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HomeMy WebLinkAboutLegal Documents. ~ ', .~ ~ DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS BRANDON HEIGHTS, PHASE TWO ~j `~ ~ :'.~-~ ~ 3 7HE STATE OF TEXAS § ~ " § (~,.~ COUNTY OF BRAZOS § ~~,` f a:~r„r. , _,.,s a,, ^F~~TY WHEREAS Myrad Real Estate, Inc., a Texas Corporation acting in the capacity of Trustee, hereinafter called the Declarant, is the owner of that real property in Brazos County, Texas, which is more fully described on Exhibit A, attached hereto and incorporated herein by reference (the "Property")+; and WHEREAS, the Declarant desires to convey the Property subject to certain protective covenants, conditions, restrictions, liens and charges as hereinafter set forth; and WHEREAS, Declarant desires to create improvement, development and sale of the and future owners of the Property: and carry out a uniform plan for the Property for the benefit of the present 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 protecting the value and desirability of, and which shall run with, the Property and which shall be binding on all parties having any ri gh~, title, or interest i n 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 I DEFINITIONS Unless the context otherwise specifies or requires, the following words and phrases when used in this Declaration shall have the meanings hereinafter speci- fied: 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. mean the rules and regulations adopted same may be amended from time to time. "Architectural Committee Rules" shall by the Architectural Committee, as the 1.03 Articles. "Articles" sha17 mean the Articles of Incorporation of Brandon Heights, Phase•Two Homeowners Association, Inc., as that instrument may 1 158700~:OC~ OBJ/d~ O5S 991-A be amended from time to time, which instrument is or shall be 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 this Declaration. 1.05 Association. "Association" shall mean Brandon Heights, Phase Two Homeowners Association, Inc., a Texas non-profit corporation. 1:06 Board. "Board" shall mean the Board of Directors of the Association. Board members may, but need not, be Members of the Association. 1.07 Brandon Heights, Phase Two Residential Restrictions. "Brandon Heights, Phase Two Residential Restrictions" shall mean this Declaration, as the same may- be amended from time to time, together with the Brandon Heights, Phase Two Rules, Architectural Committee Rules and the Articles and Bylaws of the Association as the same are in effect from time to time. 1.08 Brandon Heights, Phase Two Rules. "Brandon Heights, Phase Two Rules" shall mean the rules and regulations adopted by the Board as the same may be amended from time to time. 1.09 Brandon's Cove. "Brandon's Cove" shall mean a portion of Brandon Heights, Phase Two separately marketed by such name, and generally distinguished from the remainder of Brandon Heights, Phase Two by Lot size, tainimum dwelling size, and building setback requirements, as indicated on the attached Exhibit A. Brandon's Cove shall be subject to the Brandon Heights, Phase Two Residential Restrictions to the same extent as the remainder of the Property, which shall be marketed under the name Brandon Heights, Phase Two; provided however, that Brandon's Cove shall be subject to distinct setback and minimum dwelling size requirements, as set forth in Sections 4.04 and 4.06 hereof. 1.10 Bylaws. "Bylaws" shall mean the Bylaws of the Association as adopted by the Board, and as from time to time amended. 1.11 Common Areas. "Common Areas" shall mean any land conveyed, leased, dedicated or assigned by Declarant, or by a third party with the Association's consent, to the Association for maintenance and operation, including, but not limited to, easements, roads, roadways, rights-of-way, parkways, median strips, sidewalks, parks, trails, paths, ponds, creeks and lakes within the Property. 1.12 Declarant. "Declarant" shall mean Myrad Real Estate, Inc. duly authorized representatives or their respective successors provided that any assignment of the rights of Myrad Real Estate, as Declarant must be expressly set forth in writing and the mere a portion of the Property without written assignment of the right shall not be sufficient to constitute an assignment of the rights hereunder. Trustee, its or assigns; Inc., Trustee conveyance of s of Declarant of Declarant 2 158700~:g~~ DBJ/d~ 991-A 1.13 Declaration. "Declaration" shall mean this instrument as it may be amended from time to time. 1.14 Improvement.'"Improvement" shall mean every structure and all appurte- nances 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, poles, 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 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, to- gether with all Improvements located thereon. 1.16 Member. "Member" or "Members" shall mean any person(s), entity, or entities holding membership rights in the Association. 1.17 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. 1.18 Mortgagee. "Mortgagee" or "Mortgagees" shall mean the holder or holders of any Mortgage or Mortgages. 1.19 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. 1.20 Person. "Person" or "Persons" shall mean any individual, individuals, entity or entities having the legal right to hold title to real property. 1.21 Plans and Specifications. "Plans and Specifications" shall mean any and -- all documents designed t.o 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, foun- dation 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. ARTICLE II DEVELOPMENT OF THE PROPERTY Z.O1 Development by Declarant. Declarant may divide or subdivide the Prop- erty into several areas, develop some of the Property, and, at Oeclarant's op- tion, 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 3 15870Q~:8~?~ DBJ/d~ 991-A 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 this 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. ARTICLE III 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 con- structed upon any of the Property without the prior written approval of the Ar- chitectural Committee. 3.02 Antennae and Signals. No antenna or other device for the transmission or reception of television signals, radio signals, or any other form of electro- magnetic radiation shall be erected, used, or maintained on any Lot, whether at- tached to a building or structure or otherwise, without the prior written ap- proval of the Architectural Committee, except that the Declarant or the Associa- tion may erect a common television antenna, cable system or similar reception device, provided same shall not rise more than five feet above the roofline of 4 158700j:8c~ DBJ/d~ OS 991-A any structure. 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. 3.03 Insurance Rates. Nothing shall be done or kept on the Property 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. 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 fur- ther 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 shall be displayed to the public view on the Property without the prior written approval of the Architectural Committee, except for signs which are part of Declarant's overall marketing plan for the Property. The Architectural Committee may permit signs of any type advertising a portion of the Property for sal a or 1 ease or i t may set standards for the same. 3.06 Rubbish and Debris. No rubbish or debris of any kind shall be placed 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 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. 3.07 Noise. No noise or other nuisance shall be permitted to exist or op- erate 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 neigh- boring 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 of 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 3 pC2 5 DB$ d~b:052991-A 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 or principal and secondary structures shall be wood shingle, shakes the or quality composition shingle. The Architectural Committee 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. 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. 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 Proper- ty. 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, i ncl udi ng tanks for storage of fuel , water, o i 1 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 August, 1990; 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. 3.17 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 property drainage and approved by the Architectural Committee. 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, 6 158700j.Q~z OBJ/d~ V 991-A 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. 3.19 Mining and Drilling. No vil 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. 3.20 Machinery and Eguiament. 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. 3.21 Temaorary Structures. No tent, shack or other temporary building, improvement or structure shall be placed upon the Property 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 the Property 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. 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. 3.23 Mobile Homes. Travel Trailers. No mobile homes shall be parked or placed on any Lot at any time, and no travel trailers shall be parked on or near any Lot so as to be visible from adjoining property or public or private thor- oughfares for more than forty-eight (48) hours. 3.24 Fences. (A) Except as provided in Section 3.24(B) below, 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 architectural design of the main structure, and which are not to be built or ~ss~oo~_S~?~ DBJ/d~ 991-A 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 con- cept design or material and the resulting decorative wall and/or retaining wall will not detract from the general appearance of the neighborhood. No chain-link fences may be built or maintained on any Lot. (B) Subject only to Section 3.32 below, all Owners shall be required to build a six (6') foot privacy fence, made of standard grade cedar and of a design approved by the Architectural Committee, within one (1) year of completion of the home on such Owner's Lot. Completion of the home shall be defined as the date of issuance of the Certificate of Occupancy for such home. Any fence built in. accordance with the terms of this Section shall thereafter be maintained by the Owner of the Lot upon which it is situated. 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 the Property. No do- mestic 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 do- mestic household pet shall be,a7lowed 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 con- structed in accordance with Plans and Specifications approved by the Architec- tural 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 three (3) 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. 3.26 Sports Equipment. No basketball goals or backboards or any other sim- ilar sports equipment of either a permanent or temporary nature shall be placed within thirty feet of the front property line of any lot without the prior writ- ten consent of the Architectural Committee. 3.27 Maintenance of Lawns and PlantinQS. 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 3.29 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 rea- sonable time after not less than ten days notice to Owner and an opportunity 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 8 15870p~:8~7~ DBJ/d~ 991-A charge the cost thereof to the Owner of the Lot as provided in Section 5.04(E) below. 3.28 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: (A) Wherever possible, save and incorporate into the Plans and Specifications existing trees with trunk diameters of four (4) or more inches. To insure the viability of these trees, soil compacting, trenching and/or cut and fill shall be avoided, to the greatest extent possible, in the area defined by the trees' dripline. (B) Maintain or enhance, wherever possible, existing vegetation within drainage easements to prevent erosion, siltation, or impediment of runoff augmented by development. (C) Install live, growing sod covering the front and side yards, within thirty (30) days of occupancy of any residence constructed on a Lot, and an equivalent substitute which achieves as satisfactory a ground cover in approximately the same period of time in the backyard, all such ground cover to be indigenous to the area, and maintained in a healthy and growing condition. (D) Upon the initial construction of a residence on any Lot, include at an expense of not less than S500, which sum shall be held in escrow by Declarant upon the sale of such Lot, growing and healthy shrubs, bushes, vegetation and trees on the Lot, including without limitation trees having an aggregate caliper of not less than four inches, so as to • achieve an aesthetically pleasing landscaped effect. 3.29 Clearing of Trees. Prior approval from the Architectural Committee -- shall be required to cut down, clear, or kill any trees with trunk diameters of four (4) or more inches. 3.30 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 construc- tion 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 Im- provements, 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 9 158700~_g~~991-A OBJ/d~ granted by the Architectural Committee, 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. 3.31 Mailbox. Mailboxes shall be erected and maintained on each Lot upon which a residence is situated, and shall be fixed on masonry stanchions (columns), approved by the Architectural Committee. No metal post stands shall be permitted. Each mailbox shall be new when installed, constructed of durable steel or aluminum, and of a size and shape conforming to postal authority standards for single family residential postal depositories. .Mailboxes shall be located on the curb in accordance with postal regulations. 3.32 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. Measurement shall be by chord, not by 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. 3.33 Comaliance with rrovisions or tsranuon ne~ynw, fltc~C tnv t\c~luc~~~.~^a. Restrictions. Each Owner shall comply strictly with the provisions of the Brandon Heights, Phase Two Residential Restrictions as the same may be amended from time to time. Failure to comply with any of the Brandon Heights, Phase Two 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 aggrieved Owner. Declarant, for itself, its successors or assigns, reserves the right to 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. 3.34 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 III or e--lsewhere 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 covenants, terms or provisions shall assume all risks of the validity and enforceability thereof and, by acquiring the Lot, agrees to hold Declarant harmless therefrom. ARTICLE IV RESIDENTIAL RESTRICTIONS 4.01 Residential Use. All Lots shall be improved and used solely for resi- dential purposes inclusive of a garage, fencing and such other Improvements as 10 15870Q~:g~~ DBJ/d~ 991-A 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, guests and tenants. All Lots within the Property shall be used and improved solely for single family residential purposes, with no more than one (1) attached 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. No Im- provement may be constructed upon any~lot that would unreasonably obstruct the view from 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 Outbuildings. Every outbuilding, 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 composi- tion. All such buildings shall be subject to approval by the Architectural Com- mittee. In no instance shall an outbuilding, other than a detached garage, ex- ceed one (1) story in height or have total floor area in excess of ten percent (10~) of the floor area of the main dwelling. 4.03 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 mea- sured from the foundation slab of the proposed Improvement to the ridge line of the roof of the proposed Improvement. 4.04 Building Materials; Dwelling Size. All single family dwellings shall be of recognized standard construction quality, and all exteriors (exclusive of doors, windows and similar openings) shall be constructed of at least seventy- five percent (759e) masonry or other material specifically approved in writing by the Architectural Committee. Masonry includes ceramic tile; brick, rock and all other materials commonly referred to in the College Station, Texas area as masonry. Unless an exception is granted by the Architectural Committee, all single family dwel 1 i ngs shal 1 contai n (1) i n the case of homes marketed under the name Brandon Heights, Phase Two, not less than twenty-two hundred {2200) square feet of enclosed living space, exclusive of porches (open or covered), decks, garages and carports, and (2) in the case of homes marketed under the name Brandon's Cove, not less than three thousand (3000) square feet of enclosed living space, exclusive of porches (open or covered), decks, garages and carports. Each residence shall include an enclosed attached or detached garage or other structure sufficient to meet the requirements of Section 3.22 above. 15870Qj_8~Z~991-A OBJ/d~ 11 4.05 Construction in Place. All dwellings constructed on the Property shall be built in place on the Lot within two (2) years of the initial purchase of such Lot from the Declarant. 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. 4.06 Set-back Requirements. No building shall be located or erected nearer to any Lot line bordering a street right-of-way than the building line shown on the recorded plat of the Property subdivision section which includes such Lot, except that with respect to homes marketed under the name Brandon's Cove, no building shall be located or erected nearer than thirty (30') feet to any Lot line bordering a street right-of-way. No building shall be located nearer than seven and one-half (7 1/2) feet to any interior side Lot lines. No building shall be located nearer than twenty (20) feet from any rear Lot line. Notwithstanding the foregoing, in respect to cul-de-sac Lots or Lots having it-~ regular shapes, such building must be situated at a mean distance of at least seven and one-half (7 1/2) feet from each side property line of such Lot, but in no event closer at any one point than seven and one-half (7 1/2) feet from such side property lines. Furthermore, on such cul-de-sac Lots or Lots having irreg- ular shapes, such structure may be constructed as near as twenty-five (25) feet from the rear of the Lot; provided further, however, that detached garages may be as near as twenty (20) feet from the rear of the Lot and any permitted tempo- rary structures may be situated as near as seven and one-half (7 1/2) feet from the rear of any such Lot. 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. ARTICLE V BRANDON HEIGHTS, PHASE TWO OWNERS ASSOCIATION 5.01 Organization. The Declarant has on May 23, 1991 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 auto- matically become a Member of the Association. Membership shall be appurtenant to and shal 1 run with the property i nterest 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 the 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: 12 ~ss~oo~:8~~ DBJ/d) 991-A (A) The Owner, whether one or more (including Declarant) of each Lot within the Property shall have one vote for each Lot so owned. (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 sixty-six and two-thirds percent (66-2/3%) of the total number of votes outstanding under Subparagraph A. Thereafter Declarant shall have only the 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 such power as are expressly set forth in this Declaration. It shall_ further have the power to do and perform any and all acts which may be necessary or proper for or incidental to the exercise of any of the express powers granted to it by the laws of Texas or. by 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 and author- ity at all times: (A) Brandon Heights, Phase Two Rules and Bvlaws. To make, establish and promulgate, and in its discretion to amend or repeal and re-enact, such Brandon Heights, Phase Two Rules and Bylaws, not in conflict with this Declaration, as it deems proper to address any and all aspects of its functions. (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 VII below. (E) Right of Entry and Enforcement. To enter at any time in an emergency, or in anon-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 Brandon Heights, Phase Two Residential Restrictions or for the purpose of erecting, maintaining or repairing any Improvement to conform to the Brandon Heights, Phase Two Residential Restrictions, 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 alien upon the Lot entered upon and Improvements thereon, and shall be enforced in the same manner and to the same extent as provided in Article VII 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 there- to, to commence and maintain actions and suits to enforce, by mandatory 13 15870pi~_8~7~991-A OBJ/d~ injunction or otherwise, or to restrain and enjoin, any breach or threatened breach of the Brandon Heights, Phase Two 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 Brandon Heights, Phase Two Residential Restric- tions; 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 ac- counting services necessary or proper for the operation of the Associa- tion. (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) Emaloyees. To engage such employees as may be reasonably necessary in the management of the Association and the performance of its duties. 5.05 Roadway Maintenance. The Association shall be required to maintain all streets and roadways, including median strips, within the Property that have been completed but not accepted for maintenance by the appropriate governmental entity. In addition, the Association shall be authorized to landscape, maintain and repair easements, rights-of-way, sidewalks, paths, trails, detention ponds, lakes, and other areas of the Property, as appropriate. 5.06 Street Lighting. The Association shall be required to pay for elec- trical service and for all other costs and expenses necessary to operate and maintain any street lights within the Property, until such time as such obliga- tion is assumed by the appropriate governmental entity. 5.07 Common Areas. (A) Subject to and in accordance with this Declaration, the Association, acting through the Board, shall have the following duties: (1) To accept, own, operate and maintain all Common Areas which may be conveyed or leased to it by Declarant, together with any Improve- ments 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. (2) 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 14 ~sa~oo~:$~~Z DBJ/d) 991-A to contest the legality and the amount of such taxes and assess- ments. (3) To execute mortgages, both construction and permanent, for con- struction 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 appro- priate by borrower, whether Declarant or the Association, on the Improvement 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. (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 au- thority: (1) To grant and convey portions of Association property,~including fee title, leasehold estates, easements, rights-of-way, and/or mortgag- es, to any person or entity for the purpose of constructing, erecting,.operating or maintaining the following: '- (a) Parks, parkways or other recreational facilities or struc- tures; (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, 15 158700~:s~7~991-A DBJ/d~ including but not 1 i mi ted to rules and orders of the Texas Water Development Board, Texas Water Commission, and any flood plain, in- dustrial waste or other ordinance of the City of College Station. (2) To pay for water, sewer, garbage removal, landscaping, gardening and all other utilities, services and maintenance for the property of the Association. (3) 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. (4) To own and operate any and all types of facilities for both active and passive recreation. (5) To construct new Improvements ties, subject to the approval required in this Declaration. or additions to Association proper- of the Architectural Committee as (6) To enter into contracts with Declarant and other .persons, on such terms and provisions as the Board shall determine, to operate and maintain any of the Common Areas or to provide any service or perform any function on behalf of Declarant or the Association in connection with the purposes of the Association. (7) To acquire and own and to dispose of all-manner of real and personal property, whether by purchase, grant, lease, gift or~otherwise. 5.08 Agreements with City of College Station. The Association may enter into one or more agreements with the City of College Station with respect to (1) the landscaping and maintenance of portions of the northeastern shoulder of the Welsh Avenue right of way, or (2) the dedication of any drainage basin, park or other common area within the Property for municipal maintenance. 5.09 Indemnification. The Association shall indemnify any director, officer, or member of a committee duly appointed pursuant to the Articles or Bylaws who was, is, or is threatened to be made a named defendant or respondent in any threatened, pending, or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative, or investigative, any appeal in such an action, suit, or proceeding, and any inquiry or investigation that could lead to such an action, suit, or proceeding (hereinafter a "Proceeding") by reason of the fact that such person is or was a director, officer or member of such a committee of the Association, against ail 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 16 158700~:g~~ OBJ/d) 991-A to the fullest extent permitted by the Texas Non-Profit Corporation Act, as amended and in effect from time to time. ARTICLE VI 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 initial Voting Members of the Architectural Committee: Myra Beth Whatley, Dan Bensimon and Laurie Follis. 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 suc- cessor has been appointed as provided herein. 6.05 Declarant's Ri4hts of Appointment. Until September 1, 1993, 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. Commencing September 1, 1993, the Board shall have the right to appoint all Yoting 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 proce- dural 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 which, in its sole dis- cretion, 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 therefor shall be submitted to the Architectural Committee, and construction thereof may not commence unless and until the Architectural Committee has approved in writing such Plans and Specifications. Until receipt by the Architectural Committee of any information or document deemed necessary by the Architectural Committee, it may postpone 3 C22 ~ 17 DB$/d~b:S52991-A 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 Specifica- tions. The Architectural Committee shall have the express authority to perform fact finding functions hereunder and sha71 have the power to construe and inter- pret 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 i n 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. 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 behal f 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_of the members of the Architectural _ Committee taken without a meeting, shall constitute an act of the Architectural Committee. 6.09 No Waiver of Future Aaarovals. The approval or consent of the Archi- tectural 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 Nonliability of Architectural Committee Members. Neither the Archi- tectural 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 18 1sa~oo~_g~?~ DBJ/d~ 991-A or bad faith of the Architectural Committee or its members, as the case may be. Neither the Architectural Committee nor any member thereof shal 1 be 1 i abl a to any Owner due to the construction of any Improvements within the Property, or the creation thereby of an obstruction of the view from such Owner's Lot or Lots. 6.12 Address. Plans and Specifications shall be submitted to the Architec- tural Committee in care of Dan Bensimon, 809 Nueces, Austin, Texas 78701, or in care of such other person at such other address as may be designated by Oecl arant or the Board, as the case may be, from time to time. 6'.13 Certificate of Compliance. Upon completion of any Improvement approved by the Architectural Committee and upon written request by the Owner of the Lot, the Architectural Committee shall issue a Certificate of Compliance in a form suitable for recordation. The Certificate shall identify the Lot, the Plans and Specifications pursuant to which the Improvements were made, the use or uses to- be conducted with respect to the Improvements, and shall further specify that the Improvements comply with the approved Plans and Specifications and that said Plans and Specifications are on file with the Architectural Committee. The Certificate shall not be construed to certify the acceptability or sufficiency of, or endorsement by, the Architectural Committee of the actual construction of the Improvements or of the structural integrity, workmanship or materials thereof. The Owner is hereby notified that the Certificate in no way warrants, except as set forth above, the sufficiency or acceptability of or endorsement by, the Architectural Committee of the construction, structural integrity, workmanship or materials of the Improvements. Preparation and recordation of such a Certificate shall be at the expense of the Owner of the improved Lot. 6.14 Failure to Act. In the event the Architectural Committee or its des- . ignated representative fails to approve or disapprove any Plans and Specifica- ti ons within fifteen (15) days after the same have been submitted to i t, complete with all other information requested by the Architectural Committee in connection with such submission; approval shall be assumed and, upon construction completion, the Owner of the Improvements so completed may obtain a Certificate ~- of Compliance as set forth in Section 6.13 above. 6.15 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 and recorded in the Official Records of Brazos County, Texas, if and when such a variance shall ever be granted. 6.16 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 Improvement on any Lot. 6.17 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 19 158700~_8~~ OBJ/d~ 991-A 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 VII 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 com- mencement 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 thereon. 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 dis- bursements 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 Re4ular 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 Brandon Heights, Phase Two Res- idential Restrictions, including but not limited to the cost of all roadway, median strip and right-of-way maintenance, the cost of enforcing the Brandon Heights, Phase Two Residential Restrictions, and a reasonable provision for contingencies and appropriate replacement reserves, less any expected income and any surplus from the prior year's fund. Assessments sufficient to pay such estimated net 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 20 i5870Q6:S52991-A OBJ/d~ r' 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 Brandon Heights, Phase Two 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 As- sessment, 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 As- sessment from due date thereof (or if there is no such highest rate, then at the rate of 1-1/29a 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 pro- vided in this Article but unpaid, 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 such subordination shall be effectuated by an officer of the Association, duly authorized by the Board. 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 with the priority above set forth from the date that 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 DB$/d~b:052991-A 21 <. 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 VIII 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 Dec- laration, are incorporated herein by reference and made a part of this Declara- tion 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 ease- ments 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, rights-of-way and easements for public utility purposes (including, without limitation, gas, 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. 8.02 Installation and Maintenance. Easements for installation and mainte- Hance of utilities and drainage facilities are reserved as shown on the recorded plat. Within these easements, if any, no structure, planting, 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 i n 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, streets or flowers or other property of the Owners situated on the land covered by said easements. 8.03 Surface Areas. The surface of easement areas for underground utility services may be used for planting of shrubbery, trees, lawns or flowers. Howev- er, 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 rea- sonably 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 flows as contours of land and the arrangement of Improvements 22 158700~.8~Z~ DBJ/d~ 991-A approved by the Architectural Committee 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 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 Encroachment Easement. If any Improvement erected or reconstructed by Declarant, a builder or by an Owner, with the approval of the Architectural Committee, shall encroach on the Lot of an adjoining Owner, the latter grants to the Owner of the Improvement an easement permitting the persistence of such en- croachment. 8.06 Blanket Easement. An easement is hereby retained in favor of the Association over all Lots and the Common Area for the purpose of enforcing the Brandon Neights, Phase Two Residential Restrictions in accordance with Section- 5.04(E) hereof, and for the construction of a common cable television system, a common sprinkler system, 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 a trespass. ARTICLE IX MISCELLANEOUS 9.01 Term. This Declaration, including all of the covenants, conditions, and restrictions hereof, shall run until December 31, 2020, unless amended as herein provided. After December 31, 2020, this Declaration, including all such cove- nants, conditions, and restrictions shall be automatically extended for succes- sive 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 (3J4) of the Lots within the Property then subject to this Declaration, 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 an 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. 9.03 Amendment. (A) ~ Declarant. This Declaration may be amended by the Declarant, acting alone, until September 1, 1993, 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 an 23 158700j:05Z991-A OBJ/d) w: 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 September 1, 1993, this Declaration may be amended by the recording in the Official Records of Brazos County of an instrument executed and ac- knowledged 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 (609:) of the number of votes entitled to be cast pursuant to Section 5.03 hereof. 9.04 Notices. Any notice permitted or required to be given by this Decla- ration 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 Interaretation. The provisions of this Declaration shall be liberally construed to effectuate the purposes of creating a uniform plan for the develop- ment and operation of the Property and of promoting and effectuating the funda- mental concepts of the Property set forth in this Declaration. This Declaration shall be construed and governed under the laws of the State of Texas. 9.06 Exemption of Declarant. Notwithstanding any provision in this Decla- ration 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 pre- ceding 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 con- struction, sales and leasing anywhere within the Property. 9.07 Assignment of Declarant. Notwithstanding any provision in this Decla- ration 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. 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 Brandon Heights, Phase Two Residential Restrictions. Such right of enforcement shall include both damages for, and injunctive relief against, the breach of any such provi- sion. 24 issTOo~:s~~Z OBJ/d~ 991-A . ~,. (B) Nonwaiver. The failure to enforce any provision of the Brandon Heights, Phase Two 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 its judgment, to claim or impose a lien upon any Lot or Improvement con- structed thereon in order to enforce any right or effect compliance with this Declaration. 9..09 Construction. (A) Restrictions Severable. The provisions of the Brandon Heights, Phase Two 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 con- struction, 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) Caations. 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 in accordance with -- the laws of the State of Texas. IN WITNESS WHEREOF, Declarant has executed this Declaration as of this.~~day of ~ ti~ 1991. Declarant: MY REAL ESTATE, INC., USTEE By: an Be Simon, President 25 15870Q3:$~7~991-A DBJ/d) ~~. STATE OF TEXAS ~.~ Gv COUNTY OF - = This instrument was acknowledged before me on the ~ day of ~~ , 1991, by Dan Bensimon. NOTARY PUBLIC IN AND FOR 1"~~-~~-'-r~~~-`~~`-'-~~~~~`-~~' THE STATE OF TEXAS ,~^~~. WANDA RIBNICK ~ < <• ,~- ~ PRINTED NAME: - S 'a'K' ~~ Notary Public. State of Texas t l~` ~•~~ My Commission Expires 11-I1P-~3 My COmmiSSlOn expires: 26 DBJ/djbsS52991-A -; • .. EXHIBIT A Final plat of Brandon Heights Phase Two, 37.818 Acres, Crawford Burnett League, Abstract No. 7, College Station, Brazos county, Texas. 27 15870Q~:s~~ DBJ/d~ 991-A fl(F COPY BYLAWS OF BRANDON HEIGHTS, PHASE TWO HOMEOWNERS ASSOCIATION, INC. A NON-PROFIT CORPORATION The name of this non-profit corporation shall be Brandon Heights, Phase Two Homeowners Association, Inc. (the "Association"). ARTICLE I. PURPOSES AND DEFINITIONS 1. The Association has been formed to exercise all of the powers and privileges and to perform all of the duties and obligations set forth in tale Declaration of Covenants, Conditions and Restrictions for Brandon Heights, Phase Two, as the same may be amended from time to time (hereinafter "Declaration"), which Declaration is or shall be recorded in the Official Records of Brazos County, Texas and is incorporated herein by reference, and for the purposes set forth in --- the Articles of Incorporation of the Association, as the same may be amended and in force from time to time (the "Articles"). 2. Capitalized terms used in these Bylaws shall have the meanings set forth in the Declaration unless otherwise provided herein. ARTICLE II. MEh1BERSHIP, VOTING, MAJORITY OF DOTES, QUORUM, PROXIES 1. Membership. Except and unless otherwise provided in these Bylaws, and the Declaration, ownership of a Lot is the sole qualification for membership in this Association. Any person on becoming an Owner shall automatically become a member of this Association (hereinafter "Member") and shall thereafter be subject to these Bylaws. Such membership shall terminate without any formal action by the Association whenever such person ceases to be an Owner, but such termination shall not relieve or release any such former Member (and Owner) from any liability or obligation incurred under or in any way connected with the prior ownership of a Lot or membership in the Association, or impair any rights or remedies which other Members and Owners have, either through the Board of Directors of the Association or directly, against such for-ner Member (and Owner) arising out of or in any way connected with such ownership or membership and the covenants and obligations inci- dent thereto. 15870Q~:g~~091-A DBJ\d~ 2. Voting. Except as provided in the next sentence, the Owner, whether one or more (including Declarant), of each Lot shall have one vote for each Lot so owned. In addition to the votes to which Declarant is entitled as an Owner, for each such vote Declarant shall have three (3) additional votes until such time as the votes of Owners other than Declarant total in the aggregate sixty-six and two- thirds percent (66-2/3%) of the total number of votes of Owners provided for in the first sentence of this Paragraph 2, and thereafter Declarant shall have only the votes to which it is entitled as an Owner pursuant to the first sentence of this Paragraph 2. 3. Maiority of Votes. As used in these Bylaws, the term "majority of votes" shall mean those votes cast by Members (including Declarant) at any meeting, either in person or by proxy, constituting fifty-one percent (51%) of the aggregate votes represented in person or by proxy at such meeting. 4. uorum. The representation in person or by proxy of fifty-one percent (51%) of the votes outstanding shall constitute a quorum at all meetings of Members. If a quorum is not present or represented by proxy at any meeting of Members, the Members entitled to vote thereat, present in person or represented by proxy, shall have the power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present or represented by proxy. At such adjourned meeting at which a quorum is present or represented by proxy any business may be transacted which might have been transacted at the meeting as originally notified. ~' 5. Proxies. Votes may be cast i n person or by written proxy. No proxy shall be valid after eleven (11) months from the date of its execution unless specifically provided in the proxy. All proxies must be filed with the Secretary of the Association before the appointed time of each meeting of Members. ARTICLE III. ADMINISTRATION 1. Association Responsibilities. The Members will constitute the Associa- tion, which will have the responsibility, acting through the Board of Directors, of administering and enforcing the covenants, conditions and restrictions of the Brandon Heights, Phase Two Residential Restrictions. 2. Place of Meeting. Meetings of Members shall be held at such suitable place, convenient to Members, as the Board of Directors may determine. 3. Annual Meetings. The first annual meeting of Members shall be held on or before January 15, 1992. Thereafter, the annual meetings of the Association shall be held on or before ninety (90) days after the expiration of the prior fiscal year. At such meetings there shall be selected a Board of Directors in accordance with the requirements of Paragraph 5 of Article IV. Members may also transact such other business of the Association as properly comes before them. 2 1587003.BII OBJ\d,jb:053091-A 4. Special Meetings. It shall be the duty of the President to call a special meeting of Members as directed by resolution of the Board of Directors or upon a petition signed by a majority of Members and having been presented to the Secretary or Assistant Secretary of the Association, which presentation shall be deemed constructive receipt by the President. The notice of any special meeting shall state the time and place of such meeting and the purpose thereof. No business except as stated in the notice shall be transacted at a special meeting. Any such meetings shall be held within thirty (30) days after receipt by the President of such resolution or petition. 5. Notice of Meetings. It shall be the duty of the Secretary of the Association to mail a notice of each annual or special meeting, stating the purpose thereof as well as the time and place it is to be held, to each Member at least ten (10) days, but not more than thirty (30) days, prior to such meeting. The mailing of a notice in the manner provided in this paragraph shall be considered notice served. 6. Order of Business. The order of business at all meetings of Members shall be as follows: (a) Roll call and proxy certification; (b) Proof of notice of meeting, or waiver of such notice; (c) Reading of minutes .from prior meeting(s) for approval or other disposition; (d) Reports of officers; (e) Reports of committees; (f) Election of directors (if any); (g) Unfinished business; (h) New business; and (i) Adjournment. ARTICLE IV. BOARD OF DIRECTORS 1. Number and Qualification. Until the first annual meeting of Members in accordance with Paragraph 3 of Article III, the affairs of the Association shall be governed by a Board of Directors consisting of the three (3) persons delineated in the Articles. At such first annual meeting, three (3) persons shall be elected to the Board of Directors, which directors shall thereafter govern the affairs of the Association until their successors have been duly elected and qualified. Members of the Board of Directors need not be Members of the Association. Each director shall be elected by a majority of votes. There shall be no cumulative voting permitted at any election of the Board of Directors. 2. Term of Office. At the first office of two (2) of the directors shall office of the remaining director shall be of the term of office of each respective to a term of two (2) years.. The director annual meeting of Members, the term of be fixed at two (2) years and the term of fixed at one (1) year. At the expiration director, his successor shall be elected s shall hold office until their successors 15870Q~_053091-A DBJ\d) have been duly elected and qualified. Nothing contained herein shall be construed to prohibit any director from election to successive terms of office. 3. Vacancies. Vacancies in the Board of Directors caused by death, res- ignation or disqualification, or by any reason other than the removal of a director by a vote of the Members, shall be filled by vote of the majority of the remaining directors, even though they may constitute less than a quorum. Each person so appointed or elected shall be a director for the balance of the term of the director he or she replaces, and thereafter until a successor is elected or appointed, as the case may be. 4. Removal of Directors. At any regular or special meeting of Members duly called, any one or more of the directors may be removed with or without cause by a majority of votes, and a successor may then and there be elected to fill the va- cancy thus created. Any director whose removal has been proposed by any Member shall be given an opportunity to be heard at the meeting. Any director who fails to attend three (3) consecutive regular or special meetings of the Board of Di- rectors may be removed by majority vote of the other directors, though less than a quorum. 5. Organization Meeting. The first meeting of a new Board of Directors shall be held immediately following the annual meeting of Members at such place as shall be fixed by the directors at the said annual meeting of the Owners, and no notice shall be necessary to the new directors in order legally to constitute such __ meeting, providing a majority of the whole Board shall be present. 6. Regular Meetings. Regular meetings of the Board of Directors may be held at such time and place as shall be determined, from time to time, by a majority of the directors. Notice of regular meetings of the Board of Directors shall be given to each director, personally or by mail, telephone or telegraph, at least three (3) days prior to the day named for such meeting. 7. Special Meetings. Special meetings of the Board of Directors may be called by any officer on three (3) days' notice to each Director, given personally or by mail, telephone or telegraph, which notice shall state the time, place and purpose of the meeting. Special meetings of the Board of Directors shall be called by the President or Secretary or Assistant Secretary of the Association in like manner and on like notice on the written request of one or more director. 8. Waiver of Notice. Before or after any meeting of the Board of Directors, any director may, in writing, waive notice of such meeting and such waiver shall be deemed equivalent to the giving of such notice. Attendance by a director at any meeting of the Board shall be a waiver of notice by him of the time and place thereof. If all the directors are present at any meeting of the Board, no notice shall be required and any business may be transacted at such meeting. 9. Board of Directors' Quorum. At all meetings of the Board of Directors, a majority of the directors shall constitute a quorum for the transaction of business, and the acts of the majority of the Directors present at a meeting at which a quorum is present shall be the acts of the Board of Directors. If, at any meeting of the Board of Directors, there be less than a quorum present, the 4 15870Q~.05~091-A DBJ\d~ majority of those present may adjourn the meeting from time to time. At any such adjourned meeting, any business which might have been transacted at the meeting as originally called may be transacted without further notice. 10. Compensation. No member of the Board of Directors shall receive any compensation for acting as such. 11. Committees. The Board of Directors, by resolution adopted by a majority of the directors, may designate one or more committees to act on behalf of, or recommend action to, the Board of Directors, in accordance with the terms of the resolution and the provisions of the Texas Non-Profit Corporation Act. 12. Telephone Meetings. Any meeting of the Board of Directors or any committee of the Board of Directors may be attended and conducted by conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. Any action required to be taken at any meeting of the Board of Directors or any committee of the Board of Directors, or any action which may be taken at such meeting, may be taken without a meeting i f a consent i n writing, setting forth the action so taken, shal 1 be signed by all of the members of the Board of Directors or of such committee. ARTICLE V. FISCAL MANAGEMENT 1. Books and Records. The Board of Directors shall cause the officers and employees of the Association to keep and maintain at the Association's registered office correct and complete books and records of account, and to permit examination thereof by any Member for any proper purpose, at any reasonable time. 2. Fiscal Year. The fiscal year for the Association shall end on December 31 of each calendar year. ARTICLE VI. OFFICERS 1. Designation. The officers of the Association shall consist of a Pres- ident, one or more Vice Presidents, a Secretary, and a Treasurer, all of whom shall be elected by the Board of Directors, and such assistant officers as the Board of Directors shall, from time to time, elect. Officers need not be Directors. any two offices may be held by the same person, except that the President and Secretary shall not be the same person. 2. Election of Officers. The officers of the Association shall be elected 5 1587003.BII OBJ\dJb:053091-A annually by the Board of Directors at the organizational meeting of each new Board of Directors and shall hold office subject to the continuing approval of the Board of Directors. 3. Resignation and Removal of Officers. Upon an affirmative vote of a majority of the members of the Board of Directors, any officer may be removed, either with or without cause, and his successor elected at any regular meeting of the Board of Directors, or at any special meeting of the Board of Directors called for such purpose. Any officer may resign at any time by giving written notice to the Board of Directors, the President or the Secretary. Such resignation shall take. effect on the date of receipt of such notice or at any later time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 4. Vacancies. A vacancy in any office because of the death, resignation, removal, disqualification or otherwise of the officer previously filling such office may be filled by appointment by the Board of Directors. The officer appointed to such vacancy shall serve for the remainder of the term of the officer he replaces. 5. President. The President shall be the chief executive officer of the Association. He shall preside at all meetings of the Association and of the Board of Directors. He shall have all of the general powers and duties which are usually vested in the office of president of an association. 6. Vice Presidents. The Vice Presidents in the order of their seniority, unless otherwise determined by the Board of Directors, shall have all the powers and authority and perform all the functions and duties of the President, in the absence of the President, or his inability for any reason to exercise such powers and functions or perform such duties, and also perform any duties they are directed to perform by the President or the Board of Directors. 7. Secretary. The Secretary shall keep all the minutes of the meetings of the Board of Directors and the minutes of all meetings of the Association; he shall have charge of such books and papers as the Board of Directors may direct; and he shall, in general, perform all the duties incident to the office of Secretary. The Secretary shall compile and keep up to date at the principal office of the Association a complete list of Members and their last known addresses as shown on the records of the Association. Such list shall also show opposite each Member's name the number or other appropriate designation of the Lot owned by such Member. Such list shall be open- to inspection by Members and other persons lawfully entitled to inspect the same at reasonable times during regular business hours. 8. Assistant Secretary. The Assistant Secretary, if any, shall have all the powers and authority to perform all the functions and duties of the Secretary in the absence of the Secretary or in the event of the Secretary's inability for any reason to exercise such powers and functions or to perform such duties, and also to perform any duties he is directed to perform by the Secretary. 9. Treasurer. The Treasurer shall have responsibility for Association funds 6 15870Q~.g~~091-A DBJ\d~ and shall be responsible for keeping full and accurate accounts of all receipts and disbursements in books belonging to the Association. He shall be responsible for the deposit of all monies and other valuable effects in the name and to the credit of the Association in such depositories as may from time to time be designated by the Board of Directors.' In the event an agent of the Association has the responsibility of collecting and disbursing funds, the Treasurer shall review the accounts of such agent each month on a regular basis. ARTICLE VII. INDEMNIFICATION AND LIABILITY 1. Indemnification. The Association shall indemnify any director, officer, or member of a committee appointed pursuant to Paragraph 11 of Article IV who was, is, or is threatened to be made a named defendant or respondent in any threatened, pending, or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative, or investigative, any appeal in such an action, suit, or proceeding, and any inquiry or investigation that could lead to such an action, suit, or proceeding (hereinafter a "Proceeding") by reason of the fact that such person is or was a director, officer or member of such a committee of the Association, 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 VIII. AMENDMENTS TO BYLAWS 1. Amendments to Bylaws. These Bylaws may be amended by Members having a majority of votes; provided, however that such authority may be delegated to the Board of Directors by Members having a majority of votes. ARTICLE IX. EVIDENCE OF OWNERSHIP. REGISTRATION OF MAILING ADDRESS AND DESIGNATION OF VOTING REPRESENTATIVE 1. Proof of Ownershiu. Any Person, on becoming an Owner of a Lot, shall furnish to the Board of Directors a true and correct copy of the original or a certified copy of the recorded instrument vesting that person with an interest or ownership in the Lot, which copy shall remain in the files of the Association. A Member shall not be deemed to be in good standing nor shall he be entitled to vote DB$\d~b:053091-A at any annual or special meeting of Members unless and until this requirement is first met. 2. Registration of Mailing Address. The Owner or several Owners of an individual Lot shall have 'one and the same registered mailing address to be used by the Association for mailing of monthly statements, notices, demands and all other communications, and such registered address shall be the only mailing address of a person or persons to be used by the Association. Such registered address of an Owner or Owners shall be deemed to be the mailing address of the Lot owned by said Owner or Owners unless and until a different registered address is furnished by such Owner(s) to the Secretary in written form and signed by all of the Owners of the Lot or by such Persons as are authorized by law to represent the interest of (all of) the Owner(s) thereof. 3. Designation of Voting Representative - Proxy. If a Lot is owned by one individual, his right to vote shall be established by the record title thereto. If title to a Lot is held by more than one individual or by a firm, corporation, partnership, association, or other legal entity, or any combination thereof, such Owners shall execute a proxy appointing and authorizing one individual or alternate individuals to attend all annual and special meetings of Members and thereat to cast whatever vote the Owners themselves might collectively cast if they were personally present. Such proxy shall be effective and remain in force unless voluntarily revoked, amended or sooner terminated by operation of law; provided, however, that no proxy shall be valid after eleven (11) months from the date of __ execution unless specifically provided therein. Also, within thirty (30) days after such revocation, amendment or termination, such Owners shall reappoint and authorize one individual or alternate individuals to attend all annual and special meetings of Members as provided by this Paragraph 3. 4. Compliance. The requirements herein contained in this Article IX shall be met before an Owner of a Lot shall be deemed to be a Member in good standing and entitled to vote at an annual or special meeting of Members. ARTICLE X. OBLIGATIONS OF THE OWNERS 1. Assessments. The Board of Directors shall levy and collect Assessments as provided in the Declaration. No Member shall be deemed in good standing and entitled to vote at any annual or special meeting of Members, if such Member shall not have paid or caused to be paid all fines and Assessments made or levied against such Member or such Member's Lot. Z. General. Each Member shall comply strictly with the provisions of these Bylaws and amendments thereto. 8 DBJ\d~b:053091-A ARTICLE XI. NON-PROFIT ASSOCIATION This Association is not organized for profit. No Member, director, officer, or person from whom the Association may receive any property or funds shall receive or shall be lawfully entitled to receive any pecuniary profit from the operation thereof, and in no event shall any part of the funds or assets of the Association be paid as salary or compensation to, or distributed to, or inure to the benefit of any Member, director, or officer; provided, however, that (1) reasonable compensation may be paid to any Member, director, or officer while acting as an agent or employee of the Association for services rendered i n effecting one or more of the purposes of the Association, (2) any Member, director, or officer may, from time to time, be reimbursed for his or its actual and reasonable expenses incurred in connection with the administration of the affairs of the Association, and (3) any director, officer, or member of a committee appointed pursuant to Paragraph 11 of Article IV shall be indemnified as provided in Article VII. ARTICLE XII. EXECUTION OF DOCUMENT The persons who shall be authorized on behalf of the Association to execute -- any and all contracts, documents, instruments of conveyance or encumbrances, including promissory notes, shall be two, one of each of the President or any Vice President, and the Secretary or any Assistant Secretary of the Association. ARTICLE XIII. CONFLICTING OR INVALID PROVISIONS Notwithstanding anything contained herein to the contrary, should all or part of any Article of these Bylaws be in conflict with the provisions of the Texas Non- profit Corporation Act, as amended and in effect from time to time, such Act shall control; and should any part of these Bylaws be invalid or inoperative for any reason, the remaining parts, so far as is possible and is reasonable, shall be valid and operative. ARTICLE XIV. NOTICES All notices to Members of the Association shall be given by delivering the same to each Owner in person or by depositing the notices in the U.S. Mail, postage prepaid, addressed to each Member at the address last given by each Member to the Secretary of the Association. If a Member shall fail to give an address to the Secretary for mailing of such notices, all such notices shall be sent to the address of the Lot owned by such Member, and all Members shall be deemed to have 9 158700~:05~091-A DBJ\d~ been given notice of meetings of Members upon the proper mailing of the notices to such addresses irrespective of the actual receipt of the notices by any Member. The foregoing Bylaws have been ado ted by the initial Board of Directors of the Association as of the ~ day r~ ~---- 1001 10 15870Q~.g~~091-A DBJ\d)