HomeMy WebLinkAboutCovenants and RestrictionsDECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
OF
CASTLEGATEII
THE STATE OF TEXAS §
COUNTY OF BRAZOS §
This DECLARATION OF COVENANTS, CONDITIONS, AND
RESTRICTIONS OF CASTLEGATE II (the "Declaration "), is made effective as of the
_ day of November 2011, by DOS DORADOS DEVELOPMENT, L,L.C. d.b.a. 3 -D
DEVELOPMENT, a Texas limited liability company, (hereinafter sometimes referred
to as "Declarant");
WHEREAS the Declarant desires to convey the Property subject to certain
protective covenants, conditions, restrictions, liens and charges as hereinafter set
forth;
WHEREAS the Declarant desires to create and carry out a uniform plan for
the improvement, development and sale of the Property for the benefit of the present
and future owners of the Property;
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that it is
hereby declared (i) that all of the Property shall be held, sold, conveyed and
occupied subject to the following covenants, conditions, restrictions, liens, and
charges, which are for the purpose of preserving the value and desirability of, and
which shall run with, the Property and shall be binding on all parties having any right,
title, or interest in or to the Property or any part thereof, their heirs, successors, and
assigns, and which shall inure to the benefit of each owner thereof; and (ii) that each
contract or deed that may hereafter be executed with regard to the Property or any
portion thereof shall conclusively be held to have been executed, delivered and
accepted subject to the following covenants, conditions and restrictions regardless of
whether or not the same are set out or referred to in said contract, or deed.
ARTICLE 1
DEFINITIONS
Unless the context otherwise specifies or requires, the following words and
phrases when used in this Declaration shall have the following meanings hereinafter
specified:
1.01 Architectural Committee "Architectural Committee" shall mean the
committee created pursuant to this Declaration to review and approve plans
for the construction of Improvements on the Property.
1.02 Architectural Committee Rules "Architectural Committee Rules" shall mean
the rules and regulations adopted by the Architectural Committee, as the
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same may be amended from time to time.
1.03 Articfes "Articles" shall mean Certificate of Formation of Homeowners'
Association of CASTLEGATE 11, Inc., as that instrument may be amended
from time to time, which instrument is filed in the office of the Secretary of
State of the State of Texas.
1,04 Assessment "Assessment" or "Assessments" shall mean such
assessments as may be levied by the Association under the terms and
provisions of the Declaration.
1.05 Association "Association" shall mean Homeowners' Association of
CASTLEGATE 11, Inc., a Texas non - profit corporation, which shall have
authority and responsibility for all of the communities and subdivisions of
Castlegate 11, as hereafter defined.
1.08 Board "Board" shall mean the Board of Directors of the Association. Board
members may, but need not, be Members of the Association.
1.07 Bylaws "Bylaws shall mean the Bylaws of the Association as adopted by the
Board, and from time to time amended.
1.08 CASTLEGATE II Communities Declarant, or Declarant's assigns, may
create additional phases or sections of Castlegate, and adopt the same or
similar restrictions, rules, and regulations for such phases or sections, and
make the additional phases or sections subject to the Association.
1.09 CASTLEGATE II Residential Restrictions "CASTLEGATE II Residential
Restrictions" shall mean this Declaration, as the same may be amended from
time to time, together with the GASTLEGATE 11 Rules, Architectural
Committee Rules and the Articles and Bylaws of the Association as the same
are in effect from time to time.
1,10 CASTLEGATE 11 Rules "CASTLEGATE 11 Rules" shall mean the rules and
regulations adopted by the Board as the same may be amended from time to
time.
1.11 Common Areas. "Common Areas" shall mean any land conveyed, leased,
dedicated or assigned by Declarant, or a third party with the Association's
consent, to the Association for maintenance and operation, including, but not
limited to, easements, roads, entryways, roadways, rights -of -ways, parkways,
median strips, sidewalks, parks, trails, paths, ponds, creeks, and lakes within
the Property.
1.12 Declarant. "Declarant" shall mean Dos Dorados Development, L.L.C. d.b.a,
3 -D Development, its duly authorized representatives or their respective
successors or assigns; provided that any assignment of the rights of Dos
Dorados Development, LLC, as Declarant, must be expressly set forth in
writing and the mere conveyance of a portion of the Property without written
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assignments of the rights of Declarant shall not be sufficient to constitute an
assignment of the rights of Declarant hereunder.
1.13 Declaration. "Declaration" shall mean this instrument as it may be amended
from time to time.
1,14 Improvement. "Improvement" shall mean every structure and all
appurtenances thereto of every type and kind, including but not limited to
buildings, outbuildings, storage sheds, patios, tennis courts, swimming pools,
garages, storage buildings, fences, screening walls, retaining walls, stairs,
decks, landscaping, pole signs, exterior air conditioning, water softener
fixtures or equipment, and poles, pumps, walls, tanks, reservoirs, pipes,
lines, meters, antennae, towers and other facilities used in connection with
water, sewer, gas, electric, telephone, regular or cable television, or other
utilities.
1.15 Lease "Lease" shall mean a written document for a term of at least 90 days
between an Owner and tenants occupying the Owner's Lot.
1.16 Lot. "Lot" or "Lots" shall mean any parcel or parcels of land within the
Property shown as a subdivided lot on a recorded plat of the Property,
together with all Improvements located thereon.
1.17 Member. "Member" or "Members" shall mean any person($), entity, or
entities holding membership rights to the Association.
1.18 Mortgage. "Mortgage" or "Mortgages" shall mean any mortgage or deed of
trust covering any portion of the Property given to secure the payment of a
debt.
1.19 Mortgagee. "Mortgagee" or "Mortgagees" shall mean the holder or holders
of any Mortgage or Mortgages.
1.20 Occupant Group. "Occupant Group" shall mean one or more persons from
among the following;
a, The Owner or Owners of record of a Lot;
b. If the Lot is occupied by one or more tenants under a Lease, the
Primary Tenant, defined below;
c. Persons related to such Owner or Owners of record, or the Primary
Tenant, within the first degree of relationship;
d. No more than one other person unrelated to the persons described in
(a), (b), or (c).
1.21 Owner. "Owner" or "Owners" shall mean a person or persons, entity or
entities, including Declarant, holding a fee simple interest in any Lot on the
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Property, but shall not include a Mortgagee.
1.22 Person. "Person" or "Persons" shall mean an individual or individuals, entity
or entities having the legal right to hold title to real property.
1.23 Plans and Specifications "Plans and Specifications" shalt mean any and all
documents designed to guide or control the construction or erection of any
Improvement, including, but not limited to, those indicating location, size,
shape, configuration, materials, site plans, excavation and grading plans,
foundation plans, drainage plans, landscaping and fencing plans, elevation
drawings, floor plans, specifications on all building products and construction
techniques, samples of exterior colors, plans for utility services, and all other
documentation or information relevant to such Improvement.
1.24 Primary Tenant 'Primary Tenant" shall mean the tenant named in a Lease
of a Lot as the Primary Tenant and registered with the Association, or if no
such designation or registration is made, the first tenant listed in the Lease.
1.25 Pro ert . "Property" shall mean the real property in Brazos County, Texas
described in Exhibit "A ", which is attached hereto and incorporated by
reference into this Declaration.
ARTICLE 2
DEVELOPMENT OF THE PROPERTY
2.01 Development or Sale by Declarant Declarant may divide or subdivide the
Property Into several areas. develop some of the Property, and, at
Declarants option, sell any portion of the Property free of the restrictions set
forth in this Declaration.
2.02 Addition of Land Declarant may, at any time and from time to time, add any
other lands to the Property, and upon such addition, this Declaration and the
covenants, conditions, restrictions and obligations set forth herein shall apply
to the added land, and the rights, privileges, duties and liabilities of the
persons subject to this Declaration shall be the same with respect to the
added land as they are with respect to the lands originally covered by the
Declaration. In order to add lands to the Property hereunder, Declarant shall
be required only to record in the Official Records of Brazos County, Texas, a
Notice of Addition of Land containing the following provisions:
(1) 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;
(2) A statement that the provisions of this Declaration shall apply to the
added land; and
(3) A legal description of the added land.
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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:
(1) 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;
(2) A statement that the provisions of this Declaration shall no longer apply
to the withdrawn land; and
(3) A legal description of the withdrawn land.
ARTICLE 3
GENERAL RESTRICTIONS
All of the Property shall be owned, held, encumbered, leased, used, occupied
and enjoyed subject to the following limitations and restrictions:
3.01 Construction of Improvements No Improvements shall hereafter be
constructed upon any of the Property without the prior approval of the
Architectural Committee,
3.02 Antennas
(A) Antennas may be installed and maintained in an Approved Location
unless installation in the Approved Location results in Unreasonable
Delay, Unreasonable Cost Increase or Signal Impairment. If
installation in an Approved Location results in Unreasonable Delay,
Unreasonable Cost Increase or Signal Impairment, the Antenna may
be installed and maintained elsewhere on the Lot and the
Architectural Committee may require screening that does not result in
Unreasonable Delay, Unreasonable Cost Increase or Signal
Impairment.
(t3) Within five (5) days after installation of an Antenna, Owner shall
notify the Association in writing that an Antenna has been installed.
If Owner has not installed the Antenna in an Approved Location and
the Association can demonstrate that no Unreasonable Delay,
Unreasonable Cost Increase or Signal Impairment would have
resulted from installation of the Antenna in an Approved Location, the
Association may require the Owner, at Owners cost, to move the
Antenna to an Approved Location. If the Antenna could have been
located in Approved Location without Unreasonable Delay or Signal
Impairment but with Unreasonable Cost Increase, the Association
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may, at its expense, using an installer selected by the Association
and after reasonable notice to Owner, move the Antenna to an
Approved Location.
(C) For purposes of this Section 3.02, the following are defined terms:
"Antenna" means any exterior antenna, aerials, satellite dishes or other
apparatus (a) of one meter or less in diameter that is used to receive direct
broadcast satellite service or to receive or transmit fixed wireless signals via
satellite; (b) of one meter or less in diameter that is used to receive video
programming services via multipoint distribution services or to receive or
transmit fixed wireless signals via other than satellite; or (c) that is used to
receive television broadcast signals.
"Approved Location" means that portion of a Lot which is not visible from any
street, Common Area or other Lot and preferably: (a) in the rear or side yard
of the Lot; (b) mounted on a pole, the dwelling unit or other structure below
the fence line or otherwise screened by a fence; and (c) not located on the
roof of the dwelling unit or other improvement. See (B) above for other
criteria requiring location in an Approved Location.
"Signal Impairment" means that the ability of an Antenna to receive or
transmit acceptable quality signals from an Approved Location is precluded.
"Unreasonable Cost Increase" means the costs of installation, maintenance
or use of an Antenna are unreasonably increased in light of the cost of the
antenna and related equipment.
"Unreasonable Delay" means the installation, maintenance and use of the
apparatus in the Approved Location is unreasonably delayed, such as by a
preapproval or permit requirement.
3.03 Insurance Rates Nothing shall be done or kept on the Property that would
increase the rate of insurance or cause the cancellation of insurance on any
Lot or any of the Improvements located thereon without the prior written
approval of the Board.
3.04 Subdividing No Lot shall be further divided or subdivided, nor may any
easement or other interest therein less than the whole be conveyed by the
Owner thereof without the prior written approval of the Architectural
Committee; provided, however, that when Declarant is the Owner thereof,
Declarant may further divide and subdivide any Lot and convey an easement
or other interest less than the whole, all without the approval of the
Architectural Committee.
3.05 Signs, No sign of any kind may be erected or maintained on any Lot without
the consent in writing of the Architectural Committee except the following
permitted signs:
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(1) signs advertising the Lot for sale;
(2) not more than two (2) political signs;
(3) school spirit signs; or
(4) security signs.
No permitted sign shall exceed five (b) square feet without the prior written
approval of the Architectural Committee. Declarant or the Architectural
Committee shall have the right to enter and remove any unapproved sign,
advertisement, billboard or structure which is placed on any Lot without the
Declarant or the Architectural Committee's consent, and in so doing, shall
not be liable and is expressly relieved from any liability for trespass or other
sort in connection therewith, or arising from such removal.
3.06 Rubbish and Debris No rubbish or debris of any kind shall be allowed or
permitted to accumulate upon the Property and no odors shall be permitted
to arise therefrom so as to render the Property or any portion thereof
unsanitary, unsightly, offensive or detrimental to any other property or Its
occupants. Refuse, garbage and trash shall be kept at all times in covered
containers and such containers shall be kept within enclosed structures or
appropriately screened from view so that it is not visible from any street,
Common Area or Lot. Trash containers must be promptly returned to their
enclosed structures or screening following trash pickup and in no event shall
a trash container remain visible from any street, Common Area or other Lot
overnight, If rubbish or debris accumulates upon any Lot in violation of this
provision in the judgment of the Association, the Association may remove the
rubbish or debris, and charge a special assessment to the Owner of the Lot
for the costs of removal.
3.07 Noise No noise or other nuisance shall be permitted to exist or operate
upon any portion of the Property so as to be offensive or detrimental to any
other portion of the Property or to its occupants.
3.08 Lighting No exterior lighting of any sort shall be installed or maintained on a
Lot where the light source is offensive or a nuisance to neighboring property,
except for reasonable security or landscape lighting that has the approval of
the Architectural Committee,
3.09 Nuisance and Lateral Support No noxious or offensive activity or work shall
be conducted upon any Lot so as to impair the structural soundness or
integrity of any Improvement on any other Lot, or which may be or may
become an annoyance or nuisance to the neighborhood.
3.10 Repairof 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.
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3.11 Alteration or Removal of Improvements Exclusive of normal maintenance,
any construction or removal in connection with any Improvement, which in
any way alters the exterior appearance of said Improvement, shall be
performed only with the prior written approval of the Architectural Committee.
3.12 Roofing Materials The surface of all roofs of principal and secondary
structures shall be metal, shingle, wood shakes, tile, or dimension
architectural quality composition shingle. "Three tab" composition shingles
shall not be allowed. The Architectural Committee shall have authority to
approve other roof treatments and materials when in its determination such
treatment and materials in the form utilized will not be a detriment to the
quality of the neighborhood.
3.13 Solar Equipment In the event an Owner desires to use solar panels or other
solar equipment in connection with the use of any Lot, the location and
installation design thereof shall be submitted to the Architectural Committee
and approval of such design, including the aesthetics thereof, shall be
required before construction may begin.
3.14 Driveway The Architectural Committee shall have the right to impose
limitations on driveway design, including materials, aprons, location and point
of contact with dedicated roads, streets or private driveways within the
Property.
3.15 Tanks The Architectural Committee shall have the right to approve the
location of any tank used or proposed in connection with a single family
residential structure, including tanks for storage of fuel, water, oil or LPG and
including swimming pool filter tanks. (No elevated tanks of any kind shall be
erected, placed or permitted on any Lot). All tanks shall be screened so as
not to be visible from any other portion of the Property.
3.16 Underground Utility Lines No utility lines, including, but not limited to, wires
or other devices for the communication or transmission of telephone or
electric current or power, cable television or any other type of line or wire
shall be erected, placed or maintained anywhere in or upon any portion of
the Property unless the same shall be contained in conduit or cables
installed and maintained underground or concealed in, under or on
Improvements as approved in writing by the Architectural Committee, except
what has already been constructed by the City of College Station, prior to
October, 2011; provided, however, that no provision hereof shall be deemed
to forbid the erection of temporary power or telephone structures incident to
the construction of Improvements which have been previously approved in
writing by the Architectural Committee. The installation method, including but
not limited to location, type of installation equipment, trenching method and
other aspects of installation for both temporary and permanent utilities, shall
be subject to review and approval by the Architectural Committee. Declarant
has no duty to provide any particular utility service at any time, and makes no
representation or warranty that cable, television, telephone, internet or
specific utility providers will be available in the Property.
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3.17 Drainage. Declarant is only responsible for drainage inside the Road Right
of Ways. Declarant is not responsible for any drainage other than what is
previously listed.
3.18 Hazardous Activities No activities shall be conducted on the Property and
no Improvements shall be constructed on the Property that are or might be
unsafe or hazardous to any person or property. Without limiting the
generality of the foregoing, no firearms or fireworks shall be discharged upon
the Property, and no open fires shall be lighted or permitted on a Lot except
in contained barbeque units while attended and in use for cooking purposes,
or within safe and well - designed (i) interior fireplaces, (ii) exterior fireplaces,
or (ill) outdoor chimneys (or chimineas).
3.19 Mining and Drilling No oil drilling, oil development operations, oil refining,
quarrying or mining operation of any kind shall be permitted upon or In any
Lot, nor shall oil wells, tanks, tunnels, mineral excavations, or shafts be
permitted upon any Lot. No derrick or other structure designed for use in
boring for oil or natural gas shall be erected, maintained or permitted upon
any Lot. No well, pump, shaft, casing or other facilities for the removal of
subsurface water shall be placed or maintained on any Lot, and no boring,
drilling, removal or exploration for subsurface water or the injection of water
or waste water shall be conducted on any Lot.
3.20 Machinery and Equipment Without the approval of the Association or
Declarant, no machinery or equipment of any kind shall be placed, operated
or maintained upon or adjacent to any Lot or Common Area except such
machinery or equipment as is usual and customary in Brazos County, Texas,
in connection with the use, maintenance, or construction of a private
residence or appurtenant structures or recreational facilities maintained by
the Association; provided, however, such machinery or equipment may be
placed, operated or maintained by any governmental or quasi - governmental
agency, or by any public utility, in the performance of its legitimate functions.
3.21 Temporary Structures No tent, shack or other temporary building,
improvement or structure shall be placed upon a Lot without the prior written
approval of the Architectural Committee; provided, however, that the
Declarant may maintain or authorize temporary structures necessary for
storage of tools and equipment, and for office space for architects, builders
and foremen on a Lot during any period of actual construction, which
authorization, if given, shall include the nature, size, duration and location of
such structure or structures.
3.22 Unsightly Articles: Vehicles; Garage Doors No trailer, recreational vehicle,
tent, boat, or stripped down, wrecked, junked, or wholly inoperable vehicle
shall be kept, parked, stored, or maintained on any portion of the driveway or
front yard, in front of the building line of the permanent structure, and same
shall be kept, parked, stored or maintained on other portions of a Lot only
within an enclosed structure or a screened area which prevents the view
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thereof from adjacent Lots or streets. No dismantling or assembling of motor
vehicles, boats, trailers, recreational vehicles, or other machinery or
equipment shall be permitted in any driveway or yard adjacent to a street.
Garage doors shall be kept closed at all times except for reasonable time
periods when such doors are in use. The Association may establish rules
and regulations regarding the definition of "reasonable time periods."
Overnight parking of vehicles on the curb of any street is prohibited. No
vehicle may be parked in the street in front of any Lot for a period of more
than twelve (12) consecutive hours.
3.23 Mobile Homes Travel Trailers Recreational Vehicles No mobile homes
shall be parked or placed on any Lot at any time. No travel trailers or
recreational vehicles may be kept on any Lot unless enclosed in a garage or
parked so as not to be visible from adjoining property or public or private
thoroughfares. In the event a travel trailer or recreational vehicle is not
enclosed in a garage, the Architectural Committee must approve the location
of its storage site. This restriction regarding travel trailers and recreational
vehicles shall not apply to guests staying at any Lot for less than forty -eight
(48) hours.
3.24 Fences
(A) No fence, wall, or hedge shall be built or maintained forward of the
front wall line of the main structure, not including decorative walls or fences,
which are part of the Architectural Committee approved architectural design
of the main structure, and which are not to be built or maintained nearer than
the building setback line of any Lot. An exception shall be made in the case
of retaining walls not to exceed twenty -four inches (24 ") above the ground.
Notwithstanding the foregoing, the Architectural Committee is empowered to
waive the aforesaid height or setback limitation in connection with retaining
walls and decorative walls if, in its sole discretion, such waiver is advisable in
order to accommodate a unique, attractive or advanced building concept
design or material and the resulting decorative wall and/or retaining wall will
not detract from the general appearance of the neighborhood, or in the case
where a Lot has a side yard which is adjacent to the backyard of an adjacent
Lot. No chain -link fences may be built or maintained on any Lot.
(B) Unless otherwise approved by the Architectural Committee or as
provided below, any fence built or maintained on any Lot shall be constructed
only of standard grade 1" by 6" cedar privacy fence materials, six (6') feet in
height, with the finished (smooth) side facing Victoria Drive, WS Phillips
Pkwy Drive, all other streets or Common Areas, and /or adjoining properties
which are not part of Castlegate II Communities, and the rough side facing
the interior of any Lot. The Owner (other than Declarant) shall erect wrought
iron fencing on the boundary of any Lot within Lots 8 —17, Block 14, Section
100, Lots 1— 8, Block 7, Section 200, and Lots 9 --14, Block 7, Section 201,
and the Owner of the Lot shall be responsible for maintenance and repair of
the fence once erected. All fencing on that Lot subsequently built by the
Owner of the Lot on the adjacent, connecting boundary lines shall be
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wrought iron material for at least twenty -four (24') feet from the boundary
lines where Declarant erects wrought iron fencing. The wrought Iron fencing
to be used shall be manufactured by Ameristar, 1 -800 -321 -8724, Majestic
Panels, 3 bail, 6 feet tall or substantially similar fencing if Ameristar no longer
manufacturing Majestic Panel,
3.25 Animals - Household Pets No animals, including pigs, hogs, swine, poultry,
wild animals, horses, cattle, sheep, goats or any other type of animal not
considered to be a domestic household pet within the ordinary meaning and
interpretation of such words may be kept or maintained on Lot. No domestic
household pet shall be allowed to make an unreasonable amount of noise, or
to become a nuisance, and no domestic pets shall be allowed on the
Property other than on the Lot of its Owner, except when confined to a leash.
No animal may be stabled, maintained, kept, cared for or boarded for hire or
remuneration on the Property and no kennels or breeding operation shall be
allowed. No domestic household pet shall be allowed to run at large and all
of such pets shall be kept within enclosed areas which must be clean,
sanitary and reasonably free of refuse, insects and waste at all times. Such
enclosed area shall be constructed in accordance with Plans and
Specifications approved by the Architectural Committee, shall be of
reasonable design and construction to adequately contain such animals in
accordance with the provisions hereof, and shall be screened so as not to be
visible from any other portion of the Property. No more than four (4) adult
dogs and three (3) adult cats may be kept on a single Lot. All domestic
household pets shall be kept in strict accordance with all local laws and
ordinances.
3.26 Maintenance of Lawns and Plantings Each Owner shall keep all shrubs,
trees, grass and plantings of every kind on such Owner's Lot cultivated,
pruned, and free of trash and other unsightly material. Subject to Section
3.30 below, trees, shrubs, vines and plants that die shall be promptly
removed. Declarant, the Association and the Architectural Committee shall
have the right at any reasonable time after giving not less than ten days'
notice to Owner to cure any violation of this provision, to enter upon any Lot
to replace, maintain and cultivate shrubs, trees, grass or other plantings
located thereon, and to charge the cost thereof to the Owner of the Lot as
provided in Section 5,04(E) below.
3.27 Landscape Design All landscaping shall be designed so as to protect and
promote, as far as practicable, the natural local landscape environment
through use of native materials, natural drainage, indigenous plant selection
and site design. All landscaping designs shall install live, growing sod
covering the front, side, and back yards on or before substantial completion
of any newly constructed residence on a Lot. Initial landscape installation
must be performed in accordance with the rules and regulations set out by
the Architectural Committee, Additionally, Lot Owners must use either a
landscape contractor approved bythe Architectural Committee, or submit the
landscape plan to the Architectural Committee for approval. Owner shall
maintain such sod in a healthy and growing condition. All front, side and
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back yards must be irrigated with automatic sprinkler systems and have
landscaping acceptable to the Architectural Committee. On or before
substantial completion of any newly constructed residence on a Lot, the
Owner of such Lot shall keep (and/or plant) and maintain at least two (2)
living trees with diameters of at least two (2 ") inches in the front yard of the
Lot. Owner shall maintain such trees in a healthy and growing condition,
Notwithstanding the above provision, Owners of Lots in Sections 100, 101,
102, 103, 104, 105, 106, and 107 shall keep (and /or plant) and maintain at
least one (1) living trees with diameters of at least two (2 11 ) inches in the front
yards of their Lots. Any new trees or replacement trees, planted in the front
yard of a Lot to maintain the required number of trees per Lot shall be
evergreen trees, such as live oak, pine, fir, and juniper, or other evergreen
trees. Nothing in this section shall be deemed to prohibit additional trees that
are not evergreen.
3.28 Construction and Sales Activities Notwithstanding any provision herein to
the contrary, this Declaration shall not be construed so as to unreasonably
interfere with or prevent normal construction activities during the construction
of Improvements by an Owner (including Declarant) upon any Lot within the
Property, or the sale of any Lot thereafter. Specifically, no such construction
activities shall be deemed to constitute a nuisance or a violation of this
Declaration by reason of noise, dust, presence of vehicles or construction
machinery, posting of signs or similar activities provided that such
construction is pursued to completion with reasonable diligence and
conforms to usual construction practices in the area. No building material of
any kind shall be placed or stored upon any Lot until the Owner thereof is
ready to commence The Improvements, and then the material shall be
placed within the property lines of the Lot upon which the Improvements are
to be erected and shall not be placed on the street or on any other part of the
Property. In the event of any dispute regarding such matters, the
Architectural Committee may grant a temporary waiver of the applicable
provision, for a period of time to be determined by the Architectural
Committee in its sole and absolute discretion. At such time as the Declarant
ceases using any portion of the Property as a model home or sales office,
the affected Property shall be altered and /or remodeled, if necessary or
desirable, to comply with the covenants and restrictions contained herein.
3.29 Mailboxes No Lot shall have a mailbox on it. All mailboxes for U.S. Mail
shall be located at cluster mailbox locations to be designated by the
Architectural Committee.
3.30 Sight Lines No fence, wall, hedge, or shrub planting which obstructs sight
lines from streets on the Property shall be placed or permitted to remain on
any corner Lot within the area defined by a line drawn between two points
located forty (40') feet from the point of intersection of the street right -of -way
property lines immediately adjacent to the Lot, as reasonably located by the
Architectural Committee. Measurements shall be by chord, and not arc. No
tree shall be permitted to remain within such areas, unless the foliage is
maintained at sufficient height to prevent obstruction of such sight lines.
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3.31 Garage Conversions No garage or any portion thereof, may be constructed
into enclosed living space unless an alternative garage of at least equal size
is constructed and the Architectural Committee first approves the Plans and
Specifications for conversion and construction in writing.
3.32 Lake and Other Public Areas On any swimming pool, park, community
center, meeting room, party room, lake or public areas constructed on the
Property, the Board may establish rules and regulations for use or
prohibitions against use from time to time. Swimming, boating and fishing
shall" not be allowed, except by and in accordance with regulations
established by the Board In its sole and absolute discretion. Notwithstanding
the foregoing, fishing in accordance with regulations established by the
Board is allowed in the private lake located in the Common Area at Victoria
and WS Phillips Pkwy. Fishing is prohibited in any other body of water
located in the Common Areas,
3.33 Electrical wiring Any structure, which is erected on any Lot, shall have a
structural wiring package, including CAT 5 and RG6 video cable.
3.34 Leasing Rental of Lots shall be permitted, provided the Owner executes
one, and only one tease at any given time, and the Lease designates a
Primary Tenant and the Owner registers the name and contact Information of
the Primary Tenant with the Association within ten (10) days after
commencement of the Lease. If an Owner fails to designate a Primary
Tenant in the Lease or to register the name and contact information of the
Primary Tenant with the Association, it shall be conclusively presumed that
the Primary Tenant is the first tenant name listed in the Lease.
3.35 Compliance with Provisions of CASTLEGATE 11 Residential Restrictions.
Each Owner shall comply strictly with the provisions of the CASTLEGATE It
Residential Restrictions as the same may be amended from time to time.
Failure to comply with any of the CASTLEGATE 11 Residential Restrictions
shall constitute a violation of this Declaration, and shall give rise to a cause
of action to recover sums due for damages or injunctive relief or both,
maintainable by the Board on behalf of the Association or by any aggravated
Owner. Declarant, for itself, its successor or assigns, reserves the right to
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.
3.36 No Warranty of Enforceability While Declarant has no reason to believe that
any of the restrictive covenants or other terms and provisions contained in
this Article 3 or elsewhere in this Declaration are or may be invalid or
unenforceable for any reason or to any extent, Declarant makes no warranty
or representation as to the present or future validity or enforceability of any
such restrictive covenants, terms or provisions. Any Owner acquiring a Lot in
reliance upon one or more such restrictive covenants, terms or provisions
Page 13 of 31
shall assume all the risks of the validity and enforceability thereof and, by
acquiring the Lot, agrees to hold the Declarant harmless therefrom.
ARTICLE 4
RMIDENTIAL RESTRICTIONS
4.01 Residential Use Excluding Common Areas or pavilion or clubhouse areas
reserved or owned by the Declarant, or Its assigns, all Lots shall be improved
and used solely for residential purposes inclusive of a garage, fencing, and
other such improvements as are necessary or customarily incident to
residential use. No Owner shall occupy or use his Lot or any Improvements
constructed thereon, or permit the same or any part thereof to be occupied or
used for any purpose, including religious, other than a private residence for
members of the Occupant Group, All Lots within the Property shall be used
and improved for single - family residential structures, with no more than one
(1) residential dwelling unit per Lot. Anything herein to the contrary
notwithstanding, any Lot may be used or improved for a greenbelt, open
space or drain field purposes. No Improvement may be constructed upon any
Lot that would unreasonably obstruct the view from any other portions of the
Property, and the positioning of all Improvements upon Lots within the
Property is hereby expressly made subject to Architectural Committee
review. The Architectural Committee may, but shall not be required lo,
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 Owners Lot or Lots.
4.02 Garages and Garage Orientation No Lot shall have Improvements erected
which do not provide for a minimum of a two- vehicle garage. In Sections 200,
201, 203, 204, 205, 206, 207, and 208 within the Property, garage entrances
must be recessed at least five (5) feet from the front of the house facing any
street unless the garage entrance is on the side of the house. Any other type
of garage must be fully or partially screened from visibility from any street in a
manner acceptable to the Architectural Committee in its sole and absolute
discretion. All garage doors must meet the rules and regulations set out by
the Architectural Committee and must have decorative hardware, windows,
or decorative wooden construction.
4.03 Outbuildings Every building, inclusive of such structures as a detached
garage, storage building or greenhouse shall be compatiblewith the dwelling
to which it is appurtenant in terms of its design and material composition or
be completely screened from public view. All such buildings shall be subject
to approval by the Architectural Committee. In no instance shall an
outbuilding, other than a detached garage, exceed one (1) story in height or
have total floor area in excess of ten percent (10 %) of the floor area of the
Page 14 of 31
main dwelling.
4,04 Building Height No Improvement greater than thirty -two (32) feet in
height
may be constructed on any L
Architectural Committee. For purposes of this paragraph, height shall
ot without the
measured from the foundation slab of the r prior written approval of the be
ridgeline of the roof of the proposed Improvemen sed Imp to the
4.05 Build in I Materials, Dwellin Size Chimne
Construction,
(A) All single family dwellings
construction quality shall be of recognized standard
, and all exteriors (exclusive of doors, windows and
similar openings) shall be constructed as set out below, of a minimum
Percentage of masonry or other material specifically approved in writing by
the Architectural Committee.
other mate Masonry includes stucco, brick, rock and all
rials commonly referred to in the College Station, Texas area as
Masonry does not include concrete hardy -board siding. Unless an
Masonry.
exception is granted by the Architectural Committee, all sin gle family
dwellings shall contain no less than the number of square feet of enclosed
living space, exclusive of all porches (open or covered), decks an
set out below. Each residence shall include an enclosed at or
detached g d garages
garage or other structure sufficient to meet the
Sections 3.22 and 4,02 above, requirements of
In each of the Sections to be developed within the Property J
, subject to
amendment at Declarant's sole discretion,
shall apply the following minimum standards
Section
Minimum Mason
Masonry
Requirement
Masonry
Mason Chimney Requirement
Minimum Square
Footage of
Residence
Section 100
cheated sq. ff.}
85%
No, except (B) below
Section 101
1500
85%
No, except (B) below
Section 102
1500
85%
No, except (B) below
Section 103
1500
85%
No, except (B) below
Section 104
85%
1500
Section 105
No, except (B ) bel ow
1500
Section 106
85%
No, except B
() below
1500
85%
Na, except (8) below
Section 107
1500
85%
No, except O below,
t B
Section 200
1500
90%
Yes
Section 201
2000
90%
Yes
Section 202
2000
90%
Yes
2000
Page 15 of 31
Section 203 90%
Yes
2000
Section 204• 90%
Yes
2000
Section 205 90%
Yes
2000
Section 206 90%
Yes
2000
Section 207 90%
Yes
2000
Section 208 90%
Yes
2000
" See also Section 3.24 for certain Lot specific fencing
requirements
(B) On Lots in Sections 100 --107,
inclusive, chimneys on dwellings need
not be masonry unless:
(a) The rear boundary of the Lot is adjacent to Victoria or W.S.
Phillips Parkway and the chimney is on the rear portion of the
dwelling;
(b) The chimney is on the front portion of the dwelling facing the front
Lot line; or
(c) The dwelling is on a corner Lot, and the chimney is on the side of
the dwelling facing the side street.
Notwithstanding any provision herein to the contrary, masonry chimneys shall
not be required if the dwelling has a fireplace vent pipe with a diameter not
exceeding six (6 ") inches.
4.06 Construction in Place The use of prefabricated materials, including antique
homes moved from other locations, shall be allowed only with the prior
written approval of the Architectural Committee.
4,07 Setback Requirements No building shall be located or erected nearer to any
Lot line than the building line shown on the recorded plat of the Property
subdivision section which includes such Lot.
ARTICLE 5
CASTLEGATE II OWNERS ASSOCIATION
5.01 Organization The Declarant has, on October 25, 2011, caused the
formation and incorporation of the Association as a nonprofit corporation
created for the purposes, charged with the duties, and vested with the
powers prescribed by law or set forth in its Articles and Bylaws or in this
Declaration. Neither the Articles nor Bylaws shall for any reason be
amended or otherwise changed or interpreted so as to be inconsistent with
this Declaration.
5.02 Membership Any Person or entity upon becoming an Owner shall
Page 16 of 31
automatically become a Member of the Association, Membership shall be
appurtenant to and shall run with the property interest, which qualifies the
Owner thereof for membership, and membership may not be severed from,
or in any way transferred, pledged, mortgaged, or alienated except together
with title to the said property interest.
5.03 VotingRights The right to cast votes and the number of votes which maybe
cast, for election of directors to the Board and on all other matters to be
voted on by the Members shall be calculated as follows,
(A) The Owner, whether one or more (including Declarant), of each Lot
within the Property shall have one vote for each Lot so owned. in addition,
Declarant shall have one vote for each lot reflected on the preliminary plats
of the portions of the Property which have not been platted.
(B) In addition to the votes to which Declarant is entitled by reason of
Subparagraph (A) of this Section, for every such vote, Declarant shall have
three (3) additional votes until such time as the votes described in
Subparagraph (A) of this section, owned by Owners other than Declarant,
total in the aggregate (90 %) of the total number of votes outstanding under
Subparagraph (A) (the "Transition Date "). Thereafter Declarant shall only
have votes if any, to which it is entitled under Subparagraph (A) of this
section.
5.04 Powers and Authority of the Association The Association shall have the
powers of a Texas nonprofit corporation, subject only to any limitations upon
the exercise of its power as are expressly set forth in this Declaration,
Without in any way limiting the generality of the two preceding sentences, the
Association, and the Board acting on behalf of the Association, shall have
the following powers at all times:
(A) CASTLEGATE II Rules and Bylaws To make, establish and
promulgate, and in its discretion to amend or repeal and re- enact, such
CASTLEGATE 11 Rules and Bylaws, not in conflict with this Declaration, as it
deems proper to address any and all aspects of its functions. The
Association shall have the authority to establish committees pertaining only
to specific sections of CASTLEGATE II, Any committee, which elects to
oversee a particular section, shall have the powerto establish section rules,
which shall apply only to sections over which the committee has oversight.
Any such section rules may be more restrictive than the provisions hereof,
but shall not be less restrictive.
(B) Insurance To obtain and maintain in effect policies of insurance
which, in the opinion of the Board, are reasonably necessary or appropriate
to carry out Association functions.
(C) Records To keep books and records of the Association's affairs.
(D) Assessments To levy Assessments as provided in Article 7 below
Page 17 of 31
(E) Right of Entry and Enforcement To enter at any time in an
emergency, or in a non - emergency, after ten (10) days written notice,
without being liable to any Owner, upon any Lot and Into any Improvement
thereon for the purpose of enforcing the CASTLEGATE II Residential
Restrictions or for the purpose of erecting, maintaining or repairing any
Improvement to conform to the CASTLEGATE it Residential Restrictions,
and the expense incurred by the Association in connection with the entry
upon any Lot and the work conducted thereon (I) shall be a personal
obligation of the Owner of the Lot entered upon, (ii) shall be a lien upon the
Lot entered on and Improvements thereon, and (ill) shall be enforced in the
same manner and to the same extent as provided in Article 7 hereof for
regular and special Assessments. The Association shall have the power and
authority from time to time, in its own name and on its own behalf, or in the
names of and on behalf of any Owner who consents thereto, to commence
and maintain actions and suits to enforce, by mandatory injunction or
otherwise, or to restrain and enjoin, any breach or threatened breach of the
CASTLGATE II Residential Restrictions. The Association is also authorized
to settle claims, enforce liens and take all such action as it may deem
necessary or expedient to enforce the CASTLEGATE 11 Residential
Restrictions; provided, however, that the Board shall never be authorized to
expend any Association funds for the purpose of bringing suit against
Declarant, its successors or assigns.
(F) Legal and Accounting Services To retain and pay for legal and
accounting services necessary or proper for the operation of the Association.
(G) Delegation to Committees To set up one or more committees as
authorized by the Texas Non - Profit Corporation Act, as the same is amended
from time to time.
(H) Employees To engage such employees as may be reasonably
necessary in the management of the Association and the performance of its
duties.
5.05 Landscape and Maintenance The Association shall be authorized to
landscape, maintain and repair easements, rights -of -way, common areas,
entryways, sidewalks, paths, trails, detention ponds, lakes, waterfall pumps,
Irrigation equipment, waterwelis, entrance buildings, and other areas of the
Property, as appropriate.
5.06 Common Areas
(A) Subject to and in accordance with this Declaration, the Association,
acting through the Board, shall have the following duties:
(1) To accept, own, operate and maintain all Common Areas
which may be conveyed or leased to it by Declarant, together with any
Improvements of any kind or purpose located in said areas; and to accept,
Page 18 of 31
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 to contest the legality and the
amount of such taxes and assessments.
(3) To execute mortgages, both construction and permanent, for
construction of Improvements on property owned by or leased to the
Association, and to accept lands in Common Areas, whether or not
improved, from Declarant subject to such mortgages or by assuming such
mortgages. Financing may be effected through conventional mortgages or
deeds of trust, the issuance and sale of development or other bonds, or in
any other form or manner deemed appropriate by the borrower, whether
Declarant or the Association. The mortgage or other security interest given
to secure repayment of any debt may consist of a first, second or other junior
lien, as deemed appropriate by borrower, whether Declarant or the
Association, on the Improvements to be constructed, together with such
underlying and surrounding lands as the borrower deems appropriate. The
debt secured by such mortgage or other security instrument may be retired
from and secured by the revenues generated by dues, use fees, assessment
of Members, or otherwise, or any combination thereof, as may be deemed
appropriate by Declarant or the Association, as the case may be, but subject
to the limitations imposed by this Declaration.
(B) In addition to, and not in limitation of, the power and authority of the
Association as set forth in Section 5.04 of this Declaration, the Association,
acting through the Board, shall have the power and authority:
(1) To grant and convey portions of Association property,
including fee title, leasehold estates, easements, right -of -way, and/or
mortgages, to any person or entity for the purpose of constructing, erecting,
operating or maintaining the following:
(a) Parks, parkways or other recreational facilities or structures;
(b) Roads, streets, walks, driveways, trails and paths;
(c) Lines, cables, wires, conduits, pipelines or other means of
providing utilities;
(d) Sewers, water systems, storm water drainage systems,
sprinkler systems and pipelines; and /or
Page 19 of 31
(e) Any similar public, quasi - public or private Improvements.
Nothing contained in this subparagraph, however, shall be construed
to permit use or occupancy of any Common Area or Improvement in a way
that would violate applicable use and occupancy restrictions imposed by
other provisions of this Declaration, or by any statute, rule, regulation,
ordinance or other law of any governmental entity, including but not limited to
rules and orders of the Texas Water Development Board, Texas Water
Commission, Texas Commission on Environmental Quality ( "TCEQ ") and
any flood plain, industrial waste or other ordinance of the City of College
Station.
(2) To pay for water, sewer, garbage removal, landscaping,
gardening and all other utilities, services and maintenance forthe property of
the Association, or within city -owned parks, parkways, entrance ways, or
street rights of way which the Association desires to maintain or pay for, in
the best interest of the Association and the aesthetic appearance of the
subdivision as a whole.
(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, orthe 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 or additions to Association
properties, subject to the approval of the Architectural Committee as required
in this Declaration.
(6) To enter into contracts with Declarant, other property owners
associations with regard to other lands, and other persons, on such terms
and provisions as the Board shall determine, to operate and maintain any of
the Common Areas, to allow use by owners of land subject to the jurisdiction
of other property owners associations, or to provide any service or perform
any function on behalf of Declarant or the Association in connection with the
purposes of the Association, on such terms as the Board may determine.
(7) To acquire and own and to dispose of all manner of real and
personal property, whether by purchase, grant, lease, gift or otherwise.
(8) To borrow funds from banks, private fenders or Declarant, for
such amounts and on such terms as the Board, in its sole discretion, shall
deem appropriate, for the purpose of carrying out the Association's powers,
responsibilities, and obligations set out herein or otherwise permitted by law,
and to secure such loans with assets of the Association as reasonably
necessary to achieve the purposes of the Association. Such loans may be
Page 20 of 31
obtained to meet obligations of the Association when assessment or other
funds are insufficient to meet necessary expenses, or to make capital
Improvements within the Common Areas.
5.07 Agreement with City of College Station. State of Texas, and County of
Brazos The Declarant, as the agent of the Association, or the Association,
may enter into one or more agreements (1) with the City of College Station or
State of Texas or Brazos County, with respect to (1) the landscaping and
maintenance of portions of public streets, highways or rights of way, or (2)
the dedication of any drainage basin, park or other common area within the
property for municipal maintenance, or (ii) with the City of College Station
with respect to landscaping and maintenance of portions of utility easements.
The Association shall accept, without further requirement or documentation,
said agreement and the requirements and benefits associated therewith, for
any agreement reached by the Declarant.
5.08 Merger or Other Agreements The Association may enter into agreements to
merge, consolidate, combine and cooperate with other property owners
associations with jurisdiction over other lands not subject to the Declaration
(including, without limitation, Castlegate Homeowners Association, Inc.).
Such agreements shall be on such terms as the Board shall determine,
including, without limitation, agreements to merge the Association with such
other associations; to cooperate in the maintenance of Common Areas, to
allow use of Common Areas by residents of other lands subject to the
jurisdiction of other associations; and to make loans, enter contracts, charge
user fees, or enter into leases with other associations providing for use or
improvement of Common Areas; on such terms as the Board in its sole
discretion may determine.
5.09 Indemnification The Association shall indemnify any director, officer, or
member of a committee duly appointed pursuant to the Articles or Bylaws
who by reason of the fact that such person is or was a director, officer or
member of such a committee of the Association was, is, or is threatened to
be made, a named defendant or respondent in (i) any threatened, pending,
or completed action, suit or proceeding, whether civil, criminal,
administrative, arbitrative, or investigative, (ii) any appeal in such an action,
suit, or proceeding, and (iii) any inquiry or investigation that could lead to
such an action, suit, or proceeding (hereinafter a "Proceeding "), and against
all judgments, penalties (including excise and similar taxes), fines,
settlements, and reasonable expenses actually incurred by the person in
connection with any such Proceeding to the fullest extent permitted by the
Texas Non - Profit Corporation Act, as amended and in effect from time to
time. Such authorization of indemnification shall be deemed to be mandatory
and deemed to constitute authorization of indemnification and advancement
of expenses to the fullest extent permitted by the Texas Non- Profit
Corporation Act, as amended and in effect from time to time.
Page 21 of 31
ARTICLE 6
ARCHITECTURAL COMMITTEE
6,01 Mem bersh_ ip of Architectural Committee The Architectural Committee shall
consist of not more than three (3) voting members ( "Voting Members ") and
such additional nonvoting members serving in an advisory capacity
( "Advisory Members ") as the Voting Members deem appropriate. The
following persons are hereby designated as the Voting Members of the
Architectural Committee: Wallace Phillips, III, Candace Phillips, and Wallace
Phillips, IV.
6,02 Action by Architectural Committee Items presented to the Architectural
Committee shall be decided by a majority vote of the Voting Members.
6.03 Advisory Members The Voting Members may from time to time designate
Advisory Members.
6.04 Term Each member of the Architectural Committee shall hold office until
such time as he or she has resigned or has been removed or his or her
successor has been appointed as provided herein.
6.05 Declarant's Rights of Appointment Until the Transition Date as defined in
Section 5.03(B), Declarant, its successors or assigns shall have the right to
appoint and remove all Voting Members of the Architectural Committee,
which persons need not be drawn from Association Members.
Notwithstanding the preceding sentence, Declarant may delegate its right of
appointment, or any portion thereof, to the Board by written instrument before
such date. Whenever the Transition Date occurs, thereafter, the Board shall
have the right to appoint all Voting Members. At such time as the Board
gains the right to appoint and remove Voting Members of the Architectural
Committee, or any portion of this right, a majority of the Voting Members so
appointed shall be drawn from Members of the Association. Advisory
Members shall, when reasonably possible, be drawn from Members of the
Association
6.06 Adoption of Rules The Architectural Committee may adopt such procedural
and substantive rules, not in conflict with this Declaration, as it deems
necessary or proper for the performance of its duties, including but not
limited to a building code, a fire code, a housing code, and other similar
codes.
6,07 Review of Proposed Construction Whenever in this Declaration the
approval of the Architectural Committee is required, the Architectural
Committee shall have the right to consider all of the Plans and Specifications
for the Improvement or proposal In question and all other facts that, in its
sole and absolute discretion, are relevant. Except as otherwise specifically
provided herein, prior to the commencement of any construction of any
Improvement on the Property or any portion thereof, the Plans and
Specifications therefore shall be submitted to the Architectural Committee,
Page 22 of 31
and construction thereof may not commence unless and until the
Architectural Committee has approved such Plans and Specifications, Until
receipt by the Architectural Committee of any information or document
deemed necessary by the Architectural Committee, it may postpone review
of any Plans and Specifications submitted for approval. Upon receipt of all
necessary information, the Architectural Committee shall consider and act
upon any and all Plans and Specifications submitted for its approval pursuant
to this Declaration, and perform such other related duties assigned or
authorized by this Declaration, including at its option inspection of
construction in progress to assure its conformance with previously approved
Plans and Specifications. The Architectural Committee shall have the
express authority to perform fact - finding functions hereunder and shall have
the power to construe and interpret any covenant herein that may be vague,
indefinite, uncertain or capable of more than one construction. The
Architectural Committee may, in its review of Plans and Specifications and
such other information as it deems proper, consider whether any proposed
Improvement upon a Lot would unreasonably obstruct the view from other
portions of the Property. The Architectural Committee may, but shall not be
required to, disapprove any Improvement upon any Lot that would
unreasonably obstruct the view from any other portion of the Property. No
Improvement shall be allowed on any Lot which is of such size or
architectural design or involves the use of such landscaping, color schemes,
exterior finishes and materials and similar features as to be incompatible with
residential development within the Property and the surrounding area. The
Architectural Committee shall have the authority to disapprove any proposed
Improvement based upon the restrictions set forth In the preceding sentence
and the decision of the Architectural Committee shall be final and binding so
long as it is made in good faith. The Architectural Committee shall not be
responsible for reviewing any proposed Improvement, nor shall its approval
of any Plans and Specifications be deemed an endorsement, from the
standpoint of structural safety, engineering soundness, or conformance with
building or other codes not of its authorship.
6,08 Actions of the Architectural Committee The Architectural Committee may,
by resolution unanimously adopted in writing, designate one or two of its
members or an agent acting on its behalf to take any action or perform any
duties for and on behalf of the Architectural Committee. In the absence of
such designation, the vote of a majority of all the members of the
Architectural Committee taken without a meeting shall constitute an act of
the Architectural Committee.
6.09 No Waiver of f=uture Approvals The approval or consent of the Architectural
Committee of any Plans and Specifications for any work done or proposed,
or in connection with any other matter requiring the approval or consent of
the Architectural Committee, shall not be deemed to constitute a waiver of
any right to withhold approval or consent as to any other Plans and
Specifications, or other matter whatever, subsequently or additionally
submitted for approval or consent by the same or a different person.
Page 23 of 31
6. 10 Work in Progress The Architectural Committee may at its option inspect all
work in progress to insure compliance with approved Plans and
Specifications.
6.11 No Liability for Architectural Committee Members. Neither the Architectural
Committee nor any member thereof shall be liable to the Association or to
any Owner or to any other person for any loss, damage or injury arising out
of their being in any way connected with the performance of the Architectural
Committee's duties under this Declaration unless due to the willful
misconduct or bad faith of the Architectural Committee or its members, as
the case may be. Neither the Architectural Committee nor any member
thereof shall be liable to any Owner due to the construction of any
Improvements within the Property, or the creation thereby of any obstruction
of the view from such Owner's Lot or Lots.
6.12 Address Plans and Specifications shall be submitted to the Architectural
Committee in care of Wallace Phillips, IV, 4490 Castlegate Drive, College
Station, Texas 77845, or in care of such other person at such other address
as may be designated by Declarant or the Board, as the case may be, from
time to time.
6.13 Failure to Act In the event the Architectural Committee or its designated
representative fails to approve or disapprove any Plans and Specifications
within ten (10) days after the same have been submitted to it, complete with
all other information requested by the Architectural Committee in connection
with such submission, approval shall be assumed,
6.14 Variances Notwithstanding any other provision of this Declaration, in order
to prevent undue hardship upon the OwnerorOwners of any individual Lot or
Lots upon the Property, variance from any restrictions set out in this
Declaration may be granted by a unanimous decision of the Architectural
Committee in a written instrument to be duly acknowledged, if and when
such a variance shall ever be granted.
6.15 Governmental Agency Approval. Nothing in this Declaration shall be
construed to relieve any Owner from securing such approvals, certificates
and /or permits as may be required by law in connection with the construction
of any Improvements on any Lot.
6.16 Relation §hipwith Association The Architectural Committee has been
created pursuant to this Declaration to perform certain functions specified
herein relating to the review and approval of Plans and Specifications for
Improvements built on the Property. The Architectural Committee does not
exercise the authority of the Board, and shall not do so unless and until (1)
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.
Page 24 of 31
ARTICLE 7
FUNDS AND ASSESSMENTS
7.01 Assess
(A) The Association may from time to time levy Assessments against
each Lot whether or not improved. The level of Assessments shall be equal
and uniform between all Lots, provided, however, that no Assessments
hereunder shall be levied against Declarant.
(B) Where the obligation to pay an Assessment first arises after the
commencement of the year or other period for which the Assessment was
levied, the Assessment shall be prorated as of the date when said obligation
first arose in proportion to the amount of the Assessment year or other period
remaining after said date.
(C) Each unpaid Assessment together with such interest thereon and
costs of collection thereof as hereinafter provided, shall be the personal
obligation of the owner of the Lot against which the Assessment falls due,
and shall become a lien against each such Lot and all Improvements hereon.
The Association may enforce payment of such Assessments in accordance
with the provisions of this Article.
7.02 Maintenance f=und. The Hoard shall establish a maintenance fund into
which shall be deposited all monies paid to the Association and from which
disbursements shall be made in performing the functions of the Association
under this Declaration. The funds of the Association must be used solely for
purposes authorized by this Declaration, as it may from time to time be
amended.
7.03 Regular Annual Assessments Prior to the beginning of each fiscal year, the
Board shall estimate the expenses to be incurred by the Association during
such year in performing its functions under the CASTLEGATE II Residential
Restrictions, including but not limited to the cost of all entry ways,
landscaping, greenbelts, common areas, median strip, and right -of -way
maintenance, the cost of enforcing the CASTLEGATE Il Residential
Restrictions, and a reasonable provision for contingencies and appropriate
replacement reserves, less any expected income and any surplus from the
prior year's funds, Assessments sufficient to pay such estimated note
expenses shall then be levied as herein provided, and the level of
Assessments set by the Board shall be final and binding so long as it is
made in good faith. If the sums collected prove inadequate for any reason,
including nonpayment of any individual Assessment, the Association may at
any time, and from time to time levy further Assessments in the same
manner as aforesaid. All such regular Assessments shall be due and
payable to the Association at the beginning of the fiscal year or during the
fiscal year in equal monthly installments on or before the first day of each
month, or in such other manner as the Board may designate in its sole and
absolute discretion.
Page 25 of 31
7,04 Special Assessm In addition to the regular annual Assessments
provided for above, the Board may levy special Assessments whenever in
the Board's opinion such special Assessments are necessary to enable the
Board to carry out the mandatory functions of the Association under the
CASTLEGATE II Residential Restrictions. The amount and due date of any
special Assessments shall be at the reasonable discretion of the Board.
7.05 Owner's Personal Obligation for Payment of Assessments The regular and
special Assessments provided for herein shall be the personal and individual
debt of the owner of the Lot covered by such assessments. Except as
otherwise provided in Section 7.01(A) hereof, no Owner may exempt himself
from liability for such Assessments. In the event of default in the payment of
any such Assessment, the owner of the Lot shall be obligated to pay interest
at the highest rate allowed by applicable usury laws then in effect on the
amount of the Assessment from due date thereof (or if there is no such
highest rate, then at the rate of 1 -1/2% per month), together with all costs
and expenses of collection, including reasonable attorney's fees.
7.06 Assessment Lien and Foreclosure All sums assessed in the manner
provided in this Article but not paid by the Owner, shall, together with interest
as provided in Section 7.05 hereof and the cost of collection, including
attorney's fees as herein provided, thereupon become a continuing lien and
charge on the Lot covered by such Assessment, which shall bind such Lot in
the hands of the Owner, and such Owner's heirs, devisees, personal
representatives, successors or assigns. The aforesaid lien shall be superior
to all other liens and charges against the said Lot, except only for tax liens
and all sums unpaid on a first mortgage lien or first deed of trust filed of
record, securing in either instance sums borrowed for the acquisition or
improvement of the Lot in question. The Association shall have the power to
subordinate the aforesaid Assessment lien to any other lien. Such power
shall be entirely discretionary with the Board and an officer of the
Association, duly authorized by the Board, shall effectuate such
subordination, To evidence an Assessment lien, the Association may
prepare a written notice of Assessment lien setting forth the amount of the
unpaid indebtedness, the name of the Owner of the Lot covered by such lien,
and a description of the Lot. Such notice shall be signed by an officer of the
Association, duly authorized by the Board, and shall be recorded in the office
of the County Clerk of Brazos County, Texas. Such lien for payment of
Assessments shall attach with the priority above set forth from the date such
payment becomes delinquent, and may be enforced subsequent to the
recording of a notice of Assessment lien as provided above, by the
foreclosure of the defaulting Owner's Lot by the Association in like manner as
a mortgage on real property, or the Association may institute suit against the
Owner personally obligated to pay the Assessment and /orfor foreclosure of
the aforesaid lien judicially. In any foreclosure proceeding, whetherjudicial
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
Page 26 of 31
and to acquire, hold, lease, mortgage, convey or otherwise deal with the
same, Upon the written request of any Mortgagee, the Association shall
report to said Mortgagee the status of any Assessments relating to the
Mortgagee's mortgage and remaining unpaid for longer than thirty (30) days
after due.
ARTICLE 8
EASEMENTS
8.01 Reserved Easements All dedications, limitations, restrictions, and
reservations shown on any plat covering all or any portion of the Property
and all grants and dedications of easements, rights -of -way, restrictions, and
related rights made by Declarant prior to the Property becoming subject to
this Declaration, are incorporated herein by reference and made a part of this
Declaration for all purposes as if fully set forth herein, and shall be construed
as being adopted in each and every contract, deed or conveyance executed
or to be executed by or on behalf of Declarant conveying any part of the
Property, Declarant reserves the right to make changes in and additions to
the said easements and rights -of -way for the purpose of most effectively,
efficiently and economically developing and marketing the Property. Further,
Declarant reserves the right, without the necessity of the joiner of any owner
or other person or entity, to grant, dedicate, reserve or otherwise create, at
any time or from time to time, common areas, rights -of -way and easements
for public utility purposes (including, without limitation, gas, cable, water,
electricity, telephone and drainage), in favor of any person or entity, along
and on either or both sides of any Lot line, any such easement having a
maximum width of seven and one -half feet (7 -1/2') on each side of such Lot
line.
8.02 Installation and Maintenance Easements for installation and maintenance of
utilities and drainage facilities are reserved as shown on the recorded plat.
Within these easements, if any, no structure or other material shall be placed
or permitted to remain which may damage or interfere with the installation
and maintenance of utilities; or in the case of drainage easements, which
may change the direction or flow of water through drainage channels in such
easements. The easement area of each Lot, if any, and all Improvements in
such area shall be maintained continuously by the Owner of the Lot, except
for those Improvements for which a public authority or utility company is
responsible. Neither Declarant nor any utility company using the easements
herein or referred to shall be liable for any damages done by them or their
assigns, agents, employees, or servants to shrubbery, trees, lawns or flowers
or other property of the Owners situated on the land covered by said
easements.
8.03 Surface Areas The surface of easement areas for underground utility
services may be used for planting of shrubbery, trees, lawns or flowers.
However, neither the Declarant nor any supplier of any utility service using
any easement area shall be liable to any Owner or to the Association for any
damage done by them or either of them, or their respective agents,
Page 27 of 31
employees, servants or assigns, to any of the aforesaid vegetation as a
result of any activity reasonably relating to the construction, maintenance,
operation or repair of any facility in any such easement area.
8.04 Drainage Easements Each Owner covenants to provide easements for
dralnage and water flow, as contours of land and the arrangement of
Improvements approved by the Architectural Committee thereon require.
Each Owner further covenants not to disturb any trees or other vegetation
within the drainage easements as defined in this Declaration and shown on
the Plat. There shall be no construction of Improvements, temporary or
permanent, in any drainage easement, except as maybe approved in writing
by the Architectural Committee.
8.05 Blanket Easement An easement is hereby retained in favor of the
Association over all Lots and the Common Areas for the purpose of
enforcing the CASTLEGATE 11 Residential Restrictions in accordance with
Section 5.04(E) hereof, and for the construction of a common cable
television system, a common sprinkler system, maintenance of landscaping,
or any other item for the common benefit of the Owners. An easement is
further granted for the purpose of repairing and maintaining any such system
so constructed. An entry upon any Lot or the Common Areas to effectuate
the foregoing purposes shall not be deemed as trespass.
ARTICLE 9
MISCELLANEOUS
9.01 Term This Declaration, including all of the covenants, conditions, and
restrictions hereof, shall run until December 31, 2050, unless amended as
herein provided. After December 31, 2050, this Declaration, including all
such covenants, conditions, and restrictions shall be automatically extended
for successive periods of ten (10) years each, unless amended as provided
in Section 9.03 below or terminated by a written instrument executed by the
Owners of at least three - fourths (314) of the Lots within the Property then
subject to this Declaration, and filed of record in the Official Records of
Brazos County, Texas.
9.02 Dissolution Upon termination of this Declaration in accordance with Section
9,01 above, the Association shall be dissolved. In the event of any such
dissolution of the Association, other than incident to a merger or
consolidation, the assets of the Association shall be dedicated to any
appropriate public agency to be used for purposes similar to those of the
Association with respect to the Common Areas. In the event that such
dedication is refused acceptance, such assets shall be granted, conveyed
and assigned to any nonprofit corporation, association, trust or other
organization to be devoted to such similar purposes,
9.03 Amendmen #
(A) By Declarank This Declaration may be amended by the Declarant
Page 28 of 31
acting alone, until November 1, 2018, and thereafter for so long as Declarant
holds a majority of the votes of the Association. No amendment by Declarant
shall be effective until there has been recorded in the Official Records of
Brazos County, Texas, an instrument executed and acknowledged by
Declarant and setting forth the amendment, and, if amended after November
1, 2018, an instrument executed and acknowledged by the Secretary of the
Association, certifying that the Declarant had the requisite number of votes.
(B) By Owners. In addition to the method in Section 9.03 (A), after
November 1, 2018, this Declaration may be amended by the recording in the
Official Records of Brazos County of an instrument executed and
acknowledged by the Presldent and Secretary of the Association setting forth
the amendment and certifying that such amendment has been approved by
Owners entitled to cast at least sixty percent (60 %) of the number of votes
entitled to be cast pursuant to Section 5.03 hereof.
9.04 Notices Any notice permitted or required by this Declaration shall be in
writing and may be delivered either personally or by mail. If delivery is made
by mail it shall be deemed to have been delivered on the third (3rd) day
(other than a Sunday or legal holiday) after a copy of the same has been
deposited in the United States mail, postage prepaid, addressed to the
person at the address given by such person to the Association for the
purpose of service of notices. Such address may be changed from time to
time by notice in writing given by such person to the Association.
9.05 Interpretation The provisions of this Declaration shall be liberally construed
to effectuate the purposes of creating a uniform plan for the development
and operation of the Property and of promoting and effectuating the
fundamental concepts of the Property set forth in this Declaration. This
Declaration shall be construed, governed and enforced under the laws of the
State of Texas.
9.06 Exemption of Declarant Notwithstanding any provision in this Declaration to
the contrary, neither Declarant nor any of Declarant's activities shall in any
way be subject to the control of or under the jurisdiction of the Architectural
Committee, Without in any way limiting the generality of the preceding
sentence, this Declaration shall not prevent or limit the right of Declarant to (i)
excavate and grade, (ii) construct and alter drainage patterns and facilities,
(iii) construct any and all other types of Improvements, sales and leasing
offices, and similar facilltles, and (iv) post signs incidental to construction,
sales, and leasing anywhere within the Property.
9.07 Assignment of Declarant Notwithstanding any provision in this Declaration
to the contrary, Declarant may assign, in whole or in part, any of its
privileges, exemptions, rights, and duties under this Declaration to any other
person or entity and may permit the participation, in whole or in part, by any
other person or entity in any of its privileges, exemptions, rights, and duties
hereunder.
Page 29 of 31
9.08 Enforcement and Nonwaiver.
(A) Right of Enforcement Except as otherwise provided herein, any
Owner at his own expense, Declarant, and/or the Board shall have the right
to enforce any and all of the provisions of the CASTLEGATE 11 Residential
Restrictions. Such right of enforcement shall include both damages for, and
injunctive relief against, the breach of any such provision.
(B) Nonwaiver The failure to enforce any provision of the CASTLEGATE
Il Residential Restrictions at any time shall not constitute a waiver of the right
thereafter to enforce any such provision or any other provision of said
restrictions.
(C) Liens The Association shall have the right, when appropriate in this
judgment, to claim or impose a lien upon any Lot or Improvement
constructed thereon In order to enforce any right or effect compliance with
this Declaration.
9.09 Construction
(A) Restrictions Severable The provisions of the CASTLEGATE li
Residential Restrictions shall be deemed independent and severable, and
the invalidity or partial invalidity of any provision or portion thereof shall not
affect the validity or enforceability of any other provision or portion thereof.
(B) Singular Includes Plural Unless the context requires a contrary
construction, the singular shall include the plural and the plural the singular;
and the masculine, feminine or neuter shall each include the masculine,
feminine, and neuter.
(C) Sole and Absolute Discretion. Notwithstanding anything herein to the
contrary, whenever a party to this Declaration is entitled to exercise its "sole
and absolute discretion ", such discretion may be exercised by that party for
any reason or for no reason, whether such discretion is arbitrary,
uncontrolled or unreasonable. Any parties' exercise of its "sole and absolute
discretion" shall be final and shall not be subject to appeal or be subject to
adjudication by a court of law, arbitration, mediation, or otherwise.
(D) Captions. All captions and titles used in this Declaration are Intended
solely for convenience of reference and shall not enlarge, limit or otherwise
affect that which is set forth in any of the paragraphs, sections or articles.
(E) Deadlines on Business Day. If any deadline in this Declaration
should fall on a Saturday, Sunday or a Texas or federal holiday, such
deadline shall automatically be extended to the next business day,
(F) Choice of Law This Declaration shall be construed in accordance
with the laws of the State of Texas.
Page 30 of 31
IN WITNESS WHEREOF, Declarant has executed this Declaration as of this
day of November, 2011,
-:;►
DOS DOROADOS DEVELOPMENT, L.L.C.
d.b.a. 3 -D DEVELOPMENT, a Texas limited
liability company
By:
u
STATE OF TEXAS §
COUNTY OF BRAZOS §
This instrument was acknowledged efore me on the — -
Tk day of
November, 2011, by N((- P h , It S ca• of DOS
DORADOS DEVELOPMENT, L.L.C. d.b.a. 3 -D DEVELOP ENT, a Texas limited
liability company, on behalf of said company, in the capacity therein stated.
A."", I jj"Im
BEN TYLER WILSON NOTARf PUBLIC, tate of Texas
= Notary Public, State of Texas
My Commission Expires
��;;Q;;;;' July 27, 2013
Page 31 of 31
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