HomeMy WebLinkAboutDeclaration of Covenants..ect Unc UI Vol F's
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THIRD AMENDED AND RESTATED
DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
OF
CASTLEGATE II
THE STATE OF TEXAS
COUNTY OF BRAZOS
This THIRD AMENDED AND RESTATED DECLARATION OF COVENANTS,
CONDITIONS, AND RESTRICTIONS OF CASTLEGATE II (the "Declaration"), is made
effective as of November 11, 2011, by DOS DORADOS DEVELOPMENT, L.L.C.d.b.a. 3-D
DEVELOPMENT, a Texas limited liability company, (hereinafter sometimes referred to as
"Declarant");
WHEREAS the DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS CASTLEGATE II, (the"Original Declaration")effective November4, 2011
was recorded in Volume 10402, Page 220 of the Official Records of Brazos County, Texas;
the FIRSTAMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS
AND RESTRICTIONS OF CASTLEGATE II (the "First Restated Declaration") effective
November 4, 2011 was recorded in 10498, Page 196, of the Official Records of Brazos
County, Texas; the NOTICE OF ADDITION OF LAND TO CASTLEGATE II effective
December 31, 2012 was recorded in Volume 11109, Page 247, of the Official Records,
Brazos County, Texas; and the SECOND AMENDED AND RESTATED DECLARATION
OF COVENANTS,CONDITIONS,AND RESTRICTIONS OF CASTLEGATE II (the"Second
Restated Declaration") effective November 4, 2011 was recorded in Volume 11479, Page
181, of the Official Records, Brazos County, Texas;
WHEREAS,the Original Declaration,the First Restated Declaration and the Second
Restated Declaration all provide that Declarant may subject and add other lands to the land
encumbered and benefitted by the Declaration, and Declarant desires to add Section 203,
102, and 205 of Castlegate II to the land subject to the Declaration;
WHEREAS, pursuant to Section 9.03(A) of the Declaration, the Declarant may
amend the Original Declaration, First Restated Declaration and the Second Restated
Declaration and desires to do so by this THIRD AMENDED AND RESTATED
DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS OF
CASTLEGATE II, which shall completely replace and supersede the Second Restate
Declaration;
WHEREAS the Declarant desires to convey the Property(defined below) subject to
certain protective covenants, conditions, restrictions, liens and charges as hereinafter set
forth;
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WHEREAS the Declarant desires to create and carry out a uniform plan for the
improvement, development and sale of the Property for the benefit of the present and
future owners of the Property;
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that it is hereby
declared (I) that all of the Property shall be held, sold, conveyed and occupied subject to
the following covenants, conditions, restrictions, liens, and charges, which are for the
purpose of preserving the value and desirability of, and which shall run with, the Property
and shall be binding on all parties having any right, title, or interest in or to the Property or
any part thereof, their heirs, successors, and assigns, and which shall inure to the benefit
of each owner thereof; and (ii) that each contract or deed that may hereafter be executed
with regard to the Property or any portion thereof shall conclusively be held to have been
executed, delivered and accepted subject to the following covenants, conditions and
restrictions regardless of whether or not the same are set out or referred to in said contract,
or deed.
ARTICLE 1
DEFINITIONS
Unless the context otherwise specifies or requires,the following words and phrases
when used in this Declaration shall have the following meanings hereinafter specified:
1.01 Architectural Committee. "Architectural Committee" shall mean the committee
created pursuant to this Declaration to review and approve plans for the construction of
Improvements on the Property.
1.02 Architectural Committee Rules. "Architectural Committee Rules" shall mean the
rules and regulations adopted by the Architectural Committee, as the same may be
amended from time to time.
1.03 Articles. "Articles"shall mean Certificate of Formation of Homeowners'Association
of CASTLEGATE II, Inc., as that instrument may be amended from time to time, which
instrument is filed in the office of the Secretary of State of the State of Texas.
1.04 Assessment. "Assessment" or "Assessments" shall mean such assessments as
may be levied by the Association under the terms and provisions of the Declaration.
1.05 Association. "Association"shall mean Homeowners'Association of CASTLEGATE
II, Inc., a Texas non-profit corporation, which shall have authority and responsibility for all
of the communities and subdivisions of Castlegate II, as hereafter defined.
1.06 Board. "Board" shall mean the Board of Directors of the Association. Board
members may, but need not, be Members of the Association.
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1.07 Bylaws. "Bylaws" shall mean the Bylaws of the Association as adopted by the
Board, and from time to time amended.
1.08 CASTLEGATE II Communities. Declarant, or Declarant's assigns, may create
additional phases or sections of Castlegate, and adopt the same or similar restrictions,
rules, and regulations for such phases or sections, and make the additional phases or
sections subject to the Association.
1.09 CASTLEGATE II Residential Restrictions. "CASTLEGATE II Residential
Restrictions"shall mean this Declaration, as the same may be amended from time to time,
together with the CASTLEGATE II Rules, Architectural Committee Rules and the Articles
and Bylaws of the Association as the same are in effect from time to time.
1.10 CASTLEGATE II Rules. "CASTLEGATE II Rules" shall mean the rules and
regulations adopted by the Board as the same may be amended from time to time.
1.11 Common Areas. "Common Areas"shall mean any land conveyed, leased,dedicated
or assigned by Declarant,or a third party with the Association=s consent,to the Association
for maintenance and operation, including, but not limited to, easements, roads, entryways,
roadways, rights-of-ways, parkways, median strips, sidewalks, parks, trails, paths, ponds,
creeks, and lakes within the Property.
1.12 Declarant. "Declarant" shall mean Dos Dorados Development, L.L.C. d.b.a. 3-D
Development, its duly authorized representatives or their respective successors or assigns;
provided that any assignment of the rights of Dos Dorados Development, LLC, as
Declarant, must be expressly set forth in writing and the mere conveyance of a portion of
the Property without written assignments of the rights of Declarant shall not be sufficient
to constitute an assignment of the rights of Declarant hereunder.
1.13 Declaration. "Declaration" shall mean this instrument as it may be amended from
time to time. Neither the Original Declaration, the First Restated Declaration or the Second
Restated Declaration shall have any further force or effect after the recording hereof.
1.14 Improvement. "Improvement" shall mean every structure and all appurtenances
thereto of every type and kind, including but not limited to buildings, outbuildings, storage
sheds, patios,tennis courts, swimming pools,garages,storage buildings,fences,screening
walls, retaining walls, stairs, decks, landscaping, pole signs, exterior air conditioning,water
softener fixtures or equipment, and poles, pumps, walls, tanks, reservoirs, pipes, lines,
meters, antennae, towers and other facilities used in connection with water, sewer, gas,
electric, telephone, regular or cable television, or other utilities.
1.15 Lease. "Lease" shall mean a written document for a term of at least 90 days
between an Owner and tenants occupying the Owner's Lot.
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1,16 Lot. "Lot" or "Lots" shall mean any parcel or parcels of land within the Property
shown as a subdivided lot on a recorded plat of the Property, together with all
Improvements located thereon.
1.17 Member. "Member" or "Members" shall mean any person(s), entity, or entities
holding membership rights to the Association.
1.18 Mortgage. "Mortgage" or "Mortgages" shall mean any mortgage or deed of trust
covering any portion of the Property given to secure the payment of a debt.
1.19 Mortgagee. "Mortgagee" or"Mortgagees" shall mean the holder or holders of any
Mortgage or Mortgages.
1.20 Occupant Group. "Occupant Group" shall mean one or more persons from among
the following:
a. The Owner or Owners of record of a Lot;
b. If the Lot is occupied by one or more tenants under a Lease, the Primary Tenant,
defined below;
c. Persons related to such Owner or Owners of record, or the Primary Tenant,
within the first degree of relationship;
d. No more than one other person unrelated to the persons described in (a), (b), or
(c).
1.21 Owner. "Owner" or "Owners" shall mean a person or persons, entity or entities,
including Declarant, holding a fee simple interest in any Lot on the Property, but shall not
include a Mortgagee.
1.22 Person. "Person" or "Persons" shall mean an individual or individuals, entity or
entities having the legal right to hold title to real property.
1.23 Plans and Specifications. "Plans and Specifications" shall mean any and all
documents designed to guide or control the construction or erection of any Improvement,
including, but not limited to,those indicating location, size, shape, configuration, materials,
site plans, excavation and grading plans, foundation plans, drainage plans, landscaping
and fencing plans, elevation drawings, floor plans, specifications on all building products
and construction techniques, samples of exterior colors, plans for utility services, and all
other documentation or information relevant to such Improvement.
1.24 Primary Tenant. "Primary Tenant"shall mean the tenant named in a Lease of a Lot
as the Primary Tenant and registered with the Association, or if no such designation or
registration is made, the first tenant listed in the Lease.
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1.25 Property. "Property" shall mean the real property in Brazos County, Texas
described in Exhibit "A", which is attached hereto and incorporated by reference into this
Declaration.
ARTICLE 2
DEVELOPMENT OF THE PROPERTY
2.01 Development or Sale by Declarant. Declarant may divide or subdivide the Property
into several areas, develop some of the Property, and, at Declarant=s option, sell any
portion of the Property free of the restrictions set forth in this Declaration.
2.02 Addition of Land. Declarant may, at any time and from time to time, add any other
lands to the Property, and upon such addition, this Declaration and the covenants,
conditions, restrictions and obligations set forth herein shall apply to the added land, and
the rights, privileges, duties and liabilities of the persons subject to this Declaration shall
be the same with respect to the added land as they are with respect to the lands originally
covered by the Declaration. In order to add lands to the Property hereunder, Declarant
shall be required only to record in the Official Records of Brazos County, Texas, a Notice
of Addition of Land containing the following provisions:
a. A reference to this Declaration, which reference shall state the book and
page numbers of the Official Records of Brazos County wherein this
Declaration is recorded;
b. A statement that the provisions of this Declaration shall apply to the added
land; and
c. A legal description of the added land.
2.03 Withdrawal of Land. Declarant may, at any time and from time to time, reduce or
withdraw areas from the Property, and upon such withdrawal, this Declaration and the
covenants, conditions, restrictions and obligations set forth herein shall no longer apply to
those lands withdrawn. In order to withdraw lands from the Property hereunder, Declarant
shall be required only to record in the Official Records of Brazos County, Texas, a Notice
of Withdrawal of Land containing the following provisions:
a. A reference to this Declaration, which reference shall state the book and
page numbers of the Official Records of Brazos County wherein this
Declaration is recorded;
b. A statement that the provisions of this Declaration shall no longer apply to the
withdrawn land; and
c. A legal description of the withdrawn land.
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ARTICLE 3
GENERAL RESTRICTIONS
All of the Property shall be owned, held, encumbered, leased, used, occupied and enjoyed
subject to the following limitations and restrictions:
3.01 Construction of Improvements. No Improvements shall hereafter be constructed
upon any of the Property without the prior approval of the Architectural Committee.
3.02 Antennas.
(A) Antennas may be installed and maintained in an Approved Location unless
installation in the Approved Location results in Unreasonable Delay, Unreasonable Cost
Increase or Signal Impairment. If installation in an Approved Location results in
Unreasonable Delay, Unreasonable Cost Increase or Signal Impairment, the Antenna may
be installed and maintained elsewhere on the Lot and the Architectural Committee may
require screening that does not result in Unreasonable Delay, Unreasonable Cost Increase
or Signal Impairment.
(B) Within five (5) days after installation of an Antenna, Owner shall notify the
Association in writing that an Antenna has been installed. If Owner has not installed the
Antenna in an Approved Location and the Association can demonstrate that no
Unreasonable Delay, Unreasonable Cost Increase or Signal Impairment would have
resulted from installation of the Antenna in an Approved Location, the Association may
require the Owner, at Owner=s cost, to move the Antenna to an Approved Location. If the
Antenna could have been located in Approved Location without Unreasonable Delay or
Signal Impairment but with Unreasonable Cost Increase, the Association may, at its
expense, using an installer selected by the Association and after reasonable notice to
Owner, move the Antenna to an Approved Location.
(C) For purposes of this Section 3.02, the following are defined terms:
"Antenna" means any exterior antenna, aerials, satellite dishes or other apparatus (a) of
one meter or less in diameter that is used to receive direct broadcast satellite service or to
receive or transmit fixed wireless signals via satellite; (b) of one meter or less in diameter
that is used to receive video programming services via multipoint distribution services or
to receive or transmit fixed wireless signals via other than satellite; or (c) that is used to
receive television broadcast signals.
"Approved Location" means that portion of a Lot which is not visible from any street,
Common Area or other Lot and preferably: (a) in the rear or side yard of the Lot; (b)
mounted on a pole, the dwelling unit or other structure below the fence line or otherwise
screened by a fence; and (c) not located on the roof of the dwelling unit or other
improvement. See (B) above for other criteria requiring location in an Approved Location.
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"Signal Impairment"means that the ability of an Antenna to receive or transmit acceptable
quality signals from an Approved Location is precluded.
"Unreasonable Cost Increase" means the costs of installation, maintenance or use of an
Antenna are unreasonably increased in light of the cost of the antenna and related
equipment.
"Unreasonable Delay"means the installation, maintenance and use of the apparatus in the
Approved Location is unreasonably delayed, such as by a preapproval or permit
requirement.
3.03 Insurance Rates. Nothing shall be done or kept on the Property that 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.
3.04 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 Architectural Committee; 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
Architectural Committee.
3.05 Signs. No sign of any kind may be erected or maintained on any Lot without the
consent in writing of the Architectural Committee except the following permitted signs:
a. signs advertising the Lot for sale;
b. not more than two (2) political signs;
c. school spirit signs; or
d. security signs.
No permitted sign shall exceed five (5) square feet without the prior written approval of the
Architectural Committee. Declarant or the Architectural Committee shall have the right to
enter and remove any unapproved sign, advertisement, billboard or structure which is
placed on any Lot without the Declarant or the Architectural Committee's consent, and in
so doing, shall not be liable and is expressly relieved from any liability for trespass or other
sort in connection therewith, or arising from such removal.
3.06 Rubbish and Debris. No rubbish or debris of any kind shall be allowed or permitted
to accumulate upon the Property 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 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
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appropriately screened from view so that it is not visible from any street, Common Area or
Lot. Trash containers must be promptly returned to their enclosed structures or screening
following trash pickup and in no event shall a trash container remain visible from any street,
Common Area or other Lot overnight. 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 for the
costs of removal.
3.07 Noise. No noise or other nuisance shall be permitted to exist or operate upon any
portion of the Property so as to be offensive or detrimental to any other portion of the
Property or to its occupants.
3.08 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
Committee.
3.09 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 on any other Lot, or which may be or may become an annoyance or nuisance
to the neighborhood.
3.10 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.
3.11 Alteration or Removal of Improvements. Exclusive of normal maintenance, any
construction 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 Architectural Committee.
3.12 Roofing Materials. The surface of all roofs of principal and secondary structures
shall be metal, shingle, wood shakes, tile, or dimension architectural quality composition
shingle. "Three tab" composition shingles shall not be allowed. The Architectural
Committee shall have authority to approve other roof treatments and materials when in its
determination such treatment and materials in the form utilized will not be a detriment to
the quality of the neighborhood.
3.13 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 Architectural Committee and approval of such design, including
the aesthetics thereof, shall be required before construction may begin.
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3.14 Driveway. The Architectural Committee 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.
3.15 Tanks. The Architectural Committee 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 swimming pool filter tanks. (No
elevated tanks of any kind shall be erected, placed or permitted on any Lot). All tanks shall
be screened so as not to be visible from any other portion of the Property.
3.16 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 Architectural Committee, except what has
already been constructed by the City of College Station, prior to October, 2011; 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 Architectural Committee. 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 Architectural Committee. Declarant has no duty
to provide any particular utility service at any time, and makes no representation or
warranty that cable, television, telephone, Internet or specific utility providers will be
available in the Property.
3.17 Drainage. Declarant is only responsible for drainage inside the Road Right of Ways.
Declarant is not responsible for any drainage other than what is previously listed.
3.18 Hazardous Activities. No activities shall be conducted on the Property and no
Improvements shall be constructed on the Property 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 on a Lot except in contained barbeque units while attended and in use
for cooking purposes, or within safe and well-designed (i) interior fireplaces, (ii) exterior
fireplaces, or (iii) outdoor chimneys (or chimineas).
3.19 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. No well, pump, shaft, casing or other facilities for the removal
of subsurface water shall be placed or maintained on any Lot, and no boring, drilling,
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removal or exploration for subsurface water or the injection of water or waste water shall
be conducted on any Lot.
3.20 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
any public utility, in the performance of its legitimate functions.
3.21 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 Architectural
Committee; 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 a Lot during any period of actual construction,which authorization,
if given, shall include the nature, size, duration and location of such structure or structures.
3.22 Unsightly Articles: Vehicles: Garage Doors. 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. Garage doors shall be kept closed
at all times except for reasonable time periods when such doors are in use. The
Association may establish rules and regulations regarding the definition of"reasonable time
periods". Overnight parking of vehicles on the curb of any street is prohibited. No vehicle
may be parked in the street in front of any Lot for a period of more than twelve (12)
consecutive hours.
3.23 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 or parked so as not to be visible from adjoining
property or public or private thoroughfares. In the event a travel trailer or recreational
vehicle is not enclosed in a garage, the Architectural Committee must approve the location
of its storage site. This restriction regarding travel trailers and recreational vehicles shall
not apply to guests staying at any Lot for less than forty-eight (48) hours.
3.24 Fences.
(A) No fence, wall, or hedge shall be built or maintained forward of the front wall line of
the main structure, not including decorative walls or fences, which are part of the
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Architectural Committee approved architectural design of the main structure, and which are
not to be built or maintained nearer than the 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 Architectural Committee 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, or in the case where a Lot has a side yard which is adjacent to the backyard
of an adjacent Lot. No chain-link fences may be built or maintained on any Lot.
(B) Unless otherwise approved by the Architectural Committee or as provided below,
any fence built or maintained on any Lot shall be constructed only of standard grade 1" by
6" cedar privacy fence materials, six (6') feet in height, with the finished (smooth) side
facing Victoria Drive, WS Phillips Pkwy Drive, all other streets or Common Areas, and/or
adjoining properties which are not part of Castlegate II Communities, and the rough side
facing the interior of any Lot. The Owner (other than Declarant) shall erect wrought iron
fencing on (I) the rear boundary and (ii) at least twenty-four feet (24') along the side
boundary lines commencing from the rear boundary, of any Lot within Lots 8 — 17, Block
14, Section 100, Lots 1R — 7R, Lot 8R1, and Lots 9R-13R Block 7, Section 200, and the
Owner of the Lot shall be responsible for maintenance and repair of the fence. Declarant
has no duty to erect wrought iron fencing, but the first Owner after Declarant has a duty to
do so. The wrought iron fencing to be used shall be manufactured by Ameristar, 1-800-
321-8724, Majestic Panels, 3 Rail, 6 feet tall, or substantially similar fencing if Ameristar
no longer manufactures Majestic Panel.
3.25 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 Lot. 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 Architectural Committee,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 four (4) adult dogs and three (3) adult cats may be kept on a single Lot. All
domestic household pets shall be kept in strict accordance with all local laws and
ordinances.
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3.26 Maintenance of Lawns and Plantings. Each Owner shall keep all shrubs, trees,
grass and plantings of every kind on such Owner's Lot cultivated, pruned, and free of trash
and other unsightly material. Subject to Section 3.30 below,trees, shrubs,vines and plants
that die shall be promptly removed. Declarant, the Association and the Architectural
Committee shall have the right at any reasonable time after giving not less than ten days'
notice to Owner to cure any violation of this provision, to enter upon any Lot to replace,
maintain and cultivate shrubs, trees, grass or other plantings located thereon, and to
charge the cost thereof to the Owner of the Lot as provided in Section 5.04(E) below.
3.27 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 back yards on or before
substantial completion of any newly constructed residence on a Lot. Initial landscape
installation must be performed in accordance with the rules and regulations set out by the
Architectural Committee. Additionally, Lot Owners must use either a landscape contractor
approved by the Architectural Committee, or submit the landscape plan to the Architectural
Committee for approval. Owner shall maintain such sod 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 Architectural Committee. On or before substantial
completion of any newly constructed residence on a Lot, the Owner of such Lot shall keep
(and/or plant) and maintain at least two (2) living trees with diameters of at least two (2")
inches in the front yard of the Lot. Owner shall maintain such trees in a healthy and
growing condition. Notwithstanding the above provision, Owners of Lots in Sections 100,
101, 102, 103, 104, 105, 106, and 107 shall keep (and/or plant) and maintain at least one
(1) living trees with diameters of at least two(2") inches in the front yards of their Lots. Any
new trees or replacement trees, planted in the front yard of a Lot to maintain the required
number of trees per Lot shall be evergreen trees, such as live oak, pine, fir, and juniper, or
other evergreen trees. Nothing in this section shall be deemed to prohibit additional trees
that are not evergreen.
3.28 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 The 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, the Architectural
Committee may grant a temporary waiver of the applicable provision, for a period of time
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to be determined by the Architectural Committee in its sole and absolute discretion. 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.
3.29 Mailboxes. No Lot shall have a mailbox on it. All mailboxes for U.S. Mail shall be
located at cluster mailbox locations to be designated by the Architectural Committee.
3.30 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 within
the area defined by a line drawn between two points located forty (40') feet from the point
of intersection of the street right-of-way property lines immediately adjacent to the Lot, as
reasonably located by the Architectural Committee. Measurements shall be by chord, and
not arc. No tree shall be permitted to remain within such areas, unless the foliage is
maintained at sufficient height to prevent obstruction of such sight lines.
3.31 Garage Conversions. No garage or any portion thereof, may be constructed into
enclosed living space unless an alternative garage of at least equal size is constructed and
the Architectural Committee first approves the Plans and Specifications for conversion and
construction in writing.
3.32 Lake and Other Public Areas. On any swimming pool, park, community center,
meeting room, party room, lake or public areas constructed on the Property, the Board may
establish rules and regulations for use or prohibitions against use from time to time.
Swimming, boating and fishing shall not be allowed, except by and in accordance with
regulations established by the Board in its sole and absolute discretion. Notwithstanding
the foregoing, fishing in accordance with regulations established by the Board is allowed
in the private lake located in the Common Area at Victoria and WS Phillips Pkwy. Fishing
is prohibited in any other body of water located in the Common Areas.
3.33 Leasing. Rental of Lots shall be permitted, provided the Owner executes one, and
only one Lease at any given time, and the Lease designates a Primary Tenant and the
Owner registers the name and contact information of the Primary Tenant with the
Association within ten (10) days after commencement of the Lease. If an Owner fails to
designate a Primary Tenant in the Lease or to register the name and contact information
of the Primary Tenant with the Association, it shall be conclusively presumed that the
Primary Tenant is the first tenant name listed in the Lease.
3.34 Compliance with Provisions of CASTLEGATE Il Residential Restrictions. Each
Owner shall comply strictly with the provisions of the CASTLEGATE II Residential
Restrictions as the same may be amended from time to time. Failure to comply with any
of the CASTLEGATE II Residential Restrictions 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
aggravated Owner. Declarant, for itself, its successor or assigns, reserves the right to
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enforce these restrictive covenants, though it may have previously sold and conveyed all
subdivided Lots controlled by these covenants within the Property. The reservation of this
right of enforcement shall not create an obligation of any kind to enforce the same.
3.35 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 3 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 such restrictive covenants,terms or provisions
shall assume all the risks of the validity and enforceability thereof and, by acquiring the Lot,
agrees to hold the Declarant harmless therefrom.
ARTICLE 4
RESIDENTIAL RESTRICTIONS
4.01 Residential Use. Excluding Common Areas or pavilion or clubhouse areas reserved
or owned by the Declarant, or its assigns, all Lots shall be improved and used solely for
residential purposes inclusive of a garage, fencing, and other such 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 a private residence for
members of the Occupant Group. All Lots within the Property shall be used and improved
for single-family residential structures, 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 a greenbelt, open space or drain field purposes. No Improvement may be constructed
upon any Lot that would unreasonably obstruct the view from any other portions of the
Property, and the positioning of all Improvements upon Lots within the Property is hereby
expressly made subject to Architectural Committee review. The Architectural Committee
may, but shall not be required to, prevent or allow the construction of a proposed
Improvement based upon the effect it will have upon the view from any particular Lot. The
Architectural Committee may consider the effect the Improvement will have on the Property
as a whole, it being expressly understood that neither the Architectural Committee nor the
members thereof shall be liable to any Owner in monetary damages or otherwise due to
the construction of any Improvement within the Property or the creating thereby of an
obstruction to the view from such Owner's Lot or Lots.
4.02 Garages and Garage Orientation. No Lot shall have Improvements erected which
do not provide for a minimum of a two-vehicle garage. In Sections 200, 201, 203, 204, 205,
206, 207, and 208 within the Property, garage entrances must be recessed at least five (5)
feet from the front of the house facing any street unless the garage entrance is on the side
of the house.Any other type of garage must be fully or partially screened from visibility from
any street in a manner acceptable to the Architectural Committee in its sole and absolute
discretion. All garage doors must meet the rules and regulations set out by the
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Architectural Committee and must have decorative hardware, windows, or decorative
wooden construction.
4.03 Outbuildings. Every building, inclusive of such structures as a detached garage,
storage building or greenhouse shall be compatible with the dwelling to which it is
appurtenant in terms of its design and material composition or be completely screened from
public view. All such buildings shall be subject to approval by the Architectural Committee.
In no instance shall an outbuilding, other than a detached garage, exceed one (1) story in
height or have total floor area in excess of ten percent (10%) of the floor area of the main
dwelling.
4.04 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 Architectural Committee.
For purposes of this paragraph, height shall be measured from the foundation slab of the
proposed Improvement to the ridgeline of the roof of the proposed Improvement.
4.05 Building Materials; Dwelling Size; Chimney Construction.
(A) All single family dwellings shall be of recognized standard construction quality, and
all exteriors (exclusive of doors, windows and similar openings)shall be constructed as set
out below, of a minimum percentage of masonry or other material specifically approved in
writing by the Architectural Committee. Masonry includes stucco, brick, rock and all other
materials commonly referred to in the College Station, Texas area as masonry. Masonry
does not include concrete hardy-board siding. Unless an exception is granted by the
Architectural Committee, all single family dwellings shall contain no less than the number
of square feet of enclosed living space, exclusive of all porches (open or covered), decks
and garages set out below. Each residence shall include an enclosed attached or
detached garage or other structure sufficient to meet the requirements of Sections 3.22 and
4.02 above.
In each of the Sections to be developed within the Property, subject to amendment at
Declarants sole discretion, the following minimum standards shall apply:
Minimum Masonry Masonry Chimney Minimum Square Footage of
Section Requirement Requirement Residence (heated sq. ft.)
Section 100 85% No, except (B) below 1500
Section 101 85% No, except (B) below 1500
Section 102 85% No, except (B) below 1500
Section 103 85% No, except (B) below 1500
Section 104 85% No, except (B) below 1500
Third Amended and Restated Declaration of Covenants,Conditions and Restrictions of Castlegate 11 Page 15 of 32
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Minimum Masonry Masonry Chimney Minimum Square Footage of
Section Requirement Requirement Residence (heated sq. ft.)
Section 105 85% No, except (B) below 1500
Section 106 85% No, except (B) below 1500
Section 107 85% No, except (B) below 1500
Section 200 90% Yes 2000
Section 201 90% Yes 2000
Section 202 90% Yes 2000
Section 203 90% Yes 2000
Section 204 90% Yes 2000
Section 205 90% Yes 2000
Section 206 90% Yes 2000
Section 207 90% Yes 2000
Section 208 90% Yes 2000
** See also Section 3.24 for certain Lot specific fencing requirements
(B) On Lots in Sections 100 — 107, inclusive, chimneys on dwellings need not be
masonry unless:
i. The rear boundary of the Lot is adjacent to Victoria or W.S. Phillips Parkway
and the chimney is on the rear portion of the dwelling;
ii. The chimney is on the front portion of the dwelling facing the front Lot line;
or
iii. The dwelling is on a corner Lot, and the chimney is on the side of the
dwelling facing the side street.
Notwithstanding any provision herein to the contrary, masonry chimneys shall not be
required if the dwelling has a fireplace vent pipe with a diameter not exceeding six (6")
inches.
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4.06 Construction in Place. The use of prefabricated materials, including antique homes
moved from other locations, shall be allowed only with the prior written approval of the
Architectural Committee.
4.07 Setback 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 subdivision section
which includes such Lot.
ARTICLE 5
CASTLEGATE II OWNERS ASSOCIATION
5.01 Organization. The Declarant has, on October 25, 2011, caused the formation and
incorporation of the Association as a nonprofit corporation created for the purposes,
charged with the duties, and vested with the powers prescribed by law or set forth in its
Articles and Bylaws or in this Declaration. Neither the Articles nor Bylaws shall for any
reason be amended or otherwise changed or interpreted so as to be inconsistent with this
Declaration.
5.02 Membership. Any Person or entity upon becoming an Owner shall automatically
become a Member of the Association. Membership shall be appurtenant to and shall run
with the property interest, which qualifies the Owner thereof for membership, and
membership may not be severed from, or in any way transferred, pledged, mortgaged, or
alienated except together with title to the said property interest.
5.03 Voting Rights. The right to cast votes and the number of votes which may be cast,
for election of directors to the Board and on all other matters to be voted on by the
Members shall be calculated as follows:
(A) The Owner, whether one or more (including Declarant), of each Lot within the
Property shall have one vote for each Lot so owned. In addition, Declarant shall have one
vote for each lot reflected on the preliminary plats of the portions of the Property which
have not been platted.
(B) In addition to the votes to which Declarant is entitled by reason of Subparagraph (A)
of this Section, for every such vote, Declarant shall have three (3) additional votes until
such time as the votes described in Subparagraph (A) of this section, owned by Owners
other than Declarant, total in the aggregate ninety percent (90%) of the total number of
votes outstanding under Subparagraph (A) (the "Transition Date"). Thereafter Declarant
shall only have votes if any, to which it is entitled under Subparagraph (A) of this section.
5.04 Powers and Authority of the Association. The Association shall have the powers of
a Texas nonprofit corporation, subject only to any limitations upon the exercise of its power
as are expressly set forth in this Declaration. Without in any way limiting the generality of
the two preceding sentences, the Association, and the Board acting on behalf of the
Association, shall have the following powers at all times:
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(A) CASTLEGATE II Rules and Bylaws. To make, establish and promulgate, and in its
discretion to amend or repeal and re-enact, such CASTLEGATE II Rules and Bylaws, not
in conflict with this Declaration, as it deems proper to address any and all aspects of its
functions. The Association shall have the authority to establish committees pertaining only
to specific sections of CASTLEGATE II. Any committee, which elects to oversee a
particular section, shall have the power to establish section rules, which shall apply only to
sections over which the committee has oversight. Any such section rules may be more
restrictive than the provisions hereof, but shall not be less restrictive.
(B) Insurance. To obtain and maintain in effect policies of insurance which, in the
opinion of the Board, are reasonably necessary or appropriate to carry out Association
functions.
(C) Records. To keep books and records of the Association's affairs.
(D) Assessments. To levy Assessments as provided in Article 7 below.
(E) Right of Entry and Enforcement. 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 the CASTLEGATE II
Residential Restrictions or for the purpose of erecting, maintaining or repairing any
Improvement to conform to the CASTLEGATE II Residential Restrictions, and the expense
incurred by the Association in connection with the entry upon any Lot and the work
conducted thereon (i) shall be a personal obligation of the Owner of the Lot entered upon,
(ii) shall be a lien upon the Lot entered on and Improvements thereon, and (iii) shall be
enforced in the same manner and to the same extent as provided in Article 7 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 names 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 the CASTLEGATE II Residential Restrictions. The Association is also authorized
to settle claims, enforce liens and take all such action as it may deem necessary or
expedient to enforce the CASTLEGATE II Residential Restrictions; 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.
(F) Legal and Accounting Services. To retain and pay for legal and accounting services
necessary or proper for the operation of the Association.
(G) Delegation to Committees. To set up one or more committees as authorized by the
Texas Non-Profit Corporation Act, as the same is amended from time to time.
(H) Employees. To engage such employees as may be reasonably necessary in the
management of the Association and the performance of its duties.
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5.05 Landscape and Maintenance. The Association shall be authorized to landscape,
maintain and repair easements, rights-of-way,common areas,entryways, sidewalks, paths,
trails, detention ponds, lakes, waterfall pumps, irrigation equipment, water wells, entrance
buildings, and other areas of the Property, as appropriate.
5.06 Common Areas.
(A) Subject to and in accordance with this Declaration, the Association, acting through
the Board, shall have the following duties:
To accept, own, operate and maintain all Common Areas which may be
conveyed or leased to it by Declarant,together with any Improvements of any
kind or purpose located in said areas; and to accept, own, operate and
maintain all other property, real and personal, conveyed or leased to the
Association by Declarant; and to maintain in good repair and condition all
lands, Improvements, and other Association property owned by or leased to
the Association, whether by Declarant or by other Persons.
ii. To pay all real and personal property taxes and other taxes and assessments
levied upon or with respect to any property owned by or leased to the
Association, to the extent that such taxes and assessments are not levied
directly upon individual Members of the Association. The Association shall
have all rights granted by law to contest the legality and the amount of such
taxes and assessments.
iii. To execute mortgages, both construction and permanent,for construction of
Improvements on property owned by or leased to the Association, and to
accept lands in Common Areas, whether or not improved, from Declarant
subject to such mortgages or by assuming such mortgages. Financing may
be effected through conventional mortgages or deeds of trust, the issuance
and sale of development or other bonds, or in any other form or manner
deemed appropriate by the borrower, whether Declarant or the Association.
The mortgage or other security interest given to secure repayment of any
debt may consist of a first,second or other junior lien, as deemed appropriate
by borrower, whether Declarant or the Association, on the Improvements to
be constructed, together with such underlying and surrounding lands as the
borrower deems appropriate. The debt secured by such mortgage or other
security instrument may be retired from and secured by the revenues
generated by dues, use fees, assessment of Members, or otherwise, or any
combination thereof, as may be deemed appropriate by Declarant or the
Association, as the case may be, but subject to the limitations imposed by
this Declaration.
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(B) In addition to, and not in limitation of, the power and authority of the Association as
set forth in Section 5.04 of this Declaration, the Association, acting through the Board, shall
have the power and authority:
To grant and convey portions of Association property, including fee title,
leasehold estates,easements, right-of-way,and/or mortgages,to any person
or entity for the purpose of constructing, erecting, operating or maintaining
the following:
(a) Parks, parkways or other recreational facilities or structures;
(b) Roads, streets, walks, driveways, trails and paths;
(c) Lines, cables, wires, conduits, pipelines or other means of providing
utilities;
(d) Sewers, water systems, storm water drainage systems, sprinkler
systems and pipelines; and/or
(e) Any similar public, quasi-public or private Improvements.
Nothing contained in this subparagraph, however, shall be construed to permit use
or occupancy of any Common Area or Improvement in a way that would violate applicable
use and occupancy restrictions imposed by other provisions of this Declaration, or by any
statute, rule, regulation, ordinance or other law of any governmental entity, including but
not limited to rules and orders of the Texas Water Development Board, Texas Water
Commission, Texas Commission on Environmental Quality ("TCEQ") and any flood plain,
industrial waste or other ordinance of the City of College Station.
ii. To pay for water, sewer, garbage removal, landscaping, gardening and all
other utilities, services and maintenance for the property of the Association,
or within city-owned parks, parkways, entrance ways, or street rights of way
which the Association desires to maintain or pay for, in the best interest of
the Association and the aesthetic appearance of the subdivision as a whole.
iii. To pay for any other services necessary or proper in the performance of
Association functions, and to pay for any other taxes or assessments that the
Association or the Board is required to secure or to pay for, pursuant to
applicable law, the terms of this Declaration, or the Articles or Bylaws of the
Association.
iv. To own and operate any and all types of facilities for both active and passive
recreation.
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v. To construct new Improvements or additions to Association properties,
subject to the approval of the Architectural Committee as required in this
Declaration.
vi. To enter into contracts with Declarant, other property owners associations
with regard to other lands, and other persons, on such terms and provisions
as the Board shall determine, to operate and maintain any of the Common
Areas, to allow use by owners of land subject to the jurisdiction of other
property owners associations, or to provide any service or perform any
function on behalf of Declarant or the Association in connection with the
purposes of the Association, on such terms as the Board may determine,
vii. To acquire and own and to dispose of all manner of real and personal
property, whether by purchase, grant, lease, gift or otherwise.
viii. To borrow funds from banks, private lenders or Declarant, for such amounts
and on such terms as the Board, in its sole discretion, shall deem
appropriate, for the purpose of carrying out the Association's powers,
responsibilities, and obligations set out herein or otherwise permitted by law,
and to secure such loans with assets of the Association as reasonably
necessary to achieve the purposes of the Association. Such loans may be
obtained to meet obligations of the Association when assessment or other
funds are insufficient to meet necessary expenses, or to make capital
improvements within the Common Areas.
5.07 Agreement with City of College Station, State of Texas, and County of Brazos. The
Declarant, as the agent of the Association, or the Association, may enter into one or more
agreements (i) with the City of College Station or State of Texas or Brazos County, with
respect to (1) the landscaping and maintenance of portions of public streets, highways or
rights of way, or(2)the dedication of any drainage basin, park or other common area within
the property for municipal maintenance, or(ii)with the City of College Station with respect
to landscaping and maintenance of portions of utility easements. The Association shall
accept, without further requirement or documentation, said agreement and the
requirements and benefits associated therewith, for any agreement reached by the
Declarant.
5.08 Merger or Other Agreements. The Association may enter into agreements to merge,
consolidate, combine and cooperate with other property owners associations with
jurisdiction over other lands not subject to the Declaration (including, without limitation,
Castlegate Homeowners Association, Inc.). Such agreements shall be on such terms as
the Board shall determine, including, without limitation, agreements to merge the
Association with such other associations; to cooperate in the maintenance of Common
Areas, to allow use of Common Areas by residents of other lands subject to the jurisdiction
of other associations; and to make loans, enter contracts, charge user fees, or enter into
Third Amended and Restated Declaration of Covenants, Conditions and Restrictions of Castlegate 11 Page 21 of 32
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leases with other associations providing for use or improvement of Common Areas; on
such terms as the Board in its sole discretion may determine.
5.09 Indemnification. The Association shall indemnify any director, officer, or member
of a committee duly appointed pursuant to the Articles or Bylaws who by reason of the fact
that such person is or was a director, officer or member of such a committee of the
Association was, is, or is threatened to be made, a named defendant or respondent in (i)
any threatened, pending, or completed action, suit or proceeding, whether civil, criminal,
administrative, arbitrative, or investigative, (ii) any appeal in such an action, suit, or
proceeding, and (iii) any inquiry or investigation that could lead to such an action, suit, or
proceeding (hereinafter a "Proceeding"), and against all judgments, penalties (including
excise and similar taxes), fines, settlements, and reasonable expenses actually incurred
by the person in connection with any such Proceeding to the fullest extent permitted by the
Texas Non-Profit Corporation Act, as amended and in effect from time to time. Such
authorization of indemnification shall be deemed to be mandatory and deemed to constitute
authorization of indemnification and advancement of expenses to the fullest extent
permitted by the Texas Non-Profit Corporation Act, as amended and in effect from time to
time.
ARTICLE 6
ARCHITECTURAL COMMITTEE
6.01 Membership of Architectural Committee. The Architectural Committee 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 Voting
Members of the Architectural Committee: Wallace Phillips, III, Candace Phillips, and
Wallace Phillips, IV.
6.02 Action by Architectural Committee. Items presented to the Architectural Committee
shall be decided by a majority vote of the Voting Members.
6.03 Advisory Members. The Voting Members may from time to time designate Advisory
Members.
6.04 Term. Each member of the Architectural Committee 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.
6.05 Declarant's Rights of Appointment. Until the Transition Date as defined in Section
5.03(B), Declarant, its successors or assigns shall have the right to appoint and remove all
Voting Members of the Architectural Committee, 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. Whenever the Transition Date occurs, thereafter,the Board shall have the right
Third Amended and Restated Declaration of Covenants,Conditions and Restrictions of Castlegate II Page 22 of 32
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ul 1.8'8 2i:9 OR 1.1M 1.i3
to appoint all Voting Members. At such time as the Board gains the right to appoint and
remove Voting Members of the Architectural Committee, 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
6.06 Adoption of Rules. The Architectural Committee 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 a building code, a fire code, a
housing code, and other similar codes.
6.07 Review of Proposed Construction. Whenever in this Declaration the approval of the
Architectural Committee is required, the Architectural Committee shall have the right to
consider all of the Plans and Specifications for the Improvement or proposal in question
and all other facts that, in its sole and absolute discretion, are relevant. Except as
otherwise specifically provided herein, prior to the commencement of any construction of
any Improvement on the Property or any portion thereof, the Plans and Specifications
therefore shall be submitted to the Architectural Committee, and construction thereof may
not commence unless and until the Architectural Committee has approved such Plans and
Specifications. Until receipt by the Architectural Committee of any information or document
deemed necessary by the Architectural Committee, it may postpone review of any Plans
and Specifications submitted for approval. Upon receipt of all necessary information, the
Architectural Committee 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 Architectural Committee 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 Architectural Committee 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 Architectural Committee 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 Architectural Committee
shall have the authority to disapprove any proposed Improvement based upon the
restrictions set forth in the preceding sentence and the decision of the Architectural
Committee shall be final and binding so long as it is made in good faith. The Architectural
Committee 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.
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6.08 Actions of the Architectural Committee. The Architectural Committee 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
Architectural Committee. In the absence of such designation, the vote of a majority of all
the members of the Architectural Committee taken without a meeting shall constitute an act
of the Architectural Committee.
6.09 No Waiver of Future Approvals. The approval or consent of the Architectural
Committee 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 Architectural Committee,
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.
6.10 Work in Progress. The Architectural Committee may at its option inspect all work
in progress to insure compliance with approved Plans and Specifications.
6.11 No Liability for Architectural Committee Members. Neither the Architectural
Committee 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 Architectural Committee's duties under this
Declaration unless due to the willful misconduct or bad faith of the Architectural Committee
or its members, as the case may be. Neither the Architectural Committee 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.
6.12 Address. Plans and Specifications shall be submitted to the Architectural Committee
in care of Wallace Phillips, IV, 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.
6.13 Failure to Act. In the event the Architectural Committee 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 Architectural Committee in connection with such submission, approval
shall be assumed.
6.14 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 Architectural Committee in a written instrument to be duly
acknowledged, if and when such a variance shall ever be granted.
Third Amended and Restated Declaration of Covenants, Conditions and Restrictions of Castlegate 11 Page 24 of 32
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r,I1,`;`i../1:19 C)1t 11.9'.1.`3 235
6.15 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.
6.16 Relationship with Association. The Architectural Committee 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 Architectural Committee 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 Architectural Committee, and (ii) the Board shall by unanimous resolution, duly
recorded in the records of the Association, make the Architectural Committee a committee
of the Board in accordance with the Texas Non-Profit Corporation Act.
ARTICLE 7
FUNDS AND ASSESSMENTS
7.01 Assessments.
(A) The Association may from time to time levy Assessments against each Lot whether
or not improved. The level of Assessments shall be equal and uniform between all Lots,
provided, however, that no Assessments hereunder shall be levied against Declarant.
(B) Where the obligation to pay an Assessment first arises after the commencement of
the year or other period for which the Assessment was levied, the Assessment shall be
prorated as of the date when said obligation first arose in proportion to the amount of the
Assessment year or other period remaining after said date.
(C) Each unpaid Assessment together with such interest thereon and costs of collection
thereof as hereinafter provided, shall be the personal obligation of the owner of the Lot
against which the Assessment falls due, and shall become a lien against each such Lot and
all Improvements hereon. The Association may enforce payment of such Assessments in
accordance with the provisions of this Article.
7.02 Maintenance Fund. The Board shall establish a maintenance fund into which shall
be deposited all monies paid to the Association and from which disbursements shall be
made in performing the functions of the Association under this Declaration. The funds of
the Association must be used solely for purposes authorized by this Declaration, as it may
from time to time be amended.
7.03 Regular Annual Assessments. Prior to the beginning of each fiscal year, the Board
shall estimate the expenses to be incurred by the Association during such year in
performing its functions under the CASTLEGATE II Residential Restrictions, including but
not limited to the cost of all entry ways, landscaping, greenbelts, common areas, median
strip, and right-of-way maintenance, the cost of enforcing the CASTLEGATE II Residential
Restrictions, and a reasonable provision for contingencies and appropriate replacement
Third Amended and Restated Declaration of Covenants, Conditions and Restrictions of Castle gate II Page 25 of 32
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iii1.t,$209 OR 1.1.915 2 .6
reserves, less any expected income and any surplus from the prior year's funds.
Assessments sufficient to pay such estimated note expenses shall then be levied as herein
provided, and the level of Assessments set by the Board shall be final and binding so long
as it is made in good faith. If the sums collected prove inadequate for any reason, including
nonpayment of any individual Assessment, the Association may at any time, and from time
to time levy further Assessments in the same manner as aforesaid. All such regular
Assessments shall be due and payable to the Association at the beginning of the fiscal year
or during the fiscal year in equal monthly installments on or before the first day of each
month, or in such other manner as the Board may designate in its sole and absolute
discretion.
7.04 Special Assessments. In addition to the regular annual Assessments provided for
above, the Board may levy special Assessments whenever in the Board's opinion such
special Assessments are necessary to enable the Board to carry out the mandatory
functions of the Association under the CASTLEGATE II Residential Restrictions. The
amount and due date of any special Assessments shall be at the reasonable discretion of
the Board.
7.05 Owner's Personal Obligation for Payment of Assessments. The regular and special
Assessments provided for herein shall be the personal and individual debt of the owner of
the Lot covered by such assessments. Except as otherwise provided in Section 7.01(A)
hereof, no Owner may exempt himself from liability for such Assessments. In the event of
default in the payment of any such Assessment, the owner of the Lot shall be obligated to
pay interest at the highest rate allowed by applicable usury laws then in effect on the
amount of the Assessment from due date thereof(or if there is no such highest rate, then
at the rate of 1-1/2% per month), together with all costs and expenses of collection,
including reasonable attorney's fees.
7.06 Assessment Lien and Foreclosure. All sums assessed in the manner provided in
this Article but not paid by the Owner, shall, together with interest as provided in Section
7.05 hereof and the cost of collection, including attorney's fees as herein provided,
thereupon become a continuing lien and charge on the Lot covered by such Assessment,
which shall bind such Lot in the hands of the Owner, and such Owner's heirs, devisees,
personal representatives, successors or assigns. The aforesaid lien shall be superior to
all other liens and charges against the said Lot, except only for tax liens and all sums
unpaid on a first mortgage lien or first deed of trust filed of record, securing in either
instance sums borrowed for the acquisition or improvement of the Lot in question. The
Association shall have the power to subordinate the aforesaid Assessment lien to any other
lien. Such power shall be entirely discretionary with the Board and an officer of the
Association, duly authorized by the Board, shall effectuate such subordination. To
evidence an Assessment lien, the Association may prepare a written notice of Assessment
lien setting forth the amount of the unpaid indebtedness, the name of the Owner of the Lot
covered by such lien, and a description of the Lot. Such notice shall be signed by an officer
of the Association, duly authorized by the Board, and shall be recorded in the office of the
County Clerk of Brazos County,Texas. Such lien for payment of Assessments shall attach
Third Amended and Restated Declaration of Covenants,Conditions and Restrictions of Castlegate 11 Page 26 of 32
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with the priority above set forth from the date such payment becomes delinquent, and may
be enforced subsequent to the recording of a notice of Assessment lien as provided above,
by the foreclosure of the defaulting Owner's Lot by the Association in like manner as a
mortgage on real property, or the Association may institute suit against the Owner
personally obligated to pay the Assessment and/or for foreclosure of the aforesaid lien
judicially. In any foreclosure proceeding, whether judicial or not judicial, the Owner shall
be required to pay the costs, expenses, and reasonable attorney's fees incurred by the
Association. The Association shall have the power to bid on the property at foreclosure or
other legal sale and to acquire, hold, lease, mortgage, convey or otherwise deal with the
same. Upon the written request of any Mortgagee, the Association shall report to said
Mortgagee the status of any Assessments relating to the Mortgagee's mortgage and
remaining unpaid for longer than thirty (30) days after due.
ARTICLE 8
EASEMENTS
8.01 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
joiner of any owner or other person or entity, to grant, dedicate, reserve or otherwise
create, at any time or from time to time, common areas, 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 feet (7-1/2') on
each side of such Lot line.
8.02 Installation and Maintenance. Easements for installation and maintenance of utilities
and drainage facilities are reserved as shown on the recorded plat. 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 or flow of water through
drainage channels in such easements. The easement area of each 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, trees, lawns or flowers or other property of the
Owners situated on the land covered by said easements.
Third Amended and Restated Declaration of Covenants,Conditions and Restrictions of Castlegate!I Page 27 of 32
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sjl. . : ;+t'9 OR 11915 23"
8.03 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.
8.04 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
Architectural Committee thereon require. Each Owner further covenants not to disturb any
trees or other vegetation within the drainage easements as defined in this Declaration and
shown on the Plat. There shall be no construction of Improvements, temporary or
permanent, in any drainage easement, except as may be approved in writing by the
Architectural Committee.
8.05 Blanket Easement. An easement is hereby retained in favor of the Association over
all Lots and the Common Areas for the purpose of enforcing the CASTLEGATE II
Residential Restrictions in accordance with Section 5.04(E)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 Areas to effectuate the foregoing
purposes shall not be deemed as trespass.
ARTICLE 9
MISCELLANEOUS
9.01 Term. This Declaration, including all of the covenants, conditions, and restrictions
hereof, shall run until December 31, 2050, unless amended as herein provided. After
December 31, 2050, this Declaration, including all such covenants, conditions, and
restrictions shall be automatically extended for successive periods of ten (10) years each,
unless amended as provided in Section 9.03 below or terminated by a written instrument
executed by the Owners of at least three-fourths (3/4) of the Lots within the Property then
subject to this Declaration, and filed of record in the Official Records of Brazos County,
Texas.
9.02 Dissolution. Upon termination of this Declaration in accordance with Section 9.01
above, the Association shall be dissolved. In the event of any such dissolution of the
Association, other than incident to a merger or consolidation, the assets of the Association
shall be dedicated to any appropriate public agency to be used for purposes similar to
those of the Association with respect to the Common Areas. In the event that such
dedication is refused acceptance, such assets shall be granted, conveyed and assigned
to any nonprofit corporation, association, trust or other organization to be devoted to such
similar purposes.
Third Amended and Restated Declaration of Covenants, Conditions and Restrictions of Castlegate!! Page 28 of 32
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i3 t I n21),/t, f1R 1191.5 239
9.03 Amendment.
(A) By Declarant. This Declaration may be amended by the Declarant, acting alone,
until November 1, 2018, and thereafter for so long as Declarant holds a majority of the
votes of the Association. 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, if amended after
November 1, 2018, an instrument executed and acknowledged by the Secretary of the
Association, certifying that the Declarant had the requisite number of votes.
(B) By Owners. In addition to the method in Section 9.03 (A), after November 1, 2018,
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 5.03 hereof.
9.04 Notices. Any notice permitted or required by this Declaration shall be in writing and
may be delivered either personally or by mail. If delivery is made by mail it shall be
deemed to have been delivered on the third (3rd)day(other than a Sunday or legal holiday)
after a copy of the same has been deposited in the United States mail, postage prepaid,
addressed to the person at the address given by such person to the Association for the
purpose of service of notices. Such address may be changed from time to time by notice
in writing given by such person to the Association.
9.05 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. This Declaration shall be construed,governed and enforced under
the laws of the State of Texas.
9.06 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 Committee. Without in any way
limiting the generality of the preceding sentence, this Declaration shall not prevent or limit
the right of Declarant to (i) excavate and grade, (ii) construct and alter drainage patterns
and facilities, (iii) construct any and all other types of Improvements, sales and leasing
offices, and similar facilities, and (iv) post signs incidental to construction, sales, and
leasing anywhere within the Property,
9.07 Assignment of 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.
Third Amended and Restated Declaration of Covenants,Conditions and Restrictions of Castlegate 11 Page 29 of 32
Doc DI; Vol PS
ii .i.88209 OR 11.9i.`5 24D
9,08 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 the CASTLEGATE II Residential Restrictions. 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 the CASTLEGATE II Residential
Restrictions 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 this judgment, 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.
9.09 Construction.
(A) Restrictions Severable. The provisions of the CASTLEGATE II Residential
Restrictions 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) Sole and Absolute Discretion. Notwithstanding anything herein to the contrary,
whenever a party to this Declaration is entitled to exercise its"sole and absolute discretion",
such discretion may be exercised by that party for any reason or for no reason, whether
such discretion is arbitrary, uncontrolled or unreasonable. Any parties'exercise of its "sole
and absolute discretion" shall be final and shall not be subject to appeal or be subject to
adjudication by a court of law, arbitration, mediation, or otherwise.
(D) 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.
(E) 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.
(F) Choice of Law. This Declaration shall be construed in accordance with the laws of
the State of Texas.
Third Amended and Restated Declaration of Covenants,Conditions and Restrictions of Castlegate 11 Page 30 of 32
Dec 13k Vo 1 P.
)1.188209 OR 11915 241
IN WITNESS WHEREOF, Declarant has executed this Declaration to be effective
as of the 4`1 day of November, 2011.
DECLARANT:
DOS DORADOS DEVELOPMENT, L.L.C. d.b.a.
3-D DEVELOPMENT, a Texas limited liability
company
By:
Wallace Phillips IV, Manag, r
STATE OF TEXAS
COUNTY OF BRAZOS
This instrument was acknowledged before me on the /2--LO day of140:7K
2014, by Wallace Phillips IV, Manager of DOS DORADOS DEVELOPMENT, L.L.C. d.b.a.
3-D DEVELOPMENT, a Texas limited liability company, on behalf of said company, in the
capacity therein stated.
P)7114..}ka. klia4V- X/.
=o,�!!P BRENNA WILKINS NOTARY PUBLIC, State of Texas
* �* Notary Public,State of Texas
RC1 My Commission Expires
�'fe si May12,2016
Third Amended and Restated Declaration of Covenants,Conditions and Restrictions of Castlegate 11 Page 31 of 32
Dol:: Pt-; Vol P9
0115ti;209 OR II915 242
EXHIBIT "A"
All that certain property described as Section 100, Castlegate II, recorded in Volume
114456, Page 161, Official Records, Brazos County, Texas; Section 200, Castlegate II,
recorded in Volume 10392, Page 260, and partial replats thereof recorded in Volume
10511, Page 39, and Volume 10906, Page 267, Official Records, Brazos county, Texas;
Section 201, Castlegate II, recorded in Volume 10906, Page 268, Official Records, Brazos
County, Texas; Section 202, Castlegate II, recorded in Volume 11061, Page 31, Official
Records, Brazos County, Texas; and Section 203, Castlegate II, recorded in Volume
11898, Page 32, Official Records, Brazos County, Texas, and Section 102 and Section
205,two additional tracts not yet platted, to be effective on the respective dates when plats
of such Sections 102 and 205 are filed of record in the County Clerk's Office, Brazos
County, Texas, but not otherwise.
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In to
RECORDING PAID FOR BY: HLEP 110616 PREPARED IN THE LAW OFFICE OF:
AFTER RECORDING RETURN TO: HOELSCHER,LIPSEY,ELMORE&POOLE, P.C.
1021 University Drive East
CULLY LIPSEY College Station,Texas 77840
Third Amended and Restated Declaration of Covenants,Conditions and Restrictions of Castlegate II Page 32 of 32
Castlegate II Architectural Control Committee
4490 Castlegate Drive
College Station, Texas 77645
(979)690-7250
June 1, 2014
In accordance with the Declaration of Covenants, Conditions and Restrictions of
Castlegate II Article 3.04, Dos Dorado Development LLC (Developer) grants approval
for Wallace Phillips III to further subdivide Lot 12R Block 7 Section 200.
Yours T uly,
/ / /
Dusty Phillips