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Deed Restrictions   

TABLE OF CONTENTS
Opening Statement
Article I  Definitions
Article II General Provisions Relating To Use and Occupancy
    Section 2.1 Use Restrictions
    Section 2.2 Approval of Plans
    Section 2.3 Decoration, Maintenance, Alteration and Repairs
    Section 2.4 Construction
    Section 2.5 Walls, Fences and Hedges
    Section 2.6 Notices of Completion and Noncompliance
    Section 2.7 Reservations and Easements
    Section 2.8 Underground Electrical Distribution System
    Section 2.9 Non-Utilization Charge
    Section 2.10 Subdivision Entry Sign
    Section 2.11 Power to Convey and Dedicate Property to Government Agencies
Article III Management and Operation of the Subdivision
    Section 3.1 Management by the Association
    Section 3.2 Membership in Association
    Section 3.3 Voting of Members
    Section 3.4 Meeting of the Members
    Section 3.5 Election and Meetings of the Board of Directors
    Section 3.6 Disputes
    Section 3.7 Professional Management
    Section 3.8 Board Action in Good Faith
    Section 3.9 Indemnification
Article IV Maintenance Expense Charge and Maintenance Fund
    Section 4.1 Payment of Annual Maintenance Charge
    Section 4.2 Payment of Annual Maintenance Charge by Declarant
    Section 4.3 Maintenance Fund
    Section 4.4 Special Assessments
    Section 4.5 Enforcement of Annual Maintenance Charge
Article V Insurance
    Section 5.1 General Provisions
    Section 5.2 Subrogation
    Section 5.3 Individual Insurance
Article VI Fire or Casualty, Rebuilding
    Section 6.1 Rebuilding
Article VII Amendment to Declaration and Duration of Restrictions
    Section 7.1 Amendment by Declarant
    Section 7.2 Amendment
    Section 7.3 Duration
Article VIII Miscellaneous
    Section 8.1 Severability
    Section 8.2 Rules and Regulations
    Section 8.3 Exhibits
    Section 8.4 Number and Gender
    Section 8.5 Articles and Sections
    Section 8.6 Delay in Enforcement
    Section 8.7 Limitation of Liability
    Section 8.8 Enforceability
    Section 8.9 Remedies
    Section 8.10 Technical Corrections
    Section 8.11 Effect Upon Lien Rights
Exhibit A Description of Land
Exhibit B Rules and Regulations for Burkeshire Subdivision 
Exhibit C Metes and Bounds Descriptions of Drainage Easements

Modification and Amendment of
Declaration of Covenants, Conditions
and Restrictions for Burkeshire, A Subdivision

THE STATE OF TEXAS
COUNTY OF HARRIS
KNOW ALL MEN BY THESE PRESENTS:

WHEREAS, DHK INVESTMENTS, LTD., A Texas Limited partnership, (hereinafter referred to as "Declarant"), is the owner of that certain tract of land in Harris County, Texas, as described in Exhibit "A" attached hereto.

WHEREAS, Declarant desires to create a residential community thereon; and

WHEREAS, by instrument filed of record August 30, 2000, under Clerk’s File No. U595232; Official Public Records of Harris County, Texas, Declarant subjected the land to certain restrictions and covenants as therein set out (the “Original Restrictions”); and

WHEREAS, the Declarant desires to’ modify and amend the Original Restrictions as hereinafter provided.

NOW, THEREFORE, Declarant, for the purpose of enhancing and protecting the value, attractiveness and desirability of the lots or tracts constituting such subdivision, Declarant hereby declares that all of the real property described above and each part thereof shall be held, sold, and conveyed only subject to the following easements, covenants, conditions, and restrictions, which shall constitute covenants running with the land and shall be binding on all parties having any right, title, or interest in the above described property or any part thereof, their heirs, successors, and assigns, and shall inure to the benefit of each owner thereof:

 

ARTICLE I
DEFINITIONS

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As used in these Restrictions, the terms set forth below shall have the meanings indicated:

1. Annual Maintenance Charge - the assessment made and levied by the Board against each Owner and his Lot in accordance with the provisions of these Restrictions.

2. Articles of Incorporation - the Articles of Incorporation of the Association.

3. Association - Burkeshire Homeowners Association Inc., a Texas non-profit corporation, its successors and assigns.

4. Board or Board of Directors - the Board of Directors of the Association, whether such Board be appointed by Declarant or elected by the Members in accordance with the provisions of these Restrictions.

5. By-Laws - the By-Laws of the Association.

6. Commencement of Construction or phrases of similar import - the date on which foundation forms are set, for a Residence.

7. Common Area - “Common Area” shall mean all real property owned by the Association for the common use and enjoyment of the Owners. The Common Area to be owned by the Association at the time of conveyance of the first Lot shall be the real property on the Plat set out as Restricted Reserves.

8. Common Lot Drainage System - “Common Lot Drainage System” or “Lot Drainage System” shall mean the back yard drainage systems and side yard connections to the storm sewer systems within the street right-of-ways located in various Lots to provide drainage for portions of the Lots and for portions of the adjacent subdivisions that partially drained into the Subdivision prior to its development.

9. Declarant - DEK Investments, Ltd., a Texas limited partnership, and its heirs, successors and assigns.

10. Exterior Area - the portion of a Lot not covered by a Residence.

11. Land - that certain tract or parcel of land containing approximately 30.00 acres of land and situated in Harris County, Texas, such tract or parcel of land being more particularly described in Exhibit "A" attached hereto.

12. Lot or Lots - each of the Lots shown on the Plat recorded with the exception of the Common Area and. portion marked “Reserved", if any.

13. Maintenance Fund - any accumulation of (i) the Annual Maintenance Charges collected by the Board in accordance with the provisions of these Restrictions for the continued maintenance, insuring, repair and operation of, and the construction of improvements on, the Subdivision and (ii) interest, penalties, assessments and other sums and revenues collected by the Board pursuant to these Restrictions.

14. Member or Members - a member or members of the Association, as more particularly described in Article 3 hereof.

15. Mortgage - a security interest, mortgage, deed of trust, or lien instrument granted by an Owner to secure the repayment of a loan made to Owner, duly recorded in the Office of the County Clerk of Harris County, Texas, and creating a lien or security interest encumbering a Lot and all improvements thereon.

16. Owner or Owners - any person or persons, firm, corporation or other entity or any combination thereof that owns of record, title to a Lot.

17. Plans - the final construction plans and specifications (including a related site plan) for any building or improvement of any kind to be erected, placed, constructed, maintained or altered on any portion of the Land, together with detailed, final plans, specifications and descriptions of the landscaping to be installed or performed thereof, all in form and substance reasonably satisfactory to the Board, and prepared in conformity with the applicable provisions of the Restrictions.

18. Plat - the map or maps, plat or plats recorded under File No. U595231, Film Code No. 454102 of the Official Real Property Records of Harris County, Texas, relative to the Land and denoting same as Burkeshire, a Subdivision.

19. Residence - a single family residence and appurtenances constructed on a Lot.

20. Restrictions - the covenants, conditions, easements, reservations and stipulations that shall be applicable and govern the improvement, use, occupancy and conveyance of all the Lots and Common Areas in the Subdivision as set forth in this instrument or any amendment thereto.

21. Rules and Regulations - rules adopted and/or amended from time to time by the Board concerning the management and administration of the Subdivision for the use, benefit and enjoyment of the Owners. The initial Rules and Regulations are attached hereto as Exhibit “B" and incorporated herein by this reference.

22. Subdivision - ‘the Land, together with all improvements now or thereafter situated thereon and all rights and appurtenances thereto.

 

ARTICLE II
GENERAL PROVISIONS RELATING TO USE AD OCCUPANCY
 

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Section 2.1 Use Restrictions.

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No more than one Residence may be located on a single Lot. Each Owner shall use his Lot and his Residence, if any, thereon for single family residential purposes only. As used herein, the term “single” family residential purposes shall be deemed to prohibit specifically, but without limitation, the use of Lots for duplex apartments, rental garage apartments, or other rental apartment uses or for any business, professional or other commercial activity of any type. No Owner shall use or permit such Owner’s Lot or Owner’s Residence to be used for any purpose that would (i) void any insurance in force with respect to the Subdivision; (ii) make it impossible to obtain any insurance required by these Restrictions; (iii) constitute a public or private nuisance, which determination may be made by the Board in its sole discretion; (iv) constitute a violation of the Restrictions, any applicable law, ordinance, rule or regulation (including the Rules and Regulations); and (v) violate any applicable ordinance; (vi) create any noxious or offensive activity which determination may be made by the Board in its sole discretion.

Section 2.2 Approval of Plans  

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a) Except for the initial construction of improvements on each Lot by Declarant or its agents, servants, or licensees, no building or improvement of any kind shall be erected, placed, constructed, maintained or altered on any portion of the Land until the Plans for such building or improvement have been submitted to and approved in writing by the Board, and (if required) thereafter approved by the Planning and Zoning Commission.

b) In determining whether such Plans shall be approved, the Board may take into consideration factors deemed appropriate by the Board. Such factors may include, without limitation, the following:

1) Compliance with these Restrictions;

2) Quality of the building materials or improvements;

3) Quality of the proposed landscaping;

4) Harmony of external design of such building or improvement with existing and proposed buildings and improvements and with the design or overall character and aesthetics of the Subdivision;

5) Location of such building or improvement within the Lot on which it will be constructed or placed;

6) The number of square feet to be contained in such building or improvement;

7) Ratio of building area to the Exterior Area within such Lot;

8) Compliance with the Rules and Regulations; and

9) Compliance with the applicable laws, ordinances, rules or regulations of any county, state, municipal or other governmental authority having jurisdiction over the Subdivision.

c) The Board shall, acting in good faith, approve or disapprove the Plans in accordance with the following procedures:

1) Two (2) complete sets of Plans shall be delivered by the Owner to the Board at the address set forth in the Rules and Regulations.

2) If the Plans are approved by the Board, a letter of approval, including a description of qualifications or required modifications, if any, shall be prepared for the countersignature of the Owner. Such approval shall be dated .and shall not be effective for construction commenced more than si(6) months after such approval. If construction is not commenced within six (6) months after such approval, Owner shall not begin construction of any building or improvement of any kind until the corresponding Plans have been resubmitted and reapproved by the Board. in accordance with the provisions of this Section 2.2.

3) If the Plans are disapproved by the Board, one set of such Plans shall be returned marked "Disapproved" and shall be accompanied by a statement by the Board setting forth the reasons for disapproval.

4) If the Board fails to indicate its approval within thirty (30) days after receipt of Plans, it will be deemed that the Board has approved such Plans.

5) Except for the initial construction of a Residence on a Lot purchased from the Declarant, the Board shall require payment by any party who submits Plans for approval of a cash fee to compensate the Board for the expense of reviewing such Plans. The initial fee hereby established for the review of Plans is One Hundred and No/100 Dollars ($100.00). If the Board considers that the circumstances so warrant, the Board may increase or decrease such fee without the joinder or consent of any other party.

d) All decisions of the Board shall be final and binding and there shall be no review of any action of the Board. The Board shall have the right to delegate its rights and obligations under this Article 2 to an Architectural Review Board composed of individuals to be selected by the Board.

e) The Board shall have the right, exercisable at its discretion, to grant variances to the architectural restrictions in specific instances where the Board in good faith deems that such variance does not adversely affect the architectural and environmental integrity of the Subdivision or the common scheme of development. Variances may be granted when circumstances such as topography, natural obstruction, hardship, aesthetic or environmental considerations merit them to be granted. Variances of minimum interior living area not to exceed 225 square feet, may be granted for not more than ten percent (10%) of the Lots located within the Subdivision. All variance grants shall be in writing, addressed to the Owner requesting the variance, describing the applicable restrictions to which the variance is granted, listing conditions imposed on the granted variance and listing specific reasons for granting of the variance. Failure by the Board to respond within thirty (30) days to a request for a variance shall operate as a denial of the variance.

f) No approval of Plans and no publication of Rules and Regulations shall ever be construed as representing or implying that such Plans, or Rules and Regulations will, if followed, result in a properly designed structure. Such approvals and standards shall in no event be construed as a representation, warranty or guaranty by the Board that any structure will be built in a good or workmanlike manner. Neither Declarant, nor the members of the Board or its representatives, shall be liable in damages to anyone submitting Plans to the Board for approval, or to any Owner or lessee of any part of the Subdivision affected by these Restrictions, by reason of or in connection with the approval or disapproval or failure to approve any Plans and every Owner or lessee of any portion of the Subdivision agrees, by acquiring title thereto or interest therein, that he will not bring any action or suit against Declarant or the members of the Board, or their representatives, to recover any such damages.

g) In order to control the quality of construction and to reasonably insure that all residential construction (including the construction of the Residence and all other improvements on the Lot) are constructed in accordance with (a) the Plat, (b) the Restrictions, (c) applicable governmental regulations, (d) minimum acceptable construction standards as promulgated from time to time by the Board, and (e) Board Rules and Regulations, the Board or its agent may conduct certain building inspections and the Owner, in the construction of all improvements, shall hereby be subject to such building inspections and building inspection policies and procedures as established from time to time by the Board.

Section 2.3 Decoration, Maintenance, Alteration and Repairs.

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a) Subject to the provisions of Section 2.2, and subject to the Rules and Regulations, each Owner shall have the right to modify, alter, repair, decorate, redecorate, or improve such Owner's Lot, provided that all such action is performed in a good and workmanlike manner that causes minimum inconvenience to other Owners and does not constitute a nuisance. Notwithstanding the foregoing, if any of the above described action is performed without the prior approval of the Board of the Plans therefore in accordance with Section 2.2 hereof, the Board may require the Owner to remove or eliminate any paint, color, decoration, or other object situated on such Owner's Residence or Lot that is visible from any street or roadway or from any other Lot, if, in the Board’s sole discretion, such object detracts from the visual attractiveness of the Subdivision or is inconsistent with the design or overall character and aesthetics of the Subdivision.

b) Each Owner shall maintain his Lot, Residence, landscaping and improvements in good order and repair and attractive condition at all times. If any Owner fails to comply with the requirements of this Section 2.3(b), the Association may, but shall not be obligated to, without liability to such Owner or any occupant, in trespass, or otherwise, enter upon such Lot, maintain or repair any of the same, in which case such Owner shall upon demand pay the Association’s cost of same. Such indebtedness shall bear interest from the date that demand is made by the Association until paid at a rate set by the Board not in excess of the highest contract rate per annum allowed by law, but if no rate is set, then at the rate of eighteen percent (18%) per annum, and shall be secured in the same manner as the Annual Maintenance Charge, as provided in Section 4.5 hereof.

c) Any street lighting within the Subdivision shall be maintained by the Association in. a manner substantially equivalent to other first class quality private residential subdivisions and the Association shall comply with all rules, regulations and ordinances, including providing any required maintenance bond or other proof of compliance.

d) Maintenance and replacement of the landscaping installed or to be installed by the Association or Declarant along adjacent or within the Subdivision, maintenance and replacement of the Common Lot Drainage System installed or to be installed by the Association or Declarant within the Subdivision, and maintenance and replacement of fencing installed or to be installed by the Association or Declarant along the exterior boundary of the Subdivision’s Common Area shall be the responsibility of the Association.

Section 2.4 Construction.

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a) Without the prior written consent of the Board, no building material of any kind or character shall be placed or stored upon any Lot more than thirty (30) days before the construction of a structure or improvements is commenced. All materials permitted to be placed on a Lot shall be placed within the property lines of the Lot. At the completion of such building or improvements, any unused materials shall be removed immediately from the Lot. After Commencement of Construction of any structure or improvements on the Lots, the work thereon shall be prosecuted diligently, to the end that the structure or improvements shall not remain in a partly finished condition any longer than reasonably necessary for completion thereof. Unless otherwise authorized in writing by the Board prior to Commencement of Construction, the construction of any structure or improvements on a Lot shall be completed within nine (9) months from the date of Commencement of Construction, excepting delays due to strikes, war, acts of God, or other causes beyond the control of the Owner.

b) No structure of a temporary character, trailer (with or without wheels), mobile home (with or without wheels), modular or prefabricated home, tent, shack, barn, or any other out-building structure or building, other than the permanent residence to be built thereon, shall be placed on any Lot, either temporarily or permanently, and no residence house, garage or other structure appurtenant thereto shall be moved upon any Lot from another location. Notwithstanding the foregoing, Declarant and the Board each reserves the exclusive right to erect, place and maintain, and to permit builders to erect, place and maintain, such facilities in and upon the Land as in its sole discretion may be necessary or convenient during the period of and in connection with the sale of Lots, construction and sale of Residences and construction of other improvements in the Subdivision. Such facilities may include, but not necessarily be limited to, temporary office buildings, storage areas, signs, portable toilet facilities, mobile homes, trailers, and sales offices. Declarant shall also have the right to use a Residence situated on a Lot as an office or model home during the period of and in connection with construction and sales and resales operations in the Subdivision.

c) Only new construction materials (except for used brick) shall be used in constructing any structure or improvements situated on a Lot. Unless otherwise approved in writing by the Board, all garage interiors must be sheetrocked and painted. Unless otherwise approved in writing by the Board, each residence shall have brick, stucco or other masonry construction on at least fifty percent (50%) of its exterior wail area.

d) No window-mounted, roof-mounted, or wall-type air conditioner that is visible from any street shall be used, placed or maintained on or in any Residence.

e) Any sidewalks along, adjoining or parallel to public streets on any of the Lots shall comply with all governmental codes and regulations and shall be concrete or other material which may be permitted with the prior written consent of the Board.

f) All landscaping installed on any Lot shall be in accordance with the Plans approved by the Board. All landscaping of any Lot as provided for in the Plans approved by the Board shall be in a place within thirty (30) days following occupancy of the Residence located thereon (subject to extension of such time period for adverse weather conditions or other circumstances beyond the Owner’s reasonable control) and shall thereafter be kept and maintained in a clean, neat and attractive manner, in accordance with standards, if any, established by any Rules and Regulations.

g) Any exterior lighting of any Residence or Lot (or of any landscaping thereon) shall be subject to the prior written approval of the Board, pursuant to the requirements and procedures of Section 2.2 above.

h) Each Residence shall contain at least 1,800 square feet of interior living area.

i) Except for entrance markers installed or to be installed.at the entrance to the Subdivision, and except as may be approved in advance in writing by the Board, no fence, wall, or any other improvement shall be erected, placed or altered on any Lot at any point nearer to any street than the building setback as shown on the Plat.

 j) No external antenna shall be permitted on any Lot within the Subdivision if such antenna is more than ten (10) feet above the roof line of the Residence on such Lot, and no dish antenna or other similar type of antenna shall be placed in such a location on a Lot so as to be visible from any street within the Subdivision.

k) Any portion of concrete slab of any Residence exposed to view from any street or from any adjacent Residence shall be adequately screened by landscaping.

l) The design and construction of mailboxes and the design, materials and illumination (if any) of any house address number markers shall be subject to prior approval of the Board, pursuant to the requirements and procedures of Section 2.2 above. The cost of construction and maintenance shall be the responsibility of the Owner. In the event Common Area mailboxes are required by the U S. Postal Service, construction costs shall be the responsibility of the Declarant and maintenance will be the responsibility of the U.S. Postal Service and/or the Association.

m) No privy, except for porta-cans during the period of construction only, cesspool, septic tank. or water well shall be placed or maintained in the Subdivision without the prior written consent of the Board, granted or denied pursuant to the requirements and procedures of Section 2.2 above.

n) No sheep, goats, horses, cattle, swine, chickens or livestock of any kind shall be kept or harbored within the Subdivision, except that bona fide pets may be kept by an Owner unless and until any such pet becomes a nuisance as determined by the Board in its sole discretion, in which event such pet shall be promptly removed by the Owner from the Subdivision.

o) The drying of clothes in public view is prohibited, and the Owners or occupants of any Lots at the intersection of streets or adjacent to Common Areas or other facilities where the rear yard or portion of the Lot is visible to the public, shall construct and maintain a drying yard or other suitable enclosure to screen drying clothes from public view.

p) Garage doors visible from any street shall be kept in the closed position when the garage is not being used by the Owner or occupant.

Section 2.5 Walls, Fences, and Hedges.

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a) All fences and walls wherever located on a Lot must be ornamental iron, wood or masonry construction. No chain link fences shall be permitted, except to enclose swimming pools, and then only if they are not visible from any street or other Lot. All fences must comply with all applicable ordinances and the Rules. Any fences, or walls constructed by the. Association or Declarant for Common Areas shall be maintained and repaired by the Association.

b) Except for exterior perimeter Common Area boundary fences or walls, ownership of any wall, fence or hedge erected on a Lot, by Declarant or otherwise, shall pass with title to such Lot and it shall be the new Owner’s responsibility to maintain such wall, fence or hedge thereafter. In the event any Owner or occupant of any Lot fails to maintain said wall, fence or hedge and such failure continues after thirty (30) days written notice thereof, Declarant, his successors or assigns, or the Association, may at its option, without liability to the Owner or occupant in trespass or otherwise, enter upon such Lot and cause to be repaired or maintained or to do any other thing necessary to secure compliance with these Restrictions, and to place such wall, fence or hedge in a satisfactory condition, and may charge the Owner or occupant of such Lot for the cost of such work. The Owner or occupant, as the case may be, agrees by the purchase or occupancy of such Lot, to pay such charge immediately upon receipt of a written statement therefore. Such charge shall bear interest at the maximum rate permitted by law and be secured in the same manner as the Annual Maintenance Charge.

Section 2.6 Notices of Completion and Noncompliance.

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Except for the initial construction of improvements by Declarant, each Owner shall send a written notice of the completion (“Notice of Completion”) of such Owner’s construction of residential improvements to the Board and to the Association within fifteen (15) days after completion of such Owner’s construction. If, as a result of inspections or otherwise, the Board finds that any residential construction has been done without obtaining the approval of the Board or was not done in conformity with the approved Plans and plot plan, the Board shall notify the Owner in writing of the noncompliance, which notice (“Notice of Noncompliance”) shall be given, in any event, within sixty (60) days after the Board receives a Notice of Completion. The Notice of Noncompliance shall specify the particulars of the noncompliance and shall require the Owner to take such action as may be necessary to remedy the noncompliance. If for any reason other than Owner’s act or neglect, the Board fails to notify the Owner of any noncompliance within sixty (60) days after, receipt by the Board and the Association of the Notice of Completion, the improvements constructed by such Owner on the Lot shall be deemed in compliance if such improvements were, in fact, completed as of the date of the Notice of Completion. If, however, the Board issues a Notice of Noncompliance, the Owner shall commence to correct the noncompliance without delay. If the Owner does not correct the noncompliance within forty-five (45) days after receipt of the Notice of Noncompliance or commence, within ten (10) days after receipt of the Notice of Noncompliance, the correction of such noncompliance in the case of a noncompliance which cannot reasonably be expected to be corrected within forty-five (45) days (provided that such Owner diligently continues the removal of such noncompliance) the Board or the Association may, at its option, record a Notice of Noncompliance against the Lot on which the noncompliance exists, and/or may otherwise correct such noncompliance, and the Owner shall reimburse the Association, upon demand, for all expenses incurred therewith, which reimbursement obligation shall be a charge on such Owner’s Lot and shall be a continuing lien (secured by the same lien which secures the Annual Maintenance Charge). The right of the Board or the Association to remedy or remove any noncompliance shall be in addition to all other rights and remedies which the Board or the Association may have at law, in equity, or under these Restrictions to cure such noncompliance.

Section 2.7 Reservations and Easements.

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a) Declarant reserves the utility easements, easement for Subdivision fences and walls, roads and rights-of-way shown on the Plat and easement for the Subdivision Lot Drainage System for the construction, addition, maintenance and operation of all utility systems (which systems shall include systems for drainage purposes) now or hereafter deemed necessary by Declarant for all utility purposes, including systems of electric light and power supply, drainage, telephone service, cable television service, gas supply, water supply and sewer services, and including systems for utilization of services resulting from advances in science and technology. There is hereby created and Declarant hereby grants into the Association an easement upon, across, over and under all of the Land for ingress and egress for the purpose of installing, replacing, repairing and maintaining all utilities and Subdivision fences and walls and Lot Drainage System. By virtue of this easement, it shall be expressly permissible for the utility companies and other entities which supply services to install and maintain pipes, wires, conduits, service lines, or other utility facilities or appurtenances thereto, across and under the Land within the utility easements now or from time to time existing and from service lines situated within such easements to the point of service on or in any structure. Notwithstanding anything contained in this Section 2.7, no utilities or appurtenances thereto may be installed or relocated on the Land until approved by Declarant or, if applicable, the Board pursuant to the requirements and procedures of Section 2.2 above. The utility companies furnishing service shall have the right to remove all trees, shrubs, and grass situated within the utility easements shown on the Plat, and to trim overhanging trees and shrubs located on portions of the Land abutting such easements. Neither Declarant nor supplier of any utility or service using any easement area shall be liable to any Owner or to the Association for any damage done by either Declarant or such supplier, or their respective agents, employees, representatives or assigns, to any vegetation or landscaping in any such easement area as result of any activity relating to the construction, maintenance or repair of any facility.

b) Declarant and the Board reserve the right to make changes in and additions to all easements for the purpose of aiding in the most efficient and economic installation of utility systems and the Lot Drainage System.

c) An easement is hereby granted to the Association in and to the Subdivision “for the purposes of providing and maintaining utility services (including, without limitation, electricity, gas, water, sanitary sewer, storm sewer, telephone, television antenna, cable services, and similar services) to the Residences.

d) An easement is hereby reserved by Declarant and the Association to install, maintain and operate outdoor lighting facilities in and on trees or light standards within the building set-back areas of the Lots. The cost of installation, maintenance and operation of such lighting facilities shall be borne by he Association

e) An Easement is hereby reserved by Declarant and the Association to install, maintain and operate the Lot Drainage System within the Subdivision. The cost of installation shall be borne by the Declarant and the cost of maintenance and operation of such Lot Drainage System shall be borne by the Association.

Any use of the area containing any part of the Lot Drainage System by the Owner or occupant of the Lot, such as for landscaping, shall not effect the integrity or damage the Lot Drainage System. In such event, any cost or expense incurred by the Association to repair, replace or maintain the Lot Drainage System shall be paid by the Lot Owner immediately upon receipt of a written statement therefore from the Association. Such charges shall bear interest at the maximum rate permitted by law and be secured in the same manner as the Annual Maintenance Charge.

The Lot Drainage System effects the following Lots as more particularly shown on Exhibit C attached hereto and incorporated herein for all purposes, to-wit:

Lots 12-21 and Lots 2S-33, Block One (1)
Lots 12-19 and Lots 33-36, Block Three (3)

Additional Lots within the Subdivision may be added to the Lot Drainage System as determined reasonable and necessary by the Declarant or the Association.

Section 2.8 Underground Electrical Distribution System.

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An electric distribution system will be installed within the Subdivision which will be designated herein as Underground Residential Subdivision and which underground service area embraces all of the Lots of the Subdivision. This electrical distribution system may consist of overhead primary feeder circuits constructed on wood or steel poles, single or three phase, as well as underground primary and secondary circuits, pad mounted or other types of transformers, junction boxes, and such other appurtenances as shall be necessary to make underground service available. The Owner of each Lot containing a single dwelling unit shall, at his or its own cost, furnish, install, own and maintain (all in accordance with the requirements of local governing authorities and the National Electrical Code) the underground service cable and appurtenances from the point of electric company’s metering at the structure to the point of attachment at such company’s installed transformers or energized secondary junction boxes, such point of attachment to be made available by the electric company at a point designated by such company at the property line of each Lot. The electric company furnishing service shall make the necessary connections at said point of attachment and at the meter. Declarant has either by designation on the Plat of the Subdivision or by separate instrument granted or will grant necessary easements to the electric company providing for the installation, maintenance and operation of its electric distribution system and has also granted or will grant to the various homeowners reciprocal easements, providing for access to the area occupied by and centered on the service wires of the various homeowners to permit installation, repair and maintenance of each homeowner’s owned, and installed service wires. In addition, the Owner of each Lot containing a single dwelling unit shall at his or its own cost, furnish, install, own and maintain a meter loop (in accordance with the then current Standards and Specifications of the electric company furnishing service) for the location and installation of the meter of such electric company for each dwelling unit involved. For so long as underground service is maintained in the Underground Residential Subdivision, the electric service to each dwelling unit therein shall be underground, uniform  in character and exclusively of the type known as single phase, 120/240 volt, three wire, 60 cycle, alternating current.

The electric company (Company) has installed the underground electric distribution system in the Underground Residential Subdivision at no cost to Declarant (except for certain conduits, where applicable, and except as hereinafter provided) upon Declarant’s representation that the Underground Residential Subdivision is being developed for residential homes, all of which are designed to be permanently located where originally constructed (such category of dwelling units expressly to exclude mobile homes) which are built for sale or rent. Therefore, should the plans of the Declarant or the Lot Owners in the Underground Residential Subdivision be changed so as to permit the erection therein of one or more mobile homes, Company shall not be obligated to provide electric service to any such mobile home unless (a) Declarant has paid to the Company an amount representing the excess in cost, for the entire Underground Residential Subdivision, of the underground distribution system over the cost of equivalent overhead facilities to serve such Subdivision or (b) the Owner of each affected Lot, or the applicant for service to any mobile home, shall pay to the Company the sum of (1) $1.75 per front lot foot, it having been agreed that such amount reasonably represents the excess in cost of the underground distribution system to serve such Lot or dwelling unit over the cost of equivalent overhead facilities to serve such Lot or dwelling unit, plus (2) the cost of rearranging, and adding any electric facilities serving such Lot, which arrangement and/or addition is determined by Company to be necessary.

The provisions of the two preceding paragraphs do not apply to any future residential development in Reserve(s) shown on the plat of the Subdivision, as such plat exists at the execution of the agreement for underground electric service between the electric company and Declarant or thereafter. Specifically, but not by way of limitation, if a lot owner in a, former Reserve undertakes some action which would have invoked the above per front lot foot payment if such action had been undertaken in the Underground Residential Subdivision, such Owner or applicant for service shall pay the electric company $1.75 per front lot foot, unless Declarant has paid the electric company as above described. The provisions of tie two preceding paragraphs do not apply to any future nonresidential development in such Reserve(s).

Nothing contained in this Section 2.8 shall be construed to allow the Owner of each Lot to maintain more than one single family residence on a single Lot or to violate any of the provisions of the Restrictions.

Section 2.9 Non-Utilization Charge.

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Reliant-Entex, Inc. has agreed to provide natural gas service to all Lots in the Subdivision, provided certain minimum usage is made of the service. Pursuant to the contract providing such service, all Residences shall have a minimum of gas water heating, and gas central comfort heating, or pay a non-utilization fee. If, however, any Residence completed in the Subdivision does not utilize both gas water heating and gas central comfort heating appliances, then the Owner of such Residence at the time of constructing such improvements shall pay to Reliant-Entex, Inc. the non-utilization of gas facilities charge set by Reliant-Entex, Inc. for such Residence. This non-utilization charge shall be due thirty (30) days from completion of the non-utilizing Residence. In the event this non-utilization charge is not paid timely by the Owner of the non-utilizing Residence, after demand is made for such payment, the Declarant or Association may, at their option, pay such charge and the payment so made, if any, shall be secured by the lien securing the payment of the Annual Maintenance Charge described in the Restrictions, which lien shall only be extinguished by payment of such charge, plus interest on the amount paid by the Declarant or the Association until Declarant or the Association is reimbursed therefore at the lesser of: (i) eighteen percent (18%) per annum or (ii) the maximum rate permitted by applicable law.

Section 2.10 Subdivision Entry Sign.

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The Association shall maintain, repair and replace any entry marker installed or to be installed by Declarant or the Association for the benefit of the Subdivision at the entrance of the Subdivision. Such entry rnarker, if any, shall be installed and maintained in accordance with all applicable regulations and ordinances, and the costs of such maintenance, repair and replacement shall be borne by the Association.

Section 2.11 Power to Convey and Dedicate Property to Government Agencies.

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The Declarant and/or the Association shall have the power to grant, convey, dedicate or transfer any Common Areas or facilities to any public or governmental agency or authority for such purposes and subject to such terms and conditions as the Declarant and/or the Association shall deem appropriate, which power may be exercised (i) by Declarant prior to the first meeting of Members of the Association held in accordance with Sec. 3.4 herein, and (ii) by the Association from and after the first meeting of Members of the Association held in accordance with Sec. 3.4 herein, with the approval of not less than a majority of the members of the Association.

 

ARTICLE III
MANAGEMENT AND OPERATION OF THE SUBDIVISION

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Section 3.1 Management by the Association.

The affairs of the Subdivision shall be administered by the Association. The Association shall have the right, power and obligation to provide the management, repair, replacement, administration, insuring and operation of the Subdivision as herein provided for and as provided for in the By-Laws and in the Rules and Regulations. The business and affairs of the Association shall be managed by its Board of Directors. The Declarant shall determine the number of directors and appoint, dismiss and reappoint all of the members of the Association’s Board of Directors to insure the stability of the Association and to administer the Association’s and the Subdivision’s affairs, until the first meeting of the Members of the Association is held in accordance with the provisions of Section 3.4 hereof and a Board of Directors is elected. The Board of Directors elected at the first meeting of Members of the Association is herein called the “First Elected Board.” The Board of Directors appointed by Declarant pursuant to the provisions of this Section 3.1 herein referred to as the “Appointed Board."

The Appointed Board may engage the Declarant or any entity, whether or not affiliated with Declarant, to perform the day to day functions of the Association and to provide for the maintenance, repair, replacement, administration and operation of the Subdivision. Without limiting the generality of the foregoing, the Association, acting through the Board, shall be entitled to enter into such contracts and agreements concerning the Subdivision as the Board deems reasonably necessary or appropriate to maintain, insure and. operate the Subdivision as a viable single family residential development, including, without limitation, the right to grant utility and other easements, for uses the Board shall deem appropriate and the right to enter into agreements with adjoining or nearby land owners with governmental entities or matters of maintenance, trash pickup, repair, administration, security, traffic, or other matters of mutual interest.

Section 3.2 Membership in Association.

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Each Owner, including Declarant during the period of time in which Declarant owns any Lot, shall be a Member in the Association and such membership shall terminate automatically when such ownership ceases. Upon the transfer of ownership of a Lot, however achieved, the then Owner thereof shall, concurrently with such transfer, become a Member of the Association.

Section 3.3 Voting of Members.

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Each Member, including Declarant, shall have a vote or votes in the Association as set forth in these Restrictions and in the By-Laws. The total voting power shall be the sum of the votes that correspond to all of the Lots, with all votes in the Association except as provided in these Restrictions and the By-Laws to be on the basis of one vote for each Lot. In the event that ownership interests in a Lot are owned by more that one Member of the Association, such Members shall exercise their right to vote in such manner as they may among themselves determine, but in no event shall more than one vote be cast for each Lot. Such Owners shall appoint some of them as the Member who shall be entitled to exercise the vote of that Lot at any meeting of the Association. Such designation shall be made in writing to the Board and shall be revocable at any time by actual written notice to the Board. The Board shall be entitled to rely on any such designation until written notice revoking such designation is received by the Board. In the event that a Lot is owned by more than one Member of the Association and no single Member is designated to vote on behalf of the Members shall be allowed to vote. All Members of the Association may attend meetings of the Association and all voting Members may exercise their vote at such meetings either in person or by proxy. The Declarant may exercise the voting rights with respect to Lots owned by it.

The Association shall initially have two classes of voting memberships.

a) Class "A" Members. Shall be all Owners with the exception of the Declarant and shall be entitled to one vote for each Lot in which they hold the interest required for Membership by Section 3.2 above.

b) Class "B" Member. Shall be Declarant and shall be entitled to three (3) votes for each Lot in which they hold the interest required for Membership by Section 3.2. Class B membership shall cease and be converted to Class A membership on the happening of either of the following events: i) when the total votes in the Class A membership equals the total votes outstanding in the Class B membership; or ii) four (4) years from the date hereof.

Section 3.4 Meeting of the Members

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a) The first meeting of the Members of the Association shall be held when called by the Appointed Board upon no less than ten (10) and no more that fifty (50) days prior written notice to the Members. Such written notice must be given not later than thirty (30) days after one hundred twelve (112) of the one hundred forty (140) Lots shown on the Plat have been sold by the Declarant, a deed recorded in the Office of the County Clerk of Harris County. The First Elected Board shall be elected at the first meeting of the Members of the Association.

b) Thereafter, annual and special meetings of the Members of the Association shall be held at such place and time and on such dates as shall be specified in the By-Laws.

Section 3.5 Election and Meetings of the Board of Directors

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The Board of Directors shall be elected and shall meet in the manner set forth in the By-Laws.

Section 3.6 Disputes

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In addition to its other powers conferred by law or hereunder, the Board shall be empowered to create procedures for resolving disputes between Owners and the Board of the Association, including appointment of committees to consider and recommend resolution of or to resolve any disputes.

Section 3.7 Professional Management

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Declarant or the Board may retain, hire, employ or contract- with such professional management as the Board deems appropriate to perform the day to day functions of the Association and to provide for the construction, maintenance, repair, landscaping, insuring, administration and operation of the Association as provided for herein and as provided for in the By-Laws.

Section 3.8 Board Action in Good Faith

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Any action, inaction or omission by the Board made or taken in good faith shall not subject the Board or any individual member of the Board to any liability to the Association, its Members or any other party.

Section 3.9 Indemnification

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The Association shall indemnify any person who serves as a member of the Board or a Committee of the Association against expenses, including costs and reasonable attorney fees, actually and necessarily incurred by such person, and any amount paid in satisfaction of a judgment, in connection with any action, suit or proceedings in which he is made a party by reason of being or having been such a member of the Board or Committee, except in relation to matters as to which he shall be adjudged in such action, suit or proceeding to be liable for gross negligence or willful misconduct iii the performance of his duties.

 

ARTICLE IV
MANAGEMENT
EXPENSE CHARGE
AND MAINTENANCE FUND

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Section 4.1 Payment of Annual Maintenance Charge

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Each Lot shall be subject to an Annual Maintenance Charge of Three Hundred and No/100 Dollars ($300.00) per year. The Annual Maintenance Charge may be collected in quarterly installments by the Board, in its sole discretion. The amount of the Annual Maintenance Charge for each Lot may be increased prospectively only, or decreased, retroactively or prospectively, by the Board from time to time. However, if any such change increases the Annual Maintenance Charge by more than twenty percent (20%) of the amount of Annual Maintenance Charge prior to such change, the change must be approved by a majority of the Owners of Lots in the subdivision by written vote, or by a majority of Members present at a duly called meeting. The Annual Maintenance Charge and any Special Assessments, provided for in Section 4.4 hereof, shall be uniform as to each Lot, on a Lot by Lot basis, and shall not be based on the size of each Lot or number of square feet contained in each.

Notwithstanding any provision to the contrary, for the period of time from the initial sale of a Lot by Declarant until the completion of construction of a Residence upon a Lot, the Annual Maintenance Charge for such Lot shall be fifty percent (50%) of the Annual Maintenance Charge. Furthermore, Declarant will subsidize as reasonably necessary the Maintenance Fund in an amount not to exceed $150.00 per Lot then owned by Declarant and will not be responsible for paying the Annual Maintenance Charge while it owns any Lots.

Section 4.2 Payment of Annual Maintenance Charge by Declarant

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Notwithstanding anything to the contrary contained in these Restrictions, until the election of the First Elected Board, Declarant shall not be responsible for payment of the Annual Maintenance Charge with respect to Lots owned by Declarant. Declarant shall, however, with respect to such period of time until such election, be responsible for payment to the Association of the sum, from time to time, equal to the. expenses incurred by the. Association, on an accrual basis, less the Annual Maintenance Charges paid from time to time by the Lot Owners other than Declarant. From and after the election of the First Elected Board, Declarant shall not be responsible for any deficit between expenses incurred by the Association and the Annual Maintenance Charges paid by the Owners, but Declarant shall be responsible for paying the full 100% Annual Maintenance Charge with respect to the Lots owned by Declarant thereafter from time to time.

Section 4.3 Maintenance Fund

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The Annual Maintenance Charges collected by the Board shall be paid into the Maintenance Fund and shall be held, managed, invested and expended by the Board, at its discretion, for the benefit of the Subdivision and the Owners of Lots therein. The Board shall, by way of illustration and not by way of limitation, expend the Maintenance Fund for the administration, management, repair, replacement, operation and insuring of the Subdivision and Association and for the performance of the duties of the Board and the Association as set forth herein; for the enforcement of these Restrictions by action at law or in equity, or otherwise, and the payment of court costs as well as reasonable and necessary legal fees; and for all other purposes that are, in the discretion of the Board, desirable in order to maintain the character and value of the Subdivision and the Lots therein. The Board and its individual members shall not be liable to any person as a result of action taken by the Board with respect to the Maintenance Fund, except for willful misdeeds.

Section 4.4 Special Assessments

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If the Board at any time, or from time to time, determines that the Annual Maintenance Charges assessed for any period are insufficient to provide for the continued operation of the Subdivision and the performance by the Board and the Association of its duties hereunder, then the Board shall have the authority to levy such special assessments ("Special Assessments") as it shall deem necessary to provide for such continued maintenance and operation. A Special Assessment up to ten percent (10%) of the current Annual Maintenance Charge may be assessed without consent of the Members, but only one Special Assessment may be assessed without consent in any consecutive twelve (12) month period. No Special Assessment in excess of ten percent (10%) of the current Annual Maintenance Charge shall be effective until the same is approved in writing by Members holding at least a majority of the votes in the Association, or by a majority present at any regular or special meeting of ‘the Members. Any such Special Assessment shall be payable (and the payment thereof may be enforced) in the manner herein specified for the payment of the Annual Maintenance Charges.

Section 4.5 Enforcement of Annual Maintenance Charge

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The Annual Maintenance Charge assessed against each Owner shall be due and payable, in advance, on the date of the sale of such Lot by Declarant for that portion of the calendar year remaining, and on the second (2nd) day of January of each calendar year thereafter. Any such amount not paid and received by the thirtieth (3 0th) day of January of each year thereafter shall be deemed delinquent, and, without notice, shall bear interest at a rate set by the Board not in excess of’ the highest contract rate per annum allowed by law from the date originally due until paid, but if no rate is set, then at the annual rate of eighteen percent (18%) per annum. The Board, at its option, may impose late charges on delinquent payments. Notwithstanding the above, the Board, in its sole discretion, may allow the payment of the Annual Maintenance Charge to be made in quarterly installments.

To secure the payment of the Annual Maintenance Charge, Special Assessments levied hereunder and any other sums due hereunder (including, without limitation, interest, late fees or delinquency charges), a vendor’s lien and superior title shall be and is hereby reserved in and to each Lot and Residence and assigned to the Association, without recourse, which lien shall be enforceable as hereinafter set forth by the Association, or the Board, on behalf of the Association. The collection of such Annual Maintenance Charge and other sums due hereunder may, in addition to any other applicable method at law or in equity, be enforced by suit for a money judgment and in the event of such suit, the expense incurred in collecting such delinquent amounts, including interest, costs and attorney’s fees shall be chargeable to and be a personal obligation of the defaulting Owner. The voting right of any Owner in default in the payment of the Annual Maintenance Charge, or other charge owing hereunder for which an Owner is liable, may be revoked by action of the Board for the period during which such default exists.

Notice of the lien referred to in this Section 4.5 may be given by the recordation in the Office of the County Clerk of Harris County, Texas, of an affidavit, duly executed, sworn to and acknowledged by an officer of the Association, setting forth the amount owed, the name of the Owner or Owners of the affected Lot, according to the books and records of the Association; and the legal description of such Lot.

Each Owner, by acceptance of a deed to his Lot, hereby expressly recognizes the existence of such lien as being prior to his ownership of such Lot and. hereby vests in the Board the right and power to bring all actions against such Owner or Owners personally for the collection of such unpaid Annual Maintenance Charge or Special Assessments levied hereunder and other sums due hereunder as a debt, and to enforce the aforesaid lien by all methods available for the enforcement of such liens, both judicially and by non-judicial foreclosure pursuant to Section 51.002 of the Texas• Property Code (as same may be amended or revised from time to time hereafter) and in addition to and in connection therewith, by acceptance of .the deed to his Lot, each Owner expressly GRANTS, BARGAINS, SELL AND CONVEYS to the President and/or Vice President of the Association from time to time serving, as Trustee (and to any substitute or successor trustee as hereinafter provided for) such Owner’s Lot, and all rights appurtenant thereto, in trust, for that purpose of securing the aforesaid Annual Maintenance Charge or Special Assessments levied hereunder, and other sums due hereunder remaining unpaid hereunder from time to time. The Trustee herein designated may be changed for any reason and at any time and from time to time by execution of an instrument in writing signed by the President or a Vice President of the Association and attested to by the Secretary or an Assistant Secretary of the Association and filed in the Office of the County Clerk of Harris County, Texas. In the event of the election by the Board to foreclose the lien herein provided for non payment of sums secured by such lien, then it shall be the duty of the Trustee, or his successor, as hereinabove provided, at the request of the Board (which request shall be presumed) to enforce this trust and to sell such Lot, and all rights appurtenant thereto, at the door of the County Courthouse of Harris County, Texas, on the first Tuesday in any month between the hours of 10:00 a.m. and 4:00 p.m. to the highest bidder for public vendue after the trustee and the Board, respectively, shall have given notice of the proposed sale in the manner hereinafter set forth and to make due conveyance to purchaser or purchasers, with general warranty of title to such purchaser or purchasers binding upon the Owner or Owners of such Lot and his heirs, executors, administrators and successors. The Trustee shall give notice of such proposed sale by posting a written notice of time, place and terms of the sale for at least twenty-one (21) consecutive days preceding the date of sale at the Courthouse door of Harris County, Texas, and further comply with all requirements of the Texas Property Code as amended, and in addition, the Board shall serve Written notice at least twenty-one (21) days preceding the date of sale or the proposed sale by certified mail on each of such Owner or Owners according to the records of the Association. Service of such notice shall be completed upon deposit of the notice, enclosed in a post-paid wrapper, properly addressed to such Owner or Owners, at the most recent address as shown by the records of the Association, in a post office or official depository under the care and custody of the United States Postal Service. The affidavit of any person having knowledge of the facts to the effect that such service was completed shall be prima facie evidence of the fact of such service.

At any foreclosure, judicial or non-judicial, the Association shall be entitled to bid up to the amount of the sum secured by its lien, together with costs and attorney’s fees, and to apply as a cash credit against its bid all gums due to the Association covered by the lien foreclosed. From and after any such foreclosure the occupants of such Lot shall be required to pay a reasonable rent for the use of such Lot and such occupancy shall constitute a tenancy-at-sufferance, and the purchaser at such foreclosure sale shall be entitled to the appointment of a receiver to collect such rents and further, shall be entitled to sue for recovery of possession of such Lot by forcible detainer without further notice.

It is the intent of the provisions of this Section to comply with the provisions of Section 51.002 of the Texas Property Code, relating to non-judicial sales by power of sale and, in the event of the subsequent amendment of such Section 51.002, which amendment is applicable hereto, the President of the Association, acting without, joinder of any other Owner or Mortgagee or other person may, by amendment to these Restrictions filed. in the Office of the County Clerk of Harris County, Texas, amend the provisions hereof so as to comply with such amendments to Section 51.002.

The liens described in Section 4.5 hereof and the superior title herein reserved shall be deemed subordinate to a first lien or other. liens of any bona fide third party lender, including Declarant, which may have heretofore lent or may hereafter lend money in good faith for the purchase or improvement of any Lot and any renewal, extension, rearrangement or refinancing thereof. Each such mortgagee of a mortgage encumbering a Lot who obtains title to such Lot pursuant to the, remedies provided in the deed of trust or mortgage or by judicial foreclosure shall take title to the Lot free and clear of any claims for unpaid Annual Maintenance Charges or other charges or assessments against such Lot which accrued prior to the time such holder acquires title to’ such Lot. No such sale or transfer shall relieve such holder acquiring title to a Lot from liability for any Annual Maintenance Charge or other charges or assessments thereafter becoming due or from the lien thereof. Any other sale or transfer of a Lot shall not affect the Association’s lien for Annual Maintenance Charges or other charges or assessments.

 

ARTICLE V
INSURANCE

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Section 5.1 General Provisions

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The Board may obtain insurance for the Subdivision, the Association and the Board in such kinds and amounts as the Board shall deem desirable and shall obtain any performance or maintenance bonds required by any municipality for streets.

Section 5.2 Subrogation

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Each Owner and the Association agree to and hereby waive all rights of subrogation against the Declarant that they may have now or in the future under or with respect to any insurance policies.

Section 5.3 Individual Insurance

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Each Owner shall be responsible for insuring his Lot and his Residence, its contents and furnishings. Each Owner, at his own cost and expense, should carry an individual policy of liability insurance insuring against the liability of such Owner.

 

ARTICLE VI
FIRE OR CASUALTY, REBUILDING

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Section 6.1 Rebuilding

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In the event of a fire or other casualty causing damage or destruction to a Residence, the Owner of such damaged or destroyed Residence shall, within three (3) months after such fire or casualty, contract to repair or reconstruct the damaged portion of such Residence and shall cause such Residence to be fully repaired or reconstructed iii accordance with the original Plans therefor, or in accordance with new Plans presented to and approved by the Board in accordance with the requirement and procedure set forth in Section 2.2 above, and promptly shall commence repairing or reconstructing such Residence, to the end that the Residence shall not remain in a partly finished condition any longer than reasonably necessary for completion thereof. Alternatively, such damaged or destroyed Residence shall be razed and the Lot restored as nearly as possible to its prior condition.

 

ARTICLE VII
AMENDMENT TO DECLARATION AND
DURATION OF RESTRICTIONS

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Section 7.1 Amendment by Declarant

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Notwithstanding anything to the contrary contained in these Restrictions, until the election of the First Elected Board, the Declarant shall have and hereby reserves the right at any time, without the joinder or consent of any other party or entity, to amend these Restrictions by an instrument in writing duly signed, acknowledged and filed for record in the Office of the County Clerk of Harris County, Texas, so long as such amendment will not be inconsistent with the general overall plan for the development of the Subdivision.

Section 7.2 Amendment

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Except as otherwise herein provided by law and by Section 7.1 hereof, the provisions of these Restrictions may be amended by an instrument in writing signed by Members having not less than seventy-five percent (75%) of the total votes in the Association that may be cast thereupon, but no such amendment shall be effective until a written notice thereof is duly recorded in the Office of the County Clerk of .Harris County, Texas. The By-Laws of the Association may be amended as therein set forth.

Section 7.3 Duration

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These Restrictions shall remain in full force and effect until January 1, 2020, and shall be extended automatically for successive ten (10) year periods; provided, however, that these Restrictions may be terminated on January 1, 2020, or on the commencement of any successive ten (10) year period, by filing for record in the Office of the County Clerk of Harris County, Texas, an instrument in writing signed by Members having not less than seventy-five percent (75%) of the total votes in the Association that may be cast thereupon.

 

ARTICLE VIII
MISCELLANEOUS

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Section 8.1 Severability

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In the event of the invalidity or partial invalidity or partial unenforceability of any provision or a portion of these Restrictions, the remainder of these Restrictions shall remain in full force and effect.

Section 8.2 Rules and Regulations

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The Rules and Regulations attached hereto as Exhibit “B" may be amended from time to time by the Board. The Rules and Regulations are of equal dignity with, and shall be enforceable in the same manner as, the provisions of these Restrictions, but in the event of a conflict, these Restrictions shall control. Each Owner, by accepting conveyance of a Lot, agrees to comply with and abide by the Rules and Regulations, as the same may be amended from time to time.

Section 8.3 Exhibits

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The exhibits attached hereto are hereby incorporated by reference into these Restrictions for all purposes as if set out verbatim herein.

Section 8.4 Number and Gender

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Pronouns, whenever used herein, and of whatever gender, shall include natural persons and corporations, entities and associations of every kind and character, and the singular shall include the plural, and vice versa, whenever and as often as may be appropriate.

Section 8.5 Articles and Sections

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Article and Section headings in these Restrictions are for convenience of reference only and shall not affect the construction or interpretation of these Restrictions. Unless the context otherwise requires, references herein to Articles and Sections are to Articles and Sections of these Restrictions.

Section 8.6 Delay in Enforcement

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No delay in enforcing the provisions of these Restrictions with respect to any breach or violation thereof shall impair, damage or waive the right of any party entitled to enforce the same to obtain relief against or recover for the continuation or representation of such breach or violation or any similar breach or violation thereof at any later time or times.

Section 8.7 Limitation of Liability

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Declarant, as well as his agents, employees, officers, directors, partners and their respective offices, directors, agents, and employees, shall not be liable to any Owner or lessee of the Land or any portions thereof or to any other party for any loss, claim or demand in connection with a breach of any provision of these Restrictions by any party other than. Declarant.

Section 8.8 Enforceability

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The restrictions adopted and established for the Subdivision by these Restrictions are imposed upon and made applicable to the Subdivision and shall run with the Subdivision and shall be binding upon and inure to the benefit of and be enforceable by Declarant, the Association, each purchaser, grantee, Owner and lessee in the Subdivision, or any portion thereof, and the respective heirs, legal representatives, successors and assigns of the Subdivision, the Association and each such purchaser, grantee, Owner and lessee.

Section 8.9 Remedies

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In the event any one or more persons, firms, corporations or other entities shall violate or attempt to violate any of the provisions of these Restrictions, the Declarant, the Association, each purchaser, grantee, Owner or lessee of the Land, or any portion thereof, may institute and prosecute any proceeding at law or in equity, including, without limitation, (i) to abate, prevent or enjoin any such violation or attempted violation, or (ii) to recover monetary damages caused by such violation or attempted violation. Upon the violation of any of the provisions of these Restrictions by any Owner, in addition to all other rights and remedies available to it at law, in equity or otherwise, the Association, acting through the board, shall have the right of such Owner to vote in any regular or special meeting of the Members.

Section 8.10 Technical Corrections

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Declarant or the Association may correct typographical or grammatical errors, oversights, ambiguities, inconsistencies technical or scrivener’s errors without the necessity of joinder of any Owner or any Mortgagee, provided that any such amendment shall be consistent with and in furtherance of the general plan and scheme of development as evidenced by these Restrictions and shall not impair or adversely affect the vested property or other rights of any Owner or his Mortgagee.

Section 8.11 Effect Upon Lien Rights

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No violation by an Owner of the provisions of these Restrictions shall affect the lien of any mortgage or deed of trust presently, or hereafter placed of record or otherwise affect the rights of the mortgagee under any such mortgage, the holder of any such lien or the beneficiary of any such deed of trust; and any such mortgage, lien or deed of trust, may, nevertheless, be enforced in accordance with its terms, subject, however, to the provisions contained in this instrument.

  EXECUTED this 22nd day of November, 2000.

“DecLarant"
DHK INVESTMENTS, LTD., a Texas limited partnership
By DHK DEVELOPMENT, INC., a Texas Corporation

SIGNED BY
DUNCAN K. UNDERWOOD,
Vice President

THE STATE OF TEXAS §
COUNTY OF HARRIS §

BEFORE NE, the undersigned, a notary public in and for said. County and State, on this day personally appeared DUNCAN K. UNDERW000, Vice President of DHK DEVELOPMENT, INC., a Texas corporation, as General Partner of DHK INVESTMENTS, LTD., a Texas limited partnership, 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 consideration therein expressed, and in the capacities therein stated.

GIVEN UNDER MY AND SEAL OF OFFICE on November 22, 2000.

(signed by) Irin L. Patterson
Notary Public in and for Texas

 

EXHIBIT A
DESCRIPTION OF LAND

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All that certain 30.745 acres of land being a residue of 38.622 acres of land, more or less, described in the deed recorded under Harris County Clerk File No. F833360 and Film Code No. 110-95-0820 Harris County, Texas out of the W.C.R.R. Co. Survey, A-894, Harris County, Texas and being more particularly described by rnetes and bounds as follows: (All bearings arc based on the N 00° 00' 00" E in the east line of Parkview South, Section 6, recorded under Volume 254, Page 25, Harris County Map Records)

Begriming at a 3/8" iron rod found in the north line of Burke Meadow, Section 1 according to the plat thereof recorded uinder Volume 190, Page 62, H.C.M.1L and at the southeast corner of aforesaid Parkview South, Section 6;

THENCE N 00° 01' 00" E along the east line of said Parkview South, Section 6, to an "x" in concrete found marking the northwest corner of the herein described tact and the northeast corner of Parkview South, Section 7 according to the plat recorded Volume 371, Page 92, H.C.M.R.;

THENCE S 89° 21’ 57" E - 1361.81’ along the south line of Parkview South, Section 4 rerecorded under Volume 212, Page 28, H.C.M.R. and along the south line of Tract 3 being 4.815 acres of land recorded under H.C.C. File No. E269199 Harris County Deeds Records to the southeast corner of the herein described tract to a 5/8" iron rod set marking the northeast corner of the herein described tract from which the center of the circle of said curve bears S 80° 56’ 10" W being a point on a curve to the right having a central angle of 09° 02’ 43" and a radius of 1090.92’;

THENCE along the west right-of-way line and curve to the right an arc distance of 172.22’ to the end of said curve;

THENCE S 00° 02’ 59" E - 794.38’ continuing along said west right-of-way line to a 5/ 8" iron rod set marking the southeast corner of the herein described tract;

THENCE S 89° 56’ 34" W - 1376.32’ along the north line of the residue of the 3.107 acre tract of land recorded under H.C.C. File No. 0292911 and the north line of aforesaid Burke Meadow, Section 1 to the POINT OF BEGINNING and containing30.745 acres (1,339,261 square feet) of land, more or less.

 

EXHIBIT B
RULES AND REGULATIONS FOR
BURKESHIRE SUBDIVISION

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The Subdivision shall be occupied and used only as follows:

1. No sidewalk, driveway, or parking area shall be obstructed in any manner, nor shall any Owner store or place or cause to be stored or placed any object in such areas.

2. The Board shall have the right to enforce any applicable ordinances pertaining to pets.

3. No sign, notice, or advertisement of any type shall be posted within the confines of the Property without the prior written consent of the Board. As a general rule, one “for sale” sign shall be permitted in the front yard of a Residence. Notwithstanding the above and subject to the approval of the Board., directional signs may be used by Builders during the period of initial sale of lots and construction of improvements. Any such signs shall comply with all applicable ordinances.

4. Each Owner’s automobiles, campers, boats, house trailers, buses and other vehicles or similar items must be stored, placed or parked inside such Owner’s garage or kept screened so as to be concealed from public view. Vehicles not properly parked shall be subject to removal by the Board at the Owner’-s expense.

5. Nothing shall be done or kept on a Lot or on the Common Area which would increase the rate of insurance relating thereto without the prior written consent of the Board, and no Owner shall permit anything to be done or kept on his Lot or the Common Area which would result in the cancellation of insurance of any Residence or on any part of the Common Area, or which would be in violation of any law.

6. To comply with the provisions of Section 2.2 of the Declaration, two (2) complete sets of proposed Plans and specifications shall be delivered to the Board in care of the President, Burkeshire Homeowner Association.

7. No Lot shall be used or maintained as a dumping ground for rubbish, trash, garbage, or other waste. No rubbish, trash, garbage, or other waste material shall be kept or permitted on any Lot or on the Common Area except in sanitary containers located in appropriate areas concealed from public view.

a) All Owners, during their respective construction of a residence, are required to remove and haul from the Lot all tree stumps, trees, limbs, branches, underbrush and all other trash or rubbish cleared from the Lot for construction of the Residence, construction of other improvements and landscaping. No burning is allowed on a Lot and no materials or trash hauled from the Lot may be placed elsewhere in the Subdivision or on land owned by Declarant whether adjoining the Subdivision or not.

b) All. Owners, during their respective construction of a residence, are required to continuously keep the Lot in a reasonably clean and organized condition.. Papers, rubbish, trash, scrap, and unusable building materials are to be kept picked up and hauled from the Lot. Other usable building materials are to be kept stacked and organized in a reasonable manner upon the Lot.

c) No trash, materials, or dirt is allowed in the street. All Owners shall keep street free from trash, materials, and dirt. Any such trash, materials, or excess dirt or fill inadvertently spilled or getting into the street shall be removed, without delay, not less frequently than daily.

d) No Owner or Contractor may enter onto a Lot adjacent to the Lot upon which he is building for purposes of ingress and egress to his Lot during or after construction, unless such adjacent Lot is also owned by such Owner, and all such adjacent Lots .shall be kept free of any trees, underbrush, trash, rubbish and/or any other building or waste materials during or after construction of building improvements by the Owner of any adjacent Lot.

8. No fence, hedge, wall, or other dividing instrumentality over six (6) feet in height measured from the ground on which it stands or which violates any applicable ordinance shall be constructed or maintained on any Lot, except on the written consent of the Board.

9. Nothing shall be altered in, constructed on, or removed from the Common Area except on the written consent of the Board.

10. These Rules and Regulations may be amended at any time and from time to time by the Board.

 

EXHIBIT C
PRIVATE DRAINAGE EASEMENT

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Please see page 38 of PDF document provided in the link at the end of this page for drawing titled Private Drainage Easement "A".

METES & BOUNDS DESCRIPTION
5' WIDE PRIVATE DRAINAGE EASEMENT "A"
OUT OF BURKESHIRE SUBDIVISION
PASADENA, HARRIS COUNTY, TEXAS

All that certain 5' wide Private Drainage Easement out to lots 12 through 21, Block 1, Burkeshire Subdivision according to the plat thereof recorded in Film Code No. 454102, Harris County Map Records. The centerline of said easement being more particularly described by metes and bounds as follows:

COMMENCING at the southeast corner of Lot 12, of said Block, in the north right-of-way line Buckingham Drive (50' wide); Thence N 89° 21' 57" W - 52.50', with said north right-of-way line to the POINT OF BEGINNING of the herein described tract;

THENCE N 00° 38' 03" E - 109.5', parallel to and 2.50' east of the common line between lots 12 and 13, to an angle point;

THENCE N 89° 21' 57" W - 445.00', parallel to and 10.50' south of the most northerly line of said subdivision to an angle point;

THENCE S 00° 38' 03" W - 109.50', parallel to and 2.50' west of the common line of lots 20 and 21, to the POINT OF TERMINUS of the said 5' wide private drainage easement.

Complied from survey by:
PREJEAN & COMPANY, .
surveying/mapping
173-36-2a.mb.doc
November 10, 2000

Please see page 40 of PDF document provided in the link at the end of this page for drawing titled Private Drainage Easement "B" and "B-1".

METES & BOUNDS DESCRIPTION
10' WIDE PRIVATE DRAINAGE EASEMENT "B"
OUT OF BURKESHIRE SUBDIVISION
PASADENA, HARRIS COUNTY, TEXAS

All that certain 10' wide Private Drainage Easement out of lots 25 through 33, Block 1, Burkeshire Subdivision according to the plat thereof recorded in Film Code No. 454102, Harris County Map Records. The centerline of said easement being more particularly described by metes and bounds as follows:

COMMENCING at the southwest corner of Lot 33, of said Block, in the north right-of-way line Timmins Drive (50' wide); Thence S 89° 59' 00" E-13.00 with the said north right-of-way line to the POINT OF BEGINNING of the herein described easement;

THENCE N 00 01 00 E-422.65', parallel to and 13.00', with the said north westerly line of said subdivision to an angle point;

THENCE S 89 21 57 E-236.79', parallel to and 13.00' south of the most northerly line of said subdivision to the POINT OF TERMINUS of the said 10' wide private easement, at the common line of Lots 24 and 25.

Compiled from survey by:
PREJEAN & COMPANY, INC.
surveying/mapping
173-36-2b.mb.doc
November 10, 2000

METES & BOUNDS DESCRIPTION
5' WIDE PRIVATE DRAINAGE EASEMENT "B-1"
OUT OF BURKESHIRE SUBDIVISION
PASADENA, HARRIS COUNTY, TEXAS

All that certain 5' wide Private Drainage Easement out of lot 32, Block 1, Burkeshire Subdivision according to the plat thereof recorded in Film Code No. 454102, Harris County Map Records. The centerline of said easement being more particularly described by metes and bounds as follows:

COMMENCING at the southwest corner of Lot 33, of said Block, in the north right-of-way line Timmins Drive (50' wide); Thence S 89° 59' 00" E-13.00 with the said north right-of-way line to a point; Thence N 00° 01' 00" E-67.50', parallel to and 13.00'. east of the most westerly line of said subdivision to the POINT OF BEGINNING of the herein described easement;

THENCE S 89° 59' 00" E-107.00', parallel to and 2.50' north of the common line of Lots 32 and 33 to the POINT OF TERMINUS of the said 5' wide private easement, at the west right-of-way.

Compiled from survey by:
PREJEAN & COMPANY, INC.
surveying/mapping
173-36-2b.mb.doc
November 10, 2000

Please see page 43 of the Deed Restrictions PDF document provided in the link at the end of this page for drawing titled Private Drainage Easement "C".

METES & BOUNDS DESCRIPTION
5' WIDE PRIVATE DRAINAGE EASEMENT "C"
OUT OF BURKESHIRE SUBDIVISION
PASADENA, HARRIS COUNTY, TEXAS

All that certain 5' wide Private Drainage Easement out of lots 33 through 36, Block 3, Burkeshire Subdivision according to the plat thereof recorded in Film Code No. 454102, Harris County Map Records. The centerline of said easement being more particularly described by metes and bounds as follows:

COMMENCING at the south end of a 25' radius curve located at the intersection south right-of-way line Timmins Drive (50' wide) and the west right-of-way line Maidenhead Drive (50' wide); Thence S 00° 01' 00" W-37.50' with the said west right-of-way line to the POINT OF BEGINNING of the herein described easement;

THENCE N 89° 59' 00" W-109.55', parallel to and 2.50' north of the common line of lots 35 and 36, to an angle point;

THENCE S 00° 01' 00" W-167.50', parallel to and 10.50' east of the most wasterly line of said subdivision to the POINT OF TERMINUS of the said 5' wide private drainage easement, at the common line of Lots 32 and 33.

Compiled from survey by:
PREJEAN & COMPANY, INC.
surveying/mapping
173-36-2b.mb.doc
November 10, 2000

Please see page 45 of the Deed Restrictions PDF document provided in the link at the end of this page for drawing titled Private Drainage Easement "D".

METES & BOUNDS DESCRIPTION
5' WIDE PRIVATE DRAINAGE EASEMENT "D"
OUT OF BURKESHIRE SUBDIVISION
PASADENA, HARRIS COUNTY, TEXAS

All that certain 5' wide Private Drainage Easement out of lots 12 through 19, Block 3, Burkeshire Subdivision according to the plat thereof recorded in Film Code No. 454102, Harris County Map Records. The centerline of said easement being more particularly described by metes and bounds as follows:

COMMENCING at the northwest corner Lot 19, of said Block, in the south right-of-way line Tynemouth Drive (50' wide); Thence S 89° 56' 34" E-52.50' with the said south right-of-way line to the POINT OF BEGINNING of the herein described easement;

THENCE N 00° 03' 26" E-109.50', parallel to and 2.50' west of the common line of lots 18 and 19, to an angle point;

THENCE S 89° 56' 34" E-335.00', parallel to and 10.50' north of the most southerly line of said subdivision to an angle point;

THENCE N 00° 03' 26" W-109.50', parallel to and 2.50' west of the common line of lots 12 and 13, to the POINT OF TERMINUS of the said 5' wide private drainage easement, at the said south right-of-way line.

Compiled from survey by:
PREJEAN & COMPANY, INC.
surveying/mapping
173-36-2b.mb.doc
November 10, 2000

A free printable version of this Deed Restriction is available for your use in PDF format at the link provided below. When it opens, you may print or 'save as' on your computer from the file menu. If you need the free Acrobat Reader, it is available at Adobe's website, the link is provided below on their logo.

Deed Restrictions of Burkeshire Homeowners Assoc., Inc.

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