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AMENDED
DECLARATION
OF COVENANTS, CONDITIONS
AND
Article I
-
DECLARATION
OF PURPOSE
Article II -
CURRENT
DEFINITIONS
ArticLe III -
CERTAIN OBLIGATIONS
AND RIGHTS OF ASSOCIATION
Article IV -
MEMBERSHIP AND VOTING
Article V -
ASSESSMENTS, COMMON EXPENSES,
OTHER AMOUNTS AND LIENS
Article VI -
CERTAIN RIGHTS OF DECLARANT,
OWNERS, AND ASSOCIATION
Article VII -
CONSTRUCTION OF
IMPROVEMENTS AND USE OF LOTS
Article VIII -
RESTRICTIONS
APPLICABLE TO PROPERTY
Article X -
ENFORCEMENT
AND REMEDIES
Article XI -
SPECIAL
DISCLOSURE MATTERS
Article X
DECLARATION
OF PURPOSE
1.1 General Purposes:
CURRENT
DEFINITIONS
2.1 Articles: Articles mean the Articles of Incorporation
of the Association, as same may be amended from time to time.
(ii)
that is owned by a Person other than the
Association, but in which the Association has rights of use or possession
pursuant to a lease, license, easement, or other agreement, or
(i)
acquiring, leasing, renting, designing,
constructing, managing, operating, maintaining, repairing, or improving the
Commons;
(ii)
administering or enforcing the covenants,
conditions, restrictions, reservations, or easements created by this
Declaration;
(iii)
levying, collecting, or enforcing the assessments,
charges, or liens imposed pursuant to this Declaration;
(iv)
regulating or managing Lookout Mountain West,
including without limitation performing any and all Functions permitted by this
Declaration;
(v)
operating the Association;
(vi)
paying rentals; and
(vii)
any other cost or expense legally incurred by the
Association.
(i)
acquires all or substantially all of the property in
Lookout Mountain West and
(ii)
prior to the time of such acquisition is designated
by Richalibar, a Texas Limited Partnership, is a written instrument as a
successor or assignee of Declarant under this Declaration. Such instrument may
specify the extent and portion of the rights or interests as a Declarant that
are being assigned or otherwise transferred.
2.9
Declarant Control Period: Declarant Control Period means a period
commencing on the date of the recording of this instrument in the public real
estate records of
(a)
the date of the sale by the Declarant of the last
(b)
the date the Declarant voluntarily terminates its
Class B member status by recording a written notice of such termination in the
public real estate records of
2.10 Declaration: Declaration means this instrument and all
amendments or supplements hereto and hereafter recorded in the real property
records of
2.11 Design Review Board: Design Review Board means the Design Review
Board established hereunder.
2.12 Function: Function means any activity, function, or
service undertaken or performed by the Association, at its sole discretion.
2.13 Guest: Guest means any family member, customer,
agent, employee, independent contractor, guest, or invitee of any Owner, and
any family member, customer, agent, employee, independent contractor, guest or
invitee of such person or persons, entity or entities.
2.14
Lessee: Lessee means
the person or persons, entity or entities who is the lessee under a lease on
any part or all of a
2.15
Lookout Mountain West: Lookout
Mountain West means all the real property located in Burnet County, Texas,
described in Exhibit “A” attached hereto, as well as all real property
that becomes part of Lookout Mountain West as provided in this Section. Any
real property included in the definition of Lookout Mountain West pursuant to
this Section which is hereafter incorporated as, or becomes a part of, a
municipal corporation may be excluded from and be deemed outside of Lookout
Mountain West by the action of the Association and the written consent of
Declarant upon the recording in the Office of the Clerk and Recorder of Burnet
County, Texas, of a written instrument signed by Declarant and the Association
containing a legal description of the real property to be excluded and
declaring that such real property shall be deemed to be outside Lookout
Mountain West.
2.16
(i)
by the Association or any governmental entity,
(ii)
for or in connection with the distribution of
electricity, gas, water, sewer, telephone, television or other utility service,
or
(iii)
for access to any property within or without Lookout
Mountain West shall not be considered a
2.17
Member: Member means
each person or entity that holds a Membership in the Association.
2.18
Membership: Membership
means a membership in the Association that is appurtenant to ownership of any
2.19
Owner: Owner means the
record holder of legal title to the fee simple interest. Each Owner shall also be the holder or
holders of a Membership in the Association, which is appurtenant to ownership
of such
2.20
Person: Person means any natural person,
corporation, partnership, Limited Liability Company, association, trustee, or
any other entity recognized as being capable of owning real property under the
laws of the State of
2.21
Property: Property means
any and all real property subject to this Declaration from time to time.
2.22
Rules and Regulations: Rules and Regulations means any instruments
adopted by the Association or the Design Review Board for the regulation and
management of Lookout Mountain West or any portion thereof, as the same may be
amended from time to time.
CERTAIN OBLIGATIONS
AND RIGHTS OF ASSOCIATION
3.1
Property Maintenance Function:
(a) The Association shall provide for the
care, operation, management, maintenance, repair and replacement of all the
Commons, including roadways. Moreover, the Association may provide for the care
and maintenance of other areas of the Property if the Board of Directors, in
its sole and exclusive discretion, deems such care and maintenance to be
necessary or desirable for access to the boundary of or full utilization of any
(b) Unless otherwise agreed in writing, the
Association shall be obligated to and shall provide for the care, operation,
management, maintenance and repair of any Commons consisting of only a portion
of, or defined space within, a building or other improvement owned by Declarant
and shall be obligated to and shall bear and pay to Declarant its proportionate
share of Declarant's costs and expenses relating to such building or
improvement as a whole, including without limitation, maintenance, taxes and assessments,
insurance and depreciation. The proportionate share of the Association's costs
and expenses relating to such building or improvement as a whole shall be
determined by Declarant based on the actual amounts of such costs and expenses
relating to such building or improvement as a whole multiplied by the ratio
with a numerator which is the number of square feet of floor area of such
defined space within the building or improvement and a denominator which is the
number of square feet of floor area of the entire building or improvement.
3.2 Public
Health and Safety Function: The Association may provide public health
and safety services within Lookout Mountain West, including but not limited to,
providing health care services and facilities, security personnel, security
systems, fire protection facilities, and a fire water system which may include
periodic fire prevention inspections and equipment certifications.
3.3 Parking
Function: The Association may construct, purchase, lease, care for,
operate, manage, maintain, repair or replace parking areas to accommodate
Owners, Guests, and members of the general public, including but not limited
to, lighting, signs, landscaping and other similar facilities appurtenant to
such parking areas. To the extent practicable, the Association shall maintain
such parking areas so as to meet any requirements imposed on the Association or
on Declarant with respect to Lookout Mountain West by any federal, state or
local governmental agency.
3.4 Vehicular
Access Limitation Function: The Association may provide control over
vehicular access to Lookout Mountain West which it deems necessary or desirable
for the health, safety or welfare of persons residing, visiting or doing
business within Lookout Mountain West.
Such function may include, without limitation, constructing, operating,
and maintaining access road control gates (at such location(s) as the
Association may from time to time determine to be appropriate), restricting
non-commercial vehicular traffic within Lookout Mountain West except for Owners
or Guests, and restricting commercial vehicular traffic within Lookout Mountain
West. Owners and Lessees may be required to keep the Association informed of
all persons who have overnight accommodations at such Owner's or Lessee's
property in order to enforce the Rules and Regulations appropriately.
3.6 Animal
Control Function: The Association may provide for regulations (and may
provide for personnel and funds) to enforce animal control or exclude animals
from Lookout Mountain West.
3.7 Exterior Maintenance Function:
(b) Neither Declarant, the Association, nor
any of their respective directors, members, officers, agents or employees shall
be liable for any incidental or consequential damages for failure to inspect
any Lot or improvements or portion thereof or to repair or maintain the same.
Declarant, the Association or any member of the general public, firm or
corporation undertaking such repairs or maintenance shall not be liable for any
personal injury or other incidental or consequential damages occasioned by any
act or omission in the repair or maintenance of any Lot, improvements or
portion thereof.
3.8 Television
Function: The Association may, but shall not be obligated to, provide
for the installation, operation, maintenance, repair and replacement of
satellite dishes, cable television, and related conduits, lines, equipment, and
facilities.
3.9 Other
Functions: The Association may undertake and perform other functions as
it deems reasonable or necessary to carry out the provisions of this
Declaration, including without limitation, construction, care, operation,
management, maintenance, repair and replacement of a central mailbox facility.
3.10 Insurance:
The Association shall obtain in its name and keep in full force and effect at
all times all insurance that the Board of Directors deems necessary with
respect to the Commons or otherwise. Any loss covered by insurance maintained
by the Association shall be adjusted with the Association in accordance with
the terms and conditions herein. The insurance proceeds for any such loss shall
be paid in accordance with the terms and conditions herein. Each Owner shall be responsible for insuring
its
3.11 Indemnification:
The Association shall be obligated to and shall indemnify Declarant and hold it
harmless from all liability, loss, cost, damage, and expense, including without
limitation attorneys' fees and disbursements, arising with respect to any
operations of the Association or with respect to any Commons or Functions.
3.12 Right
to Make Rules and Regulations: The Association shall be authorized to
and shall have the power to adopt, amend and enforce Rules and Regulations
applicable within Lookout Mountain West with respect to any Commons or
Function, and to implement the provisions of the Association Documents,
including but not limited to, Rules and Regulations to prevent or reduce fire
hazard; to prevent disorder and disturbances of the peace; to regulate
pedestrian and vehicle traffic; to regulate animals; to protect wildlife; to
regulate signs; to regulate weed and pest control on undeveloped property
within Lookout Mountain West; to regulate use of any and all Commons to assure
fullest enjoyment of use; to promote the general health, safety and welfare of
persons residing, visiting and doing business within Lookout Mountain West; and
to protect and preserve property and properly rights. All Rules and Regulations
shall comply with the Association Documents, and any supplemental declarations
of land use restrictions for Lookout Mountain West. The Rules and Regulations
shall be uniformly applied, except such rules may differentiate between the
categories of Lots, Owners, Lessees, and Guests. The Association may provide
for enforcement of any such Rules and Regulations through reasonable and
uniformly applied fines and penalties, through exclusion of violators from the
Commons or from enjoyment of any Functions, or otherwise. Each Owner, Lessee,
and Guest shall be obligated to and shall comply with and abide by such Rules
and Regulations and pay such fines or penalties upon failure to comply with or
abide by such Rules and Regulations and such unpaid fines and penalties shall
be enforceable in accordance with Article V.
3.13 Taxes:
The Association shall pay all ad valorem real estate taxes, special improvement
and other assessments (ordinary and extraordinary), ad valorem personal
property taxes, and all other taxes, duties, charges, fees and payments
required to be made to any governmental or public authority which shall be
imposed, assessed or levied upon, or arise in connection with any Commons or
Functions only.
3.14 Governmental
Successor: Any Commons and any Function may be turned over to a
governmental entity which is willing to accept and assume the same upon such
terms and conditions as the Association shall deem to be appropriate upon the
consent of the Members as provided in the Bylaws.
3.15 Records:
The Association shall keep financial records sufficiently detailed to enable
the Association to perform all functions set forth herein that the Association
has undertaken to perform, including preparation of statements for assessments.
After reasonable prior notice to the Association, all financial records shall
be made reasonably available for examination by any Owner or such Owner's
authorized agents during normal business hours and under other reasonable
circumstances. The Association may charge a reasonable fee for copying such
materials. The financial records may be
maintained at Declarant’s home offices during the Declarant Control Period and
at such location as is designated by the Association thereafter.
3.16 Implied
Rights of the Association: The Association shall have and may exercise
(but shall have no obligation to do so) any right or privilege given to it
expressly in this Declaration or, except to the extent limited by the terms and
provisions of this Declaration, given to it by law and shall have and may
exercise every other right or privilege or power and authority necessary or
desirable to fulfill its obligations under this Declaration, including without
limitation the rights to:
(i) adopt and amend the Bylaws and Rules
and Regulations of the Association;
(ii) adopt and amend budgets for revenues,
expenditures and reserves and collect assessments, including without limitation
assessments for Common Expenses, from Owners;
(iii) hire and terminate managing agents and
other employees, agents and independent contractors;
(iv) institute, defend or intervene in litigation
or administrative proceedings in its own name on behalf of itself or two or
more Owners on matters affecting Lookout Mountain West;
(v) make contracts and incur liabilities;
(vi) regulate the use, maintenance, repair,
replacement, and modification of the Commons;
(vii) cause additional improvements to be made as
part of the Commons, including the construction of capital assets, in whole or
in part, for the benefit of some or all of the Owners, Lessees, and Guests,
including without limitation, grill areas, streets, and other limited access
roads, trails, entrances, paths, walkways, a central mailbox structure and other
landscaping changes, improvements (including without limitation, removal of
trees and other vegetation) and appurtenances; cattle guards; fences;
recreational areas and facilities; water wells, parking areas; storage
facilities for supplies and equipment; earth walls, retaining walls; lighting;
and signage
(viii) grant easements, leases, licenses, and
concessions through or over the Commons. Without limiting the generality of the
foregoing, the Association may grant easements, rights-of-way, leases, licenses
and concessions to suppliers of utilities serving the Property or property
adjacent to the Property and may grant such rights to developers or owners of
property adjacent to the Property for the purpose of accommodating minor
encroachments onto the Commons or other purposes that do not unreasonably
interfere with the use and enjoyment of the Commons;
(ix) impose and receive any payments, fees or
charges for the use, rental or operation of the Commons;
(x) impose charges for late payments of
assessments, recover reasonable attorneys' fees and disbursements and other
costs of collection for assessments and other actions to enforce the rights of
the Association, regardless of whether or not suit was initiated, and after
notice and opportunity to be heard, levy reasonable fines and penalties for
violations of the Association Documents;
(xi) impose reasonable charges for the
preparation and recordation of amendments to the Declaration or statements of
unpaid assessments;
(xii) provide for the indemnification of the
Association's officers and directors and maintain directors' and officers'
liability insurance;
(xiii) assign its right to future income,
including without limitation, its right to receive assessments (by way of
example and not limitation, the Association may assign its right to receive
assessments to secure financing for improvements to the Commons or performance
of Functions);
(xiv) obtain and pay for legal, accounting and
other professional services;
(xv) perform any Function by, through or under
contracting arrangements, licenses, or other arrangements, licenses, or other
governmental or private entity as may be necessary or desirable; and
(xvi) enjoy and exercise any other power of
authority which similar associations may now or hereafter enjoy or exercise in
the State of
3.17
Association Documents:
(a) Each Owner shall comply with and may
benefit from each term, provision, covenant, condition, restriction,
reservation, and easement contained in the Association Documents. The
obligations, burdens and benefits of Membership in the Association touch and
concern the property comprising Lookout Mountain West and are, and shall be,
equitable servitudes and covenants running with the land for each
(b) In the event that there is any conflict
or inconsistency between the terms and conditions of this Declaration and the
terms and conditions of the Articles, the Bylaws or the Rules and Regulations,
the terms and conditions of this Declaration shall control. In the event that
there is any conflict or inconsistency between the terms and conditions of
Articles and the terms and conditions of the Bylaws or the Rules and
Regulations, the terms and conditions of the Articles shall control. In the
event of any conflict or inconsistency between the terms and conditions of the
Bylaws and the terms and conditions of the Rules and Regulations, the terms and
conditions of the Bylaws shall control.
3.18 THE
ASSOCIATION SHALL NOT BE REQUIRED TO PERFORM ANY FUNCTION WHICH IS NOT
OBLIGATORY AS SET
4.1 Membership:
(a) There shall be one Membership in the
Association attributable to ownership of each
(b) Membership in the Association shall be
limited to Owners.
4.2 Voting:
(a) The Association shall have two classes
of voting Membership as set forth below:
(i) Class A.
Class A Members shall be all of the Owners of the Lots other than the
Declarant. A Class A Member shall be
entitled to one vote for each
(ii) Class B. The sole Class B member shall be the
Declarant. The Class B Member shall be
entitled to four votes for each
(b) No change in the ownership of a Membership
shall be effective for voting purposes unless and until the Board of Directors
is given actual written notice of such change and is provided satisfactory proof
thereof. If more than one person or entity holds a Membership in any class and
only one of the holders is present at the meeting, such holder is entitled to
cast all of the votes allocated to that Membership. If, however, more than one
of the holders is present, such holders may vote in any manner in which they all
agree. If such holders cannot agree about how to cast their vote on any specific
issue, no vote for that issue shall be recorded for their Membership
(c) In any election of the directors, the
candidates receiving the highest number of votes shall be deemed elected.
Cumulative voting shall not be allowed in the election of directors or for any
other purpose.
(d) The Authority shall have the right to
receive notice of and attend meetings of Members of the Association, but shall
have no right to vote on matters brought before the Members of the Association.
4.3 Declarant:
So long as Declarant is an Owner, Declarant will have all the rights and duties
given to Members under the Association Documents, and will have all of the rights
belonging to Declarant under the Association Documents (including, without
limitation, the Special Declarant Rights) for the duration of those rights as
set forth in the Association Documents.
ASSESSMENTS, COMMON EXPENSES,
OTHER AMOUNTS AND LIENS
5.1
Obligations for Assessments and Other
Amounts: Each Owner by acceptance of a deed to its
(a)
Annual assessments;
(b)
Special assessments to be fixed and established
frown time to time as provided in Section 5.3; and
(c)
Special individual assessments levied against
individual Owners
(i)
to reimburse the Association for extra costs for
maintenance and repairs caused by the willful or negligent acts of the Owner or
its Lessees and Guests,
(ii)
to reimburse the Association for costs incurred by
the Association or Design Review Board resulting from any Owner's failure to
comply with the terms and provisions hereof, or
(iii)
to pay charges and fines against the Owner for
failure to comply with the terms and provisions hereof. The annual, special, and special individual
assessments, together with late fees, interest, and costs of collection thereof
as hereinafter provided, shall be a charge on the land and shall be a
continuing lien upon each Lot against which each such assessment is made. Each
such assessment, together with such late fees, interest, and costs of
collection thereof as hereinafter provided, shall also be the continuing
personal obligation of the person who was the Owner of such property at the
time when the assessment fell due. No Owner shall be exempt from liability
under this Section by waiving the use or enjoyment of any Commons or by
abandoning a
5.2
Purpose of Assessments and Other
Amounts:
The assessments levied and any charge, fine, penalty or other amount collected
by the Association shall be used exclusively to pay expenses and other
obligations that the Association may incur in performing any actions permitted
or required under the Association Documents as from time to time in force and
effect, including but not limited to, Common Expenses, the costs of
constructing or purchasing the Commons and performing Functions, repayment of
debt and debt service, providing security for third party obligations as
provided in the Association Documents, payment of rentals or other charges
owing, Common Access Area Leases, and allocations to reserves. The Association
may invest any funds allocated to reserves in a prudent manner. Unless
expressly required by an Association Document, the Association need not refund
or credit to Owners excess funds collected by the Association.
5.3
Special Assessments: In addition to
the annual assessment, the Association may levy in any year a special
assessment, applicable to that year only, for the purpose of defraying, in
whole or in part, the costs of
(i)
any construction or reconstruction, maintenance,
unexpected repair or replacement of a described capital improvement upon the
Commons, including the necessary fixtures and personal property related
thereto, or
(ii)
any other unexpected expense. Except as set forth in Section 5.7(c)
establishing a one-time assessment for a Sinking Fund, no special assessments
will be levied to Owners prior to calendar year 2006.
5.4 Allocation
of Assessments: Annual and
special assessments shall be allocated to each owner by multiplying such
assessment times a ratio, the numerator of the ratio shall be the number of
Lots owned by such Owner, and the denominator of the ratio shall be the total
number of Lots within Lookout Mountain West. Notwithstanding the preceding sentence,
no annual or special assessments shall be made against the Declarant during the
Declarant Control Period; however, during the Declarant Control Period, the
Declarant shall pay to the Association any shortfall in the annual and special
assessments by the Association which are not payable by or collected from
Owners but not in excess of the amount which the Owner of the unsold Lots which
are owned by Declarant would be obligated to pay if they had been sold and were
owned by an Owner other than Declarant.
5.5 Date
of Commencement and Due Dates of Assessments: The annual assessments
provided for herein shall commence as to all Lots upon the date hereof and
shall be payable in advance, on the first (1st) business day of each January.
For Lots sold to an Owner by the Declarant, the assessment for a pro rata
portion of the year shall be payable on the date the
5.6 Omission
of Assessments: The omission of the Board of Directors, before the
expiration of any year, to fix the assessments hereunder for that or the next
year, shall not be deemed a waiver or modification in any respect of the
provisions of this Declaration, or a release of any Owner from the obligation
to pay the assessments, or any installment thereof for that or any subsequent
year, and the annual assessment filed for the preceding year shall apply until
a new annual assessment is made.
5.7 Maintenance
Fund; Working Capital Fund; Sinking Fund:
(a) The Association may establish and
maintain a maintenance fund for the periodic maintenance of the Commons into
which funds collected from annual and special assessments pertaining to such
maintenance shall be deposited. The Board may at any time ratably increase or
decrease the amount of the annual assessments to such level as shall be
reasonably necessary in the judgment of the Board to cover the estimated
obligations of the Association under this Declaration, including provisions of
reasonable reserves.
(b) The Association may establish a working
capital fund for the initial operation of the Commons in such amount as the
Board shall determine.
(c) There is hereby established a sinking fund for the purpose of funding necessary or appropriate (as determined in the sole discretion of the Association) capital expenditures related to the Commons, including common roadways, entrances, and related amenities to be initially funded by a one time special assessment on each Lot in the amount of $250.00, payable by the initial purchaser of a Lot from the Declarant at the time of closing of the purchase of such Lot. Declarant shall deposit into such fund, at the time of such purchase, the sum of $500.00. To the extent additional capital funds are required, the Association may make additional annual and special assessments from time to time as otherwise provided in Article V.
5.8
Collection and Enforcement: The Association
shall have a lien on each Lot (including any and all improvements), securing
payment of any annual, special or special individual assessment (including
penalties), together with late payment fees and interest thereon as provided
herein and reasonable attorneys' fees and costs incurred in the collection of
same and the enforcement of said lien, whether or not suit is filed. The
Association shall take such action as it deems necessary to collect assessments
and may settle and compromise the same if it is in the best interest of the
Association. Such liens shall be effective as and in the manner provided for
herein and shall have the priorities established in the covenants, conditions
and restrictions contained herein. The Association may
(i)
bring an action for a money judgment against any
Owner for any unpaid assessment without foreclosing or waiving any lien
securing same, or
(ii)
foreclose the lien against such Owner's
(iii)
both, and late fees, interest, costs and reasonable
attorneys' fees shall be added to the amount of such assessment.
Each
Owner, by his acceptance of a deed and/or leasehold assignment of a Lot, hereby
expressly vests in the Association or its agent the right and power to bring
all actions against such Owner personally for the collection of such
assessments as a debt and to enforce the aforesaid lien by all methods
available for the enforcement of such liens, including, but not limited to,
non-judicial foreclosure pursuant to Texas Property Code in force and effect on
the date of this Declaration, or in accordance with the prescribed manner for
foreclosure of deed of trust as provided by any future amendment to such
Property Code or any other statute or article enacted in substitution therefor,
and such Owner hereby expressly grants to the Board of Directors a power of
sale in connection with said lien. James Herbort, 110 E. Washington,
Burnet, Texas 78611 is hereby appointed trustee, unless and until the Board of
Directors shall designate a substitute or successor trustee, as hereinafter
provided, to post the required notices as provided by law and conduct such
foreclosure sale. The Trustee shall have
the right to rely on any instrument, document, or signature authorizing or
supporting an action taken or proposed to be taken by the Trustee hereunder,
believed by the Trustee in good faith to be genuine. The Trustee shall be entitled to
reimbursement for actual expenses incurred by the Trustee in the performance of
the Trustees duties hereunder and to reasonable compensation for such of the
Trustees services hereunder as shall be rendered. The lien provided for in this Section shall
be in favor of the Association and shall be for the common benefit of all
Owners and shall have the same effect as though each Owner had expressly
granted to the Association for the benefit of the Owners a deed of trust lien
as well as a security interest in such Lot to secure the payment of the
assessments provided for herein. In addition to such notices as required by the
aforesaid statute, the trustee shall mail to the Owner or Owners and mortgagee
of a Lot for which the assessment has not been paid, a copy of the notice of
trustee's sale at or before the time of posting same by U.S. Postal Service,
postage prepaid, certified, return receipt requested, at the Lot or such other
address as the Board has been advised in writing for receipt of notices under
this Declaration. At any foreclosure, judicial or non-judicial, the Association
shall be entitled to apply as a cash credit against its bid all sums due the
Association, including late fees, interest, costs and attorneys' fees, covered
by the lien foreclosed. From and after any such foreclosure, the former Owner
or Owners, their successors, heirs and assigns, shall forthwith, upon such
sale, surrender and deliver possession of the property upon demand, and the
purchaser or his successors, heirs or assigns, shall be entitled to institute
and maintain an action for forcible detainer of said property in the Justice of
the Peace Court in the Justice Precinct in which such Lot, or any part thereof,
is situated or in any other court of competent jurisdiction. The Association in
any event is hereby authorized to appoint a substitute trustee, or a successor
trustee, to act in the place of the trustee who posted the original notices
without any formality other than the designation in writing of a substitute or
successor trustee; and the authority hereby conferred upon the Association
shall extend to the appointment of other successor and substitute trustees
successively until the delinquent assessment or assessments have been paid in
full, or until said property is sold, and each substitute and successor trustee
shall succeed to all the rights and powers of the original trustee appointed by
the Association or its agents. The lien is prior to all other liens and
encumbrances on a
(i)
liens and encumbrances recorded before the
recordation of the Declaration,
(ii)
a first mortgage lien on the Lot which secures sums
borrowed for the purchase or improvement of such Lot and which mortgage lien
was recorded in the real property records of Burnet County, Texas before the
date on which the assessment or other charge sought to be enforced became
delinquent, and
(iii)
liens for real estate taxes and over governmental
assessments or charges against the
5.9
Liability of Owner's Purchasers and
Encumbrancers:
The amount of any assessment, charge, fine or penalty payable by any Owner, or
with respect to such Owner's Lessees, Guests or Lot, shall be a joint and
several obligation to the Association of such Owner and such Owner's heirs,
devisees, personal representatives, successors and assigns. A Person acquiring
ownership of a Lot shall be jointly and severally liable with the former Owner
of the Lot for all such amounts which had accrued and were payable at the time
of the acquisition of the Lot by such Person, without prejudice to such
Person's right to recover any such amounts paid from the former Owner.
5.10 Exempt
Property: The following property subject to this Declaration shall be
exempted from the assessments, charges and liens created herein:
(a) all properties dedicated and accepted by
the local public authority and devoted to public use; and
(b) all Commons.
CERTAIN RIGHTS OF DECLARANT,
OWNERS, AND ASSOCIATION
6.1 Declarant's
and Others' Easements and Related Rights:
(a)
Declarant hereby reserves for itself and its
licensees, invites, lessees, successors and assigns a perpetual easement on,
over, upon, across, above, under and through the Commons as may be reasonably
necessary to
(i)
discharge Declarant's obligations under this
Declaration,
(ii)
exercise any Special Declarant Right,
(iii)
make improvements within Lookout Mountain West
(provided, that nothing herein shall imply any obligation on Declarant to make
any improvements within Lookout Mountain West), or
(iv)
serve persons residing visiting or doing business
within Lookout Mountain West.
(b) All dedications, easements,
rights-of-way, limitations, restrictions, and reservations shown on any plat
and all grants and dedications of easements, rights-of-way, restrictions, and
related rights, made prior to the Property becoming subject to this Declaration
are incorporated herein by reference and made a part of this Declaration for
all purposes as if fully set forth herein and shall be construed as being
adopted in each and every contract, deed, or conveyance executed or to be
executed by or on behalf of Declarant conveying any part of the Property.
Declarant reserves the right to make changes in and additions to the said
easement and rights-of-way for the purpose of most efficiency and economically
developing the Property. Further, Declarant reserves the right, without the
necessity of the joinder of any Owner or other person, to grant, delegate,
reserve or otherwise create, at any time or from time to time, rights-of-way
and easements for public utility purposes (including without limitation, gas,
water, electricity, telephone and drainage) in favor of any person along any
front or side property line of any Lot, which easements shall have a maximum
width of 20 feet, 10 feet on either side of the side property lines.
(c) There is hereby created an easement
upon, across, over, and under all of the Property for ingress and egress in
connection with installing, replacing, repairing, and maintaining all
utilities, including but not limited to, telephones and electricity lines and
appurtenances thereto; however, with respect to Lots, such easements shall exist
only over such areas depicted on the plat. By virtue of this easement, it shall
be expressly permissible for the utility companies and other entities supplying
service to install and maintain pipes, wires, conduits, service lines, or other
utility facilities or appurtenances thereto, on, above, across and under the
Property, within the public utility easements from time to time existing and
from service lines situated within such easements to the point of service on or
in any improvement. Notwithstanding any provision contained in this Section, no
electrical lines or other utilities or appurtenances thereto may be relocated
on the Property until approved by Declarant or the Design Review Board. The
utility companies furnishing service shall have the right to remove all trees
situated within the utility easements shown on the Plat, and to trim
overhanging trees and shrubs located on portions of the Property abutting such
easements.
6.2 Rights
and Obligations of Owners:
(a) Subject to the provisions of this
Declaration and the power of the Association to regulate the use of, and convey
or encumber the Commons as set forth in the Association Documents, each Owner,
and such Owner's Lessees and Guests shall have a nonexclusive easement over,
upon, across and with respect to any Commons as appropriate and necessary for:
access, ingress and egress to the Lot of such Owner, Lessee, or Guest; and to
use the Commons and all other real property that shall become the Commons (as
described herein) for all other purposes.
(b) All rights, easements and obligations of
an Owner under this Declaration and all rights of an Owner with respect to
Membership under this Declaration are hereby declared to be and shall be
appurtenant to the Lot owned by such Owner and may not be transferred, conveyed,
granted, devised, bequeathed, encumbered or otherwise disposed of separate or
apart from the ownership of such Owner's Lot. Every transfer, conveyance, grant,
devise, bequest, encumbrance, or other disposition of a Lot shall be deemed to
constitute a conveyance, grant, devise, bequest, encumbrance, transfer or
disposition of such rights and obligations. A transfer of ownership of a Lot may
be made by deed and/or assignment of leasehold (as appropriate), intestate
succession, testamentary disposition, foreclosure of a deed of trust or mortgage
of record or such other legal process as is now effective or may hereafter
become effective under the laws of the State of Texas. Any attempt to transfer a
Membership in a manner other than those permitted by this Section shall be null
and void
(c) Each Owner, by accepting a deed or other
form of conveyance of an interest in the Property agrees to abide by the
provisions of the Association Documents and to cooperate with the Association
in its efforts to enforce such provisions.
6.3
Other Association Easements: Declarant
hereby grants to the Association, its licensees, invitees, lessees, successors
and assigns, a nonexclusive, perpetual easement on, over, upon, across, above,
under and through Lookout Mountain West and each portion thereof to
(i)
exercise any right held by the Association under
this Declaration or any other Association Document, and
(ii)
perform any obligation imposed upon the Association
by this Declaration or any other Association Document. Notwithstanding the
foregoing, the Association shall not enter upon any Lot without reasonable
prior notice to the Owner of the
6.4 Other
Easements: Declarant hereby grants a nonexclusive perpetual easement
across and over the Property for ingress and egress to all police, sheriff,
fire protection, ambulance and similar emergency agencies or persons, now or
hereafter serving the Property, to enter the Property in the performance of
their duties.
6.5 Enjoyment
of Functions and The Commons: There shall be no obstruction of any
Commons, nor shall anything be stored in or on any part of any Commons, without
the prior written consent of the Association. Nothing shall be altered on,
constructed in or removed from any Commons, except with the prior written
consent of the Association. Nothing shall be done or kept on or in any Commons,
that would result in the cancellation of the insurance or any part thereof
which the Association maintains pursuant hereto or increase the rate of the
insurance or any part thereof over the amount that the Association, but for
such activity, would pay, without the prior written consent of the Association.
Nothing shall be done or kept on or in such Commons that would be in violation
of any statute, rule, ordinance, regulation, permit or the requirement of any
governmental body. No damage to, or waste of, the Commons shall be committed,
and each visitor and Owner shall indemnify and hold the Association and the
other Owners harmless against all loss resulting from any such damage or waste
caused by such visitor, Owner, or such Owner's Lessees or Guests. No noxious,
destructive, or offensive activity shall be carried on with respect to the
Property or any Commons, nor shall anything be done therein or thereon which may
be or become a nuisance to any other visitor, Owner, or to any Lessee or Guest.
All restrictions contained herein shall be deemed to apply to the Commons and
Property.
6.6 Assignment
of Rights or Obligations to a Lessee: An Owner may assign or delegate
to a Lessee all (but not less than all) of its rights under this Declaration as
an Owner or as a Member and may enter into an arrangement with such Lessee
under which the Lessee shall agree to assume all of such Owner's obligations hereunder
as an Owner or Member, provided, however, that any such lease shall be for a
term not less than six (6) months and the Lessee shall use the Property for
residential purposes. The Association shall recognize assignment or delegation
of rights or arrangements for assumption of obligations, provided that, to be
effective with respect to the Association, Declarant or any other Owner, the
assignment or delegation of rights or arrangement for assumption of obligations
shall be in writing, shall be in terms deemed satisfactorily specific by the
Association, and a copy thereof shall be filed with and approved by the
Association. Notwithstanding the foregoing, no Owner shall be permitted to
relieve itself of the ultimate responsibility for fulfillment of all obligations
hereunder of an Owner arising during the period it is an Owner.
6.7 Special
Declarant Rights: Declarant hereby reserves for itself and its
successors and assigns the following rights ("Special Declarant
Rights"), which rights may be exercised (at Declarant’s sole option and
discretion) at any time during the term of this Declaration, including but not
limited to:
(a) The right to complete any improvements
shown on any plat, and the right to construct any improvement that Declarant
deems necessary or advisable on any Commons or any property owned by Declarant;
(b) The right to construct and maintain sales
offices, booths or other structures (including a temporary sales trailer) used
for sales or promotional purposes, management offices and models on any Commons
or any property owned by Declarant. Declarant also reserves for itself and its
successors and assigns the right to construct and maintain signs advertising
Lookout Mountain West on any Commons. The number, size, and location of any
such sales structures and signage, management offices or models or the
relocation thereof shall be determined by the Declarant, subject to the
approval of the Design Review Board.
Notwithstanding anything contained in this Declaration or any other
Association Document to the contrary, any structure utilized or constructed by
Declarant on a Lot which structure contains not less than one thousand five
hundred (1500) square feet of heated and air conditioned space shall be deemed
in compliance in all respects with this Declaration, including; but not limited
to, Article VII hereof, and such structure may be utilized as a single-family
residence notwithstanding any subsequent transfer of such Lot from Declarant;
(c) The right to use easements through the
Commons for the purpose of making improvements within Lookout Mountain West or
within real property which may be added to Lookout Mountain West; and
(d) The right to appoint and remove the
directors during the Declarant Control Period as set forth in herein.
(e) The right to plat, alter or amend any
plat, and to replat all or any portion of Lookout Mountain West as Declarant
shall determine in its sole discretion without joinder of any Owner of Lot.
(f) The right to grant and to cause the
Association to grant easements to third parties over and across the Commons and
to relocate such easements from time to time as the Declarant in its sole
judgment shall determine. Such right
shall include the right to grant access through as well as the use of gateways
and gates to or from Lookout Mountain West.
(g) The complete and unfettered right and
privilege to amend, change, revise, modify, or delete portions of the
Declaration, as the Declarant (in its sole and absolute discretion) shall deem
reasonable and appropriate during the Declarant Control Period.
(h) The right during the Declarant Control
Period as set forth herein, to add additional property or Commons to this
Declaration by filing of record a Supplemental Declaration(s) extending the
provisions of the Declaration to such additional property or Commons.
6.8 Declarant
Right to Appoint:
(a) Subject to the terms and conditions of
subsection (b) below but notwithstanding anything else to the contrary
contained in this Declaration or in any other Association Document, Declarant
shall have the exclusive right to appoint and remove all of the directors of
the Board of Directors of the Association during the Declarant Control Period.
The Board of Directors shall elect the officers. The Board of Directors and
officers shall take office upon election.
(b) Declarant may voluntarily surrender its
right to appoint and remove directors prior to the expiration of the Declarant
Control Period.
(c) Upon the expiration (or voluntary
termination by Declarant) of the Declarant Control Period and so long as
Declarant owns at least one (1) Lot, the Declarant shall retain the right to
elect one (1) director who need not be an Owner and the remaining directors
shall be elected by the Class A Members, which remaining directors must be Owners
other than the Declarant.
CONSTRUCTION OF
IMPROVEMENTS AND USE OF LOTS
7.1
Approval of Construction Activities: Each Owner
shall have the right to construct a building and other improvements on its Lot,
provided that no building or other improvements, including without limitation,
any fence, wall, driveway, paving, walk, deck, patio, canopy, awning, roof,
signage or exterior lighting facility, shall be constructed, erected, placed or
installed upon any Lot, and no change or alteration of the materials or
appearance (including color) of the exterior of a building or other structure
shall be made and no change in the final grade of any Lot shall be performed,
and no other construction activity shall be initiated on any Lot, until the
approval of the Design Review Board and any governmental or quasi-governmental
entity having jurisdiction over the Property has been obtained by such Owner.
In this regard, without limiting the generality of the foregoing, each Owner is
hereby advised and acknowledges that, in connection with any construction on
its
(i)
time limitations for the completion, within
specified periods after approval, of the improvements for which approval is
required under such documents;
(ii)
minimum square foot areas of living space that may
be developed on any
(iii)
instructions and/or Rules and Regulations for the
construction, reconstruction, refinishing or alteration of any improvement,
including any plan to excavate, fill or make any other temporary or permanent
change in the natural or existing surface contour or drainage or any
installation of utility lines or conduits on the Property, addressing matters
such as grading, transformers, meters, fire protection, loading areas, water
storage, trash and debris removal, parking areas, outside storage, sanitary
facilities, and conduct and behavior of builders, subcontractors and Owner's
representatives on the Property at any time.
7.2 Residential
Use: The Lots shall be used for
single-family residential purposes only. No building or other structure shall
be erected, altered, placed or permitted to remain on any Lot other than one
(1) detached single-family residence per Lot, and cabanas and storage buildings
and other outbuildings, as provided below, which shall be constructed to
minimum Federal Housing Authority ("FHA") and Veteran's
Administration ("VA") standards, unless otherwise approved in writing
by the Design Review Board (as hereinafter defined).
7.3 Garage:
Each residence may have a garage or carport that conforms in design and
materials with the main structure.
7.4 Side
Line and Front Line Setback Restrictions: No building structure shall be
within certain building setback lines, including twenty-five (25) feet for the front
and ten (10) feet for the side property lines, and a variable distance to the
back property line, unless otherwise approved by the Design Review Board. The
Design Review Board may grant variances with respect to such setback
requirements in its sole discretion. Declarant may, from time to time, by
appropriate instrument in writing and filed for record in
7.5 Fences:
Fences, walls, or other barriers shall be permitted for the purpose of
enclosing or demarcating any property boundaries but only with the prior
written approval of the Design Review Board (such prior written approval shall
be obtained with respect to color, design building materials and location of
all fences, walls or barriers). No fences or wall shall be permitted within
twenty-five (25) feet of any common roadway, unless otherwise approved by the
Design Review Board due to the size or location of a particular
7.6 Mailboxes:
Mailboxes shall not be allowed, except at a central mailbox area as shall be
designated by the Association.
7.7 Outbuildings:
Outbuildings used for the purpose of housing domestic pets, storage, home
shops, and other related personal use shall be constructed in a similar or
compatible manner to compliment the main dwelling and shall require specific
approval of the Design Review Board.
7.8 Gas
Tanks: When butane or propane tanks are installed on a
7.9 Water:
Water supply and sewage of superior quality has been secured by Declarant from
Kingsland Water Supply Corporation and Kingsland Municipal Utility District,
respectively, with main water and sewer lines accessible to each
7.10 Building
Height: No improvement greater than thirty-five feet (35') in height
may be constructed on any
7.11 Obstruction
of Views: No improvement may be constructed on any
7.12 Building
Materials; Dwelling Size: All single-family dwellings shall be of
recognized standard construction quality and shall be subject to the approval
of the Design Review Board and shall be constructed of material, of such color
and shall be located within the boundaries of a
7.13 Alteration
or Removal of Improvements: Any construction, other than normal
maintenance, which in any way alters the exterior appearance of any improvement,
or the removal of any improvement shall be performed only with the prior written
approval of the Design Review Board
7.14 Roofing
Materials: All roofing materials and colors are subject to prior
approval by the Design Review Board. No
roofing material that directly reflects sunlight shall be permitted unless the
Design Review Board grants a variance in writing.
7.15 Driveway:
The Design Review Board shall have the right to impose limitations on driveway
design, including materials, aprons, location, and point of contact with common
roadways. Driveways shall be constructed so that they have a sufficient rise in
elevation to allow for the surface water drainage along the curb line of the
street to continue without interruption or change in direction of flow.
7.16 Garbage
Containers: The Design Review Board shall have the right to require
each Owner to specify a specific location for trash service and to require each
Owner to construct a permanent facility at an approved location for the
placement of garbage containers for collection purposes. Such permanent
structure shall be of the same design and constructed of the same materials as
(or of design and materials complimentary to) the exterior of the appurtenant
single-family residential structure. The
Association shall not be required to provide any garbage collection area or
removal or service, but rather, each Owner shall be responsible for its own
garbage collection and removal.
7.17 Drainage:
There shall be no interference with the established drainage patterns over any
of the Property, except by Declarant, unless adequate provision is made for
proper drainage and approved by the Design Review Board.
7.18 Construction
Activities: This Declaration shall not be construed so as to
unreasonably interfere with or prevent normal construction activities during
the construction of improvements by an Owner (including Declarant) upon any
RESTRICTIONS
APPLICABLE TO PROPERTY
8.1
Land Use Restriction: In addition to
the restrictions found in this Article, all or any portion of the Property
shall be further restricted in its use, density, or design according to:
(i)
any supplemental declarations of land use
restrictions for Lookout Mountain West recorded with the Clerk and Recorder of
Burnet County, Texas, if any such supplemental declarations are recorded prior
to the time Declarant transfers of conveys any such Property to the Association
or to any third party; or
(ii)
the Rules and Regulations. Each Owner shall comply with all other terms,
provisions, covenants, conditions, restrictions, easements, and reservations on
the Owner's part to be complied with under this Declaration.
8.2
Home Business: A gainful home
occupation, profession, trade or other nonresidential use will be a permissible
use of a
(i)
such use is permitted by law,
(ii)
such use is carried on entirely within a
(iii)
there is no external evidence of any such activity
being conducted,
(iv)
no pedestrian or vehicular traffic is created or
increased due to such use, and
(v)
the use is conducted in compliance with the Rules
and Regulations.
8.3 Maintenance
of Property: All Property, except for any portion of the Property then
undergoing major construction, including all improvements on such Property,
shall be kept and maintained by the Owner thereof in a clean, safe, attractive
and sightly condition and in good repair, and no trash, litter, junk, boxes,
containers, bottles, cans, implements, machinery, lumber or other building
materials shall be permitted to remain exposed upon any Lot so that they are
visible from, or are a nuisance in any way to, any neighboring Lot or any road.
8.4 No
Noxious or Offensive Activity: No noxious or offensive activity shall
be carried on upon any Property nor shall anything be done or placed on any
Property that is or may become a nuisance or cause any significant
embarrassment, disturbance, or annoyance to others.
8.5 No
Harassment of Wildlife: No harassment of wildlife shall be permitted.
8.6
No Hazardous Activities: No activities
shall be conducted on any Property and no improvements constructed on any
Property that are or might be unsafe or hazardous to any person or property.
Without limiting the generality of the foregoing, no firearms shall be
discharged upon any Property or within Lookout Mountain West.
(i)
in a contained barbecue unit while attended and in
use for cooking purposes or within a safe and well designed interior wood or
gas burning device,
(ii)
campfires or picnic fires on Property designated for
such use by Declarant or by the Association and authorized in writing by
Declarant or the Association, and fires required for clearing or maintenance of
land which are controlled and attended by Declarant or Association,
(iii)
chimneys, and
(iv)
fire pits or outdoor fireplaces as approved in
writing by the Design Review Board.
8.7 No
Unsightliness: No unsightliness shall be permitted on any Property.
Without limiting the generality of the foregoing
(a) All unsightly structures, facilities,
equipment, objects and conditions shall be kept within an enclosed structure at
all times;
(b) Motorcycles, mopeds, or other motorized
recreational vehicles and garden or
maintenance equipment shall be kept in an enclosed structure at all times,
except when in actual use;
(c) Refuse, garbage and trash shall be kept
in a covered container at all times;
(d) Service areas and facilities for hanging,
drying, or airing clothing or fabrics shall be kept within an enclosed
structure;
(e) Pipes for water, gas, sewer, drainage or
other purposes, wires, cables, poles, antennas and other facilities for the
transmission or reception of audio or visual signals or electricity, utility
meters or other utility facilities, gas, oil, water or other tanks, and
sewerage disposal systems or devices shall be kept and maintained within an
enclosed structure or below the surface of the ground (except electric service
lines may be above ground). No antenna
shall be permitted to be used, erected, placed or maintained on any Lot except
an antenna designed to receive direct broadcast satellite service or broadband internet
service one (1) meter or less in diameter, an antenna designed to receive video
programming service via multipoint distribution service one (1) meter or less
in diameter or diagonal measurement, or an antenna designed to receive
television broadcast signals. Any
permitted antenna shall be installed within a single family dwelling or
out-building or shall be enclosed by fences, walls or landscaping so as not to
be visible from any roadway, except as expressly approved by the Design Review
Board;
(f) No lumber, grass, shrub or tree clippings
or plant waste, compost, metals, bulk materials or scrap or refuse or trash or
unused items of any kind shall be kept, stored or allowed to accumulate on any
Lot; an
(g) Tennis courts may be constructed on a
8.8 Lights,
Sounds and Odors: All exterior lighting of improvements and grounds on
the Property will be subject to regulation by the Design Review Board. No light
shall be emitted from any Lot which is unreasonably bright or causes
unreasonable glare or shines directly onto an adjacent Lot; no sound shall be
emitted from any Lot which is unreasonably loud or annoying; and no odor shall
be emitted from any
8.9
Restriction on Animals: No animals of
any kind shall be raised, bred or kept on any Property except domestic cats,
dogs or other household pets permitted by the Association so long as they are;
(a)
maintained in accordance with this Declaration, the
Rules and Regulations and any other Association Document, and
(b)
not a nuisance or kept, bred or maintained for any
commercial purposes.
No
person shall allow any dog owned or controlled by such person to roam within
Lookout Mountain West unattended. Dogs shall either be contained indoors or
enclosed in a dog run or kennel constructed for the purpose of confinement in a
manner approved by the Design Review Board. At all other times, dogs shall be
on a leash and under the direct control and supervision of their owners.
8.10 Restriction
on Signs: No signs or advertising devices of any nature shall be
erected or maintained on any Lot except signs approved by the Design Review
Board, signs required by applicable law or legal proceedings), signs showing
the name of the owners of the Lot (as approved by the Design Review Board),
temporary signs to caution or warn of danger, or Association signs necessary or
desirable to give directions or advise of Rules or Regulations.
8.11 Restrictions
on Parking: Parking of vehicles on Property is permitted only within
parking spaces constructed with the prior approval of the Design Review Board
and such parking shall be used only for the parking of personal vehicles.
8.12 Restriction
on Use of Roads: No vehicle weighing in excess of fifty thousand
(50,000) pounds total, including all cargo, personnel and equipment contained within said vehicle,
shall be permitted to travel on roads within the boundaries of Lookout Mountain
West.
8.13 Landscape Restriction: No tree within
the Commons may be cut absent prior written approval of the Design Review
Board. Vegetation on all Lots must be
maintained to minimize erosion and encourage growth of ground cover. All Owners are encouraged to preserve trees
on their respective Lots.
8.14 No Mining and
Drilling:
No Property shall be used for the purpose of mining, quarrying, drilling,
boring or exploring for or removing oil, gas or other hydrocarbons, minerals,
gravel or earth.
8.15 Mobile Homes, Travel Trailers and
Recreational Vehicles: Neither mobile nor manufactured homes
shall be parked or placed on any
8.16 General Practices Prohibited: The following
practices are prohibited at the Property:
(i)
removing any rock, plant material, top soil or
similar items from any property of others;
(ii)
using surface water for construction; and
(iii)
disposing carelessly of cigarettes and other
flammable materials
8.17 No Fireworks: No fireworks
shall be permitted on any portion of the Property.
8.18 No
Harvesting of Firewood: No Owner may harvest firewood on any portion of
the Property.
8.19 Declarant’s
Exemption: Nothing contained in this Declaration shall be constructed
to prevent the exercise by Declarant of any Special Declarant Rights.
8.20 Health,
Safety and Welfare: In the event additional uses, activities and/or facilities
are deemed by the Board of Directors to be nuisances or to adversely affect the
health, safety or welfare of Owners or the value of any Property, the Board of
Directors may adopt Rules and Regulations restricting or regulating the same.
8.21 Compliance
with Law:
In addition to the compliance requirements set forth elsewhere herein, no
Property shall be used, occupied, altered, changed, improved or repaired except
in compliance with all present and future laws, rules, requirements, orders,
directions, ordinances and regulations of the United States of America, State
of Texas, County of Burnet, and any other municipal, governmental or lawful
authority whatsoever, affecting the Property or the improvements thereon or any
part thereof, and of all their departments, bureaus and officials. Furthermore,
no Owner shall release, discharge or emit from the Property or dispose of, or
allow any person under such Owner's control or direction to release, discharge
or emit from the Property or dispose of, any material on, above or under the
Property, that is designated as a pollutant or containment under any federal,
state or local law, regulation or ordinance.
8.22 Violation: Determination with respect to whether or not a particular activity or occurrence shall constitute a violation of this Article VIII shall be made by the Board of Directors after notice to the Owner shall be final.
DESIGN
REVIEW
9.1 Purpose: In order to
preserve the natural beauty of Lookout Mountain West and its setting, to
maintain Lookout Mountain West as a pleasant and desirable environment, to
establish and preserve a harmonious design for the community, and to protect and
promote the value of Property, all exterior design, and use of all new
development and additions, changes or alterations to existing use, and exterior
design and development of any Lot shall be subject to Design Review
9.2 Objectives: The design
review process shall be conducted with the following objectives in mind for
Lookout Mountain West:
(a) Preventing excessive or unsightly
grading, indiscriminate earthmoving or clearing of property, removal of trees
and vegetation that could cause disruption of natural watercourse or scar
natural landforms;
(b) Ensuring that the location and
configuration of structures are visually harmonious with the terrain and
vegetation of the land and with surrounding Lots, structures and open space,
and do not unnecessarily block scenic views from existing buildings or tend to
dominate any general development or the natural landscape;
(c) Ensuring that the architectural design
of structures and their materials and colors are visually harmonious with
Lookout Mountain West's over-all appearance, history and cultural heritage,
with surrounding development, with natural land forms and native vegetation,
and adheres to or complies with development plans, zoning requirements, and
other restrictions officially approved by Declarant, the Association or any
government or public authority, if any, for the sites in which the structures are
proposed to be located;
(d) Ensuring that plans for the landscaping
of open spaces provide visually pleasing settings for structures on such Lots
and on adjoining and nearby Lots and blend harmoniously with the natural
landscape;
(e) Ensuring that any development,
structure, building or landscaping complies with the provisions of this
Declaration;
(f) Ensuring that building design and
construction techniques respond to energy consumption and environmental quality
considerations, such as heat loss, air emissions, and run-off water quality;
(g) Ensuring that design of residential
structures provides rooms of types and standards generally consistent through
Lookout Mountain West; and
(h) Ensuring that placement of structures
provides visually pleasing and ample space between such structures and
structures on other Lots.
9.3 Design Review Board:
(a) The Association shall establish a Design
Review Board which shall consist of three Members, all of which shall be
appointed by the Board of Directors, except during the Declarant Control Period
membership of the Design Review Board may be comprised of non-members as
designated by the Board of Directors.
The regular term of office for each member shall be one year, coinciding
with the fiscal year of the Association. The Board of Directors may remove any
such member, with or without cause at any time by written notice to such
appointee. A successor or successors appointed by the Board of Directors to fill
such vacancy shall serve the remainder of the term of the former member
(b) The Board of Directors shall select the
chairperson and vice-chairperson from among the members of the Design Review
Board. The chairperson or, in his or her absence, the vice-chairperson shall be
the presiding officer of its meetings. In the absence of both the chairperson
and the vice-chairperson from a meeting, the member present shall serve as
acting chairperson at such meeting. Two
(2) members shall constitute a quorum for the transaction of business, and in
the absence of a quorum the remaining member shall adjourn the meeting to a
later time or date. In the absence of all members any representative of
Declarant may adjourn the meeting to a later time or date. The affirmative vote
of a majority of the members of the Design Review Board present at any meeting
shall constitute the action of the Design Review Board on any matter before
it. The Design Review Board shall meet
at such location and operate in accordance with such rules of procedure as it
may adopt; said rules shall be filed with the Association and maintained in the
records of the Association.
(c) The Design Review Board is hereby
authorized to retain the services of one or more consulting architects,
landscape architects or urban designers, who may also be members of the Design
Review Board and entitled to vote in such capacity, and who need not be
licensed to practice in the State of Texas, to advise and assist the Design
Review Board in performing the design review functions prescribed in this
Article IX and in carrying out the provision of Article VII. Such consultants
may be retained to advise the Design Review Board on a single project, on a
number of projects or on a continuing basis.
Consultants who are also members of the Design Review Board shall
disclose to the Design Review Board their interests in any project or matter
before the Board promptly after such project comes up for board consideration.
9.4
Design Review Board Approval and Control
(a) In addition to the requirements set
forth in Section 8.3 above and except as otherwise provided herein, no Owner,
Lessee, or Guest or the Association shall engage, use or contract for the
activities described herein on any Property, Lot or Commons or building or
structure thereon, or change the use of any Property or building or structure
thereon, unless the Design Review Board has approved the plans and
specifications for the project, showing the nature, kind, shape, height, color,
materials and location of same, and the construction procedures to be used to
ensure compliance with Article VII, including compliance with land use
restrictions made applicable to the Property by Article VIII. Alterations or
remodeling which are completely within a building or the structure may be
undertaken without Design Review Board approval, provided such alterations or
remodeling do not change the use of the building or structure. All actions
taken by the Design Review Board shall be in accordance with Rules and
Regulations established by the Design Review Board, which shall be published as
set forth herein. Such Rules and Regulations may be amended from time to time
by action of the Design Review Board that is consistent with and fulfills the
purpose of this Declaration. The approval or consent of the Design Review Board
on matters properly coming in before it shall not be unreasonably withheld,
actions taken shall not be arbitrary or capricious and decisions shall be
conclusive and binding on all interested parties, subject only to the right of
appeal and review by the Board of Directors as set forth below; and such approval
or consent shall not prohibit enforcement of the provisions of this Declaration
under this Article IX. The Design Review Board or its designated representative
shall monitor any approved project to the extent required to ensure that the
construction or work on such project complies with any and all approved plans
and construction procedures. The Design Review Board or its designated
representatives may enter upon any Property at any reasonable time or times to
inspect the progress, work status, or completion of any project. In addition to
the remedies described in this Article IX, the Design Review Board may withdraw
approval of any project thereby stopping all activity at such project, if
deviations from the approved plan or approved construction practices are not
corrected or reconciled within 24 hours after written notification to the Owner
specifying such deviations.
(b) Any material to be submitted or notice to
be given to the Design Review Board shall be submitted at the offices of the
Declarant or at such other location as the Design Review Board may designate
from time to time.
(c) All actions requiring approval of the
Association pursuant to the provisions of this Article shall be deemed approved
if such approval is obtained in writing from the Design Review Board.
9.5 Exterior
Maintenance: Pursuant to the provisions of this Declaration, the Design
Review Board may, by the affirmative vote of a simple majority of the members
of the Design Review Board present at any meeting after thirty (30) days notice
of such failure to the Owner of such Lot, request that the Association provide
exterior maintenance and repair upon any Lot.
Notwithstanding the foregoing, the Association shall have no obligation
to provide such maintenance and repair.
9.6 Review
Fee: The Design Review Board may set a review fee schedule sufficient
to cover all or part of the cost of Design Review Board time, consultant's
fees, and incidental expenses. Applicants for design review may be required to
deposit with the Design Review Board a fee which the Design Review Board deems
sufficient to cover the cost of design review from which the actual costs
shall, be deducted when determined and the balance returned to the applicant
following completing of the design review procedure.
9.7 Enforcement
of Restrictions: Prior to the completion of construction or action
subject to review under this Declaration, the Design Review Board shall have
primary responsibility to enforce the restrictions set forth in this
Declaration, the Design Rules and Regulations, and restrictions set forth in
any supplemental declaration recorded in the records of Burnet County, Texas;
provided, however, that such responsibility shall not limit the right of
Declarant or the Association to act under this Article IX. If the Design Review Board does not take
action to enforce such restrictions within fifteen (15) days after being
requested to do so by the Board of Directors, the Association may assume
responsibility for enforcing such restrictions in any case in which the Design
Review Board declined to act. Subsequent to the completion of construction or
action subject to review under this Declaration the Association shall have
primary responsibility to enforce such restrictions
9.8 Reconsideration,
Review and Appeal: Within seven (7) days following action of the Design
Review Board, its decision to approve or disapprove the project design shall be
transmitted to the applicant and to the Association, and shall be made
available to other members upon their written request. The Board of Directors may confirm, modify,
or reverse the decision of the Design Review Board within twenty (20) days
following the decision. The decision
shall become final if no action is taken by the Board of Directors and no
written request for reconsideration is made to the Design Review Board by the
applicant or any aggrieved party within twenty (20) days following the decision
of the Design Review Board. If the Board of Directors took no action and a request
for reconsideration is timely made, the Design Review Board shall reconsider
the matter at its next regularly scheduled meeting. The decision rendered upon
such reconsideration shall be transmitted to the applicant, any aggrieved party
and to the Board of Directors as set forth above, and shall become final if no
written appeal to the Board of Directors is made to such decision within seven
(7) days following the date of notice of such decision. Not more than sixty (60) days following the
filing of an appeal by the applicant or aggrieved party, the Board of Directors
shall review the action of the Design Review Board and shall, in writing confirm,
modify or reverse the decision of the Design Review Board. If the Board of
Directors deems insufficient information is available to provide the basis for
a sound decision, the Board of Directors may postpone final action for not more
than thirty (30) additional days.
Failure of the Board of Directors to act within ninety-five (95) days
from the date of the filing of the appeal shall be deemed approval by the Board
of Directors of the design of the project unless the applicant consents to a
time extension. Any decision by the Design Review Board or Board of Directors
which results in disapproval of the project design shall specifically state the
reasons for such disapproval and the provisions of this Declaration or any
Rules or Regulations with which the project does not comply and the manner of
noncompliance.
9.9 Lapse
of Design Review Approval: Approval of the design of a project shall
lapse and become void one year following the date of final approval of the
project, unless prior to the expiration of one year any required building permit
is issued and construction is commenced and diligently pursued toward completion
9.10 Assignment
of Function: Any function to be performed by the Design Review Board
pursuant to this Declaration may be assigned to the Association in whole or in
part at any time or from time to time by the Design Review Board in its
discretion.
9.11 No
Liability: Neither Declarant, the Association nor the Design Review
Board nor any of their respective members, officers, directors, employees or
agents shall be responsible or liable for any defects in any plans or
specifications submitted, revised or approved under this Article IX nor for any
defects in construction pursuant to such plans and specifications. Approval of
plans and specifications under this Article IX shall not be deemed in lieu of
compliance by Owners or Lessees with applicable governmental laws or
regulations.
ENFORCEMENT
AND REMEDIES
10.1 Enforcement:
(a) Each provision of this Declaration
enforceable against the Association shall be enforceable by Declarant, the
Authority (Lower Colorado River Authority), or any Owner by a proceeding for a
prohibitive or mandatory injunction.
(b) Each provision of this Declaration
enforceable against an Owner or Lot shall be enforceable by Declarant, the
Authority, or the Association by a proceeding for a prohibitive or mandatory injunction
or by suit or action to recover damages, or in the discretion of the
Association, for so long as any Owner fails to comply with any such provisions,
by exclusion of such Owner and/or such Owner's Lessees and Guests from the use
of any Commons and from the participation in any Function.
10.2 Remedies:
In addition, if an Owner fails to perform or observe any covenant or condition
on such Owner's part to be performed or observed under this Declaration or any
other Association Document, the Association shall have the following rights and
remedies:
(a) The Association may, but is not
obligated to, cure such failure to comply at the Owner's, or other defaulting
party's, sole cost and expense. If the Association cures any such failure to
comply, such Owner shall pay to the Association the amount of all costs
incurred by the Association in connection therewith within thirty (30) days
after the Owner receives a written invoice therefor from the Association.
(b) The Association may suspend the Owner's
right to vote.
(c) Except as otherwise provided in any
Association Document, and in addition to the fines provided for herein, the
Association may fine the Owner an amount not to exceed $1,000 for each
violation. The Association may, in its sole and exclusive discretion, annually
adjust for inflation the maximum amount of such fine. Each day any violation continues or is
permitted to continue shall constitute a separate offense for purposes of
levying such fine. The Owner shall pay any such fine to the Association within
thirty (30) days after the Owner receives written notice thereof. The fines described in this subsection are in
addition to all other rights and remedies of the Association and shall not
preclude pursuit thereof by the Association.
(d) The Association shall have all other
rights and remedies available to it under Association Documents, at law or in
equity. All rights and remedies of the Association shall be cumulative and the
exercise of one right or remedy shall not preclude the exercise of any other
right or remedy.
SPECIAL
DISCLOSURE MATTERS
11.1 Each
Owner is hereby advised of the following matters affecting the Property and the
use and enjoyment thereof:
(a) The Property is or may be located in
close proximity to one or more of the following:
(b) The activities associated with the Hazard
Areas may include without limitation:
(i)
vehicular and pedestrian traffic,
(ii)
construction vehicles and equipment,
(iii)
tree cutting and clearing, grading and earth-moving;
and other construction activities,
(iv)
construction, operation and maintenance of roads,
and
(v)
activities relating to the use of the Hazard Areas,
including, without limitation, boating, water skiing, swimming, hiking in areas
including tall cliffs without handrails, bicycling, motorized
“four-wheeling", and other recreational activities and organized events
and competitions relating to such activities.
(c) Other hazards created by the Hazard Areas
may include, but are not limited to, obstructed views, damage or injury caused
by the general public, and death, personal injury, or property damage caused by
wild animals, including snakes and reptiles. Moreover, access to certain common
areas shall be restricted from time to time, and substantial
construction-related activities relating to the development of the Property or
other development within or near Lookout Mountain West may cause considerable
noise, dust and over inconveniences to the persons residing, visiting or doing
business in Lookout Mountain West
(d) Each Owner, by accepting a deed to a Lot
and/or an assignment of a leasehold to a Lot or any interest therein,
acknowledges that the impacts, disturbances, hazards and activities described
above may occur in and around such Lot and the Property, and each Owner by
accepting a deed to a Lot and/or an assignment of a leasehold or any interest
therein, for itself and its Lessees, Guests, successors and assigns, hereby
forever waives and releases any claims which such Owner may have against the
Declarant and its respective successors and assigns, as a result of, arising
out of or in any way relating to the impacts, disturbances, hazards and
activities described above.
CASUALTY
AND CONDEMNATION
12.1 Casualty:
(a) In the event of damage or destruction to
any part of the Commons due to fire or other adversity or disaster, any insurance
proceeds shall be collected by and paid to the Association and such insurance
proceeds, if sufficient to reconstruct or repair the damage, shall be applied
by the Association to such reconstruction and repair. If the insurance proceeds
with respect to such damage or destruction are insufficient to repair and
reconstruct the damaged or destroyed Commons, as applicable, or if there are no
insurance proceeds, the Board of Directors shall levy a special assessment
pursuant to the Association Documents in the aggregate amount of such
deficiency and shall proceed to make such repairs or reconstruction. Notwithstanding the foregoing, the
Association shall have no obligation to repair or reconstruct the damaged or
destroyed Commons; if such repair or reconstruction would be illegal under any
state or local statute or ordinance governing health or safety, or if within
sixty (60) days after such damage or destruction eighty percent (80%) of the
votes of the Members of the Association are cast to not rebuild. The special
assessment provided for herein shall be a debt of each Owner and a lien on its
(b) In the event of damage or destruction of
the improvements located on any Lot or any part thereof (other than any Commons
which is governed by this Section) due to fire or other adversity or disaster,
the Owner of such Lot shall, at its sole cost and expense, with due diligence,
either (i) cause the damaged or destroyed improvements to be repaired and
restored to a condition comparable to that prior to the damage or destruction,
or (ii) demolish the destroyed or damaged improvements, in which event the
damaged or destroyed improvements shall forthwith be demolished and all debris
and rubble caused by such demolition shall be removed and the affected Lot
regraded and landscaped. If such repair or restoration or such demolition,
debris removal, regrading and landscaping is not commenced within 180 days from
the date of such damage or destruction, or if the same is commenced but then
abandoned for a period of more than ninety (90) days, the Association may,
after notice and an opportunity to be heard, impose a fine of $1,000.00 per day
or such other rate imposed by the Board of Directors, charged against the Owner
of the Lot until such repair or restoration or such demolition, debris removal,
regrading and landscaping is commenced or recommenced, as the case may be.
Unless the Owner can prove to the satisfaction of the Board of Directors that
such failure is due to circumstances beyond the Owner's control, such fine
shall be in addition to any assessment to which such Owner's Lot is subject and
the Association shall have all of the rights pertaining to a special individual
assessment specified in the Association Documents for such amount.
12.2 Condemnation:
(a) In the event the Commons, or any portion
thereof, shall be taken for any public or quasi-public use, under any statute,
by right of eminent domain or by purchase in lieu thereof (herein, a
"taking"), each Owner will be entitled to notice thereof, but the
Association will act as attorney-in-fact for all Owners in the proceedings
incident to the taking unless otherwise prohibited by law. The award for such
taking will be payable to the Association as trustee for all of the Owners to
be disbursed as follows:
(i) If the taking involves a portion of the
Commons on which improvements have been constructed, then, unless restoration
or replacement of such improvements would be illegal under any state or local
statute or ordinance governing health or safety or unless within sixty (60)
days after such taking eighty percent (80%) of the votes of the Members of the
Association elect not to restore or replace such improvements, the Association
will restore or replace such improvements so taken on the remaining land
included in the Commons to the extent lands are available therefor, in
accordance with plans approved by the Board of Directors, the Design Review
Board, the Authority, and any other governmental or quasi‑‑governmental entity
having jurisdiction over the Property. If such improvements are to be restored
or replaced, and the award for the taking is insufficient to restore or replace
such improvements the Board of Directors shall levy a special assessment in the
aggregate amount of such deficiency and shall proceed to restore or replace such
improvements
(ii) If the taking does not involve any
improvements, or if there is a decision made not to restore or replace as set
form above, or if there are net funds remaining after any such restoration or
replacement of improvements is completed, then the Association may retain such
excess proceeds or distribute such excess in proportionate shares on the basis
of the annual assessment levied against such Lots for the prior 12-month
period.
(b) In the event any Lot, or any portion
thereof (other than any Commons which is governed by this Declaration, shall be
taken, the condemnation award for such taking shall be paid solely to the Owner
of such
MISCELLANEOUS
13.1 Duration
of Declaration: The covenants, conditions, restrictions, reservations,
easements, assessments, charges and liens as set forth in this Declaration
shall run with and bind Lookout Mountain West for a period of twenty (20) years
from the date of recordation of this Declaration, after which they shall be
automatically extended for successive ten-year periods, unless at least one
year prior to the expiration of any such ten-year period of extended duration,
this Declaration is terminated by a recorded termination agreement that has
been authorized and executed by seventy-five percent (75%) (or more) of the
votes of the Members of the Association.
13.2 Amendment:
Any provision contained in this Declaration may be amended or repealed only by
the affirmative vote, consent or agreement of at least seventy-five percent
(75%) of the votes of the Members of the Association. Any such amendment or repeal shall be
evidenced by a written instrument or instruments specifying the amendment or
the repeal, executed by the Declarant and the Association, and recorded in the
Office of the
13.3 Effect
of Provisions of Declaration: Each provision of this Declaration, and
any agreement, promise, covenant and undertaking to comply with each provision
of this Declaration, and any necessary exception or reservation or grant of
title, estate, right or interest to effectuate any provision of this
Declaration:
(a) shall be deemed incorporated in each
deed or other instrument by which any right, title or interest in any real
property within Lookout Mountain West is granted, devised or conveyed, whether
or not set forth or referred to in such deed or other instrument;
(b) shall, by virtue of acceptance of any
right, title or interest in any real property within Lookout Mountain West by
an Owner or the Association be deemed accepted, ratified, adopted and declared
as a personal covenant of such Owner or the Association, as the case may be
and, as a personal covenant, shall be binding on such Owner or the Association
and such Owner's or the Association's respective heirs, personal
representatives, successors and assigns and as a personal covenant of an Owner,
shall be deemed a personal covenant to, with and for the benefit of Declarant
and to, with and for the benefit of the Association but not to, with or for the
benefit of any over Owner and, if a personal covenant of the Association shall
be deemed a personal covenant to, with and for the benefit of Declarant and to,
with and for the benefit of each Owner;
(c) shall be deemed a real covenant by
Declarant, for itself, its successors and assigns, and also an equitable
servitude, running in each case, as a burden with and upon the title to each
parcel of real property within Lookout Mountain West and, as a real covenant
and also as an equitable servitude, shall be deemed a covenant and servitude
for the benefit of any real property now or hereafter owned by Declarant within
Lookout Mountain West and for the benefit of any and all other real property
within Lookout Mountain West; and
(d) shall be deemed a covenant, obligation
and restriction secured by a lien, binding, burdening and encumbering the title
to each parcel of real property within Lookout Mountain West which lien, with
respect to any Lot shall be deemed a lien in favor of Declarant and the
Association, jointly and severally and, with respect to any real property owned
by the Association, shall be deemed a lien in favor of Declarant.
13.4 Interpretation
of the Declaration: The Association, by and through its Board of
Directors, shall have the exclusive right to construe and interpret the
provisions of this Declaration. In the absence of any adjudication to the
contrary by a court of competent jurisdiction, the Association's construction
or interpretation of the provisions hereof shall be final, conclusive and
binding as to all persons and property benefited or bound by the covenants and
the provisions hereof.
13.5 Attorneys'
Fees: In the event of any dispute under or with respect to this
Declaration or any other Association Document, the prevailing party shall be
entitled to recover from the non-prevailing party all of its costs and expenses
in connection therewith, including but not limited to, reasonable attorneys'
fees and disbursements.
13.6 Protection
of Encumbrancer:
(a) The Association shall furnish to an
Owner or such Owner's designee or mortgagee upon written request, delivered personally
or by certified mail, first class postage prepaid, return receipt requested, to
the Association's registered agent, a statement setting forth the amount of
unpaid assessments currently levied against such Owner's
(b) The Association shall report to any
Owner's mortgagee any unpaid assessments remaining unpaid for more than sixty
(60) days after the same shall have become due. Any mortgagee holding a lien on
a Lot may pay any unpaid assessment with respect to such Lot, together with any
and all costs and expenses incurred with respect to the assessment lien
securing such unpaid assessment, and upon such payment, such mortgagee shall
have a lien on the Lot for the amounts paid with the same priority as a lien of
the mortgage held by such mortgagee.
13.7 Limited
Liability:
(a) No officer or director of the
Association, who was appointed by the Declarant, shall be personally liable to
the Association or any member for any injury, damage, loss, cost or expenses
suffered or incurred by reason of any act, omission of such officer or
director, unless a court of competent jurisdiction finds that such officer or
director breached a fiduciary duty that such officer or director owed to the
Association or a Member.
(b) No officer or director of the
Association, who was not appointed by the Declarant and no employee, agent or
committee member of the Association shall be personally liable to the
Association or a member for any injury, damage, loss, cost or expense suffered
or incurred by reason of any act or omission of such officer, director,
employee, agent or committee member, unless a court of competent jurisdiction
finds that the act or omission of such officer, director, employee, agent or
committee member was wanton and willful
(c)
The Association shall indemnify and hold harmless
each present or former officer, director, employee, agent or committee member
against any and all claims, suits, proceedings, injuries, damages, losses,
costs and expenses, including, but not limited to, attorneys' fees and
disbursements, asserted against or incurred by any such present or former
officer, director, employee, agent or committee member to the fullest extent
permitted by law; provided, however, that in no event shall the Association
indemnify or hold harmless any such officer, director, employee, agent or
committee member to the extent that he or she is personally liable for an act
or omission under Section 13.7(a) or Section 13.7(b) above.
(d)
Neither the Declarant or any Owner, Member, the
Board, any director, nor any officer of the Association shall be personally
liable for debts contracted for, or otherwise incurred by the Association, or
for a tort of any other Member or Owner whether such other Member or Owner was
acting on behalf of the Association or otherwise. Neither the Declarant, the Association, its
directors, officers, agents or employees shall be liable for any incidental or
consequential damages for failure to inspect any premises, improvements or portion
thereof or for failure to repair or maintain the same.
13.8
Use of Trademark: Each Owner by acceptance of a deed, or other
form of conveyance for its
(i)
to acknowledge
that Lookout Mountain West is the trade name and trademark of the Declarant,
and
(ii) to covenant that
it shall not use the term "Lookout Mountain West" without the prior
written consent of Declarant.
13.9 Disclaimer
of Representations: Anything to the
contrary in this Declaration notwithstanding, and except as otherwise may
expressly be set forth on a plat or other instrument recorded in the Office of
the Clerk and Recorder for Burnet County, Texas, Declarant makes no warranties
or representations whatsoever that the plan presently envisioned for the
complete development of Lookout Mountain West can or will be carried out or
that any land now owned or hereafter acquired by Declarant is or will be
subjected to this Declaration, or that any such land, whether or not it has
been subjected to this Declaration, is or will be committed to or developed for
a particular use, or that if such land is once used for a particular use, that
such use will continue in effect
13.10 Venue
and Jurisdiction:
Venue and jurisdiction for any dispute, controversy, or other claim related to
or arising from the Declaration or in any way concerning the Property and/or
Lookout Mountain West shall exclusively lie in state district court with
exclusive venue being in
13.11 Successors
and Assigns: Except as otherwise
provided herein, this Declaration shall be binding upon and shall inure to the
benefit of Declarant, the Association, the Authority, and each Owner and their
respective heirs, personal representatives, successors and assigns.
13.12 Severability: Invalidity or
unenforceability of any provision of this Declaration in whole or in part shall
not affect the validity or enforceability of any other provision or any valid
and enforceable part of a provision of this Declaration.
13.13 Captions:
The captions and headings in this instrument are for convenience only and shall
not be considered in construing any provisions of this Declaration.
13.14 Construction:
When necessary for proper construction, the masculine of any word used in this
Declaration shall include the feminine or neuter gender, and the singular the
plural, and vice versa.
13.15 No
Waiver: Failure to enforce any provisions of this Declaration shall not
operate as a waiver of any such provision or of any other provision of this
Declaration.
13.16
Notices: Registration by
Owner of Mailing Address: Each Owner shall register its mailing address with
the Association, and except for statements and other routine notices, all other
notices or demands intended to be served upon an Owner shall be sent by first
class mail, postage prepaid, addressed in the name of tile Owner at such
registered mailing address. An Owner may change its mailing address from time
to time by delivering written notice of such change of address to the secretary
of the Association. However, if any Owner fails to so notify the Association of
a registered address, then any notice or demand may be delivered to such Owner
at the address of such Owner's Lot or posted at such Owner's
13.17 Approvals:
Whenever an approval of the Association or the Design Review Board is required
pursuant to this Declaration, such approval to be effective must be in writing
and signed by an authorized officer of the Association.
RESERVATION
OF CERTAIN EASEMENTS FOR
BENEFIT
OF ADJOINING PROPERTY
By
acceptance of a conveyance of a