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HomeMy WebLinkAbout881-OBDATE: February 17, 2020 TO: Planning Commission FROM: Chris Boone, Director of Planning and Community Development SUBJECT: Consider a request for the conveyance and dedication of private streets and infrastructure to the City of Beaumont. FILE: 881 -OB STAFF REPORT Bernadette Toups, President of the Oak Trace Homeowners Association, has requested that the City of Beaumont accept maintenance of the private street known as Oak Trace, and infrastructure. The City adopted a process for the conversion of private streets and other infrastructure to public ownership and maintenance in December of 2017 (see attached). Also attached is an analysis of the condition of the existing private infrastructure, conducted by the Public Works Department, The Planning Commission approved the request for acceptance with conditions in April of 2018. One condition of approval required the submission and filing of a preliminary and final plat to be paid for by the applicants. This requirement proved problematic for various reasons, but primarily due to surveying standards, specifically, variations of property lines that occurred over time and the impact of this issue on the titles and the sale of property. A legal document has been prepared for the purpose of conveying they paved roadway to the City in lieu of a plat. Staff recommends that all streets, water, sewer and drainage facilities be conveyed for public ownership and maintenance, but that maintenance of, all common areas, including alleys, parking areas, medians, play areas and other common areas, continue to be the responsibility of the Home Owners Association. Planning staff recommends approval with the following conditions: 1. Approval of conveyance document by City Council. This item was sent to all interested parties. LEGAL DESCRIPTION FOR ORDINANCE PURPOSES Being the Oak Trace Subdivision land and infrastructure owned in common. GENERAL INFORMATION,/PUBLIC UTILITIES APPLICANT: LOCATION: EXISTING ZONING: PROPERTY SIZE: EXISTING LAND USES: FLOOD HAZARD ZONE: SURROUNDING LAND USES: NORTH: Residential EAST: Residential SOUTH: Residential WEST: Residential COMPREHENSIVE PLAN: DRAINAGE: Bernadette Toups, President of Oak Trace Home Owners Association Oak Trace Home Owners Association Oak Trace Subdivision RS (Residential Single Family Dwelling) —1.74 acres more or less Private street "X" - Areas determined to be outside 500 -year floodplain SURROUNDING ZONING: RS (Residential Single Family Dwelling) RS RS RS Stable Area Curb and gutter RATIFICATION AND AMENDMENTS TO PLAT AND DECLARATION OF COVENANTS CONDITIONS AND RESTRICTIONS THE STATE OF TEXAS § COUNTY OF JEFFERSON § THIS RATIFICATION and AMENDMENT is entered into by and between the Oak Trace Homeowner's Association, a Texas non-profit corporation (the "Association"), and the City of Beaumont, Texas (the "City"), and agreed to by all members of the Association, all being the collective owners of all Lots depicted on the Plat, as defined below. WHEREAS, on July 5, 1984, the plat of OAK TRACE ADDITION was filed under Volume 14, Page 169, Map Records, Jefferson County, Texas (the "Plat") and the Declaration of Covenants, Conditions and Restrictions of OAK TRACE ADDITION was filed under Film Code No. loo 66 2383, Official Public Records of Jefferson County, Texas (the "Declaration"); WHEREAS, the Plat and Declaration were executed by David E. Bernsen, James L. Gonzales, Craig J. Sherlock, and Michael R. Jenkins, as partners of West Trace Development, a Texas general partnership, the owner of the real property described on Exhibit "A" which was the subject of the Plat and Declaration; WHEREAS, the Plat depicts a 27' Private Drive as the means of ingress and egress to and from OAK TRACE ADDITION and Delaware Street, a dedicated and platted public street and a 24' Private Drive as (i) the means of ingress and egress to and from each Lot and the 27' Private Drive and also (ii) the means of traversing within OAK 1 WHEREAS, the definition of "Common Area" in Article I, Section 4 of the Declaration tacitly includes the 27' Private Drive and the 24' Private Drive, while Article III, Section 1 refers to "... that right of the Association to dedicate or transfer all or any part of the Common Area to any municipality... ", but "No such dedication or transfer shall be effective unless an instrument agreeing to such dedication or transfer signed by two-thirds (2/3rds) of the members has been recorded."; WHEREAS, Article IV, Section 1 states that "Every owner of a Lot... shall be a Member of the Association...", with Article IV, Section 2 providing that "...each Member shall be entitled to one (1) vote for each Lot in which it holds an interest... "; WHEREAS, the owners of all Lots, comprising one -hundred percent (l00%) of the voting Members of the Association, desire to, and hereby do, agree to the dedication of the 27' Private Drive and the 24' Private Drive in OAK TRACE ADDITION to the public by and through the City; WHEREAS, in consideration of the foregoing dedication, the City hereby accepts such dedication of the 27' Private Drive and the 24' Private Drive to the public; WHEREAS, in consideration of the foregoing dedication and acceptance, it is therefore necessary to confirm and ratify the Plat and Declaration so that all references to the 27' Private Drive and the 24' Private Drive shall hereafter be amended to read "27' Public Street" and "24' Public Street", respectively, such that the dedication of those drives and streets reflected upon said Plat as the 27' Private Drive and the 24' Private Drive are to public use forever; and WHEREAS, there exists the necessities of the ratification and amendment of said UN—M7019 R. -me N NOW, THEREFORE, PREMISES CONSIDERED, the Association and City, with the agreement of all Lot owners, do hereby ratify and amend the Plat and Declaration, and dedicate the 27' Private Drive and the 24' Private Drive to the public use forever. Being understood that the City shall not be responsible for the maintenance of any common area, parking area, driveway or median. The City will only accept responsibility for maintenance of the existing, named, paved roadway. EXECUTED this the day of )2019. AGREED BY ALL ASSOCIATION MEMBERS / LOT OWNERS: OAK TRACE HOMEOWNERS ASSOCIATION, a Texas non-profit corporation IM Bernadette Toups, President CITY OF BEAUMONT, TEXAS LE Name: Title: Donald Lighty and Anna Lighty (Lot 1 owners) Mick Dubea and Pat Dubea (Lots 2 & 3 owners) 3 "Association" "City" Scott McKenney and Joan McKenney (Lot 4 owners) Sean Healey and Rebecca Healey (Lot 5 owners) Rodgers Ellis and Delores Ellis (Lots 6 & 7 owners) David Ledyard and Mary Ledyard (Lot 8 owners) Wyatt Snider and Scarlett Snider (Lot 9 owners) Donald Maloneyvand Suzanne Malon (Lot lo owners) Steven Toups and Bernadette Toups (Lot 11 owners) Bryan Mathews and Lisa Mathews (Lot 12 owners) Zack Hawthorne and Kara Hawthorne (Lot 13 owners) James Chesnutt and Irene Chesnutt (Lots 14 & 15 owners) Michael Smith and Mary Ann Smith (Lot 16 owners) Patrick Maloney and Amy Maloney (Lot 17 owners) Barry Berndt and Susan Berndt (Lot 18 owners) Rodolfo Sotolongo and Nereida Sotolongo (Lots 19 & 20 owners) "Lot Owners" STATE OF TEXAS COUNTY OF JEFFERSON This instrument was acknowledged before me on the day of , 2019, by BERNADETTE TOUPS, as President of OAK TRACE HOMEOWNERS ASSOCIATION, a Texas non -corporation, on behalf of said corporation. Notary Public, State of Texas STATE OF TEXAS § COUNTY OF JEFFERSON § This instrument was acknowledged before me on the day of , 2019, by , as of the CITY OF BEAUMONT, TEXAS, on behalf of said city. Notary Public, State of Texas 13 100 E6 2383. 5708 4 2 0 4 9 DECLARATION OF COVENANTSi CONDITIONS AND RESTRICTIONS OAK TRACE BEAUMONT, TEXAS THIS DECLARATION, made on the date hereinafter iet forth. by WEST TRACE DEVELOPMENT, a Texas Partnership composed of DAVID E. BERNSEN, JAMES L. GONZALES, MICHAEL R. JENKINS and CRAIG J. SHERLOCK, Partners, all of Beaumont, Jefferson County, Texas, and hereinafter jointly referred to as "Declarant". W I T N E S S E T Hi WHEREAS, Declarant is the owner of certain property known as OAK TRACE, an Addition to the City of Beaumont, County of Jefferson, State of.Texas, which is more particu- larly described by metes and bounds in Exhibit "A" attached hereto and made a part hereof and initialed by the parties for identification, as shown and reflected by the Final Plat thereof record J or to be 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 described above shall be held, sold and conveyed subject to the following easements, restrictions, convenants and conditions, which shall constitute convenants running with the land and shall be binding on all parties having any right, title or interest in the described proper- ties or any part thereof, their heirs, successors and assigns and shall inure to the benefit of each owner thereof. ARTICLE I DEFINITIONS Section i. "Association" shall mean and refer to OAK TRACE HOMEOWNERS ASSOCIATION, a Texas Non -Profit Corporation, its successors and assigns. L nd GE 2384 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, inclA ing contract seller, b t excluding those having such interest merely as securityor the performance of an obliga- tion. Section 3. "Addition" shall mean and refer to the subdivided real property hereinbefore described. Section 4. "Common Area" shall mean all real proper- ty (including the improvements thereto) owned by the Associa- tion 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 thereof) and (ii) water, sewer and other utility lines and appurte- nances thereto lying, installed and maintained with the utility easements reflected and designated as such upon the Plat of the Addition. Section 5. "Lot" shawl mean and refer to any plat of land shown upon the recorded Plat of the Addition, with the exception of the Common Area. Section 5. "Member" shall mean every person or entity who holds membership in the Association. Section 7. "Declarant" shall mean WEST TRACE DEVELOPMENT, a Texas Partnership composed of DAVID E. BERNSEN, JAMES L. GONZALES, MICHAEL R. JENKINS and CRAIG J. SHERLOCK, Partners, or its successors. ARTICLE II PROPERTY SUBJECT TO THIS DECLARATION; ADDITIONS THERETO The real property whi:h is, and shall be; held, transferred, sold, conveyed, and occupied subject to this Declaration is designated as OAK TRACE, and is more particu- larly described by metes and bounds in Exhibit "A" attached hereto and made a part hereof and initialed by the parties for identification. ,, ARTICLE III PROPERTY RIGHTS Section 1. Owner's 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 that right of the Association to dedicate or transfer 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 I an instrument agreeing to such dedication or transfer signed by two-thirds (2/3rds) of the members has been recorded. Section 2. Delegation of Use. Any Owner may dele- gate, in accordance with the By-laws of the Association, his right of enjoyment 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, including Declarant or its successors, 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 membership: (a) CLASS A. The Class A Members shall be all Owners with the exception of the Declarant. After the Conversion Date, Declarant shall also become a Class A Member to the extent Declarant is the Owner of a Lot or Lots. (b) CLASS B. The Class B Member shall be the Declarant. The Class B membership of Declarant shall cease and become converted to Class A membership upon occurrence of the earlier of the following (the "Conversion Date"): 3 \ �y not be entitled to vote (except as provided for the levying of Special' Assessments for capital improvements under Article V, Section 4 of the Declaration and amendments to the Declar- ation under Article XI, Section Three therein). The Class B Member shall be entitled to one (1) vote for each lot in which it holds the interest required for membership. From and after the Conversion Date (and at anytime with respt:t to votes pertaining to Special Assessments for capital improvements and amendments to the Declaration), each Class A Member shall be entitled to one (1) vote for each Lot in which it holds the interest required for Association membership, where more than one person or entity holds such interest in any Lot, all such persons collectively shall be a single Member, and the vote for such Member shall be exer- cised as the several parties shall determine among them- selves, provided however, that in the aggregate no more than one (1) vote shall be cast with respect to each lot owned. 1� a member owns a Lot and in addition thereto owns a fraction of another Lot, then such Member's vote will be increased by the percentage in which that Member's interest bears to the tc':al lot. For example, if a Member owns one - Lot and one-half of another Lot, then that Member will be entitled to 1.5 votes. The membership of a person or entity in the Associa- tion shall terminate automatically whenever such person or entity ceases to be an owner, except that such termination shall not release or relieve any such person or entity from 4 env 66 2385 (i) when Declarant has sold or leased for a ` term in excess of forty (40) years its interest in seventy-five (758) percent of the total Lots ir, the subdivision to unrelated third parties. A sale or a lease for suchtermto an unrelated third p4rty shall it�glude a sale or lease to joint ventures or partnerships that include Declarant as a co -venturer or partnerl'or (ii) on the 15th day of January, 19851 or (iii) Such earlier date as may be established by Declarant in a supplemental Declaration to be recorded by Declarant. Until the Conversion Date, the Class A Members shall not be entitled to vote (except as provided for the levying of Special' Assessments for capital improvements under Article V, Section 4 of the Declaration and amendments to the Declar- ation under Article XI, Section Three therein). The Class B Member shall be entitled to one (1) vote for each lot in which it holds the interest required for membership. From and after the Conversion Date (and at anytime with respt:t to votes pertaining to Special Assessments for capital improvements and amendments to the Declaration), each Class A Member shall be entitled to one (1) vote for each Lot in which it holds the interest required for Association membership, where more than one person or entity holds such interest in any Lot, all such persons collectively shall be a single Member, and the vote for such Member shall be exer- cised as the several parties shall determine among them- selves, provided however, that in the aggregate no more than one (1) vote shall be cast with respect to each lot owned. 1� a member owns a Lot and in addition thereto owns a fraction of another Lot, then such Member's vote will be increased by the percentage in which that Member's interest bears to the tc':al lot. For example, if a Member owns one - Lot and one-half of another Lot, then that Member will be entitled to 1.5 votes. The membership of a person or entity in the Associa- tion shall terminate automatically whenever such person or entity ceases to be an owner, except that such termination shall not release or relieve any such person or entity from 4 66 2387 any liability or obligation incurred under or in any way connected with the Association or the Declaration during the period or ownership, nor impair any rights or remedies which the Association or any other owner has with regard to such former owner. ARTICLE V ASSESSMENTS Section t. Lien and Personal Obligation of Assess- ments. Declarant, for each Lot owned by it in the Addition, hereby covenants, and each Owner of a Lot in the Addition is hereby deemed to covenant by acceptance of owner's .deed for such Lot, whether or not it shall be so expressed in Owner's 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 of each Lot against which such an assessment is made. Each such assessments, together with interest, costs, and reasonable attorneys' fees shall also be the personal obligations of the person or per- sons who owned the Lot at the time the assessment fell due, but such personal obligation shall not pass to the successor in title to such person or persons unless expressly assumed by them. Section 2. Purpose of Annual Assessments. The annual assessments levied by the Association shall be used exclusively: (i) to promote the health, safety, and welfare of the residents in the Addition; and (ii) for the improve- ment and maintenance of the Common Area within 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) Maintenance and repair of the street situated on � R the Common Area within the Addition) and water, sewer, storm drainage and other utility lines in or serving the Common Area. (c) Fire insurance (covering the full insurable replacement value of the improvements on the Common Area, with extended coverage. (d) Liability insurance insuring the Association against any and all liability to the public, to any Owner, or to the invitee, tenants and contract purchaser of any Owner, arising'out of their occupancy and/or use of the Common Area. The policy limits shall be ::et by the Association, and shall be 'reviewed at least annually and increased or decreased in the discretion of the Association. (e) workmen's compensation insurance to the extent necessary to comply with applicable laws, and any other in- surance d,.emed necessary by.the Board of Directors of the Association. t (f) 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. (g) Any other materials, supplies, labor, services, maintenance, repairs, insurance, taxes, or assessments which the Association is requiredto secure or pay pursuant to the terms of this Declaration or by law, or which shall be neces- sary or proper in the opinion of the Board of Directors, for the benefit of Lot owners, or for the enforcement of these restrictions. (h) It. addition to the maintenance of the Common Area, the Association shall provide the following: (i) mowing, trimming and care of grass and shrubbery on the exterior side of the perimeter fence; and (ii) maintenance and repair of the fence surrounding the addition. F 100 66 2389 Section 3. Power to Fix Annual Assessments. The power and authority to fix and levy the annual assessments shall rest exclusively with the Board of Directors of the Association, and when determined and fixed by the Board of Directors as herein provided, same shall be final•, conclusive and binding upon each Lot Owner, his heirs, legal represents - tines, successors and assigns, including contract pur- chasers. Section 4. Special Assessments for Capital Improve- ments. 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 foe 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. Any special assessment shall have the assent of two-thirds (2/3rda) of the vot,.• of the Members who are voting in parson or by proxy at a meeting duly called for this purpose. Section 5. Notice and Quorum for Action Under Section 4. written notice of any meeting called for the purpose of taking any action authorized under Section 4 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 (5011) or more of all the votes of membership shall constitute a quorum. If the required quorum is not present, another meeting may be called subject to the same notice requirement and the required quorum at the subsequent meeting shall be one-half (1/2) of the required quorum at tt.j preceding meeting. No such.subsequent meeting shall be held more than sixty (60) days following the preced- ing meeting. I 100 66 Z?0 Section 6. Uniform Rate of Assessment. Annual and special assessments must be fixed at a uniform rate for all Lots and shall be collected on a monthly basis. Section 7. Date of commencement of Annual Mainte- nance Assessments; Due Datesf. The annual maintenance assQss- ments provided for herein shall commence as to each Lot on the first day of the calendae month next following the month in which the conveyance of a. Lot by the Declarant to an Owner occurs. 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 Directors 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 Association shall, upon demand, for ar reason- able 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 certifi- cate 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 8. Effect of Nonpayment of Assessments; Remedies of Association. Any assessment not paid within ten (10) days of the dun date shall bear interest from the due date at the highest leo•.1 rate provided by law at the time of non-payment. To secure the prompt payment of the aforemen- tioned assessments, a lien is hereby created and granted for the benefit of the Association upon each Lot, and all improvements, additions, fixtures and appurtenances herein- after placed thereon. The Association may bring an action by t law against the Owner personally obligated to pay the same, 8 190 66 2391 or foreclose the lien against the property. No Owner may waive or otherwise escape liability for the assessments pro- vided for herein by non-use of the Common Area or abandonment of Owner's Lot. Section 9. Power of Sale. To secure and enforce the payment of said assessments, and for the auxiliary and cumu- lative enforcement of said lien hereinabove created, Declar- ant has granted, sold and conveyed and by these presents does grant, sell and convey unto Craig J. Sherlock, Trustee, of Jefferson County, Texas, and his substitute or successors, the hereinbefore described real property and all improve- ments, 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, t.. warrant and forever 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 -wits That whereas, Declarant, its successors and assigns may here- after 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 cove- nants and agreements herein contained and make prompt payment of the assessments hereby secured as the same shall become due and payable, then this conveyance shall become null and void and of no further force and effect. That in the event of default in the payment of any assessment hereby secured, in accordance with the terms here- of, it shall thereupon, 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 conclu- 9 ! QO 66.2392 lively presumed) to enforce this trust and make sale of the above described and conveyed property, or any portion there- of, as provided in Article 3010, Revised Civil Statutes 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 par- cels as the Trustee acting may elect, and mace due conveyance to the purchaser or purchasers, with general warranty binding the grantor, grantor's heirs, legal representatives, Succes- sors and assigns; and out of the money arising from such sale, the Trustee acting shall fi;at pay all expenses of advertising said sale and making the conveyance, and then pay to the Association, the full amount of assessments owing, interest thereon, and reasonable attorneys' fees, rendering the balance of the sales price, if any, to grantor, grantor's heir,, legal representatives, successors or assignsl 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, grantor's heirs, legal representatives, successors and assigns. In case of the absence, resignation, death, inabil- ity, 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 with- out cause the Trustee or any substitute 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 empowered 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 100 66 2393 hold, possess and execute all the rights, title, powers and duties herein conferred upon the Trustee named hereins 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 subse- quent exercise thereof. It is especially agreed that, in the event of a fore- closure under the powers granted herein, the person in pos- session of said property shall thereupon become the tenant - at -will of the purchaser at such foreclosure sale, and should such tenant refuse to surrender possession of said property upon demand, the purchaser shall thereupon,,at hi■ or her option, be entitled to institute and maintain the statutory a. tion 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 bringing of one character of action small not preclude the other, and the same may be exercised separately or simultaneously. Section 10. Subordination of the Lien to Mortgages. The lien of the assessments provided for herein shall be subordinate to any purchase money mortgage or any constitu- tional mechanic's and materialman's lien contract, and/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 assessments therea.-ter becoming due or from the lien thereof. Section 11. Exempt Property. The following property subject to this Declaration shall be exempted from the assessments, charges and liens created herein: (a) all properties to the extent of any easement or other interest W 100 66 2304 therein. dedicated and accepted by the local public authority and devoted to public usel 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 thereont (b) all Common Area as defined in ARTICLE I, Section 4 hereof as it applies to liens although assessments and charges may be made on this property? 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. Notwithstanding any provision herein, no land or improvements devoted to dwelling use shall be gxempted from sale, assess— ments, charges or liens. Section 12. 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 individual assessment account shall be transferred or debited or credit— ed to another account. ARTICLE VI OWNER'S OBLIGATION TO REPAIR AND MAINTAIN; OBLIGATION TO 'REBUILD Section 1. Owner's Obligation to Repair and Maintain Residence. Each Owner, shall, at Owner's sole cost and expense, perform such repairs and maintenance as shall be required to keep Owner's residence in a condition comparable to the condition of such residence at the -time of its initial construction, excepting only ordinary wear and tear. Addi— tionally, each Owner shall maintain Owner's yard area and all sidewalks and driveways on Owner's 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 12 . 10-9 66 2395 for more than forty-five. (45) days from delivery of written notice from the Association to the Owner (or, if more than one (1) Owner, to any of them) specifying the maintenance or repairs required to be made,'the Association 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 Associa- tion in the month next following the delivery to the Owner (or, if more than one (1) Owner, to any of them) of a written itemized statement of coats of such maintenance and repairs. This assessment shall be secured by the same lion 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 othe. 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 Owner or Owners. ARTICLE VII ARCHITECTURAL CONTROL Section 1. Authority of Architectural Control Committee. No building, fence, wall or other structure shall be commmenced, erected, placed or maintained upon any Lot in the Addition or upon any portion of the Common Area, nor shall anv 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 same, have been submitted to and 13 approved in writing by the Architectural Control Committee as to the quality of materials, the ha~mony of external design and location in relation to other existing or planned struc- tores and overall topography.' Plans and specifications shall reflect all driveways and sidewalks required to serve the Lot, even though the same, in whole or in part, extend beyond the perimeter boundaries of the Lot. The Architectural Control Committee shall give or withhold approval (as is in the judgmet,t of the Committee proper) of all matters set forth above. In the event the Architectural Control Commit- tee fails to approve or disapprove plans and specifications within thirty (34) days after same are submitted to it in writing, approval will not be required and the related covenants will be deemed to have been fully complied with. Section 2. Composition of Committees 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 DAVID E. BERNSEN, JAMES L. GONZALES, MICHAEL R. JENKINS and CRAIG J. SHERLOCK 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 represent- ative to •act for it. No member of the Committee or its designated representative shall be entitled to demand or receive any compensation or fee as a condition to the Member's examination or approval of plans or specifications submitted or to be submitted to the Committee hereunder. Upon the completion of construction of a residence upon each and every Lot in the Addition, the Architectural Control Committee may, by instrument, in writing, executed by a majority of the then members of the Architectural Control 14 !3d 06 2391- Committee, 391 Committee, surrender its authority, powers and duties under this ARTICLE to the Board of'Directors of the'Association or to a committee appointed by the Board of Directors.' ARTICLE VIII MAINTENANCE BY ASSOCIATION Section 1. Maintenance of Common Area. It shall be the duty and obligation of the Association to (i) maintain and repair the Common Area of the Addition, together with all structures and improvements thereonr (ii) maintain and repair all water, sewer, storm drainage and other utility lines in ur serving the Common Area (which are not dedicated to general public use); (iii) maintain and repair streets situated on the Common Area within the Addition; and (iv) maintain the perimeter fence and the exterior side of the shrubbery along the perimeter fence. ARTICLE IX 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. The use of satellite dishes, swimming pools and tennis courts are permitted if not in violation with clauses elsewhere contained herein; provided specifically, satellite dishes must be constructed and kept at ground level and not be visible from the sub— division streets. Section 2. Obstruction of Common Area. There shall be no obstruction of the Common Area. Note,.ng 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 Owners shall permit anything to be done or kept in the Common Area which will result in the cancellation of insurance on any part of the Common Area, or 15 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 for three --fourths (3/4) 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 appurtenant to a dwellingt nor shall any such boat, trailer, truck, camping or recreational vehicle be parked upon a street or driveway in the Addition on a "perma- nent basis" (as hereinafter defined). A "permanent basis", as that tern^ is used above, shall mean any period of forty- eight (48) consecutive hours or any period of twelve (12)• consecutive hours on any twot(2) consecutive days. No repair work, dismantling or assembling of motor vehicles or any other machinery or equipment shall be permitted in any street, drive, driveway or yard adjacent to the Common Area, or in the Common Area. section S. Signs. No sign of any kind shall be dis- played to public view on any Lot or building except one (1) sign of not more eight (8) square feet in area advertising the merits 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 6. Temporary Structures. No structures of a temporary character, trailer, basement, tent, shack, barn, 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 struc— tures as is customary in connection with such construction and sale of such property, including, but without limitation, storage areas, construction yards, signs, model units and sales offices. 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 by the Declarant or any subsequent owners deriving title to the property herein. Section 8. Livestock and Poultry. No animals, live— stock, 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 pLovided 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 thg Common Area shall be used or maintained as 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 author— ity 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. Owner's Maintenance. The Owner shall maintain and keep in repair the following equipment and lines located outside the residence: air conditioning compressor 17 100. 66 2400 condenser, including pipes and electrical lines connecting o , same to the residence, sanitary sewer lima 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 thl electric utility companyoa, junction box or transformer, �Iectric circuit breakers, a�A portion of natural gas and/or telephone service lines located on the Lot but not maintained by the gas and/or telephone compaines. An Owner shall do no act or 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 12. Annoyance. No activity shall be carried on upon any Loot or the Common Area which might reasonably be considered as giving annoyance to neighbors or ordinary sensibilities and which might be calculated to reduce the desirability of the Addition a!s a residential neighborhood, even though such activity be in the nature of a hobby and not 4 carried on for profit. 1 Section 13. Minimum Square Footage Requirements. Wo one story or split levee. dwelling shall be permitted on'any Lot in the Addition in which the living floor area of the main structure (including enclosed utility and storage rooa&, but excluding open porches, carports and garages) shall be less than two thousand five hundred (2,500) square feet; nor shall the first floor of any two story or story and one-half dwelling on any Lot have less than one thousand five: hundred (1,500) square feei. of such living area or a total of such living area of less than three thousand (3,000) square feet. Section 14. Exterior Construction Materials. Any dwelling and all structures appurtenant thereto constructed on any Lot in the Addition shall have the exterior thereof constructed of wood, stone, or brick, stone or brick veneer, stucco, or other masonry material. This requirement may be waived by the Architectural Control Committee, or by its duly authorized representative, provided such Committee or repre- sentative shall expressly approve (in advance of commencement. of construction) the substitution of other exterior construc- tion materials which shall, in the sole opinion of the Com- mittee 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 15.' Minimum Setback Requirements. No struc- ture shall be located nearer to the front Lot line than the building setback lines shown on the recorded Plat of the Addition, nor shall any structures other than fences and driveways be located nearer than twenty (20) feet to any side Lot Line. Sectia, 16. Garage and Outbuilding. No garage doors shall face the subdivision streets. No detached build- ing, structure, or other outbuildings, excluding detached garages, shall be visible from the subdivision street or erected nearer to the front lot line than a line parallel with the street and twenty (20.) feet in the rear of the main residential structure upon said Lot, provided however, this requirement may be waived by the Architectural Control Committee. Section 17. Gates in the Perimeter Fence. No gates shall be allowed in the perimeter fence. However, the Archi- tectural Control Committee may waive this requirement. Section 18. Roof Materials. in y dwelling and all structures appurtenant thereto on any lot in the addition shall have at least bird architect 80 (or equal) as a minimum roofing 're"quirement. Section 19. Driveway Construction. -b cuts from the subdivision streets cannot exceed 14 feet in width, and all driveways within 12 feet of ttie curb cannot exceed 12 feet in width; provided further, with respect to circular 100 66 -24U2 driveways in front of the dwelling, that portion of the driveway which is parallel to the subdivision street may have a width not to exceed 24 feet. Section 20. wooden.Wilndows. Wooden windows are required for front elevation of all dwelling structures, and wooden windows are required of the westerly elevation of the dwelling located on Lot 1 and the easterly elevation of Lot 20. Section 21. Fences. No fence shall extend beyond front building set back lines, and no fence shall be con- structed totally of wood. Ho fence shall have a height in excess of eight (8) feet. This requirement may be waived by the Architectural Control Committee. Section 22. Ceiling Height. The first floor of all dwelling structures will have a minimum ceiling height of nine (4) feet. Sect -')n 23. Buffer Area. The owners of the existing wooded and vegetation area located thirty (30) feet from and on a line parallel with the subdivision's northern boundary line will keep such area an uncut and undisturbed buffer area for a period of five (5) years from the date the city accepts the final plat of the subdivision. This provision does not relieve the owners of such property from the liabil- ities and responsibilities elsewhere contained herein, and in the event of conflicting language with the other provisions herein contained, the said other provisions will prevail. Section 24. Trees. No trees will be removed on any lot with the exception of those which are directly in the way of any approved improvements. Any dead trees or diseased trees are excepteO for removal provided a written description of such dead or diseased tree and the name, address and tele- phone number of the entity removing the tree(s) are given to the Board of Directors of the Association within seven (7) days prior to or after such removal. Section 25. Garage Sales. No garage sales are permitted. 1JG 66 24D3 - Section 26. Driveaay_Surfaces. No driveways may be constructed using uncolored smooth finished -concrete. All driveways must use material approved by the Architectural Control Committee. Brick, asphalt, colored concrete, and pea gr.vel are some of such materials which may be submitted fdr approval. ARTICLE X EASEMENTS Section 1. Blanket Easements. 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 Association, its seyiro® sentativen, 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 2. Other Easements. (a) Easements for installation and maintenance of utilities and drainage facilities are shown and designated as such on the recorded subdivision Plat and are hereby dedicated to public use by Declarant. Within the utility or drainage easements, no struc- tures, planting or other material shall be placed or permitted to remain which may damage or interfere with the installation and maintenance of utilities, or which may damage, interfere with, or change the direction of flow of drainage 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, reserva- tion, or right-of-way, and any such easement, reservations, and rights-of-way shall aL all times be 21 open and accessible to public and quasi -public, utili- ty corporations, their employees and contractors, and shall al -so be open and accessible to Declarant, its successors and assign , and to the Association, its agents, employees, an 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 much ease- ments, reservations, and rights-of-way are reserved. Easements for underground utilities may be crossed by walkways and driveways, provided that there are prior arrangements made for such crossings with the utility company or municipal agency furnishing service there- in, and provided further that Declarant or any utili- ty company or municipal agency furnishing service therein or using the easement shall not be liable.for ant damage done by them, their agents, employees, or contractors to such walkways and driveways in the course of installing, Maintaining or removing utility lines and appurtenances thereto within such ease - meets. ARTICLE XI GENERAL PROVISIONS Section 1. Enforcement. The Declarant, the Associa- tion, or any Owner, shall have the right to enforce, by any proceeding at law or in equity, including temporary restrain- ing orders and injunctive relief, all restrictions, condi- tions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration. Failure by the ..ssociation 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. To the extent that one of the parties above referred to has been successful on the merits or otherwise in the prosecution or 22 defense of any action, suit or proceeding, whether civil or criminal, such person shall be indemnified against such expenses (including costs and attorney's fees) actually and reasonably incurred by such party in connection therewith. 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 restric- tions of this Declaration shall run with and bind the land, for a term of twenty (20) years from the date this Declara- tion is recorded, after which time they shall be automatical- ly extended for successive periods of ten (10) years unless terminated, using the same procedure provided for amendments herein. This Declaration may be amended during the first twenty (20) year period by an instrument signed by not less than ninety percent (90%) of the Lot Owners, including Declarant or its successors, and thereafter by an instrument signed by not less than seventy-five percent (75%) of the Lot Owners, including Declarant or its successors. Any amendment must be recorded. Section d. Juinder by Lienholder. At the request of and as an accommodation to Declarant, Texas Commerce Bank (the "Bank"), 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 utili- ty, drainage and street easements in and upon said real property, as shown and designated upon the recorded subdivi- sion Plat thereof, and in the imposition of the restrictions, covenants and conditions hereinabove set forth in this Declaration; and, by its joinder herein, the Bank expressly subor-Ainates its lien, liens, superior title and equities to the easements herein dedicated ar,d to the restrictions, 23 160 66 24G6 covenants and conditions herein imposed. By its joinder herein, however, the Bank assumes nine of the liabilities, duties, covenants, or obligations of Declarant, its succes- s<-rs or assigns, nor does the rank make any representations, guarantees or warranties as to any undertaking, covenants oe 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 easements and to the imposi- tion of said restrictions, covenants, and conditions and to the subordination of its lien, liens, superior title and equities to said easements, restrictions, covenants and con- ditions. IN WITNESS WHEREOF, Declarant, WEST TRACE DEVELOP- MENT, a Texas Partnership composed of DAVID E. BERNSEN, JAMES L. GONZALES, MICHAEL L. JENKINS and CRAIG J. SHERLOCK, joined herein by Jerry Duty, Vice President - Texas Commerce Bank S� , have executed this Declaration on the 263�5day of aC , 1984, A.D. WEST TRACE DEVELOPMENT, 67 DECLARANT TEXAS CQMMERCE B K �`.aurlp•�. By: is V ce Presi ent .,. 'A T� s74r 'r shier 67 STATE OF TEXAS X COUNTY OFF JEFFERSON Before me on this day personally appeared known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and considerations therein expressed. Given my hand and official seal this�day of �U�� 1984. _ KYLIi ® 191 so s �I+AY•�sl�r eyo�+a�rwsv►a� a IMM 4.\f a J Stat of Texna STATE OF TEXAS COUNTY OF JEFFERSON Z Before me on this day personally appeared MkGVkASL_ 2 , 3et'jV_y'P5 known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and considerations therein expressed. Given my hand and official seal this Z�day of 1484. • Iltii L *t11lp1ttN--------.. • �/�'r'��"" tarPu a or the IyfM�sYir�l�tuH�l�37Q Stat-.ey f Texas STATE OF TEXAS X COUNTY OF JEFFERSON X Before me on this day personally appeared &MES L.. -� known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and considerations therein expressed. Given my hand and official seal this(_- day of �_� 1484. M&IIPAI _yj� q �/ r� 0"POr•arrrr No r u in an or t e. fes+ ��"siYdD� State o Texas '•, STATE OF TEXAS X COUNTY OF JEFFERSON Before ,�med on this day personally appeareUl,D6t2/c t�:P ,5ff2J known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and considerations therein expressed. "y,{.>!.'pj:''•. Given my hand and official seal this -day of 1984. . ��,Yp .tri�p}++ •'� '.'•., �*'; .:' ' otary ublic, in—and for the rrr P:.•:, y-4 �`( State of Texas Sue McCown THE STATE. OF TEXAS § COUNTY OF JEFFERSON § This nst-ument was �p�knowledp,ed before me on the �` Vice day of �`�ij 1 q , _ 19 7Y! , by JERRY B. DUTY, Senior President o 'fF,7iAS MMF.RCE BANK-BEAUMONT, NATIONAL ASSOCIATION, a national banking association, on behalf of said bank. PUB IC, STATE OF TEXAS C,. f •' :: �p�:j14 ype or print nauye �� My co ission expires 1 1 MARGARCT R DISORD, Noir hblir, ,�� .,; • !• 1a IM Slab ul T .qi. 'J My conmi.unn { It �M$ 12.53 acres of land out of the Hezekith Willimns League, Abstract No. 56, :,e'_ferson County, Texas arta being a part of 1045.36 acres of land descsibad . :n a Deed dated Fc3ruary 13, 1933 from Trea&av Land Ca::pany to Yount -Lae 04-1 Ca7pany recorded in Volur:ve 374, Page 113 of the Decal Records of Jefferson Co inti ,. Texas. The said 12.53 acres am core particularly described as follows: C2r•:Z�CI1.G at the intersection of the South right-of-way line of Delaware Street (8O feet aide) with the East right-of-aay line of Dowlen Road (100 feet aide) :r=v✓i North F,6°51'39" East with the South right-of-way line of said Delaware Street a distan-e of 1572.86 feet to a 1/2" iron rod set in said line for the corns_ and PLACE of 2M1`K-n2Z of the herein described 12.53 acre tract; ' \)o —h 86051139" East with said South right -of -gay line a di.starce of 'o57.n0 :eet to a 1/2" i_+ -on rod set at the intersection of said line with the East line of the aforesaid 1045.36 acre --act and the Northwest corner of an C.25 ace easeTent granted to the City o" Beau^ont on August 28, 1975; ::'SCE South 02.16'52" East with the bast line of said 1045.36 ace tract and the best line of said 0.35 acre tract a distance of 509.78 feet to a 1/2" isvn -cd set at the intersection of said lire_ with the North line of a 3.28 acre .-:act described as Easement \'o. 1 in a right -of -bray Deed dated July 1, 1972 A^= Prtcuction Carc&ny to Jeffer3on County Drairvge District No. 6 =e=rred in Volume 1746, Page 84 of the Geed Records of Jefferson County, T®ms; ^-= South 8F'OF'08" West with the ?north line of said 3.28 ace £aaenent No. 1 cistance of 1057.28 fleet to a 1/2" i=n rod set in said line; 14Drth 02°16'52" West with the gest li-ie of the herein described 12.53 ace tract a distance of 523.17 feet to the ?!A=- OF EMM1NI'C and containing 12.53 acres of land. HLED FOR RECORD /ice /, .: JEFrERSUH COU Hi�1.TtXA; JUL 5 11 074H aq Clerk`s Note: Map recorded in Volume 14 Page 169 in the Map Records of Jefferson County, Texas. EXHIBIT "A"