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HomeMy WebLinkAboutDeclaration of Restrictions...etc Doc Bk Vol Pg 'Z*836201 OR 5711 128 • DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS SPRING CREEK TOWNHOMES SUBDIVISION • k o Doc OR 57111 1298 TABLE OF CONTENTS ARTICLE 1. CONCEPTS AND DEFINITIONS Page 1 1.01 "Amended Declaration" Page 2 1.02 "Annual Assessment" Page 2 1.03 "Architectural Review Committee" Page 2 1.04 "Articles" Page 2 1.05 "Assessable Property" Page 2 1.06 "Association" Page 2 1.07 "Board" Page 2 1.08 `Bylaws" Page 2 1.09 "Central Appraisal District" Page 2 1.10 "Common Properties" Page 2 1.11 "Covenants" Page 3 1.12 "Declarant" , Page 3 1.13 "Declaration" Page 3 1.14 "Deed" Page 3 1.15 "Design Guidelines" Page 3 1.16 "Development Period" Page 3 1.17 "Dwelling Unit" .. Page 3 1.18 "Easement Area" Page 3 1.19 `Exempt Property" Page 3 1.20 "Fiscal Year" Page 4 1.21 "Improvement" Page 4 1.22 "Lot" Page 4 1.23 "Member" Page 4 1.24 "Owner" Page 4 1.25 "Payment and Performance Lien" Page 4 1.26 "Property" Page 4 1.27 "Resident" Page 4 1.28 "Structure" Page 4 1.29 "Subdivision" Page 5 1.30 "Taxing Authorities" Page 5 1.31 "Trustee" Page 5 1.32 "Zoning Ordinance" Page 5 ARTICLE 2 PROPERTY SUBJECT TO THIS DECLARATION Page 5 2.01 Existing Property. Page 5 2.02 Additions to Existing Property. Page 5 ARTICLE 3 MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION Page 6 3.01 Membership. Page 6 3.02 Voting Rights. Page 6 3.03 Board of Directors. Page 6 3.04 Notice and Voting Procedures. Page 6 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS i Doc 13k Vol Pg 00836201 OR 5711 130 ARTICLE 4 RIGHTS OF ENJOYMENT IN THE COMMON PROPERTIES Page 7 4.01 Easement. Page 7 4.02 Extent of Members'Easements. Page 7 4.03 Restricted Actions by Members. Page 7 4.04 Damage to the Common Properties. Page 8 4.05 Rules of the Board. Page 8 4.06 Use of Common Properties. Page 8 4.07 User Fees and Charges. Page 8 4.08 Encroachments. Page 8 4.09 Parking Areas. Page 8 ARTICLE 5 COVENANTS FOR ASSESSMENTS Page 9 5.01 Creation of the Lien and Personal Obligation of Assessments. Page 9 5.02 Purposes of Assessments. Page 9 5.03 Basis and Amount of Annual Assessments. • Page 10 5.04 Special Group Assessments. Page 10 5.05 Rate of Assessments. Page 10 5.06 Date of Commencement of Assessments;Due Dates. Page 10 5.07 Duties of the Board of Directors with Respect to Assessments. Page 10 5.08 Effect of Non-Payment of Assessment;the Personal Obligation of the Owner; the Payment and Performance Lien; and Remedies of Association. Page 11 5.09 Power of Sale. Page 12 5.10 Subordination of the Lien to Mortgages. Page 13 5.11 Exempt Property. Page 14 ARTICLE 6 GENERAL POWERS AND DUTIES OF THE BOARD OF DIRECTORS OF THE ASSOCIATION Page 14 6.01 Powers and Duties. Page 14 6.02 Board Powers. Page 16 6.03 Maintenance Contracts. Page 16 6.04 Liability Limitations. Page 16 6.05 Reserve Funds. Page 16 ARTICLE 7 INSURANCE;REPAIR;RESTORATION Page 17 7.01 Right to Purchase Insurance. Page 17 7.02 Insurance and Condemnation Proceeds. Page 17 7.03 Insufficient Proceeds. Page 17 ARTICLE 8 ARCHITECTURAL REVIEW COMMITTEE Page 17 8.01 Membership of ARC Page 17 8.02 Action by ARC Page 17 8.03 Advisory Members Page 17 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS ii Doc Bk Vol Pg 3835201 OR 5711 131 8.04 Term Page 18 8.05 Declarant's Rights of Appointment Page 18 8.06 Adoption of Rules Page 18 8.07 Review of Proposed Construction Page 18 8.08 Actions of the ARC Page 18 8.09 No Waiver of Future Approvals Page 18 8.10 Work in Progress Page 19 8.11 Nonliability of ARC Members Page 19 8.12 Address Page 19 8.13 Failure to Act Page 19 8.14 Variances Page 19 8.15 Governmental Agency Approval Page 19 8.16 Relationship with Association Page 19 ARTICLE 9 GENERAL RESTRICTIONS Page 19 9.01 Construction of Improvements. Page 19 9.02 Antennae and Signals. ,.., Page 19 9.03 Insurance Rates. Page 20 9.04 Subdividing. Page 20 9.05 Signs. Page 20 9.06 Rubbish and Debris. Page 20 9.07 Noise. , Page 20 9.08 Lighting. Page 20 9.09 Nuisance and Lateral Support. Page 20 9.10 Repair of Improvements. Page 20 9.11 Alteration or Removal of Improvements. Page 20 9.12 Roofing Materials. Page 20 9.13 Solar Equipment. Page 21 9.14 Driveway. Page 21 9.15 Tanks. Page 21 9.16 Underground Utility Lines. Page 21 9,17 Drainage. Page 21 9.18 Hazardous Activities. Page 21 9.19 Mining and Drilling. Page 21 9.20 Machinery and Equipment. Page 21 9.21 Temporary Structures. Page 21 9.22 Unsightly Articles;Vehicles;Number of Occupants. Page 22 9,23 Mobile Homes,Travel Trailers,Recreational Vehicles. Page 22 9.24 Fences. Page 22 9.25 Animals-Household Pets. Page 22 9.26 Landscape Design. Page 22 9.27 Construction and Sales Activities. Page 23 9.28 Mailboxes. Page 23 9.29 Sight Lines. Page 23 9.30 Garage Conversions. Page 23 9.31 Use of Common Properties. Page 23 9.32 Compliance with Provisions of this Declaration. Page 23 9.33 No Warranty of Enforceability. Page 23 ARTICLE 10 RESIDENTIAL RESTRICTIONS Page 24 10.01 Residential Use. Page 24 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS III k Doc OR 57111 132 10.02 Garages, Page 24 10.03 Outbuildings. Page 24 10.04 Building Height. Page 24 10.05 Building Materials;Dwelling Size. Page 24 10.06 Set-back Requirements Page 24 10.07 Party Walls and Structures Page 24 10.08 Landscaping;Maintenance. Page 25 10.09 Yard Maintenance;Sprinkler System. Page 26 ARTICLE 11 EASEMENTS Page 26 11.01 Reserved Easements. Page 26 11.02 Installation and Maintenance. Page 26 11.03 Surface Areas. Page 27 11.04 Drainage Easements. Page 27 11.05 Blanket Easement. Page 27 ARTICLE 12 REGISTRATION r Page 27 12.01 Registration with the Association. Page 27 ARTICLE 13 GENERAL PROVISIONS Page 28 13.01 Power of Attorney. Page 28 13.02 Further Development. Page 28 13.03 Duration. Page 28 13.04 Amendments. Page 29 13.05 Enforcement. Page 29 13.06 Validity. Page 29 13.07 Proposals of Declarant. Page 29 13.08 Service Mark. Page 29 13.09 Headings. Page 30 13.10 Notices to Resident/Member/Owner. Page 30 13.11 Notices to Mortgagees. Page 30 13.12 Disputes. Page 30 13.13 Enforcement and Nonwaiver. Page 30 13.14 Assignment by Declarant. Page 30 13.15 Exemption of Declarant. Page 31 13.16 Interpretation. Page 31 13.17 Construction. Page 31 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS iv 10c Bk V 8362 1 OR 57111 1338 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS SPRING CREEK TOWNHOMES SUBDIVISION This DECLARATION OF CONVENANTS, CONDITIONS AND RESTRICTIONS of Spring Creek Townhomes Subdivision, is made and effective as of the 3ls"r day of October, 2003, by Spring Creek CS Development, Ltd., (sometimes referred to herein as the "Declarant") and Stylecraft Builders, Inc. ("Stylecraft"): PREAMBLE Declarant is the owner and developer of certain residential Lots within a 18.840 acre tract of land now commonly known and described as the Spring Creek Townhomes Subdivision (which lots are more particularly described on the plat of Spring Creek Townhomes Subdivision, recorded in Volume 5513, Page 14, Official Records of Brazos County, Texas). Stylecraft is the owner of Lots 1, 2, 3 and 4, Block 2 and Lots 20, 21, 22, 23, 24 and 25, Block 4 and wishes to make such Lots subject to this Declaration. Declarant proposes to establish and implement plans for residential living, recreation, aesthetic and quality-of-life considerations. The purposes of this Declaration is to: protect the Declarant and the Owners against inappropriate development and use of Lots within the Subdivision;, provide for the use, maintenance and repair of compatibility of design of improvements within the Subdivision; secure and preserve sufficient setbacks and space between buildings so as to create an aesthetically pleasing environment; provide for landscaping and the maintenance thereof; and in general to encourage construction of attractive, quality, permanent improvements that will promote the general welfare of the Declarant and the Owners. Declarant and Stylecraft desire to impose these restrictions on the Property now and yet retain reasonable flexibility to respond to changing or unforeseen circumstances so as to guide, control and maintain the quality and distinction of the Spring Creek Townhomes Subdivision. The restrictive covenants herein will preserve the best interests of the Declarant, Stylecraft and the Owners and Residents of Spring Creek Townhomes Subdivision after completion of all development and construction therein. The Spring Creek Townhomes Owners Association, Inc. (the "Association") has been or will be chartered as a non-profit Texas corporation to assist in the ownership, management, use and care of the various common areas within Spring Creek Townhomes Subdivision, to assist with Lot maintenance as provided herein and to assist in the administration and enforcement of the covenants, conditions, restrictions, easements, charges and liens set forth with this Declaration. DECLARATION The Declarant hereby declares that the Property, and such phases or additions hereto as may hereafter be made pursuant to Article 2 hereof, are and shall be owned, held, mortgaged, transferred, sold, conveyed and occupied subject to this Declaration and the covenants, conditions, restrictions, easements, charges and liens (sometimes collectively referred to hereinafter as"the Covenants")set forth in this Declaration. ARTICLE 1. CONCEPTS AND DEFINITIONS The following words, when used in this Declaration or in any amended or supplementary declarations (unless the context shall otherwise clearly indicate or prohibit), shall have the following meanings: DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 1 Doc Bk Vol Pg 10836201 OR 5711 134 1.01 "Amended Declaration"shall mean and refer to each and every instrument recorded in the Official Records of Brazos County, Texas which amends, supplements, modifies, clarifies or restates some or all of the terms and provisions of this Declaration. 1.02 "Annual Assessment"shall have the meaning specified in Article 5 below. 1.03 "Architectural Review Committee"(sometimes referred to herein as the"ARC")shall mean and refer to the committee which is described in Article 8 below. 1.04 "Articles" shall mean and refer to the Articles of Incorporation (and amendments thereto and restatements thereof)of the Association on file with the Secretary of State of Texas. 1.05 "Assessable Property" shall mean and refer to each and every lot (including the lots owned by Stylecraft), within the Property which: (i)the Declarant has subjected to and imposed upon a set of restrictive covenants calling for the payment of an Annual Assessment to the Association; (ii) may have been or will be given a separately identifiable tax or parcel number by the Central Appraisal District ("CAD") or a similar governmental agency; and (iii) is not designated an "open space" or otherwise a portion of the Common Properties. The Declarant proposes to cause. each residential Lot within the Property to constitute an Assessable Property. However, the Declarant reserves the right and discretion to include or exclude any non-residential Lot from the concept of "Assessable Property" and/or to prescribe a different assessment and/or valuation scheme(s)for any non-residential Lot. 1.06 "Association" shall mean and refer to Spring Creek Townhomes, Inc., a non-profit Texas corporation which has the power, duty and responsibility of maintaining and administering certain portions of the Property and all of the Common Properties, administering and enforcing the Covenants and otherwise maintaining and enhancing the quality of life within Spring Creek Townhomes Subdivision. 1.07 "Board" shall mean and refer to the Board of Directors of the Association. 1.08 "Bylaws" shall mean and refer to the Bylaws of the Association, as adapted and amended from time to time. 1.09 "Central Appraisal District" ("CAD") shall mean and refer to the governmental and/or quasi-governmental agency(ies) (including without limitation the Central Appraisal District of Brazos County) established in accordance with Texas Tax Code Section 6.01 et seq. (and its successor and assigns as such law may be amended from time to time) or other similar statute which has, as one of its purposes and functions, the establishment of an assessed valuation and/or fair market value for various lots, parcels and tracts of land in Brazos County, Texas. 1.10 "Common Properties" shall mean and refer to any and all areas of land within the Property which are known, described or designated as common areas, parking lots, pools, parks, recreational easements, stormwater detention areas, floodway easement areas, lakes, ponds, dams, perimeter fences and columns, off-site monuments and directional signs, landscape easement, greenbelts, open spaces, paths and trails, and the like including without limitation those shown on any recorded subdivision plat of portions of the Property as well as those not shown on a recorded subdivision plat but which are intended for or devoted to the common use and enjoyment of the Members of the Association, together with any and all improvements that are now or that may hereafter be constructed thereon. The concept of Common Properties will also include: (i) any and all public right-of-way lands within the Property for which the City of College Station has required that the Declarant and/or the Association expend private, non- reimbursable time and monies to care for and maintain, such as but not limited to: street medians, streetscape, hike and bike trails, park areas and quasi-governmental service facilities; and (ii) any and all facilities provided by the Declarant and/or the Association to or for the benefit of the local police, fire and similar governmental departments for which no reimbursement via public funds is requested or anticipated. Declarant may convey record title or easements to some or all of the Common Properties to DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 2 Doc Bk V o Pg )0836201 OR 57111 135 the Association if, as and when deemed appropriate by Declarant or as may be required by governmental officials, and Declarant shall at all times have and retain the right to effect minor redesigns or minor reconfigurations of the Common Properties (particularly along the edges) and to execute any open space declarations applicable to the Common Properties which may be permitted in order to reduce property taxes, and to take whatever steps may be appropriate to lawfully avoid or minimize the imposition of federal and state ad valorem and/or income taxes. 1.11 "Covenants" shall mean and refer to all covenants, conditions, restrictions, easements, charges and liens set forth within this Declaration. 1.12 "Declarant" shall mean and refer to Spring Creek CS Development, Ltd. and any successor(s) and assign(s) of Spring Creek CS Development, Ltd., with respect to the voluntary disposition of all (or substantially all) of the assets and/or ownership interests of Spring Creek CS Development, Ltd., and/or the voluntary disposition of all (or substantially all) of the right, title and interest of Spring Creek CS Development, Ltd. in and to the Property. However, no person or entity (including, without limitation, Stylecraft) merely purchasing one or more Lots from Spring Creek CS Development, Ltd. in the ordinary course of business shall be considered a"Declarant". 1.13 "Declaration" shall mean this instrument entitled the "Declaration of Covenants, Conditions and Restrictions for Spring Creek Towhhomes Subdivision", recorded in the Official Records of Brazos County, Texas, together with any and all amendments or supplements thereto. 1.14 "Deed" shall mean and refer to any deed, assignment, testamentary bequest, muniment of title or other instrument, or intestate inheritance and succession, conveying or transferring fee simple title or a leasehold interest or another legally recognized estate in a Lot. 1.15 "Design Guidelines"shall mean the guidelines described in Section 8.06. 1.16 "Development Period" shall mean a period commencing on the date of the recording of this Declaration in the Official Records of Brazos County, Texas and continuing thereafter until and ending on the earlier to occur of: (i) substantial completion of all development (including without limitation the completion and sale of all Lots in the Subdivision to third parties) on the Property; (ii) the tenth (101h) anniversary of the date of recordation of this Declaration in the Official Records of Brazos County, Texas; or(iii)the date determined by Declarant to be the end of the Development Period. 1.17 "Dwelling Unit" shall mean and refer to any building or portion of a building situated upon the Property which is designed and intended for use and occupancy as a residence by a single person, a couple, a family or a permitted family size group of persons. 1.18 "Easement Area" shall mean and refer to those areas which may be covered by an easement specified in Article 11 below. 1.19 "Exempt Property" shall mean and refer to the following portions of the Property: (i) all land and Improvements owned by the United States of America, the State of Texas, Brazos County, the City of College Station or any instrumentality, political subdivision or agency of any such governmental entity acting in a governmental capacity; (ii) all land and Improvements owned (including legal and beneficial ownership, whether now or in the future) by the Association or constituting a portion of the Common Properties; (iii) all land and Improvements which are not only exempt from the payment of ad valorem real property taxes by the City of College Station, Brazos County, the College Station Independent School District, and the State of Texas, but also are exempt from the payment of any assessment hereunder as expressly determined by written resolution of the Declarant and/or the Association all Lots owned by Declarant; and (iv) such other land(s) and/or Improvement(s) and/or Lot(s) which are specifically exempted from the payment of Annual Assessments in accordance with a special resolution of the Board. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 3 Doc Bk Vol Pg )0836201 OR 5711 136 1.20 "Fiscal Year' shall mean each twelve (12) month period commencing on January 1 and ending on the following December 31, unless the Board shall otherwise select an alternative twelve month period. 1.21 "Improvement" shall mean any physical change to raw land or to an existing structure which alters the physical appearance, characteristics or properties of the land or structure, including but not limited to adding or removing square footage area space to or from a structure, painting or repainting a structure, or in any way altering the size, shape or physical appearance of any land or structure. 1.22 "Lot" shall mean and refer to each separately identifiable portion of the Assessable Property which is platted, filed and recorded in the Official Records of Brazos County, Texas and which is assessed by any one or more of the Taxing Authorities and which is not intended to be an "open space"or a portion of the Common Properties. 1.23 "Member" shall mean and refer to each Resident who is in good standing with the Association and who has filed a proper statement of residency with the Association and who has complied with all directives and requirements of the Association. Each and every Owner shall and must take such affirmative steps as are necessary to become and remain a Member of, and in good standing in, the Association. Each and every Resident (who is not otherwise an Owner) may, but,is not required to, be a Member of the Association. 1.24 "Owner" shall mean and refer to the holder(s) of record title to the fee simple interest of any Lot whether or not such holder(s) actually reside(s)on any part of the Lot. 1.25 "Payment and Performance Lien" shall mean and refer to the lien described within Sections 5.08 and 5.09 of Article 5 hereinbelow. 1.26 "Property" shall mean and refer to the land described as Spring Creek Townhomes Subdivision, College Station, Texas, according to plat recorded at Volume 5513, Page 148, in the Official Records of Brazos County, Texas, and such other lands made subject to this Declaration pursuant to Section 2.02. 1.27 "Resident"shall mean and refer to: (a) each owner of the fee simple title to any Lot within the Property; (b) each person residing on any part of the Assessable Property who is a bona-fide lessee pursuant to a legally cognizable lease agreement with an Owner; and (c) each individual lawfully domiciled in a Dwelling Unit, other than Owner or bona-fide lessee. 1.28 "Structure" shall mean and refer to: (i) any thing or device, other than trees, shrubbery (less than two feet high if in the form of a hedge) and landscaping (the placement of which upon any Lot shall not adversely affect the appearance of such Lot) including but not limited to any building, garage, porch, shed, greenhouse or bathhouse, cabana, coop or cage, covered or uncovered patio, swimming pool, play apparatus, clothesline, fence, curbing, paving, wall or hedge more than two feet in height, signboard or other temporary or permanent living quarters or any temporary or permanent Improvement to any Lot; (ii)any excavation, fill,ditch, diversion dam or other thing or device which affects or alters the flow of any waters in any natural or artificial stream, wash or drainage channel from, upon or across any Lot; (iii) any enclosure or receptacle for the concealment, collection and/or disposition of refuse; and (iv) any change in the grade of any Lot of more than three (3) inches from that existing at the time of initial approval by the Architectural Review Committee. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 4 10836201 OR 5711 137 1.29 "Subdivision" shall mean and refer to the Spring Creek Townhomes Subdivision, a subdivision of certain land as described on the plat thereof recorded in Volume 5513, Page 148 of the Official Records of Brazos County, Texas, as well as any and all revisions, modifications, corrections, or clarifications thereto. 1.30 "Taxing Authorities" shall mean and refer to Brazos County, the College Station Independent School District, the City of College Station and the State of Texas and any and all other governmental entities or agencies which have, or may in the future have, the power and authority to impose and collect ad valorem taxes on real property estates. 1.31 "Trustee" shall mean and refer to that certain individual (s) or entity (ies) designated or appointed from time to time and at any time by the Association to perform the duties and responsibilities described within Section 5.09 of Article 5 below, and its successors and assigns. 1.32 "Zoning Ordinance" shall mean and refer to City of College Station zoning ordinances, governmental regulations, and all amendments thereto. ARTICLE 2 PROPERTY SUBJECT TO THIS DECLARATION 2.01 Existing Property. The residential Lots which are, and shall be, held, transferred, sold, conveyed and occupied subject,to this Declaration within the Spring Creek Townhomes Subdivision are more particularly described on the plat recorded at Volume 5513, Page 148, in the Official Records of Brazos County, Texas. 2.02 Additions to Existinq Property. Additional land(s) may become subject to this Declaration, or the general scheme envisioned by this Declaration, as follows: (a) The Declarant may(without the joinder and consent of any person or entity) add or annex real property additions to the scheme of this Declaration by filing of record an appropriate enabling declaration, generally similar to this Declaration, which may extend the scheme of the Covenants to such property. Provided further however, such other declaration (s) may contain such complementary additions and modifications of these Covenants as may be necessary to reflect the different character, if any, of the added properties and as are not inconsistent with the concept and purpose of this Declaration. (b) In the event any person or entity other than the Declarant desires to add or annex additional Assessable Property and/or Common Property to the scheme of this Declaration, such annexation proposal must have the express approval of the Board. Any additions made pursuant to this Section 2.02, when made, shall automatically extend the jurisdiction, functions, duties and membership of the Association to the properties added and correspondingly subject the properties added to the covenants of the enabling declaration. Upon any merger or consolidation of the Association with another association, its properties, rights and obligations may, by operation of law or by lawful articles or agreement of merger, be transferred to another surviving or consolidated association or, alternatively, the properties, rights and obligations of another association may, by operation of law or by lawful articles or agreement of merger, be added to the properties, rights and obligations of the Association as a surviving corporation pursuant to a merger. The surviving or consolidated association may administer the Covenants established by this Declaration, together with the covenants and restrictions established upon any other properties, as one scheme. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 5 Doc Bk V o Pg *836201 OR 57111 138 ARTICLE 3 MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION 3.01 Membership. Each and every Owner of each and every Lot which is subjected to these Covenants shall automatically be, and must at all times remain, a Member of the Association in good standing. Each and every Resident (who is not otherwise an Owner)may, but is not required to, be a non- voting Member of the Association. During the Development Period, the Association shall have two (2) classes of Members: Class A and Class B. The Class A Members shall include: (a) all Owners (other than the Declarant during the Development Period); and (b) all Residents (not otherwise Owners) who have properly and timely fulfilled all registration and related requirements prescribed by the Association. The Class B Member shall be the Declarant. 3.02 Voting Rights. The two (2) classes of voting Members shall have the following voting rights during the Development Period: Class A: The Owner(s)of each Lot(other than Declarant)shall be entitled to no votes. Class B: The Class B Member shall have one(1)vote for each Lot it owns. After the Development Period, there shall be one class of voting Members as follows: The Owner (s)of each Lot shall be entitled to one (1)vote per Lot. Where more than one (1) Owner owns and holds a record fee interest in a Lot such Owners may divide and cast portions of the one (1) vote as they decide, but in no event shall any one (1),Lot yield more than one(1)vote. An Owner must be in good standing before being entitled to vote. Any Owner, Resident or Member shall not be in "good standing" if such person or entity is: (a) in violation of any portion of these Covenants, or any rule or regulation promulgated by the Board; (b) delinquent in the full, complete and timely payment of any Annual Assessment, special assessment, or any other fee, charge or fine which is levied, payable or collectible pursuant to the provisions of these Covenants, the Bylaws or any rule or regulation promulgated by the Board. The Board may make such rules and regulations, consistent with the terms of this Declaration and the Bylaws, as it deems advisable, for: any meeting of Members; proof of membership in the Association; the status of good standing; evidence of right to vote; the appointment and duties of examiners and inspectors of votes; the procedures for actual voting in person or by proxy; registration of Members for voting purposes; and such other matters concerning the conduct of meetings and voting as the Board shall deem fit. 3.03 Board of Directors. During the Development Period, the affairs of the Association shall be managed initially by a board of three (3) individuals elected by the Class B Member. However, after the Development Period, the Board shall consist of at least three (3) individual Directors elected by the Members. The Directors need not be Members of the Association. Directors shall be elected for two year terms of office and shall serve until their respective successors are elected and qualified. After the Development Period, any vacancy which occurs in the board, by reason of death, resignation, removal, or otherwise, may be filled at any meeting of the board by the affirmative vote of a majority of the remaining Directors. Any Director elected to fill a vacancy shall serve as such until the expiration of the term of the Director whose position he or she was elected to fill. 3.04 Notice and Voting Procedures. Quorum, notice and voting requirements of and pertaining to the Association may be set forth within the Articles and Bylaws, as either or both may be amended from time to time, and shall be in accordance with permitted Texas law. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 6 Doe 00836201 OR 57111 1399 ARTICLE 4 RIGHTS OF ENJOYMENT IN THE COMMON PROPERTIES 4.01 Easement. Subject to the provisions of Sections 4.02 through 4.07, each and every Owner in good standing with the Association shall have a non-exclusive right and easement of enjoyment in and to all Common Properties, and such easement shall be appurtenant to and shall pass with every Lot, provided the conveyance and transfer is accomplished in accordance with this Declaration. All Residents in good standing with the Association shall have a non-transferable, non-exclusive privilege to use and enjoy all Common Properties for so long as they are Members in good standing with the Association. 4.02 Extent of Members' Easements. The rights and easements of use, recreation and enjoyment created hereby shall be subject to the following: (a) The right of the Declarant or Association to prescribe reasonable regulations (e.g. limitations on parking on or in the streets and parking areas) and policies governing, and to charge reasonable expense reimbursements and/or deposits related to, the use, operation and maintenance of the Common Properties; (b) Liens or mortgages placed against all or any portion of the Common Properties with respect to monies borrowed by the Declarant to develop and improve the Property or Common Properties or by the Association to improve or maintain the Common Properties; (c) The right of the Association to enter into and execute contracts with any party (including, without limitation, the Declarant or its affiliates)for the purpose of providing management, maintenance or such other materials or services consistent with the purposes of the Association and/or this Declaration; (d) The right of the Declarant or the Association to take such steps as are reasonably necessary to protect the Common Properties against foreclosure; (e) The right of the Declarant or the Association to enter into and execute contracts with the owner-operators of any community antenna television system ("CATV") or other similar operation for the purpose of extending cable or utility or security service on, over or under the Common Properties to ultimately provide service to one or more of the Lots; (f) The right of the Declarant or the Association in accordance with the requirements of the Texas Property Code to suspend the voting rights of any Member and to suspend the right of any Member to use or enjoy any of the Common Properties for any period during which any assessment (including without limitation "fines") against a Lot resided upon by such Member remains unpaid, or during which non-compliance with this Declaration exists, and otherwise for any period deemed reasonable by the Association for any infraction of the then-existing rules and regulations and/or architectural guidelines; (g) The right of the Declarant and/or the Association to dedicate or transfer all or any part of the Common Properties to any municipal corporation, public agency, governmental authority, or utility for such purposes and upon such conditions as may be agreed to by the Declarant and the Board; and (h) The right of the Declarant and/or the Association to grant permits, licenses and easements over the Common Properties for utilities, roads and other purposes necessary for the proper operation of Spring Creek Townhomes Subdivision. 4.03 Restricted Actions by Members. No Member shall permit anything to be done on or in the Common Properties which would violate any applicable public law or Zoning Ordinance or which would DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 7 Pg )@836201 OR 57111 140 result in the cancellation of or the increase of premiums for any insurance carried by the Association, or which would be in violation of any law or any rule or regulation promulgated by the Board. 4.04 Damage to the Common Properties. Each Member shall be liable to the Association for any damage to any portion of the Common Properties caused by the negligence or willful misconduct of the Member or his family and guests. 4.05 Rules of the Board. All Members shall abide by any rules and regulations adopted by the Board. The Board shall have the power to enforce compliance with said rules and regulations by all appropriate legal and equitable remedies, and a Member determined to have violated said rules and regulations shall be liable to the Association for all damages and costs, including reasonable attorneys' fees. 4,06 Use of Common Properties. The Board shall have the power and authority to prescribe rules and regulations which extend to and cover matters such as (but not limited to) the possession and consumption of alcoholic beverages, loud and obnoxious noises and behavior, and the supervision by attending adults of children. No person or entity (excluding the Declarant) shall use any portion of the Common Properties to: (a) solicit, promote or conduct business, religious, political or propaganda matters; (b) distribute handbills, newsletters, flyers, circulars or other printed materials, without the prior written consent of the Association (which consent may be withheld in its sole and absolute discretion). The Association may, on its own motion, permit and allow reasonable activities to occur on the Common Properties in accordance with rules and regulations deemed reasonable and appropriate by the Association. 4.07 User Fees and Charges. The Board may levy and collect special charges and fees for any and all extraordinary operation and maintenance of the Common Properties and services which the Board determines to be necessary for the advancement, benefit and welfare of the Owners or Residents. Examples (by way of illustration, and not limitation) of these special charges and fees would include: extraordinary utility consumption; additional gate and/or security personnel for parties or special events; management overtime services; and additional insurance conditions or requirements. In establishing special user fees, the Board may formulate reasonable classifications of users. Such fees should be uniform within each class but need not be uniform from class to class. If an Owner shall fail to pay a charge or fee when due and payable, said unpaid charge or fee shall be delinquent and upon written notice to said Owner shall become a personal debt of said Owner. Failure of any Owner to pay said fee and charge when due and payable, in addition, shall be a breach of these Covenants. 4.08 Encroachments. If: (a) construction, reconstruction or repair activities which have been approved by the ARC; or (b) shifting, settlement or other movements of any portion of ARC approved improvements, results either in the Common Properties encroaching on a Lot or Dwelling Unit or in a Lot or Dwelling Unit encroaching on the Common Properties or on another Lot or Dwelling Unit, and unless otherwise directed by the ARC, a valid easement shall then and there exist to permit the encroachment and reasonable and necessary maintenance activities related thereto. 4.09 Parking Areas. The parking areas within Spring Creek Townhomes Subdivision are "private" and constitute a portion of the Common Properties which are subject to the jurisdiction and administration by the Association. In addition to the other provisions appearing within this Article, the Board of Directors of the Association is specifically authorized to recommend, adopt, implement and enforce rules, regulations, mechanisms and procedures governing use of the parking areas, including without limitation: DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 8 Pg Doe OR 5711 141 (a) identification of vehicles entitled to park in such areas; (b) a "fines" system through which the Association can levy and collect fines from its Members for violations of the applicable rules and regulations; and (c) disclaimers of liability for any and all matters or occurrences on or related to the Common Properties. ARTICLE 5 COVENANTS FOR ASSESSMENTS 5.01 Creation of the Lien and Personal Obligation of Assessments. Declarant, for each Lot owned by it within the Subdivision, hereby covenants and agrees, and each subsequent Owner of any Lot, by acceptance of a Deed therefor, whether or not it shall be so expressed in any such Deed or other conveyance, shall be deemed to covenant and agree (and such covenant and agreement shall be deemed to constitute a portion of the purchase money and consideration for acquisition of the Lot so as to have affected the purchase price) to pay to the Association (or to an independent entity or agency which may be designated by the Association to receive such monies): (a) regular Annual Assessments; (b) special group assessments for capital improvements or unusual or emergency matters, such assessments to be fixed, established and collected from time to time as hereinafter provided; (c) special individual assessments levied against individual Owners to reimburse the Association for extra or unusual costs incurred for items such as (but no limited to): maintenance and repairs to portions of the Property caused by the willful or negligent acts of the individual Owner, Member or Resident; the remedy, cure or minimizing of problems cause by, or as a result of, violations of these Covenants by an Owner, Member or Resident; and (d) individual assessments and fines levied against an individual Owner, Member or Resident for violations of rules and regulations pertaining to the Association and/or the Common Properties. The regular, special group, special individual and individual assessments, together with such late charges, interest and costs of collection thereof as are 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 and shall also be the continuing personal obligation of the then-existing Owner, Member and Resident of such Lot at the time when the assessment fell due. Each Owner of each Lot shall be directly liable and responsible to the Association for the acts, conduct and omission of each and every Member and Resident associated with the Dwelling Unit (s) on such Owner's Lot. 5.02 Purposes of Assessments. The assessments levied by the Association shall be used for the purposes of promoting the comfort, health, recreation, safety, convenience, welfare and quality of life of the Residents of the Property and in supplementing some services and facilities normally provided by or associated with governmental or quasi-governmental entities, and otherwise for the improvement and maintenance of parking lots, pools, parks, floodway easement areas, walkways, common green, ponds, lakes, recreational areas and other properties, services and facilities devoted and related to the use and enjoyment of the Common Properties and operation of the Association, including, but not limited to or for: the payment of taxes on the Common Properties and insurance in connection with the Common Properties; the payment for utilities and the repair, replacement and additions of various items within the Common Properties; paying the cost of labor, equipment (including the expense of leasing any equipment) and materials required for, and management and supervision of, the Common Properties; carrying out the duties of the Board of Directors of the Association as set forth in Articles 4 and 6 herein; DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 9 lac Bk Vol Pg 0836201 OR 5711 142 carrying out the other various matters set forth or envisioned herein or in any Amended Supplemental Declaration related hereto; and for any matter or thing designated by the City of College Station in connection with any zoning, subdivision, platting, building, development or occupancy requirements. The items and areas described above are not intended to be exhaustive but merely illustrative. 5.03 Basis and Amount of Annual Assessments. Until and unless otherwise determined by the Board of Directors of the Association, the initial regular, annual base assessment shall be Eighty-five Dollars ($85.00) per Lot per month for the maintenance of the Common Properties and Lot lawn maintenance as described in Section 10.09 and any common sprinkler operating costs and maintenance (the "Annual Assessment"). The Association's Board of Directors may fix and modify from time to time, the actual regular base assessment. Notwithstanding any provision herein to the contrary, any and all Lots owned by the Declarant during the Development Period shall be exempt from the payment of any and all assessments of any kind or character. Regular base assessments on a Lot shall begin upon sale of a fully completed Dwelling Unit and lot to a third party other than the builder of the Dwelling Unit, unless such builder uses or leases the Dwelling Unit for single family residence purposes. 5.04 Special Group Assessments. In addition to the regular Annual Assessment authorized by Section 5.03 hereof, the Association may levy in any Fiscal Year a special assessment, applicable to that year only, for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, unexpected repair or replacement of a capital improvement upon the Common Properties, including any necessary fixtures and personal property related thereto or for any unusual or emergency purpose (s) (including without limitation those matters arising out of litigation and/or judgments); provided that any such assessment shall have the affirmative approval of at least two-thirds of the individuals comprising the Board. 5.05 Rate of Assessments. Both regular and special group assessments must be fixed at a uniform rate for all residential Lots owned by Class A Members, unless otherwise approved by at least two-thirds of the individuals comprising the Board. 5.06 Date of Commencement of Assessments; Due Dates. The Annual Assessment shall be due and payable in twelve equal monthly installments in advance on the first day of each month and shall, if not automatically paid within ten (10) consecutive calendar days thereafter, automatically become delinquent. The Board shall use reasonable efforts to provide each Owner with an invoice statement of the appropriate amount due, but any failure to provide such a notice shall not relieve any Owner of the obligation established by the preceding sentence. The Board may further prescribe: (a) procedures for collecting advance regular Annual Assessments from new Owners, Members or Residents out of"closing transactions'; and (b)different procedures for collecting assessments from Owners who have had a recent history of being untimely in the payment(s) of assessments. 5.07 Duties of the Board of Directors with Respect to Assessments. (a) In the event of a revision to the amount or rate of the Annual Assessment, or establishment of a special group assessment, the Board shall fix the amount of the assessment against each Lot, and the applicable due date(s)for each assessment, at least sixty(60) days in advance of such date or period and shall, at that time, prepare a roster of the Lots and assessments applicable thereto which shall be kept in the office of the Association; (b) Written notice of the applicable assessment shall be actually or constructively furnished to every Owner subject thereto in accordance with the procedures then determined by the Board as being reasonable and economical; and DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 10 Pg Do OR 5711 143 (c) The Board shall, upon reasonable demand, furnish to any Owner originally liable for said assessment, a certificate in writing signed by an officer of the Association, setting forth whether said assessment has been paid. Such certificate shall be conclusive evidence of payment of any assessment therein stated to have been paid. A reasonable charge may be made by the Board for the issuance of such certificate. 5.08 Effect of Non-Payment of Assessment; the Personal Obligation of the Owner; the Payment and Performance Lien; and Remedies of Association. (a) Effective as of, and from and after the filing and recordation of this Declaration, there shall exist a self-executing and continuing contract Payment and Performance Lien and equitable charge on each Lot to secure the full and timely payment of each and all assessments and all other charges and monetary amounts and performance obligations due hereunder. Such lien shall be at all times superior to any claim of homestead by or in any Owner. If any assessment, charge or fine or any part thereof is not paid on the date(s)when due, then the unpaid amount of such assessment, charge or fine shall (after the passage of any stated grace period)be considered delinquent and shall, together with any late charge and interest thereon at the highest lawful rate of interest per annum and costs of collection thereof, become a continuing debt secured by the self-executing Payment and Performance Lien on the Lot of the non- paying Owner/Member/Resident which shall bind such Lot in the hands of the Owner and Owner's heirs, executors, administrators, devisees, personal representatives, successors and assigns. The Association shall have the right to reject partial payments of an unpaid assessment or other monetary obligation and demand the full payment thereof. The personal obligation of the then existing Owner to pay such assessment, however, shall remain the Owner's personal obligation and shall not pass to Owner's successors in title unless expressly assumed by them. However, the lien for unpaid assessments shall be unaffected by any sale or assignment of a Lot and shall continue in full force and effect. No Owner may waive or otherwise escape liability for any assessment provided herein by non-use of the Common Properties or abandonment of the Lot. No diminution or abatement of assessments shall be claimed or allowed by reason of any alleged failure of the Association to take some action or to perform some function required to be taken or performed by the Association, or for inconvenience or discomfort arising from the making of improvements or repairs which are the responsibility of the Association, or from any action taken by the Association to comply with any law, ordinance, or with any order or directive of any municipal or other governmental authority, the obligation to pay such assessments being a separate and independent covenant on the part of each Owner; (b) The Association may also give written notification to the holder(s) of any mortgage on the Lot of the non-paying Owner of such Owner's default in paying any assessment, charge or fine, particularly where the Association has theretofore been furnished in writing with the correct name and address of the holder(s) of such mortgage, a reasonable supply of self-addressed postage prepaid envelopes, and a written request to receive such notification; (c) If any assessment, charge or fine or part thereof is not paid when due, the Association shall have the right and option to impose a late charge (but only to the extent permitted by applicable law) to cover the additional administrative costs involved in handling the account. The unpaid amount of any such delinquent assessment, charge, or fine shall bear interest from and after the date when due at the highest lawful rate of interest per annum until fully paid. The Association may, at its election, retain the services of an attorney to review, monitor and/or collect unpaid assessments, charges, fines and delinquent accounts, and there shall also be added to the amount of any unpaid assessment, charge, fine or any delinquent account any and all attorneys' fees and other costs of collection incurred by the Association; (d) The Association may, at its discretion be subject to all applicable debt collection statutes: (i) prepare and file a lien affidavit in the public records of Brazos County, Texas which specifically identifies the unpaid assessments, charges or fines; and (ii) publish and post, within one or more locations within the Property, a list of those individuals or entities who are delinquent and, if applicable, their DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 11 'toc Bk V 0836201 OR 57111 1448 suspended use and enjoyment of the Common Properties until and unless the delinquency has been cured to the reasonable satisfaction of the Association. Each Owner consents to these procedures and authorizes the Board to undertake such measures for the general benefit of the Association; (e) All agreements between any Owner and the Association and/or Declarant, whether now existing or hereafter arising and whether written or oral and whether implied or otherwise, are hereby expressly limited so that in no contingency or event whatsoever shall the amount paid, or agreed to be paid, to the Association and/or Declarant or for the payment of performance of any covenant or obligation contained herein or in any other document exceed the maximum amount permissible under applicable law. If, from any circumstance whatsoever fulfillment of any provision hereof or of such other document at the time performance of such provision shall be due, shall involve transcending the limit of validity prescribed by law, then, ipso facto, the obligation to be fulfilled shall be reduced to the limit of such validity, and if from any such circumstances the Association and/or Declarant should ever receive an amount deemed interest by applicable law which shall exceed the highest lawful rate, such amount which would be excessive interest shall be applied to the reduction of the actual base assessment amount or principal amount owing hereunder and other indebtedness of the Owner to the Association and/or Declarant and not to the payment of interest of if such excessive interest exceeds the unpaid balance of the actual Annual Assessment hereof and such other indebtedness, the excess shall be refunded to Owner. All sums paid or agreed to be paid by any Owner for the use, forebearance or detention of any indebtedness to the Association and/or Declarant shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread so that the interest charged, collected or received on account of such indebtedness is never more than the maximum amount permitted by applicable law. The terms and provisions of this paragraph shall control and supersede every other provision of all agreements between any Owner and the Association and/or Declarant. 5.09 Power of Sale. (a) The lien described within the preceding Section is and shall be a contract Payment and Performance Lien, Each Owner, for the purpose of better securing each and all monetary obligations described within these Covenants, and in consideration of the benefits received and to be received by virtue of the ownership of real estate within Spring Creek Townhomes Subdivision, has granted, sold and conveyed and by these covenants does grant, sell and convey unto the Trustee, such Owner's Lot. To have and to hold such Lot, together with the rights, privileges and appurtenances thereto belonging unto the said Trustee, and to its substitutes or successors, forever. And each Owner does hereby bind himself and/or herself, their heirs, executors, administrators and assigns to warrant and forever defend the Lot unto the said Trustee, its substitutes or successors and assigns, forever, against the claim, or claims of all persons claiming or to claim the same or any part thereof. (b) This conveyance is made in trust to secure payment of each and all assessments and other obligations prescribed by these Covenants to and for the benefit of the Association as the Beneficiary. In the event of default in the payment of any obligation hereby secured, in accordance with the terms thereof, then and in such event, Beneficiary may elect to declare the entire indebtedness hereby secured with all interest accrued thereon and all other sums hereby secured due and payable (subject, however, to the notice and cure provisions set forth in Section 51.002 of the Texas Property Code), and in the event of default in the payment of said indebtedness when due or declared due, it shall thereupon, or at any time thereafter, be the duty of the Trustee, or its successor or substitute as hereinafter provided, at the request of Beneficiary(which request is hereby conclusively presumed), to enforce this trust; and after advertising the time, place and terms of the sale of the Lot then subject to the lien hereof, and mailing and filing notices as required by Section 51.002, Texas Property Code, as then amended and otherwise complying with that statute, then Trustee shall sell the Lot, then subject to the lien hereof, at public auction in accordance with such notices on the first Tuesday in any month between the hours of ten o'clock A.M. and four o'clock P.M., to the highest bidder for cash, selling all of the Lot as an entirety or in such parcels as the Trustee acting may elect, and make due conveyance to the Purchaser or Purchasers, with general warranty binding upon the Owner, his heirs and assigns; and out of the money arising from such sale, the DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 12 Doc OR 57111 1458 Trustee acting shall pay first, all the expenses of advertising the sale and making the conveyance, including a reasonable commission to itself, which commission shall be due and owing in addition to the attorney's fees provided for, and then to Beneficiary the full amount of principal, interest, attorney's fees and other charges due and unpaid on said indebtedness secured hereby, rendering the balance of the sales price, if any, to the Owner, his heirs or assigns and/or to any other lienholders (if so required by applicable law); and the recitals in the conveyance to the Purchaser or Purchasers shall be full and conclusive evidence of the truth of the matters therein stated, and all prerequisites to said sale shall be presumed to have been performed, and such sale and conveyance shall be conclusive against the Owner, his heirs and assigns. (c) It is agreed that in the event a foreclosure hereunder should be commenced by the Trustee, or its substitute or successor, Beneficiary may at any time before the sale of said property direct the said Trustee to abandon the sale, and may then institute suit for the collection of said indebtedness, and for the foreclosure of this contract Payment and Performance Lien; it is further agreed that if Beneficiary should institute a suit for the collection thereof, and for a foreclosure of this contract lien, that it may at any time before the entry of a final judgment in said suit dismiss the same, and require the Trustee, its substitute or successor to sell the Lot in accordance with the provisions of this section. Beneficiary, if it is the highest bidder, shall have the right to purchase at any sale of the Lot, and to have the amount for which such Lot is sold credited on the debt then owing. Beneficiary in any event is hereby authorized to appoint a substitute trustee, or a successor trustee, to act instead of the Trustee named herein without other formality than the designation in writing of a substitute or successor trustee; and the authority hereby conferred shall extend to the appointment of other successor and substitute trustees successively until the indebtedness hereby secured has been paid in full, or until said Lot is sold hereunder, and each substitute and successor trustee shall succeed to all of the rights and powers of the original trustee named herein. In the event any sale is made of the Lot, or any portion thereof, under the terms of this Section, the Owner, his heirs and assigns, shall forthwith upon the making of such sale surrender and deliver possession of the property so sold to the Purchaser at such sale, and in the event of his failure to do so he shall thereupon from and after the making of such sale be and continue as tenants at sufferance of such Purchaser, and in the event of his failure to surrender possession of said property upon demand, the Purchaser, his 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 property, or any part thereof, is situated. The foreclosure of the continuing contract lien on any one or more occasions shall not remove, replace, impair or extinguish the same continuing lien from securing all obligations arising from and after the date of foreclosure. (d) Notwithstanding anything to the contrary contained in this Article 5, the Association's foreclosure of the Payment and Performance Lien shall be subject to the requirements of applicable law, including without limitation, Chapter 209, Texas Property Code, as amended or replaced from time to time. The terms and provisions of this paragraph shall control and supercede any contrary provisions in this Declaration. 5.10 Subordination of the Lien to Mortgages. The lien securing the payment of the assessments and other obligations provided for herein shall be superior to any and all other charges, liens or encumbrances which may hereafter in any manner arise or be imposed upon any Lot whether arising from or imposed by judgment or decree or by any agreement, contract, mortgage or other instrument, except for: (a) bona-fide first mortgage or deed of trust liens for purchase money and/or home improvement purposes placed upon a Lot, in which event the Association's lien shall automatically become subordinate and inferior to such first lien; (b) liens for taxes or other public charges as are by applicable law made superior to the Association's lien; and DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 13 "toe Bk Vol Pg 0836201 OR 5711 146 (c) such other liens about which the Board may, in the exercise of its reasonable discretion, elect to voluntarily subordinate the Association's lien; provided however, such subordination shall apply only to: (i)the assessments which have been due and payable prior to the foreclosure sale (whether public or private) of such Lot pursuant to the terms and conditions of any such first mortgage or deed of trust or tax lien; (ii) the permitted lien on the Lot alone and not on or to any easement appurtenant for use and enjoyment of the Common Properties. Such sale shall not relieve such Lot from liability for the amount of any assessment thereafter becoming due nor from the lien of any such subsequent assessment. Such subordination shall not apply where the first mortgage or deed of trust or tax lien is used as a device, scheme or artifice to evade the obligation to pay assessments and/or to hinder the Association in performing its functions hereunder. 5.11 Exempt Property. The following property otherwise subject to this Declaration shall be exempted from any assessments, charges and liens created herein: (a) All property dedicated to and accepted by a local public or governmental authority; (b) Common Properties; and (c) Exempt Property. ARTICLE 6 GENERAL POWERS AND DUTIES OF THE BOARD OF DIRECTORS OF THE ASSOCIATION 6.01 Powers and Duties. The affairs of the Association shall be conducted by its Board. The Board, for the benefit of the Association, the Property and the Owners and the Members and Residents, may provide and may pay for, out of the assessment fund(s) provided for in Article 5 above, one or more of the following: (a) Care, preservation and maintenance of the Common Properties and the furnishing and upkeep of any desired personal property for use in or on the Common Properties; (b) Maintenance, care and preservation of the lawn and any common sprinkler systems on the Lots; (c) Recreational and social programs and activities for the general benefit of the Residents and programs which are designed only for separately identifiable sub-groups of Residents, such as (but not limited to) infants, adolescents, teenagers, students, mothers and senior citizens; (d) Supplementing (to the extent, if any, deemed necessary, appropriate and affordable by the Board) the police, fire, ambulance, garbage and trash collection and similar services within the Property traditionally provided by local governmental agencies; (e) Taxes, insurance and utilities (including, without limitation, electricity, gas, water, sewer and telephone charges)which pertain to the Common Properties; (f) The services of any person or firm (including the Declarant and any affiliates of the Declarant) to manage the Association or any separate portion thereof, to the extent deemed advisable by the Board, and the services of such other personnel as the Board shall determine to be necessary or proper for the operation of the Association, whether such personnel are employed directly by the Board or by the manager of the Association. The Board is specifically authorized to hire and employ one or more managers, secretarial, clerical, staff and support employees. The Board is specifically authorized to engage personnel and equipment (such as computers, software and electronic communication and DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 14 10836E01 OR 57111 1479 transmission devices) for the administration of the Association and the collection of assessments described in Article 5; (g) Any other materials, supplies, furniture, labor, services, maintenance, repairs, structural alterations, taxes or assessments which the Board is required to obtain or pay for pursuant to the terms of this Declaration or which in its opinion shall be necessary or proper for the operation or protection of the Association or for the enforcement of this Declaration. The Board shall have the following additional rights, powers and duties: (h) To execute all declarations of ownership for tax assessment purposes with regard to any of the Common Properties owned by the Association; {i) To enter into agreements or contracts with insurance companies, Taxing Authorities, the holders of first mortgage liens on the individual Lots and utility companies with respect to: (i) any taxes on the Common Properties; (ii) monthly escrow and impound payments by a mortgagee regarding the assessment, collection and disbursement process envisioned by Article 5; (iii) utility installation, consumption and service matters; and (iv)the escrow or impounding of monies sufficient to timely pay the Annual Assessment applicable to any Lot; (j) To borrow funds (including, without limitation, the borrowing of funds from the Declarant and/or its affiliates) to pay costs of operation, secured by such assets of the Association as deemed appropriate by the lender and the Association (k) To enter into contracts, maintain one or more bank accounts and, generally, to have all the powers necessary or incidental to the operation and management of the Association; (I) To protect or defend the Common Properties from loss or damage by suit or otherwise, to sue or defend in any court on behalf of the Association and to provide adequate reserves for repairs and replacements; (m) To make reasonable rules and regulations for the operation of the Common Properties and to amend them from time to time; (n) To prepare an annual operating budget and to make available for review by each Owner at the Association offices within ninety(90)days after the end of each Fiscal Year an annual report; (o) Pursuant to Article 7 herein, to adjust the amount, collect and use any insurance proceeds to repair damage or replace lost property; and if proceeds are insufficient to repair damage or replace lost property, to assess the Owners in proportionate amounts to cover the deficiency; and (p) To enforce the provisions of this Declaration and any rules made hereunder and, subject to the requirements of applicable law, including without limitation, Chapter 209, Texas Property Code as amended and replaced from time to time, to enjoin and seek damages from any Owner, Resident or Member for violation of such provisions or rules. The Board is specifically authorized and empowered to establish (and to revise and amend from time to time) a monetary "fines" system which may include component steps such as warning citations, ticketing, due process hearings and appeals and a flat rate or discretionary range or geometric progression of fine amounts, which, when pronounced, shall constitute a permitted individual Lot Owner assessment secured by the continuing Payment and Performance Lien herein established. (q) To enter at any time in an emergency, or in a non-emergency, after ten (10) days written notice, without being liable to any Owner, upon any Lot and into any Improvement thereon for the purpose of enforcing this Declaration or for the purpose of erecting, maintaining or repairing any Improvement to DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 15 Bk Doc OR 57111 14tg conform to this Declaration, and the expense incurred by the Association in connection with the entry upon any Lot and the work conducted thereon shall be a personal obligation of the Owner of the Lot entered upon, shall be a lien upon the Lot entered on and Improvements thereon, and shall be enforced in the same manner and to the same extent as provided in Article 5 hereof for regular and special assessments. The Association shall have the power and authority from time to time, in its own name and on its own behalf, or in the name of and on behalf of any Owner who consents thereto, to commence and maintain actions and suits to enforce, by mandatory injunction or otherwise, or to restrain and enjoin, any breach or threatened breach of this Declaration. The Association is also authorized to settle claims, enforce liens and take all such action as it may deem necessary or expedient to enforce this Declaration; provided, however, that the Board shall never be authorized to expend any Association funds for the purpose of bringing suit against Declarant, its successors or assigns. (r) (i)To borrow monies from the Declarant; (ii) to lease equipment from the Declarant; and (iii)to contract with the Declarant concerning the provision of any personnel, labor, supplies, materials and services, provided such contract terms and conditions are: generally comparable (in terms of price, quality and timeliness) with those that might be otherwise obtained from unrelated third parties; and, as to professional management contracts, terminable by the Association at any time for an reason whatsoever and without penalty upon furnishing at least ninety (90) days advance notice thereof to Declarant. The Board shall not be required to solicit bids from unrelated third parties before entering into any contract with the Declarant and the reasonable judgment and resolution of the Board to enter.into any such contract with the Declarant (absent fraud, gross negligence or willful misconduct) shall be final and conclusive and binding upon the Association and all of its Members. 6.02 Board Powers. The Board shall have the right and obligation to perform the functions of the Board on behalf of the Association. In the event or if for any reason the Board is not deemed authorized to act for and on behalf of the Association and the Members, then the Declarant may exercise its power and authority under Article 13, Section 13.01, to act for and on behalf of the Association and the Members, and the Association shall reimburse the Declarant for any and all reasonable expenses incurred in so acting. 6.03 Maintenance Contracts. The Board, on behalf of the Association, shall have full power and authority to contract with any Owner, Member or Resident (including, without limitation, the Declarant) for performance, on behalf of the Association, of services which the Association is otherwise required to perform pursuant to the terms hereof, such contracts to be upon such terms and conditions and for such consideration as the Board may deem proper, advisable and in the best interests of the Association. 6.04 Liability Limitations. Neither any Resident nor the directors and officers and managers of the Association shall be personally liable for debts contracted for or otherwise incurred by the Association or for any torts committed by or on behalf of the Association or for a tort of another Resident,whether such other Resident was acting on behalf of the Association or otherwise. Neither the Declarant, the Association, its directors, officers, managers, agents or employees shall be liable for any actual, incidental or consequential damages for failure to inspect any premises, improvements or portion thereof or for failure to repair or maintain the same. The Declarant, the Association or any other person, firm or corporation liable to make such repairs or maintenance shall not be liable for any personal injury or other actual, incidental or consequential damages occasioned by any act or omission in the repair or maintenance of any premises, improvements or portion thereof. 6.05 Reserve Funds. The Board may establish reserve funds which may be maintained and/or accounted for separately from other funds maintained for annual operating expenses and may establish separate, irrevocable trust accounts or any other recognized bookkeeping or tax procedures in order to better demonstrate that the amounts deposited therein are capital contributions and not net or taxable income to the Association. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 16 'roc Bk Vol Pg b836201 OR 5711 149 ARTICLE 7 INSURANCE; REPAIR; RESTORATION 7.01 Right to Purchase Insurance. The Association shall have the right and option to purchase, carry and maintain in force insurance covering any or all portions of the Common Properties, any improvements thereon or appurtenant thereto, for the interest of the Association, its Board of Directors, officers, managers, agents and employees, and of all Members of the Association, in such amounts and with such endorsements and coverage as shall be deemed appropriate by the Board and/or as specifically required by the mortgagees or insurers. Such insurance may include, but need not be limited to: (a) Insurance against loss or damage by fire and hazards covered by a standard extended coverage endorsement in an amount which shall be equal to the maximum insurable replacement value, excluding foundation and excavation costs; (b) Comprehensive public liability and property damage insurance on a broad from basis, including coverage of personal liability(if any) of the Board, Owners, Residents and Members with respect to the Common Properties; (c) Fidelity bonds for all officers and employees of the Association having control over the receipt or disbursement of funds; and (d) Liability insurance regarding the errors and omissions of directors, officers, managers, employees and representatives of the Association. 7.02 Insurance and Condemnation Proceeds. The Association shall be the exclusive representative of the Members in any proceedings, negotiations, settlements or agreements concerning insurance or condemnation. The Association and the Members may use the net insurance or condemnation proceeds to repair and replace any damage or destruction of property, real or personal, covered by such insurance or condemnation. Any balance from the proceeds of insurance or condemnation paid to the Association, remaining after satisfactory completion of repair and replacement or after the Board has elected to waive the repair, restoration or replacement, shall be retained by the Association as part of a general reserve fund for repair and replacement of the Common Properties. 7.03 Insufficient Proceeds. If the insurance or condemnation proceeds are insufficient to repair or replace any loss or damage, the Association may levy a special group assessment as provided for in Article 5 of this Declaration to cover the deficiency. ARTICLE 8 ARCHITECTURAL REVIEW COMMITTEE 8.01 Membership of ARC. The ARC shall consist of not more than three (3) voting members ("Voting Members") and such additional nonvoting members serving in an advisory capacity ("Advisory Members") as the Voting Members deem appropriate. The following persons are hereby designated as the initial Voting Members of the ARC: Wallace Phillips, Dawn Phillips, and Vicki Hillert. 8.02 Action by ARC. Items presented to the ARC shall be decided by a majority vote of the Voting Members. 8.03 Advisory Members. The Voting Members may from time to time designate Advisory Members. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 17 11oc Bk Vol Pg 0836 201 OR 5711 150 8.04 Term. Each member of the ARC shall hold office until such time as he or she has resigned or has been removed or his or her successor has been appointed as provided herein. 8.05 Declarant's Rights of Appointment. During the Development Period, Declarant, its successors or assigns shall have the right to appoint and remove all Voting Members of the ARC, which persons need not be drawn from Association Members. Notwithstanding the preceding sentence, Declarant may delegate its right of appointment, or any portion thereof, to the Board by written instrument before such date. After the Development Period, the Board shall have the right to appoint all Voting Members. At such time as the Board gains the right to appoint and remove Voting Members of the ARC, or any portion of this right, a majority of the Voting Members so appointed shall be drawn from Members of the Association. Advisory Members shall, when reasonably possible, be drawn from Members of the Association. 8.06 Adoption of Rules. The ARC may adopt such procedural and substantive rules, not in conflict with this Declaration, as it deems necessary or proper for the performance of its duties, including but not limited to design guidelines, building code, a fire code, a housing code, and other similar codes. 8.07 Review of Proposed Construction. Whenever in this Declaration the approval of the ARC is required, the ARC shall have the right to consider all of the Plans and Specifications for the Improvement or proposal in question and all other facts which, in its sole discretion, are relevant. Except as otherwise specifically provided herein, prior to the commencement of any construction of any improvement on a Lot or any portion thereof, the Plans and Specifications therefor shall be submitted to the ARC and construction thereof may not commence unless and until the ARC has approved such Plans and Specifications. Until receipt by,the ARC of any information or document deemed necessary by the ARC, it may postpone review of any Plans and Specifications submitted for approval. Upon receipt of all necessary information, the ARC shall consider and act upon any and all Plans and Specifications submitted for its approval pursuant to this Declaration, and perform such other related duties assigned or authorized by this Declaration, including at its option inspection of construction in progress to assure its conformance with previously approved Plans and Specifications. The ARC shall have the express authority to perform fact finding functions hereunder and shall have the power to construe and interpret any covenant herein that may be vague, indefinite, uncertain or capable of more than one construction. The ARC may, in its review of Plans and Specifications and such other information as it deems proper, consider whether any proposed Improvement upon a Lot would unreasonably obstruct the view from other portions of the Property. The ARC may, but shall not be required to, disapprove any Improvement upon any Lot that would unreasonably obstruct the view from any other portion of the Property. No Improvement shall be allowed on any Lot which is of such size or architectural design or involves the use of such landscaping, color schemes, exterior finishes and materials and similar features as to be incompatible with residential development within the Property and the surrounding area. The ARC shall have the authority to disapprove any proposed Improvement based upon the restrictions set forth in the preceding sentence and the decision of the ARC shall be final and binding so long as it is made in good faith. The ARC shall not be responsible for reviewing any proposed Improvement, nor shall its approval of any Plans and Specifications be deemed an endorsement, from the standpoint of structural safety, engineering soundness, or conformance with building or other codes not of its authorship. 8.08 Actions of the ARC. The ARC may, by resolution unanimously adopted in writing, designate one or two of its members or an agent acting on its behalf to take any action or perform any duties for and on behalf of the ARC in the absence of such designation, the vote of a majority of all members of the ARC taken without a meeting, shall constitute an act of the ARC. 8.09 No Waiver of Future Approvals. The approval or consent of the ARC of any Plans and Specifications for any work done or proposed, or in connection with any other matter requiring the approval or consent of the ARC, shall not be deemed to constitute a waiver of any right to withhold approval or consent as to any other Plans and Specifications, or other matter whatever, subsequently or additionally submitted for approval or consent by the same or a different person. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 18 0836201 Bk 57111 151 9 8.10 Work in Progress. The ARC may at its option inspect all work in progress to insure compliance with approved Plans and Specifications. 8.11 Nonliability of ARC Members. Neither the ARC nor any member thereof shall be liable to the Association or to any Owner or to any other person for any loss, damage or injury arising out of their being in any way connected with the performance of the ARC's duties under this Declaration unless due to the willful misconduct or bad faith of the ARC or its members, as the case may be. Neither the ARC nor any member thereof shall be liable to any Owner due to the construction of any Improvements within the Property, or the creation thereby of any obstruction of the view from such Owner's Lot or Lots. 8.12 Address. Plans and Specifications shall be submitted to the ARC in care of Vicki Hillert, 4490 Castlegate Drive, College Station, Texas 77845, or in care of such other person at such other address as may be designated by Declarant or the Board, as the case may be, from time to time. 8.13 Failure to Act. In the event the ARC or its designated representative fails to approve or disapprove any Plans and Specifications within ten (10) days after the same have been submitted to it, complete with all other information requested by the ARC in connection with such submission, approval shall be assumed. 8.14 Variances. Notwithstanding any other provision of this Declaration, in order to prevent undue hardship upon the Owner or Owners of any individual Lot or Lots upon the Property, variance from any restrictions set out in this Declaration may be granted by a unanimous decision of the ARC in written instrument to be duly acknowledged, if and when such a variance shall ever be granted. 8.15 Governmental Agency Approval. Nothing in this Declaration shall be construed to relieve any Owner from, securing such approvals, certificates and/or permits as may be required by law in connection with the construction of any Improvements on any Lot. 8.16 Relationship with Association. The ARC has been created pursuant to this Declaration to perform certain functions specified herein relating to the review and approval of Plans and Specifications for Improvements built on the Property. The ARC does not exercise the authority of the Board, and shall not do so unless and until (I) the Board shall have duly appointed a majority of Board members to the ARC, and (ii) the Board shall by unanimous resolution, duly recorded in the records of the Association, make the ARC a committee of the Board in accordance with the Texas Non-Profit Corporation Act. ARTICLE 9 GENERAL RESTRICTIONS All of the Property shall be owned, held, encumbered, leased, used, occupied and enjoyed subject to the following limitations and restrictions: 9.01 Construction of Improvements. No Improvements or Structures shall hereafter be constructed upon any of the Property without the prior approval of the ARC. 9.02 Antennae and Signals. No antenna or other device for the transmission or reception of television signals, radio signals, or any other form of electromagnetic radiation shall be erected, used, or maintained on any Lot, whether attached to a building or structure or otherwise, without the prior written approval of the ARC. No radio signals, television signals or any other form of electromagnetic radiation shall originate from any Lot so as to unreasonably interfere with the reception of television or radio signals on any other Lot. Notwithstanding the provisions of this paragraph to the contrary, it shall be permissible for the Owners of any Lot to have one small satellite dish no more than 18 inches in diameter for receipt of television signals provided it is not visible from any street. Notwithstanding the foregoing, the Declarant by promulgating this Section is not attempting to violate the Telecommunications Act of 1996 (the "Act"), as DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 19 Doc Bk Vol Pg 0836201 OR 5711 152 may be amended from time to time. This section shall be interpreted to be as restrictive as possible while not violating the Act. 9.03 Insurance Rates. Nothing shall be done or kept on a Lot which would increase the rate of insurance or cause the cancellation of insurance on any Lot or any of the Improvements located thereon without the prior written approval of the Board. 9.04 Subdividing. No Lot shall be further divided or subdivided, nor may any easement or other interest therein less than the whole be conveyed by the Owner thereof without the prior written approval of the ARC; provided, however, that when Declarant is the Owner thereof, Declarant may further divide and subdivide any Lot and convey an easement or other interest less than the whole, all without the approval of the ARC. 9.05 Signs. No sign of any kind shall be displayed to the public view on a Lot without the prior written approval of the ARC, except for signs which are part of Declarant's overall marketing plan for the Property. The ARC may permit signs of any type for security, political speech or advertising a portion of the Property for sale or lease or it may set standards for the same. 9.06 Rubbish and Debris. No rubbish or debris of any kind shalj be placed or permitted to accumulate upon a Lot and no odors shall be permitted to arise therefrom so as to render the Property or any portion thereof unsanitary, unsightly, offensive or detrimental to any other property or to its occupants. Refuse, garbage and trash shall be kept at all times in covered containers and such containers shall be kept within enclosed structures or appropriately screened from view. If rubbish or debris accumulates upon any Lot in violation of this provision in the judgment of the Association, the Association may remove the rubbish or debris, and charge a special assessment to the Owner of the Lot. 9.07 Noise. No noise or other nuisance shall be permitted to exist or operate upon any Lot so as to be offensive or detrimental to any other portion of the Property or to its occupants. 9.08 Lighting. No exterior lighting of any sort shall be installed or maintained on a Lot where the light source is offensive or a nuisance to neighboring property, except for reasonable security or landscape lighting that has the approval of the Architectural Review Committee. 9.09 Nuisance and Lateral Support. No noxious or offensive activity or work shall be conducted upon any Lot so as to impair the structural soundness or integrity of any Improvement of any other Lot, or which may be or may become an annoyance or nuisance to the neighborhood. 9.10 Repair of Improvements. All Improvements upon the Property, including any Lot, shall at all times be kept in good condition and repair and adequately painted or otherwise maintained by the Owner or Owners thereof. 9.11 Alteration or Removal of Improvements. Exclusive of normal maintenance, any construction, repair, alteration or removal in connection with any Improvement which in any way alters the exterior appearance of said Improvement shall be performed only with the prior written approval of the ARC. Notwithstanding anything to the contrary, the approval of the ARC shall not be required for repainting exterior surfaces of the Improvements provided the color scheme, arrangement of colors and color of paint are not altered. Any change to the exterior colors of any Improvements must be approved in writing by the ARC. 9.12 Roofing Materials. The surface of all roofs of principal and secondary structures shall be quality composition shingle. The ARC shall have authority to approve other roof treatments and materials when in its determination such treatments and materials in the form utilized will not be a detriment to the quality of the neighborhood. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 20 floc Pk Vol Pig '1836201 OR 5711 153 9.13 Solar Equipment. In the event an Owner desires to use solar panels or other solar equipment in connection with the use of any Lot, the location and installation design thereof shall be submitted to the ARC and approval of such design, including the aesthetics thereof, shall be required before construction may begin. 9.14 Driveway. The ARC shall have the right to impose limitations on driveway design, including materials, aprons, location and point of contact with dedicated roads, streets or private driveways within the Property. 9.15 Tanks. The ARC shall have the right to approve the location of any tank used or proposed in connection with a single family residential structure, including tanks for storage of fuel, water, oil or LPG and including hot tub tanks. All tanks shall be screened so as not to be visible from any other portion of the Property. 9.16 Underground Utility Lines. No utility lines, including, but not limited to, wires or other devices, for the communication or transmission of telephone or electric current or power, cable television or any other type of line or wire shall be erected, placed or maintained anywhere in or upon any portion of the Property unless the same shall be contained in conduit or cables installed and maintained underground or concealed in, under or on Improvements as approved in writing by the ARC, except what has already been constructed by the City of College Station, prior to the date hereof; provided, however, that no provision hereof shall be deemed to forbid the erection of temporary power or telephone structures incident to the construction of Improvements which have been previously approved in writing by the ARC. The installation method, including but not limited to location, type of installation equipment, trenching method and other aspects of installation for both temporary and permanent utilities, shall be subject to review and approval by the ARC. 9.17 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 ARC. 9.18 Hazardous Activities. No activities shall be conducted on the Property and no Improvements shall be constructed on a Lot that are or might be unsafe or hazardous to any person or property. Without limiting the generality of the foregoing, no firearms or fireworks shall be discharged upon the Property, and no open fires shall be lighted or permitted except within safe and well designed interior fireplaces, or in contained barbecue units while attended and in use for cooking purposes. 9.19 Mining and Drilling. No oil drilling, oil development operations, oil refining, quarrying or mining operation of any kind shall be permitted upon or in any Lot, nor shall oil wells, tanks, tunnels, mineral excavations, or shafts be permitted upon any Lot. No derrick or other structure designed for use in boring for oil or natural gas shall be erected, maintained or permitted upon any Lot. 9.20 Machinery and Equipment. Without the approval of the Association or Declarant, no machinery or equipment of any kind shall be placed, operated or maintained upon or adjacent to any Lot or Common Area except such machinery or equipment as is usual and customary in Brazos County, Texas, in connection with the use, maintenance, or construction of a private residence or appurtenant structures or recreational facilities maintained by the Association; provided however, such machinery or equipment may be placed, operated or maintained by any governmental or quasi-governmental agency, or by a public utility, in the performance of its legitimate functions. 9.21 Temporary Structures. No tent, shack or other temporary building, improvement or structure shall be placed upon a Lot without the prior written approval of the ARC; provided however, that the Declarant may maintain or authorize temporary structures necessary for storage of tools and equipment, and for office space for architects, builders and foremen on the Property during any period of DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 21 1oc Bk Vol Pg 0836201 OR 5711 154 actual construction, which authorization, if given, shall include the nature, size, duration and location of such structure or structures. 9.22 Unsightly Articles; Vehicles; Number of Occupants. No trailer, recreational vehicle, tent, boat, or stripped down, wrecked, junked, or wholly inoperable vehicle shall be kept, parked, stored, or maintained on any portion of the driveway or front yard in front of the building line of the permanent structure, and same shall be kept, parked, stored or maintained on other portions of a Lot only within an enclosed structure or a screened area which prevents the view thereof from adjacent Lots or streets. No dismantling or assembling of motor vehicles, boats, trailers, recreational vehicles, or other machinery or equipment shall be permitted in any driveway or yard adjacent to a street. 9.23 Mobile Homes, Travel Trailers, Recreational Vehicles. No mobile homes shall be parked or placed on any Lot at any time. No travel trailers or recreational vehicles may be kept on any Lot unless enclosed in a garage. 9.24 Fences. (a) Except as otherwise provided herein or approved by the ARC in writing, fences may constructed only on that portion of the Lot behind the dwelling unit. All fences must be constructed of 1" by 6" cedar privacy fence materials, with the finished (smooth) side facing all streets or common areas, or adjoining properties and the rough side facing the interior of the Lot. (b) No fence, wall, or hedge shall be built or maintained forward of the front wall line of the Dwelling Unit, not including decorative walls or fences which are part of the architectural design of the main structure, and which are not to be built or maintained within the front building setback line of any Lot. An exception shall be made in the case of retaining walls not to exceed twenty-four inches (24") above the ground. Notwithstanding the foregoing, the ARC is empowered to waive the aforesaid height or setback limitation in connection with retaining walls and decorative walls if, in its sole discretion, such waiver is advisable in order to accommodate a unique, attractive or advanced building concept design or material and the resulting decorative wall and/or retaining wall will not detract from the general appearance of the neighborhood. 9.25 Animals - Household Pets. No animals, including pigs, hogs, swine, poultry, wild animals, horses, cattle, sheep, goats or any other type of animal not considered to be a domestic household pet within the ordinary meaning and interpretation of such words may be kept or maintained on the Property. No domestic household pet shall be allowed to make an unreasonable amount of noise, or to become a nuisance, and no domestic pets shall be allowed on the Property other than on the Lot of its Owner, except when confined to a leash. No animal may be stabled, maintained, kept, cared for or boarded for hire or remuneration on the Property and no kennels or breeding operation shall be allowed. No domestic household pet shall be allowed to run at large and all of such pets shall be kept within enclosed areas which must be clean, sanitary and reasonably free of refuse, insects and waste at all times. Such enclosed area shall be constructed in accordance with Plans and Specifications approved by the ARC, shall be of reasonable design and construction to adequately contain such animals in accordance with the provisions hereof, and shall be screened so as not to be visible from any other portion of the Property. No more than a total of four (4) adult dogs or cats, or a combination thereof, may be kept on a single lot. All domestic household pets shall be kept in strict accordance with all local laws and ordinances. 9.26 Landscape Design. All landscaping shall be designed so as to protect and promote, as far as practicable, the natural local landscape environment through use of native materials, natural drainage, indigenous plant selection and site design. All landscaping designs shall install live, growing sod covering the front, side and backyards, within thirty (30) days of occupancy of any residence constructed on a Lot, and shall maintain it in a healthy and growing condition. All front, side and back yards must be irrigated with automatic sprinkler systems, and have landscaping acceptable to the ARC. At all times after improvements are constructed on any Lot,the Owner of such Lot shall keep and maintain DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 22 0836201 OR 57111559 Vol at least one(1)living tree with a diameter of at least two inches in the front yard of the Lot. Any new trees planted by the Owner of a Lot in the front yard shall be evergreen trees, such as live oak, pine, fir, and juniper. 9.27 Construction and Sales Activities. Notwithstanding any provision herein to the contrary, 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 Lot within the Property, or the sale of any Lot thereafter. Specifically, no such construction activities shall be deemed to constitute a nuisance or a violation of this Declaration by reason of noise, dust, presence of vehicles or construction machinery, posting of signs or similar activities, provided that such construction is pursued to completion with reasonable diligence and conforms to usual construction practices in the area. No building material of any kind shall be placed or stored upon any Lot until the Owner thereof is ready to commence Improvements, and then the material shall be placed within the property lines of the Lot upon which the Improvements are to be erected and shall not be placed on the street or on any other part of the Property. In the event of any dispute regarding such matters, a temporary waiver of the applicable provision may be granted by the ARC, provided that such waiver shall be only for the reasonable period of such construction. At such time as the Declarant ceases using any portion of the Property as a model home or sales office, the affected Property shall be altered and/or remodeled, if necessary or desirable, to comply with the covenants and restrictions contained herein. 9.28 Mailboxes. Mailboxes shall be of materials approved by the ARC, and shall be located on individual Lots. Notwithstanding the foregoing, the use of cluster mailboxes shall be required as necessary to comply with United States Postal Service requirements and Declarant reserves the right to require the use of cluster mailboxes by all or some of the Lots. 9.29 Sight Lines. No fence, wall, hedge, or shrub planting which obstructs sight lines from streets on the Property shall be placed or permitted to remain on any corner Lot in violation of the Codes of the City of College Station. 9.30 Garage Conversions. No garage, or any portion thereof, may be converted into enclosed living space. 9.31 Use of Common Properties. The Board may establish rules and regulations for use or prohibitions against use of the Common Properties from time to time. 9.32 Compliance with Provisions of this Declaration. Each Owner shall comply strictly with the provisions of this Declaration as the same may be amended from time to time. Failure to comply with any of the Covenants shall constitute a violation of this Declaration, and shall give rise to a cause of action to recover sums due for damages or injunctive relief or both, maintainable by the Board on behalf of the Association or by any aggrieved Owner. Declarant, for itself, its successors or assigns, reserves the right to enforce this Declaration, though it may have previously sold and conveyed all subdivided Lots controlled by this Declaration within the Property. The reservation of this right of enforcement shall not create an obligation of any kind to enforce the same. 9.33 No Warranty of Enforceability. While Declarant has no reason to believe that any of the restrictive covenants or other terms and provisions contained in this Article 9 or elsewhere in this Declaration are or may be invalid or unenforceable for any reason or to any extent, Declarant makes no warranty or representation as to the present or future validity or enforceability of any such restrictive covenants, terms or provisions. Any Owner acquiring a Lot in reliance upon one or more of such restrictive convents, terms or provisions shall assume all risks of the validity and enforceability thereof and, by acquiring the Lot, agrees to hold Declarant harmless therefrom. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 23 'hoc Bk Vol Pg 21836201 OR 5711 156 ARTICLE 10 RESIDENTIAL RESTRICTIONS 10.01 Residential Use. All Lots shall be improved and used solely for residential purposes, inclusive of a garage, fencing and such other Improvements as are necessary or customarily incident to residential use. No Owner shall occupy or use his Lot or any Improvements constructed thereon, or permit the same or any part thereof to be occupied or used for any purpose, including religious, other than as a private residence for the Owner, his family, tenants and guests. All Lots within the Property shall be used and improved solely for single-family residential purposes, with no more than one (1) residential Dwelling Unit per Lot. Anything herein to the contrary notwithstanding, any Lot may be used or improved for greenbelt, open space and/or drainfield purposes. 10.02 Garages. No Lot shall have improvements erected which do not provide for a minimum of a two vehicle garage. 10.03 Outbuildings. There shall be not constructed any outbuildings on a Lot, including without limitation detached garages, storage buildings or greenhouses, without the prior written approval by the ARC. 10.04 Building Height. No Improvement greater than thirty-two (32).feet in height may be constructed on any Lot without the prior written approval of the ARC. For purposes of this paragraph, height shall be measured from the foundation slab of the proposed Improvement to the ridge line of the roof of the proposed Improvement. 10.05 Building Materials; Dwelling Size. All Dwelling Units shall be of recognized standard construction quality, and all exteriors (exclusive of doors, windows, and similar openings) shall be constructed of that certain percentage of masonry or other material specified in the ARC approved plans for a Dwelling Unit by NTS Architects or as specifically approved in writing by the ARC. Masonry includes ceramic tile, brick, rock and all other materials commonly referred to in the Brazos County, Texas area as masonry. Unless an exception is granted by the ARC, all Dwelling Units shall contain not less than two thousand one hundred (2,100) square feet of heated enclosed living space, exclusive of porches (open or covered), decks and garages. 10.06 Set-back Requirements. No building shall be located or erected nearer to any Lot line than the building line shown on the recorded plat of the Property. For purposes of these covenants, the eaves of buildings shall not be deemed to be part of a building or structure, but steps and porches shall be deemed to be a part of a building or structure. This Section shall not be construed to allow any building or structure to encroach upon another Lot. 10.07 Party Wails and Structures. (a) In most cases, a Dwelling Unit on a Lot will be constructed such that one or more of its side walls will be party walls shared with the Dwelling Unit on the adjacent Lot(s). In addition, there will be fences which serve and/or separate adjoining Lots. Such shared walls, fences and other such structures will constitute party structures. To the extent not inconsistent with this Section 10.07, the general rules of law regarding party walls and liability for property damaged due to negligence or willful acts or omissions shall apply to such party walls and structures. (b) Unless otherwise determined by the Board, the cost of reasonable repair and maintenance of a party structure shall be shared equally by the Owners making use of the party structure. All repairs shall be made (i) in a good, substantial and workmanlike manner, (ii) in strict conformity to the laws, ordinances and regulations of the State of Texas and the City of College Station, Texas, in effect at the time of repair, and (iii) in such a way as not to injure the Improvements or Dwelling Unit on the adjoining Lot. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 24 nue Bk Vol Pg 0836201 OR 5711 157 (c) If a party wall or structure is destroyed or damaged by fire or other casualty, then to the extent that such damage is not covered by insurance and repaired out of the proceeds of insurance, any Owner who has used the structure may restore it. If other Owners thereafter use the structure, they shall contribute to the restoration cost in equal proportions. However, such contribution will not prejudice the right to call for a larger contribution from the other users under any rule of law regarding liability for negligent or willful acts or omissions. All restored walls between adjoining Dwelling Units shall be constructed on the property line between the two adjoining Lots and shall be built in a good, substantial and workmanlike manner in strict conformity to the laws, ordinances and regulations of the State of Texas and the City of College Station, Texas, in effect at the time of construction. (d) The right of any Owner to contribution from any other Owner under this Section 10.07 will be appurtenant to the land and shall pass to such Owner's successors-in-title. (e) Each Owner shall maintain property insurance in amounts sufficient to cover the Owner's share of the cost of repairing or replacing party walls and structures in the event of damage or destruction by fire or other hazards. 10.08 Landscaping; Maintenance. Construction of each and every residential Dwelling Unit on a Lot shall include the installation and placement of appropriate landscaping. ,Each Owner, Member and Resident of any Lot shall jointly and severally have the duty and responsibility,, at their sole cost and expense, to keep and maintain the Lot, and all improvements therein and thereon, in a well maintained, safe, clean and attractive condition at all times. Such maintenance shall include (without limitation): (a) the proper seeding of all lawns; (b) the pruning and cutting of all trees and shrubbery; (c) prompt removal of all litter, trash, refuse and waste; (d) watering of all landscape other than the lawns; (e) keeping exterior lighting and mechanical facilities in working order; (f) keeping lawn and garden areas alive,free of weeds and attractive; (g) keeping driveways in good repair and condition; (h) promptly repairing any exterior damage; complying with all governmental health and police requirements; all in a manner and with such frequency as is consistent with aesthetics, safety and good property management. The Association and its agents, during normal business hours, shall have the right (after 5 days written notice to the Owner of any Lot involved, setting forth the specific violation or breach of this covenant and the action required to be taken, and if at the end of such time reasonable steps to accomplish such action have not been taken by the Owner), to enter on the subject premises (without any liability whatsoever for damages for wrongful entry, trespass or otherwise to any person or entity) and to take the action(s) specified in the notice to remedy or abate said violation(s) or breach(es). The cost of such remedy or abatement will be paid to the Association upon demand and if not paid within thirty (30) days thereof, shall become a lien upon the Lot affected subject to the requirements of Chapter 209, Texas Property Code. The Association, or its agent, shall further have the right(upon like notice and conditions), to trim or prune, at the expense of the Owner, any hedge, tree or any other planting that, in the written opinion of the Association, by reason of its location on the Lot, or the height, or the manner in which it is permitted to grow, is detrimental to the adjoining Lots, is dangerous or is unattractive in appearance. The DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 25 Doc Bk V 'ø83621 OR 57111 1589 lien provided under this section will constitute a lien retained against such property with the same force and effect as the Payment and Performance Lien for assessment set forth in these Covenants. 10.09 Yard Maintenance; Sprinkler System. The Association will have primary responsibility for maintenance (generally limited to mowing, trimming and edging of grass only) of each Lot and for operation and maintenance of any sprinkler system on each Lot that is part of a common sprinkler system. The Association is not responsible for: planting and/or re-planting; grass loss; seasonal color and/or decorations; and the maintenance of exotic or poorly-suited landscape plants. Each Owner is encouraged to consult with authorized representatives of the Association or the ARC for further information if in doubt concerning the grounds maintenance program. Each Lot on which a Dwelling Unit is constructed shall have and contain an underground water sprinkler system for the purpose of providing sufficient water(to preserve and maintain the landscaping in a healthy and attractive condition) to all yard areas on the Lot, The Association shall have the right to operate each sprinkler, or require the Lot Owner to do so, in conjunction with a common maintenance plan although the respective Lot Owner shall bear all costs and expenses related to the installation and repair of the sprinkler system as well as the water consumption arising from its operation. The Association may elect to pay the costs and expenses of water consumption for all of the Lots,and recoup such costs and expenses by including in each Lot Owner's assessment the Owner's pro rata share of water consumption costs and expenses. The pro rata share will be a fraction determined by dividing the square footage of an Owner's Lot by the total square footage of all Lots then having an underground water sprinkler system and participating in the common maintenance plan. The Association will bear the reasonable cost of repairs to the sprinkler system if caused by the negligence of employees, agents or officers of the Association. In the event that a Lot Owner shall select and implement an exterior landscaping plan or yard composition which, in the reasonable opinion of the ARC or the Association, requires unusual or extraordinary cost or expense in upkeep and maintenance, such Lot Owner shall reimburse the Association on a monthly basis for the additional costs or expenses so incurred. Notwithstanding the efforts which may be made by the Association to maintain exterior landscaping, each Lot Owner shall use reasonable efforts to keep, preserve and maintain the landscaping in a healthy and attractive condition. ARTICLE 11 EASEMENTS 11.01 Reserved Easements. All dedications, limitations, restrictions, and reservations shown on any plat covering all or any portion of the Property and all grants and dedications of easements, rights-of- way, restrictions, and related rights made by Declarant 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 easements and rights-of-way for the purpose of most effectively, efficiently and economically developing and marketing the Property. Further, Declarant reserves the right, without the necessity of the joinder of any Owner or other person or entity, to grant, dedicate, reserve or otherwise create, at any time or from time to time, Common Properties, rights-of-way and easements for public utility purposes (including, without limitation, gas, cable, water, electricity, telephone and drainage), in favor of any person or entity, along and on either or both sides of any Lot line, any such easement having a maximum width of seven and one-half(7-1/2)feet on each side of such Lot line. 11.02 Installation and Maintenance. Easements for installation and maintenance of utilities and drainage facilities are reserved as shown on the recorded plat of the Property. Within these easements, if any, no structure or other material shall be placed or permitted to remain which may damage or interfere with the installation and maintenance of utilities; or in the case of drainage easements, which may change the direction of flow of water through drainage channels in such easements. The Easement Area of each DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 26 Doc Bk V oPig 1E836201 OR 5711 159 Lot, if any, and all Improvements in such area shall be maintained continuously by the Owner of the Lot, except for those Improvements for which a public authority or utility company is responsible. Neither Declarant nor any utility company using the easements herein or referred to shall be liable for any damages done by them or their assigns, agents, employees, or servants to shrubbery, streets or flowers or other property of the Owners situated on the land covered by said easements. 11.03 Surface Areas. The surface of Easement Areas for underground utility services may be used for planting of shrubbery, trees lawns or flowers. However, neither the Declarant nor any supplier of any utility service using any Easement Area shall be liable to any Owner or to the Association for any damage done by them or either of them, or their respective agents, employees, servants or assigns, to any of the aforesaid vegetation as a result of any activity reasonably relating to the construction, maintenance, operation or repair of any facility in any such Easement Area. 11.04 Drainage Easements. Each Owner covenants to provide easements for drainage and water flow, as contours of land and the arrangement of Improvements approved by the ARC thereon require. Each Owner further covenants not to disturb or displace any trees or other vegetation within the drainage easements as defined in this Declaration and shown on the recorded plat of the Property. There shall be no construction of improvements, temporary or permanent, in any drainage easement, except as may be approved in writing by the ARC. 11.05 Blanket Easement. An easement is hereby retained in favor of the Association over all Lots and the Common Properties for the purpose of enforcing the Covenants in accordance with Section 13.05 hereof, and for the construction of a common cable television system, a common sprinkler system, maintenance of landscaping, or,any.other item for the common benefit of the Owners. An easement is further granted for the purpose of repairing and maintaining any such system so constructed. An entry upon any Lot or the Common Properties to effectuate the foregoing purposes shall not be deemed as trespass. ARTICLE 12 REGISTRATION 12.01 Registration with the Association. In order that the Declarant and the Association can properly acquaint every Lot purchaser and every Owner, Resident and Member with these Covenants and the day-to-day matters within the Association's jurisdiction, each and every Owner, Member and Resident shall have an affirmative duty and obligation to originally provide, and thereafter revise and update, within fifteen (15)days after a material change has occurred,various items of information to the Association such as: (a) the full name and address of each Owner, Member and Resident; (b) the full name of each individual family member who resides within the residential dwelling of the Lot Owner; (c) the business address, occupation and telephone numbers of each Resident; (d) the name, address and telephone numbers of other local individuals who can be contacted (in the event the Resident cannot be located)in case of an emergency; and (e) such other information as may be reasonably requested from time to time by the Association. In the event any Owner, Member or Resident fails, neglects or refuses to so provide, revise and update such information, then the Association may, but is not required to, use whatever means it deems reasonable and appropriate to obtain such information and the offending Owner, Member and Resident DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 27 Doc Bk V Pg 10836201 OR 57111 16 shall become automatically jointly and severally liable to promptly reimburse the Association for all reasonable costs and expenses incurred in so doing. ARTICLE 13 GENERAL PROVISIONS 13.01 Power of Attorney. Each and every Owner, Member and Resident hereby makes, constitutes and appoints Declarant as his/her true and lawful attorney-in-fact, coupled with an interest and irrevocable, for him/her and in his/her name, place and stead and for his/her use and benefit, to do the following: (a) to exercise, do or perform any act, right, power, duty or obligation whatsoever in connection with, arising out of, or relating to any matter whatsoever involving this Declaration and the Property; (b) to sign, execute, acknowledge, deliver and record any and all instruments which modify, amend, change, enlarge, contract or abandon the terms within this Declaration, or any part hereof, with such clause(s), recital(s), covenant(s), agreement(s) and restriction(s) as Declarant shall deem necessary, proper and expedient under the circumstances and conditions as may be then existing; and (c) to sign, execute, acknowledge, deliver and record any and all instruments which modify, amend, change, enlarge, contract or abandon the subdivision plat(s) of the Property, or any part thereof, with any easements and rights-of-way to be therein contained as the Declarant shall deem necessary, proper and expedient under the conditions as may then be existing. The rights, powers and authority of said attorney-in-fact to exercise any and all of the rights and powers herein granted shall commence and be in full force upon recordation of this Declaration in the Brazos County Clerk's Office and shall remain in full force and effect thereafter until conclusion of the Development Period. 13.02 Further Development. During the Development Period, each and every Owner, Resident and Member waives, relinquishes and shall not directly or indirectly exercise any and all rights, powers or abilities, and the Association shall not devote or expend any monies or personnel, regarding the following: to contest, object, challenge, dispute, obstruct, hinder or in any manner disagree with the proposed or actual development (including, without limitation, zoning or rezoning efforts or processes) pertaining to residential uses of any real property owned by the Declarant or by the affiliates, assignees or successors of the Declarant within a one-half mile radius of the Subdivision. 13.03 Duration. The Covenants of this Declaration shall run with and bind the land subject to this Declaration, and shall inure to the benefit of and be enforceable by the Association and/or Owner and Resident of any land subject to this Declaration, their respective legal representatives, heirs, successors and assigns, for an original fifty (50) year term expiring on the fiftieth (50th) anniversary of the date of recordation of this Declaration, after which time these Covenants shall be automatically extended for successive periods of ten (10) years unless an instrument is signed by the Owners of at least fifty-one percent (51%) of all Lots within this Subdivision and all the Subdivisions and recorded in the Official Records of Brazos County, Texas, which contains and sets forth an agreement to abolish these Covenants; provided, however, no such agreement [where approved by less than seventy-five percent (75%) of the Owners of all Lots within this Subdivision to abolish shall be effective unless made and recorded one (1)year in advance of the effective date of such abolishment. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 28 Doc Bk Vol Pg 10836201 OR 5711 161 13.04 Amendments. (a) By Declarant. During the Development Period, this Declaration may be amended by the Declarant, acting alone. No amendment by Declarant shall be effective until there has been recorded in the Official Records of Brazos County, Texas, an instrument executed and acknowledged by Declarant and setting forth the amendment, and an instrument executed and acknowledged by the Secretary of the Association, certifying that the Development Period has not terminated. (b) By Owners. After the Development Period, this Declaration may be amended by the recording in the Official Records of Brazos County of an instrument executed and acknowledged by the President and Secretary of the Association setting forth the amendment and certifying that such amendment has been approved by Owners entitled to cast at least sixty percent (60%) of the number of votes entitled to be cast pursuant to Section 3.02 hereof. 13.05 Enforcement. Each Owner of each Lot shall be deemed, and held responsible and liable for the acts, conduct and omission of each and every Resident, Member, guest and invitee affiliated with such Lot, and such liability and responsibility of each Owner shall be joint and several with their Resident(s), Member(s), guests and invitees. The Payment and Performance Lien shall extend to, cover and secure the proper payment and performance by each and every Resident, Member, guest and invitee affiliated with each Owner. Each Owner may, upon appropriate application to and approval by the Association, impose greater or additional restraints and restrictions on the "good standing"qualifications of the Residents and Members of such Owner's Lot. Unless otherwise prohibited or modified by law, all parents shall be liable for any and all personal injuries and property damage proximately caused by the conduct of their children (under Vie age of 18 years)within the Property. Enforcement of these Covenants may be initiated by any proceeding at law or in equity against any person or persons violating or attempting to violate them, whether the relief sought is an injunction or recovery of damages, or both, or enforcement of any lien created by these Covenants; but failure by the Association or any Owner to enforce any Covenant herein contained shall in no event be deemed a waiver of the right to do so thereafter. The City of College Station, Texas is specifically authorized (but not obligated) to enforce these Covenants. With respect to any litigation hereunder, the prevailing party shall be entitled to recover all costs and expenses, including reasonable attorneys'fees, from the non-prevailing party. 13.06 Validity. Violation of or failure to comply with these Covenants shall not affect the validity of any mortgage, bona fide lien or other similar security instrument which may then be existing on any Lot. Invalidation of any one or more of these Covenants, or any portions thereof, by a judgment or court order shall not affect any of the other provisions or covenants herein contained, which shall remain in full force and effect. In the event any portion of these Covenants conflicts with mandatory provisions of any ordinance or regulation promulgated by the City of College Station (including, without limitation, the Zoning Ordinance), then such municipal requirement shall control. 13.07 Proposals of Declarant. The proposals of the Declarant, as set forth in various provisions hereinabove, are mere proposals and expressions of the existing good faith intentions and plans of the Declarant and shall not be deemed or construed as promises, solicitations, inducements, contractual commitments or material representations by the Declarant upon which any person or entity can or should rely. Nothing contained in or inferable from this Declaration shall ever be deemed to impose upon any other land owned or to be owned by the Declarant, or any related entity, any covenants, restrictions, easements or liens or to create any servitudes, negative reciprocal easements or other interests in any such land in favor of any person or entity other than the Declarant. Declarant makes no representations of any kind or character concerning any land parcels adjoining the Property. Each prospective Owner should make his/her own investigation concerning those parcels and what impact, if any, same may have on the ownership, use and enjoyment of the Property. 13.08 Service Mark. Declarant is exclusive licensee of a service mark for Spring Creek Townhomes (referred to as the "Service Mark") in the Brazos County, Texas area. Unless and until a DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 29 DQr8362B 1 Bk 57111 162 g written license agreement has been sought and obtained from Declarant(and in this connection Declarant may withhold consent in its sole and absolute discretion), no person or entity may at any and/or for any reason whatsoever use, depict, draw, demonstrate, reproduce, infringe, copy or resemble, directly or indirectly,the Service Mark. 13.09 Headings. The headings contained in this Declaration are for reference purposes only and shall not in any way affect the meaning or interpretation of this Declaration. Words of any gender used herein shall be held and construed to include any other gender, and words in the singular shall be held to include the plural and vice versa, unless the context requires otherwise. Examples, illustrations, scenarios and hypothetical situations mentioned herein shall not constitute an exclusive, exhaustive or limiting list of what can or cannot be done. 13.10 Notices to Resident/Member/Owner. Any notice required to be given to any Resident, Member or Owner under the provisions of this Declaration shall be deemed to have been property delivered when: (i) deposited in the United States Mail, postage prepaid, addressed to the last known address of the person who appears as the Resident, Member or Owner on the records of the Association at the time of such mailing; or when (ii) delivered by hand or by messenger to the last known address of such person within the Property; or when (iii) posted on the Association's bulletin board for at least thirty (30)consecutive calendar days. 13.11 Notices to Mortgagees. The holder(s) of a mortgage may be furnished with written notification from the Association of any default by the respective mortgagor/Member/Owner in the performance of such mortgagor's/Member's/Owner's obligation(s) as established by this Declaration, provided that the Association has been theretofore furnished, in writing, with the correct name and address of such mortgage holder(s) and a request to receive such notification and a reasonable supply of self-addressed, stamped envelopes. 13.12 Disputes. Matters of dispute or disagreement between Owners, Residents or Members with respect to interpretation or application of the provisions (excluding architectural matters) of this Declaration or the Association Bylaws, shall be determined by the Board of Directors. Matters pertaining to architectural matters shall be determined by the Architectural Review Committee. These respective determinations (absent arbitrary and capricious conduct or gross negligence) shall be final and binding upon all Owners, Residents and Members. 13.13 Enforcement and Nonwaiver. (a) Right of Enforcement. Except as otherwise provided herein, any Owner at his own expense, Declarant, and/or the Board shall have the right to enforce any and all of the provisions of this Declaration. Such right of enforcement shall include both damages for, and injunctive relief against, the breach of any such provision. (b) Nonwaiver. The failure to enforce any provision of this Declaration at any time shall not constitute a waiver of the right thereafter to enforce any such provision or any other provision of said restrictions. (c) Liens. The Association shall have the right, when appropriate in its judgment and subject to Chapter 209, Texas Property Code, to claim or impose a lien upon any Lot or Improvement constructed thereon in order to enforce any right or effect compliance with this Declaration. 13.14 Assignment by Declarant. Notwithstanding any provision in this Declaration to the contrary, Declarant may assign, in whole or in part, any of its privileges, exemptions, rights, and duties under this Declaration to any other person or entity and may permit the participation, in whole or in part, by any other person or entity in any of its privileges, exemptions, rights, and duties hereunder. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 30 Doc Bk Vol Pg 08352@1 OR 5711 163 13.15 Exemption of Declarant. Notwithstanding any provision in this Declaration to the contrary, neither Declarant nor any of Declarant's activities shall in any way be subject to the control of or under the jurisdiction of the Architectural Review Committee. Without in any way limiting the generality of the preceding sentence, this Declaration shall not prevent or limit the right of Declarant to excavate and grade, to construct and alter drainage patterns and facilities, to construct any and all other types of Improvements, sales and leasing offices, and similar facilities, and to post signs incidental to construction, sales, and leasing anywhere within the Property. 13.16 Interpretation. The provisions of this Declaration shall be liberally construed to effectuate the purposes of creating a uniform plan for the development and operation of the property and of promoting and effectuating the fundamental concepts of the Property set forth in this Declaration. 13.17 Construction. (a) Restrictions Severable. The provisions of Declaration shall be deemed independent and severable, and the invalidity or partial invalidity of any provision or portion thereof shall not affect the validity or enforceability of any other provision or portion thereof. (b) Singular Includes Plural. Unless the context requires a contrary construction, the singular shall include the plural and the plural the singular; and the masculine, feminine or neuter shall each include the masculine, feminine, and neuter. (c) Captions. All captions and titles used in this Declaration are intended solely for convenience of reference and shall not enlarge, limit or otherwise affect that which is set forth in any of the paragraphs, sections or articles. (d) Deadlines on Business Day. If any deadline in this Declaration should fall on a Saturday, Sunday or a Texas or federal holiday, such deadline shall automatically be extended to the next business day. (e) Choice of Law. This Declaration shall be construed and enforced in accordance with the laws of the State of Texas. Witness the hand of an authorized representative of Declarant on the acknowledgment date noted below. SPRING CREEK CS DEVELOPMENT, LTD. By: Spring Creek CS Management LLC, its General Partner By: A✓� "4+01 ,/, Wallace Phillips, Mana Jil ST 'R'• B •ERS, INC. I BY:it t L I J.�rI__lIt— ander Fr-` ch, President DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 31 Pg Doc OR 57111 164 THE STATE OF TEXAS § (ACKNOWLEDGMENT) COUNTY OF BRAZOS § This instrument was acknowledged before me on the day of jityrn„/ �¢.i, , 2003, by Wallace Phillips, Manager of Spring Creek CS Management, LLC, the general partner of Spring Creek CS Development, Ltd., a Texas limited partnership, on behalf of said partnership. BMA TORAEs \ ----J612,11-0 41) • o Stels m"°tarel Tow it;►, • wtatYblicState of Texas JANUARY 31,2008 THE STATE OF TEXAS § (ACKNOWLEDGMENT) COUNTY OF BRAZOS § j f�, This instrument was acknowledged before me on the day of ! oVe C�ek- , 2003, by Randy French, President of Stylecraft Builders, Inc., a Texas corporation, on behalf of said corporation. feika.,/ " ""' EDNA S. ALFORD Notary Public, State of exas ?•jNotary Public,State of Texas %\„iJ My Commission Expires July 25,2005 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 32 Pg Doc )0836201 OR 57111 165 CONSENT AND SUBORDINATION BY LIENHOLDER Lienholder, as the holder of the lien on the Property, consents to the foregoing Declaration of Covenants, Conditions and Restrictions and the covenants, conditions, restrictions and easements contained therein, and lienholder hereby subordinates its lien to the rights and interests of the Covenants, Conditions and Restrictions, such that a foreclosure of the lien shall not extinguish the covenants, conditions, restrictions and easements contained in the Covenants, Conditions and Restrictions. COMPASS BANK �+ / r N . ill Name: dr/( i/j'fil ° �y Title: ,___Tr. s"rr. Fee,.elem.,— THSTATE OF TEXAS§ , COUNTY OF BRAZOS § This document was acknowle�` before me on 4. ��" , 2003, by Sf-/L1,e 1/2J/,b/€L/� , , v� yof to pass Bank on behalf of such institution. `f / / ,e5 � PATRICIA L CEARLEY Notary Public in and for State of Texas * Nn.a1 I r,au c., 4.-. . Texas �� My Cornet ssiun E spires �'O 1 DECEMHER 27, 2004 115i..Z: ! 7 Il �~ .cs &&` 4 r4 .�, q.. '7 CA 'b ,_ c �n 7: on .-gpp.P w 4"t-1 Q 27� ,%Q ma LLL. p3N1. I .� o a ATT £ 4 I ts c) C ^�] kb* Si A DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 33 O o..- Bk V o l Pg 110842:315 OR 581 3 35 FIRST AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS SPRING CREEK TOWNHOMES SUBDIVISION This FIRST AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS of Spring Creek Townhomes Subdivision(this"First Amendment") is made effective as of the 15`h day of December,2003,by Spring Creek CS Development, Ltd.("Declarant")and Stylecraft Builders, Inc. ("Stylecraft"). Stylecraft is the owner of Lots 1, 2, 3 and 4, Block 2 and Lots 20, 21, 22, 23, 24 and 25, Block 4 and wishes to make such Lots subject to this First Amendment. 1. This First Amendment is made to amend, alter, and change that one certain Declaration of Covenants, Conditions and Restrictions of Spring Creek Townhomes Subdivision,filed for record in Volume 5711,Page 128 of the Official Records of Brazos County,Texas(the"Declaration"). All capitalized terms not defined herein shall have the definitions ascribed to them in the Declaration. 2. The Declaration is amended as follows: (a) The last sentence of Section 10.05 of the Declaration is hereby amended to read as follows: "Unle'ss an exception is granted by the ARC,all Dwelling Units shall contain not less than one thousand two hundred(1,200)square feet of heated enclosed living space, exclusive of porches (open or covered), decks and garages." 3. Declarant and Stylecraft, as owners of all of the Lots and having all of the votes in the Association, make this First Amendment pursuant to Section 13.04 of the Declaration. 4. All provisions of the Declaration not amended by this instrument shall remain in full force and effect. This instrument has been executed by the undersigned on the date of the taking of their acknowledgments, but the effective date of this instrument shall be deemed to be December 15,2003,for all purposes and it shall be effective as of that date. SPRING CREEK CS DEVELOPMENT, LTD. By: Spring Creek CS Management LLC, its General Partner Wallace Phillips, Manag STYLICRL T :UILDr RS, I C. { BY: 4111 AOS AL Randy French •resident Doc Bk Vol Pg '0842315 OR 551.E 36 THE STATE OF TEXAS § (ACKNOWLEDGMENT) COUNTY OF BRAZOS § This instrument was acknowledged before me on the /5 day of December, 2003, by Wallace Phillips, Manager of Spring Creek CS Management, LLC, the general partner of Spring Creek CS Development, Ltd., a Texas limited partnership, on behalf of said partnership. BAMA 7DRRES of Tex � HaNry Pubic.8tnte ee �.,I�'�7-L•t�c��:�� p ►ycomrdee>onDO". N ary Public, State of Texas .� JANUARY 31,2008 THE STATE OF TEXAS § (ACKNOWLEDGMENT) COUNTY OF BRAZOS § ��rr This instrument was acknowledged before me on thew day of December,2003,by Randy French, President of Stylecraft Builders, Inc., a Texas corporation, on behalf of said corporation. uuao ikrs .�;aY.�;,, EDNA S.ALFQRD Notary Public.State of Texas My Commission Expires 1\6tary Public, State of as FO•F�E}`' July 25,2005 , CERTIFICATION OF SECRETARY I,VICKI HILLERT, Secretary of Spring Creek Townhomes Owners Association, Inc., hereby certify that the "Development Period", as such term is defined in the Declaration of Covenants, Conditions and Restrictions of Spring Creek Townhomes, has not expired as of December 15, 2003. \\(‘Oki .00H, t$041 VICKI HILLE T, Secretary THE STATE OF TEXAS § (ACKNOWLEDGMENT) COUNTY OF BRAZOS § This instrument was acknowledged before me on the J((3 day of December, 2003,by Vicki Hillert, Secretary of Spring Creek Townhomes Owners Association, Inc., Inc.,a Texas corporation,on behalf of said corporation. kti 46.,„ EMMATORRES otary PuLblic, State of Texas Notary Pooh,biolo ol Two W 000iskolon Eva* JANUARY 31,2006 'Inc Bk Vol _I"'rg Zi 84$315 OR 5131,3 3;7 CONSENT AND SUBORDINATION BY LIENHOLDER Lienholder,as the holder of the lien on the Property,consents to the foregoing First Amendment to Declaration of Covenants, Conditions and Restrictions and the covenants, conditions, restrictions and easements contained therein, and lienholder hereby subordinates its lien to the rights and interests of the First Amendment to Declaration of Covenants,Conditions and Restrictions,such that a foreclosure of the lien shall not extinguish the covenants, conditions, restrictions and easements contained in the First Amendment to Declaration of Covenants, Conditions and Restrictions. COMPASS BANK By: — ,7, _1-1.4), / Steve Mobley, Senior Vice President THE STATE OF TEXAS § COUNTY OF BRAZOS § 6Ch • ? ,200 , This document was acknowledged before me on ,-2•003715y Steve Mobley,Senior Vice President of Compass Bank on behalf of such institution. 0-171-"1 C--61e- d- (7/ A 17002 'LZ N38 J DRQ ..0;io,1 aaJIdK,i uglcsiwwo0 AN PATRICIAt, r, L CEARLEY ssxe j JO etstg 'Nod AietoN 3`�' ` � a Notary Public, Stets ci Taxes A�7�d3D 1 VIOlif Vc1 't � 3v My Commission Expires 4.°F DECEMBER 27, 2004 AFTER RECORDING RETURN TO: PREPARED IN THE LAW OFFICE OF: Charles A. Ellison, P.C. Charles A. Ellison, P.C. P.O. Box 10103 P.O. Box 10103 College Station, Texas 77842 College Station, Texas 77842 File No. 04874.012 FIRST AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS: SPRING CREEK TOWNHOMES SUBDIVISION D; n,"1 zzr ccnc�T: A q. YJ.' :.'x,� w.� Il]I `S Y.., _1", !moi ,2 Y.:•a crop , •..�>.. 1-�.. qty ^p EJ i.. 4�.�.��,Ir��y-1a.. _ ru rJel r'"Pu q'y Cx 2� f') h... f it. P r; .J "L M 1-lS Iw ,Ji 1 w�".0 Cy ,!7 i • 11 RI Kg �i�� �` irk 1... I:..• !Y, Ir. ,'oaC ,.'l'1 nil `•• Pi. ah'• a „„ ', zE155V 9 Oil - AMENDMENT TO SECOEDLARATIOA p RESTRICTIONS D DITiONS vENANTS, CON OMES SUBDIVISION AND GO EEK TOW NN CONDITIONS as of c, CR ANTS, effective SPRING Inc. SP OF COVENANTS, is made Builders,CLARATION"Second OVENA and Sty1ecraft B d 25,Block NreekToW Tomo Subdivision o (tthis eco d oar tsme21,at 22,2a, e2an SECOND Creek Coing Creek CS Development, eVe Block 2 an of This ring f L and t. Declaration RES-TRIG-1101\1S of ►p 200�is �e Spring of Lots this Second e°nd Amendment. ch E, that one certain fiorr cord in Volumed andchange All capitalized day 11',3 S raft such Lots Subjects gubd►via►on, the „ d alter, "Declaration").i ,Stylecraft) su made to amend, Town as amended(the 4 and wishes to make is �� Spring Creek as the,peclarat►on Second An1;irdi�� tions of P CountY,Tex them in , 1 T";;s �G d Restrictions Brazos scribed to Conditions i n Covenants, 8 of the Official Records the definitions a ntence' shall have following se 5711,P age 12 in afl h berg as follows•• the providing of defined include purpose of amended mended to terms n tion is tion is a may be used for the Pure tion and 2,The Declaration Declaration for the Ass°cfa of the 02 of the D Association insurance 6A1(sl Section 5 the A s liability ins t to Section (a) essments levied band° ►cgr Units pursuant„The afs and directorsportions of Dwelling and replaced liability insurance exterior p deleted repainting tion is hereby for re Declaration d Declaration." eclaration„ 03 of the paragraph of Section 5 e s adhueambase d unless oth month Which the The first an ts• Until and unless initial regular (b) with the following.. ctors Assessments. per Lot per b) Lot of Properties-,( „Basis and Amount tpie fiveh Dollars ($8500) the Common on operating which t e Directorstion Board will co maintenance(c)the costs described in meat by the Ment shall a Will cover. (a) tion 10•p9.,( system as assess assess estimates described in Section sprinkler tion may levy an fix and coon ance Association in sso ing lawn r-namten and maintaining for which pard of Directors may water costs) dl an`! other;tem e 4ssoc 10.09; nhua Arse the Arima Assessment" Declaration 5 04 of the hereof, ftpe"time to time,pparagraph is added to Section t authorized bySection m nt on a Lot le or inn The following Pa ual Assessmen ess in wre (c) regular Ann 1 Year a special assessment defraying d to repainting to the in any fiscal the purposeu relate dan e with n. In addition may levy of Owners forccor clean c theAssociationcsroue of L preparation or Lot(s) in accordance the affirmative ap Lot Owners or a group i (and any such Owner(s) wner( )t shall have Units on assessment Board." the cost of the Dwelling ny such ass rising the exterior of peoff theAndivfduals coup ociation' rights of the Ass 6 01(s)of the the following liabl °f at feast two-thirdsinclude s pein9 Section 6.01 is amended t° days written notice,without tr ten(d) Sec To enter'after 10 ,.(s) 'oc Bk Vol Pg X1855299 OR 6040 92 Owner, upon any Lot for the purpose of repainting the exterior portions of the Dwelling Unit on such Lot in a color or colors to be determined by the Association; provided the Association reasonably believes the Dwelling Unit to be in need of repainting, whether due to normal wear and tear, damage or otherwise. All repainting shall be done in a good and workmanlike manner." (a) Section 10.08(d)of the Declaration is deleted and replaced with the following: "(d) watering of all landscaping (other than lawns during such times that the Association controls operation of a common sprinkler system serving the Lot);" (f) Section 10.09 of the Declaration is deleted and replaced with the following: "10.09 Yard Maintenance; Sprinkler System. The Association will have primary responsibility for the mowing, trimming, and edging of grass only on each Lot and for operation and maintenance of any sprinkler system,on each Lot that is part of a common sprinkler system. The Association is not responsible for: planting and/or re-planting grass or landscaping materials; grass loss; seasonal color and/or decorations; and the maintenance of exotic or poorly-suited landscape plants. Each Owner is encouraged to consult with authorized representatives of the Association or the ARC for further information if in doubt concerning the grounds maintenance program. Each Lot on which a Dwelling Unit is constructed shall have and contain an underground water sprinkler system for the purpose of providing sufficient water(to preserve and maintain the grass and landscaping in a healthy and attractive condition) to all yard areas on the Lot. The Association shall have the right to operate each sprinkler, or require the Lot Owner to do so, in conjunction with a common maintenance plan although the respective Lot Owner•shall bear all costs and expenses related to the installation and repair of the sprinkler system as well as the water consumption arising from its operation. The Association may elect to pay the costs and expenses of water consumption for all of the Lots and recoup such costs and expenses by including in each Lot Owner's assessment a reasonable estimate of the Owner's share of water consumption costs and expenses. The Association will bear the reasonable cost of repairs to the sp.-inkier system if caused by the negligence of employees,agents or officers of the Association. In the event that a Lot Owner shall select and implement an exterior landscaping plan or yard composition which, in the reasonable opinion of the ARC or the Association, requires unusual or extraordinary cost or expense in irrigation,upkeep and maintenance,such Lot Owner shall reimburse the Association on a monthly basis for the additional costs or expenses so incurred. Notwithstanding the efforts which may be made by the Association to maintain exterior landscaping, each Lot Owner shall use reasonable efforts to keep, preserve and maintain the landscaping in a healthy and attractive condition." (g) Section 11.06 is hereby added to the Declaration: "11.06 Easement for Repainting. An easement is hereby retained in favor of the Association over all Lots for the purpose of repainting exterior portions of Dwelling Units pursuant to Section 6.01 of the Declaration. An entry upon any Lot by the Doc @0855299 Rk 6040o Pg 93 Association to effectuate the foregoing shall not be deemed as trespass." 3. Declarant and Stylecraft, as owners of all of the Lots and having all of the votes in the Association, make this Second Amendment pursuant to Section 13.04 of the Declaration. 4. All provisions of the Declaration not amended by this instrument shall remain in full force and effect. This instrument has been executed by the undersigned on the date of the taking of their acknowledgments, but the effective date of this instrument shall be deemed to be April Z.f , 2004, for all purposes and it shall be effective as of that date. SPRING CREEK CS DEVELOPMENT, LTD. By: Spring g V reek CS Management LLC, its General Partner ... . / _ f.%it %r._ Wall--- •hillips, Ma -ger STY 1 j.1FT B I DERS INC. By: w Randy Fr_l ch, President THE STATE OF TEXAS § (ACKNOWLEDGMENT) COUNTY OF BRAZOS § This instrument was acknowledged before me on the day of April, 2004, by Wallace Phillips, Manager of Spring Creek CS Management, LLC, the general partner of Spring Creek CS Development, Ltd., a Texas limited partnership, on behalf of said partnership. t. - Ajg44,4,4-4.--) EM AA 1ORREs �� � w �� ►+sgt�a_ w.r� s . Notary Public, State of Texas eir.. JANUARY 31,2008 ^oc Bk Vol Pg )855299 OR 6040 94 THE STATE OF TEXAS § (ACKNOWLEDGMENT) COUNTY OF BRAZOS § This instrument was acknowledged before me on the a,$ day of April, 2004, by Randy French, President of Stylecraft Builders, Inc., a Texas corporation, on behalf of said corporation. i ry �1MAlORRES r, �.��:�. ;s �. r 11,slal.aTwee woos on » No -ry Public, State of Texas 'r,'r„a JANUARY 31,2008 CERTIFICATION OF SECRETARY I,VICKI HILLERT,Secretary of Spring Creek Townhomes Owners Association, Inc., hereby certify that the"Development Period",as such term is defined in the Declaration of Covenants,Conditions and Restrictions of Spring Creek Townhomes, has not expired as of April , 2004. 'AA.j. k . VICKI HILLERT, ecretary THE STATE OF TEXAS § (ACKNOWLEDGMENT) COUNTY OF BRAZOS § This instrument was acknowledged before me on the day of April,2004,by Vicki Hillert,Secretary of Spring Creek Townhomes Owners Association, Inc., Inc.,a Texas corporation,on behalf of said corporation. E4tAAATORRES _ ii, ii._i _ ►_44; ;r''-.., ., NonAdo____atdTemeM =tary Public, State of Texas i Pit 14 Commission E w a JANUARY 31,2006 7oc Bk Vol Pg enzi 855299 OR 6040 95 CONSENT AND SUBORDINATION BY LIENHOLDER Lienholder, as the holder of the lien on the Property, consents to the foregoing Second Amendment to Declaration of Covenants, Conditions and Restrictions and the covenants, conditions, restrictions and easements contained therein, and lienholder hereby subordinates its lien to the rights and interests of the Second Amendment to Declaration of Covenants, Conditions and Restrictions, such that a foreclosure of the lien shall not extinguish the covenants, conditions, restrictions and easements contained in the Second Amendment to Declaration of Covenants, Conditions and Restrictions. COMPASS BANK By: 1 r i ar Steve Mobley, Senior Vice President THE STATE OF TEXAS § COUNTY OF BRAZOS § , ik7,?, • This document was acknowledged before me on Apfif /S., 2004, by Steve Mobley, Senior Vice President of Compass Bank on behalf of such institution. Ac CitGl Z &.-1,4A/ cc��, PATRICIA L CEARLEY Notary.Public in and for State of Texas *� h Notary Pubic, State of Taxes �') My Commission Expires 4 p DECEMBER 27 2004 AFTER RECORDING RETURN TO: PREPARED IN THE LAW OFFICE OF: Charles A. Ellison, P.C. Charles A. Ellison, P.C. P.O. Box 10103 P.O. Box 10103 College Station, Texas 77842 College Station, Texas 77842 File No. 04874.012 SECOND AMENDMENT'TO DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS: SPRING CREEK TOWNHOMES SUBDIVISION NI ei C:1 i, l EU , ro .,...Se X73 m ti.. „y, ,D "c pN ro. I .fi �r ra '�- y- 47icy ne -�` ,sT, ea.rte. ttl '� e a ru a -5 -4V0 '= I n Ga.1 RU cis KY, �N• . atIR 03w Ti0836201 OR 57111 1289 • DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS SPRING CREEK TOWNHOMES SUBDIVISION Pg 10836201 Bk 57111 129 TABLE OF CONTENTS ARTICLE 1. CONCEPTS AND DEFINITIONS Page 1 1.01 "Amended Declaration" Page 2 1.02 "Annual Assessment" Page 2 1.03 "Architectural Review Committee" Page 2 1.04 "Articles" Page 2 1.05 "Assessable Property" Page 2 1.06 "Association" Page 2 1.07 "Board" Page 2 1.08 `Bylaws" Page 2 1.09 "Central Appraisal District" Page 2 1.10 "Common Properties" Page 2 1.11 "Covenants" Page 3 1.12 "Declarant" , Page 3 1.13 "Declaration" Page 3 1.14 "Deed" Page 3 1.15 "Design Guidelines" Page 3 1.16 "Development Period" Page 3 1.17 "Dwelling Unit" Page 3 1.18 "Easement Area" Page 3 1.19 `Exempt Property" Page 3 1.20 "Fiscal Year" Page 4 1.21 "Improvement" Page 4 1.22 "Lot" Page 4 1.23 "Member" Page 4 1.24 "Owner" Page 4 1.25 "Payment and Performance Lien" Page 4 1.26 "Property" Page 4 1.27 "Resident" Page 4 1.28 "Structure" Page 4 1.29 "Subdivision" Page 5 1.30 "Taxing Authorities" Page 5 1.31 "Trustee" Page 5 1.32 "Zoning Ordinance" Page 5 ARTICLE 2 PROPERTY SUBJECT TO THIS DECLARATION Page 5 2.01 Existing Property. Page 5 2.02 Additions to Existing Property. Page 5 ARTICLE 3 MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION Page 6 3.01 Membership. Page 6 3.02 Voting Rights. Page 6 3.03 Board of Directors. Page 6 3.04 Notice and Voting Procedures. Page 6 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS j Doc Bk Z10E13622 1 OR 5711a 130 ARTICLE 4 RIGHTS OF ENJOYMENT IN THE COMMON PROPERTIES Page 7 4.01 Easement. Page 7 4.02 Extent of Members'Easements. Page 7 4.03 Restricted Actions by Members. Page 7 4.04 Damage to the Common Properties. Page 8 4.05 Rules of the Board. Page 8 4.06 Use of Common Properties. Page 8 4.07 User Fees and Charges. Page 8 4.08 Encroachments. Page 8 4.09 Parking Areas. Page 8 ARTICLE 5 COVENANTS FOR ASSESSMENTS Page 9 5.01 Creation of the Lien and Personal Obligation of Assessments. . Page 9 5.02 Purposes of Assessments. Page 9 5.03 Basis and Amount of Annual Assessments. . Page 10 5.04 Special Group Assessments. Page 10 5.05 Rate of Assessments. Page 10 5.06 Date of Commencement of Assessments;Due Dates. Page 10 5.07 Duties of the Board of Directors with Respect to Assessments. Page 10 5.08 Effect of Non-Payment of Assessment;the Personal Obligation of the Owner; the Payment and Performance Lien; and Remedies of Association. Page 11 5.09 Power of Sale. Page 12 5.10 Subordination of the Lien to Mortgages. Page 13 5.11 Exempt Property. Page 14 ARTICLE 6 GENERAL POWERS AND DUTIES OF THE BOARD OF DIRECTORS OF THE ASSOCIATION Page 14 6.01 Powers and Duties. Page 14 6.02 Board Powers. Page 16 6.03 Maintenance Contracts. Page 16 6.04 Liability Limitations. Page 16 6.05 Reserve Funds. Page 16 ARTICLE 7 • INSURANCE;REPAIR;RESTORATION Page 17 7.01 Right to Purchase Insurance. Page 17 7.02 Insurance and Condemnation Proceeds. Page 17 7.03 Insufficient Proceeds. Page 17 ARTICLE 8 ARCHITECTURAL REVIEW COMMITTEE Page 17 8.01 Membership of ARC Page 17 8.02 Action by ARC Page 17 8.03 Advisory Members Page 17 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS ii Doc Bk Vol Pg ;0836201 OR 5711 131 8.04 Term Page 18 8.05 Declarant's Rights of Appointment Page 18 8.06 Adoption of Rules Page 18 8.07 Review of Proposed Construction Page 18 8.08 Actions of the ARC Page 18 8.09 No Waiver of Future Approvals Page 18 8.10 Work in Progress Page 19 8.11 Nonliability of ARC Members Page 19 8.12 Address Page 19 8.13 Failure to Act Page 19 8.14 Variances Page 19 8.15 Governmental Agency Approval Page 19 8.16 Relationship with Association Page 19 ARTICLE 9 GENERAL RESTRICTIONS Page 19 9.01 Construction of Improvements. Page 19 9.02 Antennae and Signals. , Page 19 9.03 Insurance Rates. Page 20 9.04 Subdividing. Page 20 9.05 Signs. Page 20 9.06 Rubbish and Debris. Page 20 9.07 Noise. Page 20 9.08 Lighting. Page 20 9.09 Nuisance and Lateral Support. Page 20 9.10 Repair of Improvements. Page 20 9.11 Alteration or Removal of Improvements. Page 20 9.12 Roofing Materials. Page 20 9.13 Solar Equipment. Page 21 9.14 Driveway. Page 21 9.15 Tanks. Page 21 9.16 Underground Utility Lines. Page 21 9.17 Drainage. Page 21 9.18 Hazardous Activities. Page 21 9.19 Mining and Drilling. Page 21 9.20 Machinery and Equipment. Page 21 9.21 Temporary Structures. Page 21 9.22 Unsightly Articles;Vehicles;Number of Occupants. Page 22 9.23 Mobile Homes,Travel Trailers,Recreational Vehicles. Page 22 9.24 Fences. Page 22 9.25 Animals-Household Pets. Page 22 9.26 Landscape Design. Page 22 9.27 Construction and Sales Activities. Page 23 9.28 Mailboxes. Page 23 9.29 Sight Lines. Page 23 9.30 Garage Conversions. Page 23 9.31 Use of Common Properties. Page 23 9.32 Compliance with Provisions of this Declaration. Page 23 9.33 No Warranty of Enforceability. Page 23 ARTICLE 10 RESIDENTIAL RESTRICTIONS Page 24 10.01 Residential Use. Page 24 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS ill Doc Bk Vol Pig 00836201 OR 5711 132 10.02 Garages. Page 24 10.03 Outbuildings. Page 24 10.04 Building Height. Page 24 10.05 Building Materials;Dwelling Size. Page 24 10.06 Set-back Requirements Page 24 10.07 Party Walls and Structures Page 24 10.08 Landscaping;Maintenance. Page 25 10.09 Yard Maintenance;Sprinkler System. Page 26 ARTICLE 11 EASEMENTS Page 26 11.01 Reserved Easements. Page 26 11.02 Installation and Maintenance. Page 26 11.03 Surface Areas. Page 27 11.04 Drainage Easements. Page 27 11.05 Blanket Easement. Page 27 ARTICLE 12 REGISTRATION Page 27 12.01 Registration with the Association. Page 27 ARTICLE 13 GENERAL PROVISIONS Page 28 13.01 Power of Attorney Page 28 13.02 Further Development. Page 28 13.03 Duration. Page 28 13.04 Amendments. Page 29 13.05 Enforcement. Page 29 13.06 Validity. Page 29 13.07 Proposals of Declarant. Page 29 13.08 Service Mark. Page 29 13.09 Headings. Page 30 13.10 Notices to Resident/Member/Owner. Page 30 13.11 Notices to Mortgagees. Page 30 13.12 Disputes. Page 30 13.13 Enforcement and Nonwaiver. Page 30 13.14 Assignment by Declarant. Page 30 13.15 Exemption of Declarant. Page 31 13.16 Interpretation. Page 31 13.17 Construction. Page 31 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS iV r)oc Bk Vol Pg J0836201 OR 5711 133 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS SPRING CREEK TOWNHOMES SUBDIVISION This DECLARATION OF CONVENANTS, CONDITIONS AND RESTRICTIONS of Spring Creek Townhomes Subdivision, is made and effective as of the 3I day of October, 2003, by Spring Creek CS Development, Ltd., (sometimes referred to herein as the "Declarant") and Stylecraft Builders, Inc. ("Stylecraft"): PREAMBLE Declarant is the owner and developer of certain residential Lots within a 18.840 acre tract of land now commonly known and described as the Spring Creek Townhomes Subdivision (which lots are more particularly described on the plat of Spring Creek Townhomes Subdivision, recorded in Volume 5513, Page 14, Official Records of Brazos County, Texas). Stylecraft is the owner of Lots 1, 2, 3 and 4, Block 2 and Lots 20, 21, 22, 23, 24 and 25, Block 4 and wishes to make such Lots subject to this Declaration. Declarant proposes to establish and implement plans for residential living, recreation, aesthetic and quality-of-life considerations. The purposes of this Declaration is to: protect the Declarant and the Owners against inappropriate development and use of Lots within the Subdivision;, provide for the use, maintenance and repair of compatibility of design of improvements within the Subdivision; secure and preserve sufficient setbacks and space between buildings so as to create an aesthetically pleasing environment; provide for landscaping and the maintenance thereof; and in general to encourage construction of attractive, quality, permanent improvements that will promote the general welfare of the Declarant and the Owners. Declarant and Stylecraft desire to impose these restrictions on the Property now and yet retain reasonable flexibility to respond to changing or unforeseen circumstances so as to guide, control and maintain the quality and distinction of the Spring Creek Townhomes Subdivision. The restrictive covenants herein will preserve the best interests of the Declarant, Stylecraft and the Owners and Residents of Spring Creek Townhomes Subdivision after completion of all development and construction therein. The Spring Creek Townhomes Owners Association, Inc. (the "Association") has been or will be chartered as a non-profit Texas corporation to assist in the ownership, management, use and care of the various common areas within Spring Creek Townhomes Subdivision, to assist with Lot maintenance as provided herein and to assist in the administration and enforcement of the covenants, conditions, restrictions,easements, charges and liens set forth with this Declaration. DECLARATION The Declarant hereby declares that the Property, and such phases or additions hereto as may hereafter be made pursuant to Article 2 hereof, are and shall be owned, held, mortgaged, transferred, sold, conveyed and occupied subject to this Declaration and the covenants, conditions, restrictions, easements, charges and liens (sometimes collectively referred to hereinafter as"the Covenants")set forth in this Declaration. ARTICLE 1. CONCEPTS AND DEFINITIONS The following words, when used in this Declaration or in any amended or supplementary declarations (unless the context shall otherwise clearly indicate or prohibit), shall have the following meanings: DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 1 k J0836201 OR7111 134g 1.01 "Amended Declaration"shall mean and refer to each and every instrument recorded in the Official Records of Brazos County, Texas which amends, supplements, modifies, clarifies or restates some or all of the terms and provisions of this Declaration. 1.02 "Annual Assessment"shall have the meaning specified in Article 5 below. 1.03 "Architectural Review Committee"(sometimes referred to herein as the"ARC")shall mean and refer to the committee which is described in Article 8 below. 1.04 "Articles" shall mean and refer to the Articles of Incorporation (and amendments thereto and restatements thereof)of the Association on file with the Secretary of State of Texas. 1.05 "Assessable Property" shall mean and refer to each and every lot (including the lots owned by Stylecraft), within the Property which: (i) the Declarant has subjected to and imposed upon a set of restrictive covenants calling for the payment of an Annual Assessment to the Association; (ii) may have been or will be given a separately identifiable tax or parcel number by the Central Appraisal District ("CAD") or a similar governmental agency; and (iii) is not designated an "open space" or otherwise a portion of the Common Properties. The Declarant proposes to cause, each residential Lot within the Property to constitute an Assessable Property. However, the Declarant reserves the right and discretion to include or exclude any non-residential Lot from the concept of "Assessable Property" and/or to prescribe a different assessment and/or valuation scheme(s)for any non-residential Lot. 1.06 "Association" shall mean and refer to Spring Creek Townhomes, Inc., a non-profit Texas corporation which has the power,, duty and responsibility of maintaining and administering certain portions of the Property and all of the Common Properties, administering and enforcing the Covenants and otherwise maintaining and enhancing the quality of life within Spring Creek Townhomes Subdivision. 1.07 "Board" shall mean and refer to the Board of Directors of the Association. 1.08 "Bylaws" shall mean and refer to the Bylaws of the Association, as adapted and amended from time to time. 1.09 "Central Appraisal District" ("CAD") shall mean and refer to the governmental and/or quasi-governmental agency(ies) (including without limitation the Central Appraisal District of Brazos County) established in accordance with Texas Tax Code Section 6.01 et seq. (and its successor and assigns as such law may be amended from time to time) or other similar statute which has, as one of its purposes and functions, the establishment of an assessed valuation and/or fair market value for various lots, parcels and tracts of land in Brazos County, Texas. 1.10 "Common Properties" shall mean and refer to any and all areas of land within the Property which are known, described or designated as common areas, parking lots, pools, parks, recreational easements, stormwater detention areas, floodway easement areas, lakes, ponds, dams, perimeter fences and columns, off-site monuments and directional signs, landscape easement, greenbelts, open spaces, paths and trails, and the like including without limitation those shown on any recorded subdivision plat of portions of the Property as well as those not shown on a recorded subdivision plat but which are intended for or devoted to the common use and enjoyment of the Members of the Association, together with any and all improvements that are now or that may hereafter be constructed thereon. The concept of Common Properties will also include: (i) any and all public right-of-way lands within the Property for which the City of College Station has required that the Declarant and/or the Association expend private, non- reimbursable time and monies to care for and maintain, such as but not limited to: street medians, streetscape, hike and bike trails, park areas and quasi-governmental service facilities; and (ii) any and all facilities provided by the Declarant and/or the Association to or for the benefit of the local police, fire and similar governmental departments for which no reimbursement via public funds is requested or anticipated. Declarant may convey record title or easements to some or all of the Common Properties to DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 2 Doc Bk Vol Pg )1,71836201 OR 5711 135 the Association if, as and when deemed appropriate by Declarant or as may be required by governmental officials, and Declarant shall at all times have and retain the right to effect minor redesigns or minor reconfigurations of the Common Properties (particularly along the edges) and to execute any open space declarations applicable to the Common Properties which may be permitted in order to reduce property taxes, and to take whatever steps may be appropriate to lawfully avoid or minimize the imposition of federal and state ad valorem and/or income taxes. 1.11 "Covenants" shall mean and refer to all covenants, conditions, restrictions, easements, charges and liens set forth within this Declaration. 1.12 "Declarant" shall mean and refer to Spring Creek CS Development, Ltd. and any successor(s) and assign(s) of Spring Creek CS Development, Ltd., with respect to the voluntary disposition of all (or substantially all) of the assets and/or ownership interests of Spring Creek CS Development, Ltd., and/or the voluntary disposition of all (or substantially all) of the right, title and interest of Spring Creek CS Development, Ltd. in and to the Property. However, no person or entity (including, without limitation, Stylecraft) merely purchasing one or more Lots from Spring Creek CS Development, Ltd. in the ordinary course of business shall be considered a"Declarant". 1.13 `Declaration" shall mean this instrument entitled the "Declaration of Covenants, Conditions and Restrictions for Spring Creek Towhhomes Subdivision", recorded in the Official Records of Brazos County, Texas, together with any and all amendments or supplements thereto. 1.14 "Deed" shall mean and refer to any deed, assignment, testamentary bequest, muniment of title or other instrument, or intestate inheritance and succession, conveying or transferring fee simple title or a leasehold interest or another legally recognized estate in a Lot. 1.15 "Design Guidelines"shall mean the guidelines described in Section 8.06. 1.16 "Development Period" shall mean a period commencing on the date of the recording of this Declaration in the Official Records of Brazos County,Texas and continuing thereafter until and ending on the earlier to occur of: (i) substantial completion of all development (including without limitation the completion and sale of all Lots in the Subdivision to third parties) on the Property; (ii) the tenth (10th) anniversary of the date of recordation of this Declaration in the Official Records of Brazos County, Texas; or(iii)the date determined by Declarant to be the end of the Development Period. 1.17 "Dwelling Unit" shall mean and refer to any building or portion of a building situated upon the Property which is designed and intended for use and occupancy as a residence by a single person, a couple,a family or a permitted family size group of persons. 1.18 "Easement Area" shall mean and refer to those areas which may be covered by an easement specified in Article 11 below. 1.19 "Exempt Property" shall mean and refer to the following portions of the Property: (i) all land and Improvements owned by the United States of America, the State of Texas, Brazos County, the City of College Station or any instrumentality, political subdivision or agency of any such governmental entity acting in a governmental capacity; (ii) ail land and Improvements owned (including legal and beneficial ownership, whether now or in the future) by the Association or constituting a portion of the Common Properties; (iii) all land and Improvements which are not only exempt from the payment of ad valorem real property taxes by the City of College Station, Brazos County, the College Station Independent School District, and the State of Texas, but also are exempt from the payment of any assessment hereunder as expressly determined by written resolution of the Declarant and/or the Association all Lots owned by Declarant; and (iv) such other land(s) and/or Improvement(s) and/or Lot(s) which are specifically exempted from the payment of Annual Assessments in accordance with a special resolution of the Board. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 3 lac Bk Vol Pg )08362€ 1 OR 5711 136 1.20 "Fiscal Year" shall mean each twelve (12) month period commencing on January 1 and ending on the following December 31, unless the Board shall otherwise select an alternative twelve month period. 1.21 "Improvement" shall mean any physical change to raw land or to an existing structure which alters the physical appearance, characteristics or properties of the land or structure, including but not limited to adding or removing square footage area space to or from a structure, painting or repainting a structure, or in any way altering the size, shape or physical appearance of any land or structure. 1.22 "Lot" shall mean and refer to each separately identifiable portion of the Assessable Property which is platted, filed and recorded in the Official Records of Brazos County, Texas and which is assessed by any one or more of the Taxing Authorities and which is not intended to be an `open space"or a portion of the Common Properties. 1.23 "Member" shall mean and refer to each Resident who is in good standing with the Association and who has filed a proper statement of residency with the Association and who has complied with all directives and requirements of the Association. Each and every Owner shall and must take such affirmative steps as are necessary to become and remain a Member of, and in good standing in, the Association. Each and every Resident (who is not otherwise an Owner) may, but,is not required to, be a Member of the Association. 1.24 "Owner" shall mean and refer to the holder(s) of record title to the fee simple interest of any Lot whether or not such holder(s) actually reside(s)on any part of the Lot. 1.25 `Payment and Performance Lien" shall mean and refer to the lien described within Sections 5.08 and 5.09 of Article 5 hereinbelow. 1.26 "Property" shall mean and refer to the land described as Spring Creek Townhomes Subdivision, College Station, Texas, according to plat recorded at Volume 5513, Page 148, in the Official Records of Brazos County, Texas, and such other lands made subject to this Declaration pursuant to Section 2.02. 1.27 "Resident"shall mean and refer to: (a) each owner of the fee simple title to any Lot within the Property; (b) each person residing on any part of the Assessable Property who is a bona-fide lessee pursuant to a legally cognizable lease agreement with an Owner; and (c) each individual lawfully domiciled in a Dwelling Unit, other than Owner or bona-fide lessee. 1.28 "Structure" shall mean and refer to: (i) any thing or device, other than trees, shrubbery (less than two feet high if in the form of a hedge) and landscaping (the placement of which upon any Lot shall not adversely affect the appearance of such Lot) including but not limited to any building, garage, porch, shed, greenhouse or bathhouse, cabana, coop or cage, covered or uncovered patio, swimming pool, play apparatus, clothesline, fence, curbing, paving, wall or hedge more than two feet in height, signboard or other temporary or permanent living quarters or any temporary or permanent Improvement to any Lot; (ii) any excavation,fill, ditch, diversion dam or other thing or device which affects or alters the flow of any waters in any natural or artificial stream, wash or drainage channel from, upon or across any Lot; (iii) any enclosure or receptacle for the concealment, collection and/or disposition of refuse; and (iv) any change in the grade of any Lot of more than three (3) inches from that existing at the time of initial approval by the Architectural Review Committee. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 4 oc Bk Vol Pg 10836201 OR 5711 137 1.29 "Subdivision" shall mean and refer to the Spring Creek Townhomes Subdivision, a subdivision of certain land as described on the plat thereof recorded in Volume 5513, Page 148 of the Official Records of Brazos County, Texas, as well as any and all revisions, modifications, corrections, or clarifications thereto. 1.30 "Taxing Authorities" shall mean and refer to Brazos County, the College Station Independent School District, the City of College Station and the State of Texas and any and all other governmental entities or agencies which have, or may in the future have, the power and authority to impose and collect ad valorem taxes on real property estates. 1.31 "Trustee" shall mean and refer to that certain individual (s) or entity (ies) designated or appointed from time to time and at any time by the Association to perform the duties and responsibilities described within Section 5.09 of Article 5 below, and its successors and assigns. 1.32 "Zoning Ordinance" shall mean and refer to City of College Station zoning ordinances, governmental regulations, and all amendments thereto. ARTICLE 2 PROPERTY SUBJECT TO THIS DECLARATION 2.01 Existing Property. The residential Lots which are, and shall be, held, transferred, sold, conveyed and occupied subject to this Declaration within the Spring Creek Townhomes Subdivision are more particularly described on the plat recorded at Volume 5513, Page 148, in the Official Records of Brazos County,Texas. 2.02 Additions to Existing Property. Additional land(s) may become subject to this Declaration, or the general scheme envisioned by this Declaration, as follows: (a) The Declarant may(without the joinder and consent of any person or entity)add or annex real property additions to the scheme of this Declaration by filing of record an appropriate enabling declaration, generally similar to this Declaration, which may extend the scheme of the Covenants to such property. Provided further however, such other declaration (s) may contain such complementary additions and modifications of these Covenants as may be necessary to reflect the different character, if any, of the added properties and as are not inconsistent with the concept and purpose of this Declaration. (b) In the event any person or entity other than the Declarant desires to add or annex additional Assessable Property and/or Common Property to the scheme of this Declaration, such annexation proposal must have the express approval of the Board. Any additions made pursuant to this Section 2.02, when made, shall automatically extend the jurisdiction, functions, duties and membership of the Association to the properties added and correspondingly subject the properties added to the covenants of the enabling declaration. Upon any merger or consolidation of the Association with another association, its properties, rights and obligations may, by operation of law or by lawful articles or agreement of merger, be transferred to another surviving or consolidated association or, alternatively, the properties, rights and obligations of another association may, by operation of law or by lawful articles or agreement of merger, be added to the properties, rights and obligations of the Association as a surviving corporation pursuant to a merger. The surviving or consolidated association may administer the Covenants established by this Declaration, together with the covenants and restrictions established upon any other properties, as one scheme. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 5 k X836201 OR 57111 138 ARTICLE 3 MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION 3.01 Membership. Each and every Owner of each and every Lot which is subjected to these Covenants shall automatically be, and must at all times remain, a Member of the Association in good standing. Each and every Resident (who is not otherwise an Owner)may, but is not required to, be a non- voting Member of the Association. During the Development Period, the Association shall have two (2) classes of Members: Class A and Class B. The Class A Members shall include: (a) all Owners (other than the Declarant during the Development Period); and (b) all Residents (not otherwise Owners) who have properly and timely fulfilled all registration and related requirements prescribed by the Association. The Class B Member shall be the Declarant. 3.02 Voting Rights. The two (2) classes of voting Members shall have the following voting rights during the Development Period: Class A: The Owner(s)of each Lot(other than Declarant)shall be entitled to no votes. Class B: The Class B Member shall have one(1)vote for each Lot it owns. After the Development Period, there shall be one class of voting Members as follows: The Owner (s)of each Lot shall be entitled to one (1)vote per Lot. Where more than one (1) Owner owns and holds a record fee interest in a Lot such Owners may divide and cast portions of the one (1) vote as they decide, but in no event shall any one (1)Lot yield more than one(1)vote. An Owner must be in good standing before being entitled to vote. Any Owner, Resident or Member shall not be in "good standing" if such person or entity is: (a) in violation of any portion of these Covenants, or any rule or regulation promulgated by the Board; (b) delinquent in the full, complete and timely payment of any Annual Assessment, special assessment, or any other fee, charge or fine which is levied, payable or collectible pursuant to the provisions of these Covenants, the Bylaws or any rule or regulation promulgated by the Board. The Board may make such rules and regulations, consistent with the terms of this Declaration and the Bylaws, as it deems advisable, for: any meeting of Members; proof of membership in the Association; the status of good standing; evidence of right to vote; the appointment and duties of examiners and inspectors of votes; the procedures for actual voting in person or by proxy; registration of Members for voting purposes; and such other matters concerning the conduct of meetings and voting as the Board shall deem fit. 3.03 Board of Directors. During the Development Period, the affairs of the Association shall be managed initially by a board of three (3) individuals elected by the Class B Member. However, after the Development Period, the Board shall consist of at least three (3) individual Directors elected by the Members. The Directors need not be Members of the Association. Directors shall be elected for two year terms of office and shall serve until their respective successors are elected and qualified. After the Development Period, any vacancy which occurs in the board, by reason of death, resignation, removal, or otherwise, may be filled at any meeting of the board by the affirmative vote of a majority of the remaining Directors. Any Director elected to fill a vacancy shall serve as such until the expiration of the term of the Director whose position he or she was elected to fill. 3.04 Notice and Voting Procedures. Quorum, notice and voting requirements of and pertaining to the Association may be set forth within the Articles and Bylaws, as either or both may be amended from time to time, and shall be in accordance with permitted Texas law. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 6 Doc Bk Vol Pg h0836201 OR 5711 139 ARTICLE 4 RIGHTS OF ENJOYMENT IN THE COMMON PROPERTIES 4.01 Easement. Subject to the provisions of Sections 4.02 through 4.07, each and every Owner in good standing with the Association shall have a non-exclusive right and easement of enjoyment in and to all Common Properties, and such easement shall be appurtenant to and shall pass with every Lot, provided the conveyance and transfer is accomplished in accordance with this Declaration. All Residents in good standing with the Association shall have a non-transferable, non-exclusive privilege to use and enjoy all Common Properties for so long as they are Members in good standing with the Association. 4.02 Extent of Members' Easements. The rights and easements of use, recreation and enjoyment created hereby shall be subject to the following: (a) The right of the Declarant or Association to prescribe reasonable regulations (e.g. limitations on parking on or in the streets and parking areas) and policies governing, and to charge reasonable expense reimbursements and/or deposits related to, the use, operation and maintenance of the Common Properties; (b) Liens or mortgages placed against all or any portion of the Common Properties with respect to monies borrowed by the Declarant to develop and improve the Property or Common Properties or by the Association to improve or maintain the Common Properties; (c) The right of the Association to enter into and execute contracts with any party (including, without limitation, the Declarant or its affiliates)for the purpose of providing management, maintenance or such other materials or services consistent with the purposes of the Association and/or this Declaration; (d) The right of the Declarant or the Association to take such steps as are reasonably necessary to protect the Common Properties against foreclosure; (e) The right of the Declarant or the Association to enter into and execute contracts with the owner-operators of any community antenna television system ("CATV") or other similar operation for the purpose of extending cable or utility or security service on, over or under the Common Properties to ultimately provide service to one or more of the Lots; (f) The right of the Declarant or the Association in accordance with the requirements of the Texas Property Code to suspend the voting rights of any Member and to suspend the right of any Member to use or enjoy any of the Common Properties for any period during which any assessment (including without limitation "fines") against a Lot resided upon by such Member remains unpaid, or during which non-compliance with this Declaration exists, and otherwise for any period deemed reasonable by the Association for any infraction of the then-existing rules and regulations and/or architectural guidelines; (g) The right of the Declarant and/or the Association to dedicate or transfer all or any part of the Common Properties to any municipal corporation, public agency, governmental authority, or utility for such purposes and upon such conditions as may be agreed to by the Declarant and the Board; and (h) The right of the Declarant and/or the Association to grant permits, licenses and easements over the Common Properties for utilities, roads and other purposes necessary for the proper operation of Spring Creek Townhomes Subdivision. 4.03 Restricted Actions by Members. No Member shall permit anything to be done on or in the Common Properties which would violate any applicable public law or Zoning Ordinance or which would DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 7 1)oc Bk Vol Jig )0836801 OR 5711 140 result in the cancellation of or the increase of premiums for any insurance carried by the Association, or which would be in violation of any law or any rule or regulation promulgated by the Board. 4.04 Damage to the Common Properties. Each Member shall be liable to the Association for any damage to any portion of the Common Properties caused by the negligence or willful misconduct of the Member or his family and guests. 4.05 Rules of the Board. All Members shall abide by any rules and regulations adopted by the Board. The Board shall have the power to enforce compliance with said rules and regulations by all appropriate legal and equitable remedies, and a Member determined to have violated said rules and regulations shall be liable to the Association for all damages and costs, including reasonable attorneys' fees. 4.06 Use of Common Properties. The Board shall have the power and authority to prescribe rules and regulations which extend to and cover matters such as (but not limited to) the possession and consumption of alcoholic beverages, loud and obnoxious noises and behavior, and the supervision by attending adults of children. No person or entity (excluding the Declarant) shall use any portion of the Common Properties to: (a) solicit, promote or conduct business, religious, political or propaganda matters; (b) distribute handbills, newsletters, flyers,circulars or other printed materials, without the prior written consent of the Association (which consent may be withheld in its sole and absolute discretion). The Association may, on its own motion, permit and allow reasonable activities to occur on the Common Properties in accordance with rules and regulations deemed reasonable and appropriate by the Association. 4.07 User Fees and Charges. The Board may levy and collect special charges and fees for any and all extraordinary operation and maintenance of the Common Properties and services which the Board determines to be necessary for the advancement, benefit and welfare of the Owners or Residents. Examples (by way of illustration, and not limitation) of these special charges and fees would include: extraordinary utility consumption; additional gate and/or security personnel for parties or special events; management overtime services; and additional insurance conditions or requirements. In establishing special user fees, the Board may formulate reasonable classifications of users. Such fees should be uniform within each class but need not be uniform from class to class. If an Owner shall fail to pay a charge or fee when due and payable, said unpaid charge or fee shall be delinquent and upon written notice to said Owner shall become a personal debt of said Owner. Failure of any Owner to pay said fee and charge when due and payable, in addition, shall be a breach of these Covenants. 4.08 Encroachments. If: (a) construction, reconstruction or repair activities which have been approved by the ARC; or (b) shifting, settlement or other movements of any portion of ARC approved improvements, results either in the Common Properties encroaching on a Lot or Dwelling Unit or in a Lot or Dwelling Unit encroaching on the Common Properties or on another Lot or Dwelling Unit, and unless otherwise directed by the ARC, a valid easement shall then and there exist to permit the encroachment and reasonable and necessary maintenance activities related thereto. 4.09 Parking Areas. The parking areas within Spring Creek Townhomes Subdivision are "private" and constitute a portion of the Common Properties which are subject to the jurisdiction and administration by the Association. In addition to the other provisions appearing within this Article, the Board of Directors of the Association is specifically authorized to recommend, adopt, implement and enforce rules, regulations, mechanisms and procedures governing use of the parking areas, including without limitation: DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 8 30836201 OR 57111 141 (a) identification of vehicles entitled to park in such areas; (b) a "fines" system through which the Association can levy and collect fines from its Members for violations of the applicable rules and regulations; and (c) disclaimers of liability for any and all matters or occurrences on or related to the Common Properties. ARTICLE 5 COVENANTS FOR ASSESSMENTS 5.01 Creation of the Lien and Personal Obligation of Assessments. Declarant, for each Lot owned by it within the Subdivision, hereby covenants and agrees, and each subsequent Owner of any Lot, by acceptance of a Deed therefor, whether or not it shall be so expressed in any such Deed or other conveyance, shall be deemed to covenant and agree (and such covenant and agreement shall be deemed to constitute a portion of the purchase money and consideration for acquisition of the Lot so as to have affected the purchase price)to pay to the Association (or to an independent entity or agency which may be designated by the Association to receive such monies): (a) regular Annual Assessments; (b) special group assessments for capital improvements or unusual or emergency matters, such assessments to be fixed, established and collected from time to time as hereinafter provided; (c) special individual assessments levied against individual Owners to reimburse the Association for extra or unusual costs incurred for items such as (but no limited to): maintenance and repairs to portions of the Property caused by the willful or negligent acts of the individual Owner, Member or Resident; the remedy, cure or minimizing of problems cause by, or as a result of, violations of these Covenants by an Owner, Member or Resident; and (d) individual assessments and fines levied against an individual Owner, Member or Resident for violations of rules and regulations pertaining to the Association and/or the Common Properties. The regular, special group, special individual and individual assessments, together with such late charges, interest and costs of collection thereof as are 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 and shall also be the continuing personal obligation of the then-existing Owner, Member and Resident of such Lot at the time when the assessment fell due. Each Owner of each Lot shall be directly liable and responsible to the Association for the acts, conduct and omission of each and every Member and Resident associated with the Dwelling Unit (s) on such Owner's Lot. 5.02 Purposes of Assessments. The assessments levied by the Association shall be used for the purposes of promoting the comfort, health, recreation, safety, convenience, welfare and quality of life of the Residents of the Property and in supplementing some services and facilities normally provided by or associated with governmental or quasi-governmental entities, and otherwise for the improvement and maintenance of parking lots, pools, parks, floodway easement areas, walkways, common green, ponds, lakes, recreational areas and other properties, services and facilities devoted and related to the use and enjoyment of the Common Properties and operation of the Association, including, but not limited to or for: the payment of taxes on the Common Properties and insurance in connection with the Common Properties; the payment for utilities and the repair, replacement and additions of various items within the Common Properties; paying the cost of labor, equipment (including the expense of leasing any equipment) and materials required for, and management and supervision of, the Common Properties; carrying out the duties of the Board of Directors of the Association as set forth in Articles 4 and 6 herein; DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 9 c Bk Vol Pg MB36201 OR 5711 142 carrying out the other various matters set forth or envisioned herein or in any Amended Supplemental Declaration related hereto; and for any matter or thing designated by the City of College Station in connection with any zoning, subdivision, platting, building, development or occupancy requirements. The items and areas described above are not intended to be exhaustive but merely illustrative. 5.03 Basis and Amount of Annual Assessments. Until and unless otherwise determined by the Board of Directors of the Association, the initial regular, annual base assessment shall be Eighty-five Dollars ($85.00) per Lot per month for the maintenance of the Common Properties and Lot lawn maintenance as described in Section 10.09 and any common sprinkler operating costs and maintenance (the "Annual Assessment"). The Association's Board of Directors may fix and modify from time to time, the actual regular base assessment. Notwithstanding any provision herein to the contrary, any and all Lots owned by the Declarant during the Development Period shall be exempt from the payment of any and all assessments of any kind or character. Regular base assessments on a Lot shall begin upon sale of a fully completed Dwelling Unit and lot to a third party other than the builder of the Dwelling Unit, unless such builder uses or leases the Dwelling Unit for single family residence purposes. 5.04 Special Group Assessments. In addition to the regular Annual Assessment authorized by Section 5.03 hereof, the Association may levy in any Fiscal Year a special assessment, applicable to that year only, for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, unexpected repair or replacement of a capital improvement upon the Common Properties, including any necessary fixtures and personal property related thereto or for any unusual or emergency purpose (s) (including without limitation those matters arising out of litigation and/or judgments); provided that any such assessment shall have the affirmative approval of at least two-thirds of the individuals comprising the Board. 5.05 Rate of Assessments. Both regular and special group assessments must be fixed at a uniform rate for all residential Lots owned by Class A Members, unless otherwise approved by at least two-thirds of the individuals comprising the Board. 5.06 Date of Commencement of Assessments; Due Dates. The Annual Assessment shall be due and payable in twelve equal monthly installments in advance on the first day of each month and shall, if not automatically paid within ten (10) consecutive calendar days thereafter, automatically become delinquent. The Board shall use reasonable efforts to provide each Owner with an invoice statement of the appropriate amount due, but any failure to provide such a notice shall not relieve any Owner of the obligation established by the preceding sentence. The Board may further prescribe: (a) procedures for collecting advance regular Annual Assessments from new Owners, Members or Residents out of"closing transactions"; and (b)different procedures for collecting assessments from Owners who have had a recent history of being untimely in the payment(s) of assessments. 5.07 Duties of the Board of Directors with Respect to Assessments. (a) In the event of a revision to the amount or rate of the Annual Assessment, or establishment of a special group assessment, the Board shall fix the amount of the assessment against each Lot, and the applicable due date(s)for each assessment, at least sixty(60) days in advance of such date or period and shall, at that time, prepare a roster of the Lots and assessments applicable thereto which shall be kept in the office of the Association; (b) Written notice of the applicable assessment shall be actually or constructively furnished to every Owner subject thereto in accordance with the procedures then determined by the Board as being reasonable and economical; and DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 10 Doc 08362 1 OR 5711 143 (c) The Board shall, upon reasonable demand, furnish to any Owner originally liable for said assessment, a certificate in writing signed by an officer of the Association, setting forth whether said assessment has been paid. Such certificate shall be conclusive evidence of payment of any assessment therein stated to have been paid. A reasonable charge may be made by the Board for the issuance of such certificate. 5.08 Effect of Non-Payment of Assessment; the Personal Obligation of the Owner; the Payment and Performance Lien; and Remedies of Association. (a) Effective as of, and from and after the filing and recordation of this Declaration, there shall exist a self-executing and continuing contract Payment and Performance Lien and equitable charge on each Lot to secure the full and timely payment of each and all assessments and all other charges and monetary amounts and performance obligations due hereunder. Such lien shall be at all times superior to any claim of homestead by or in any Owner. If any assessment, charge or fine or any part thereof is not paid on the date(s)when due, then the unpaid amount of such assessment, charge or fine shall (after the passage of any stated grace period) be considered delinquent and shall, together with any late charge and interest thereon at the highest lawful rate of interest per annum and costs of collection thereof, become a continuing debt secured by the self-executing Payment and Performance Lien on the Lot of the non- paying Owner/Member/Resident which shall bind such Lot in the hands of the Owner and Owner's heirs, executors, administrators, devisees, personal representatives, successors and assigns. The Association shall have the right to reject partial payments of an unpaid assessment or other monetary obligation and demand the full payment thereof. The personal obligation of the then existing Owner to pay such assessment, however, shall remain the Owner's personal obligation and shall not pass to Owner's successors in title unless expressly assumed by them. However, the lien for unpaid assessments shall be unaffected by any sale or assignment of a Lot and shall continue in full force and effect. No Owner may waive or otherwise escape liability for any assessment provided herein by non-use of the Common Properties or abandonment of the Lot. No diminution or abatement of assessments shall be claimed or allowed by reason of any alleged failure of the Association to take some action or to perform some function required to be taken or performed by the Association, or for inconvenience or discomfort arising from the making of improvements or repairs which are the responsibility of the Association, or from any action taken by the Association to comply with any law, ordinance, or with any order or directive of any municipal or other governmental authority, the obligation to pay such assessments being a separate and independent covenant on the part of each Owner; (b) The Association may also give written notification to the holder(s) of any mortgage on the Lot of the non-paying Owner of such Owner's default in paying any assessment, charge or fine, particularly where the Association has theretofore been furnished in writing with the correct name and address of the holder(s) of such mortgage, a reasonable supply of self-addressed postage prepaid envelopes, and a written request to receive such notification; (c) If any assessment, charge or fine or part thereof is not paid when due, the Association shall have the right and option to impose a late charge (but only to the extent permitted by applicable law) to cover the additional administrative costs involved in handling the account. The unpaid amount of any such delinquent assessment, charge, or fine shall bear interest from and after the date when due at the highest lawful rate of interest per annum until fully paid. The Association may, at its election, retain the services of an attorney to review, monitor and/or collect unpaid assessments, charges, fines and delinquent accounts, and there shall also be added to the amount of any unpaid assessment, charge, fine or any delinquent account any and all attorneys' fees and other costs of collection incurred by the Association; (d) The Association may, at its discretion be subject to all applicable debt collection statutes: (i) prepare and file a lien affidavit in the public records of Brazos County, Texas which specifically identifies the unpaid assessments, charges or fines; and (ii)publish and post, within one or more locations within the Property, a list of those individuals or entities who are delinquent and, if applicable, their DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 11 Doc 10836201 OR 57111 1449 suspended use and enjoyment of the Common Properties until and unless the delinquency has been cured to the reasonable satisfaction of the Association. Each Owner consents to these procedures and authorizes the Board to undertake such measures for the general benefit of the Association; (e) All agreements between any Owner and the Association and/or Declarant, whether now existing or hereafter arising and whether written or oral and whether implied or otherwise, are hereby expressly limited so that in no contingency or event whatsoever shall the amount paid, or agreed to be paid, to the Association and/or Declarant or for the payment of performance of any covenant or obligation contained herein or in any other document exceed the maximum amount permissible under applicable law. If, from any circumstance whatsoever fulfillment of any provision hereof or of such other document at the time performance of such provision shall be due, shall involve transcending the limit of validity prescribed by law,then, ipso facto, the obligation to be fulfilled shall be reduced to the limit of such validity, and if from any such circumstances the Association and/or Declarant should ever receive an amount deemed interest by applicable law which shall exceed the highest lawful rate, such amount which would be excessive interest shall be applied to the reduction of the actual base assessment amount or principal amount owing hereunder and other indebtedness of the Owner to the Association and/or Declarant and not to the payment of interest of if such excessive interest exceeds the unpaid balance of the actual Annual Assessment hereof and such other indebtedness, the excess shall be refunded to Owner. All sums paid or agreed to be paid by any Owner for the use, forebearance or detention of any indebtedness to the Association and/or Declarant shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread so that the interest charged, collected or received on account of such indebtedness is never more than the maximum amount permitted by applicable law. The terms and provisions of this paragraph shall control and supersede every other provision of all agreements between any Owner and the Association and/or Declarant. 5.09 Power of Sale. (a) The lien described within the preceding Section is and shall be a contract Payment and Performance Lien. Each Owner, for the purpose of better securing each and all monetary obligations described within these Covenants, and in consideration of the benefits received and to be received by virtue of the ownership of real estate within Spring Creek Townhomes Subdivision, has granted, sold and conveyed and by these covenants does grant, sell and convey unto the Trustee, such Owner's Lot. To have and to hold such Lot, together with the rights, privileges and appurtenances thereto belonging unto the said Trustee, and to its substitutes or successors, forever. And each Owner does hereby bind himself and/or herself, their heirs, executors, administrators and assigns to warrant and forever defend the Lot unto the said Trustee, its substitutes or successors and assigns, forever, against the claim, or claims of all persons claiming or to claim the same or any part thereof. (b) This conveyance is made in trust to secure payment of each and all assessments and other obligations prescribed by these Covenants to and for the benefit of the Association as the Beneficiary. In the event of default in the payment of any obligation hereby secured, in accordance with the terms thereof, then and in such event, Beneficiary may elect to declare the entire indebtedness hereby secured with all interest accrued thereon and all other sums hereby secured due and payable (subject, however, to the notice and cure provisions set forth in Section 51.002 of the Texas Property Code), and in the event of default in the payment of said indebtedness when due or declared due, it shall thereupon, or at any time thereafter, be the duty of the Trustee, or its successor or substitute as hereinafter provided, at the request of Beneficiary(which request is hereby conclusively presumed), to enforce this trust; and after advertising the time, place and terms of the sale of the Lot then subject to the lien hereof, and mailing and filing notices as required by Section 51.002, Texas Property Code, as then amended and otherwise complying with that statute, then Trustee shall sell the Lot, then subject to the lien hereof, at public auction in accordance with such notices on the first Tuesday in any month between the hours of ten o'clock A.M. and four o'clock P.M., to the highest bidder for cash, selling all of the Lot as an entirety or in such parcels as the Trustee acting may elect, and make due conveyance to the Purchaser or Purchasers, with general warranty binding upon the Owner, his heirs and assigns; and out of the money arising from such sale, the DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 12 Doc OR 57111 1458 Trustee acting shall pay first, all the expenses of advertising the sale and making the conveyance, including a reasonable commission to itself, which commission shall be due and owing in addition to the attorney's fees provided for, and then to Beneficiary the full amount of principal, interest, attorney's fees and other charges due and unpaid on said indebtedness secured hereby, rendering the balance of the sales price, if any, to the Owner, his heirs or assigns and/or to any other lienholders (if so required by applicable law); and the recitals in the conveyance to the Purchaser or Purchasers shall be full and conclusive evidence of the truth of the matters therein stated, and all prerequisites to said sale shall be presumed to have been performed, and such sale and conveyance shall be conclusive against the Owner, his heirs and assigns. (c) It is agreed that in the event a foreclosure hereunder should be commenced by the Trustee, or its substitute or successor, Beneficiary may at any time before the sale of said property direct the said Trustee to abandon the sale, and may then institute suit for the collection of said indebtedness, and for the foreclosure of this contract Payment and Performance Lien; it is further agreed that if Beneficiary should institute a suit for the collection thereof, and for a foreclosure of this contract lien, that it may at any time before the entry of a final judgment in said suit dismiss the same, and require the Trustee, its substitute or successor to sell the Lot in accordance with the provisions of this section. Beneficiary, if it is the highest bidder, shall have the right to purchase at any sale of the Lot, and to have the amount for which such Lot is sold credited on the debt then owing. Beneficiary in any event is hereby authorized to appoint a substitute trustee, or a successor trustee, to act instead of the Trustee named herein without other formality than the designation in writing of a substitute or successor trustee; and the authority hereby conferred shall extend to the appointment of other successor and substitute trustees successively until the indebtedness hereby secured has been paid in full, or until said Lot is sold hereunder, and each substitute and successor trustee shall succeed to all of the rights and powers of the original trustee named herein. In the event any sale is made of the Lot, or any portion thereof, under the terms of this Section, the Owner, his heirs and assigns, shall forthwith upon the making of such sale surrender and deliver possession of the property so sold to the Purchaser at such sale, and in the event of his failure to do so he shall thereupon from and after the making of such sale be and continue as tenants at sufferance of such Purchaser, and in the event of his failure to surrender possession of said property upon demand, the Purchaser, his 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 property, or any part thereof, is situated. The foreclosure of the continuing contract lien on any one or more occasions shall not remove, replace, impair or extinguish the same continuing lien from securing all obligations arising from and after the date of foreclosure. (d) Notwithstanding anything to the contrary contained in this Article 5, the Association's foreclosure of the Payment and Performance Lien shall be subject to the requirements of applicable law, including without limitation, Chapter 209, Texas Property Code, as amended or replaced from time to time. The terms and provisions of this paragraph shall control and supercede any contrary provisions in this Declaration. 5.10 Subordination of the Lien to Mortgages. The lien securing the payment of the assessments and other obligations provided for herein shall be superior to any and all other charges, liens or encumbrances which may hereafter in any manner arise or be imposed upon any Lot whether arising from or imposed by judgment or decree or by any agreement, contract, mortgage or other instrument, except for: (a) bona-fide first mortgage or deed of trust liens for purchase money and/or home improvement purposes placed upon a Lot, in which event the Association's lien shall automatically become subordinate and inferior to such first lien; (b) liens for taxes or other public charges as are by applicable law made superior to the Association's lien; and DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 13 T)oc Bk Vol Pg +B36201 OR 5711 146 (c) such other liens about which the Board may, in the exercise of its reasonable discretion, elect to voluntarily subordinate the Association's lien; provided however, such subordination shall apply only to: (i)the assessments which have been due and payable prior to the foreclosure sale (whether public or private) of such Lot pursuant to the terms and conditions of any such first mortgage or deed of trust or tax lien; (ii) the permitted lien on the Lot alone and not on or to any easement appurtenant for use and enjoyment of the Common Properties. Such sale shall not relieve such Lot from liability for the amount of any assessment thereafter becoming due nor from the lien of any such subsequent assessment. Such subordination shall not apply where the first mortgage or deed of trust or tax lien is used as a device, scheme or artifice to evade the obligation to pay assessments and/or to hinder the Association in performing its functions hereunder. 5.11 Exempt Property. The following property otherwise subject to this Declaration shall be exempted from any assessments, charges and liens created herein: (a) All property dedicated to and accepted by a local public or governmental authority; (b) Common Properties; and (c) Exempt Property. ARTICLE 6 GENERAL POWERS AND DUTIES OF THE BOARD OF DIRECTORS OF THE ASSOCIATION 6.01 Powers and Duties. The affairs of the Association shall be conducted by its Board. The Board, for the benefit of the Association, the Property and the Owners and the Members and Residents, may provide and may pay for, out of the assessment fund(s) provided for in Article 5 above, one or more of the following: (a) Care, preservation and maintenance of the Common Properties and the furnishing and upkeep of any desired personal property for use in or on the Common Properties; (b) Maintenance, care and preservation of the lawn and any common sprinkler systems on the Lots; (c) Recreational and social programs and activities for the general benefit of the Residents and programs which are designed only for separately identifiable sub-groups of Residents, such as (but not limited to) infants, adolescents, teenagers, students, mothers and senior citizens; (d) Supplementing (to the extent, if any, deemed necessary, appropriate and affordable by the Board) the police, fire, ambulance, garbage and trash collection and similar services within the Property traditionally provided by local governmental agencies; (e) Taxes, insurance and utilities (including, without limitation, electricity, gas, water, sewer and telephone charges)which pertain to the Common Properties; (f) The services of any person or firm (including the Declarant and any affiliates of the Declarant) to manage the Association or any separate portion thereof, to the extent deemed advisable by the Board, and the services of such other personnel as the Board shall determine to be necessary or proper for the operation of the Association, whether such personnel are employed directly by the Board or by the manager of the Association. The Board is specifically authorized to hire and employ one or more managers, secretarial, clerical, staff and support employees. The Board is specifically authorized to engage personnel and equipment (such as computers, software and electronic communication and DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 14 Doc Bk Vol Pg `0836201 OR 5711 147 transmission devices) for the administration of the Association and the collection of assessments described in Article 5; (g) Any other materials, supplies, furniture, labor, services, maintenance, repairs, structural alterations, taxes or assessments which the Board is required to obtain or pay for pursuant to the terms of this Declaration or which in its opinion shall be necessary or proper for the operation or protection of the Association or for the enforcement of this Declaration. The Board shall have the following additional rights, powers and duties: (h) To execute all declarations of ownership for tax assessment purposes with regard to any of the Common Properties owned by the Association; (i) To enter into agreements or contracts with insurance companies, Taxing Authorities, the holders of first mortgage liens on the individual Lots and utility companies with respect to: (i) any taxes on the Common Properties; (ii) monthly escrow and impound payments by a mortgagee regarding the assessment, collection and disbursement process envisioned by Article 5; (iii) utility installation, consumption and service matters; and (iv)the escrow or impounding of monies sufficient to timely pay the Annual Assessment applicable to any Lot; (j) To borrow funds (including, without limitation, the borrowing of funds from the Declarant and/or its affiliates) to pay costs of operation, secured by such assets of the Association as deemed appropriate by the lender and the Association (k) To enter into contracts, maintain one or more bank accounts and, generally, to have all the powers necessary or incidental to the operation and management of the Association; {I} To protect or defend the Common Properties from loss or damage by suit or otherwise, to sue or defend in any court on behalf of the Association and to provide adequate reserves for repairs and replacements; (m) To make reasonable rules and regulations for the operation of the Common Properties and to amend them from time to time; (n) To prepare an annual operating budget and to make available for review by each Owner at the Association offices within ninety(90)days after the end of each Fiscal Year an annual report; (o) Pursuant to Article 7 herein, to adjust the amount, collect and use any insurance proceeds to repair damage or replace lost property; and if proceeds are insufficient to repair damage or replace lost property, to assess the Owners in proportionate amounts to cover the deficiency; and (p) To enforce the provisions of this Declaration and any rules made hereunder and, subject to the requirements of applicable law, including without limitation, Chapter 209, Texas Property Code as amended and replaced from time to time, to enjoin and seek damages from any Owner, Resident or Member for violation of such provisions or rules. The Board is specifically authorized and empowered to establish (and to revise and amend from time to time) a monetary `Tines" system which may include component steps such as warning citations, ticketing, due process hearings and appeals and a flat rate or discretionary range or geometric progression of fine amounts, which, when pronounced, shall constitute a permitted individual Lot Owner assessment secured by the continuing Payment and Performance Lien herein established. (q) To enter at any time in an emergency, or in a non-emergency, after ten (10) days written notice, without being liable to any Owner, upon any Lot and into any Improvement thereon for the purpose of enforcing this Declaration or for the purpose of erecting, maintaining or repairing any Improvement to DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 15 D08362t1 OR 57111 14Ag conform to this Declaration, and the expense incurred by the Association in connection with the entry upon any Lot and the work conducted thereon shall be a personal obligation of the Owner of the Lot entered upon, shall be a lien upon the Lot entered on and Improvements thereon, and shall be enforced in the same manner and to the same extent as provided in Article 5 hereof for regular and special assessments. The Association shall have the power and authority from time to time, in its own name and on its own behalf, or in the name of and on behalf of any Owner who consents thereto, to commence and maintain actions and suits to enforce, by mandatory injunction or otherwise, or to restrain and enjoin, any breach or threatened breach of this Declaration. The Association is also authorized to settle claims, enforce liens and take all such action as it may deem necessary or expedient to enforce this Declaration; provided, however, that the Board shall never be authorized to expend any Association funds for the purpose of bringing suit against Declarant, its successors or assigns. (r) (i)To borrow monies from the Declarant; (ii) to lease equipment from the Declarant; and (iii)to contract with the Declarant concerning the provision of any personnel, labor, supplies, materials and services, provided such contract terms and conditions are: generally comparable (in terms of price, quality and timeliness) with those that might be otherwise obtained from unrelated third parties; and, as to professional management contracts, terminable by the Association at any time for an reason whatsoever and without penalty upon furnishing at least ninety (90) days advance notice thereof to Declarant. The Board shall not be required to solicit bids from unrelated third parties before entering into any contract with the Declarant and the reasonable judgment and resolution of the Board to enter,into any such contract with the Declarant (absent fraud, gross negligence or willful misconduct) shall be final and conclusive and binding upon the Association and all of its Members. 6.02 Board Powers. The Board shall have the right and obligation to perform the functions of the Board on behalf of the Association. In the event or if for any reason the Board is not deemed authorized to act for and on behalf of the Association and the Members, then the Declarant may exercise its power and authority under Article 13, Section 13.01, to act for and on behalf of the Association and the Members, and the Association shall reimburse the Declarant for any and all reasonable expenses incurred in so acting. 6.03 Maintenance Contracts. The Board, on behalf of the Association, shall have full power and authority to contract with any Owner, Member or Resident (including, without limitation, the Declarant) for performance, on behalf of the Association, of services which the Association is otherwise required to perform pursuant to the terms hereof, such contracts to be upon such terms and conditions and for such consideration as the Board may deem proper, advisable and in the best interests of the Association. 6.04 Liability Limitations. Neither any Resident nor the directors and officers and managers of the Association shall be personally liable for debts contracted for or otherwise incurred by the Association or for any torts committed by or on behalf of the Association or for a tort of another Resident,whether such other Resident was acting on behalf of the Association or otherwise. Neither the Declarant, the Association, its directors, officers, managers, agents or employees shall be liable for any actual, incidental or consequential damages for failure to inspect any premises, improvements or portion thereof or for failure to repair or maintain the same. The Declarant, the Association or any other person, firm or corporation liable to make such repairs or maintenance shall not be liable for any personal injury or other actual, incidental or consequential damages occasioned by any act or omission in the repair or maintenance of any premises, improvements or portion thereof. 6.05 Reserve Funds. The Board may establish reserve funds which may be maintained and/or accounted for separately from other funds maintained for annual operating expenses and may establish separate, irrevocable trust accounts or any other recognized bookkeeping or tax procedures in order to better demonstrate that the amounts deposited therein are capital contributions and not net or taxable income to the Association. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 16 no Bk Vol Pg 0836201 OR 5711 149 ARTICLE 7 INSURANCE; REPAIR; RESTORATION 7.01 Right to Purchase Insurance. The Association shall have the right and option to purchase, carry and maintain in force insurance covering any or all portions of the Common Properties, any improvements thereon or appurtenant thereto, for the interest of the Association, its Board of Directors, officers, managers, agents and employees, and of all Members of the Association, in such amounts and with such endorsements and coverage as shall be deemed appropriate by the Board and/or as specifically required by the mortgagees or insurers. Such insurance may include, but need not be limited to: (a) Insurance against loss or damage by fire and hazards covered by a standard extended coverage endorsement in an amount which shall be equal to the maximum insurable replacement value, excluding foundation and excavation costs; (b) Comprehensive public liability and property damage insurance on a broad from basis, including coverage of personal liability(if any) of the Board, Owners, Residents and Members with respect to the Common Properties; (c) Fidelity bonds for all officers and employees of the Association having control over the receipt or disbursement of funds; and (d) Liability insurance regarding the errors and omissions of directors, officers, managers, employees and representatives of the Association. 7.02 Insurance and Condemnation Proceeds. The Association shall be the exclusive representative of the Members in any proceedings, negotiations, settlements or agreements concerning insurance or condemnation. The Association and the Members may use the net insurance or condemnation proceeds to repair and replace any damage or destruction of property, real or personal, covered by such insurance or condemnation. Any balance from the proceeds of insurance or condemnation paid to the Association, remaining after satisfactory completion of repair and replacement or after the Board has elected to waive the repair, restoration or replacement, shall be retained by the Association as part of a general reserve fund for repair and replacement of the Common Properties. 7.03 Insufficient Proceeds. If the insurance or condemnation proceeds are insufficient to repair or replace any loss or damage, the Association may levy a special group assessment as provided for in Article 5 of this Declaration to cover the deficiency. ARTICLE 8 ARCHITECTURAL REVIEW COMMITTEE 8.01 Membership of ARC. The ARC shall consist of not more than three (3) voting members ("Voting Members") and such additional nonvoting members serving in an advisory capacity ("Advisory Members") as the Voting Members deem appropriate. The following persons are hereby designated as the initial Voting Members of the ARC: Wallace Phillips, Dawn Phillips, and Vicki Hillert. 8.02 Action by ARC. Items presented to the ARC shall be decided by a majority vote of the Voting Members. 8.03 Advisory Members. The Voting Members may from time to time designate Advisory Members. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 17 'oc Bk Vol Pg 0836201 OR 5711 150 8.04 Term. Each member of the ARC shall hold office until such time as he or she has resigned or has been removed or his or her successor has been appointed as provided herein. 8.05 Declarant's Rights of Appointment. During the Development Period, Declarant, its successors or assigns shall have the right to appoint and remove all Voting Members of the ARC, which persons need not be drawn from Association Members. Notwithstanding the preceding sentence, Declarant may delegate its right of appointment, or any portion thereof, to the Board by written instrument before such date. After the Development Period, the Board shall have the right to appoint all Voting Members. At such time as the Board gains the right to appoint and remove Voting Members of the ARC, or any portion of this right, a majority of the Voting Members so appointed shall be drawn from Members of the Association. Advisory Members shall, when reasonably possible, be drawn from Members of the Association. 8.06 Adoption of Rules. The ARC may adopt such procedural and substantive rules, not in conflict with this Declaration, as it deems necessary or proper for the performance of its duties, including but not limited to design guidelines, building code, a fire code, a housing code, and other similar codes. 8.07 Review of Proposed Construction. Whenever in this Declaration the approval of the ARC is required, the ARC shall have the right to consider all of the Plans and Specifications for the Improvement or proposal in question and all other facts which, in its sole discretion, are relevant. Except as otherwise specifically provided herein, prior to the commencement of any construction of any improvement on a Lot or any portion thereof, the Plans and Specifications therefor shall be submitted to the ARC and construction thereof may not commence unless and until the ARC has approved such Plans and Specifications. Until receipt by,the ARC of any information or document deemed necessary by the ARC, it may postpone review of any Plans and Specifications submitted for approval. Upon receipt of all necessary information, the ARC shall consider and act upon any and all Plans and Specifications submitted for its approval pursuant to this Declaration, and perform such other related duties assigned or authorized by this Declaration, including at its option inspection of construction in progress to assure its conformance with previously approved Plans and Specifications. The ARC shall have the express authority to perform fact finding functions hereunder and shall have the power to construe and interpret any covenant herein that may be vague, indefinite, uncertain or capable of more than one construction. The ARC may, in its review of Plans and Specifications and such other information as it deems proper, consider whether any proposed Improvement upon a Lot would unreasonably obstruct the view from other portions of the Property. The ARC may, but shall not be required to, disapprove any Improvement upon any Lot that would unreasonably obstruct the view from any other portion of the Property. No Improvement shall be allowed on any Lot which is of such size or architectural design or involves the use of such landscaping, color schemes, exterior finishes and materials and similar features as to be incompatible with residential development within the Property and the surrounding area. The ARC shall have the authority to disapprove any proposed Improvement based upon the restrictions set forth in the preceding sentence and the decision of the ARC shall be final and binding so long as it is made in good faith. The ARC shall not be responsible for reviewing any proposed Improvement, nor shall its approval of any Plans and Specifications be deemed an endorsement, from the standpoint of structural safety, engineering soundness, or conformance with building or other codes not of its authorship. 8.08 Actions of the ARC. The ARC may, by resolution unanimously adopted in writing, designate one or two of its members or an agent acting on its behalf to take any action or perform any duties for and on behalf of the ARC in the absence of such designation, the vote of a majority of all members of the ARC taken without a meeting, shall constitute an act of the ARC. 8.09 No Waiver of Future Approvals. The approval or consent of the ARC of any Plans and Specifications for any work done or proposed, or in connection with any other matter requiring the approval or consent of the ARC, shall not be deemed to constitute a waiver of any right to withhold approval or consent as to any other Plans and Specifications, or other matter whatever, subsequently or additionally submitted for approval or consent by the same or a different person. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 18 Doc OR 57111 1519 8.10 Work in Progress. The ARC may at its option inspect all work in progress to insure compliance with approved Plans and Specifications. 8.11 Nonliability of ARC Members. Neither the ARC nor any member thereof shall be liable to the Association or to any Owner or to any other person for any loss, damage or injury arising out of their being in any way connected with the performance of the ARC's duties under this Declaration unless due to the willful misconduct or bad faith of the ARC or its members, as the case may be. Neither the ARC nor any member thereof shall be liable to any Owner due to the construction of any Improvements within the Property,or the creation thereby of any obstruction of the view from such Owner's Lot or Lots. 8.12 Address. Plans and Specifications shall be submitted to the ARC in care of Vicki Hillert, 4490 Castlegate Drive, College Station, Texas 77845, or in care of such other person at such other address as may be designated by Declarant or the Board, as the case may be, from time to time. 8.13 Failure to Act. In the event the ARC or its designated representative fails to approve or disapprove any Plans and Specifications within ten (10) days after the same have been submitted to it, complete with all other information requested by the ARC in connection with such submission, approval shall be assumed. 8.14 Variances. Notwithstanding any other provision of this Declaration, in order to prevent undue hardship upon the Owner or Owners of any individual Lot or Lots upon the Property, variance from any restrictions set out in this Declaration may be granted by a unanimous decision of the ARC in written instrument to be duly acknowledged, if and when such a variance shall ever be granted. 8.15 Governmental Agency Approval. Nothing in this Declaration shall be construed to relieve any Owner from securing such approvals, certificates and/or permits as may be required by law in connection with the construction of any Improvements on any Lot. 8.16 Relationship with Association. The ARC has been created pursuant to this Declaration to perform certain functions specified herein relating to the review and approval of Plans and Specifications for Improvements built on the Property. The ARC does not exercise the authority of the Board, and shall not do so unless and until (i) the Board shall have duly appointed a majority of Board members to the ARC, and (ii) the Board shall by unanimous resolution, duly recorded in the records of the Association, make the ARC a committee of the Board in accordance with the Texas Non-Profit Corporation Act. ARTICLE 9 GENERAL RESTRICTIONS All of the Property shall be owned, held, encumbered, leased, used, occupied and enjoyed subject to the following limitations and restrictions: 9.01 Construction of Improvements. No Improvements or Structures shall hereafter be constructed upon any of the Property without the prior approval of the ARC. 9.02 Antennae and Signals. No antenna or other device for the transmission or reception of television signals, radio signals, or any other form of electromagnetic radiation shall be erected, used, or maintained on any Lot, whether attached to a building or structure or otherwise, without the prior written approval of the ARC. No radio signals, television signals or any other form of electromagnetic radiation shall originate from any Lot so as to unreasonably interfere with the reception of television or radio signals on any other Lot. Notwithstanding the provisions of this paragraph to the contrary, it shall be permissible for the Owners of any Lot to have one small satellite dish no more than 18 inches in diameter for receipt of television signals provided it is not visible from any street. Notwithstanding the foregoing, the Declarant by promulgating this Section is not attempting to violate the Telecommunications Act of 1996 (the "Act"), as DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 19 noc Bk Vo 1 Pg 0836201 OR 5711 152 may be amended from time to time. This section shall be interpreted to be as restrictive as possible while not violating the Act. 9.03 Insurance Rates. Nothing shall be done or kept on a Lot which would increase the rate of insurance or cause the cancellation of insurance on any Lot or any of the Improvements located thereon without the prior written approval of the Board. 9.04 Subdividing. No Lot shall be further divided or subdivided, nor may any easement or other interest therein less than the whole be conveyed by the Owner thereof without the prior written approval of the ARC; provided, however, that when Declarant is the Owner thereof, Declarant may further divide and subdivide any Lot and convey an easement or other interest less than the whole, all without the approval of the ARC. 9.05 Signs. No sign of any kind shall be displayed to the public view on a Lot without the prior written approval of the ARC, except for signs which are part of Declarant's overall marketing plan for the Property. The ARC may permit signs of any type for security, political speech or advertising a portion of the Property for sale or lease or it may set standards for the same. 9.06 Rubbish and Debris. No rubbish or debris of any kind shall be placed or permitted to accumulate upon a Lot and no odors shall be permitted to arise therefrom so as to render the Property or any portion thereof unsanitary, unsightly, offensive or detrimental to any other property or to its occupants. Refuse, garbage and trash shall be kept at all times in covered containers and such containers shall be kept within enclosed structures or appropriately screened from view. If rubbish or debris accumulates upon any Lot in violation of this provision in the judgment of the Association, the Association may remove the rubbish or debris, and charge a special assessment to the Owner of the Lot. 9.07 Noise. No noise or other nuisance shall be permitted to exist or operate upon any Lot so as to be offensive or detrimental to any other portion of the Property or to its occupants. 9.08 Lighting. No exterior lighting of any sort shall be installed or maintained on a Lot where the light source is offensive or a nuisance to neighboring property, except for reasonable security or landscape lighting that has the approval of the Architectural Review Committee. 9.09 Nuisance and Lateral Support. No noxious or offensive activity or work shall be conducted upon any Lot so as to impair the structural soundness or integrity of any Improvement of any other Lot, or which may be or may become an annoyance or nuisance to the neighborhood. 9.10 Repair of Improvements. All Improvements upon the Property, including any Lot, shall at all times be kept in good condition and repair and adequately painted or otherwise maintained by the Owner or Owners thereof. 9.11 Alteration or Removal of Improvements. Exclusive of normal maintenance, any construction, repair, alteration or removal in connection with any Improvement which in any way alters the exterior appearance of said Improvement shall be performed only with the prior written approval of the ARC. Notwithstanding anything to the contrary, the approval of the ARC shall not be required for repainting exterior surfaces of the Improvements provided the color scheme, arrangement of colors and color of paint are not altered. Any change to the exterior colors of any Improvements must be approved in writing by the ARC. 9.12 Roofing Materials. The surface of all roofs of principal and secondary structures shall be quality composition shingle. The ARC shall have authority to approve other roof treatments and materials when in its determination such treatments and materials in the form utilized will not be a detriment to the quality of the neighborhood. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 20 hoc Bk Vol Pig J0836201 OR 5711 153 9,13 Solar Equipment. In the event an Owner desires to use solar panels or other solar equipment in connection with the use of any Lot, the location and installation design thereof shall be submitted to the ARC and approval of such design, including the aesthetics thereof, shall be required before construction may begin. 9.14 Driveway. The ARC shall have the right to impose limitations on driveway design, including materials, aprons, location and point of contact with dedicated roads, streets or private driveways within the Property. 9.15 Tanks. The ARC shall have the right to approve the location of any tank used or proposed in connection with a single family residential structure, including tanks for storage of fuel, water, oil or LPG and including hot tub tanks. All tanks shall be screened so as not to be visible from any other portion of the Property. 9.16 Underground Utility Lines. No utility lines, including, but not limited to, wires or other devices, for the communication or transmission of telephone or electric current or power, cable television or any other type of line or wire shall be erected, placed or maintained anywhere in or upon any portion of the Property unless the same shall be contained in conduit or cables installed and maintained underground or concealed in, under or on Improvements as approved in writing by the ARC, except what has already been constructed by the City of College Station, prior to the date hereof; provided, however, that no provision hereof shall be deemed to forbid the erection of temporary poweror telephone structures incident to the construction of Improvements which have been previously approved in writing by the ARC. The installation method, including but not limited to location, type of installation equipment, trenching method and other aspects of installation for both temporary and permanent utilities, shall be subject to review and approval by the ARC. 9.17 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 ARC. 9.18 Hazardous Activities. No activities shall be conducted on the Property and no Improvements shall be constructed on a Lot that are or might be unsafe or hazardous to any person or property. Without limiting the generality of the foregoing, no firearms or fireworks shall be discharged upon the Property, and no open fires shall be lighted or permitted except within safe and well designed interior fireplaces, or in contained barbecue units while attended and in use for cooking purposes. 9.19 Mining and Drilling. No oil drilling, oil development operations, oil refining, quarrying or mining operation of any kind shall be permitted upon or in any Lot, nor shall oil wells, tanks, tunnels, mineral excavations, or shafts be permitted upon any Lot. No derrick or other structure designed for use in boring for oil or natural gas shall be erected, maintained or permitted upon any Lot. 9.20 Machinery and Equipment. Without the approval of the Association or Declarant, no machinery or equipment of any kind shall be placed, operated or maintained upon or adjacent to any Lot or Common Area except such machinery or equipment as is usual and customary in Brazos County, Texas, in connection with the use, maintenance, or construction of a private residence or appurtenant structures or recreational facilities maintained by the Association; provided however, such machinery or equipment may be placed, operated or maintained by any governmental or quasi-governmental agency, or by a public utility, in the performance of its legitimate functions. 9.21 Temporary Structures. No tent, shack or other temporary building, improvement or structure shall be placed upon a Lot without the prior written approval of the ARC; provided however, that the Declarant may maintain or authorize temporary structures necessary for storage of tools and equipment, and for office space for architects, builders and foremen on the Property during any period of DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 21 )oc Bk Vol Pig 40836201 OR 5711 154 actual construction, which authorization, if given, shall include the nature, size, duration and location of such structure or structures. 9.22 Unsightly Articles; Vehicles; Number of Occupants. No trailer, recreational vehicle, tent, boat, or stripped down, wrecked, junked, or wholly inoperable vehicle shall be kept, parked, stored, or maintained on any portion of the driveway or front yard in front of the building line of the permanent structure, and same shall be kept, parked, stored or maintained on other portions of a Lot only within an enclosed structure or a screened area which prevents the view thereof from adjacent Lots or streets. No dismantling or assembling of motor vehicles, boats, trailers, recreational vehicles, or other machinery or equipment shall be permitted in any driveway or yard adjacent to a street. 9.23 Mobile Homes, Travel Trailers, Recreational Vehicles. No mobile homes shall be parked or placed on any Lot at any time. No travel trailers or recreational vehicles may be kept on any Lot unless enclosed in a garage. 9.24 Fences. (a) Except as otherwise provided herein or approved by the ARC in writing, fences may constructed only on that portion of the Lot behind the dwelling unit. All fences must be constructed of 1" by 6"cedar privacy fence materials, with the finished (smooth) side facing all streets or common areas, or adjoining properties and the rough side facing the interior of the Lot. (b) No fence, wall, or hedge shall be built or maintained forward of the front wall line of the Dwelling Unit, not including decorative walls or fences which are part of the architectural design of the main structure, and which are not to be built or maintained within the front building setback line of any Lot. An exception shall be made in the case of retaining walls not to exceed twenty-four inches (24") above the ground. Notwithstanding the foregoing, the ARC is empowered to waive the aforesaid height or setback limitation in connection with retaining walls and decorative walls if, in its sole discretion, such waiver is advisable in order to accommodate a unique, attractive or advanced building concept design or material and the resulting decorative wall and/or retaining wall will not detract from the general appearance of the neighborhood. 9.25 Animals - Household Pets. No animals, including pigs, hogs, swine, poultry, wild animals, horses, cattle, sheep, goats or any other type of animal not considered to be a domestic household pet within the ordinary meaning and interpretation of such words may be kept or maintained on the Property. No domestic household pet shall be allowed to make an unreasonable amount of noise, or to become a nuisance, and no domestic pets shall be allowed on the Property other than on the Lot of its Owner, except when confined to a leash. No animal may be stabled, maintained, kept, cared for or boarded for hire or remuneration on the Property and no kennels or breeding operation shall be allowed. No domestic household pet shall be allowed to run at large and all of such pets shall be kept within enclosed areas which must be clean, sanitary and reasonably free of refuse, insects and waste at all times. Such enclosed area shall be constructed in accordance with Plans and Specifications approved by the ARC, shall be of reasonable design and construction to adequately contain such animals in accordance with the provisions hereof, and shall be screened so as not to be visible from any other portion of the Property. No more than a total of four (4) adult dogs or cats, or a combination thereof, may be kept on a single lot. All domestic household pets shall be kept in strict accordance with all local laws and ordinances. 9.26 Landscape Design. All landscaping shall be designed so as to protect and promote, as far as practicable, the natural local landscape environment through use of native materials, natural drainage, indigenous plant selection and site design. All landscaping designs shall install live, growing sod covering the front, side and backyards, within thirty (30) days of occupancy of any residence constructed on a Lot, and shall maintain it in a healthy and growing condition. All front, side and back yards must be irrigated with automatic sprinkler systems, and have landscaping acceptable to the ARC. At all times after improvements are constructed on any Lot, the Owner of such Lot shall keep and maintain DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 22 Doe Bk Vol Pg 210836201 OR 5711 155 at least one (1) living tree with a diameter of at least two inches in the front yard of the Lot. Any new trees planted by the Owner of a Lot in the front yard shall be evergreen trees, such as live oak, pine, fir, and juniper. 9.27 Construction and Sales Activities. Notwithstanding any provision herein to the contrary, 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 Lot within the Property, or the sale of any Lot thereafter. Specifically, no such construction activities shall be deemed to constitute a nuisance or a violation of this Declaration by reason of noise, dust, presence of vehicles or construction machinery, posting of signs or similar activities, provided that such construction is pursued to completion with reasonable diligence and conforms to usual construction practices in the area. No building material of any kind shall be placed or stored upon any Lot until the Owner thereof is ready to commence Improvements, and then the material shall be placed within the property lines of the Lot upon which the Improvements are to be erected and shall not be placed on the street or on any other part of the Property. In the event of any dispute regarding such matters, a temporary waiver of the applicable provision may be granted by the ARC, provided that such waiver shall be only for the reasonable period of such construction. At such time as the Declarant ceases using any portion of the Property as a model home or sales office, the affected Property shall be altered and/or remodeled, if necessary or desirable, to comply with the covenants and restrictions contained herein. 9.28 Mailboxes. Mailboxes shall be of materials approved by the ARC, and shall be located on individual Lots. Notwithstanding the foregoing, the use of cluster mailboxes shall be required as necessary to comply with United States Postal Service requirements and Declarant reserves the right to require the use of cluster mailboxes by all or some of the Lots. 9.29 Sight Lines. No fence, wall, hedge, or shrub planting which obstructs sight lines from streets on the Property shall be placed or permitted to remain on any corner Lot in violation of the Codes of the City of College Station. 9.30 Garage Conversions. No garage, or any portion thereof, may be converted into enclosed living space. 9.31 Use of Common Properties. The Board may establish rules and regulations for use or prohibitions against use of the Common Properties from time to time. 9.32 Compliance with Provisions of this Declaration. Each Owner shall comply strictly with the provisions of this Declaration as the same may be amended from time to time. Failure to comply with any of the Covenants shall constitute a violation of this Declaration, and shall give rise to a cause of action to recover sums due for damages or injunctive relief or both, maintainable by the Board on behalf of the Association or by any aggrieved Owner. Declarant, for itself, its successors or assigns, reserves the right to enforce this Declaration, though it may have previously sold and conveyed all subdivided Lots controlled by this Declaration within the Property. The reservation of this right of enforcement shall not create an obligation of any kind to enforce the same. 9.33 No Warranty of Enforceability. While Declarant has no reason to believe that any of the restrictive covenants or other terms and provisions contained in this Article 9 or elsewhere in this Declaration are or may be invalid or unenforceable for any reason or to any extent, Declarant makes no warranty or representation as to the present or future validity or enforceability of any such restrictive covenants, terms or provisions. Any Owner acquiring a Lot in reliance upon one or more of such restrictive convents, terms or provisions shall assume all risks of the validity and enforceability thereof and, by acquiring the Lot, agrees to hold Declarant harmless therefrom. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 23 Cloc Bk V o P h0835201 OR 5711 I 156 9 ARTICLE 10 RESIDENTIAL RESTRICTIONS 10.01 Residential Use. All Lots shall be improved and used solely for residential purposes, inclusive of a garage, fencing and such other Improvements as are necessary or customarily incident to residential use. No Owner shall occupy or use his Lot or any Improvements constructed thereon, or permit the same or any part thereof to be occupied or used for any purpose, including religious, other than as a private residence for the Owner, his family, tenants and guests. All Lots within the Property shall be used and improved solely for single-family residential purposes, with no more than one (1) residential Dwelling Unit per Lot. Anything herein to the contrary notwithstanding, any Lot may be used or improved for greenbelt, open space and/or drainfield purposes. 10.02 Garages. No Lot shall have improvements erected which do not provide for a minimum of a two vehicle garage. 10.03 Outbuildings. There shall be not constructed any outbuildings on a Lot, including without limitation detached garages, storage buildings or greenhouses, without the prior written approval by the ARC. 10.04 Building Height. No Improvement greater than thirty-two (32).feet in height may be constructed on any Lot without the prior written approval of the ARC. For purposes of this paragraph, height shall be measured from the foundation slab of the proposed Improvement to the ridge line of the roof of the proposed Improvement. 10.05 Building Materials; Dwelling Size. All Dwelling Units shall be of recognized standard construction quality, and all exteriors (exclusive of doors, windows, and similar openings) shall be constructed of that certain percentage of masonry or other material specified in the ARC approved plans for a Dwelling Unit by NTS Architects or as specifically approved in writing by the ARC. Masonry includes ceramic tile, brick, rock and all other materials commonly referred to in the Brazos County, Texas area as masonry. Unless an exception is granted by the ARC, all Dwelling Units shall contain not less than two thousand one hundred (2,100) square feet of heated enclosed living space, exclusive of porches (open or covered), decks and garages. 10.06 Set-back Requirements. No building shall be located or erected nearer to any Lot line than the building line shown on the recorded plat of the Property. For purposes of these covenants, the eaves of buildings shall not be deemed to be part of a building or structure, but steps and porches shall be deemed to be a part of a building or structure. This Section shall not be construed to allow any building or structure to encroach upon another Lot. 10.07 Party Walls and Structures. (a) In most cases, a Dwelling Unit on a Lot will be constructed such that one or more of its side walls will be party walls shared with the Dwelling Unit on the adjacent Lot(s). In addition, there will be fences which serve and/or separate adjoining Lots. Such shared walls, fences and other such structures will constitute party structures. To the extent not inconsistent with this Section 10.07, the general rules of law regarding party walls and liability for property damaged due to negligence or willful acts or omissions shall apply to such party walls and structures. (b) Unless otherwise determined by the Board, the cost of reasonable repair and maintenance of a party structure shall be shared equally by the Owners making use of the party structure. All repairs shall be made (i) in a good, substantial and workmanlike manner, (ii) in strict conformity to the laws, ordinances and regulations of the State of Texas and the City of College Station, Texas, in effect at the time of repair, and (iii) in such a way as not to injure the Improvements or Dwelling Unit on the adjoining Lot. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 24 'roe Bk Vol Fig J0836201 OR 5711 157 (c) If a party wall or structure is destroyed or damaged by fire or other casualty, then to the extent that such damage is not covered by insurance and repaired out of the proceeds of insurance, any Owner who has used the structure may restore it. If other Owners thereafter use the structure, they shall contribute to the restoration cost in equal proportions. However, such contribution will not prejudice the right to call for a larger contribution from the other users under any rule of law regarding liability for negligent or willful acts or omissions. All restored walls between adjoining Dwelling Units shall be constructed on the property line between the two adjoining Lots and shall be built in a good, substantial and workmanlike manner in strict conformity to the laws, ordinances and regulations of the State of Texas and the City of College Station, Texas, in effect at the time of construction. (d) The right of any Owner to contribution from any other Owner under this Section 10.07 will be appurtenant to the land and shall pass to such Owner's successors-in-title. (e) Each Owner shall maintain property insurance in amounts sufficient to cover the Owner's share of the cost of repairing or replacing party walls and structures in the event of damage or destruction by fire or other hazards. 10.08 Landscaping; Maintenance. Construction of each and every residential Dwelling Unit on a Lot shall include the installation and placement of appropriate landscaping. ,Each Owner, Member and Resident of any Lot shall jointly and severally have the duty and responsibility,, at their sole cost and expense, to keep and maintain the Lot, and all improvements therein and thereon, in a well maintained, safe, clean and attractive condition at all times. Such maintenance shall include(without limitation): (a) the proper seeding of all lawns; (b) the pruning and cutting of all trees and shrubbery; (c) prompt removal of all litter, trash, refuse and waste; (d) watering of all landscape other than the lawns; (e) keeping exterior lighting and mechanical facilities in working order; (f) keeping lawn and garden areas alive,free of weeds and attractive; (g) keeping driveways in good repair and condition; (h) promptly repairing any exterior damage; complying with all governmental health and police requirements; all in a manner and with such frequency as is consistent with aesthetics, safety and good property management. The Association and its agents, during normal business hours, shall have the right (after 5 days written notice to the Owner of any Lot involved, setting forth the specific violation or breach of this covenant and the action required to be taken, and if at the end of such time reasonable steps to accomplish such action have not been taken by the Owner), to enter on the subject premises (without any liability whatsoever for damages for wrongful entry, trespass or otherwise to any person or entity) and to take the action(s) specified in the notice to remedy or abate said violation(s) or breach(es). The cost of such remedy or abatement will be paid to the Association upon demand and if not paid within thirty (30) days thereof, shall become a lien upon the Lot affected subject to the requirements of Chapter 209, Texas Property Code. The Association, or its agent, shall further have the right(upon like notice and conditions), to trim or prune, at the expense of the Owner, any hedge, tree or any other planting that, in the written opinion of the Association, by reason of its location on the Lot, or the height, or the manner in which it is permitted to grow, is detrimental to the adjoining Lots, is dangerous or is unattractive in appearance. The DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 25 )oc Bk Vol fig .10836201 OR 5711 158 lien provided under this section will constitute a lien retained against such property with the same force and effect as the Payment and Performance Lien for assessment set forth in these Covenants. 10.09 Yard Maintenance; Sprinkler System. The Association will have primary responsibility for maintenance (generally limited to mowing, trimming and edging of grass only) of each Lot and for operation and maintenance of any sprinkler system on each Lot that is part of a common sprinkler system. The Association is not responsible for: planting and/or re-planting; grass loss; seasonal color and/or decorations; and the maintenance of exotic or poorly-suited landscape plants. Each Owner is encouraged to consult with authorized representatives of the Association or the ARC for further information if in doubt concerning the grounds maintenance program. Each Lot on which a Dwelling Unit is constructed shall have and contain an underground water sprinkler system for the purpose of providing sufficient water(to preserve and maintain the landscaping in a healthy and attractive condition) to all yard areas on the Lot. The Association shall have the right to operate each sprinkler, or require the Lot Owner to do so, in conjunction with a common maintenance plan although the respective Lot Owner shall bear all costs and expenses related to the installation and repair of the sprinkler system as well as the water consumption arising from its.operation. The Association may elect to pay the costs and expenses of water consumption for all of the Lots,and recoup such costs and expenses by including in each Lot Owner's assessment the Owner's pro rata share of water consumption costs and expenses. The pro rata share will be a fraction determined by dividing the square footage of an Owner's Lot by the total square footage of all Lots then having an underground water sprinkler system and participating in the common maintenance plan. The Association will bear the reasonable cost of repairs to the sprinkler system if caused b.y the negligence of employees, agents or officers of the Association. In the event that a Lot Owner shall select and implement an exterior landscaping plan or yard composition which, in the reasonable opinion of the ARC or the Association, requires unusual or extraordinary cost or expense in upkeep and maintenance, such Lot Owner shall reimburse the Association on a monthly basis for the additional costs or expenses so incurred. Notwithstanding the efforts which may be made by the Association to maintain exterior landscaping, each Lot Owner shall use reasonable efforts to keep, preserve and maintain the landscaping in a healthy and attractive condition. ARTICLE 11 EASEMENTS 11.01 Reserved Easements. All dedications, limitations, restrictions, and reservations shown on any plat covering all or any portion of the Property and all grants and dedications of easements, rights-of- way, restrictions, and related rights made by Declarant 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 easements and rights-of-way for the purpose of most effectively, efficiently and economically developing and marketing the Property. Further, Declarant reserves the right, without the necessity of the joinder of any Owner or other person or entity, to grant, dedicate, reserve or otherwise create, at any time or from time to time, Common Properties, rights-of-way and easements for public utility purposes (including, without limitation, gas, cable, water, electricity, telephone and drainage), in favor of any person or entity, along and on either or both sides of any Lot line, any such easement having a maximum width of seven and one-half(7-1/2)feet on each side of such Lot line. 11.02 Installation and Maintenance. Easements for installation and maintenance of utilities and drainage facilities are reserved as shown on the recorded plat of the Property. Within these easements, if any, no structure or other material shall be placed or permitted to remain which may damage or interfere with the installation and maintenance of utilities; or in the case of drainage easements, which may change the direction of flow of water through drainage channels in such easements. The Easement Area of each DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 26 roc Bk Vol Pg 17fI836201 OR ;711 159 Lot, if any, and all Improvements in such area shall be maintained continuously by the Owner of the Lot, except for those Improvements for which a public authority or utility company is responsible. Neither Declarant nor any utility company using the easements herein or referred to shall be liable for any damages done by them or their assigns, agents, employees, or servants to shrubbery, streets or flowers or other property of the Owners situated on the land covered by said easements. 11.03 Surface Areas. The surface of Easement Areas for underground utility services may be used for planting of shrubbery, trees lawns or flowers. However, neither the Declarant nor any supplier of any utility service using any Easement Area shall be liable to any Owner or to the Association for any damage done by them or either of them, or their respective agents, employees, servants or assigns, to any of the aforesaid vegetation as a result of any activity reasonably relating to the construction, maintenance,operation or repair of any facility in any such Easement Area. 11.04 Drainage Easements. Each Owner covenants to provide easements for drainage and water flow, as contours of land and the arrangement of Improvements approved by the ARC thereon require. Each Owner further covenants not to disturb or displace any trees or other vegetation within the drainage easements as defined in this Declaration and shown on the recorded plat of the Property. There shall be no construction of improvements, temporary or permanent, in any drainage easement, except as may be approved in writing by the ARC. 11.05 Blanket Easement. An easement is hereby retained in favor of the Association over all Lots and the Common Properties for the purpose of enforcing the Covenants in accordance with Section 13.05 hereof, and for the construction of a common cable television system, a common sprinkler system, maintenance of landscaping, or,any,other item for the common benefit of the Owners. An easement is further granted for the purpose of repairing and maintaining any such system so constructed. An entry upon any Lot or the Common Properties to effectuate the foregoing purposes shall not be deemed as trespass. ARTICLE 12 REGISTRATION 12.01 Registration with the Association. In order that the Declarant and the Association can properly acquaint every Lot purchaser and every Owner, Resident and Member with these Covenants and the day-to-day matters within the Association's jurisdiction, each and every Owner, Member and Resident shall have an affirmative duty and obligation to originally provide, and thereafter revise and update, within fifteen (15)days after a material change has occurred, various items of information to the Association such as: (a) the full name and address of each Owner, Member and Resident; (b) the full name of each individual family member who resides within the residential dwelling of the Lot Owner; (c) the business address, occupation and telephone numbers of each Resident; (d) the name, address and telephone numbers of other local individuals who can be contacted (in the event the Resident cannot be located)in case of an emergency; and (e) such other information as may be reasonably requested from time to time by the Association. In the event any Owner, Member or Resident fails, neglects or refuses to so provide, revise and update such information, then the Association may, but is not required to, use whatever means it deems reasonable and appropriate to obtain such information and the offending Owner, Member and Resident DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 27 ')oc Bk Vol Pg 1036201 OR 5711 160 shall become automatically jointly and severally liable to promptly reimburse the Association for all reasonable costs and expenses incurred in so doing. ARTICLE 13 GENERAL PROVISIONS 13.01 Power of Attorney. Each and every Owner, Member and Resident hereby makes, constitutes and appoints Declarant as his/her true and lawful attorney-in-fact, coupled with an interest and irrevocable, for him/her and in his/her name, place and stead and for his/her use and benefit, to do the following: (a) to exercise, do or perform any act, right, power, duty or obligation whatsoever in connection with, arising out of, or relating to any matter whatsoever involving this Declaration and the Property; (b) to sign, execute, acknowledge, deliver and record any and all instruments which modify, amend, change, enlarge, contract or abandon the terms within this Declaration, or any part hereof, with such clause(s), recital(s), covenant(s), agreement(s) and restriction(s)as Declarant shall deem necessary, proper and expedient under the circumstances and conditions as may be then existing; and (c) to sign, execute, acknowledge, deliver and record any and all instruments which modify, amend, change, enlarge, contract or abandon the subdivision plat(s) of the Property, or any part thereof, with any easements and rights-of-way to be therein contained as the Declarant shall deem necessary, proper and expedient under the conditions as may then be existing. The rights, powers and authority of said attorney-in-fact to exercise any and all of the rights and powers herein granted shall commence and be in full force upon recordation of this Declaration in the Brazos County Clerk's Office and shall remain in full force and effect thereafter until conclusion of the Development Period. 13.02 Further Development. During the Development Period, each and every Owner, Resident and Member waives, relinquishes and shall not directly or indirectly exercise any and all rights, powers or abilities, and the Association shall not devote or expend any monies or personnel, regarding the following: to contest, object, challenge, dispute, obstruct, hinder or in any manner disagree with the proposed or actual development (including, without limitation, zoning or rezoning efforts or processes) pertaining to residential uses of any real property owned by the Declarant or by the affiliates, assignees or successors of the Declarant within a one-half mile radius of the Subdivision. 13.03 Duration. The Covenants of this Declaration shall run with and bind the land subject to this Declaration, and shall inure to the benefit of and be enforceable by the Association and/or Owner and Resident of any land subject to this Declaration, their respective legal representatives, heirs, successors and assigns, for an original fifty (50) year term expiring on the fiftieth (50th) anniversary of the date of recordation of this Declaration, after which time these Covenants shall be automatically extended for successive periods of ten (10) years unless an instrument is signed by the Owners of at least fifty-one percent (51%) of all Lots within this Subdivision and all the Subdivisions and recorded in the Official Records of Brazos County, Texas, which contains and sets forth an agreement to abolish these Covenants; provided, however, no such agreement [where approved by less than seventy-five percent (75%) of the Owners of all Lots within this Subdivision to abolish shall be effective unless made and recorded one (1)year in advance of the effective date of such abolishment. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 28 'lac Bk Vol Pg 10836201 OR 5711 161 13.04 Amendments. (a) By Declarant. During the Development Period, this Declaration may be amended by the Declarant, acting alone. No amendment by Declarant shall be effective until there has been recorded in the Official Records of Brazos County, Texas, an instrument executed and acknowledged by Declarant and setting forth the amendment, and an instrument executed and acknowledged by the Secretary of the Association, certifying that the Development Period has not terminated. (b) By Owners. After the Development Period, this Declaration may be amended by the recording in the Official Records of Brazos County of an instrument executed and acknowledged by the President and Secretary of the Association setting forth the amendment and certifying that such amendment has been approved by Owners entitled to cast at least sixty percent (60%) of the number of votes entitled to be cast pursuant to Section 3.02 hereof. 13.05 Enforcement. Each Owner of each Lot shall be deemed, and held responsible and liable for the acts, conduct and omission of each and every Resident, Member, guest and invitee affiliated with such Lot, and such liability and responsibility of each Owner shall be joint and several with their Resident(s), Member(s), guests and invitees. The Payment and Performance Lien shall extend to, cover and secure the proper payment and performance by each and every Resident, Member, guest and invitee affiliated with each Owner. Each Owner may, upon appropriate application to and approval by the Association, impose greater or additional restraints and restrictions on the "good standing"qualifications of the Residents and Members of such Owner's Lot. Unless otherwise prohibited or modified by law, all parents shall be liable for any and all personal injuries and property damage proximately caused by the conduct of their children (under the age of 18 years)within the Property. Enforcement of these Covenants may be initiated by any proceeding at law or in equity against any person or persons violating or attempting to violate them, whether the relief sought is an injunction or recovery of damages, or both, or enforcement of any lien created by these Covenants; but failure by the Association or any Owner to enforce any Covenant herein contained shall in no event be deemed a waiver of the right to do so thereafter. The City of College Station, Texas is specifically authorized (but not obligated) to enforce these Covenants. With respect to any litigation hereunder, the prevailing party shall be entitled to recover all costs and expenses, including reasonable attorneys'fees, from the non-prevailing party. 13.06 Validity. Violation of or failure to comply with these Covenants shall not affect the validity of any mortgage, bona fide lien or other similar security instrument which may then be existing on any Lot. Invalidation of any one or more of these Covenants, or any portions thereof, by a judgment or court order shall not affect any of the other provisions or covenants herein contained, which shall remain in full force and effect. In the event any portion of these Covenants conflicts with mandatory provisions of any ordinance or regulation promulgated by the City of College Station (including, without limitation, the Zoning Ordinance), then such municipal requirement shall control. 13.07 Proposals of Declarant. The proposals of the Declarant, as set forth in various provisions hereinabove, are mere proposals and expressions of the existing good faith intentions and plans of the Declarant and shall not be deemed or construed as promises, solicitations, inducements, contractual commitments or material representations by the Declarant upon which any person or entity can or should rely. Nothing contained in or inferable from this Declaration shall ever be deemed to impose upon any other land owned or to be owned by the Declarant, or any related entity, any covenants, restrictions, easements or liens or to create any servitudes, negative reciprocal easements or other interests in any such land in favor of any person or entity other than the Declarant. Declarant makes no representations of any kind or character concerning any land parcels adjoining the Property. Each prospective Owner should make his/her own investigation concerning those parcels and what impact, if any, same may have on the ownership, use and enjoyment of the Property. 13.08 Service Mark. Declarant is exclusive licensee of a service mark for Spring Creek Townhomes (referred to as the "Service Mark") in the Brazos County, Texas area. Unless and until a DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 29 Doe Bk Vol Fig )x+836201 OR 5711 162 written license agreement has been sought and obtained from Declarant(and in this connection Declarant may withhold consent in its sole and absolute discretion), no person or entity may at any and/or for any reason whatsoever use, depict, draw, demonstrate, reproduce, infringe, copy or resemble, directly or indirectly, the Service Mark. 13.09 Headings. The headings contained in this Declaration are for reference purposes only and shall not in any way affect the meaning or interpretation of this Declaration. Words of any gender used herein shall be held and construed to include any other gender, and words in the singular shall be held to include the plural and vice versa, unless the context requires otherwise. Examples, illustrations, scenarios and hypothetical situations mentioned herein shall not constitute an exclusive, exhaustive or limiting list of what can or cannot be done. 13.10 Notices to Resident/Member/Owner. Any notice required to be given to any Resident, Member or Owner under the provisions of this Declaration shall be deemed to have been property delivered when: (i) deposited in the United States Mail, postage prepaid, addressed to the last known address of the person who appears as the Resident, Member or Owner on the records of the Association at the time of such mailing; or when (ii) delivered by hand or by messenger to the last known address of such person within the Property; or when (iii) posted on the Association's bulletin board for at least thirty (30)consecutive calendar days. 13.11 Notices to Mortgagees. The holder(s) of a mortgage may be furnished with written notification from the Association of any default by the respective mortgagor/Member/Owner in the performance of such mortgagor's/Member's/Owner's obligation(s) as established by this Declaration, provided that the Association has been theretofore furnished, in writing, with the correct name and address of such mortgage holder(s) and a request to receive such notification and a reasonable supply of self-addressed, stamped envelopes. 13.12 Disputes. Matters of dispute or disagreement between Owners, Residents or Members with respect to interpretation or application of the provisions (excluding architectural matters) of this Declaration or the Association Bylaws, shall be determined by the Board of Directors. Matters pertaining to architectural matters shall be determined by the Architectural Review Committee. These respective determinations (absent arbitrary and capricious conduct or gross negligence) shall be final and binding upon all Owners, Residents and Members. 13.13 Enforcement and Nonwaiver. (a) Right of Enforcement. Except as otherwise provided herein, any Owner at his own expense, Declarant, and/or the Board shall have the right to enforce any and all of the provisions of this Declaration. Such right of enforcement shall include both damages for, and injunctive relief against, the breach of any such provision. (b) Nonwaiver. The failure to enforce any provision of this Declaration at any time shall not constitute a waiver of the right thereafter to enforce any such provision or any other provision of said restrictions. (c) Liens. The Association shall have the right, when appropriate in its judgment and subject to Chapter 209, Texas Property Code, to claim or impose a lien upon any Lot or Improvement constructed thereon in order to enforce any right or effect compliance with this Declaration. 13.14 Assignment by Declarant. Notwithstanding any provision in this Declaration to the contrary, Declarant may assign, in whole or in part, any of its privileges, exemptions, rights, and duties under this Declaration to any other person or entity and may permit the participation, in whole or in part, by any other person or entity in any of its privileges, exemptions, rights, and duties hereunder. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 30 ')oc Bk Vol Pg J0836201 OR 5711 163 13.15 Exemption of Declarant. Notwithstanding any provision in this Declaration to the contrary, neither Declarant nor any of Declarant's activities shall in any way be subject to the control of or under the jurisdiction of the Architectural Review Committee. Without in any way limiting the generality of the preceding sentence, this Declaration shall not prevent or limit the right of Declarant to excavate and grade, to construct and alter drainage patterns and facilities, to construct any and all other types of Improvements, sales and leasing offices, and similar facilities, and to post signs incidental to construction, sales, and leasing anywhere within the Property. 13.16 Interpretation. The provisions of this Declaration shall be liberally construed to effectuate the purposes of creating a uniform plan for the development and operation of the property and of promoting and effectuating the fundamental concepts of the Property set forth in this Declaration. 13.17 Construction. (a) Restrictions Severable. The provisions of Declaration shall be deemed independent and severable, and the invalidity or partial invalidity of any provision or portion thereof shall not affect the validity or enforceability of any other provision or portion thereof. (b) Singular Includes Plural. Unless the context requires a contrary construction, the singular shall include the plural and the plural the singular; and the masculine, feminine or neuter shall each include the masculine, feminine, and neuter. (c) Captions. All captions and titles used in this Declaration are intended solely for convenience of reference and shall not enlarge, limit or otherwise affect that which is set forth in any of the paragraphs, sections or articles. (d) Deadlines on Business Day. If any deadline in this Declaration should fall on a Saturday, Sunday or a Texas or federal holiday, such deadline shall automatically be extended to the next business day. (e) Choice of Law. This Declaration shall be construed and enforced in accordance with the laws of the State of Texas. Witness the hand of an authorized representative of Declarant on the acknowledgment date noted below. SPRING CREEK CS DEVELOPMENT, LTD. By: Spring Creek CS Management LLC, its General Partner By: A� Wallace Phillips, Manage ST •R' B I ERS, INC. BY:it L ,thAri...1t- 'and Fr- ch, President DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 31 '?oc Bk Vol Pg J 836201 OR 5711 164 THE STATE OF TEXAS § (ACKNOWLEDGMENT) COUNTY OF BRAZOS § This instrument was acknowledged before me on the `3 day of Alice/n(12A , 2003, by Wallace Phillips, Manager of Spring Creek CS Management, LLC, the general partner of Spring Creek CS Development, Ltd., a Texas limited partnership, on behalf of said partnership. rimAles #,M21-1C-\ ---IA-6'Z) f i '• RiOk Bboe d Tra •�; • uya�.�ron . tary Public, State of Texas JANIZARY 31,2006 THE STATE OF TEXAS § (ACKNOWLEDGMENT) COUNTY OF BRAZOS § gday Nove'nXe�- , 2003, by This instrument was acknowledged before me on the of Randy French, President of Stylecraft Builders, Inc., a Texas corporation, on behalf of said corporation. ;�YP� EDNA S. ALFORD Notary Public, State of exas ffti s *:' �,_"'1! Notary Public,State of Texas %\J. My Commission Expires ''�fnii •..... July 25,2005 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 32 lVol Pg 108362O1 OR 5711 165 CONSENT AND SUBORDINATION BY LIENHOLDER Lienholder, as the holder of the lien on the Property, consents to the foregoing Declaration of Covenants, Conditions and Restrictions and the covenants, conditions, restrictions and easements contained therein, and lienholder hereby subordinates its lien to the rights and interests of the Covenants, Conditions and Restrictions, such that a foreclosure of the lien shall not extinguish the covenants, conditions, restrictions and easements contained in the Covenants, Conditions and Restrictions. COMPASS BANK , I N . le Name: 9'c i y1°1 'f Title: ,..5"r, d're rees..41144- HE STATE OF TEXAS§ , COUNTY OF BRAZOS § (cfre' ?hi �ment was acknowlecj before me on 0 r , 2003, by /e ` , V of to sass Bank on behalf of such institution. . -%. /, / 0NotaPATRICIA I... CCAAI_EY ry Public in and for State of Texas �' ,,0.0 y r,,t G, :. . Texas ��oF t � My Commission E;pine DECEMBER 27, 2004 w i 41- a. .,:= d •�y ul r.H r i C .n I '+Fr' CU f +p� 44'1.5 I ., r'� �r err ' .6. ..... ... , 1t;.,.,41,p a I 4C' q .M y I. t % "7 �l. ,4 F. w DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 33 k 0842315 OR8131 359 FIRST AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS SPRING CREEK TOWNHOMES SUBDIVISION This FIRST AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS of Spring Creek Townhomes Subdivision (this"First Amendment") is made effective as of the 15`h day of December,2003,by Spring Creek CS Development, Ltd.("Declarant")and Stylecraft Builders, Inc. ("Stylecraft"). Stylecraft is the owner of Lots 1, 2, 3 and 4, Block 2 and Lots 20, 21, 22, 23, 24 and 25, Block 4 and wishes to make such Lots subject to this First Amendment. 1. This First Amendment is made to amend, alter, and change that one certain Declaration of Covenants, Conditions and Restrictions of Spring Creek Townhomes Subdivision,filed for record in Volume 5711, Page 128 of the Official Records of Brazos County,Texas(the"Declaration"). All capitalized terms not defined herein shall have the definitions ascribed to them in the Declaration. 2. The Declaration is amended as follows: (a) The last sentence of Section 10.05 of the Declaration is hereby amended to read as follows: "Unle'ss an exception is granted by the ARC,all Dwelling Units shall contain not less than one thousand two hundred(1,200)square feet of heated enclosed living space, exclusive of porches (open or covered), decks and garages." 3. Declarant and Stylecraft, as owners of all of the Lots and having all of the votes in the Association, make this First Amendment pursuant to Section 13.04 of the Declaration. 4. All provisions of the Declaration not amended by this instrument shall remain in full force and effect. This instrument has been executed by the undersigned on the date of the taking of their acknowledgments, but the effective date of this instrument shall be deemed to be December 15,2003,for all purposes and it shall be effective as of that date. SPRING CREEK CS DEVELOPMENT, LTD. By: Spring Creek CS Management LLC, its General Partner By: 7 Wallace Phillips, Manag STYL7CRA T :UILD1 RS, I C. BY: 4Will `\ t Randy French r•resident oc Bk Vol Pg 08423I5 OR 5813 36 THE STATE OF TEXAS • § (ACKNOWLEDGMENT) COUNTY OF BRAZOS § This instrument was acknowledged before me on the /5 day of December, 2003, by Wallace Phillips, Manager of Spring Creek CS Management, LLC, the general partner of Spring Creek CS Development, Ltd., a Texas limited partnership, on behalf of said partnership. EMIAA TORRES NobyRbk�eledTeew �y}7�� 1211A4..3 JA�PlUAi320«OB N ary Public, State of Texas THE STATE OF TEXAS § (ACKNOWLEDGMENT) COUNTY OF BRAZOS § ra This instrument was acknowledged before me on theOif day of December,2003,by Randy French, President of Stylecraft Builders, Inc., a Texas corporation, on behalf of said corporation. AM'o:;,, EDNA S.ALFORD ` c 1A / ; roc Bk Vol _Pg 084$315 OR 5813 37 CONSENT AND SUBORDINATION BY LIENHOLDER Lienholder,as the holder of the lien on the Property,consents to the foregoing First Amendment to Declaration of Covenants, Conditions and Restrictions and the covenants, conditions, restrictions and easements contained therein, and Lienholder hereby subordinates its lien to the rights and interests of the First Amendment to Declaration of Covenants,Conditions and Restrictions,such that a foreclosure of the lien shall not extinguish the covenants, conditions, restrictions and easements contained in the First Amendment to Declaration of Covenants, Conditions and Restrictions. COMPASS BANK By: Steve Mobley, Senior Vice President THE STATE OF TEXAS § COUNTY OF BRAZOS § uh • 6/ ,2o04 , This document was acknowledged before me on©ccem er ,-2e83;try Steve Mobley,Senior Vice President of Compass Bank on behalf of such institution. - .. A-1A,1 c d _/ /, b00Z 'LZ U381/113030 1346'; uglcslwwo0 AA P, y. r, PATRICIA L. CEARLEY Mk io BMS 'oygnd Aae�oN 3 , „ h Notary Public, Stateof Texas Anib30 `E Vl3lU Vd 411›.,. �� My Commission Expires l'nF W DECEMBER 27, 2004 AFTER RECORDING RETURN TO: PREPARED IN THE LAW OFFICE OF: Charles A. Ellison, P.C. Charles A. Ellison, P.C. P.O. Box 10103 P.O. Box 10103 College Station, Texas 77842 College Station, Texas 77842 File No. 04874.012 FIRST AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS: SPRING CREEK TOWNHOMES SUBDIVISION 1L . r !;,:i a�4pi 'aa N g!...,:}i,-0 CJ n ,..1- nN LII • MN 1� " 3ir1. ep, r0 ID j ,, r. mF 0.1 t>J fl• I.,.In ry '„u'.? �I:a n 't.,,. ::a�: t8 r' ::t r4;' v ..y,„..wr• fS '", .L7 Kti -1;.. 'ta r: ..C. '4I l.11 '411 r�. ca.o-.• 1:Z.1 1+: n.. go1'CI Yu rn i.:l ti il ,vr uo Si:,y fw: t;s ��t :,.Jr