beginning corner of the tract of land herein described; THENCE North 0 degrees 47 minutes West with -the West line of Calder Highlands Addition 1026.0 feet to an-iron.stake locating the Northeast corner; 4. fl)6 _31P THENCE South 89 degrees 13 minutes West 950 feet to an iron stake for corner.in the West line of the said 27.75 acre tract of land conveyed by Amoco Production Company to the New Land Development Company; THENCE South 0 degrees 47 minutes East with the said West line 1051.63 feet to an iron stake for corner in the North line of Delaware Street; said iron stake also locating the Southwest corner of said 27.75 acre tract of land conveyed by -Amoco to New Land.Development"Company; THENCE in an Easterly direction with the North line of Delaware Street the following courses and distances: North 89 degrees 07 minutes 31. seconds East'423.69 feet; North 89 degrees 10 minutes 41 seconds East 160.21 feet;.. North 83 degrees 32 minutes 04 seconds East 247.27 feet; North 89 degrees 02 'minutes 34 seconds East 120.21 feet to THE PLACE OF BEGINNING containing 22.78.7.acres'of land; all of which -real property may hereinafter be referred to as "existing property." -Section 2. Future Development. Declarant may, at'its sole election, bring within'the scheme of this Declaration all or part of the additional properties, consisting of 17.41 acres, more or'less, designated for '.'Future Development" on the Plat recorded contemporane- ously with this Declaration.. The additions provided under this. section shall be made by filing of record a Supplementary Declaration of covenants, conditions and restrictions with respect to the.addi- .tional property which shall extend the scheme of the covenants. Such Supplementary Declaration shall in all respects conform to the require- ments and restrictions of the Cluster -Housing Ordinance of the.City of Beaumont, Jefferson County, Texas (Section 42-20.4 of the Code of Ordinances of the City of Beaumont, as amended).- Such Supplementary Declaration may contain such complimentary additions and modifications of the covenants and restrictions con- tained in this Declaration as may be _necessary to reflect the differ- - ent character of the added properties and as are not inconsistent. with the scheme.of this Declaration. In no event, however, shall such Supplementary Declaration revoke., modify or add.to the covenants established by.this Declaration within the existing property. 5. C 4b ARTICLE III PROPERTY RIGHTS . Section 1. Owners' Easements of Enjoyment. Every Owner shall have a right and easement of enjoyment in and to .the Common Area which.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 charge reasonable admission and other fees for the use of the'Recreational Area situated upon the Common Area; (b) the right of the Association to suspend the voting rights and right to use the Recreational Area by an Owner for' any period during which any assessment against his Lot remains unpaid; and the right to suspend such rights for a period not to exceed 60 days for any infraction of its published -rules and regulations; (e) the right of the Association to dedicate or trans- fer all or.any part of the Common Area to any municipality, public agency, authority., or utility for such purposes and subject to such conditions as may be agreed.to by the Members. No such dedication or transfer shall be effective unless an instrument agreeing to such dedication or transfer signed by. 2/3rds of each class of members has been recorded. Section 2. Notwithstanding the provisions of.Section 1 of,this Article, the right -and easement of enjoyment of the Owners of Class One Lots shall be limited to the Recreational Area (as hereinabove defined), together with those portions of the Common Area as are appurtenant to the Recreational Area (such as the private drives affording access thereto and the.off-street parking areas adjacent thereto), which right and easement of enjoyment shall be exercisable - in -common with all other Owners of Lots in the Addition and subject to the provisions contained in Section 1 above Section 3. Delegation of Use. Any Owner may delegate, in accordance with the .By -Laws of the Association, his right of enjoy- ment in and to the Common Area to the members of his family, his tenants, or contract purchasers, who reside on the property. ARTICLE IV MEMBERSHIP.AND VOTING RIGHTS Section 1. Every Owner of a Lot shall be a Member of the Association. Membership shall be appurtenant to and may not be separated from ownership of a Lot. Section 2. The.Association shall have two (2) classes of voting Memberships, as follows: Class A. Class "A" Members shall be all Owners, with the exception of the Declarant, and shall be entitled to one (1) vote for each Lot owner. When more than one (1) person holds an. interest in any Lot, all such persons shall be Members. The vote for such Lot shall be exercised as they determine, but in no' -event shall more than.one (1) vote be cast with respect to any Lot owned by Class"A" Members. Class B. The Class "B" Member shall be the Declarant, who shall be entitled to three (3) votes for each Lot owned. The Class "B" Membership shall cease and be converted to Class "A"Membership on the happening of either of the fol- lowing events, whichever occurs earlier: (a) when the total votes outstanding in the. Class "A" Membership equal the total votes out- standing in the Class "B" Membership, or (b) on January 1, 1986. ARTICLE V ASSESSMENTS Section 1. Lien and Personal Oblation of Assessments. Declarant9 .for each Lot owned by it in the Addition, hereby covenants, and each 7 owner of a Lot in the Addition is hereby deemed to covenant, by accep- tance of his deed for such Lot, whether or not it shall be so expressed, in his deed; to pay to the Association (i) annual assessments and (ii) special assessments for capital improvements.. Such assessments will be established and collected as hereinafter provided. The annual and special assessments, together with interest, costs, and reasonable attorneys` fees, shall be a charge on the land'and a continuing lien on each Lot against which such.as assessment is made. Each such,,, assessment, together with interest, costs, and reasonable attorneys',. fees shall also be the personal obligations of the person or persons. who owned the Lot at the time the assessment -fell due, but such per- sonal obligation shall not pass.to the successors in title of.such person or persons unless expressly assumed by them. Section 2. Purpose of Annual Assessments. The annual assess- ments levied by the Association shall be used exclusively: -(i) to ., promote the health, safety, welfare, and recreation of the residents in the Addition; (ii) for the improvement and maintenance of -the Common Area within the Addition; and.(iii) for certain "exterior Lot main- tenance" of the Class Two Lots in the.Addition.. Annual assessments shall include, and the Association shall acquire and pay for out of the funds.derived from annual assessments,.the following: (a) Maintenance and repair of the Common.Area. (b) Water, sewer, garbage, electrical, lighting, tele- phone, gas, and other necessary utility service for the Common Area. (c) Acquisition of furnishings and equipment for the Common Area, as may be determined by the Association, in- cluding without limitation all equipment, furnishings, and personnel necessary or proper for use of the.Recreational Area. (d) Maintenance and .repair .of sidewalks situated on the Common Area within the Addition; private drives situated on - the Common Area within the Addition; and water, sewer,. storm a drainage and other utility lines in or serving the Common ' Area or serving more than one (1) Lot in the Addition (which shall not..be dedicated to general .public use). (e) Fire insurance covering the full insurable replace- ment value of the improvements (and their.contents) on the Common Area, with extended coverage. (f) Liability insurance insuring the Association.against any and all liability to the public, to any. -Owner,, or to.the invitee, tenants or contract purchaser of any Owner, arising out of their occupancy and/or use of the Common Area. -The. policy limits shall be set by the Association, and shall be reviewed at least. annually and increased -or decreased in the discretion of the Association. (g) Workmen's- compensation insurance to the extent necessary to comply with applicable law, and any other -insurance deemed necessary by the Board of Directors of the, Association. (h) A standard fidelity bond covering all members of the -Board of Directors of the Association and'all other employees of the Association in an amount,to.be determined by the Board of Directors. (i) Any other materials, supplies, 'furniture, labor, services,,.maintenance, repairs, structural alterations, in- surance, taxes, or assessments which the Association is re- quired to secure or pay pursuant to the terms of this Declara- tion or by law, or which shall be necessary or proper in the opinion of the Board of Directors of the Association for the operation of the Common Area, for the benefit of Lot Owners, or for the enforcement of these restrictions. (j) In addition to the maintenance of the Common Area, the Association shall provide. exterior Lot maintenance on each Class Two Lot within the Addition, as follows: (i) mowing, trimming and care of grass in area of Lot not enclosed within privacy fence; and (ii) maintenance and repair of sidewalks extending beyond dwelling, garage or carport and not enclosed within privacy fence. Section 3. Limitation on Annual Assessments for Class One Lots. Due to the limitations hereinabove imposed upon the rights and ease- ments of enjoyment of the Owners of Class One Lots in and to the Common Area of the Addition, the annual assessments which the Associa- tion shall have the power and authority to fix and levy against each Class.One Lot shall be limited to such Lot's proportionate part (spread and allocated equally and uniformly over all of the Lots.in the Addition, without regard to Class, on which the Association shall have authority to levy assessments) of the following: (a) Maintenance and repair of the Recreational Area, together with the off-street parking area adjacent thereto. (b) Water, sewer, garbage, electrical, lighting, tele- phone, gas and other necessary utility service for the Recrea- tional Area. (c) Acquisition of furnishings and equipment for the Recreational Area and personnel necessary or proper for the use of the Recreational Area. (d) Maintenance and repair of water, sewer, storm drainage and other utility lines in Recreational Area (which shall not be dedicated to general public use). (e) Fire insurance covering the full insurable re- placement value of the improvements (and their contents) in or on the Recreational Area, with extended coverage; or that proportional part of the aggregate premium for fire and extended coverage insurance upon all improvements (and their contents) on the Common Area as shall be allocable to the. Recreation Area, its improvements and their contents. (f) Liability insurance insuring the Association 10. against any and all liability to the public, .to any Owner, or to the invitee, tenants or contract purchaser of any Owner, arising out of their occupancy and/or use of the Recreational Area; or that proportional part of the aggre- gate premium for liability insurance upon all the Common Area as shall be allocable to the Recreation Area. (g) Workmen's compensation insurance to the extent necessary to comply with applicable law,'and any other insurance deemed necessary by the Board of Directors of the Association, related or incident to the maintenance, ownership and operation of the Recreational Area; or that proportional part of the aggregate premium for such in- surance coverage as sha l be allocable to the maintenance, ownership and operation of the Recreational Area. (h) A standard.fidelity bond covering all members of the Board of Directors .of the Association and all other employees of the Association in an amount to be determined by the Board of Directors. (i) Any other materials, supplies, furniture, labor, services, maintenance, repairs, structural alterations, in- surance, taxes, or assessments which the Association is re- quired_to secure or pay pursuant to the terms of this Declara- tion or by law, or which shall be necessary.or proper in the opinion of the Board of Directors of the Association, for the maintenance, ownership and operation of the Recreational - Area. Section 4. Power to Fix Annual Assessments.- The power and - authority to.fix and levy the annual assessments.shall rest exclus-. ively with the Board of Directors of the Association, and when deter- mined.and fixed by the Board of Directors as herein provided, same shall be final, conclusive and binding upon each Lot Owner, his .heirs, successors and assigns-, including contract purchasers. 11. 3-t��r�'M�� Section 5. Special Assessments for Capital Improvements.. In addition to the annual maintenance assessments authorized above, 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 cost of any construction, reconstruction, repair or replacement of a capital improvement upon the Common Area, including fixtures and personal property related thereto. Again, due to the limitations hereinabove imposed upon the Owners -of Class One Lots with respect to their respective rights and easements of enjoyment in andtothe.Common Areas, no special assessment shall be fixed or levied by the.Association upon Class One Lots except only for the purpose of defraying, in whole or in part,.the cost of constructing, reconstructing, repairing or.replacing a capital improvement, or the fixtures or personal property related thereto, in or on the Recrea- tional Area (the cost of which shall be allocated uniformly to all Lots in the Addition, without regard to Class). Any special assess- went_shall have the assent of two-thirds (2/3rds) of the votes of each class of Members who are voting in person.or by proxy at a - meeting duly called for this purpose. Section 6. Notice and Quorum for Action Under Section 4. Written notice of any meeting called for the purpose of taking any action authorized under Sec. 5 shall be sent to all Members not less than ten (10) days nor more than sixty (60) days in advance of.the meeting. At the first such meeting called, -the presence of Members or of proxies entitled to cast fifty percent (50%) or more of all-the- votes ll the votes of each class of membership shall constitute a quorum. If the required quorum is not present,.another meeting may be called sub- ject to the same notice requirement, and the required quorum at the subsequent meeting shall be one-half (1/2) of the required quorum at the preceding meeting. No such subsequent meeting shall be held more than sixty (60) days -'following the preceding meeting. 12. ry Section 7.. Uniform Rate of Assessment. Except as hereinabove .provided, annual and special assessment must be fixed at a uniform rate for all Lots and shall be collected on a monthly basis.. Declarant shall not be responsible for the payment of assessments on.an unim- proved Lot until six (6) months after commencement of construction upon such unimproved Lot. A Builder (as that term is hereinafter defined) shall not be responsible for the payment of assessments on an unimproved Lot within the Addition until (i) six (6) months after commencement of construction upon such. unimproved Lot; or (ii) twelve (12) months after the purchase of such unimproved Lot, whether con- struction shall have commenced or not; whichever date shall be the earlier. For purposes of this Section and the next succeeding Section, "commencement of construction" shall be -construed -as the date upon .which a building permit is issued by the municipal authorities; and ."Builder".shall be construed to.mean a person -(or entity) who shall purchase from Declarant_or its successors more than one (1).unimproved Lot in the Addition for -.the purpose of improving the Lots with resi- dential'improvements and selling, in the customary and ordinary course of his (or its) business, the improved Lots to the public;. provided that the commencement of construction of improvements on an unimproved'Lot other than for sale to the public, or the occu- pancy of an improved Lot, other.than on' a temporary basis as a.,. model home or sales office, shall terminate such person's (or entity's) status as a "Builder", but only as to the Lot so improved or so occupied. Section 8. Date of Commencement of Annual Maintenance Assess- ments; Due Dates. The annual maintenance assessments provided for. herein shall commence as to each Lot on the first day of the calendar month next following the.earliest to occur of the following; the conveyance of a Lot by the Declarant or a Builder to an.owner; (ii) the termination of:the status of "Builder" as to a Lot; (iii) six (6) months following the commencement of construction by Declarant. 13- - or Builder upon an unimproved Lot;. or (iv) twelve -(12) months after the purchase by a Builder of an unimproved Lot, whether construction shall have commenced or not. The first annual assessment shall be adjusted -according to the number of months remaining in the annual assessment period (whether a calendar or fiscal year, as determined by the Board of Directors of the Association). The Board of Direc- tors shall fix the amount of the annual assessment against each Lot at least thirty (30) days in advance of each annual assessment period. Written notice of the annual assessment shall be sent to every Owner subject thereto. The due dates shall be established by the Board of Directors. The Assocation shall, upon demand, for a reasonable charge, furnish a certificate signed by an officer of the Association setting forth whether the assessments on a specified Lot have.been-paid, A properly executed certificate of the Association as to the..status of assessments on a Lot is binding upon the Association -as of the date of its issuance. Section 9. Effect of Nonpayment of Assessments; Remedies of the'. Association. Any assessment not paid within ten,(10) days of.the due date shall bear interest from the due date at the rate of ten percent (10%) per:annum.•To secure the prompt payment of the aforementioned assessments, a. lien is hereby created and granted for the benefit of the Association upon each Lot, and all improvements, additions,.fix- tures and appurtenances hereinafter placed thereon.' The Association may bring an action by law against the Owner personally obligated to pay the same, or foreclose the lien against the property. No Owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the Common Area or abandonment of his Lot.' Section 10: Power of Sale. To secure and enforce the payment of said assessments, and -for the auxiliary and cumulative enforce ment of said lien hereinabove created, Declarant has granted, sold. and conveyed and.by these presents does grant, sell and convey unto 14. RONNIE ANDERSON, Trustee, of Jefferson County, Texas, and his sub ._stitute or successors, the hereinbefore described real property and all improvements, additions, fixtures and appurtenances hereafter placed thereon. To.have and to hold the said premises, together with the rights, privileges and appurtenances unto the said Trustee, and to his substitutes or successors forever. And Declarant does hereby bind itself, its successors and assigns, to warrant and for- ever defend the said premises unto the.said Trustee, his substitutes, successors and assigns forever, against the claim or claims of all persons claiming or to claim the same, or any part thereof, for and upon the following trusts, terms, covenants and agreements, to -wit That whereas, Declarant, its successors and assigns may hereafter become justly indebted to the Association,.as evidenced by the. hereinbefore mentioned assessments. Should Declarant,, its successors and assigns do and perform all of -the covenants and agreements. herein contained and make prompt payment of the assessments hereby secured as the same shall become due and payable, then this convey- ance shall become null and void and of no further force.and.effect. That in the event of default the payment'of any assessment hereby secured, in accordance with the terms hereof, it shall there upon, or any time thereafter, be the duty of the Trustee, or his successor or substitute, at the request of the Association (which request is hereby.conclusively presumed) to enforce this trust and make sale of the above described and conveyed property, or any -portion thereof, as provided in.Article 3810, Revised Civil Statues of Texas 1925, after notice as provided in said Article.(but without any other notice than is required by said Article 3810), selling all of the property as an entirety or in parcels as the Trustee acting may elect, and make due conveyance to the purchaser or purchasers, with general warranty binding the grantor, his heirs and assigns; and:out of the,money arising from such sale, the Trustee acting shall 15 first pay all expensesof advertising said sale and making.the.con- veyance, and then to the Association the full amount of assessments owing, interest thereon, and reasonable.attorney's fees, rendering the balance of the sales price, if any, to grantor, his heirs. or assigns; and the recitals in the conveyance.to said purchaser or purchasers shall be full and conclusive evidence -of the truth of the matters.therein stated,'and all prerequisites to said sale shall be presumed to have been performed and such sale -and conveyance shall be conclusive against grantor, his heirs and assigns. In case of the absence, resignation, death, .inability, failure or refusal of the Trustee herein named or -of any substitute Trustee appointed hereunder to act, or in the event the Association shall deem it desirable to remove without -cause the Trustee or -any substi tute Trustee and appoint another to execute this trust, then in any of such events the Association shall have the right (to be exercised through its Board of Directors) and is hereby authorized and em.- powered m powered to appoint a successor and substitute without any formality other than an appointment . and -._designation- .in writing; and .this appointment shall vest'in him, as Trustee, the estate and title in and to all said premises, and he shall thereupon.hold, possess and.. execute all the.rights, title, powers and duties herein conferred upon the Trustee named herein; and the right to appoint a successor Or substitute.Trustee shall exist as.often and whenever from any of said causes any Trustee, original or substitute, cannot or will not act, or has been removed without cause. The exercise or attempted exercise of the power-of.sale herein contained shall not exhaust said:power of sale and shall not prevent -any subsequent exercise thereof. It is especially agreed that, in the event.of a foreclosure -under the powers granted herein, the person in.possession.of said property-. shall thereupon become the tenant -at -will of the purchaser at such. 16. foreclosure sale, and should such tenant refuse to surrender possession of said property upon demand, the purchaser shall -thereupon, at his or her option, be entitled to institute and.ma.intain the statutory.action for forcible detainer and procure a writ of possession thereunder. This provision shall in no wise preclude the purchaser from bringing any other legal action for possession of said property and the bring- ing of.one'character of action shall not preclude the other, and the same may be exercised separately or simultaneously. As additional properties are brought into the Addition and within the scheme of this Declaration., the recording of.the Supplementary Declaration therefor (as provided in ART. II, Sec. 2, "Future Develop- ment") shall automatically subject such.additional properties to the lien and power of sale herein provided, with the same force and effect as if separately and expressly conveyed by Declarant to the within named Trustee. Section 11. Subordination of the Lien to Mortgages. The lien of the assessments provided for herein shall be subordinate to any purchase money mortgage or any constitutional mechanic's and material - man's lien contract, or any renewal or extension of same. Sale or . transfer of any Lot shall not affect the assessment lien. No sale. -or transfer shall relieve such Lot from liability for any assess - meets thereafter becoming due or from the lien thereof., Section 12. Exempt Property.. The following property subject to -this Declaration shall be exempted from the assessments, charge and lien created herein: (a) all properties to the extent of any easement or other interest therein dedicated and accepted by the local public authority and devoted to public use; except that the existence of an easement of any Lot shall not exempt such Lot from full and uniform assessment as if such easement were:not.located thereon; (b) all Common Area as defined in ART-. I,..Sec.. 4 hereof; and (c). all property exempted from taxation by the laws of the State of Texas, upon the terms and to the extent of such legal exemption. Notwith 17 standing any provision herein, no.land or improvements' devoted to dwelling use shall be exempted from sale assessment, charges or liens. Section 13. Books and Records. Proper books and records shall be kept with reference to all assessments, and each Owner.shall at all reasonable times during business hours have access thereto. The books and records shall be kept in such a manner as to separately identify the payments and assessments for utility service,.maintenance and capital improvements. No payment or assessment for each indiv- idual assessment account.shall be transferred or debited or credited to another account ARTICLE VI OWNER'S OBLIGATION TO REPAIR AND MAINTAIN; OBLIGATION TO REBUILD; OBLIGATION TO CONSTRUCT SIDEWALK, Section 1. Owner's Obligation to Repair and Maintain Residence.. Each Owner shall, at his sole cost and expense, perform.such repairs and maintenance as shall be required to keep his residence in a coni ditiori comparable to the condition of such residence at the time of its initial construction, excepting only.ordinary wear.and,tear. Additionally, (except to the extent of exterior Lot maintenance of the Class Two Lots to be furnished by the Association under the pro-. visions of ART. V, Sec. 2(j).hereof) each Owner shall maintain his yard area and all sidewalks and driveways. on his Lot. In the event .an Owner shall fail'or refuse to make such repairs or perform such maintenance, and such failure or refusal shall continue for more than forty five (45) days from delivery of written notice from the Associa- tion to the Owners (or, if more than one [1] Owner, to any of them) specifying the maintenance or repairs required to be.made, the Asso- ciation may, at its election, cause such maintenance and repairs to be performed. The costs of making or performing such maintenance and. repairs shall.then be an additional assessment to which such Lot is subject and shall be due and payable to the Association in the month. next following the delivery to the Owner (or, -if more than one [1] 18. Owner, to any of them) a written itemized statement of costs of such maintenance and repairs. This assessment shall be secured by the same lien or liens and shall be enforceable in the same manner as any other assessment upon such Lot._ Section 2. Owner's Obligation to Rebuild. If all or any portion of a residence is damaged or destroyed by fire or other casualty, it shall be the duty of the Owner thereof with all due diligence, to rebuild, repair.or reconstruct such residence in a.manner which will substantially restore it to its appearance and condition immediately prior to such casualty.. Reconstruction will.be undertaken -within three -(3) months after the damage occurs.and shall be completed within twelve (12) months after the damage occurs, unless prevented by causes beyond the control .of the Mmer or Owners. ARTICLE VII ARCHITECTURAL CONTROL Section 1. Authority of Architectural Control Committee. No building, fence' wall or.other structure shall be commenced, erected, placed or.maintained upon any Lot in the.Addition or upon any portion of the Common Area, nor shall any exterior addition to or change or alteration of.any improvement in the Addition be made, until the plans and specifications therefor, -showing the kind, shape, height, materials and location of the same shall have been submitted to and approved in writing by.the Architectural Control Committee as to the quality of materials, the harmony of extermal design and location in releation to other existing or planned structures and overall topography. Plans .and specifications shall reflect all driveways and sidewalks required to serve the Lot, even though the same may, in whole or in part, ex tend beyond the perimeter boundaries of the Lot. The Architectural Control Committee shall give or withhold approval (as is in the judgment of the Committee groper) of all matters set forth above, In the event the Architectural Control Committee fails to approve or disapprove plans and specifications within thirty (30) days after same are -submitted to it, approval will not be required and the related covenants will be deemed to have.been fully complied with-. Section.2.. Composition of Committee; Vacancies; Delegation of Authority; and Surrender of Authority. The Architectural Control Committee shall be composed of three (3) or more persons to be appointed by Declarant. Declarant herewith appoints MORRIS ANDERSON, RONNIE. ANDERSON, and MACK FULBRIGHT as the members of the initial Architectural Control Committee. In the event of the death, inability to serve, or resignation of a member of the Architectural Control Committee, the remaining members of the Committee shall have the power to designate a successor. The Committee.shall have the power to designate a rep- resentative to act for it.- No member of the Committee or its desig- nated representative shall be entitled to-demand.or receive any com- pensation.or fee as a condition to its examination or approval of plans. or specifications submitted or to be submitted to the Committee here- under. Upon the completion of construction of a residence upon each .and every Lot in a Section of the Addition, the Architectural Control Committee may, by instrument in writing executed by a majority of the then members of the Architectural Control Committee, surrender its authority, powers and duties under this ARTICLE as to such completed. Section to the Board of Directors.of the Association or to a committee. appointed by the Board of Directors. Upon completion of construction of a dwelling upon each and every Lot in the Addition (including the 17.41 acres, more or less, designated upon the Plat for "Future Develop- ment"), the Architectural Control Committee shall thereupon surrender its authority,. powers andduties to the Board of Directors or to a committee appointed by the Board of Directors of the Association as to the whole or said Addition. obligation.of the Association to (i) -maintain and repair the Common Area of the Addition, together with all structures and improvements thereon; (ii) maintain and repair all water, sewer, storm drainage and other utility lines in or serving the Common Area or serving more than one (1) Lot in the Addition (which shall not be dedicated to general public use); (iii) maintain and repair sidewalks within the Addition, situated on the Common Area; (iv) maintain -and repair private streets situated on the Common Area within the Addition'; and (v) provide exterior Lot maintenance for the Class Two Lots within the Addition, as provided in. ART V, Sec. 2(j) hereof. ARTICLE IX PARTY WALLS Section 1. General Rules of Law to Apply.. Each wall which is built as a part of the original construction of the homes upon the Lots in the Addition and placed on the. dividing line between the Lots shall constitute a party wall, and, -to the extent not inconsistent with the provisions of this ARTICLE, the general rules'of law regard ing party walls and liability for property damage due to negligence or willful acts or omissions shall apply thereto.. Section 2. Sharing of Repair and Maintenance. The.cost of reasonable repair and maintenance of a party wall shall be shared... by -the Owners who make use of the. wall in proportion to such use. Section 3. Destruction by Fire or Other Casualty.. if a party wall is destroyed or damaged by fire or other casualty any Owner who has used the wall may restore it, and if the other Owners thereafter - make use of the wall, they shall contribute to the cost of restoration -.thereof in proportion to such use without prejudice, however, to the right of any.such Owners to call for a larger contribution from the others under any rule of law regarding liability for negligent.or willful.acts or omissions. Section 4. Weatherproofing. Notwithstanding any other.prov'ision 21. of this ARTICLE,.an Owner who by his negligent.or willful act causes the party wall to be exposed to the elements shall bear the whole cost of furnishing the necessary protection against such elements. Section 5. Right to Contribution Runs with Land. The right of . any Owner to contribution from any.other Owner under this ARTICLE shall be appurtenant to the land and shall pass to.such Owner's successors in title. Section 6.Arbitration. In the event of any dispute arising concerning a party wall, or under the provisions of this ARTICLE, each party shall choose one (1) arbitrator., and the decision shall be by a majority of all the arbitrators. Should any party refuse to choose an arbitrator within ten (10) days after written request there - for, the Board of Directors'-of the Association shall select an arbi- trator for the refusing party. ARTICLE X USE RESTRICTIONS The Lots and the Common Area shall be occupied and used as follows: Section 1. Residential Use. No Owner shall occupy or use his Lot or building thereon, or permit the same or any_part.thereof to be occupied or used for any purpose other than as a private residence for the Owner, his family, guests and tenants. Section 2. Obstruction of Common.Area. There shall be no obstruction of the Common Area. Nothing shall be.'stored in the Common Area without the prior written consent of the Board of Directors. Section 3. Insurance. Nothing shall be done or kept in the Common Area which will increase the_rate of insurance on the Common Area, without the prior written consent of the Board of Directors. No Owner shall permit anything to be done or kept in the Common Area which.will result in the cancellation of insurance on any part of 22'. the. Common -Area, or which would be in violation of any law. No waste will%be committed in the Common Area. Section 4. Nuisances. No noxious or offensive activity shall be carried on upon'any Lot, or the Common Area, nor shall anything be.done thereon which may be or may become an annoyance -'or nuisance to the other Owners. No boat, trailer, truck (except for a pickup truck having a manufacturer's rated carrying capacity of one half. [1/2] ton or less), camping or recreational vehicle shall be parked or stored upon any Lot in the Addition on a "permanent basis" (as hereinafter defined) except wholly within an enclosed garage"appurte- Want to a dwelling; nor shall any such boat, trailer, truck, camping or recreational vehicle be parked upon a'street or driveway in the Addition .on a "permanent basis" (as hereinafter defined). ",.A "perma- nent basis", as that term is used above, shall mean any period of: forty .eight (48) consecutive hours or any period of twelve (12) con- secutive hours on any two (2) consecutive days. No repair work, dis- .mantling or assembling of motor vehicles or any other machinery or equipment shall be permitted.in any street, drive, driveway yard adjacent to a street, or in the Common Area. Section 5., Temporary Structures. No.structures of a temporary character, trailer, basement, tent, shack, barn, servants. quarters or other out buildings shall be used on any Lot at any time as a residence, either temporarily or permanently; nor shall any used residence or other used structure be moved onto. any Lot. During the construction and sales period of the initial dwelling units the Builder may erect and maintain such structures as is customary in connection with such construction and sale of such property, in- cluding, but without limitation, a business office, storage areas, construction yards, signs, .model units and sales offices. Section 6. Signs.: No sign, of any kind shall be displayed to. public view on any Lot.or building except one.(1) sign.of not; more 21 ...:than eight () square feet in areaadvertising- the e r its of the .. property for sale or rent. During the construction and initial sales period of the dwelling units the Builder may use other signs and displays to advertise, the merits of the property for sale or rent. Section 7. Oil and Mining Operations. No gas or oil drilling, gas or oil development operations, oil refining, quarrying or mining operations of any kind shall be permitted upon or in any Lot, nor shall oil wells, tanks, tunnels, mineral.excavations or shafts be permitted upon or in any Lot. - Section 8. 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, not to exceed a total of two (2) pets,.may be keptprovided that they shall:not become a nuisance and are not kept, bred, or maintained for any commercial purposes.. Section 9. Garbage and Refuse Disposal. No Lot or any part - of the Common Area shall be used.or maintainedas dumping ground for rubbish. Trash, garbage -or other waste shall be kept screened by adequate -planting or fencing so as to conceal them from public view. There is reserved in favor of the Association the determination. of the method of garbage, disposal, that is, whether it shall. be through public authority or through private garbage disposal contractor(s). All equipment for the storage or disposal of such materials shall be kept in clean and sanitary condition. Section 10. Sewage Treatment. No sewage treatment system shall be permitted on any Lot. Section 11. Use.of Common Areas. Except in the individual `yard areas appurtenant to a residence, no planting or gardening shall be done, and no sidewalks, driveways, parking areas, fences, hedges or walls shall be erected or maintained upon any Lot except 24. - I\ r such as are installed in accordance with the -initial construction of the buildings located thereon or as approved by the Architectural Control Committee. For the purpose of providing,adequate pedestrian access from the streets in the Addition to dwellings constructed upon the Class Two Lots therein (and from such dwellings to the streets), there is hereby'reserved in favor of each Class Two Lot.an appurte- nant sidewalk easement, not to exceed four feet'(4') in width, across the adjacent Common Area from the front Lot line thereof to the nearest street right of way, together with.the right to construct (subject to the .foregoing limitations) within such easement a con- crete sidewalk or walkway. Except for the right of ingress.and egress and the right and easement of enjoyment as defined herein, the Owners are hereby prohibited and restricted -from using any of the property. in the Addition outside the exterior property lines of each Lot, except as may be allowed by the Association's Board -of Directors. It is ex- pressly acknowledged an d'agreed by all parties concerned that this. paragraph is for the mutual.benefit of all Owners of Lots in the Addition, and any additions thereto, and is necessary for the protection.' of said Owners. Any co-operative action necessary or appropriate to the proper maintenance and upkeep of the Common Area, all improve- ments on the Common Area, including but not limited to,. -buildings, recreation and parking areas and walks, shall be taken by the Board of Directors or by its duly delegated representative. .Section 12. Owner's Maintenance. The Owner shallmaintain and keep in repair the following equipment and lines located out- side the residence: air conditioning compressor condenser, including pipes and electrical lines connecting same to the residence, sani- . tary sewer line connecting the residence.to the sanitary sewer collection system, electric power service conductors from the exterior of the building to the point of connecting to the. electric utility company's junction box -or transformer,, electric circuit breakers, 25. and portion of natural gas and/or telephone service lines located on the Lot.but not maintained by the gas and/or telephone companies. An Owner shall do no act nor any work that will impair the structural soundness or integrity of another residence or impair any easement or hereditament, nor do any act nor allow any condition to exist which will adversely affect the other residences or their . Owners Section 13. Annoyance, No activity shall be carried on upon any Lot or the_Common Area which might reasonably be considered as giving annoyance.to-neighbors of ordinary sensibilities and which might be calculated to reduce the desirability of the- Addition as a residential neighborhood, even though such.activity be in the nature of a hobby and not.carried on for profit. Section 14. Minimum Square Footage Requirements. No one-story or split.level dwelling shall be permitted on any Class One Lot in the Addition in which the living floor area of the main structure (in-' cluding enclosed utility and storage rooms, but excluding open porches.,. carports and garages) shall be less than three thousand (3,000) square feet;.nor shall the first floor of any two-story or.story and one- half dwellingon any Lot have less than one thousand five hundred (12500) square feet of such living area or a total of such living. area of less than three thousand (33,000) square feet. No one-story or split level dwelling shall be permitted -on any Class Two Lot in: the Addition in which the living floor area of the main structure (in" cluding enclosed utility and storage rooms, but excluding open porches, carports and garages) shall be less than one thousand -five hundred (12500) square feet; nor shall the first floor of any two-story or story and one-half dwelling on any Lot have less than seven hundred fifty (750) square feet of such living area or a total of such living.: area of less than -one thousand .five hundred (1,500) square.feet. 26. -1 1 �r/ and portion of natural gas and/or telephone service lines located on the Lot.but not maintained by the gas and/or telephone companies. An Owner shall do no act nor any work that will impair the structural soundness or integrity of another residence or impair any easement or hereditament, nor do any act nor allow any condition to exist which will adversely affect the other residences or their . Owners Section 13. Annoyance, No activity shall be carried on upon any Lot or the_Common Area which might reasonably be considered as giving annoyance.to-neighbors of ordinary sensibilities and which might be calculated to reduce the desirability of the- Addition as a residential neighborhood, even though such.activity be in the nature of a hobby and not.carried on for profit. Section 14. Minimum Square Footage Requirements. No one-story or split.level dwelling shall be permitted on any Class One Lot in the Addition in which the living floor area of the main structure (in-' cluding enclosed utility and storage rooms, but excluding open porches.,. carports and garages) shall be less than three thousand (3,000) square feet;.nor shall the first floor of any two-story or.story and one- half dwellingon any Lot have less than one thousand five hundred (12500) square feet of such living area or a total of such living. area of less than three thousand (33,000) square feet. No one-story or split level dwelling shall be permitted -on any Class Two Lot in: the Addition in which the living floor area of the main structure (in" cluding enclosed utility and storage rooms, but excluding open porches, carports and garages) shall be less than one thousand -five hundred (12500) square feet; nor shall the first floor of any two-story or story and one-half dwelling on any Lot have less than seven hundred fifty (750) square feet of such living area or a total of such living.: area of less than -one thousand .five hundred (1,500) square.feet. 26. 0 .. '.. V . .. I , 9 Section 15. Exterior Construction Materials.. Any dwelling and all structures appurtenant thereto constructed on any Class One Lot in the Addition shall have not less.than sixty-five percent (65%) of the exterior thereof constructed of stone or brick, stone or brick veneer, or other masonry material. This requirement may be waived by the Architectural Control Committee, or by its duly authorized repre- sentative, provided such Committee or representative.shall expressly approve (in advance of commencement of construction) the substitution of other exterior construction materials which shall, in the sole opinion of the. Committee or.its representative, not detract from or adversely affect the harmony of external design or appearance of the subject structure or other structures in the Addition. Section 16. Minimum Setback Reguirements. No structure shall be located nearer to the front Lot line or nearer.to a side street line than the building setback lines shown on the recorded Plat of. the Addition, nor shall any structure be located nearer to`any Lot line, right of way line of a dedicated street, curb.line of a private drive, peripheral Addition boundary, or to any other structure than. as otherwise permitted by.the Code of.Ordinances of the City of Beaumont, Texas, as from time to time amended.. Section 17. Rights of Declarant and Its Transferees. ..Declarant . or the Transferees of Declarant shall undertake the.work of.developing all or substantially all Lots included within the Addition.. The com- pletion of that work, and -the sale, rental, or other disposal of.'-. residential units is essential,to the establishment and welfare of the Addition as an ongoing residential community. In order that such work may be completed and the Addition be established as a fully occupied residential community as soon as possible, nothing in this.. Declaration shall be understood or construed to: .(a) Prevent Declarant, Declarants Transferees,. or the employees, contractors, or subcontractors., of Declarant or Declarant's Transferees from doing on any part or parts of 27. the Addition owned or controlled by Declarant or Declarant's: Transferees or their representatives, whatever they deter- mine. may reasonably necessary or advisable in connection with the completion of such work; (b) Prevent Declarant, Declarant's. Transferees, or the employees, contractors, or subcontractors of Declarant or Declarant's Transferees from constructing and maintaining . on any part or parts of the Addition property owned or con- trolled by Declarant, Declarant's Transferees, or their representatives, such structures as may be reasonable neces- sary for the completion of such work, the establishment of the. Addition as a residential community,'and the disposition of Lots by sale, lease,`or otherwise; (c) Prevent.Declarant, Declarant's Transferees,'or the employees, contractors, or subcontractors of.Declarant or Declarant's Transferees from conducting on any -part or parts. of the Addition property owned or controlled by Declarant or Declarant's Transferees or their representatives, the business of completing such work, of establishing the -Addition as a residential community, and of disposing of Lots by sale, leaseor otherwise; or (d) Prevent Declarant, Declarant's Transferees, or the employees, contractors, subcontractors of.Declarant or Declarant's Transferees from maintaining such sign or signs on any of the Lots owned or controlled by any of them as may be necessary in connection with the sale, lease, or other- wise of Lots in the Addition. As used.in this section, the words."its Transferees" specifically. exclude purchasers of Lots improved with completed residences. ARTICLE XI EASEMENTS - Section 1. Easements of Encroachment. There shall exist 28. reciprocal appurtenant easements as between adjacent Class Two Lots and between each Class Two Lot and any portion or portions of the Common Area adjacent thereto for any encroachment due to the unwillful placement, settling, or shifting of the improvements constructed;.re- constructed, or altered thereon, provided such construction,.recon- struction, or alteration is in accordance with the terms of this Declaration. Such easement shall exist to a distance of not more.than one foot (1') as measured from any point on the common boundary between adjacent Class Two Lots, and between each Class Two Lot and any adja- cent portion of the Common Area, along a line perpendicular to such boundary at such point. No easement for encroachment -shall exist as to any encroachment occurring due to the willful conduct of an Owner... In the event the structure containing two (2) or more residences on a Class Two Lot or Lots is partially or totally destroyed, and then re built, the Owners so affected agree that minor encroachments of parts of the adjacent residential units on Common Areas (to the extent of not more than one foot [V], calculated and measured as provided above) due to construction shall be permitted and that a valid easement for said encroachment and the maintenance thereof shall exist.. 'Section 2. Blanket Easement. An easement over and upon every Lot and all of the Common Area of the Addition is hereby granted to all police, fire protection, ambulance, garbage, and trash collection vehicles and personnel to enter thereon in the performance of their duties. Further, a like easement is herewith granted to the Associa-, -tion, its representatives, agents, and employees., to enter in and upon or to cross any Lot and the Common Area of the Addition for the purpose of performing the duties of maintenance and repair herein provided.* Section 3. Other Easements. (a) Easements for installation and maintenance of utilities and drainage facilities and for public streets are shown and designated as such on the recorded subdividison 29. • � � .. � � � L ��, 6 / Y.J' as Plat and are hereby dedicated to public.use.by Declarant. Within the utility or drainage easements, no.structure , planting, or other material shall be placed or.permitted to remain which may damage or interfere with the-install- ation he install-ation and maintenance of.utilities,.or which may damage, interfere with, or change the direction of flow of drain- age facilities in the easement. (b) No dwelling unit or other structure of any kind. (except as hereinafter provided) shall be built, -erected, or maintained on any such easement, reservation, or right'of way, and such easement, reservations,.and rights of way shall at all times .be open and accessible to public and quasi -public utility corporations, their employees and contractors, and shall also be open and accessible to De-, clarant, its successors and assigns, and to the Association, its agents, employees and contractors, all of whom shall have the.right and privilege of doing whatever may be necessary in, on, under and above such locations to carry out any of the purposes for -which -such easements, reservations, and rights of way are reserved. Easements for underground utilities may be crossed by sidewalks and driveways, provided that there are prior arrangements made for such crossings with'the utility company or municipal agency furnishing service therein, and provided further that Declarant or any utility company or municipal agency using the easement shall not be liable for any damage done by them, their agents, employees -or contractors to such sidewalks or driveways in the course of installing, maintaining or removing utility lines and -appurtenances there- to within such easements. ARTICLE XIT GENERAL PROVISIONS Section 1. Enforcement. The Declarant, the Association, or 30. any Owner, shall have the right to enforce, by any proceeding at law or in equity,'all.restrictions, conditions, covenants, reserva- tions liens and charges now or hereafter imposed by the provisions of this Declaration. Failure by the Association or by any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the.right to do so thereafter. Section 2. Severability. Invalidation of any one (1) of these covenants or restrictions by judgment or court order shall in no wise'affect any.other provisions, which.shall remain in full -force and effect.. Section 3. Amendment. The covenants and restrictions of this Declaration shall run with and bind the land, for a term'of twenty (20) years from the date.this Declaration is recorded, after which. time they shall be automatically extended for successive periods of ten (10) years. This Declaration may be amendedduring the first twenty'(20) year period by an instrument signed by not less than ninety percent (90%) of the Lot Owners, and thereafter by an instru- ment signed by not less than seventy five percent (75%)- of the Lot Owners. Any amendment must be recorded. Section 4. Joinder by Lienholder. At the request of and as an .accommodation to Declarant, THE AMERICAN NATIONAL BANK OF BEAUMONT (the "Bank"), of Beaumont, Texas, being the owner and holder of a certain lien or certain liens upon the real property herein described (the "existing property"), joins with Declarant in the dedication to public use:of the utility, drainage and street easements in and upon'.said real property, as shown and designated upon the recorded subdivision Plat thereof, and in the imposition of the restrictions, covenants and conditions hereinabove set forth'iin this Declaration; -31- and, by its joinder herein, the Bank expressly subordinatesits lien, liens, superior title.and.equities to the easements herein.dedicated and to the restrictions, covenants and conditions herein imposed. By its joinder herein, however, the Bank assumes none of the liabil- ities, duties, covenants or obligations of Declarant, its successors or assigns,.nor does the Bank make any representations, guaranties or warranties as to any undertaking, covenants or representations of Declarant, its successors or assigns, the sole purpose of the'joinder by said Bank being to consent and agree to the dedication of said ease- ments and to the imposition of .said restrictions, covenants and con- ditions and to the subordination of its lien, liens, superior title and equities.to said easements, restrictions, covenants.and conditions. IN WITNESS WHEREOF, Declarant, NEW LAND DEVELOPMENT -COMPANY, a. Joint Venture, acting herein by and through its duly authorized Management Committee of MACK FULBRIGHT, MORRIS ANDERSON and ROBERT H. PARK, joined herein by THE AMERICAN NATIONAL BANK OF.BEAUMONT, have. executed this Declaration ,on this the day of , 1976,. A.D. NEW LAND DEVELOPMENT COMPANY, A Joint Venture ("Declarant") By: MACK FULBRIGHT By: MORRIS ANDERSON, By: ROBERT H. PARK JOINT VENTURE_MANAGEMENT COMMITTEE THE AMERICAN NATIONAL BANK OF BEAUMONT ("Bank") By: Vice President ATTEST By: Assistant Cashier THE STATE OF TEXAS § COUNTY ' OF JEFFERSON § BEFORE ME, the undersigned authority, on this day personally appeared MACK FULBRIGHT, MORRIS ANDERSON and ROBERT H. PARK, known to me to be the persons whose names are subscribed to the foregoing instrument, and acknowledged to me that they executed the same as all of the Members of the Management Committee of NEW LAND DEVELOP- MENT COMPANY, a Joint Venture, for the purposes and consideration therein expressed -and -in the capacity therein stated as the act and deed of said Joint Venture. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of , 197.62 A.D. Notary Public in and for Jefferson County, Texas THE STATE OF TEXAS § COUNTY OF JEFFERSON § BEFORE ME, the unders,�gned`authority, on this day personally appeared , Vice.President of THE AMERICAN, NATIONAL BANK OF BEAUMONT, known to me to be the person and officer whose name. is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes,and consideration therein expressed,.and in, the capacity therein stated as the act and deed of said Bank. GIVEN UNDER MY HAND AND. SEAL OF..OFFICE. 'this the. day of 1976, A.D. Notary Public in and for Jefferson County, Texas